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Legitimacy and Practice of Humanitarian Intervention

A Pluralist Analysis of Kuperman’s claim Evaluating the Legitimacy and Practice of Humanitarian Intervention.

Salwa Mansuri. Resident Intern, Princeton Foundation for Peace & Learning; and Graduate Candidate at the London School of Economics. smansuri@pfplus.org


Introduction

Even though international human rights law entrusts sovereign states as the primary duty-bearers of right-bearing citizens (Besson, 2015), states have turned the “machinery of the state” (Wheeler, 2002, p.7) against their own civilians. Coined as genocide by the United Nations Office on Genocide Prevention, such “deliberate killings of members of a group” is a violation of international law under Article II of the Genocide Convention (United Nations, 2022). Therefore, it triggers “residual responsibility” of the international community, (Stahn, 2007, p.104) or the Responsibility to Protect, as an emerging norm (Kuperman, 2008)

The emerging norm of the Responsibility to Protect is highly contested in international law scholarship. Several scholars (Massingham, 2000; Nardin 2002; Hjorth 2015; Harbour, 2004; Aloyo, 2015) argue in favor of the norm as a moral responsibility of the international community. Other scholars (Atacks, 2002; Smith, 1998; Sneh, 2003 & Broussard et al, 2019) morally object the norm as it violates international order. Most literature focuses on the moral examinations and underpinnings of the norm, rather than, as Vincent (1993) highlights, the “actual practice of states” (see Welsh, 2011, p.1199). Drawing from the literature review, this essay employs a pluralist theory as it reflects the “realities of international relations rather than a solidarist or Grotion Conception” (Wheeler, 1992, p.468). This essay argues that despite ratification of internationally recognized treaties, there is no universal standard of human rights and thus, determining a humanitarian crisis as “supreme humanitarian emergency” (Bellamy, 2003, p.3) is a challenge. As such, the emerging norm raises moral hazard & the pursuit of non-humanitarian goals which “exacerbates violent conflicts and causes precisely the tragedies it intended to avert” (Kuperman, 2008, p.50). This analysis is integral because it pushes for the need to contextualise the realization, implementation and monitoring of human rights for the most marginalised worldwide.
Pluralists believe that the international community does not have a set standard for human rights and ethics, hence, notions of human rights are culturally relative (Bellamy, 2003, p.4). What constitutes a “supreme humanitarian intervention” is debatable and states are likely to intervene unilaterally on their own “moral principles” (Wheeler, 2002, p.9).

The Lack of Consensus

The lack of consensus is evident empirically. For example, the United Nations Security Council failed to halt hostilities in Idlib, Syria, largely held by rebel forces (United Nations, 2019) on the lack of agreement on whether a humanitarian ceasefire must be implemented as permanent members (Russia and China) blocked the resolution by casting a veto (United Nations, 2022). The delegation from the Equatorial Guinea, encapsulates the pluralist view of humanitarian intervention; its leader conveyed his “frustration over the lack of consensus on such a vital issue” (United Nations, 2019). His views reflect Van Schaack (2019) who noted that “two camps occupied very little common ground” (p.55). As Hedley Bull (1985) highlights that “consensus uniting states in the matter of human rights was a very slender one” (p.193). Bull’s views are reflected in the above example where the lack of consensus on human rights and ethics led Russia & China to “act on their own moral principles” (Wheeler, 2002, p.9). Had there been consensus on human rights, such stark differences would be reconciled.

Supreme Humanitarian Emergency & Imperfect Insurance

The lack of consensus on the standard of human rights invariably means that consensus on “supreme humanitarian emergency is unlikely” as well. On the 1st of March 2017, Russia and China blocked a draft resolution that proposed sanctions against Assad’s Syrian Government for the alleged use of chemical weapons by stating that such interventions were “totally inappropriate” (Guardian, 2017). Ayoob (2002) argues that the emerging norm is “the contemporary revival of imperialism is particularly tragic” (see Welsh, 2006. p.15). Such imperial revival is evident in the inherent power of largely Western permanent members of UN security council (UNSC) to determine whether a crisis at hand constitutes as a humanitarian emergency. The empirical example clearly reflects Roberts (1993) who expresses concern that the UNSC is unable to “apply uniform criteria to instances of humanitarian crisis” (Welsh, 2006, p.68).




