Unauthorized Humanitarian Intervention

Some argue that state sovereignty should never be compromised, that intervention in the domestic affairs of another state is never justified. Others state that sovereignty has responsibility, and when a state violates the rights of its people it has abdicated its right to sovereignty. However, is humanitarian intervention then justified?

The likely father of the concept of humanitarian intervention, Hugo Grotius, is also the father of the scholars criticizing such. Proposed in 1625, Grotius espoused that just war included the assistance rendered to those outside the state who were battling oppression emulating from their own sovereign (Green 2003, 104). However, in almost the same breath, he opined that this principle would more than likely be exploited by those who sought the resources of that state, thus utilizing the circumstances to justify a war for conquest (Goodman 2006, 107). Since that time, debate has continued.

Currently, there are two types of humanitarian intervention; authorized, that which is sanction by the UN, and unauthorized (or unilateral), that which is not sanctioned by the UN (Goodman 2006, 107). Intervention sanctioned by the UN is done under authority of chapter VII of the UN Charter. Whether or not there is such authority, humanitarian intervention is supposedly intended for “preventing or ending widespread and grave violations of the fundamental human rights of individuals other than its own citizens” (Keohane 2003, 1). Regardless, even with the best intention, there are those with considerable power who still find this concept an anathema. Kissinger (1996, 17) indicates that the United States (US), insists that intervention into the affairs of other states is inadmissible regardless of the desire to export the American political system. However, since the 1990s, there has been a change in American, as well as international opinion.

In 1999 United Nations (UN) Secretary General, Kofi Annan states the two sides of the debate: Is it legitimate for an organization to intervene without a UN mandate or without such, is it legitimate to allow genocide to occur (Merriam 2001, 113)?

The major issues of the 1990s involving intervention, Iraq, East Timor, and the Balkans (Bosnia and Kosovo), or the notable lack thereof in the Rwandan genocide, has reopened the line of examination as to the justification of unilateral humanitarian intervention. Sixty seven years ago, in 1945, France attempted to amend the charter of the UN to allow states to intervene without UN authorization (Franck 2003, 206). Unfortunately, the concept proved too vague to override the UN charter’s proscription of non-violence. As Mednicoff (2006, 375) relates, “international law in general and the post-World War II United Nations-based legal order in particular were established to deter the resort to war by powerful states.”

Today, the concept is no longer vague. However, the various justifications of humanitarian intervention, specifically justification of UHI, as well as the objections to such, should be examined within the lenses of liberal idealism and conservative realism in order to determine if UHI can ever be justified. As a caveat, Boyle (1985, 79 ), in his examination of the legality of the Israeli raid into Entebbe, Uganda for the purpose of rescuing hostages, indicates that in times of crises, states will redefine international law to take into account national interest. Additionally, Boyle (1985, 135) reflects that a successful operation while violating international law may lead to a change in the law. In this regard, it seems that the UN’s shift from inviolate sovereignty to “right to protect” tends to be such a change. Indeed, the UN investigation over NATO’s UHI in Kosovo led the UN to endorse the “Responsibility to Protect” (R2P) policy (Mingst & Karns 2007, 112). However, there is still debate over R2P fundamentally altering the age old concept of sovereignty.

In the liberal point of view, a major purpose of the state’s existence is to “protect and secure human rights” (Teson 2003, 93). Desch (2001) offers that individual rights trump national interest, that norms are more important than power, and that “military force should only be used in our pursuit of altruistic objectives.” Therefore, violating, or ignoring the major purpose of the state should place the state outside the protection of international law. Additionally, Tenson (2003, 93) insists that sovereignty serves the people, and those that violate that policy cannot hide behind the shield of sovereignty. That being said, it appears, in the liberal point of view, that humanitarian intervention is justified when it is undertaken to secure human rights.

Teson (2006, 94–107) lists eight principals relating to liberalism and humanitarian intervention. These are: (1) Governments are mere agents of the people. Consequently, their international rights derive from the rights and interests of the individuals who inhabit and constitute the state; (2) Tyrannical governments forfeit the protection afforded them by international law; (3) The fact that all persons have rights entails the following consequences for foreign policy. Governments have: (a) The obligation to respect human rights at home and abroad; (b) The obligation to promote respect for human rights globally; © The prima facie obligation to rescue victims of tyranny or anarchy, if they can do so at a reasonable cost to themselves. This obligation analytically entails the permission to rescue those victims -/ the right of humanitarian intervention; (4) A justifiable intervention must be intended to end tyranny or anarchy; (5) Humanitarian interventions are governed, like all wars, by the doctrine of double effect; (6) In general, only severe cases of anarchy or tyranny qualify for humanitarian intervention; (7) The victims of tyranny or anarchy must welcome the intervention; (8) Humanitarian intervention should preferably receive the approval or support of the community of democratic states.

