All My Little Words

Humanitarian Intervention: Why questions of law and morality are missing the point.

Posted in Uncategorized by nickchristian on May 5, 2011

Humanitarian Intervention is ‘the threat or use of force across state borders by a state aimed at preventing or ending widespread and grave violations of the fundamental human rights of individuals over than its own citizens, without the permission of the state within whose territory force is applied.’[1]

Humanitarian intervention is a subject upon which much has been written and yet, prior to the collapse of the Soviet Union there were very few examples, if any, of such interventions taking place. Throughout the Cold War while conflicts between states broke out, were fought and resolved, with a few exceptions they tended to be explicitly justified on grounds of direct or indirect self-defence. Geo-political interest was the watchword of the era. While state-sponsored human rights abuses were viewed with horror when revealed to the world at large, intervening on humanitarian grounds was a luxury that few could afford when higher stakes were in play. With the collapse of that greater threat and a gradual dwindling of the importance of “strategic interest” came a reassessment of the West’s role with regards to other countries and the conduct of states towards their own people. “The responsibility to protect” is how it was seen by less cynical commentators[2] while others looked on with skepticism as neo-conservatives and neo-imperialists flouted centuries old international legal standards under the guise of altruistic missions.

The legal aspect concerns the necessary violation of state sovereignty which must take place in the course of any act of humanitarian intervention  Sovereignty, the very foundation of international state system and a recognized feature since the 1648 Treaty of Westphalia, provides states with legally recognized responsibility for affairs within its borders and protection against interference across. A state or coalition of states presented with an obligation or opportunity to conduct an humanitarian intervention must consider, confront and overcome this obstacle before it can take place. In the first part of this essay I will examine the historic origins and contemporary understandings of sovereignty and the extent to which it serves as an actual or artificial impediment to humanitarian intervention taking place. In this section, with the help of Michael Walzer and others, I will look at the extent to which humanitarian intervention is compatible with the concept of Just War Theory and will also consider whether sovereignty, as theoretical construction, is undermined by the implicit acceptance of humanitarian intervention as a norm of state behaviour. Throughout this section I will try to determine whether respect for the sovereignty is ever truly an obstacle to intervention on humanitarian grounds, or if it merely serves as a convenient rhetorical device, enabling reluctant statesmen to look the other way while acts of atrocity are taking place in distant lands.

In this essay’s second section I will look at the political question. The nineties, in its way, changed everything. Although not central to it, it should not be seen as coincidence that the dawn of cheap mass media was heralded just as the question of humanitarian intervention could increasingly be found at centre stage. Freed from the constraints imposed by the Cold War, state action was no longer a matter only for statesmen; politicians’ denial of knowledge was no longer plausible; too late would be too little as the likes of CNN relayed footage around the globe in real time and in graphic detail. In developed liberal democracies the vox populi was able to weigh in on foreign policy decision making, as well as on domestic matters, and took on a new and additional political dimension. An intervention of one state by others or another will always have some form of political impact, either between states or within them, and can be positive or negative. Conversely, to not intervene will have political implications for those involved – although rare is the occasion where a political leader been punished at the ballot box for ignoring the plight of a distant people. In sum, the question remains, has the political dimension found its way to the centre of the humanitarian issue, or is it still a less significant concern than the legal element and, as we will analyse first, the moral?

Common intuition tells us an intervention which is truly humanitarian in nature should be driven by matters of morality. In reality we know this is not, and can not ever be, true as state decision making is a complex process and yet politicians and those leading interventions are humans and humans are indeed driven by moral concerns. Political leadership carries with it the capacity to act against evil and therefore, to no small degree the burden of responsibility to do so

Rarely can a single factor be seen to carry enough force to steamroller all others and render them irrelevant. The notion of “humanitarian intervention” is not a scientific one and is employed as a catch all for such interventions that project a strongly recognizable humanitarian motive. However, as Mona Fixdal and Dan Smith argue, and as we shall discuss, ‘[h]umanitarian intervention is never purely humanitarian.’[3]

The Legal

When thinking about humanitarian intervention, the legal considerations are centred on the globally understood and applied understanding of state sovereignty. As Holzgrefe’s articulation makes clear, any humanitarian intervention must involve the use of force across state borders without the permission of the state concerned with inevitable consequences on the sovereignty of that state, if not on the concept of sovereignty itself. International law’s attention with regards to humanitarian intervention in a contemporary context tends to focus on the balancing of state sovereignty against human rights[4], which is to say that right of the state to the monopoly on the use of force within its demarcated territorial boundaries is near but not absolute.

