On the one hand, fundamental principles such as non-intervention, sovereignty and non-use of force oblige states not to lead large-scale humanitarian interventions against other states (Bellamy and Wheeler, 2017: 515). On the other hand, however, in some countries basic human rights are being violated by the state, which should require immediate interference. According to J. L. Holzgrefe humanitarian intervention is the ‘threat or use of force across state borders by a state (or groups of states) aimed at preventing or ending widespread and grave violations of the fundamental human rights of individuals other than its own citizens, without the permission of the state within whose territory force is applied’ (Holzgrefe et al., 2003: 18). In this essay I will argue that even though states should have the responsibility to protect non-citizens from large-scale human rights abuses, there are legal and moral obstacles to this. Firstly, it will be argued that the initial aim, to end widespread violations of human rights can sometimes serve as a “mask” of the real purpose of the intervention, which is from a realist perspective: national interest. Secondly, that the consequences of either intervention or non-intervention should not be neglected morally, and it requires a complex analysis. And finally, the Responsibility to Protect doctrine will be presented and I will highlight its burdens regarding humanitarian intervention.
Firstly, in this paragraph it will be argued that even though there are legal ways to justify humanitarian intervention the concept of national interest undermines these arguments. In 1648 after the Thirty Years War ended, European states accepted the Westphalian peace treaties and thus established the Westphalian system in which all states acknowledge and respect each other’s sovereignty (Kissinger, 2014: 26). Thus, the core principle of non-intervention was born, which gave the basics of Article2(4) in the United Nations Charter. The legality of humanitarian intervention lies in this fundamental document according to which 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 (UN Charter, art. 2, para. 4). This means any kind of humanitarian intervention is illegal, because it violates traditional state sovereignty. However, some legal scholars such as Fernando Tesón (cited in Holzgrefe et al., 2003: 37) argue that since humanitarian intervention does not violate ‘territorial integrity’ nor ‘political subjugation’ it can therefore be considered legal. Moreover, Article 1(3), Article 55 and Article 56 of the UN Charter, all respect the existence of fundamental human rights (UN Charter, art. 1 para. 3, art. 55, art. 56), which should be protected in any ways in a scenario when massive human rights abuses are taken place in a country. Such human rights abuses include mass killings, hence one of the most prominent legal exceptions of the non-intervention principle has to be highlighted. This is the UN Convention on the Prevention and Punishment of the Crime of Genocide which acknowledges that in the case of genocide humanitarian intervention is legal (UN General Assembly, 1948). The methodology by which legal scholars interpret these legal documents can be separated into two perspectives. From a classicist view, texts must be taken literally, and the illegality of unauthorized intervention is patent. For legal realists, however, the legality of humanitarian intervention ‘depends in large on the attitude of the contemporary international community towards it’ (Holzgrefe et al., 2003: 39). Legal realists claim that in order to protect human rights and promote peace and security, the justification of intervention is indispensable. Although some classicists, such as Lori Fisler Damrosch (cited in Holzgrefe et al., 2003: 41), argue that human rights abuses ‘do not necessarily entail threats to peace and security’, according to Article 39 in the UN Charter: the ‘Security Council shall determine the existence of any threat to the peace’ (UN Charter, art. 39). In other words, if the Security Council considers humanitarian intervention as an adequate way to prevent catastrophe, it is legal to intervene. However, the fact that the Security Council can authorise military force forms an extremely essential critical remark which highlights my main argument. Since the permanent members of the United Nations Security Council are able to veto any resolution within the council, it raises an important question about effectiveness. D.P. Forsythe (cited in Erameh, 2017: 526) argues that after the Cold War ended there was a hope that the Security Council would work proactively, ‘but this hope has been complicated with the concern for narrow national interests.’ One of the major critiques of humanitarian intervention and the Security Council is that great powers have the right to either conduct or stop humanitarian interventions for their own interests (Bellamy and Wheeler, 2017: 522). Two relevant examples can be highlighted regarding national interest driven decisions: the Syrian Civil war and the Rwandan Genocide. The Syrian Civil War in 2011 started with peaceful claims for reform against the Assad regime. However, it eventually turned into a bloody civil war with Western countries (US, France, UK) backing the anti-Assad Syrian Opposition and on the contrary Iran, Russia allied with the Assad government. In 2013, after the use of chemical weapons was introduced and killed many civilians, the US-led campaign advocated a military intervention in the region. However, since the USA, Russia and China all had interests in the region, this prevented them to reach an agreement within the Security Council and couldn’t legalise humanitarian intervention (Erameh, 2017: 526). Secondly, right after the independence of the Central African country, Rwanda in 1962 the tension between the two largest ethnic groups the Hutus and the Tutsis rose in an unprecedented pace. At the climax of this tension, in April 1994 the largest genocide took place since the Holocaust. As a response to the events in the African country, the United Nations authorized ‘Operation Turquoise’ which can be considered as a humanitarian intervention. The military was led by French Forces, however the extent to which the intervention was humanitarian can be questioned. The French government controlled the operation for its own benefits. Their key aim was to demonstrate to the Security Council that the French were capable of effectively projecting power on the African continent as well as to secure French political objectives (Jones, 1995). Also, in order to restore French influence in Rwanda, they teamed up with the Hutus, who were the perpetrators of the genocide. France only intervened in the later stages of the genocide, when it was already too late. In sum, these two examples underpin that the existence of self-interest driven decisions can form a legal constraint to humanitarian intervention which is: veto power of the permanent five and national interest.
