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JAMES UPCHER[*]
In 1992, as the war in Bosnia was accelerating with dangerous momentum, the human rights group Helsinki Watch published a report documenting systematic executions, expulsions and indiscriminate shelling attacks. The atrocities were on an immense scale, and it was widely feared that genocide was being perpetrated. But Aryeh Neier, then executive director of Helsinki Watch, was reluctant to campaign for military intervention. ‘We were in a real bind ... The organisation had never called for military intervention, and we couldn’t bring ourselves to do so. Yet we could also see that the atrocities would not be stopped by any other means. What we ended up with was a kind of tortured compromise.’[1]
The ‘tortured compromise’ - the attempt to reconcile the use of force with the amelioration of conflict through commitment to human rights - is one of the dilemmas posed by the question of humanitarian intervention. G.W.F. Hegel defined a tragedy as a conflict between two rights, and humanitarian intervention fits the definition. The debate seems to exist in a moral universe of tragic choices: hold fast to the traditional norms of non-interference and sovereign state equality, or recognise a legal capacity to intervene when human rights are being extinguished or threatened? The legal context involves equally tragic choices. If international law adheres to its traditional legalist framework, does it risk the irrelevance of a spectator’s role? If we accept the existence of a legal doctrine of intervention, in an attempt to bring legality into line with our moral aspirations, is law incurably compromised by serving at the elbow of state power?
With the intervention by the North Atlantic Treaty Organisation (NATO) in Kosovo in 1999, a number of scholars pronounced the ascendancy of an ‘ethical’ international law - a legal framework that valued justice and human rights over the anachronistic demands of sovereignty and non-interference.[2] NATO’s intervention, it was suggested, bridged the gap between facts and norms, installing considerations of substantive justice at the fulcrum of international relations. For these scholars, Kosovo pointed the way towards a customary ‘right’ to intervene on humanitarian grounds.[3] But for others, wary of international law becoming a rug on which power wipes its muddy feet, NATO’s action was illegal, without authorisation of the United Nations Security Council and contrary to the principle of non-intervention clearly set forth in Article 2(4) of the UN Charter.[4]
In the current international climate, in which states must confront shadowy trans-border networks forging alliances with rogue nations, debating the merits of humanitarian intervention seems to lack urgency. The legality of state responses to terrorism, particularly the viability of any ‘pre-emptive’ right to self-defence, and the need for coherent legal doctrine capable of responding adequately to the dangers fermenting in the new international order, seems of much more pressing intellectual concern. But the revival of foreign policy as manifest destiny, and the missionary zeal of those determined to bring democracy and freedom to citizens in need of ‘regime change’, rattles the musty bones of colonialism, as does any discussion of humanitarian intervention. Furthermore, perorations delivering last rites to a United Nations disabled by unbridled ‘hyperpower’ - claims that legality has no application to the use of force[5] - challenge the ability of aging institutions to confront new global realities: a familiar refrain to followers of the humanitarian intervention debate. That issues of international humanitarian law, intervention and terrorism are increasingly linked only underscores the need to comprehend the legal dilemmas involved in the use of force.
The issues raised in the debate over humanitarian intervention - the legal scope of the use of force, the presence of values in foreign policy, the legitimacy of multilateral institutions and the dangers of a new liberal imperialism - remain salient in the new international atmosphere. The fine essays collected in the volume under review[6] are by international lawyers, philosophers and political scientists, and, although the book is organised in distinct sections that treat separate aspects of the intervention dilemma, all the contributors are alive to the wider context of the debate.
Whether seen as right, responsibility or missionary enterprise, the merits of intervention are commonly framed within a wider debate about the putative conflict between human rights and state sovereignty. As Tom Farer notes in his excellent contribution to this collection, humanitarian intervention has ‘acted as the doctrinal advance guard of the whole constellation of forces confronting the sovereign state’s once indisputable claim to be the principal locus of power and loyalty.’[7]
This ‘advance guard’ reflects the substantial body of human rights law that has developed since the inauguration of the UN Charter, the evolution of which, suggest those claiming an emerging practice of intervention, is recalibrating sovereignty towards ethical concerns.[8] To defend the principle of non-intervention, contained in Article 2(4) of the Charter, is to defend, in many cases, the perpetration of tyranny and state terror.[9]
Nevertheless, Article 2(4) remains international law; it is a peremptory norm, one from which no derogation is permitted.[10] The formal equality of states, moreover, is a foundation stone of legal order, a principle that serves to restrict the designs of the powerful. Proponents of intervention have a double task: both justifying the legality of a doctrine of intervention, and exposing the antiphonal pronouncements of governments pursuing illicit motives behind a shroud of humanitarian rhetoric.
But if we take a step back, it is clear that the debate amongst international lawyers is really an argument about the rule of law itself: about its scope in international affairs, the manner in which it should be interpreted, and the goals it should seek in regulating state behaviour. This discussion can be broken down into a number of dualisms, ably documented in J. L. Holzgrefe’s lucid survey of the key theoretical positions.[11]
Generally, and not surprisingly, those arguing for an emerging doctrine (or right) of humanitarian intervention reject the tenets of legal positivism, specifically positivism’s ‘separability thesis’ - that claim that law and morality are not logically linked - and attempt to interweave moral concerns into the legal framework governing the use of force. These scholars generally see the rule of law as the embodiment of an international theory of justice. Rather than a disparate group of states reciprocating behaviour and competing for influence, they look at international law and see a community of citizens with human rights, a world in which, in Kant’s words, a ‘violation of rights in one part of the world is felt everywhere.’[12] Human rights derive from natural law and contain moral baggage; the doctrine of the international equality of states does not. A new normative international order is imminent, and international law must serve as its midwife.