Certain interventions are “norm-entrepreneurs” (Stefan, 2021, p.209) while others are exceptions. For example, interventions in Southern and Northern Iraq during the Gulf War of 1990 were “norm” creating because of the ambiguous nature of Resolution 688[1] followed by Resolution 1441 that first authorized the use of force (Roberts 1993). Upon close analysis, the intervention in the 1991 Gulf War significantly raised the moral hazard (Bellamy and Williams, 2011) of growing civil conflict in Rwanda which took place in 1994, closely after the 1991 Gulf War. Such an emerging norm, as Kuperman (2008) highlights, act as an “imperfect insurance policy” (p.49) for vulnerable populations. For example, the rebel, Tutsi minority groups, considered genocidal retaliation “as an acceptable cost of achieving their goal of attaining power in Rwanda” (Kuperman, 2004, p.63). However, the cost was the life of 800,000 Tutsis within 100 days (BBC, 2019). Such inconsistencies arise due to the lack of common consensus and expose selectivity in intervention that further raise moral hazard.

Selectivity in Intervention

Several reports highlight the discrepancies and selectivity in interventions (Carroll, 2004). At some instances, despite robust evidence, a government claimed that “they did not fully appreciate the scale and speed of the killings” (ibid) and did not intervene. However, at other, the same government intervened swiftly (Girard, 2002), (Longhurst, 2021), (Carroll, 2004). Inferring from Kuperman (2008), it is likely that such inconsistent intervention and justifications thereof raised the moral hazard for Libya, Syria and Afghanistan in 2010s. As Booth (1999) highlights, “strong states respond selectively to humanitarian crises” (see Bellamy, 2003, p.3) and such selectivity encourages pursuit of non-humanitarian objectives that exacerbate conflict.

Humanitarian Incentives-Outcomes Debate


The lack of consensus on the definition of humanitarianism or human rights standards encourages pursuit of non-humanitarian motives (Pattison, 2011). States may intervene to fulfil political goals rather than for humanitarian purposes which cause human tragedies. As Fixdal & Smith (1998, (p.17) argue that the use of force produces positive outcomes, but “it always produces harmful ones as well”
Wholly or solely humanitarian?

The motives-outcomes debate ignores temporality. While scholars such as Verwey (1992) consider intervention humanitarian if used “for the sole purpose of preventing or putting a halt to a serious violation of human rights” (see Bellamy, 2007, p.222) others such as Parekh (1997) define intervention as “wholly or primarily guided by the sentiment of humanity” (see Wheeler 2002, p.10). Other definitions involve humanitarian intervention “aimed at preventing or ending widespread and grave violations of the fundamental human rights of individuals” (Ikenberry, Holzgrefe and Keohane, 2003, p.130). As evident above, there remains considerable debate about the nature, nuances, and extent of humanitarianism in the intervention. For example, even though NATO’s intervention in Libya is deemed successful as Gaddafi’s dictatorial regime was replaced by a transnational council to avert human tragedies, whether it was primarily humanitarian is questionable (Kuperman 2013). As Kuperman (2013) highlights, the goal of NATO was to overthrow the Gaddafi regime rather than to protect human rights. Infact, the New York Times reported that “Western powers were now attacking the Libyan Army” outside the UN R2P mandate (Kuperman 2013, p.114). Was Libya wholly humanitarian or solely humanitarian? Who decides? Even though Wheeler (2002)’s lays threshold conditions to determine whether an intervention qualifies as humanitarian, threshold conditions lack clarity and consistency.

