Reflections on Intervention in the 21st Century
This afterword by David Held and Kyle McNally is the final chapter of Global Policy’s e-book, ‘Lessons from Intervention in the 21st Century: Legality, Legitimacy and Feasibility', edited by David Held and Kyle McNally. The complete e-book will be released in the coming weeks. Find out more here or join the debate on Twitter #GPintervention.
Drones now routinely circle the skies above large swathes of Iraq controlled remotely from many miles away. This is the latest iteration of intervention in the region – now targeting ISIS. Such operations have become the flagship of US counter terrorism policy. Yet, the landscape of this intervention, like all others, is unique in its own right.
ISIS, the self-proclaimed Islamic State, has over the last seven months waged a war of brutality and repression across Syria and large parts of Iraq. Their brutality is incontrovertible, as the group also wages a propaganda campaign in the media unabashedly claiming, celebrating, and promoting the war crimes it commits. The international response was slow from the start, remains limited in its success, and decidedly tentative on the question of more direct engagement in terms of troop deployments. Meanwhile, the atrocities continue.
It can be safely argued that the debates about military intervention today, humanitarian or otherwise, are at least as acute and urgent as any other time in the preceding decades. However, this debate is highly complex and wrought with competing understandings of core concepts in the discussion. This article seeks to highlight a three dimensional framework for discussing intervention – legality, legitimacy and feasibility. Moreover, it considers the possibility and prospects of developing common understandings of these core issues amongst those engaged in the intervention debate.
Legality
Debates about military intervention virtually always evoke questions of legality. This concern is crucial for fairly obvious reasons. Legality is typically understood as specified by Chapter I (Article 2) and Chapter VII (Article 51) of the UN Charter, which firmly defend the sovereign equality for all member states, while sanctioning war only in the case self-defence and threats to international peace and security, respectively. Additionally, intervention may be initiated by a regional organisation under Chapter VIII, and can be considered legal so long as subsequent Security Council authorisation is obtained. Gareth Evans strongly argues that the UN Charter ‘is the only possible source of authority’ for any and all interventions.
Yet, broader interpretations of legal intervention, relying on customary law, have sometimes been made. The current actions against ISIS, similar to previous interventions such as Kosovo in 1999, may well fall into this category as there is an undeniable humanitarian need and evident crimes against humanity. Given the current state of affairs in the Middle East and prevailing intervention strategies under the Obama administration, the customary law justification appears to be the most common approach to justifying action outside of the UN Charter framework. Whilst this justification has been deployed in certain circumstances, and may enable one to avoid the pitfalls of a gridlocked Security Council, it runs the risk of creating more confusion than resolution in the realm of legality, and particularly when the case for intervention is less clear and shrouded in controversy.
In 2001 the International Commission on Intervention and State Sovereignty developed the Responsibility to Protect doctrine (R2P), attempting to recast state sovereignty as contingent upon a state’s willingness and ability to protect its citizens; that is to say, uphold their fundamental human rights. The doctrine further posits that when states fail to meet this obligation, the responsibility to protect individuals falls on the international community. R2P has gradually transformed the discourse surrounding intervention, and is seen by some as providing new clear-cut guidance on when military force may be utilised in pressing humanitarian situations. R2P principles were adopted by the General Assembly in 2005, but the doctrine remains unbinding and does not confer legal rights nor does it impose binding restrictions pertaining to intervention. Notably, R2P does not amend the existing criteria for intervention in the UN Charter, rather, it supplements them by filling a hole and providing a further justification for intervention (still under the UN Charter).
Thomas Weiss suggests that we ought to call the UN’s endorsement of the doctrine ‘“R2P lite” because unlike the original ICISS recommendations, the September 2005 summit made Security Council approval a sine qua non rather than merely highly desirable’. Moreover, its invocation in Security Council resolutions has been met with controversy and mounting criticism. For example, Charles Kupchan analyses this in relation to the NATO intervention in Libya, arguing that the operation ‘initially enjoyed legitimacy and legality’, but because of NATO’s over-stretching of the mandate and perceived mission overreach, it ‘ended up on contested ground’. As long as R2P intersects with the geopolitical interests of powerful states the question of whether it can ever be applied systematically and impartially remains in doubt.
Since the development of R2P, it has been endorsed in the General Assembly, invoked by the Security Council, and has become ubiquitous in debates about intervention. This may signal a point of significant change in the understanding of legality and the legitimate grounds for mobilising military forces, so long as issues of impartiality can be resolved in the further articulation and entrenchment of the doctrine. This would require a more coherent and substantive account of who can and should take decisions to implement R2P, under what conditions, with what means, and with what appropriate assurances of accountability for action taken. We remain at some considerable distance from this position.