Fernando Tesón attempts to bury positivism in his defence of a ‘liberal’ case for intervention.[13] There is no such thing as a state practice, he argues, which mechanically yields a legal rule. Instead, ‘diplomatic history has to be interpreted in the light of our moral and empirical assumptions about the purposes of international law.’[14] For Tesón and, so he assumes, for the rest of us, an international liberal society of citizens with human rights is the natural condition of humankind: the purpose of international law is the realisation of this condition. If state practice does not reflect any evidence of a developing right to intervene so as to bring about this utopia, well, so much the worse for state practice.
It is unclear whether Tesón is merely developing a moral theory about the scope of intervention, or whether he believes that such a theory should be recognised as international law. He appears to assert both interchangeably. He notes that he is concerned with the ‘moral-political defence of humanitarian intervention’, and asserts that the current state of international law - tainted by positivism - is ‘morally objectionable.’[15] Yet he suggests that his views can be taken as a clarion call for the reform of international law.[16] Since he does not indicate what this reformed vision of international law might look like, one can only assume that it is identical to his moral-political ideas, which aim for the banishment of anarchy and tyranny and the installation of the Kantian ‘kingdom of ends’ on earth.[17]
This amounts to a doctrine of perpetual war for perpetual peace, an attempt to reshape the international order in the mirror of ideological certainty, the moral fervour of the mission equalling the zeal of Woodrow Wilson’s missionary foreign policy. As Rousseau famously noted, sometimes citizens must be forced to be free. But the pages of history abound with instances of governments waging war to edify citizens marooned on unenlightened shores, the loftiness of ethical ambition matched only by imperial appetite. Cicero’s theory of jus gentium sanctioned the expansion of the Roman Empire and the slaughter of the barbarians at the gates; Alberico Gentili infamously justified the Spanish conquest of the new world by the need to correct the behaviour of savages ignorant of natural law; and Hugo Grotius’ stout legitimation of the ‘right to punish’ complemented perfectly the ascent of Dutch colonial ambition.[18] Of course, in more recent times, as Tom Farer points out, ‘it was in the name of liberalism that right-wing ideologues in the Presidential Administration of Ronald Reagan declared democracy to be the most important human right and the operational core of the administration’s human rights policy’, and which legitimated intervention in Nicaragua and, during the presidency of George H. W. Bush, in Panama.[19]
The collapse of the distinction between legality and ethics leaves Tesón stranded in a myopia of moral assertion, unable to locate a critical standpoint from which to expose illegitimacy shrouded by the benign scrim of human rights. The formalities of legal process are dismissed in favour of the urgent teleology of the global liberal Arcadia - a cosmopolis, however, curiously free from political engagement. Believing that intervention is both sanitary and salutary, Tesón’s ‘moral-political’ accounts floats over the top of messy entanglements with politics and power. But reference to state practice indicates that the vanguard of moral commitment has not yet arrived, and that the business of politics cannot be carved out from discussions of foreign policy, however ‘ethical’ they purport to be.
Reference to the way states actually behave dispels any assertion that customary international law recognises a budding right to humanitarian intervention. In the most prominent examples since the founding of the UN, the states involved have not sought to justify their actions by reference to a doctrine or right compelling their actions. Furthermore, powerful states’ frequent indifference to catastrophe necessitates that any assertion of a customary right is based on selective attention to the pages of history.[20] International society has simply not coalesced into some kind of universal consciousness roaming the globe in search of abuses to alleviate.
The most commonly cited examples of intervention for humanitarian purposes are the Indian intervention in the war between Pakistan and Bangladesh in 1971, Vietnam’s invasion of Cambodia in 1978 and 1979, and the Tanzanian removal of Idi Amin from Uganda in 1979. While all these interventions could be said to provide humanitarian relief - the overthrow of criminal and genocidal regimes, the prevention of mass slaughter - it is significant that none of these states sought to justify their actions by reference to a norm of humanitarian intervention.[21] India and Tanzania both claimed self-defence, as did Vietnam, which declared its incursion a legitimate response to the violation of its territory by the Khmer Rouge.
