Tuesday, January 29, 2013

Humanitarian Intervention & Principled Violation of International Law

It may be true that the normatively rich ideal of the rule of law includes a presumption that changes in the legal system are to be brought about by actions that are compatible with existing legal rules; but this cannot be an absolute requirement. If illegal acts are necessary to bring about substantive improvements in the system whose rules for legal change are serious impediments to progress, and if these acts are undertaken in a responsible way, with appropriate precautions to reduce the risks of error and abuse, and with a proper regard for the dangers of undermining confidence in the law, then this presumption in favor of changing the law through legal means can be overridden. To fail to see this is arbitrarily to privilege what is at best one element on the normatively rich conception of the commitment to the rule of law—the presumption in favor changing the law through legal means—at the expense of other elements and substantive justice. A group of states willing to act illegally to bring about reform in the law of intervention can honor the presumption that change in the law is to be brought about by legal means—by proceeding to act illegally only after they have made a responsible determination that reform through legal means is not feasible due to the current system’s deficiency, in this case, the morally arbitrary way and overly constraining concentration of power in the hands of the permanent members of the Security Council.—Allen Buchanan

At the Arms Control Law blog, Dan Joyner asks a question we all might have asked ourselves at one time or another: “Why Can We Only Break International Law in order to Torture and Kill People and not in order to Help Them?”

“I was just coming home from driving my daughter to school, when I heard a story on NPR about how the US has been encouraging the opposition coalition in Syria politically, and in particular encouraging moderates to become involved, but that now the US is failing to make good on promises it has made to provide actual material support to the opposition, and through it to the suffering Syrian people, and in so doing is undermining those very moderate elements. The reason for this failure to follow through on promises? Well, John Bellinger came on the radio to say that international law forbids the US from becoming involved in the internal affairs of another country, and that because the US still recognizes the Assad regime as the legal government of Syria, international law forbids giving material aid – even simply humanitarian aid – to the Syrian people through the opposition.

I’m less interested in whether Bellinger’s assessment of law is correct as I am with what seems to me to be quite a sickly ironic fact of US foreign policy. We only break international law when we think we have to kill people or torture them for national security purposes. Then the cause is important enough that international law doesn’t matter. Iraq, Guantanamo, Bagram, assassinations in Iran, drones in Pakistan – the list could go on. But when we are faced with humanitarian crises when our support could help thousands to live and NOT die – Rwanda, Darfur, Syria, etc. – we stay our hand, because of conservative interpretations of the niceties of international law. Now how sickly ironic is that, particularly in light of the human rights and humanitarian principles centralto so much of modern international law?

If we accept that sometimes we will have to break international law in the course of practical international relations, I would be much happier about doing so in a case like supporting the Syrian opposition and Syrian people, than I am about doing so in order to disproportionately kill civilians in our ridiculously ill-conceived wars in Iraq and Afghanistan.” [emphasis added]

To be sure, this question has been addressed, albeit indirectly, to the extent that there is an emerging body of work discussing the pros and cons of “humanitarian intervention.” But Joyner is aware that such intervention may not always be countenanced by international law, one reason Allen Buchanan has discussed the need for an international law and politics analogue to the practice of principled civil disobedience in domestic legal systems (hence the ‘morality of illegal international legal reform’) as part of a larger strategy for international legal reform in his book, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (2004). In other words, we can have wrong or immoral reasons for flouting international law, or we can conscientiously break international legal norms in a morally principled manner that demonstrates respect for the international legal system and the global society of States: “under certain conditions a willingness to violate existing international law for the sake of reforming it can be not only consistent with a sincere commitment to the rule of law, but even be required by it.”[1] On first glance, the phrase “humanitarian intervention” sounds like something performed by a nonsectarian NGO like Direct Relief International or by The International Red Cross and Red Crescent Movement, the latter being “the largest humanitarian network in the world. Its mission is to alleviate human suffering, protect life and health, and uphold human dignity especially during armed conflicts and other emergencies.” Alas, things are not so simple. In today’s world, such intervention can assume several forms, some of them on the order of what C.A.J. Coady calls an “altruistic war” [or what Larry May terms a ‘humanitarian war’], in other words, humanitarian intervention comes close to being simply reduced to, or a euphemism for, a “just cause” rationale (sans any obvious State ‘aggression’ as understood in several articles of the UN Charter) for military intervention, that is,

