The prospect of international intervention legitimacy: case study of 2011 libyan armed conflict

3.2.2.2.2. The Discrepancy of UN Charter in Regard of Libyan Intervention

The authors supporting the right to humanitarian intervention emphasized that one of the goals of the United Nations is the protection of human rights. These authors refer to paragraph 2 of the preamble to the Charter of the United Nations which provides: "We the peoples of the United Nations resolved to reaffirm our faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small"^161(*). It is in this spirit that Teson^162(*) reminds that the use of force for humanitarian purposes, not only does not contradict the purpose of the United Nations, but on the contrary it supports one of its essential goals which is the protection of human rights. As such, it would be wrong to say that humanitarian intervention is prohibited by article 2§4 of the Charter of the United Nations.

On the other side, a researcher opposes to this reasoning of proponents of the right of humanitarian intervention, another goal of the United Nations that is the maintenance of peace and security international, provided for in chapters VI and VII of the Charter. Even the first paragraph of the preamble to the Charter contradicts the interpretation made by the doctrinal trend of a right of humanitarian intervention. More specifically, the first paragraph of the preamble of the Charter of the United Nations provides: "We the peoples of the United Nations, determined to save succeeding generations from the scourge of war, which twice in our lifetime, has brought untold sorrow to mankind".^163(*)

Finally, Michel Virally note that even if military action is intended to protect human rights, is undoubtedly contrary to the his goal. According to the same author, any policy promoting the use of force is contrary to the objectives and the goals of the United Nations.^164(*)

3.2.2.2.2.1 The Rights of Interference under the Different Doctrinal View

On the contrary, authors supporting the right of interference doctrine claim that the purpose of the United Nations to keep the peace can be either violated, or satisfied. In other words, there is a kind of hierarchy between the different goals of the United Nations and therefore a military intervention to protect human rights would not be contrary to the purpose of the United Nations to keep the peace. If, now, it peruses the corollary to the prohibition of the use of force which is the obligation to peacefully resolve disputes (article 2§3 of the Charter), it will be realized that there is nothing in article 2§4, which can affirm that an action may violate a United Nations goal. Proponents of the doctrine of the right of humanitarian intervention are based only on the text of article 2§4 to support their thesis. However, the text of the third paragraph of the same article provides: "the members of the Organization settle their international disputes by peaceful means», so that international as well as justice are not endangered peace and security.

Thus, under the terms of article 2§3 a reaction of a State member of the United Nations, even to massive violations of human rights, must be carried out peacefully without endangering peace, security and justice. Furthermore, article 33 of the Charter enumerates the peaceful means of settlement of the disputes thus complementing article 2§4. Here again, the Charter does not provides any exception of humanitarian armed intervention. Therefore, a researcher can say that the Charter expressly prohibits any unilateral armed intervention, insofar as it threatens international peace and security.

Even if a researcher accepts the thesis of the doctrine of the right of humanitarian intervention, according to which there is a hierarchy between the objectives of the United Nations, a researcher could but admit the precedence of the peace-keeping on the protection of human rights. As it has already seen, the first paragraph of the preamble of the Charter establishes as a primary goal the peacekeeping. In the same spirit, chapter I, entitled "Goals and principles", indicates in article 1§ 1 as the first goal of the United Nations to maintain international peace and security. Moreover, the preamble^165(*) of the Charter specifies the means used by the Organization to achieve its goals. By reading the UN preamble, it is important to note that the Charter gives certain superiority proper to means used in favor of maintaining the peace (resort to the negotiation, inquiry, mediation, conciliation, arbitration, and judicial settlement, recourse to the agencies or regional arrangements, or other peaceful means of their choice as states on UN Charter article 33). In addition, no reference is made to military means to impose the respect for human rights. In the preamble, there is only one reference on the resort to the international institutions.

It remains to consider the last argument of the doctrine of the right of humanitarian intervention. Other authors supporting this doctrinal trend highlight the argument according to which humanitarian armed intervention respects itself the objective of maintaining the peace. They consider that only humanitarian armed intervention, by putting an end to massive violations of human rights, prevents a historic development that would lead to a threat or breach of the peace by the dictatorial country that is targeted^166(*).

This argument is doubly criticized in terms of the facts, as well as on the legal context:

· Firstly, in terms of fact, there isn't a broad interpretation of the concept of the maintenance of peace in relation with human rights. In addition, historically there are many examples of dictatorial regimes that did not cause a breach of the peace in international relations.^167(*)

· On the other hand, in legal terms, the Charter considers the peacekeeping as crucial concern. It is unclear how the Charter could legitimize a real breach of the peace on the basis of a hypothetical and possible break.

Indeed, it is noted that the main purpose of the United Nations is peace-keeping and article 2§4, invoked by the doctrine in favor of the right of humanitarian intervention, refer to this purpose. The provisions of article 2 § 4 of the Charter prohibits all use of force, even motivated by humanitarian conditions.

To assess the readiness of States, the researcher assesses that initially the resolutions of the General Assembly of United Nations, as well as regional agreements on collective security and treaties for the protection of human rights. Then, the researcher also elucidates some cases of intervention raised by the doctrine to find out if they are really the precedents or grounds legitimizing humanitarian interventions.

* ¹⁶¹ §8 of the preamble of the Charter of the United Nations, documents of studies, N ° 3.02, La documentation Française, Paris, 2001, p. 3.

* ¹⁶² Treson H.,, op. cit., pp.67-68.

* ¹⁶³ Preamble of UN Charter. Available on http//:www.un.org/un_charter.doc/pdf, accessed on 24/1/2014.

* ¹⁶⁴ M.VIRALLY, "Panorama du Droit International Contemporain", R.C.A.D.I, vol.183, 1983-V, P. 102.

* ¹⁶⁵ Article 33 of the Charter of the United Nations provides as a means of settlement of disputes "the path of negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, recourse to the agencies or regional arrangements, or other peaceful means of their choice.

* ¹⁶⁶ The preamble of UN Charter states that »we, the peoples of the United Nations, resolved... and these purposes has practice tolerance, a live together in peace with one another in a spirit of good neighborliness, a unite our forces to maintain peace and international security, a accept principles and establish mechanisms to ensure that he will not make use of the force of arms, except in the common interest a resort to international institutions to promote the economic and social advancement of all peoples». UN Charter, op. cit.

* ¹⁶⁷ Resolution 2625 (XXV) of the General Assembly of the United Nations: Declaration on principles of international law concerning friendly relations and cooperation among States, in accordance with the Charter of the United Nations, of 24 October 1970, in the texts of public law, 2nd edition, ed. Dalloz, Paris, 2000, pp32-41