The claims of self-defence put by India and Vietnam, dubious and legally untenable, were met with incredulity and condemnation by the international community, and regarded as a clear breach of UN Charter principles.[22] The response to Tanzania’s intervention was muted, no doubt because other states were relieved that Amin’s reign, both tyrannical and increasingly irredentist, was finally over.[23] No states, however, sought to exculpate Tanzanian actions by reference to a new legal doctrine of intervention. The lack of any opinio juris - any conviction by the states involved that they were acting as required by law or in accordance with a rule - and the response to these acts by the international community, belies any claim that a right of humanitarian intervention can be found in customary international law.[24]
For interventionists, Kosovo appears as some kind of watershed, installing ethics at the fountainhead of a new international legal paradigm.[25] Although not strictly legal, scholars usually refrained from denouncing the illegality of NATO’s actions, speaking instead of its failure to comply with ‘traditional international law,’ increasingly an antiquity overtaken by events and the moral responsiveness of a global community.[26]
The legality of NATO’s intervention was ‘on the thin red line’, according to Bruno Simma, and there is evidence pointing to its legality (or lack of illegality).[27] A resolution calling NATO’s action a threat to international peace and security was decisively defeated.[28] Furthermore, UN Secretary-General Kofi Annan did not explicitly condemn NATO’s action, stressing instead that war criminals and ethnic cleansers would not find refuge in the UN Charter.[29] But little coherent normative doctrine emerges from the Kosovo intervention, and scholars remain divided over what, if any, lessons to draw from the conflict. Only Belgium and the Netherlands were prepared to maintain an argument for the legality of the intervention on humanitarian grounds, as an example of ‘overwhelming humanitarian necessity.’[30] Others were much more ambivalent, and have refrained from articulating a basis for intervention in general terms.[31] Furthermore, following the intervention, the 103 states comprising the G77 explicitly rejected any legal right of humanitarian intervention.[32] Kosovo is thus more likely to be seen as a case of ‘excusable breach’, a political and moral exception to the Charter restraints on the use of force, than as evidence of a new customary rule of law. As Jane Stromseth suggests:
Specific interventions will hold value as precedents for an emerging norm of humanitarian intervention (as opposed to being simply violations or excusable breaches) to the extent that states explain and justify their actions in ways that contribute to broad acceptance of their legality. If states decline to provide such justifications, we may remain in the world of excusable breaches for a longer time rather than moving towards a developing consensus on a new norm regarding humanitarian intervention.[33]
Rather than a crystallisation of state justification into a new customary right, Kosovo provides the catalyst for the widening debate about international legal argument and the potential for changes to the traditional paradigm of international law.[34]
The Kosovo intervention exposes the schism between the divergent views involved in the debate, with ‘legalists’ opposed to ‘realists’ in their interpretation of the international normative structure. Legal realists claim that international law loses its hold on practice if it seeks refuge in the rusted intentions of legal documents and treaties. To remain relevant, law must adapt to practice, and must acknowledge that rules gain their impetus and influence by co-extending with state interests. Realists place the burden on actions, not words; law is a constitutive process, in Michael Reisman’s terms, involving the influence of a number of international actors, not only the UN and the states that comprise it.[35] These international actors, including non-governmental organisations and international civil society, form the substance of international law, and ‘assess, retrospectively or prospectively, the lawfulness of international actions’, in turn shaping the contours and direction of international law.[36] The wide reach of the global human rights movement becomes progressively embedded in international law, putting marrow in its brittle bones, and, as human rights grow in influence, the demands of the principle of non-intervention recede. The wider scope of international legal sources and legitimate influence means that humanitarian intervention marches with international criminal tribunals and universal jurisdiction, to demand a new global ethos of civilian protection and criminal accountability.
However, the defects of realism share the same problems as Tesón’s analysis - in its drive to involve wider normative factors in the formation of law, the distinction between state power and legality is lost. This deliberative framework permits states to justify their actions by reference to ‘humpty dumpty law’: the law is whatever powerful states say it means, neither more nor less.[37] Realists, as Tom Farer points out, must adopt a sanguine view of the potential for abuse,[38] but it is utopian thinking to suggest that any ‘global civil society’ or non-governmental human rights organisations can act as a sufficient leash on state interest.[39] The more interesting discussion of the gap between legality and legitimacy takes place on an interpretative level, between ‘classicists’, those who see the letter of the law as authoritative and its original intention crystalline, and ‘contextualists,’ those for whom ‘the letter killeth, but the spirit giveth life.’[40]
The above quote, from Corinthians, serves as the epitaph to Thomas Franck’s stimulating essay.[41] Although correctly recognising that state practice does not indicate any evidence of a customary right to intervene, Franck contends that the drafting history of the UN charter displays an awareness that, despite the prohibition on intervention in Article 2(4), force can be a permissible response to humanitarian catastrophe. For Franck, following the jurisprudence of Lon Fuller, there is an internal connection between law and morality: ‘the capacity of law to pull towards compliance those to whom it is addressed depends first and foremost on the public perception of its fairness.’[42] While Article 2(4) is an exercise in suspended animation, a ‘freeze frame’ of the intentions of those who drafted the Charter, it is surrounded by an array of provisions in perpetual motion, to be dynamically interpreted according to the horizon of the present. Furthermore, Franck suggests, intentions of the UN founders reveal that they considered each UN organ (Security Council, General Assembly, International Court of Justice) was to be given the power to auto-determine its own competence. Unlike the hierarchical function of judicial review in national legal systems, the International Court of Justice does not have the ultimate authority over doctrinal exegesis or statutory interpretation. Instead, ‘the Charter is what the principal organs do.’[43]
There is thus no authoritative body able to determine conclusively when the Charter restrictions on the use of force may be suspended for humanitarian purposes; each case will depend on the justifications of the political organs of the UN, and on the important role played by international public opinion in determining the legitimacy of the intervention. Strict fidelity to law in the face of humanitarian catastrophe ultimately weakens its moral claim of obedience.[44] The international jury, Franck suggests, is a political one; yet it is
far better to have the global ‘jurying’ function performed by the legitimate political institutions of the international system than either to preclude all institutional recourse to the moral compass or to permit the moral direction to be set unilaterally by any state acting alone in accordance with its own sense of the situational requisites.[45]
So, a synthesis between legitimacy and legality can be approximated through an interpretative process that considers the Charter text as a supple document illuminated by political justification and moral context.[46] But how far does this malleability extend? Franck believes that the international community possesses sufficient objectivity to distinguish a legitimate humanitarian exception from an illegitimate attack, and he adduces compelling evidence of this from state practice.