“military intervention in another state’s affairs in order to remove an awful government or to remedy some great internal evil, such as persecution of a minority group [or genocide, which in international criminal law is distinguishable from ‘persecution’]. [….] Cases can range from deposing a bad government to preventing genocide, and they are not philosopher’s fantasies, as wars in Uganda, Cambodia, and the former Yugoslavia have shown, and as arguments for the intervention in Iraq on the grounds of ‘regime change’ also highlight.”[2]

Coady reminds us of a somewhat neglected if not forgotten premise of just war theory, namely,

“a presumption against the moral validity of resort to war given what we know of the history of warfare, of the vast devastation it causes (nowadays even more so) and the dubious motives that have often fueled it [think, for instance, of Liberal Neo-Imperialism]. The development of just war theory has been progressively away from altruistic legitimation of war for just this reason. Our experience of wars of religion (the dreadful carnage of the Thirty Years’ War in Europe, for example), of trade and imperialist wars, and of what tends to happen when one nation conquers another ‘for its own good’ speak against allowing such an account of ‘just cause.’”[3]

But as Professor Joyner’s post makes plain, and Coady himself points out, “the fact remains that there can be some extreme cases that create a worry for this view. Coady illustrates this with a few historical examples: the Indian invasion of Bangladesh in 1971, the Vietnam invasion of Cambodia (1977-1989), the Tanzanian invasion of Uganda, and genocide in Rwanda. In sum, humanitarian intervention becomes military intervention which, strictly speaking, is invasion. In terms of just war theory, this raises the issue of the jus ad bellum criterion of “prospect of success,” which itself can be conceived in different if not conflicting terms, involving either or both short-term and long-term objectives (e.g., ‘saving lives now’ and ‘securing political stability and security’ respectively). Among other things, we should notice that “the shorter-term objective is compatible with—and in some respects suited to—military procedures, whereas armed forces alone are unlikely to deliver the longer-term objectives.”[4] Coady provides us with a tentative conclusion:

“Advocates of the short-term view will say that at least we saved these people’s lives now, but the long-termers will say that this is small comfort if our intervention merely delays the catastrophe or helps to create a new one. Furthermore, if you are going for the longer term, you will need more than mere violent intervention. Some longer-term solution is ideally preferable in both the domestic and international spheres, since most short-term solutions risk futility. But the ‘longer-term’ cannot be too long. An intervention must avoid escalating into a colonial saga or even an enduring protectorate.

Yet even sensible longer-term solutions that might avoid these perils require many things that are not readily available. First, they require non-military techniques and personnel; second, they require a commitment of will over a relatively long time; and third, they require the dedication of financial and other resource for an unglamorous long haul. They necessitate, in short, in what Thomas M. Franck has called a ‘holistic approach’ to humanitarian rescue.”[5]

Genocide is typically thought to provide us with the clearest case for military intervention, even among those strongly critical or generally skeptical of “humanitarian intervention:” “Humanitarian war to stop a genocidal campaign is indeed one of the most seductive reasons to go to war.”[6] But even here, as Larry May argues, “the justification of this practice is not as easy as one might think.”[7] First, we need to keep in mind “that when States use force typically people die, and often those that die from a State’s use of force are the innocent, the very class of people who are the intended beneficiaries of the humanitarian intervention.”[8] Second, the intervention itself may, as an unintended but perhaps foreseeable spillover or by-product effect, give rise to a whole new class of humanitarian problems. Third, there are diplomatic and political problems exacerbated by the fact that genocide typically occurs in societies that are “not robust democracies, but are instead ‘troubled societies,’ where there are rarely easy answers about how to reform the authority structure.”[9] A country’s colonialist history only makes matters worse on this score. I’ve introduced May’s treatment of this topic by way of suggesting that even the ostensibly easiest case for humanitarian intervention, the prevention or ending of genocide, needs careful consideration. May himself provides “a limited defense” of “humanitarian intervention to stop genocide.”[10]

Suffice to say, we need to think such things through well before the event that arises that compels us to consider the need for and prospects of humanitarian intervention, for such moments will not leave us with the leisure time to think long and deep about the possible or probable costs and benefits or wide-ranging consequences of our decisions, however well-motivated they may be.