Items (5) and (8) require further explanation. For Item (5), Teson (2006, 102) describes the doctrine of double effect as a means for the determination of fault regarding the death of innocents caused by the action taken during a humanitarian intervention:

According to this doctrine, an act in which innocents are killed is legitimate if, and only if, it satisfies three conditions: 1. The act has good consequences -/ such as ending tyranny. 2. The actor’s intentions are good, that is, he aims to achieve the good consequences. Any bad consequences -/ such as the killing of noncombatants -/ are not intended; and 3. The act’s good consequences — such as ending tyranny — outweigh its bad consequences — such as the killing of non-combatants. (2006, 102)

Approval or support of the community of democratic states, item (8), deals with both authorize and unauthorized humanitarian interventions. This support can come as a UN Security Council resolution authorizing such or, lacking such resolution, the nodding approval of a significant number of liberal democracies. The current nature of the permanent veto allows that no authorized action can take place against one of the permanent five and likely that no such action will ever be approved against a significant ally of the five. While such UHI action took place in Kosovo against Serbia, an ideological ally of Russia, it occurred while Russia was politically weak.

Unfortunately, the need for support entails the need to promote the cause of a particular UHI in a way to sway the majority of states. In this, it seems perception is more important than reality in what will cause international opinion to shift in either direction. The cause of Bangladesh was promoted by India, the state that militarily intervened against West Pakistan, to the extent that world sympathy was on the side of the Bangladeshi (Karem 2005). Likewise, focusing UHI discussion on Holocaust imagery is both used and abused (Desch, 2006).

During the 1992 Bosnian campaign, Holocaust comparisons routinely flooded major media. The aftermath of the effect of the publicity caused the US to arm Muslims and Croats in 1994 (Desch 2006, 117). Again in 1998, Holocaust imagery brought the Kosovo conflict to the forefront, giving greater cause for the eventual NATO bombardment in which was later claimed “This time the world was not silent. This time we respond. This time we intervene” (Desch 2006, 117). Finally, US president G. W. Bush used such imagery to justify removal of the Iraqi Ba’athist regime, stating “In this century, when evil men plot chemical, biological and nuclear terror, a policy of appeasement could bring destruction of a kind never before seen on earth” (Desch 2006, 118). However, Desch argues that actual intervention during the height of the Holocaust may not have accomplished anything close to what is perceived (2006, 120–130).

The notion of sovereignty, at least that which is enshrined in the UN charter, owes its allegiance to the concepts derived from the Peace of Westphalia. Indeed, the concepts of sovereignty from Westphalia are still a basis for contemporary international relations; “the government of each country is unequivocally sovereign within its territorial jurisdiction, and countries shall not interfere in each other’s domestic affairs.” (Osiander 2001, 261).

However, political sovereignty has undergone a change from control of activity within a real and political border to responsibility for what occurs within those borders. In other words, “the focus has shifted from the rights of sovereignty to the responsibility of sovereignty” (Reed 2012, 314). With this shift comes another notion, the possibility that mere sovereignty no longer trumps legitimacy. Zoakos (2003) discusses the aspect of legitimacy when he compares sovereignty granted through the principle of Westphalia and the same via the US constitution wherein legitimacy is granted the US government through exercise of the human right to be governed by consent. This shift in doctrine leads to the legitimacy of UHI, by states whose sovereignty is legitimized by such consent, into states whose sovereignty has no such legitimacy, for the purposes, as proposed by Green (2012, 314), of relieving massive human suffering.

Buchanan (2003, 131) goes further in justifying UHI. Basically, his argument states that observance of the law should not and does not hinder fidelity to basic moral values. Following this line of reasoning, Buchanan lists three principles for which UHI are justified; moral necessity, protection of human rights, and moral improvement to the legal system (Buchanan 2003, 131). Unfortunately, all three principles can be abused. As asserted by Green (2012, 314), massive suffering must be relieved, however, not all suffering requires the violation of sovereignty to relieve. However, perhaps a correlation to the moral necessity clause would be that it would put an end to acts that ‘‘shock the moral conscience of mankind’’ (Beitz 2009, 326). Additionally, the UN’s Universal Declaration of Human Rights lists several rights for which it would be sheer folly for one state to violate the sovereignty of another to enforce such rights. As for intervention with the goal of a moral adjustment of international law, it is too ambiguous a concept to base action. However, based on the above mentioned example wherein Britain violated the sovereignty of several states in the 1800s in order to eradicate slavery, this principle is to be considered. Regardless, it does not appear that there are any such issues that would evoke such a response today.

Finally, the debate over UHI will continue as long as the UN can be deadlocked over acting on authorizing humanitarian intervention. However, as seen in the aftermath of such action in East Pakistan by India, Cambodia by Vietnam, Uganda by Tanzania, and Kosovo by the North Atlantic Treaty Organization, such intervention will continue to occur as long as international opinion supports such and the cost of such intervention is not onerous. In that regard, even Kissinger in 2001, who portrayed the US as against such in 1996, professed that “humane convictions are so integral a part of the American tradition that both treasure and, in the extreme, lives must be risked to vindicate them anywhere in the world (2001, 253). That being said, it may seem that UHI, as envisioned today, is hypocritical in that it appears, obviously, that some states are impervious to intervention. However, it is hoped that one day no state will be able to hide behind the concept of inviolate sovereignty while abusing its citizenry. Indeed, in those circumstances, sovereignty must be ignored. As Bass (2008, 382) concludes, the responsibility of preventing the violence associated with the massive abuse of human rights belongs to the states whom profess liberal democratic governments. Unfortunately, no state, or group of states, has undertaken to shoulder that responsibility.

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