The Security Council has not remained static in the face of considerable changes to the international system. Conflict does not have the same contours as it did in 1945, the year of the UN’s founding. As the recent report by the International Commission on Intervention and State Sovereignty, The Responsibility to Protect, has noted, ‘the overwhelming majority of today’s armed conflicts are internal, not interstate. Moreover, the proportion of civilians killed in them increased from about one in ten at the start of the 20th century to around nine in ten by its close.’[47]
The Security Council appears more readily to view internal conflicts as threats to international peace and stability, but only the most pious UN partisans could hold that the consequences of this shift have been ameliorative in terms of their humanitarian effects. In Somalia in 1992, where the civil war and famine was deemed to constitute such a threat because of the potential for destabilising refugee flows,[48] the differing logics of war and humanitarian relief pulled in different directions; the UN neither prevented the famine nor achieved stability and peace. Similarly, Security Council resolutions on Rwanda, while noting the ‘massive exodus of refugees to neighbouring countries,’ made it clear that the Council was concerned to address the situation ‘in Rwanda.’[49] Holzgrefe concludes that ‘no impartial observer could conclude that the Security Council thought that it was only the transboundary effects of the Rwandan genocide, rather than the genocide itself, that permitted it to intervene.’[50] But the ‘international community’ progressively disengaged from Rwanda, and, as the UN peacekeeping force was reduced from 2500 to 270 troops, the massacres intensified into a roiling genocide in which 800, 000 people were slaughtered in 100 days.[51]
Even though the Security Council is reluctant to link its concern for human rights with any doctrine permitting the use of force to prevent their abuse, stressing the lack of precedential value in its determinations of threats to international peace, ‘sovereignty’ as inviolability is undergoing change. The Secretary-General himself has acknowledged the winds buffeting the Westphalian state:
State sovereignty, in its most basic sense, is being redefined - not least by the forces of globalisation and international cooperation. States are now widely understood to be instruments at the service of their peoples, and not vice versa. At the same time individual sovereignty - by which I mean the fundamental freedom of each individual, enshrined in the Charter of the UN and subsequent international treaties - has been enhanced by a renewed and spreading consciousness of individual rights. When we read the Charter today, we are more than ever conscious that its aim is to protect individual human beings, not to protect those who abuse them.[52]
To herald such a shift, the International Commission on Intervention and State Sovereignty has stated that sovereignty has changed conceptually, from ‘sovereignty as authority’ to ‘sovereignty as responsibility.’[53] This shift is important: rather than focusing on the existence or extent of a right of intervention, the burden is placed on states to discharge their responsibilities to protect the human rights of their citizens.[54] But nowhere in the report does the Commission squarely face the issue of how its framework can adapt to the political realities and consequences of the use of force.
In their interesting discussions of the political dimensions of humanitarian intervention, Robert Keohane and Michael Ignatieff examine the tenets of traditional sovereignty in the context of ‘failed states’, while Tom Farer examines the Bush administration’s strategy of ‘forward deterrence’ and ‘pre-emptive defence’ and its impact on the nature of sovereignty and the future of intervention.[55]
For Keohane and Ignatieff, sovereignty can no longer be seen as a unitary or absolute concept.[56] States can no longer act as they wish within their borders; those who assert that the principles of sovereignty remain unchanged blind themselves to reality. Both Keohane and Ignatieff direct their discussions to a neglected aspect of the intervention debate: the responsibilities of the international community after intervention has taken place. The states prosecuting the intervention will have to realise, in Keohane’s words, that it is ‘foolhardy to grant unconditional, unitary sovereignty to new states with severe ethnic divisions.’[57] But if it is foolhardy, it is also, sadly, too often a reality, because intervening states have not demonstrated an appetite for nation-building. Genuine commitment to rebuilding societies will require, in most cases, self-interested objectives, and these objectives will obviously influence the decision to intervene in the first place. As Keohane perceptively remarks, ‘far from ‘disinterest’ being a necessary condition for justifiable intervention, it should be regarded as almost a disqualification.’[58]
This statement frankly and admirably confronts the logic of humanitarian intervention and the preconditions for its success. The commitment to peace which impels international action cannot be pursued only militarily; intervention alone does not disinter an organic democratic spirit previously tamped down by tyrannical or ethnic oppression. Instead, intervention has the potential to open a Pandora’s box of anarchy and terrorism. The responsibility to protect, then, must involve the responsibility to follow through.[59] Recognition of this responsibility, however, is also a recognition of a new imperial enterprise. As Ignatieff himself admits, powerful states do not accept that their legitimacy is dependent on their human rights performance, and can defend unilateralist definitions of their own sovereignty while denying to others the principle of non-intervention.[60] Recognising this disparity in international power highlights the neo-colonialist hue of modern intervention, which must be squarely confronted by those sounding the call for intervention.[61]
Tom Farer notes that, in the anxious context of the ‘war on terror’, sovereignty has lost much of its normative force.[62] With the prospect that the United States will move untrammelled across territory to eliminate terrorists and reshape the states harbouring them, the capacity to intervene is essentially boundless.[63] Adam Roberts has explained the new context in the following way:
