Humanitarian Intervention in Legal Gray Zones

Assessing Two Scholars’ Interpretations of the Extra-Legal Measures Model

---

Published March 14th, 2026

Written by Addie Merrick

States become subject to intervention by outside powers while mass atrocities occur within their borders. Whether for political or economic interests, or the obligation of moral responsibilities in humanitarian intervention, tensions arise when outside states deem it necessary to intervene on humanitarian issues. Further, when the United Nations Security Council fails to act or is unwilling to act, the question of unilateral intervention becomes a contentious issue in international affairs and politics. Many states, including powerful governments in the West, have come under scrutiny and pressure to intervene laterally to stop or slow mass murders and atrocities. 

Writing for the European Journal of International Law, scholar Devon Whittle articulates the place of the Extra-Legal Measures Model (ELM) within the context of unilateral humanitarian intervention within international law. He expresses that the importance of the model places itself into the position of restraining the use of power in the absence of a comprehensive legal regime when states choose to unilaterally intervene on humanitarian issues. The model seeks to mitigate power imbalances that arise when a lack of legal authority takes precedence in such cases. Whittle argues for the solution of the UNSC’s ultra vires acts as one that comes in the form of a legal model that requires transparency and justification of actions that are outside of the legal order. 

The Extra-Legal Measures Model was developed by Professor Oren Gross of the University of Minnesota Law School as a mechanism for how public officials should respond to humanitarian crises in the face of political pressures. In his work, Whittle assesses the scope of the applicability of the model in unilateral humanitarian intervention, articulating various versions of the model that address accommodation. Due to the nature of international legal conflicts, Whittle laments that accommodation may be necessary during disputes more than previously thought. He solicits that while accommodation models suggest that normal law should apply to emergencies, they accept that a ‘degree of accommodation’ may also be necessary. In theory, these varying degrees of accommodation take precedence in grounding legal limits to UNSC action. 

In his reply to Devon Whittle, Professor Oren Gross from the University of Minnesota Law School agrees with Whittle’s concession, but adds a different dimension to the discussion. Gross seeks to argue for the model’s heightened utility in cases of unilateral humanitarian intervention. The absence of UNSC authorization on acts done by states in interventions creates a discussion of justified illegality. While states are breaking the law during unilateral humanitarian intervention, the open acknowledgement of doing so in extraordinary circumstances does not change the law in a manner that would be detrimental. Gross posits that the Extra-Legal Measures model is the best solution to states’ intervention in large humanitarian issues, allowing moral action when most needed. Further, Gross solicits the models’ legitimacy by noting that the extra-legal action must be ‘openly, candidly, and fully-disclosed’ to allow for full consideration of the action by the public. He also notes that while some argue that the model will not be upheld due the possibility of covert states not justifying their actions to the public, resolutions passed by the Council are public documents. Gross then articulates that because these documents are public, it is not possible for states to authorize or engage in such covert action. 

Humanitarian intervention, whether unilateral or not, remains a touchstone for the tension between legal prohibitions and moral obligations to act. The Extra-Measures legal model provides a possible framework for navigating these gray areas of international law, petitioning for accountability and transparency within the international community. 

---