Secondly, it can be argued that a consequentialist approach to ethics can also form obstacles to humanitarian intervention. Moreover, it raises an important question about a complex analysis of whether to intervene or reduce military forces is better in order to mitigate human suffering. On the one hand, the deontological approach according to Immanuel Kant (cited in Murphy, 2016: 38) underpins that humanitarian intervention is indeed duty of all. Every single human being has the right to live in freedom, and therefore we have moral duties to maintain this universally. On the other hand, as utilitarians argue ‘a humanitarian intervention should be conducted with the aim of maximizing humanitarian results’ (Roth, 2016: 88). By using this consequentialist approach to morality, humanitarian intervention can either be ceased or strengthened as long as it does not lead ‘to unintended harm such as contributing to a higher loss of life’ because ‘the duty not to harm requires the avoidance of harm in the first instance’ (Murphy, 2016: 45). Susan Murphy claims in her book: Responsibility in an Interconnected World, that there are some constraints such as the duty not to harm, which can be prior to the duty to intervene (Murphy, 2016: 40) and this can serve as an obstacle when considering intervention, because conducting military activities in a country might result in a higher loss of lives. Alternatively, reducing military action can also lead to harm. By analysing and learning from the failed intervention in Rwanda, it can be concluded that the intervention had unprecedented consequences due to the reduction of forces not by strengthening those. The UN peacekeeping mission (UNAMIR), was reduced after a vote by the Security Council and this led to the killings of 800,000 Tutsis. (Jones, 1995: 239). Therefore, as it was argued, the question whether to intervene in, or reduce military from a region cannot be simply considered as a universal ethical norm, because sometimes unintended harm can be caused as a consequence.
Finally, I would like to turn my attention to the Responsibility to Protect (R2P) and argue that there are several critiques that undermine the effectiveness of the doctrine. After the failure of the Rwandan intervention which was criticised for intervening in ‘too little’, and the Kosovo killings in 1999 in which it was ‘intervening too late’, the international community decided on the acceptance of a document that fosters the prevention of such mistakes (Erameh, 2017: 518). The introduction of the new approach lies in the 2001 report of the International Commission on Intervention and State Sovereignty (ICISS) which emphasizes the concept that states are obliged to protect their own citizens, but when they fail to do so, the ‘responsibility must be borne by the broader community of states’ (ICISS report, 2001: VIII). Even though this report is rather a universal norm, than a legally binding law, it makes ‘legitimate or even legal humanitarian interventions,’ possible which ‘can freely be undertaken in a world of “traditional” sovereignty with the notion of “sovereignty as responsibility” in the centre’ (Moses et al., 2011: 350). As Tesón argues (cited in Bellamy and Wheeler, 2017: 481) sovereignty derives from a state’s responsibility to protect its citizens, therefore when a state fails in this duty, it should loose its sovereign rights. However, there are several critiques to this concept which I would like to highlight. Firstly, Deng’s (cited in Moses, 2013: 119) realist critique suggests that, ‘living up to the responsibilities of sovereignty implies the existence of a higher authority capable of holding the supposed sovereign accountable’. Since in a realist theory of world politics there is no such thing as world government, and great powers in an anarchical system can only rely on themselves, national interest cannot be neglected (Moses, 2013: 119). For realists, sovereignty cannot be “shared” with an international organization and therefore a demand for intervention cannot transform the meaning of sovereignty. R2P advocates accept that the authorization of intervention should depend upon the Security Council as an international organization, however due to power relations mentioned before in this essay, scholars such as Moses found this to be a major critique to the doctrine. Secondly, in terms of the 2003 invasion of Iraq by the USA, both Thakur and Falk (cited in Moses et al., 2011: 351) argue that Iraq should not be understood as a genuine example of R2P principles but rather an example of the ‘imperial objectives’ of the US government. This realist approach suggests that states conduct humanitarian interventions ‘motivated by a desire to impose Western standards on other states, and, perhaps, to covertly pursue Western interests’ (Brown, 2001: 225). Whether the invasion of Iraq was an attempt to overthrow the government and bring peace, or just an endeavor to place interests over the region is still open to debate. But in sum, as mentioned in the introduction of this essay, humanitarian aims can serve as a “mask” over the real purpose of intervening which is, in a realist perspective: national interest.
In conclusion, even though states should have the responsibility to protect non-citizens from large-scale human rights abuses, there are certain obstacles to this. Firstly, the problem of national interest within the Security Council undermines the Responsibility to Protect doctrine and raises serious questions about effectiveness. The inefficient working of the UNSC led to unauthorized interventions in history such as NATO in Kosovo (1999), or USA in Iraq (2003) which means the question of humanitarian intervention is still unsolved. Also, whether the only organization responsible for stopping large-scale abuses is the United Nations Security Council is still opened to debate. Furthermore, it was argued that the morality of intervention should depend on consequences, and whether to intervene or reduce military requires a complex analysis. All in all, in terms of the future, humanitarianism can serve as a “mask” for powerful states to conduct major attacks on other states, which destabilizes international order and needs further resolution.
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Link To Article: https://youth-journal.org/the-legality-and-morality-of-humanitarian-intervention