The modern idea of a sovereign state ruling territory with fixed borders stems from the 1648 treaties of  Münster and Osnabrück which were signed to end thirty years of war in Westphalia. Widely recognized as officially heralding the arrival of the modern state system, the Treaty of Westphalia marks the transition “from a ‘global’ medieval world to a world in which one political authority, the territorial state, came to dominate both the local and the global”[5]. This new system of exclusion and inclusion enabled legalized relations between states and provided the ultimate legal authority with regards to war until the founding of the United Nations in 1948.

The idea of sovereignty has moved on significantly since its earliest incarnation, with “popular sovereignty” now as commonly understood as it was once unthinkable. As has been said “Even the most tyrannical ruler claims his people love him”[6]. In that respect is essay is being written with pertinent timing as a UN backed coalition of military forces is in the process of conducting an intervention in the North African state of Libya. That Gaddafi, in attacking his people, had surrendered his claim to being the sovereign leader of Libya was put forth  by some as sufficient to render null and void the arguments in defence of sovereignty and the right of the sovereign to non-intervention: ‘The norm of non-intervention cannot protect genocidal and other practices that are themselves proscribed by international laws and treaties.’[7]

The founding of the United Nations and the signing of the UN charter eroded to some extent the state monopoly on the use of force. With member states requiring Security Council authorization to be granted before going to war*, the UN charter can be seen as simultaneously reducing and expanding the grounds for war, while further enshrining rather than threatening the firmly established norms sovereignty  and of non-intervention with one notable exception.

A direct reaction to the Nazi crimes of the holocaust, the Genocide Convention of 1948 was designed to prevent such atrocities being repeated by calling upon its signatories to “prevent and punish” it wherever it should occur[8]. Yet even  this single example does not provide the legal authority for a state to act unilaterally , instead requiring that “the competent organs of the United Nation… take such action as they consider appropriate.”[9] That customary international law established and maintains a right to unauthorized intervention is an argument made by some scholars yet this argument serves more as a post hoc political justification rather than one which carries actual legal standing and will permit an humanitarian intervention to take place in the future.

Michael Walzer’s Just and Unjust Wars provides one of the most commonly referred to authorities on the legality of and in war, also known as the Just War tradition, which prescribes the conditions under which the resort to war is legal as well as the standards of behaviour that must be adhered to once states are at war. Vattel saw domestic jurisdiction to be completely inviolable but determined that subjects have the right to resist a tyrannical sovereign and that ‘if by his insupportable tyranny he brings about a national revolt against him – any foreign power that is asked to do so may assist the oppressed subjects.’[10]

A UN security council resolution authorizing military action is deemed to be supra-legal, trumping sovereignty as a barrier to intervention. The 1999 NATO use of force against the Federal Republic of Yugoslavia took place without UN authorization and was the first example since the founding of the UN that an unauthorized breach of sovereignty had occurred on explicitly humanitarian grounds.[11] That it was explicity and brazenly in contravention of UN rules on the use of force was not sufficient to prevent it from happening when the political conditions favoured it. The law denied the right so the willing statesmen denied the law.

Chris Brown asserts that “there is nothing inevitable, much less natural about the understanding of systems of inclusion and exclusion which has been promoted , explicitly or implicitly, by the discourse of political theory over the past three or four hundred years”[12]. Rather than being distinct from the political, he would, one feels, regard the legal and political arguments for or against humanitarian intervention as being part and parcel of the same thing. The legal arguments serve as a political tool when they are helpful, disregarded as an insignificant political inconvenience when they are not. A UN security council resolution authorizing the use of force is the required legal standard and yet, when one is tabled, it is always the product of political maneuvering and negotiations between states. If a resolution is not tabled or does not come to a vote then it is almost certainly because those negotiations have failed and those seeking permission to intervene have been rebuffed. But that does not mean an intervention will not take place.

Those calling for a doctrine of humanitarian intervention do so out of the belief ‘that states should forfeit their right to be treated as sovereign if they massively abuse the human rights of their citizen.’[13] Yet if such a doctrine were to enter into force it would be rendered functionally impotent by the need for any employment of it to be accompanied by a UN security council resolution and the veto power in the hands of all five permanent security council members. A legal ruling permitting intervention would make it no more likely; its absence makes it no less so.

