How enforceable are Humanitarian Intervention (HI) and the Responsibility to Protect (R2P)?
by Andrew McFarlan
Third year Undergraduate student, University of St Andrews.
Humanitarian intervention (HI) presents perhaps the most difficult challenge for the contemporary international system of ‘nation-states’: those countries, in which we live and breathe. At the heart of the doctrine lies, by definition, an antagonism: there exists a fundamental desire to liberate the oppressed individual from tyranny, whilst valuing the target state as worthy of preservation. To conceive of a ‘norm’ of humanitarian intervention is to spin the current world order on its head, turning our backs on two fundamental principles: non-intervention and self-determination. I shall discuss the problems inherent in accepting humanitarian intervention as a ‘norm’ with reference to two interrelated issues: international law and international order. It shall be noted that the emerging UN-recognised norm of a ‘responsibility to protect’ only further complicates these delicate issues.
In order to discuss the normative value of humanitarian intervention, we must first understand its meaning within the IR discipline. I shall refer to Oppenheim’s helpful definition, of “a dictatorial interference in the internal or external affairs of another state” . Oppenheim’s definition crucially highlights coercion – interference in the affairs of another state and the bypassing the territorial sovereignty of that target state. Such a process signals a decisive break from diplomatic efforts and raises countless problems when considering international law and the doctrine of non-interference associated with state sovereignty.
Coates (2006) discusses that the term ‘humanitarian intervention’ itself espouses the difficulty of the compromise: it is humanitarian in its will to protect individuals, yet interventionist in its belief that the state – regardless of its success – remains an essential pillar of international order.
The doctrine of a ‘Responsibility to Protect’ can be seen as the muscular offspring of the humanitarian intervention debate.
The founders of the doctrine assert a firm desire to see its demands codified, posing a further problem for international law. Its aims include ‘the establish[ment of] clear…constitutive and regulative rules for intervention’ and for the decision-making process legitimising its enactment . The increasing normative acceptance of the responsibility to protect is evidence that the coercive element of intervention can expect to play a large part in the foreign policy components of a number of states for the foreseeable future.
The first issue that must be dealt with in considering the value of a norm of humanitarian intervention is its relationship to international law. As will be argued in this section, any act of intervention immediately conflicts with the rules and conventions of international law: non-interference and non-coercion.
Walzer (2000) suggests that any theory of humanitarian intervention must be grounded in international law in order to bind moral choices in some recognisable legal form. For Walzer, we must be able to judge the success of an intervention prospectively and retrospectively. However, Walzer crucially suggests that this legality must remain political; it cannot be absolute: the principles that underpin the international legalist tradition require that we sometimes ignore its affirmations.
Such a view seems to support the doctrine of humanitarian intervention as applied in practice, i.e. as the exception to the rule, but would rule out the legitimacy of a ‘responsibility to protect’, aiming as it does at legal codification and thus directly enforcing a duty for states to intervene, thus hurting the national interests of the intervening state.
The increasingly powerful substance of international humanitarian law, as recognised by the establishment of the ICC, facilitates a prudent approach to humanitarian intervention, whilst recognising it legally as a legitimate course of action. This embraces the legal foundations of international law, whilst providing adequate room for a moral approach.
Such issues inevitably lead us to question the moral basis of international law. Is international law imbued with a moral component? Can we treat international law as absolute, or must we leave adequate room for situational decision-making? Franck (2006) questions whether it is more important to intervene in order to save lives whilst disrespecting international law, or to refrain from interfering in the affairs of a sovereign state, whilst strengthening the foundations of an international system designed to foster state strength.
Franck’s ultimate response is to assert that there need always be space to question the boundaries of international law. Although legality and morality are theoretically irreconcilable, argues Franck, prudence must reign over absoluteness:
Such a theory allows for the “rule” of non-intervention to be applied as the international norm, yet providing the exception of humanitarian intervention with significant rigour upon enactment.
The second critical issue encountered in the humanitarian intervention debate concerns the implications that the doctrine holds for international order, as upheld through state sovereignty. We must ask whether a ‘norm’ of state intervention will undermine any sense of a lawful society of nation-states, eroding as it does the non-intervention and self-help components valued as twin pillars of international ‘order’.
During the Cold War, nations mobilised huge armies and large portions of budgets on ‘core’ and ‘peripheral’ wars in the likes of Korea, Vietnam and large swathes of Africa. These ‘old wars’ contrast hugely with ‘new wars’, the likes of which saw ethnic tensions boil over in Rwanda, Serbia and Kosovo. The moral outrage that has followed these ‘new’ wars owes itself in a large part to this shift in how we value the protection of the individual against the consolidation of the state.
A stronger line is taken by Orford (2003), who treats a gathering tradition of humanitarian intervention not as a noble quest of liberation but rather as an extension of colonial history:
Central to Orford’s claim is that humanitarian intervention fails to bridge the conflicting ideals of national self-determination and human rights. These two traditions are hopelessly fused in an attempt to apply liberal ideals of universal equality to a society of conservative states . The result is a strengthening of existing feelings about who does and does not belong to the ‘international community’.
Ignatieff (2003) furthers the debate over international order by narrowing the modern state’s intervention options to a simple choice: whether to change or to preserve the society . This basic question, argues Ignatieff, strikes at the heart of the moral debate concerning state sovereignty. The decline of the Cold War narrative that pitted capitalism against communism was followed by a period of renewed self-interest on the parts of states, namely articulated through their exercise of intervention. As such, Ignatieff views intervention as inherently problematic: by intervening, we are effectively denying the self-determination of the target state and denying any alternatives to that state structure . That civil war has been the dominant source of conflict has encouraged many to argue that the state has been delegitimised and has prompted others to suggest that humanitarian intervention, by preventing the conflict from tending towards popular revolution, is itself illegitimate . In other words, only by staying neutral can we restore the balance needed to set a nation on a Millean path towards self-determination , whereas any value judgement that leads us to intervene for humanitarian reasons necessarily contains within it a normative element that undermines self-determination by imposing the values of the intervening state on the target state.
The problem is not only shared but seems deeper with the idea of a responsibility to protect. The doctrine implies in addition to protection from harm, a responsibility to prevent and to follow through. The proclaimed intention to implant notions of order via the introduction of functioning political systems and a capitalist economy during the reconstruction process is consistent with neither the idea of national self-determination, nor with classical conceptions of individual rights.
There exist extreme difficulties with the idea of humanitarian intervention, none more so than the accusation that the state is acting illegitimately. This moral dilemma is succinctly summed up by Wheeler (2000), who reduces the problem as to ‘do nothing or do something’ . As Wheeler notes, the problem is that doing something leads to accusations of interference, whilst doing nothing elicits charges of moral indifference . International order, it seems, favours the protection of the state over the individual and for this reason, holds enormous problems for justifying a humanitarian-motivated ‘right’ to intervene.
I have argued throughout that there exist three interrelated problems with the development of a ‘norm’ of humanitarian intervention and the responsibility to protect. The inherent antagonisms with established international law mean that any norm will require a fundamental revision of the international legal structure. The erosion of state sovereignty through the undermining of non-intervention and self-determination is perhaps even encouraging the slow decline of the nation-state itself.
Finally, any codification of the aforementioned doctrines has the possibility of de-politicising intervention, contradicting the just war principles, on which we continue to form our moral judgements of war and peace. Any act of state intervention must be tempered by a healthy dose of prudence if we are to continue to breathe life into the basic legal and functional structures, on which state interaction has been based for the entirity of modern history.