Threshold Conditions

Wheeler (2002) attempts to resolve the motives-outcomes debate through “threshold conditions” (p.11) to qualify an intervention as humanitarian. One condition is whether the intervening state believes that intervention “produced humanitarian outcomes” (Wheeler, 2002, p.11). Teson argues that even if an intervention is motivated by non-humanitarian means, it must be considered humanitarians if “motives do not undermine humanitarian outcome” (see Wheeler, 2002, p.13). This means that an intervening state could report civilian death count significantly lower than usual to highlight that the intervention was humanitarian. For example, 15 years after the 2003 War on Terror in Iraq, the “civilian death toll remains murky” (Bump, 2019). As evident, intervening states themselves are unable to guarantee whether the intervention is likely to produce humanitarian outcomes and such emerging norms have proven to attract selective attention to achieve non-humanitarian goals. By the time an intervention is determined as humanitarian or not, civilian causalities, that intervention intended to avert, have already taken place. Therefore, the lack of consensus on “humanitarian” invariably serves as a means for states to pursue their non-humanitarian goals in the name of humanitarianism and cause human tragedies.
Addressing Solidarist Critiques

Solidarists argue that there is basic consensus on the standard of human rights and the meaning of “supreme humanitarian intervention” and thus extreme human rights violations must allow for an exception to the non-intervention rule (Arend and Beck, 1994). They question whether states that violate fundamental human rights should enjoy sovereign prerogatives (Wheeler, 2002). For example, Vincent (1993, p.126) highlights, “there is a floor of basic decency expected of states if they were to enjoy sovereign prerogatives” and Brown (2002, p.125) further builds on Vincent, “diversity entails that states have the right to mistreat their populations, then it is difficult to see why such diversity is to be valued”. Solidarists highlight that such standards or a “floor of basic decency” is rarely consensual and in practice, such standards are highly contested. Afterall, what qualifies as basic decency and who determines whether such decency is basic? For example, Donald Trump openly called for the “total and complete shutdown of Muslims entering the United States” (Johnson, 2015). Can such discriminatory remarks against religious minority populations be considered basic decency? Walzer furthers this argument to highlight that states are responsible towards “the values of individual life and communal liberty within their borders” (see Wheeler, 2002, p.6). The above examples suggest that there is no universal standard for human rights and thus no universal standards for “basic decency” and therefore determining the standards of humanitarian intervention is a challenge.

Mutual Exclusivity of International Order and Justice

The second critique that solidarists make is the redundancy of international order if it violates fundamental human rights and is unable to protect dignity of the members that are part of it (Wheeler, 2002). Wheeler (2002) argues that humanitarian intervention “exposes the conflict between order and justice at its starkest” (p.9). Bull (1985) furthers the solidarist view and does not endorse priority of “order over justice” (see Wheeler, 2002, p.9). Instead he highlights that the “question of order over justice must be concerned by the parties concerned” (Wheeler, 2002, p.7). His arguments make international order and justice seem mutually exclusive rather than mutually enforcing.

In 2001, post 9/11, the US launched a series of humanitarian interventions: 'Operation Enduring Freedom' (2001–14) and 'Operation Freedom's Sentinel'. These were used by groups such as the Taliban to gain popular support and seize Afghanistan’s major cities (Connah, 2020). After the Taliban overthrew Afghan’s sovereign government, it has not been recognized as one. On the 13th of August 2021, twelve states decided against officially recognizing the Taliban government (Economic Times, 2021). Even though the Taliban declared Afghanistan as a “free and sovereign” nation and “vowed to maintain good relations with the US and the rest of the world” (Al-Jazeera, 2021) it is not sovereign unless recognized by other members. Martin Wight’s view on the reciprocal recognition of state sovereignty highlights that “sovereignty is not a physical object that we can touch, feel, or measure” (see Jackson, 1990). He builds on Manning to highlight that “sovereignty only exists if by virtue of the intersubjective meanings that conjure it into existence” (ibid). Non-state actor governance severely disrupts international order and causes furthers human rights violations.

