Humanitarian Intervention

Spring 2013

UN Charter: Tensions, Dilemmas

• Between self-determination and territorial integrity

• Between self-determination and human rights

• Between territorial integrity and human rights

• Legitimacy: in problematic cases, who decides?

Tension: Article 2.7

• Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state.

• But what exactly is “essentially” within such jurisdiction?

Strongest language: Article 2.4

• All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

Humanitarian Intervention• intervention to stop suffering

• Challenge: if war can occur only for sake of securing peace/in self-defense, what about suffering caused by governments only domestically, or suffering governments do not attend to appropriately?

• for instance motivated through tension between human rights and either self-determination or territorial integrity

• Ongoing argument: to what extent are norms of humanitarian intervention superseding norm of non-intervention (or should be)?

Debate about humanitarian intervention is current version of debate about just war

Humanitarian Intervention: Recent Examples

• Cambodia (1978) • Operation Provide Comfort (Iraq, 1991)• Unified Task Force (Somalia, 1992) • Haiti (1994) • UNAMIR (Rwanda, 1994) • UNTAET (East Timor, 1999) • NATO bombing of Yugoslavia (1999)

Institutionalization of Intervention?

• there was a point to writing non-intervention into international law - needs to ponder wisely whether one wants to institutionalize different system

• Once one institutionalizes interventions, no reason to focus exclusively on moral disasters such as genocide – what about natural disasters?

• this would divide the world into enforcer states (former colonial powers?) and states subject to enforcement

R2P• state has a responsibility to protect population from genocide, war

crimes, crimes against humanity and ethnic cleansing (mass atrocities)

• If state is unable to protect population on its own, international community has responsibility to assist state by building its capacity (building early-warning capabilities, mediating conflicts between political parties, strengthening the security sector, mobilizing standby forces, etc.)

• If state is manifestly failing to protect its citizens from mass atrocities and peaceful measures are not working, international community has responsibility to intervene at first diplomatically, then more coercively, and as a last resort, with military force

Test case: Libya

Justified Intervention?

United Nations Security Council Resolution 1973 (March, 20110

• demands immediate establishment of ceasefire and complete end to violence and attacks against civilians

• imposes a no-fly zone• authorizes all necessary means to protect civilians and

civilian-populated areas, except for "foreign occupation force"

• strengthens arms embargo• imposes ban on all Libyan-designated flights• Imposes freeze on assets owned by Libyan authorities

Also on the ground

• Special forces from several countries (including UK and France)

• Not explicitly forbidden by resolution – but also not explicitly authorized

Fundamental problem

• Sometimes civilians cannot be protected without a regime change

• But regime change lies outside general consensus behind r2p

One result

• China and Russia vetoed much milder sanctions against Syria in reaction to expansive interpretation of r2p in Libya

Self-Determination: John Stuart Mill

• In 1859 On Liberty: political communities are entitled collectively to determine their own affairs

• Self-determination for Mill: people have a right to become free by their own efforts – but might well be self-determining if they are not free

• “peoples” per se matter

Mill, “A Few Words on Non-Intervention”

• "When the contest is only with native rulers, and with such native strength as those rulers can enlist in their defence, the answer I should give to the question of the legitimacy of intervention is, as a general rule, No. The reason is, that there can seldom be anything approaching to assurance that intervention, even if successful, would be for the good of the people themselves. The only test possessing any real value, of a people’s having become fit for popular institutions, is that they, or a sufficient portion of them to prevail in the contest, are willing to brave labour and danger for their liberation. I know all that may be said, I know it may be urged that the virtues of freemen cannot be learnt in the school of slavery, and that if a people are not fit for freedom, to have any chance of becoming so they must first be free. And this would be conclusive, if the intervention recommended would really give them freedom. But the evil is, that if they have not sufficient love of liberty to be able to wrest it from merely domestic oppressors, the liberty which is bestowed on them by other hands than their own, will have nothing real, nothing permanent. No people ever was and remained free, but because it was determined to be so..."

Walzer, The case against our attack on Libya

[O]pposition in the Security Council didn’t stop with Russia and China. India, Brazil, and Germany also opposed the intervention, and then abstained. The African Union refused to send a representative to the meeting called by President Sarkozy in Paris to consolidate support for military action. The Arab League called for the creation of a no-fly zone, but some of its leaders are already criticizing the attacks required to make it work. And, again, no major Arab state is participating. It is an old pattern that we thought was finished after the uprisings in Egypt and Tunisia—where Arab states (and other states too) don’t take responsibility for doing what they want done … by someone else.

• None of this would matter if this were a humanitarian intervention to stop a massacre. But that is not what is happening in Libya today. There would have been a cruel repression after a Qaddafi victory, and it would have been necessary to help rebels and dissidents escape and to make sure that they had a place to go. Watching the repression wouldn’t be easy (though we seem to be having no difficulty doing that in Bahrain and Yemen). But the overthrow of tyrants and the establishment of democracy has to be local work, and in this case, sadly, the locals couldn’t do it. Foreigners can provide all sorts of help—moral, political, diplomatic, and even material. Maybe neighbors, who share ethnicity and religion with the Libyan people, could do more. But a military attack of the sort now in progress is defensible only in the most extreme cases. Rwanda and Darfur, where we didn’t intervene, would have qualified. Libya doesn’t.

