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“Humanitarian intervention is justified when…

Spring / Summer 2011 The Definition

“Humanitarian intervention is justified when…

The DefinitionGareth Evans

…it occurs in the context of the proper application of the much more nuanced ‘Responsibility to Protect’ principle (RtoP, for short) initiated by the Canadian-sponsored International Commission on Intervention and State Sovereignty (ICISS) in 2001, and unanimously endorsed by the UN World Summit in 2005. Until the emergence of RtoP, the only conceptual framework for debate about how to respond to genocide and other mass-atrocity crimes was Bernard Kouchner’s droit d’ingérence – that is, one-dimensional military coercion, about which there was not only zero international consensus, but bitter contest.

By changing the focus from ‘right’ to ‘responsibility,’ and from ‘intervene’ to ‘protect,’ by making clear that there needed to be as much attention paid to prevention as to reaction and non-coercive measures, and by emphasizing that military coercion – which needed to be mandated by the UN Security Council – was an absolute last resort in civilian protection cases, RtoP laid the groundwork for the kind of consensual acceptance of forcible response that we are today witnessing in Libya, and that we recently witnessed in Côte d’Ivoire. Lest we forget that these are actions that had proved absolutely impossible to achieve in the horror situations of the 1990s in Rwanda, Bosnia and Kosovo. So let us please lay ‘humanitarian intervention’ language to rest once and for all.

That said, so long as coercive military intervention for civilian protection purposes remains on the table as one possible option – albeit only in extreme situations, as it certainly does under the RtoP doctrine – it is very necessary to have a common understanding regarding the criteria that would justify it – morally and prudentially, as well as legally. Getting formal agreement on guidelines for the legitimate use of military force remains a work in progress, but the recommendations of the ICISS and Kofi Annan himself in the lead-up to the 2005 World Summit are all most sound and helpful in this regard.

The overall test for action should be as follows. The first criterion should be seriousness of risk: is the threatened harm of such kind and scale as to prima facie justify the use of force? The second criterion is whether the primary purpose of the proposed military action is to halt or avert the threat in question. The third is last resort: has every non-military option been explored, and found likely not to succeed? The fourth is proportional means: are the scale, duration and intensity of the proposed military action the minimum necessary to meet the threat in question? And the final – and usually toughest – criterion for justified military intervention is the balance of consequences: will those at risk – overall – be better or worse off?

There is no push-button inevitability about the application of these criteria, and for the Security Council to adopt them would be no guarantee in itself that the objectively best outcome will always prevail. But I do believe that the existence of agreed criteria would: change and improve the quality of Security Council debate; maximize the possibility of achieving consensus about the cases in which it is appropriate to apply force for civilian protection purposes; maximize international support for whatever it decides; and minimize the possibility of individual states bypassing or ignoring it.”

» Gareth Evans is Chancellor of the Australian National University. He is the former Co-Chair of the International Commission on Intervention and State Sovereignty, President Emeritus of the International Crisis Group, and past foreign minister of Australia.

Tatiana Romanova

…there is a large-scale violation of human rights, and the intervention does not itself lead to additional loss of civilian life.”

» Tatiana Romanova is Associate Professor at St. Petersburg State University, and a senior researcher in the Higher School of Economics in Moscow.

Richard Falk

… the strict guidelines associated with legality are reinforced by the moral and political guidelines of legitimacy. Legality is determined by international law, as codified and constitutionalized in the UN Charter. Essentially, the use of international force is lawful only if in self-defence in response to a prior armed attack or on authority of the Security Council. More concretely, the Kosovo war was an unlawful instance of humanitarian intervention, while Libya in 2011 was initially lawful, although at its operational stage it became unlawful because the force used flagrantly exceeded the scope of authorization – effectively shifting the narrow UN Security Council mandate to protect civilians by establishing a no-fly zone to a much broader and less clear ‘humanitarian’ mission of regime change by siding unreservedly with the anti-Gaddafi rebels.

When it comes to legitimacy, the issues are more contested, because explicitly moral and political factors are brought to bear on the status of a given use of force. The distinction between legality and legitimacy was relied upon by the Independent International Commission on Kosovo, which concluded that the use of force under NATO auspices was unlawful, yet legitimate. It was morally legitimate because it seemed to have been supported by the overwhelming majority of the society subject to the intervention, and because there was sufficient evidence to the effect that, without the NATO intervention, the Serb governmental and military effectives in Kosovo would have engaged in a pattern of ethnic cleansing – verging on genocide – in a manner similar to that in Bosnia a few years earlier.

