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

There are few issues which provoke such passionate dispute as the case for and against humanitarian intervention in failed or failing states. Western powers have intervened in Iraq and Afghanistan but not in Rwanda or Darfur, in Kosovo and Sierra Leone but not in Zimbabwe or Burma, in Libya but not in Syria. Not only, despite several attempts to achieve one, have the members of the United Nations failed to build a lasting consensus on the circumstances in which it is right to intervene to protect human life, but even when the case for intervention appears unanswerable, they have been unable to agree on who should intervene and how.

The arguments about whether intervention is a form of imperialism or opportunism or whether, even with the best intentions, it creates worse problems than it is likely to solve cross ideological divides. But as as our TV screens bring us daily pictures of conflict, oppression and suffering, do we not have a responsibility to agree at last an ethical as well as practical framework for intervention?

Can intervention in sovereign states in pursuit of humanitarian objectives ever be considered legitimate and, if so, in what circumstances? How can the motives of those proposing intervention be assessed, monitored and policed? How should the principle of humanitarian intervention be balanced by pragmatic assessments of cost and how should the degree of desirability be measured against the prospects for success? How bad do conditions have to be and what other processes have to be exhausted before intervention takes priority over sovereignty? What levels of cost and what degree of risk of failure are acceptable? How can (recent) history help establish criteria for intervention?

Two distinguished academics, Professor Malcolm Chalmers and Dr Jean-Baptiste Jeangène Vilmer, address these questions.

Dr Jean-Baptiste Jeangène Vilmer

Faculty of Law, McGill University

Jean-Baptiste Jeangène Vilmer is a fellow of the Centre for Human Rights and Legal Pluralism in the Faculty of Law at McGill University in Montreal. He has a particular interest in international humanitarian and international human rights law.

He studied philosophy at the Sorbonne and law at McGill University. He holds a Ph.D. in Philosophy (International Ethics) from the University of Montreal and a Doctorate in Political Studies from the Ecole des Hautes Etudes en Sciences Sociales in Paris. His Ph.D. dissertation In the Name of Humanity? History, Law, Ethics and Politics of Military Intervention Justified on Humanitarian Grounds won three prizes in France and Canada in 2010.

Before joining McGill University, Jean-Baptiste lectured in the Department of War Studies at King’s College London and at the University of Montreal and, between 2007 and 2008, served as an attaché to the French Embassy in Turkmenistan.

He is the author of ten books on international relations, ethics and philosophy.

McGill University’s Law Faculty has a leading reputation in both civil and common law, with a strong focus on international law.

McGill Law also has a long-standing tradition of supporting international human rights dating back to Prof. John Peters Humphrey's drafting of the UN Declaration of Human Rights in 1948. Current members of the Faculty represent political prisoners and promote women's rights and minority rights globally through development projects.

Professor Malcolm Chalmers

Director of UK Defence Policy at the Royal United Services Institute

Malcolm Chalmers is Director of Research and Director of UK Defence Policy at the Royal United Services Institute and Visiting Professor of Defence and Foreign Policy in the Department of War Studies, King’s College, London (where he currently teaches).

He was a member of the Cabinet Office consultative group for the 2010 Strategic Defence and Security Review and of the Defence Secretary's Advisory Forum for the 2010 Defence Green Paper. He was a Special Adviser to Foreign Secretaries Jack Straw MP and Margaret Beckett MP.

He has also been Professor of International Politics at the University of Bradford, Visiting Fellow at the Center for International Security and Arms Control, Stanford University and Senior Consulting Fellow, International Institute for Strategic Studies.

He is the author of many books, papers and articles on defence and security policy.

The Royal United Services Institute (RUSI) is an independent think tank engaged in cutting edge defence and security research. Founded in 1831 by the Duke of Wellington, RUSI embodies nearly two centuries of forward thinking, free discussion and careful reflection on defence and security matters.

RUSI consistently brings vital policy issues to both domestic and global audiences, enhancing its growing reputation as a ‘thought-leader institute’, winning Prospect magazine's Think Tank of the Year Award in 2008 and Foreign Policy Think Tank of the Year in 2009.

