Humanitarian Intervention as a Necessity and the Threat or Use of Jus Cogens

As the twentieth century was drawing to a close, intervention for humanitarian purposes involving the use of force became a political reality and so a popular subject of study in international law. This article is yet another contribution. It draws on, and uses by way of illustration, two recent contributions featured in this journal. On the basis of a critical analysis of the draft articles on Responsibility of States for internationally wrongful acts as adopted by the International Law Commission in 2001, it is asked whether humanitarian intervention may be justified in international law as an act of necessity despite the prohibition of the use of force. The century-old doctrine of necessity has always provoked unease among international lawyers. A contemporary way to cloak this unease has been the idea expressed in the International Law Commission's draft articles that necessity cannot preclude the wrongfulness of an act not in conformity with an obligation arising under a peremptory rule. And so the doctrine of necessity brings one to consider the use or threat of jus cogens outside the law of treaties. This is particularly apposite to the prohibition of the use of force because it is the least controversial example of a rule of jus cogens. It is concluded that under extraordinary circumstances necessity may justify a humanitarian intervention or other uses of force.