This column by Jean-Marc Coicaud is part of Global Policy’s e-book, ‘Lessons from Intervention in the 21st Century: Legality, Legitimacy and Feasibility', edited by David Held and Kyle McNally. Contributions from academics and practitioners will be serialised on Global Policy until the e-book’s release in the summer of 2014. Find out more here or join the debate on Twitter #GPintervention.
Following the 2004 UN Report of the High-Level Panel on Threats, Challenges and Change, I will assume here that international humanitarian interventions can be, in the right circumstances, a recommended approach to stop massive violations of human rights and humanitarian crises. Against this background I argue that the legitimacy of international humanitarian interventions has gained much support in the past twenty years or so. But I also argue that this legitimacy is challenged by structural factors amounting to competitive forms of legitimacy that tend to prevail at the international level. Hence I conclude that international humanitarian intervention, as a true obligation of action that the international community owes to strangers beyond borders - who are victims of massive human rights violations - is unlikely to become an absolute imperative in the foreseeable future.
The rise of the legitimacy of international humanitarian interventions
There is no doubt that international humanitarian interventions have become more of a possibility since the end of the Cold War. The idea of international intervention, including the use of force, in the name of the protection of human rights has emerged gradually as an option for the international community. This is illustrated by the fact that the issue has become much debated within and among countries: in the 1990s, especially in the context of the humanitarian crises in Somalia, the Balkans (Bosnia and Kosovo) and Africa (Rwanda in particular); and in the 2000s, particularly in Libya in 2011 and, then, Syria. There would be no need to passionately argue for or against the idea of international humanitarian intervention if it was not now part of the policy portfolio of the international community.
In this perspective, the acquired sense of legitimacy of international humanitarian intervention has been strong enough to challenge the fact that international law did not make room for it. For example, Chapter I (Article 2) and Chapter VII (Article 51) of the United Nations Charter recognizes the sovereign equality for all member states as a key principle of legality and, as such, sanctions the use of force only in the cases of self-defense and threats to international peace and security. This points to the fact that, in the last two decades, rather than the lack of legality of international humanitarian intervention, it is the argument of its difficult feasibility, or effectiveness, in terms of modalities and outcomes, that has been frequently used to temper the recourse to it.
But this is not to say that the legitimacy of international humanitarian intervention is now fully accepted and solidly anchored in the norms and practice of international life. For another lesson of the past twenty years is that it benefits, at best, from only a half-hearted commitment, even on the part of the member states who in principle support it. This is the case because the legitimacy of the idea of international humanitarian intervention is at odds with four structural factors which dominate the international realm and, as such, curtail the mobilization of international humanitarian interventions as an expression and tool of international solidarity. They are: the national dispositions of international life; the limits of democratic solidarity; the preference given to national solidarity over international solidarity; and the moral rather than legal sense of international obligation towards international human rights.
The national dispositions of international life
An initial factor that makes the support for international humanitarian interventions an object of secondary concern is the national dispositions that prevail in international life. To be sure, to some extent, such a national bias, which favors national interest considerations over supranational concerns, has been altered by the increased interdependence among countries that has come with globalization in the post-Cold War era. But it has not been diminished fundamentally. As a matter of fact, it may even have been enhanced. For instance, despite all the talk on the growing need of cooperation among nations and global governance, international competition is perhaps more ferocious today than ever before. The Western worries about China’s global ascent are part of this story. Also, following 9/11, the framing of fighting terrorism in a narrative of war has not merely cultivated but also emphasized the gap between “we” and the “other”, a feature that is central to a nation-centric world. In these conditions, being concerned with the fate of victims beyond borders and envisioning an international humanitarian intervention to address their plight, are destined to be marginal preoccupations.
The limits of modern democratic solidarity
This is all the more the case considering the limitations of modern democratic solidarity and the role this plays in constraining the international protection of human rights. If democratic values widen the circle of human connection, and community, it does not eliminate the fact that the further one is away from the center, the more the sense of responsibility and solidarity is prone to be abstract and tenuous. Not surprisingly, this is especially true at the international level. In this context, the imperative of democratic solidarity is not powerful enough to avoid the dilemma that what is internationally owed to others is weighed against the demands of the national community and its members; and that, most of the time, if not always, primacy is given to the latter over the former. In this context, it is difficult for international support for human rights beyond borders to be a must.
Preference given to what is nationally owed over what is internationally owed
The combination of the continuing national bias in international life and the limits of democratic solidarity accounts for the preference given by the members of the international community to solidarity within, over solidarity and human rights among nations and beyond borders. From the fact that what is owed in the national realm and to its members always has priority over what is owed to people beyond borders, follows an evaluation of costs and benefits of the sense of international responsibility that is designed to ensure that the costs of helping strangers will not take place at the expense of what is owed to the national citizenry. This helps explain the very limited and ambiguous commitment of democratic member states of the international community to humanitarian interventions. This has been on display in the 1990s, in Somalia, Bosnia, Kosovo and elsewhere. It is again at work in the 2000s, Syria being the latest example.
The moral rather than legal obligation toward international human rights
In these conditions, it is not surprising that there is no international legal obligation per se for the international protection of human rights. Indeed, the sense of contemporary international solidarity and the call for protecting human rights that is part and parcel of some of the most progressive post–World War II international treaties amount ultimately much more to a moral obligation to extend a hand beyond borders than to a true international legal obligation. States do not have a real obligation to act internationally in support of human rights. In this domain, the international protection that international law refers to is by and large voluntary and decidedly ad hoc.
The best illustration is the Convention on the Prevention and Punishment of the Crime of Genocide. Adopted by the United Nations General Assembly in December 1948, it does not mention the possibility of states and the international community interfering in specific and practical terms to save the lives of people. As William A. Schabas puts it:
“Perhaps the greatest unresolved question in the Convention is the meaning of the enigmatic word “prevent.” The title of the Convention indicates that its scope involves prevention of the crime and, in article I, State parties undertake to prevent genocide. Aside from article VIII, which entitles State parties to apply to the relevant organs of the United Nations for the prevention of genocide, the Convention has little specific to say on the question. The obligation to prevent genocide is a blank sheet awaiting the inscriptions of State practice and case law. A conservative interpretation of the provision requires States only to enact appropriate legislation and to take other measures to ensure that genocide does not occur. A more progressive view requires States to take action not just within their own borders but outside them, activity that may go as far as the use of force in order to prevent the crime being committed. The debate of this is unresolved, and is likely to remain so, at least until the next episode of genocide, if there is no insistence that the subject be clarified.”
Conclusion: What to expect in the future?
The Responsibility to Protect (R2P), to which the 2005 World Summit organized by the United Nations, gave official legitimacy, is an attempt to address and improve this situation. It introduces a soft norm (responsibility) that can provide a better humanitarian, human rights and, in the end, human security framework for intervention in situations of war, designed to supplement the lack of international obligation. Yet, despite the progress that this represents, it does not overcome the paralyzing effects of the structural factors we referred to above on the international defense of human rights in times of war, as, for that matter, in times of peace (think about the lack of real international commitment to the development of the poorest countries). Hence, in the near future, international humanitarian protection in the context of interventions is likely to remain as fragile as it is today.
Jean-Marc Coicaud is Professor of Law and Global Affairs, and Director of the Division of Global Affairs at Rutgers University. He is also a Global Ethics Fellow with the Carnegie Council for Ethics in International Affairs.