Sovereignty is undeniably important, separating as it does the domestic and international realms, and yet when it comes to governance of intra-state behaviour and humanitarian intervention in particular does it really have the capacity to inhibit military action when the overwhelming political will is to intervene? While an intervening state or coalition of states will always prefer that their actions be regarded as legal but illegality will illegality alone be enough to prevent an intervention where the political will for it exists? In the next section we will focus on the political elements.

The Political

The politics of humanitarian intervention too broad in scope and encompasses too many issues to be  comprehensively covered here. For our purposes, “the political” should be understood to refer to refer to all factors that policy makers must take into account, when considering an humanitarian intervention, that are neither moral nor legal in their defining character. If we see the legal sphere as the most impersonal or “external” of the three in nature – the set of factors over which the politician can have the least influence – the moral sphere is easily the most personal in tone. The political realm therefore falls somewhere between the two and might otherwise be described as “the rational”. By this I mean that it is the field where calculable costs and benefits of likely action or inaction are pitted against each other, and where questions such as “is it right to intervene?” and “is it legal to intervene?” have no place. The political is, above all else, about “interests”.

The interests that may be in play, although too numerous to be listed in full, can range from a  fear of damaging relations with a international diplomatic ally or trade partner to concerns over losing domestic political support in other policy areas. Equal, opposite and almost as common, an intervening politician or state might be charged with using an ostensibly humanitarian mission to disguise motives of personal or national self-interest. One example of the former can be found in the recent intervention in Libya, where President Sarkozy of France was accused of leading the charge towards a no-fly zone partly to demonstrate his global leadership credentials, in light of domestic polls showing him heading towards an humiliating electoral defeat[14]. Similarly it was suggested by some that in 1998 President Bill Clinton had pushed for an intervention against Serbian forces in Kosovo in part to distract attention from impeachment proceedings threatening to bring down his presidency[15]. In reality, Libya was less about the presence of political opportunity gain and more about the absence of political opportunity cost. That the Arab members of the UN security council were persuaded to vote in favour of Resolution 1973 meant that China and Russia would not exercise their right of veto, thus serving the moral instincts of those leading the charge. That the resolution could be executed with minimum resouces deployed – limiting the likely domestic fallout – only supported the political case in favour.

The Rwandan genocide of 1994 presents the textbook example of politics triumphing over concerns of morality and, also of sovereignty. Bill Clinton has cited the failure to exercise moral leadership and to be politically courageous, to provide US military support for the UN troops that were already there, as the greatest regret of his presidency[16]. The massacred Tutsis were not merely victims of Hutu genocidaires, but also of an international community and body politik still reeling from the failures of the previous year’s humanitarian mission in Somalia. Graphic images of the bodies of dead US army rangers being dragged through the streets of Mogadishu had sent shockwaves through the American political system in particular, with the electorate demanding to know why American soldiers had been sent in to resolve an African conflict and rescue far off victims of an humanitarian crisis for which they were not responsible. Domestically Bill Clinton paid no price for turning a blind eye to the atrocities that occurred in Rwanda, comfortably achieving re-election the following year; the only electorate to whom he was responsible tacitly endorsed his decision to allow hundreds of thousands of African men, women and children.

The Moral

“The interests the national society for which government has to concern itself are basically those of its military security, the integrity of its political life, and the well being of its people. These needs have no moral quality.”[17] The views of George Kennan, the father of containment policy, ring loudly yet must be heard within the context of a time when interests and a realist approach to international affairs.

That morality is to the state, and the statesman, a luxury, is certainly true. Also true however, is that the end of the Cold War made it a luxury that a great many more states could afford, as the existential threat abated almost overnight. Although security concerns still loomed large, they did not dominate the consciousness of statesmen as they had for the more than thirty years prior. The liberal internationalist viewpoint, prominent in the aftermath of World War I and subsequently suppressed, was “that moral parochialism was breaking down” and that as a result “principles of an incipient genuine international morality could be discerned”[18] Liberal internationalists were those who saw an opportunity for political leaders “to reshape the character of international affairs and to bring their own personal moral standards to bear upon the making of foreign policy.”[19] With the threat of mutually assured destruction abated states were in a position to look beyond mere self-survival and consider, once again employing foreign policy for moral, or greater, purposes. This, coupled with the rise of key political leaders such as Tony Blair and Bill Clinton, both of whom carried their moral outlook much more prominently than their conservative predecessors, presented once again the opportunity for moral as well as mere political leadership to figure on the global stage.

