Equity to the Rescue: A New Approach to Legal Humanitarian Intervention
The United Nations Charter rendered war ¯ i.e., the use of force by states across borders ¯ illegal in all but two circumstances, these being self-defense and collective action authorized by the Security Council. However, some have long argued for a third exception to the above rule. Arguing that human rights also constitute an important element of international law, their position contends that the use of force with the goal of protecting against gross human rights violations ought to be legal, even absent Security Council backing. This is known as humanitarian intervention.

The 1999 NATO intervention in Kosovo was accompanied by a period of stark silence from international lawyers concerning its strict legality.1 Many of those who proffered comment couched their analyses in terms of "traditional international law."2&3 The rationale behind this reticence to affirm the legality of NATO's actions is simple: Any such affirmation could be immediately demonstrated to be untrue.

International law is heavily criticized by several schools of international relations theory, notably Neo-Realism. Therefore, it has fallen to international lawyers to defend their discipline in recent decades in the face of Realist assertions that states only obey international law when doing so is in their interest. This affirmative role is predicated upon being able to point to written stipulations or interdictions to enforce rights and obligations upon states.

Nonetheless, despite the above trend, and despite the fact that NATO effectively did as it pleased in Kosovo, few international lawyers were wont to condemn the operation as downright illegal. Perhaps this is a lesson from history. Gustav Radbruch fervently believed that a too-strict adherence to positivistic philosophy in pre-Nazi Germany smoothed the route to dictatorship and the subsequent abuses.4 Allen Buchanan echoed Radbruch's sentiments nearly 60 years later in his rejection of "legal absolutism": the view that "it is virtually never justifiable to violate international law… even for the sake of protecting human rights."5 However, given the leaning toward affirmative positivist rhetoric, it required in both cases a show of armed force combined with human suffering to prick the conscience of legal scholars. Pre-war, Radbruch had been a renowned German positivist. Similarly it is germane to note how, in the aftermath of the Kosovo operation, pricked consciences have transformed erstwhile positivists into fervent apologists for intervention. This was achieved by a myriad of means, including attempting to separate the legality of the operation from its "legitimacy" (Kosovo Report); attempting to brand it legal simpliciter (Jeremy Greenstock); exploring "the exception" in international law (Martti Koskenniemi); or formulating morally acceptable ways to disobey international law (Allen Buchanan).

All of the above formulae attempted to resolve the same problem, namely, that international lawyers wished to find a solution which would accommodate compliance for international law, and at the same time ensure respect for human rights. It was a futile endeavor, since none of the authors achieved their goal and reconciled his/her conscience with the law. It remains to propose an alternative formulation. I propose to look to the law itself, and above all to past efforts in dealing with such problems, in order to chart a way forward.

Legal Rigidity and Lessons from the Past

The humanitarian intervention debate may be surmised thus:
* The rigidity of the statutory instrument (the UN Charter, governing the use of force by states, and the Jus Cogens (compelling law) nature of the norms involved);
* and the factual likelihood that it will not soon be reformed (due to the interests of powerful states in preserving the status quo)
* result in a situation where a recognizably unjust result (gross human rights violations)
* may be achieved without the possibility of an effective solution which exists (humanitarian intervention) being legally achievable.

Clearly, the kernel of the problem rests in the rigidity of the statutory instrument. This is not a new problem. It has been dealt with in the past in various domestic jurisdictions. What surprises me is that the assortment of remedies proposed did not touch upon a solution which had proved effective in a variety of disparate legal regimes across the world in resolving problems wrought by legal rigidity impinging upon the achievement of just results. The solution to which I refer is equity.

In 16th-century England, a process began to solve a problem that had long beset English law. The problem centered on legal rigidity and the indisposition of the government toward legal reform. In essence:

* The rigidity of the statutory instrument (the laws of England)
* and the factual likelihood that it will not soon be reformed (due to the interests of the crown in preserving the status quo)
* result in a situation where a recognizably unjust result (uncompensated damage)
* may be achieved without the possibility of an effective solution which exists (specific performance of the legal obligations defaulted upon or restitution to remedy the wrong committed) being legally achievable.