The current, unprecedented development is that the sphere of influence that now counts is, at last, literally a sphere: the world. If the US can be threatened by terrorists or what it defines as ‘rogue states’ half a world away, then it seeks some right to intervene half a world away. If shocking abuses of citizens by their own government can be shown on TV screens around the world, the demand arises for some right to intervene in distant continents. Previously, ‘spheres of influence’ could be viewed as mere regional exceptions to the general norm of non-intervention. Now there is one sphere in which, because it is global in character, any norm justifying intervention seems to pose a more direct and general challenge to the post-1945 normative framework limiting the resort to force.[64]
Much recent commentary has focused on the urgent need to create new procedures that can legitimate the use of force to prevent humanitarian crisis so as to eliminate the terrorism that anarchy and disenchantment generates.[65] The new doctrines of anticipatory self-defence and forward deterrence, however, rather than creating radically new dangers to the international system, intensify the dangers, already inherent and palpable, in recognising a right of humanitarian intervention and abandoning the norm of non-interference.[66]
There are two overriding risks: first, that the doctrine of unilateral anticipatory self-defence will lower ‘legal and associated psychological and political barriers to the transnational projection of force’ by other states claiming usage of the doctrine, with potentially catastrophic consequences for international relations;[67] second, that states will attempt to justify an invasion ex post facto by claiming the legitimacy of humanitarian motives, a cosmetic for its shortcomings or hidden designs.[68]
Both of these dangers are familiar to followers of the humanitarian intervention debate. The increased threat, and the significant development in terms of international stability, is that the Bush administration’s moral rhetoric is matched by its appetite for the use of military force, and that the restraints of multilateralism tether unjustifiably the self-certainty and immutability of its mission.
Especially since September 11, 2001, there has been increasing attention to the concept of legal ‘necessity’ that can inform discussions of terrorism and human rights abuses. In many respects, necessity serves as a repository of assorted doctrines that can wheel international law into a place at the table. It is a pliable friend, serving both moral and strategic masters. In the context of humanitarian intervention, it provides a barometer of moral concern; when a state of humanitarian emergency is reached, intervention becomes a ‘necessity’ if the conscience of the international community is to remain noble and clear. It is in this context that Thomas Franck suggests that resort to the concept of necessity may provide some answer to the disabling ‘conundrum’ in which ‘good law, strictly enforced, conduces to a result which opens an excessive chasm between law and the common moral sense.’[69] In its strategic guise, necessity is sufficiently amorphous to respond to the asymmetric threats posed by terrorism, unshackling states from the self-defence mechanisms of the UN Charter, and massaging pre-emption into a legitimate legal category.[70]
It is no wonder that scholars have treated the concept of necessity with some trepidation. Sir Gerald Fitzmaurice described it as a ‘rather back-handed doctrine, since it is founded on the maxim that necessity knows no law, but one to which international law does, nevertheless, within pretty stringent limits, afford recognition.’[71] In the context of the jus ad bellum, ‘necessity’ arises as an aggressive manifestation or offshoot from the law of state responsibility.[72] In 1997, in the Gabcíkovo-Nagymaros Project case, the International Court of Justice held that ‘the state of necessity is a ground recognised by customary international law for precluding the wrongfulness of an act not in conformity with an international obligation.’[73] Before hearings at the International Court of Justice in 1999, this reasoning was adopted in argument to justify intervention in Kosovo. Responding to the Federal Republic of Yugoslavia’s claims that the NATO bombing was against international law, Belgium claimed that NATO action was justifiable under the principle ‘of necessity...which justifies the violation of a binding rule in order to safeguard, in the face of grave and imminent peril, values which are higher than those protected by the rule which has been breached.’[74] The Netherlands argued, in response to the same claim, that ‘the terrible, unceasing human tragedy in Kosovo’ left it ‘no other choice.’[75]
Some scholars have sought to find in these pronouncements the embryonic elements of a new customary rule of opinio necessitatis. Antonio Cassese, for example, has explored the idea that the psychological element of opinio juris is not required if a state believes that it is acting out of political, economic or moral necessity, and, in the case of Kosovo, the evidence of such opinio necessitatis was ‘strong and widespread.’[76]
Cassese concedes, however, that such a customary rule has not yet emerged, noting that the element of usus was ‘clearly lacking.’[77] It seems that the concept of necessitatis is unsuited to the very idea of customary international law, which places a strong emphasis on consensus and commonly shared understandings of what is required by law. Necessity, by definition, is inimical to this development, involving as it does the subjective assertion of a unilateral and extra-legal imperative.[78] As a political response to a deemed emergency, the concept legitimates the suspension of the existing legal order and the embedded rules that constitute it; it is therefore curious to claim that a political exemption from legal compliance contributes to the formation of a new legal rule.[79] Providing exceptions for states to operate outside the UN Charter and violate the strictures against the use of force is not a compelling way to strengthen the rule of law in international affairs, or to bridge the gap between legitimacy and legality.[80]
The fine contributions to this important volume demonstrate, in their different ways, that humanitarian intervention remains a political act, not a legal doctrine, however much the partisans of intervention pronounce its legal merits.[81] Its sanitisation as a legal rule - whether involving arid and duplicitous reinterpretations of the UN Charter, subjective assertions of a right to intervention based on a convergence of international morality, or extra-legal doctrine masquerading as a customary rule - conceals the political considerations that colour any decision to wage war. The tendency to employ international law as an instrument for political whim and moral assertion should be resisted, especially when war is framed in humanitarian rhetoric, as a noble emancipation of the powerless undertaken for the sake of humanity.