Yet for every Kosovo and Sierra Leone – Bill Clinton described the NATO bombing of Serbia as “a moral imperative”[20] while Blair later described the action in Sierra Leone as the UK’s “only successful humanitarian intervention”[21] – where interventions, supported by claims of morality, took place, there have been many instances where the moral imperatives were just as strong but where the cries for help went unheeded by Western powers. Rwanda is the most commonly cited example of this, while the massacre of eight thousand Bosnians at Srebrenica in 1995 and Darfur in the 2000s are often also named as an humanitarian interventions that didn’t take place[22].

The recent and ongoing intervention in Libya is almost universally regarded as being a righteous, or just intervention. Even those that disagree with it tend to do so on the basis of jus in bello[23] or hypocrisy[24] without necessarily questioning the morality of taking action. Why Libya in 2011 and not Iran in 2009? Why not Yemen in 2011? The answer to those questions can lie only in the surrounding politics and the costs and benefits of acting. As Michael Walzer states that ‘humanitarian intervention is justified when it is directed against actions that contravene the moral convictions of ordinary people.’[25] Yet while intervention might be morally permissible in those circumstances, there is no universal doctrine that commands it and while individual consciences may be shocked, “politics has no conscience”[26].

Of those statesmen that speak of moral and ideological stances on intervention Jean Bricmont perceives an insidious motive and makes a more damning and broader indictment, condemning them as opportunists inclined to exploit a crisis for individual or national political advantage. He criticizes the Western sense of human rights and humanitarian intervention, attacking their misappropriation as ideological tools to justify and raise popular support for neo-imperial warmongering[27]. ‘Power’ he argues ‘habitually presents itself as altruistic’ while ‘[i]deology has the advantage of enabling people to live in a state of mental comfort where they can avoid asking troubling questions’[28] Similarly, the earlier liberal internationalists were criticised by the likes of E.H. Carr describing the idea that peace on earth was in everyone’s interest as being a projection of a “hope that Anglo-American dominance could be maintained without the necessity of war.”[29]

There is no question that morality is a crucial factor, and often any discussion around humanitarian intervention will be preceded by an event that triggers a collective moral outrage. Any call for humanitarian intervention is always preceded by a catalyst in the form of a self-proclaimed “shocked conscience”. As there are no uniform global standards of morality, ‘clear examples of interventions with disinterested motives are rare.’[30] self-proclaimed moral motives are often called into question and political motives typically assigned in their place.

Conclusion

In the Twenty Year Crisis, E.H. Carr wrote that “politics will, to the end of history, be an area where conscience and power meet, where the ethical and coercive factors of human life will interpenetrate and work out their tentative and uneasy compromises.”[31] This is a neat way of enabling us to understand the relationship between the three and the central role that politics plays to connect them.

In an era in which conflict between states has massively declined it was perhaps inevitable that international community should concern itself with conflicts within states and the actions of governments towards their people. The capacity to act to deny states the right to abuse their citizens is greater than ever, as the propagation of communications sources has enabled people to inform themselves of such abuses taking place in distant lands. The questions of when states should intervene, and how they should do so have long troubled politicians, commentators and people alike, as has the selective nature of intervention: if we will intervene in X, why are we not prepared to do the same in Y? The answer to this is, of course, politics. While the law seeks to impose an external consistency on action, and the moral looks to achieve consistency of a personal kind, the politics is where statesmen accept that they cannot always act as they should or as they would like. As accusations of hypocrisy are hurled from one side and cries of criminality from the other these must be tolerated for the state is, itself,  neither a legal not a moral actor but a political one.

The essential premise of this essay’s question presumes that a dilemma of humanitarian intervention will tend to bring issues of legality, morality and politics into conflict and although this is often true, it isn’t always. In fact, humanitarian intervention is most likely to take place when the three are in agreement and come together in cooperation. It is least likely to occur when none or only one of these groups of factors favour it. As to which of the three carries the most weight we might be best served by turning to Clausewitz’ famous quote that “war is politics by other means”. An act of humanitarian intervention, however noble the cause for which it is pursed, is also an act  of war; the decision to dispatch one’s military resources into war is taken by politicians and is therefore an inherently political one. The law, for example in the form of a United Nations security council resolution, can come to the assistance of a willing coalition and legitimize an intervention but it need not serve as an obstacle to it.  The intervention in Libya did not happen because of UNSCR 1973; Kosovo did happen absent UN Security Council authorization. Similarly, the failure of the international community to intervene in any meaningful way Darfur or, even less ambiguously, Rwanda was not due to the absence of legal authority but the lack of political will, which never even requested it. None of this is to say that moral convictions, in the hands of a strong political leader, can not prove irresistible but that absent the right political conditions it will still amount to very little.

