The Ethics of Intervention – Human Rights, National Sovereignty and the Balance of Risk

Debate with prof. Malcolm Chalmers, Speakers’ Corner Trust, 2 août 2011

Full text : http://www.speakerscornertrust.org/...

Towards An Ethical Framework

The international community has too often been paralysed in the face of an avoidable humanitarian crisis by the lack of an agreed ethical framework for intervention. The price has been paid by the victims. If further crises are to be avoided, we need to address the objections to humanitarian intervention.

’Humanitarian intervention’ can be defined as the use of military force by a state or a group of states in a foreign territory without its consent in order to prevent or stop grave and widespread violations of the fundamental human rights of its citizens. I believe that it can be justified in certain circumstances and on certain conditions which are the classic criteria of the Just War doctrine.

First, the ‘legitimate authority’ – “who should intervene ?” The key question is whether we can bypass the UN Security Council, currently the only authority which can legally authorise the use of force. Most anti-interventionists are legalists and refuse to consider any unauthorised action. The 1999 intervention in Kosovo is said to be illegal because it lacked UN authority but was in my view nevertheless legitimate. Given its many shortcomings, the Security Council should perhaps be the first authority but not the only one.

Second, the ‘just cause’ - “why should we intervene ?” Most scholars refer vaguely to “supreme emergencies”, or “acts that shock the conscience of humanity”. But it is difficult to ascertain at what point an emergency becomes “supreme” and, even as you read this, there are many serious, systematic violations of human rights which the international community has chosen to overlook.

Others are precise about the justifications for intervention. But there is a risk that lists including genocide, ethnic cleansing and crimes against humanity might also exclude other legitimate causes. In its 2005 report, the International Commission of Inquiry on Darfur concluded that “no genocidal policy has been pursued and implemented in Darfur by the Government authorities”. But it added that this “should not be taken as in any way detracting from, or belittling, the gravity of the crimes perpetrated in that region…large scale war crimes may be no less serious and heinous than genocide”.

And what about consequences of natural disasters or starvation indirectly caused by government negligence, as was the case after cyclone Nargis hit Myanmar in 2008 ? My approach is flexible and consequentialist : the cause is just where the damage it seeks to prevent creates more victims than would the intervention and when there is a reasonable prospect for a positive outcome.

Third, the criterion of ‘good intention’ asserts that the intervening state must be disinterested. I reject this requirement for two reasons : first, the state cannot be disinterested as its very purpose is to defend the national interest and, second, it is in any event impossible to know if the humanitarian intention is actually the primary motive. As David Cameron said in March, “taking action in Libya is in our national interest”. But does such self-interest de-legitimise an intervention intended to protect civilians from attack ?

The purists would renounce a necessary action if they deem it “polluted” by impure intentions. But they live in an ideal world and their purity makes neither the violence nor the victims’ needs disappear. I would rather defend a criterion of consistency : motives of self-interest are acceptable if and only if they do not contradict the humanitarian goal.

Fourth, the ‘last resort’ - “when to intervene ?” Facing the urgency of a genocide of a million people in three months such as occurred in Rwanda in 1994, I would reformulate the principle of last resort as one of the least harmful option, arguing that early military intervention is preferable to diplomacy or sanctions when, even if they were to succeed, they would succeed too late.

Fifth, the issue of ‘proportionality’ - “how to intervene ?” As events in Iraq have illustrated, just cause cannot in itself legitimise an intervention which is careless of or even violates the human rights of those it purports to protect. Attention should be paid to priority in operations (for example, securing the population before the oil wells), to the kind of weapons used (a ban on indiscriminate munitions containing uranium, napalm or white phosphorous) and to the way they are used. The legitimacy of an intervention must be constantly reassessed before, during and after it is over.

Establishing uncontestable criteria for intervention is difficult. But failing to do so creates incalculably worse consequences for others. Proposition

Response

While I share Malcolm’s pragmatic, outcome-oriented approach, I do not think it precludes establishing ethical standards for intervention, so long as they are realistic.

Indeed intellectual frameworks for intervention are not a new phenomenon in liberal democracies. The term “humanitarian intervention” was first used by the English lawyer William Edward Hall in 1880. European jurists such as Arntz, Rougier and Rolin-Jaequemyns developed a “doctrine of intervention” around the same time, while in 1903 the American press referred to “that almost insoluble problem of international morality, as to whether intervention in the internal affairs of one State by other States on humanitarian grounds for the prevention of cruelty and wrong can properly be undertaken”. Against that background, the so-called ‘golden age of interventionism’ during the 1990s was not so much a new movement as the post-Cold War revival of an old tradition.