[*] Articled Clerk, Mallesons Stephen Jaques, Melbourne.
[1] Cited in Samantha Power, ‘A Problem From Hell’: America and the Age of Genocide (2003) 257-258.
[2] For a survey of the NATO intervention in Kosovo, see Bruno Simma, ‘NATO, the UN and the Use of Force: Legal Aspects’ (1999) 10 European Journal of International Law 1.
[3] Geoffrey Robertson, Crimes Against Humanity: The Struggle for Global Justice (1999) 72-73.
[4] UN Charter, Article 2(4).
[5] See Michael J Glennon, ‘Why the Security Council Failed’, (2003) 82 (3) Foreign Affairs <http://www.foreignaffairs.org/20030501faessay11217/michael-j-glennon/why-the-security-council-failed.html> (5 April 2004) (copy on file with author); Michael J Glennon, Limits of Law, Prerogatives of Power: Interventionism After Kosovo (2001).
[6] J L Holzgrefe and Robert O Keohane (eds), Humanitarian Intervention: Ethical, Legal, and Political Dilemmas (2003).
[7] Tom Farer, ‘Humanitarian Intervention before and after 9/11: legality and legitimacy,’ in J L Holzgrefe and Robert O Keohane, above n 6, 53, 55.
[8] See Fernando R Tesón, A Philosophy of International Law (1998) Chapter 2.
[9] Michael Ignatieff, ‘Why are we in Iraq? (And Liberia? And Afghanistan?)’, The New York Times Magazine (New York, USA), September 7 2003, 38.
[10] The International Court of Justice in the Corfu Channel Case held that ‘the Court can only regard the alleged right of intervention as a policy of force, such as has, in the past, given rise to the most serious abuses and as such cannot, whatever be the present defects in international organisation, find a place in international law,’ Corfu Channel (UK v Albania) (Merits) [1949] ICJ Reports 4, 35, cited in Michael Byers and Simon Chesterman, ‘Changing the rules about rules? Unilaterial humanitarian intervention and the future of international law,’ in Holzgrefe and Keohane, above n 6, 177, 183.
[11] J L Holzgrefe, ‘The humanitarian intervention debate’ in Holzgrefe and Keohane, above n 6, 15.
[12] Immanuel Kant, ‘Perpetual Peace: A Philosophical Sketch’ in H Reiss (ed), Kant’s Political Writings (1970) 108.
[13] Fernando Tesón, ‘The liberal case for humanitarian intervention’ in Holzgrefe and Keohane, above n 6, 93.
[14] Ibid 109.
[15] Ibid 110-111.
[16] Allen Buchanan, in his interesting chapter, ‘Reforming the international law of humanitarian intervention’ in Holzgrefe and Keohane, above n 6, 130 provides a much more lucid and explicit account of the need to engage in ‘illegal reform action’ in order to bring international law into alignment with moral sentiment.
[17] For a cogent critique of this view, see John C Hulsman, David Polansky and Rachel Prager, ‘The Rebirth of Realism: the Kantian Trap - Utopianism in International Affairs’, (2002) 1 (10) The National Interest, available at <http://www.inthenationalinterest.com/Articles/Vol1Issue10Hulsman.html> (4 March 2004) (copy on file with author).
[18] See Richard Tuck, The Rights of War and Peace (1997); Tom Frame, Living by the Sword? The Ethics of Armed Intervention (2004) Chapter 2.
[21] Francis Kofi Abiew, however, adduces the examples of India, Vietnam and Tanzania to suggest that ‘state practice...demonstrate[s] that states believe the right of unilateral humanitarian intervention is available to them as an option grounded in either the Charter or customary international law.’ Francis Kofi Abiew, The Evolution of the Doctrine and Practice of Humanitarian Intervention (1999) 133.
[22] See Thomas Franck, ‘Interpretation and change in the law of humanitarian intervention,’ in Holzgrefe and Keohane, above n 6, 216-219.
[23] Franck suggests that in the case of Tanzania, ‘there was far less reason to suspect ulterior motives or strategic designs behind the invasion, which was greeted in the UN system with unstated but unmistakable satisfaction...Tanzanian diplomats, nevertheless, studiously refrained, at least on the record, from claiming to be acting on behalf of human rights lest their action arouse fears of setting a precedent legitimating a general right of states to engage in humanitarian intervention.’ Ibid 219.
[24] Abiew suggests that the ‘silent acquiescence’ of states, their failure to condemn decisively the actions of the states involved, amounts to tacit legitimation of the emerging doctrine. See Abiew, above n 21, 135. This fails to take into account the lack of any opinio juris on the part of the intervening states; and as Peter Hilpold notes, ‘the fact that both Vietnam and Tanzania have tried to justify their actions by allegations that do not withstand an even rudimentary scrutiny while the humanitarian argument would have been at hand speaks volumes for the legal quality both states have attributed to this concept’. Peter Hilpold, ‘Humanitarian Intervention: Is There a Need for a Legal Reappraisal?’ (2001) 12 European Journal of International Law 437, 444-445.