If moral factors were dominant, we might expect humanitarian interventions to occur rather more frequently than they do; if the law carried greater standing the reverse would likely be true. As it is, political factors, although often driven by moral considerations and taking into account legal ones, are by far the most influential. A legal right to intervene for humanitarian reasons will likely never be officially adopted, in part because it might allow room for abuse, but predominantly because it  does not need to be for humanitarian interventions to take place. Nor would the existence of such a doctrine – as we have seen when looking at the Genocide Convention in relation to the Rwandan Genocide – make intervention any more likely when the political winds are blowing in the other direction.

The question the statesman must ask ultimately himself is, ‘is a proposed operation likely to be effective at an acceptable cost to those who will bear the burden of intervention?’[32] This is not a matter of law or morality but of political judgement. Legal and moral forces are important in considerations of humanitarian intervention and, when raised, both will serve to sway political will towards or away from action. That said, while a humanitarian intervention is most likely to take place when all three pillars are support the case for it, the central political pillar is only one without which the entire case will collapse.


[1]    Holzgrefe, 2003, p18

[2]    The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty, as http://www.iciss.ca/pdf/Commission-Report.pdf last accessed May 3 2011

[3]                Mona Fixdal and Dan Smith, ‘Humanitarian Intervention and Just War’, Mershon International Studies Review, p284

[4]    Fixdal and Smith p288

[5]    Chris Brown, Sovereignty Rights and Justice p22

[6]    Odyssey Dawn: A Discussion on Military Operations in Libya, as found at http://www.ilxor.com/ILX/ThreadSelectedControllerServlet?showall=true&bookmarkedmessageid=2490989&boardid=40&threadid=86517, last accessed May 3 2011

[7]    Fixdal and Smith p290

[8]    Convention on the Prevention and Punishment of the Crime of Genocide, as found at http://www.hrweb.org/legal/genocide.html last accessed May 3 2011

[9]    Ibid

[10]  Simon Chesterman, Just War or Unjust Peace p19

[11]  Arkadiusz Domagal, Humanitarian Intervention: The Utopia  of  Just  War?  The NATO intervention in Kosovo and  the restraints of Humanitarian Intervention, as found at http://www.sussex.ac.uk/sei/documents/wp76.pdf last accessed May 3 2011

[12]  Brown p25

[13]  Nicholas Wheeler, Saving Strangers: Humanitarian Intervention in International Society p114

[14]  Jonathan Freedland, Libya Crisis May Save Sarkozy from Electoral Humiliation, as found at http://www.guardian.co.uk/world/2011/mar/20/libya-crisis-nicolas-sarkozy-electoral last accessed May 3 2011

[15]  Hitchens: Clinton Could Sell Out Blair, June 3 1999, as found at http://news.bbc.co.uk/1/hi/uk_politics/354470.stm last accessed May 3 2011

[16]  David Jackson, One Reason for Obama’s Decision on Libya: Rwanda, last accessed at http://content.usatoday.com/communities/theoval/post/2011/03/one-reason-for-obamas-decision-on-libya-rwanda/1 on May 2nd 2011

[18]  Robert W. McElroy, Morality and American Foreign Policy, p8

[19]  Ibid p12

[20]  Clinton Address on Kosovo, March 24 1999, as found at http://www.pbs.org/newshour/bb/europe/jan-june99/address_3-24.html, May 2 2011

[21]  Julia Mackenzie, Sierra Leone’s Failing Health, as found at http://news.bbc.co.uk/1/hi/programmes/newsnight/6231905.stm May 2 2011

[22]  Samantha Power, A Problem from Hell: America and the Age of Genocide

[23]  Michael Walzer, Just and Unjust Wars, p60

[24]  Robert M. Hayden, ‘Humanitarian Hypocrisy’, E. Eur. Const. (1999; 91,8) 

[25]  Walzer, p43

[27]           Jean Bricmont, Humanitarian Imperialism: Using Human Rights to Sell War, p42

[28]  Ibid, p44

[29]  E.H. Carr  The Twenty Years Crisis, 1919-1939: An Introduction to the Study of International Relations, p76

[30]  Richard B Miller, Humanitarian Intervention, Altruism and the Limits of Casuistry

[31]  Carr, p31

[32]  Fixdal and Smith, p304

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  1. Why Not Syria? « All My Little Words said, on October 18, 2011 at 2:47 pm

    […] this year I wrote an essay about humanitarian intervention, and the competing legal, political and moral contributory factors. My conclusion was that […]


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