The increasing need to find a solution to the inflexibility and inadequacy of the Common Law statutes was highlighted by the near-anarchy which resulted in the wake of the War of the Roses, due to unwieldy Common Law procedures.6

In the end, the solution came from within. There had long existed the possibility of a special appeal to the king in the wake of a manifestly unjust result. The king would then judge on the basis of justice. His remedy would not be limited by statute, and damages could take any form. Resort to such appeals grew in popularity exponentially. In time, this process was replaced by a separate system of courts, which eventually merged with the judicial mainstream. In the event of a clash between equity and law, equity should prevail.

In order to counter charges of subjectivity, equity developed a series of guideline "maxims," which would guide the judges in their decisions.

Equity as a Source of International Law: The Maxims of Equity

Equity's principles have been seen to permeate into Western legal systems.7 [In the 17th century] Hugo Grotius and Samuel von Pufendorf included an important place for equity in inter-state relations8. Equity also featured in discussions of a panel of jurists advising upon the creation and statute of a Permanent Court of International Justice (PCIJ).9 Although never admitted into Article 38 of the PCIJ Statute (nor that of the International Court of Justice [ICJ]) as a free-standing source of international law, it is clear from the travaux preparatoires (preparatory work) that equity was firmly envisaged as playing a role as part of the "general principles of law recognized by civilized nations" ¯ one of the four agreed sources of international law. Further, equity played a vital role in many international judgments.

Although certainly not co-terminus with its role in any one national jurisdiction,10 equity had then been consecrated as a composite element of one of the sources of international law. This was reflected in subsequent case-law, where the PCIJ and later the ICJ affirmed certain "maxims" of equity in their judgments. These maxims were originally incorporated into the Common Law to rein in the subjectivity that risked conferring a too-broad discretion upon judges in deciding on the basis of "justice" rather than law. That such maxims were similarly adopted into international jurisprudence reflects similar concerns. Some equitable maxims adopted are:

* Ubi ius, ubi remedium
¯ equity will not suffer a wrong to be without a remedy;11
* Aequitas sequitur legem ¯ equity will follow a sound, settled rule of law;12
* Equity will not decree a vain thing ¯ equity will only intervene where it can be of effective use;13
* Equity looks to the substance rather than the form ¯ equity will not allow formalism from blocking its application;14
* Vigilantibus et non dormientibus aequitas subvenit15 (and estoppel16) ¯ equity will not aid those who sleep on their rights17 (and also meaning that where there is an assurance given, reliance thereupon, and detriment suffered as a result thereof, that such an assurance must be made good upon);18
* He who comes to equity must come with clean hands ¯ to invoke equity, one must be free of iniquity;19
* He who seeks equity must do equity ¯ which obliges those invoking equity to act equitably thereafter20; and
* Equity delights in equality ¯ i.e., a balance should be achieved as regards distribution of justice.21

Further, based on my own conclusions, I venture to include one further maxim:
* Equity will not stoop to pick up pins ¯ equity does not concern itself with trifles. Since trifles do not really exist in inter-state international law, I take this maxim as being accepted, even if it has not been explicitly stated.

Humanitarian Intervention and Equity

Therefore we see that at least eight (effectively nine) maxims of equity have known transposition into international law. It remains to examine how this impacts upon humanitarian intervention.

1. Aequitas sequitur legem

Humanitarian intervention represents a use of force by states outside of the two exceptions to the UN Charter prohibition. However, the textual interpretation of the UN Charter is far from settled. Firstly, one must take into account that the use of force is prohibited, some argue solely, against the political independence of a state. Others disagree, arguing for a blanket ban. It is wise, further, to be aware of the inherent incompatibility of the human rights norms with a legal regime which treats the protection of state sovereignty as paramount and consecrates a principle of non-intervention. A vibrant scholarly debate surrounds this legal regime, as well as its morality, and its "other," Taking the above into account, it is clear that the principle Aequitas sequitur legem22 cannot apply.

2. Ubi ius, ubi remedium

Human rights norms have attained great importance in international law. While regional treaties such as the European and American Conventions on Human Rights are not universally ratified, many human rights norms constitute customary law,23 while conventions banning specific human rights abuses abound.24 Some such norms have even been suggested to have attained Jus Cogens status.25

It remains to examine the protection provided against abuses of such norms, and to ensure that when abuses do occur, adequate remedies exist. The problem is that within the UN Charter, which predates much of the human rights framework, there exists a lacuna. State sovereignty and non-interference reign supreme. A limited inherent right of self-defense is provided for. Outside of this, the Security Council may authorize force in order to assure the protection of international peace and security. In theory, this ought to go a long way toward protecting human rights, since it is within the context of international strife that the most horrific human rights abuses occur.26 However, in reality, its effectiveness is constrained by three factors:
* The Security Council's subjectivity;
* The veto; and
* The fact that "international peace and security" is not equal to "human rights." After all, international peace and security may be secured in a region where states enjoy friendly relations, but where within individual states, torture and genocide are rampant. The non-identical nature of the two concepts means that protecting the latter may theoretically be accomplished effectively without unduly concerning oneself with the former.