Forms of intervention

• Using incentives, offering assistance

• Diplomatic pressures

• Scholarships/education opportunities

• Support for domestic resistance and engagement

• Creation of international accountability structures (ICC)

• Economic sanctions

• Military intervention

Teson, Liberal Case for Humanitarian Intervention

Permissible humanitarian intervention:

• proportionate international use or threat of military force, undertaken by liberal government or alliance, aimed at ending tyranny or anarchy, welcomed by the victims, and consistent with doctrine of double effect

Basic position

• Serious violation of fundamental civil and political rights generates obligations on others

• If human beings are denied basic human rights and are thus deprived of their capacity to pursue autonomous projects, others have prima facie duty to help them

• Outsiders have duty not only to respect those rights themselves, but also to help ensure governments respect them

Duty to help victims of injustice gives rise to right to intervention

Doctrine of Double Effect

A person may perform an action that she foresees will produce a good effect and a bad effect so long as:

• the action is morally good or at least morally neutral• the bad effect is not intended• the good effect is not produced by means of the bad effect• the good effect is proportionally greater than the bad

David Luban

• traditional just war approach is fundamentally flawed approach to intervention

• Should be human rights based

• Otherwise we are taking state legitimacy for granted where it should not

Intuition

• “any proportionate struggle for socially basic human rights is justified, even one which attacks the non-basic rights of others. An attack on human rights is an unjust war unless it is such a struggle” (p 175)

“just war” of the new sort

• A just war is (1) a war in defense of socially basic human rights (subject to proportionality); or (2) a war of self-defense against an unjust war

• An unjust war is (1) a war subversive of human rights, whether socially basic or not, which is also (ii) not a war in defense of socially basic human rights

Walzer’s legalist paradigm There exists an international society of

independent states

Each state characterized by territorial integrity and political sovereignty

Use of force or imminent threat against territorial integrity or political sovereignty constitutes criminal act

Such aggression justifies self-defense and support for states under attack; nothing else can justify war

Punishment of aggressor states if appropriate

Legalist paradigm, as Walzer understands it, is incomplete

Walzer’s conditions for intervention:

(1) wars of liberation (secession)

(2) counter-intervention

(3) in response to such atrocious human rights violations that talk about territorial integrity and sovereignty is clearly out of place

Walzer’s conditions for anticipatory strikes:

(1) manifest intent to injure

(2) a degree of active participation that makes that intent a positive danger

(3) and a situation where waiting or doing anything other than fighting magnifies danger

Iraq?

Walzer, Regime Change and Just War (2006)

[The Iraq war] was not a response to aggression or a humanitarian intervention. Its cause was not (as in 1991) an actual Iraqi attack on a neighboring state or even an imminent threat of attack; nor was it an actual, ongoing massacre. The cause was regime change, directly—which means that the U.S. government was arguing for a significant expansion of the doctrine of jus ad bellum. The existence of an aggressive and murderous regime, it claimed, was a legitimate occasion for war, even if the regime was not actually engaged in aggression or mass murder. In more familiar terms, this was an argument for preventive war, but the reason for the preventive attack wasn’t the standard perception of a dangerous shift in the balance of power that would soon leave “us” helpless against “them.” It was a radically new perception of an evil regime. No one who has experienced, or reflected on, the politics of the twentieth century can doubt that there are evil regimes. Nor can there be any doubt that we need to design a political/military response to such regimes that recognizes their true character. Even so, I do not believe that regime change, by itself, can be a just cause of war.

Teson, Ending Tyranny in Iraq (2005)

So humanitarian action is this: the intent to remove a vicious dictator, plus removing him, plus not allowing this act of liberation to be destroyed by behavior driven by any nonhumanitarian motive. By helping Iraq in the way I described (organizing elections, facilitating the liberal constitution, and fighting the insurgents), the Coalition has satisfied the strictures of the humanitarian intervention doctrine.

Later in the same article

In addition to suppressing all civil and political liberties, Hussein murdered around 100,000 Kurds in 1988; killed about 300,000 Shia after the 1991 war; buried about 30,000 in a single grave; murdered around 40,000 marsh Arabs; caused millions of people to flee; and tortured many hundreds of thousands, perhaps millions, between 1968 and 2003. His cruelty and ruthlessness are legendary, and even the harshest critics of the war do not challenge the propriety of committing him to trial for war crimes and crimes against humanity.

Historical Sketch – Thinking about War and Intervention• Pre-Westphalian: Original Just War Doctrine

• Post-Westphalian: Sovereignty

• Now: Outlawing of War, and Humanitarian Intervention

Augustine (354-430)

Criteria discussed in the ius-ad-bellum field are the following:

(1) just cause (causa iusta) (2) legitimate authority (auctoritas principis) (3) rightful intention (intention recta)

--

(4) war as a last resort (5) war with the goal of making peace (6) a high likelihood of success (7) the expected gains of war must be in proportion to the

expected losses

Criteria discussed in the ius-in-bello field are the following:

(1) proportionality

(2) non-combatant immunity (“discrimination”)

Sovereignty

• after Westphalian peace, ius in bello took over

• disputes about justice of war considered irresolvable

• sovereign state has right to declare war on all others

But: Non-intervention as goal of diplomacy

• Practice of diplomacy concerned with keeping the peace through balance of power

• wasn’t about peoples – was about princes leaving each other alone

• Non-European colonies to be acquired at will

• “self-determination” not an idea that was around yet

After World War I: Outlawing war

• ius contra bellum movement: Covenant of League of Nations, Briand-Kellogg pact of 1928, later UN Charter – condemnation of initiation of war

• Defense was allowed, so now much turns on what it means to “initiate” a war (preemption/ prevention)