The role of non-state actors governance

Bull (1985) ignores that while non-state actors are bound by international humanitarian law, they are beyond the state-based system of international human rights law where state actors have legally bound themselves to treaties. As governing bodies, they significantly disrupt international order. (Mills, 2014). D’Aspremont, Nollkaemper, Plakokefalos and Ryngaert (2015) highlight that armed opposition groups and non-state actors that violate human rights do not constitute violation of international human rights law “due to the claimed duty-bearer’s lack of legal personality” (p.52). This notion is further endorsed by Alston (2011) who states that within the conventional human rights system, “non-state actors are beyond the direct reach of beyond the direct reach of international human rights law”. How then can justice be enforced if rebel groups and non-state actors overthrow sovereign governments? The empirical example below suggests that standardizing justice, one that does not have universal consensus, over order only leads to further conflict and human tragedies and therefore humanitarian intervention must not be implemented.

Following this, Dinushika Dissanayake, Amnesty International’s Deputy Director for South Asia have stated that “in just over five weeks since assuming control of Afghanistan, the Taliban have clearly demonstrated that they are not serious about protecting or respecting human rights” (Amnesty International, 2021). As evident, international order is mutually reinforcing rather than mutually exclusive. Hopkinson argues that “fundamental human rights know no national boundaries and therefore should no longer be disregarded on account of state sovereignty” (see Ludlow, 1999, p.10). However, how does Hopkinson propose justice when the governing bodies themselves are non-state actors beyond the traditional reach of the state-based system of international human rights law? Do non-state in government roles have the duty towards agreements they did not bind themselves to? Are they accountable in a state-based international law system?

Pluralism-Solidarist Debate in Practice: Violating autonomy versus sovereignty
The Pluralist-Solidarist debate is considered “logocentric” or “binary oppositions” such as human rights or state sovereignty, intervention or non-intervention (Bellamy, 2003, p.328). However, the pluralist-solidarist views “are not so much drawn as set in stone” (Bellamy, 2003, p.8). States frequently apply solidarism in one situation, and pluralist arguments in other. (Bellamy 2003, p.7).

Dunne, Hill and Hanson (2001) argue that the core of the pluralist-solidarist debate is “consent”, whether the host state has agreed to allow foreign military into sovereign borders. Such debates highlight the significant focus on coercive military strategies rather than as Krasner (1999) highlights “non-military aspects of intervention that have been overlooked because they do not challenge the sovereignty principle” (see Bellamy, 2003, p.334). As Jackson (1990) highlights that there is a “qualitative difference between armed humanitarian intervention and non-violent types of interference that curtail a state’s autonomy but not its sovereignty” (see Bellamy, 2003, p.332). Based on Jackson & Krasner, the subsequent policy recommendation is proposed.

The policy recommendation is to monitor early warning signs of genocide. The ten stages of genocide start with classification where minority populations are segregated (Burleson and Giordano, 2016). As the United Nations Office on Genocide Prevention and the Responsibility to Protect states, “these crimes do not happen overnight. They are processes; they require planning and preparation” (United Nations, 2022). Visits by special reporters from the United Nations Office on Genocide Prevention are able to detect early warning signs and enforce strategies earlier than the preparation or persecution stage with peace processes implemented earlier than when violence would already escalate. Most preventive strategies are implemented when the conflict is escalating. Such preventing monitoring strategies would make preventing strategies such as asset freezes, trade restrictions and sanctions which would significantly reduce the economic ability to conduct genocide (Krain, 2016) timely.

Conclusion

It is evident that the international community does not have a well-defined standard of human rights. Hence determining a “supreme humanitarian emergency” is a challenge. This lack of consensus leads to moral hazard and selectivity in intervention for non-humanitarian purposes exacerbating conflict and causing human tragedies. Beyond theory, it uses historic and contemporary examples to highlight the temporal robustness of the argument. The paper draws from statements from UN delegations to opinions from directors of international non-governmental organizations such as Amnesty International to support the argument. The essay demonstrates independent thought by proposing a compelling yet brief policy solution through a common nexus with solidarism to employ humanitarian intervention, where it upholds and respects human rights whilst exercise the feasibility of pluralism in practice. Solidarists often urge the “international society to do something when states create their own humanitarian disasters” (Bellamy, 2003, p.3). This essay proves that simply the need to do something exacerbates conflicts and causes human tragedies.

Disclaimer: This blog is a product of author’s own research. Author declares no conflict of interest. No funding was provided by any agency to the author for this research and publication.

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