Legitimacy
A second dominant theme in debates about intervention is the issue of legitimacy. Whilst legal authorisation may create legitimacy in some instances, the two are not synonymous. Rather, legitimacy connotes whether an intervention is regarded as acceptable and/or “right” – be it morally, or otherwise justified. Legitimacy is perhaps the most difficult concept to make sense of, yet it carries significant weight in the way one understands global order. This is a judgement that can be made by both those in positions of power and also by the many people who are affected by an intervention, ranging from the citizens of intervening States who fund intervention (in)directly, to the citizens of states where interventions are made, affecting in profound ways their life chances.
Thomas Risse offers a very interesting contribution to the discussion by distinguishing between two forms of legitimacy: normative legitimacy which addresses the ‘question of whether or not a particular political action can be considered legitimate according to some moral or ethical standard’; but also empirical legitimacy which is the ‘factual belief by those being ruled (or being intervened in this case) that the ruling authorities (or the interveners) are justified to claim followership’. Pointedly, he argues that there is ‘a clear relationship between the support of external interveners by local rulers and/or populations, on the one hand, and the effectiveness of the intervention in terms of keeping or restoring the peace on the ground, on the other hand.’ This is a crucial contribution to the debate about both legitimacy and feasibility. Simply put, Risse contends that “successful” intervention requires empirical legitimacy. Yet, such arguments by no means command agreement. In this regard, Anne Orford makes an interesting point. She argues that the ‘turn to legitimacy’ is part of an attack on legalism that can be used by powerful states to carve out space needed for interventions, whilst also maintaining a status quo in the international order.’ Thus, legitimacy can be hijacked by powerful interests to claim the rightful nature of an action even if it is blatantly illegal under international law.
Legitimacy is a concept we cannot do without, yet it remains contested at its core. If one considers legitimacy in isolation from questions of legality and feasibility, an approach such as Risse’s might draw the debate closer to a common understanding. In particular, the benefits employing an “empirical” account of legitimacy is that it comes close to introducing some kind of objective measure that interventions can be considered against. However, as Orford points out, the matter is more complex when considered in relation to legality and global power structures. In this instance, legitimacy, and its pursuit, may sometimes serve to undermine the international legal code.
Feasibility
A third dimension in this debate is feasibility. At first glance, this may seem a straight forward consideration, however, there are various ways in which this notion can be conceived and articulated. It may be argued that feasibility can most generally be measured in relation to the capacity to resolve breaches to the peace and/or restore stability in violently fractured communities. While feasibility may seem a straightforward concept it remains deeply problematic, and especially in the context of the complex patterns of conflict and intervention in the 21st century.
Feasibility is, at its core, about judging the required means to achieve a particular end – the protection of civilians, the eradication of a despotic regime, providing relief to populations under severe threat. Here the issue is whether the deployment of military forces can and does deliver the desired end. A sleuth of issues arise: has the use of force been effective? Has it generated collateral damage which undermines the core mission? Does it leave a legacy of violence as the norm of managing conflictual relationships? Does the deployment of force undermine human rights standards and the capacity for self-determination? Do the means destroy the end?
The effectiveness of intervention is worth dwelling on when considering questions of feasibility. An important contribution has been made by Michael Doyle and Camille Strauss-Kahn who disentangle this question identifying one of the many drivers of liberal interventionism as the push for democracy, and argue that the results of such intervention have not been promising. Apart from the cases after the Second World War when interventions took place in very different circumstances, few Western led interventions have led to stable democracies. Indeed, there is a strong case to be made that many of these interventions have made things worse, much worse. There are very strong reasons to think that this has been the case in the wars in Afghanistan, Iraq and Libya (see Held and Ulrichsen). The reach of the Afghanistan government has been virtually reduced to Kabul plus a few metres on either side of major highways; Iraq is in further turmoil, creating a vacuum in which armed groups can expand; and Libya has become a failed state in practically every sense of the term.
However, questions of feasibility are not only about whether or not an action will be effective in the end; indeed, there are also questions as to whether intervention will be implemented at all, and if so: how? by whom? and for how long? Strong UN mandates are increasingly sparse and rarely associated with the capacity to deliver successful intervention. For example, key resolutions can be blocked by members of the P-5 before the point at which they are tested for efficacy – as has been the case when China vetoes resolutions aimed at putting more pressure on Sudan regarding the Darfur crisis or, more recently, by the China and Russia vetoes of intervention when the Syrian civil war reached an acute stage of human suffering.