Proposition

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

A Matter of Costs and Consequences

In the aftermath of the genocides in Rwanda and Bosnia, there was growing political support in liberal democracies for the creation of new intervention ‘norms’. Not only, it was argued, did the international community have a right to intervene to prevent (or limit) gross violations of human rights, it also had a responsibility – even a duty – to do so.

From an early stage, some of the strongest proponents of a ‘Responsibility to Protect’ saw UN Security Council authorisation as desirable but far from essential. NATO’s Kosovo intervention in 1999 was justified on humanitarian grounds but conducted in the face of fierce Russian and Chinese opposition on the Security Council. As Prime Minister Blair subsequently made clear, humanitarian motives also played an important part in shaping the UK’s commitment to forcible regime change in Iraq in 2003, once again without a clear UN mandate for military action.

The appetite for liberal interventionism has diminished in recent years, although not primarily because of a rejection of the ethics underpinning RtP. First, in the current climate, the costs (both financial and political) of large-scale forcible state-building appear ill-affordable. Massive American and British resources have been spent in Iraq and Afghanistan without generating commensurate levels of security benefits. Second, it is difficult on humanitarian grounds to justify intervention when the end-state is undetermined and risky. For example, the lack of UN consensus on and authorisation for the invasion of Iraq may have been forgotten had that country been quickly transformed into a democratic and stable state. But the difficulties in achieving this outcome combined with the large civilian death-toll considerably undermined international and domestic support for interventionism.

Tony Blair argued before the Kosovo intervention that the old commitment to the sovereignty of states dating from the Treaty of Westphalia in 1648 was no longer appropriate in a globalised, post-Cold War world. But whilst the US and UK started the ‘Age of Intervention’ thinking that the ‘soft power’ of the democratic model, underpinned by their own considerable ‘hard power’, could be used to transform foreign societies, they have come to realise that, for all the expense and political heartache involved, their leverage is more limited that they had thought.

The will to intervene has not disappeared, as the case of Libya illustrates. But the events of the last decade have shown that, while it remains important to ask whether any proposed intervention is in a just cause, it has become even more important to ask whether there is a reasonable prospect of achieving a good outcome at a bearable cost. And, in making such a calculation, it is vital to remember that military plans rarely survive contact with an enemy.

So what does this imply for future interventions?

First, the UK should commit to discretionary operations only when there is clear support from the Security Council or (possibly) a relevant regional security organisation such as NATO or the African Union. Even if a cause is just and achievable, wider damage will be done to the rule of law by unilateral action.

Second, unless the UK has a unique interest, any operation should normally be in partnership with other major powers, in practice the US and/or France.

Third, we should be especially reluctant to deploy ground forces in a role that could involve combat missions. There will be cases – as in Libya – where UK forces can help avoid humanitarian disaster and shift the balance of a civil conflict. But the costs of involvement increase exponentially – as do the difficulties of rapid extraction – once our forces take on the role of foreign occupiers.

Better by far to limit our military role to support functions – training, logistics, air power - leaving combat roles to local security forces. If no such forces exist and there is no prospect for creating them, we should seriously consider whether we have a viable peace building strategy - for without it, we are much more likely to find ourselves in an open-ended and costly conflict in which we become more part of the problem than the solution.

Fourth, even if these three criteria are met, we may want to avoid participation in an operation if we simply do not have the capabilities to take it on – or need to keep our powder dry in case something more important requires our intervention. The UK does have a 'Responsibility to Contribute'. But our contribution should be proportionate and compatible with our position as an important but now only middle-ranking military power.

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.

Response

These are strong and well-crafted arguments. We agree on ‘legitimate authority’ where the Security Council is crucial but where other forms of legitimation should not be ruled out. Given post-colonial sensitivities, I would put particular emphasis on the role of regional organisations as alternative sources of legitimacy. AU and Economic Community Of West African States (ECOWAS) backing for French action in Côte D’Ivoire is a good recent example.

I agree with Jean-Baptiste on the dangers of interpreting ‘last resort’ as waiting until all other measures have failed. The most effective forms of military intervention – for example through security guarantees – are those that prevent conflict escalating in the first place.