Today, the concept is usually called ’Responsibility to Protect’ (RtP), from the title of the 2001 report of the International Commission on Intervention and State Sovereignty (ICISS). But while a responsibility implies an obligation rather than a mere permission, the report really supports a right to intervene : it speaks nowhere of a duty and expresses no will to commit the States to intervene.

The text adopted by the UN four years later was even weaker. It abandoned ICISS’s proposal for the “constructive abstention” of the Security Council veto where no permanent member’s vital national interests are involved. It also turned ICISS’s proposed “collective” responsibility into a “UN” one, thereby excluding the possibility of intervention without Security Council authorisation. Most importantly, it confirmed that there is no obligation to intervene on humanitarian grounds.

But does a “responsibility” to protect have any true significance if we intervene only as we see fit ? Because of this terminological nonsense and the association with the old colonialist notion of the "White Man’s Burden”, I do not subscribe to the RtP rhetoric.

Indeed, today’s military intervention in Libya does not represent an implementation of a purportedly universal “responsibility to protect” but an ad hoc consensus among powerful states that the situation “constitutes a threat to international peace and security”. It is motivated by both humanitarian and national interests, as David Cameron explained when he evoked the security risk for Europe posed by the terrorist threat and potential migration pressure. It is also motivated by political gain : Nicolas Sarkozy has used it to consolidate his presidential credentials and obscure the failures of French diplomacy in Tunisia and Egypt.

The pragmatic approach does not mean that humanitarian intervention cannot take place, but without an ethical dimension it remains strictly optional and subject to the common interests and/or the veto of the Security Council.

Conclusion

Malcolm’s response rightly raises two problems which I need to address.

First, I agree that interventions in Darfur and Myanmar would not have had positive outcomes. However, I was suggesting that, in considering just cause, we should not limit ourselves to rigid criteria which dictate, for example, that only legally defined genocides can justify intervention. In my view the cause is just when intervention would save more victims than it creates and there is a reasonable prospect for a positive outcome. So I would not rule out intervention in situations like Darfur or Myanmar, even if in those particular instances it could not be justified.

Second, like Malcolm I would probably not want to risk the lives of 100 British soldiers (or aid workers) to save those of 100 or 200 Afghans. When I said interventions should save more lives than they cost, I was referring to civilians. Military intervention inevitably causes collateral damage : to be “humanitarian”, it must have a positive effect on these civilians. In decisions to intervene or withdraw, it is right to consider the costs and to place greater value on the lives of our soldiers because the very purpose of the state is to defend the national interest and its own citizens. But saving our soldiers does not make the intervention “humanitarian”. It makes it reasonable.

I would also like to address the issue of ‘double standards’ : why Libya and not Syria, Bahrain or Yemen ? How, if we subscribe to a universal principle – the protection of human rights – can we justify not applying it universally ?

This is a problem only for those who believe both that intervention is purely humanitarian and that there is a duty, not just a right, to intervene. But, as I have argued, there is no obligation to intervene. It is ironic that the same people who denounce the US, the UK, France or NATO for behaving like a global police force also criticise them for intervening selectively, as if they actually should be enforcing egalitarianism. Moreover, the decision to intervene is not based solely on the humanitarian factor. States get involved only when they have an interest in doing so. So if intervention is neither mandatory nor disinterested, it is necessarily selective.

What exactly do those who are indignant that we have intervened in Libya and Kosovo but not Syria and Chechnya, actually propose ? They are surely not suggesting that we intervene everywhere because they know there are prudent reasons not to declare war on Russia or to throw the entire Middle East into unrest. Are they demanding that we intervene nowhere so that, in the name of consistency, we leave some victims to die because we cannot save them all ? That is absurd. That we cannot intervene everywhere does not mean we should not intervene where we can.

However, even if it is inevitable, selectivity has at least one perverse effect : it considerably undermines the image of humanitarian intervention, which almost exclusively involves Western countries in developing nations, for example in Africa and the Middle East, thus provoking the charge of neocolonialism.

Humanitarian intervention on this selective basis arouses suspicion and cynicism, undermines the credibility of institutions and divides the international community.

But it also saves the lives of innocent civilians. For all its compromises and inconsistencies, it remains a just cause in an unjust world.