From the above, one may reasonably conclude that no (effective) protection against gross human rights abuses exists. However, if and when there exists a wrong without a remedy, equity will rectify this. Equity's preference in such situation is to "fill the gaps" in the law. Therefore, if it becomes apparent that a program of gross human rights abuses is taking place, which may only be remedied by an armed intervention, then equity shall permit this intervention.

3. Equity will not decree a vain thing

Equity is strongly disposed towards making a real contribution to substantive justice. Equity will search for the solution that contributes most effectively to solving problems and righting wrongs. If this solution transpires to be intervention, then this shall be the preferred medium. Equity will not choose another solution more in keeping with the letter of the law simply for formal reasons if this will not be equally effective.

4. Equity looks to the substance rather than the form

Equity's abhorrence for formalism and its stipulation that written instruments may never be used as a shield for illicit activities combine to qualify the interdiction on the use of force. If such an interdiction is used to allow states to commit gross human rights abuses within their own borders without fear of recourse to force by other states in order to end such a state of affairs, and if, further, such an armed response is the only effective manner in which these abuses may be ended, equity shall look at the substance of the UN Charter, rather than its form.

The chief aim of the UN Charter is clearly the prevention of armed conflict. The purpose of the ban on the use of force is clearly a measure intended to limit such conflicts and thus protect people. The purpose is not, however, to ensure an all-encompassing sovereignty which allows people to be tortured and murdered at the whim of a dictator. Such conduct is intended to give rise to action by the Security Council in its role as protector of international peace and security. However, if and when this proves impossible, equity allows recourse to a more teleological interpretation of international legal norms, in the light of their intended purpose. This broader interpretative faculty conferred by equity allows an action like humanitarian intervention to be permissible if it provides a practical solution that may be read as a gap-filling panacea to cure lacunae in the relevant legal provisions.

5. Vigilantibus et non dormientibus aequitas subvenit (and estoppel)

The risk of delay defeating equity is important where states refrain for many years from action against a transgressor. If states do not offer diplomatic protests, and if they do not search for peaceable means to put an end to the situation, instead standing aloof for years on end, they may be precluded from future action by the fact that they accepted this situation for an extended period.

Concerning the doctrine of estoppel, it is applied in tandem with ubi ius, ubi remedium:
* An assurance
is furnished by any state which ratifies human rights treaties, or which refrains from protesting regarding the reception of human rights norms into customary law. This assurance extends to other states and to its citizens, that those persons resident on its territory will be protected.
* A reliance comes from the citizens of the state, who conduct their daily lives free from fear due to the assurance. A further reliance upon this assurance from the other states constituting the international community may also be held to exist. The state in question has, in effect, promised to respect certain norms, a promise upon which other states rely in their dealings with the state.
* A detriment is incurred, both by the citizens ¯ whose rights are infringed ¯ and by the other states in the international community ¯ who have changed their position and policy towards the abusive state on foot of the given assurances and who are unable now to rely on such assurances ¯ in the case where a state engages in gross human rights abuses in contravention of international law. In addition, it is accepted that certain human rights protection obligations are owed erga omes, and therefore, every state is entitled to feel detriment when such obligations are not fulfilled.

The three prerequisite elements for an estoppel all being present, the transgressor state is estopped from denying the original assurance. In ideal circumstances, this would be ordered by an ICJ injunction. However, the ICJ's jurisdiction makes this unlikely. Therefore, the fact that an estoppel arises but is unenforceable requires further recourse to the maxim ubi ius, ubi remedium. If the Security Council is unwilling or unable to take appropriate measures to enforce this estoppel, then equity may permit a third state or a collection of third states to intervene, to enforce the estoppel by whatever means required.

6. He who comes to equity must come with clean hands

The intervening power, in order to maintain the right to intervene, must itself be free of iniquity. This will necessarily preclude the involvement of states in operations to end gross human rights abuses which themselves engage in similar practices. This check creates an incentive for states to keep their hands clean, thereby allowing them free choice in foreign policy decisions.