[25] See Martti Koskenniemi, ‘‘The Lady Doth Protest Too Much’: Kosovo, and the Turn to Ethics in International Law’ (2002) 65(2) The Modern Law Review 159.
[26] See Byers and Chesterman, above n 10, 177.
[27] See Bruno Simma, ‘NATO, the UN and the Use of Force: Legal Aspects,’ (1999) 10 European Journal of International Law 1, 6.
[28] See Jane Stromseth, ‘Rethinking humanitarian intervention: the case for incremental change,’ Holzgrefe and Keohane, above n 6, 232, 238.
[29] Ibid 238, 242-243, 261-262.
[30] Ibid 236-237.
[31] Ibid.
[32] See Declaration of the Group of 77, South Summit, Havana, Cuba, 10-14 April 2000, <http://www.g77.org/Docs/Declaration_G77Summit.htm> : ‘We reject the so-called ‘right’ of humanitarian intervention, which has no legal basis in the United Nations Charter or in the general principles of international law.’ Cited in Byers and Chesterman, above n 10, 184 n25.
[33] Stromseth, above n 28, 254.
[34] Byers and Chesterman, above n 10, 178.
[35] W Michael Reisman, ‘Unilateral Action and the Transformation of the World Constitutive Process: the Special Problem of Humanitarian Intervention’ (2000) 11 European Journal of International Law 1, cited in Farer, above n 7, 66-67.
[36] Reisman, above n 35, 13, cited in Farer, above n 7, 67.
[37] The reference is to Lord Atkin’s famous judgment in Liversidge v Anderson [1942] AC 207, 245:
I know of only one authority which might justify the suggested method of construction. “‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean, neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, ‘which is to be master - that’s all.”...’ After all this long discussion the question is whether the words ‘If a man has’ can mean ‘If a man thinks he has.’ I am of the opinion that they cannot, and that the case should be decided accordingly.
[39] Reisman, above n 35, 16, cited in Farer, above n 7, 77.
[40] St Paul’s Epistles, 2 Corinthians 3.6, cited in Franck, above n22, 204.
[41] Ibid.
[42] Ibid 211.
[43] Ibid 205-206.
[44] A claim also made by Kofi Annan, addressing the General Assembly with reference to events in Rwanda in 1994: ‘If, in those dark days and hours leading up to the genocide, a coalition of states had been prepared to act in defence of the Tutsi population, but did not receive prompt Council authorisation, should such a coalition have stood aside and allowed the horror to unfold?’, Report of the Secretary- General, 54 GAOR 4th plen. mtg., 20 September 1999, A/54/PV.4.
[46] See Holzgrefe, above n 11, 39-43 for a range of tortuous ways in which contextualists and legal realists have attempted to interpret the Charter to permit intervention; by claiming that Article 2(4) does not forbid intervention if the intervening state does not conquer; by claiming that the drafting history demonstrates that the Charter intended to provide wide latitude to correct human rights abuses; and by claiming that Article 39 permits the use of force to respond to ‘any threat to the peace, breach of the peace or act of aggression’, meaning any internal conflict, because the words ‘international peace’ are not used. Interventionists have also made reference to the aspirational human rights values contained in Article 1(3) as a basis for intervention. However, all these arguments overlook the plain meaning of the Charter text in Article 1, which lists as the aims of the United Nations the ‘peaceful resolution of disputes.
[47] The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (2001) 13. Available at <http://www.iciss.gc.ca> .
[48] SC Res 794, UN SCOR, 2982nd mtg., UN Doc S/Res/794 (1992), cited in Holzgrefe, above n 11, 42.
[49] Holzgrefe, above n 11, 42.
[50] Ibid.
[51] See Bill Berkeley, ‘Road to a Genocide,’ in Nicolaus Mills and Kira Brunner (eds), The New Killing Fields: Massacre and the Politics of Intervention (2002) 103; Samantha Power, above n 1, chapter 10; Linda Melvern, A People Betrayed: The Role of the West in Rwanda’s Genocide (2000).
[52] Kofi Annan, ‘Two Concepts of Sovereignty’, The Economist (London, UK) 19 Sept 1999, cited in Ivo H Daalder, ‘The Use of Force in a Changing World - US and European Perspectives,’ (2003) 16 Leiden Journal of International Law 171, 178
[53] The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty, above n 47, 8.
[54] As The Responsibility to Protect notes, ‘Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect.’ (Ibid xi)
[55] Robert Keohane, ‘Political authority after intervention: gradations in sovereignty,’ in Holzgrefe and Keohane, above n 6, 275; Michael Ignatieff, ‘State failure and nation-building’ in Holzgrefe and Robert Keohane, above n 6, 299; Farer, above n 7, 53.
[56] Keohane, above n 55, 286: ‘sovereignty is a variable, not a constant.’
[57] Ibid 287.
[58] Ibid 291.
[59] Ignatieff, ‘State failure and nation-building,’ above n 55, 299, 320. For a fuller discussion, see Michael Ignatieff, Empire Lite: Nation Building in Bosnia, Kosovo and Afghanistan (2003).