The political argument is more complex. It focusses on two sets of concerns: feasibility and political will. Feasibility refers to the sufficiency of the means available to achieve the ends proposed; that is, a reasonably objective assessment of the costs and resources required if the humanitarian mission is to be successfully completed. There is a tendency for promoters of interventions to wildly overstate humanitarian dimensions, and to grossly understate obstacles – claiming that a proposed intervention will be cheap and easy. The build-up to the Iraq intervention of 2003 was a classic instance of such a dynamic, but Kosovo and Libya, as well as Afghanistan, reinforce the contention here that when the actual costs of a proposed intervention are realistically presented during the pre-intervention debate, a so-called humanitarian intervention will rarely be undertaken.

Problems of feasibility also relate to the political will of the advocates of intervention. In many instances, the ordeal of an interventionist undertaking ends up, after much death and destruction, producing an eventual acknowledgement of failure. Perhaps the best example of this pattern was the American intervention in Vietnam. (The feasibility of military interventions was far greater prior to WW2 – especially during the colonial era, when military superiority could be translated into political outcomes at low costs for the intervener.)

Finally, geopolitics clouds the sky that hovers over any given case of humanitarian intervention. Double standards are glaringly present. Why Libya and not Bahrain or Syria? And why not, say, Gaza? Or Chechnya? When what purports to be law treats equals so unequally, an ethos of suspicion seems appropriate. So far, RtoP, despite some good intentions surrounding the development of this norm, remains a creature of geopolitics.

In sum, when intervention is undertaken for genuine humanitarian reasons, it rarely succeeds; and when it is undertaken for mainly strategic reasons, it costs far more than it is worth. With principled exceptions, humanitarian intervention should never be undertaken until international law takes consistent precedence over geopolitics.”

» Richard Falk is the Albert G. Milbank Professor Emeritus of International Law at Princeton University.

Ramesh Thakur

…it is not humanitarian intervention, but action taken to honour the international responsibility to protect. Humanitarian intervention has too much historical baggage for most developing countries, whose colonial experience and collective memory bear too many scars of interventions by Westerners in which the lofty rhetoric of disinterested humanitarianism cloaked the ugly reality of self-interested geopolitical and commercial motives. It also approaches the issue from the point of view of the rights and privileges of the intervening powers, instead of the distress and needs of victims. It is a labelling device that delegitimizes dissent as anti-humanitarian. In any case, it is an oxymoron – no less so than ‘humanitarian bombing.’ In this sense, the so-called humanitarian intervention in Kosovo in 1999 was nothing but a campaign of sustained, high-altitude bombing.

Because of the bitter international controversy generated by Kosovo, and against the backdrop of lasting guilt caused by the failure to intervene to stop the eminently preventable genocide in Rwanda in 1994, then UN Secretary-General Kofi Annan challenged the international community to forge a new normative consensus on when to use force legally and legitimately. In response, Canada organized an independent international commission, co-chaired by Gareth Evans – who has also contributed to this GB segment – and Mohamed Sahnoun, with 10 other commissioners, including yours truly. After a year of deliberations, the commission produced a landmark report called The Responsibility to Protect. Its RtoP principle was unanimously endorsed by world leaders at the UN World Summit in October 2005.

RtoP redefines sovereignty as responsibility, and vests the responsibility to protect all people in any territorial jurisdiction in the government of that land. If the state is unable or unwilling to discharge the responsibility, or if it is itself the perpetrator of atrocity crimes, then the responsibility to protect people suffering or at risk of imminent harm trips upward to the international community – acting ideally through the UN. Both of these propositions were endorsed by world leaders in 2005, who also agreed to take timely and decisive collective action where states were manifestly failing in their individual responsibility. The atrocities were specified as war crimes, crimes against humanity, genocide and ethnic cleansing.

Additional considerations imbuing an intervention with legitimacy include: reasonable prospects of success, so that the intervention does not cause more harm than it prevents or stops; the motivation being primarily humanitarian protection, although self-interest by a major global or regional power may well be required to sustain an intervention to successful conclusion; the support of relevant regional states and organizations; and military action being the option of last resort – not in a chronological sequence, but in the sense that no other option is likely to meet the urgency and gravity of the crisis at hand.