Anne-Marie Slaughter recently illustrates this point when she argues out that while agreement on political and military feasibility may be difficult to reach within one national government, ‘it is magnified ten or a hundred fold’ when the only way to put together an intervention and legalize it involves, for example, 14 other governments, ‘each of which has their own political, military, and humanitarian calculations.’ In short, the more state and non-state actors involved in an intervention, the more it is likely to show strains generated by multipolarity and complex problems. The greater the number of actors involved, which bring to the table diverse views and interests, and the greater the complexity of the challenge, ensures that the issues will remain extremely difficult to resolve (see Hale, Held and Young, 2013).
Having said this, feasibility should not be considered in isolation from the other factors in this debate. Legality and legitimacy may be directly related to feasibility – but in an inverse way. Exploring the case of Yemen, Steven Zyck argues that it is those ‘projects which operate in a legal grey zone [that] are also the most feasible’, as they face less obstacles to implementation and regulation. In other words, feasibility may increase with the weakness of states and ambiguity of legal context. This is, of course, not encouraging for a rule based global order. This also reminds us that intervention can be understood beyond conventional military force, as his arguments focus on the administration and implementation of development aid.
In short, what this tells us is that there is nothing straightforward about feasibility either. In the end, feasibility is a complex judgement in relation to the ends; and it is necessary to bear in mind that recent interventions have scarcely achieved their stated ends. Of course, some interventions might be considered more successful than others – however this observation reveals the post hoc nature of feasibility discussions.
Conclusion
The framework provided in this article – legality, legitimacy and feasibility – is an attempt to explore the common ground, and contested concepts, that permeate intervention debates. The diversity of views on these three core concepts suggests that scholars, politicians and practitioners may be talking past one another once debate commences – each bringing their own idea of what legality, legitimacy or feasibility may mean. This may be inevitable to some degree, but it does make coherent debate difficult to achieve.
There remain many issues unresolved about how to proceed in matters such as ISIS, Boko Haram, despotic and repressive States, as well as a multitude of militias that reign in whatever capacity they can, with civilians frequently caught in the crossfire. These uncertainties are clearly manifest in Obama’s struggles to address ISIS. In the first instance, there appears a clear legal mandate under article VIII for intervention if the UNSC were to give backing beyond the limited sanctions and condemnations set out this year. ISIS is clearly committing crimes against humanity of a diverse kind: rape, pillage, slaughter, torture, and so on. On the issue of legitimacy, the terrain is complex. Straightforward, perhaps, for Western advocates of intervention or for affected Shia populations; but certainly not for certain Sunni communities throughout Syria and Iraq.
As for feasibility, the issue is wrought with even greater complexity. Blair and Bush, and later Sarkozy and Cameron, assumed that feasibility was a straightforward matter. It is not. Obama has sought a two-pronged strategy of drone warfare combined with arming local resistance. This is a long way from the tank columns of the coalition of the willing landing in Bazra and pushing up towards Baghdad. So far the results, however, seem unfortunately similar, and fraught with complexity and uncertainty. The stark reality is that finding answers to these questions is as difficult as it is necessary.
As the world order continues to pursue and refine intervention debates it is essential to be reflective on what drives this debate forward, albeit in a quiet or subtle way. Andrew Linklater provides a powerful account of an underlying tension in this regard, between the ostensibly benevolent motives that can drive decisions to intervene and the moral and practical complexities of interventions themselves. He likens the drive toward intervention as a process that can reflect diverse and, at times, contradictory motives. On one hand, intervention can be shaped by a quest for realistic understandings of war-torn societies and what is required to establish a pragmatic approach. On the other hand, discourses of intervention can be found to be interpolated with ‘colonial imaginaries’, with racist assumptions often constituting a hierarchy of societies.
The future of intervention is likely to reflect these complex forces, all too often evoking positions on legality, legitimacy and feasibility to suit the geopolitical interests of the time. Yet, these concepts are not infinitely malleable, and carry clear institutional and philosophical content that needs to be understood. Moreover, the weight of failure in many recent cases of intervention, with overwhelming death and destruction, makes this debate of paramount significance. It also highlights that without clarity on these core issues politicians are likely to continue launching violent interventions that cause more harm than good, whilst undermining a rule based global order.
David Held is Master of University College, Durham University, Professor of Politics and International Relations and General Editor of Global Policy. Kyle McNally is a PhD candidate at Durham University and Community Editor for Global Policy.