7. He who seeks equity must do equity

The necessary prospective corollary of the above is that if one resorts to equity, one must act equitably, and not derive undue profit from equity's operation. This principle may be of particular importance in the conduct of a humanitarian intervention operation. If the operation is undertaken, as it must necessarily be, to protect human rights (and human security) and to prevent further abuses from occurring, then human rights and human security must be paramount in the minds of its directors.

What this entails, in concrete terms, is a new approach to such operations. Humanitarian interventions must not be equated with other types of armed conflict. The idea here is to end gross human rights abuses, employing the most effective means. However, this cannot and must not involve impinging upon human rights beyond what is necessary. Of course, what this principle entails is already broadly set down within the Geneva Conventions, but the spirit of these texts was not followed when NATO warplanes flew at high altitudes over Kosovo. If International Humanitarian Law alone cannot constrain intervening states to act humanely and with caution and respect for the perhaps the maxims of equity may lend fresh perspective on the need to avoid hypocrisy ¯ purporting to save civilians while killing civilians ¯ in such operations.

8. Equity delights in equality

Regarding humanitarian intervention, this principle may be used to prevent states from being selective about where to intervene where similar abuses are being contemporaneously committed in neighboring states in a region. Justice must be available to all.

9. Equity will not stoop to pick up pins

In order for equity to intervene, set aside the letter of the law and impose a solution which involves considerable cost to all involved, the matter at hand must not be trifling. The human rights violations must be both serious and verifiable. They must, in short, occur on a scale grand enough to "prick the conscience of mankind." This is in accordance with common definitions of humanitarian intervention ¯ two killed people and a tortured prisoner are not enough for an intervention.

Conclusion: An Equitable Framework for Humanitarian Intervention

Based upon the nine principles above, a model for humanitarian intervention which may be held to be legal by virtue of equity, insofar as equity is a general principle of international law, emerges. Its tenets are as follows:

* A series of gross human rights violations must be committed…
* … by a state which has either signed human rights treaties or which has not consistently objected to the inclusion of human rights as part of customary law.
* No peaceable means of stopping these violations is available.
* No means within the UN Charter of stopping these violations is available.
* The reasonable determination that the only remaining means of putting an end to such abuses is by armed intervention.
* Intervention is only permitted where it may be an effective solution and is not undertaken in vain.

However, importantly, the equitable legal permissibility of humanitarian intervention is further predicated upon a code of conduct for intervening states, namely:
* No state which itself engages in gross human rights violations may intervene.
* States must intervene with the sole purpose of ending such violations and may not profit unduly as a result of doing so. They must act equitably in enforcing equity and must refrain from unnecessary loss of civilian life and unnecessary suffering.
* Neighboring states engaged in identical violations must be treated in an identical manner.
* Intervening states may not sleep on their rights to intervene, ignoring abuses for years before deciding to intervene because of these abuses.

The above represents equity's formula for humanitarian intervention. Its attention to the duties owed by the intervening power creates a series of safeguards against abusive invocation. The utility of these safeguards must not be underestimated. If states wish to intervene, they must themselves boast a respectable human rights record, and must conduct the operation with the highest regard for the lives of those civilians whom they are protecting. In addition, the obligation to act in parallel against one transgressor as against another prevents invocation of the formula against unfriendly states, while smiling amicably upon the abuses of one's friends. Further, the fact that states may not sleep on their rights, and that doing so may debar them from intervening later, creates impetus to intervene immediately when the abuses begin, in the knowledge that their hands may be tied in the event of later intervention.

Equitable humanitarian intervention is a new concept, albeit rooted in law which has existed for many years. Equity does not require state practice to affirm its worth, embedded as it is as an independent source of law. Equitable principles should, instead, be used in the future as a template, a checklist by which to judge the legal validity of interventions of a humanitarian nature when institutional options are not available. It remains to be seen whether states will take these principles to heart, but if they do, they may be assured of a legal basis for altruistic operations, and a means of legally separating the above from opportunistic belligerence.

The formulation presented shares common elements with the formulae advanced by various scholars who have made use of the legal/legitimate dichotomy or who have attempted to mix law with ethics, politics or "justice." In addition, the equitable formulation is mirrored in much of its import by the International Commission on Intervention and State Sovereignty (ICISS) "Responsibility to Protect" principles. However, the superiority of the equitable solution must immediately be obvious, insofar as it is rooted in the law, not merely in ethics, politics or pig-philosophy.