On this understanding, Iraq was an illegal war of aggression; Afghanistan was a justified war of self-defence against an armed attack; claims to the contrary notwithstanding, Russia’s military action against Georgia in South Ossetia was not RtoP in action; but UN Security Council Resolution 1973 authorizing all necessary measures in Libya to protect civilians, while proscribing ground invasion and foreign occupation, is an effort to implement RtoP. After recapturing Benghazi – which they were on the verge of doing – the Gaddafi troops had threatened to go looking for rebels house by house, and room by room, without pity and mercy. The rebels, the defecting Libyan diplomats, the Arab League, the Organization of the Islamic Conference, the US, the Canadians, the Europeans and Australia invoked RtoP in calling for outside military help. A few Arab countries joined in the military operations after Security Council authorization. And the action did stop Gaddafi’s advance in its tracks, thereby preventing a massacre of the innocent in Benghazi.

Of course, neither RtoP nor Resolution 1973 authorizes the targeted killing of Gaddafi or intervention in a civil war in order to determine the outcome of Libya’s internal political struggle. The mandate is to stop atrocities against civilians – no less, but no more. That is the limit of justified international intervention.”

» Ramesh Thakur is Professor of International Relations, Australian National University, and the author of The Responsibility to Protect: Norms, Laws and the Use of Force in International Politics (Routledge, 2011).

John Dugard

…nine members of the Security Council, ‘including the concurring votes of the permanent members,’ decide that the situation warrants intervention in accordance with the Responsibility to Protect resolution of 2006. This is the conclusion that may be drawn from Resolution 1973 providing for a no-fly zone over Libya, and authorizing states to take all necessary measures to protect civilians. When a permanent member does not politically support, or is not prepared to acquiesce in, the resolution by means of abstention from voting, no action will be taken – however serious the situation may be, and however many war crimes and crimes against humanity may have been committed. That the permissibility of humanitarian intervention in accordance with the letter of the UN Charter is subject to the whims of permanent members is clear from the recurring failure of the Security Council to respond adequately or at all to severe or worse attacks perpetrated against civilian populations than what has been taking place, for instance, in Libya.

The famous General Assembly resolution of 2005 on Responsibility to Protect has not changed the legal landscape. The UN Charter makes no express provision for unilateral humanitarian intervention by states or regional organizations. Moreover, such intervention seems to be prohibited by Article 2(4) of the UN Charter. In short, the UN Charter condones – indeed authorizes – a double standard that reflects the political preferences of the permanent members.

Today, some see the referral of a situation to the International Criminal Court as a form of humanitarian intervention. But such referrals are also subject to the veto of the permanent members. So referrals have been made in respect of Darfur and Libya, but not in other situations where a similar referral would be justified.

There is dissatisfaction with a situation that places all power in the hands of the permanent members of the Security Council when it comes to humanitarian intervention. On occasion, individual states have taken unilateral action: India intervened unilaterally in East Pakistan (Bangladesh) in 1971, and Tanzania intervened in Uganda in 1979. In other instances, regional organizations have intervened without Security Council approval in the exercise of humanitarian intervention: witness NATO’s intervention in Kosovo in 1999. In such circumstances, states act outside of the UN Charter in much the same way as doctors resort to euthanasia in domestic law.

The present situation is untenable. We cannot rely on the Security Council – as is – to act on behalf of the international community in the case of humanitarian crises. And it is undesirable to allow individual states or regional organizations to take the law into their own hands. In these circumstances, the General Assembly should act on behalf of the community of nations in terms of the Uniting for Peace Resolution of 1950. Such action would be collective action in the true sense of the word. After all, the General Assembly adopted the resolution on the Responsibility to Protect. One suspects that if the General Assembly did act in this way or threaten to take action by way of humanitarian intervention under the Uniting for Peace Resolution, the permanent members of the Security Council might start to act in the broader community interest, and not defer to their own political interests.”

» John Dugard is Professor of Law at the University of Pretoria. He also is Emeritus Professor at the University of Leiden and a Member of the International Law Commission.


(Photograph: The Canadian Press / Rodrigo Abd)

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