[60] Michael Ignatieff, ‘Intervention and state failure’ in Nicolaus Maus and Kira Brunner (eds), The New Killing Fields: Massacre and the Politics of Intervention (2003) 299, 232.
[61] In David Rieff’s words, ‘if we are going to intervene, let us understand the project that we must engage in, which is not just humanitarian intervention, nor even nation-building, but the de facto recolonisation of some of the most unfortunate parts of the world.’ David Rieff, ‘Beware Wars of Altruism’, The Wall Street Journal (New York, USA), July 10 2003, A10.
[62] Farer, above n 7, 80.
[63] For an interesting discussion of the Bush doctrine of pre-emption, see Ivo H Daalder and James M Lindsay, America Unbound: the Bush Revolution in Foreign Policy (2003).
[64] Adam Roberts, ‘Law and the Use of Force After Iraq’ (2003) 45(2) Survival 31, 34; Farer, above n 7, 82: ‘The Bush Doctrine, to the extent it implies unilateral action, simply cannot be contained within the UN Charter norms which have served as the framework of international relations for the past half-century.’
[65] See Christopher Clarke Posteraro, ‘Intervention in Iraq: Towards a Doctrine of Anticipatory Counter-terrorism, Counter-proliferation Intervention’ (2002) 15 Florida Journal of International Law 151, 199: ‘Confronted with the convergence of shadowy, transnational terror networks and rogue states that disregard international law, the world cannot rely on ineffective UN intervention doctrines. The cost of continued inadequacy could be devastating.’
[66] Indeed, much of the argument propounding a new framework for the use of force is parasitic on the conceptual tools used in the humanitarian intervention debate. Posteraro builds on the International Commission on Intervention and State Sovereignty concept of ‘sovereignty as responsibility’ to suggest an argument legitimising anticipatory self-defence. Sovereignty as responsibility, he suggests, implies that states have a responsibility to protect their own citizens from states that threaten them: ‘International law has, for too long, regarded self-defence as a right of sovereigns rather than a responsibility. But, sovereignty carries with it a responsibility to protect citizens from preventable harm from both within and without state borders. Weapons of mass destruction pose a threat of complete destruction equal to or greater than even the cataclysmic humanitarian crises of the 1990s. The responsibility of states to prevent mass murder of their citizens is just as imperative against foreign enemies as from homegrown threats.’ Posteraro, above n 65, 201.
[68] See Kenneth Roth, ‘War in Iraq: Not a Humanitarian Intervention’, Human Rights Watch (January 2004) <http://www.hrw.org/wr2k4/3.htm> (22 April 2004) (copy on file with author).
[70] See John-Alex Romano, ‘Combating Terrorism and Weapons of Mass Destruction: Reviving the Doctrine of a State of Necessity’ (1999) 87 Georgetown Law Journal 1023.
[71] Geoffrey Marston, ‘Armed Intervention in the 1956 Suez Canal Crisis: The Legal Advice Tendered to the British Government,’ (1988) 37 International & Comparative Law Quarterly 773, 785, cited in Andreas Laursen, ‘The Use of Force and (the State of) Necessity’ (2004) 37 Vanderbilt Journal of Transnational Law 485, 498.
[72] Antonio Cassese, ‘Ex iniuria ius oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?’ (1999) 10 European Journal of International Law 23, 26: ‘The idea is emerging in the international community that large-scale and systematic atrocities may give rise to an aggravated form of state responsibility, to which other states or international organisations may be entitled to respond by resorting to countermeasures other than those contemplated for delictual responsibility.’ See generally Laursen, above n 71.
[73] Case Concerning the Gabcikovo-Nagyamros Project (Hungary/Slovakia) (1998) 37 ILM 167.
[74] Pleadings of Belgium, Legality of the Use of Force Case (Provisional Measures), (ICJ, 1999) 10 May 1999, 7. Available at <http://www.icj-cij.org> (24 April 2004). This is not the only case in which a State has claimed that it was impelled to intervene due to a state of necessity. Interestingly, Belgium also pleaded the necessity excuse in 1960, when it deployed troops to the Congo. This matter was discussed in the Security Council, but not in terms of whether the necessity excuse was legitimate. See UN SCOR, Fifteenth Year, 873rd meeting, 13/14 July 1960, paras 144, 182, 192; 877th meeting, 20/21 July 1960, paras 31 ff, 142; 879th meeting, 21/22 July 1960, paras 80ff, 118, 151.
[75] Statement made on 25 March 1999 in the Dutch Parliament by the Foreign Minister, cited in Antonio Cassese, ‘A Follow-Up: Forcible Humanitarian Countermeasures and Opinio Necessitatis’ (1999) 10 European Journal of International Law 791, 797.
[76] Ibid 798.
[77] Ibid 796.
[78] See Hilpold, above n 24, 461-462.
[79] Philip Allott, ‘State Responsibility and the Unmaking of International Law’ (1988) 29 Harvard International Law Journal 1, 21 n1, claims that the concept of necessity is ‘enough to destroy any possibility of an international rule of law.’ Cited in Laursen, above n 71, 500.
[80] Byers and Chesterman, above n 10, 197.
[81] Koskenniemi, above n 25, 173. See also Michael Walzer, ‘Arguing for Humanitarian Intervention’ in Maus and Brunner, above n 60, 32.
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