The equity model allows states the right to humanitarian intervention without resort to illegality. In return for this right, however, they must present clean hands and comport themselves equitably.

Many problems remain with the above formulation: its enforceability for one thing, and whether it will ever find favor with state practice.

However, perhaps it is not too far-fetched to speculate that states may consent to some constraints imposed by a solution which creates a legal basis for intervening without Security Council authorization. If this is the case, equity may provide the basis for saving many strangers in the future.

1 M. Byers, and S. Chesterman, "Changing the rules about rules? Unilateral humanitarian intervention and the future of international law," in ed. J.L. Holzgrefe, and R.O. Keohane, Humanitarian Intervention: Ethical, Legal and Political Dilemmas (Cambridge: Cambridge University Press, 2003), p.177.
2 See for example C. Greenwood, "Yes, but is the war legal?," Observer, March 28, 1999.
3 See also J. Habermas, "Bestiality and Humanity: A War on the Border between Legality and Morality," Constellations, Vol.6, No.3 (1999), pp.263-272, at p.264, who uses the term "classical international law."
4 G. Radbruch, Die Erneuerung des Rechts, 2 Die Wandlung 8, 10 (Germany 1947).
5 A. Buchanan, , Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford: Oxford University Press 2004), p441.
6 S. Prall, "The Development of Equity in Tudor England," The American Journal of Legal History, Vol.8, No.1 (1964), p. 9.
7 Justice M. White, "Equity - A General Principle of Law Recognised by Civilised Nations?" Queensland Law Journal, Vol. 4, No.1 (2003), pp.103-116,
8 Ibid, p106.
9 W.G. Friedman, Legal Theory, 5th ed., (Stevens, 1967), pp. 543-545.
10 S. Rosenne, "The Position of the International Court of Justice on the Foundations of the Principle of Equity in International Law", in ed. Bloed and van Dijk, Forty Years of the International Court of Justice (Europa-Instituut, 1988), p.85.
11 Belgium v Spain (1970) ICJ Rep. 3.
12 S. Rosenne, S., "The Position of the International Court of Justice on the Foundations of the Principle of Equity in International Law," in ed. Bloed and van Dijk, Forty Years of the International Court of Justice (Europa-Institut, 1988), p.85.
13 Belgium v Spain (1970) ICJ Rep, p.3.
14 Netherlands v Belgium (1937) PCIJ (ser A/B) No.70, p.4.
15 United Kingdom v Norway (1951) ICJ Rep., pp.116-124.
16 Hungary v Slovakia (1997) ICJ Rep., p.7, concurring opinion of Vice-President Weeramantry.
17 Serbian Loans (1929) PCIJ (ser A) Nos. 20/21, p.5.
18 Thailand v Cambodia (1962) ICJ Rep., p.6.
19 Netherlands v Belgium (1937) PCIJ (ser A/B) No.70, p.4. See particularly the opinion of Judge Hudson, who stated: "It would seem to be an important principle of equity that where two parties have assumed an identical or reciprocal obligation, one party which is engaged in a continuing non-performance of that obligation should not be permitted to take advantage of a similar non-performance of that obligation by the other party. The principle finds expression in the so-called maxims of equity which exercised great influence in the creative period of the Anglo-American law. Some of these maxims are, 'equality is equity, 'he who seeks equity must do equity'… a very similar principle was received into Roman Law."
20 Netherlands v Belgium (1937) PCIJ (ser A/B) No.70, p.4.
21 Ibid.
22 … which Howard Oleck describes as "minor." See H.L. Oleck, "Maxims of Equity Reappraised," Rutgers Law Review Vol.6, No.3 (1952), pp.528-533.
22 … which Howard Oleck describes as "minor." See H.L. Oleck, "Maxims of Equity Reappraised," Rutgers Law Review Vol.6, No.3 (1952), pp.528-533.
23 The prohibition on slavery, genocide and crimes against humanity may be examples.
24 For example, the Convention on the Prevention and Punishment of the Crime of Genocide adopted by the UN General Assembly in 1948, and en vigeur since 1951.
25 M. Janis. and J. Noyes, International Law: Cases and Commentary, 3rd ed., (London: American Casebook Series, Thomson & West, 2006), p.148.
26 M. Walzer, "The Argument about Humanitarian Intervention," Dissent (Winter 2002), pp.29-39.