[1] Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (New York: Oxford University Press, 2004): 440. See too Buchanan’s article, “From Nuremberg to Kosovo: The Morality of Illegal International Legal Reform,” Ethics 111 (2001): 637-704. To the extent that the “rule of law” itself may require principled violations of international law, we might speak not only of the international analogue to municipal civil disobedience, but of the international analogue to the seemingly paradoxical idea of “lawful departure from legal rules” as discussed by Mortimer R. Kadish and Sanford H. Kadish in Discretion to Disobey: A Study of Lawful Departures from Legal Rules (New Orleans, LA: Quid Pro Books, 2010/originally published by Stanford University Press, 1973).
[2] C.A.J. Coady, Morality and Political Violence (Cambridge, UK: Cambridge University Press, 2008): 73.
[3] Ibid., 73-74.
[4] Ibid., 76-77.
[5] See Thomas A. Franck, “A Holistic Approach to Building Peace,” in Olara A. Omnnu and Michael W. Doyle, eds., Peacemaking and Peacekeeping for the New Century (Lanham, MD: Rowman and Littlefield, 1998): 275-296.
[6] Larry May, Genocide: A Normative Account (Cambridge, UK: Cambridge University Press, 2010): 227.
[7] Ibid., 224.
[8] Ibid., 226.
[9] Ibid., 230.
[10] Ibid., 234-238.

Further Reading on Humanitarian Intervention:
  • Arend, Anthony Clark and Robert J. Beck. International Law and the Use of Force: Beyond the UN Charter Paradigm. New York: Routledge, 1993.
  • Buchanan, Allen. Justice, Legitimacy and Self-Determination: Moral Foundations for International Law. New York: Oxford University Press, 2004.
  • Chatterjee, Deen K. and Don E. Sceid, eds. Ethics and Foreign Intervention. Cambridge, UK: Cambridge University Press, 2003.
  • Chesterman, Simon. Just War or Just Peace? Humanitarian Intervention and International Law. New York: Oxford University Press, 2001.
  • Coady, C.A.J. Morality and Political Violence. Cambridge, UK: Cambridge University Press, 2008.
  • Fletcher, George P. and Jens David Ohlin. Defending Humanity: When Force is Justified and Why. New York: Oxford University Press, 2008.
  • Fox, Gregory H. Humanitarian Occupation. Cambridge, UK: Cambridge University Press, 2008.
  • Greenwood, Christopher. Humanitarian Intervention: Law and Policy. Oxford, UK: Oxford University Press, 2001.
  • Harris, Hohn, ed. The Politics of Humanitarian Intervention. London: Pinter, 1995.
  • Holzgrefe, J.L. and Robert O. Keohane, eds. Humanitarian Intervention: Ethical, Legal, and Political Dilemmas. Cambridge, UK: Cambridge University Press, 2003.
  • Jokic, Aleksander, ed. Humanitarian Intervention: Moral and Philosophical Issues. Orchard Park, NY: Broadview Press, 2003.
  • Teson, Fernando R. Humanitarian Intervention: An Inquiry into Law and Morality. Ardsley, NY: Transnational, 3rd ed., 2005.
  • Welsh, Jennifer M., ed. Humanitarian Intervention and International Relations. New York: Oxford University Press, 2004.
  • Zolo, Danilo. Victor's Justice: From Nuremberg to Baghdad. London. Verso, 2009.
Image: (from the civil war in Syria) Javier Manzano/AFP/Getty Images


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