Justifying or Excusing Humanitarian Intervention? - An Examination of Whether the Law of State Responsibility Can Accommodate the Domestic Justification-Excuse Distinction

Abstract: In defense of humanitarian intervention, it has been claimed to be ‘illegal but justified’ and ‘illegal but excused’. One way of understanding such claims is that humanitarian intervention is illegal since existing primary rules of international law prohibit such intervention. While international law prohibits humanitarian intervention, the act is not ‘legally wrongful’; it is justified. Correspondingly, while international law prohibits humanitarian intervention, the State engaging in such action is not ‘responsible’; it is excused. From this prism, claims of ‘illegal but justified’ and ‘illegal but excused’ attempt to reconcile law and morality. On the one hand, the approaches confirm that current international law prohibits humanitarian intervention, including fundamental principles such as the prohibition of the use of force, the UN Charter, and customary international law. On the other hand, the approaches recognize that it may be morally required (justified) to engage in intervention or that the State is not morally ‘responsible’ (excused) for engaging in intervention. If justified, a State is justified since the act is not ‘legally wrongful’, even though it apparently violates the law. If excused, a State is excused since it is not morally ‘responsible’ for the act, even though it violates the law. Justifications and excuses are different types of defenses existing in domestic legal systems; however, such defenses are not recognized in international law. The law of State responsibility does not divide defenses into justifications or excuses. Instead, the defenses appear as ‘circumstances precluding wrongfulness’. Nevertheless, the law of State responsibility can accommodate a justification-excuse distinction insofar as it is built upon a conceptual distinction between ‘circumstances precluding wrongfulness’ (justified) and ‘circumstances precluding responsibility’ (excused). Such accommodation is based on analogous reasoning with the domestic concept of justifications and excuses. However, analogies with domestic law need to be used with caution since domestic and international law are fundamentally separate legal systems. In contrast to domestic law, States are not only subjects of the law but also lawmakers. States’ violations of the law can change the law if there is sufficient State practice and opinio juris. ‘Justifying’ or ‘excusing’ humanitarian intervention could thus result in a change of the primary rules in international law, in which humanitarian intervention would be considered legal. In conclusion, the law of State responsibility can accommodate a domestic justification-excuse distinction. By accommodating the distinction, the law of State responsibility could provide a legal basis for humanitarian intervention. However, humanitarian intervention should not be justified or excused insofar as the claims ‘illegal but justified’ and ‘illegal but excused’ hold the view that such intervention should remain illegal.