I share his scepticism about ‘good intention’. But I would place more emphasis on the right to intervene to protect the global interest in minimising the spillover effects of conflict. The UN Charter explicitly allows force to be used when there is a threat to international peace and security. This criterion is much less contested than the relatively-new concept of RtP.

But by contrast, I am uneasy about Jean-Baptiste’s suggestion that the criteria for intervention should have been extended to situations such as the Darfur conflict and the Myanmar cyclone, even if the host government was not prepared to support such an intervention.

Intervention in Darfur would have risked the West becoming entangled in a protracted Iraq-style civil conflict, without UN backing and without any prospect of rapid exit. And the Myanmar scenario, even if it had saved lives in the short term, would have been seen as an attempt at regime change and triggered a corresponding response from the regime.

If international military intervention is to be legitimate whenever the international community judges that a national government is not responding adequately to natural disaster, then where is it not justified? For all its faults, the right of countries to make their own mistakes and develop in their own way is one of the pillars of stability in the post-colonial world. There are some special and extreme circumstances where this principle should be set aside but not many.

Finally, given both the uncertainty of consequentialist calculations and the specific national responsibilities of governments, I would place the bar for intervention higher than one that simply says interventions should save more lives than they lose. This is especially the case in relation to our own citizens, both military and civilian.

Would I be prepared to risk the lives of 100 British soldiers (or aid workers) to save those of 100,000 Afghans? Yes, and so – importantly – would many of those whom I would be putting in the firing line. But for 100 or 200 Afghans? Almost certainly not.

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.

Conclusion

There is a strong convergence between us on the need for a pragmatic, outcome-oriented approach to intervention. There are some general principles that should also be considered, including the importance of legitimate authority and the existence of evident wrongs. But criteria must also include more judgemental factors, including a requirement for reasonable prospects of success and a calculation that the gains will justify the costs. Once all these criteria are taken into account, apparent ‘inconsistencies’ in the approach to intervention can usually be explained and defended even if they are not always supported.

For these reasons the UK is right, in my view, to be taking part in the military intervention in Libya even though it should not be doing so in Syria. The coalition of initial support for the Libya operation – both in the UN and the Arab League – was remarkably wide. Immediate humanitarian gains were made, notably in the relief of Benghazi. And the prospects for wider success, at relatively low cost and without the use of ground forces, remain reasonable given the isolation of the regime. Not least, a liberated Libya will help to reinforce reform in neighbouring Tunisia and Egypt.

By contrast, no such broad coalition exists for intervention in Syria and proposals for attack – or even a ‘no fly zone’ - would likely attract a Russian UN veto. Moreover, Syria could call on powerful regional allies including Iran and – in contrast to Libya – the effect on the immediate neighbourhood might be to add to instability, for example in Iraq.

Circumstances could change – for example were Turkey to launch a humanitarian intervention of its own and ask for EU assistance or if the depth of the repression were to increase markedly (for example, through the regime’s use of chemical weapons against its people). But in the absence of such developments, diplomacy and sanctions should be the principal means through which the UK and Europe demonstrate their disapproval of what is happening.

The case of Zimbabwe is often debated in the UK. While our history makes our politicians especially sensitive to events there, it also makes it more difficult for us to be seen as impartial protectors of their rights by ordinary Zimbabweans (or indeed by other African governments). Whether we like it or not, there would be very little international support from either the AU or the UN for UK military action to overthrow the Mugabe regime.

Not only would this detract from the legitimacy of any operation, but it would also make it very difficult to carry out. A way could probably be found to insert a couple of thousand ground forces into major cities, seizing airports, key government buildings and so on. But what then? Faced with the violent opposition of a large minority of armed Mugabe supporters and isolated and condemned by the regional power, South Africa, the prospects for success would be low.

Were South Africa to commit itself to Mugabe’s overthrow, things would be very different. In such circumstances, however, the UK’s involvement would be counterproductive. The UK should remain actively engaged and devote substantial resources to post-Mugabe reconstruction when the time comes. But the use of military force should not be on the cards.

This is not an inconsistency. Rather it illustrates a proportionate and fully humanitarian approach which is appropriate for the UK in discharging its responsibilities as an internationalist power.