Toward a norm of humanitarian intervention
by Creon Critic
Several senior diplomats warn of genocide and, at minimum, crimes against humanity. Their concerns are corroborated by defecting military personnel, pilots and naval officers, who tell of orders to target civilians. The government institutes a communications lockdown, blocking internet connections and cell phones. The government also targets foreign journalists calling them “terrorist outlaws”. Foreigners Scramble To Leave [the country] and [nations] Mobilize To Rescue [their]Citizens From […] Violence. The most senior figures in the government warn of “rivers of blood”, label opponents “cockroaches… greasy rats and cats” and call upon supporters to “cleanse” the country “home by home, village by village”. Other senior government officials, responsible for security-relevant ministries, resign to protest the government’s recent actions.
There should be a norm for humanitarian intervention if a state government does wrong within its borders. In certain instances the international community acting wholly, in parts, or even single states, should be able to forcibly compel respect for human rights and humanitarian law. There is a tension in international law between two competing goals, upholding international humanitarian law and human rights law on the one hand and state sovereignty on the other hand. I suggest resolving this tension in favor of international humanitarian law and human rights at the expense of state sovereignty even though this resolution presents some difficulties for the international system.
After defining key terms I will argue that a norm of humanitarian intervention poses three related problems. One problem is determining the threshold for intervention; what wrongs within a state’s borders qualify for humanitarian intervention? I will contend that the “why” of humanitarian intervention is not a novel invention of the 1990’s. I argue that the principles for humanitarian intervention have deep roots in international law, specifically the idea of jus cogens. During the course of the 20th century, the underlying principles animating humanitarian intervention were more clearly enunciated by important international institutions and conventions.
A second problem is preventing abuse of humanitarian intervention; what process, if any, is required for intervention to be legitimate? This question of “how” humanitarian intervention is a difficult one that I could not answer for myself altogether satisfactorily. I can merely sketch key principles to keep in mind, presenting a very legitimate scenario (post reform or current UN Security Council approved), a less legitimate situation (regional international organization approved), and a possibly legitimate outcome (coalitions of the willing or unilateral action). Here I argue the skeptics have the strongest case when they argue that the responsibility to protect (R2P) is a great idea that can not work due to political problems of execution.
A third problem is the charge of neocolonialism; is humanitarian intervention merely a cloak for powerful states to intervene and interfere in the business of weaker states? I will argue that the qualifications outlined are safeguards against neocolonial humanitarian intervention. Violating the criteria I outline yields important indicators for assessing claims of neocolonialism in humanitarian intervention.
Altogether, a norm of humanitarian intervention challenges expansive definitions of sovereignty. Establishing such a norm means that sovereignty conceptualized as bounded in ways that have not yet been widely recognized in international law.
I take humanitarian intervention to mean military intervention not authorized by the target state primarily with humanitarian motives. Humanitarian intervention’s primary aims should neither be to annex or state nor to redraw territorial boundaries (or at least a strong presumption against redrawing territorial boundaries). Intervention is conceived of as temporary, not permanent. I would highlight the point that there is a sliding scale of options, not simply a dyad of all-out military invasion and do-nothing approaches. This continuum includes diplomatic moves like condemnations, targeted sanctions, arms embargoes, and trade restrictions. Furthermore, within the class of military intervention, there is room for variation. This further iteration in the military sphere includes: the threat of military intervention and deploying of military assets to a region (though this poses issues, as the credible threat of intervention is what deters perpetrating parties), limited intervention or an escalating use of force (for instance, NATO only pursued air war against the Former Republic of Yugoslavia), and the Powell Doctrine’s preferred overwhelming use of force.
By norms I mean “socially shared expectations, understandings, or standards of appropriate behavior for actors with a given identity – are both ‘regulative’ (ordering and constraining behavior) and ‘constitutive’ (generating agents, endowing them with certain capabilities and powers, and determining their underlying identities, interests, and preferences)”
Finally, though some authors draw a sharp distinction between humanitarian intervention and the responsibility to protect, I do not hold that distinction here. I use the terms interchangeably.
Why humanitarian intervention & what wrongs qualify?
Conduct that “shocks the conscience of mankind” qualifies for humanitarian intervention. The laws of war, international humanitarian law, and international human rights law give us direction in determining what wrongs qualify for humanitarian intervention. With treaties predating the 1945/1948 foundations of the modern international human rights regime, the laws of war and international humanitarian law represent areas of more fixity in international law. The United Nations Charter and the Universal Declaration of Human Rights began the modern international human rights regime. The subsequent widely ratified conventions on human rights provide fixity to the international human rights law content. It is also important to keep in mind that the Genocide Convention’s full name is the Convention on the Prevention and Punishment of the Crime of Genocide; “prevention” is there for a reason. The themes outlined in these instruments are further bolstered by jus cogens.
Jus cogens are fundamental principles from which no state may derogate; additionally, states may not exempt themselves, or release one another from jus cogens. Furthermore, no treaty or domestic law can depart from jus cogens. Jus cogens entail both rights and responsibilities; jus cogens can act to promote certain principles and to prohibit certain behavior. For instance, self-determination is promoted by jus cogens. Jus cogens prohibits heinous conduct that threatens “the peace and security of mankind and the conduct, or its result, is shocking to the conscience of humanity.” Prohibitions include condoning the breach of jus cogens, slavery, piracy, genocide, crimes against humanity, murder, torture, and the use of force or aggression. Thus states cannot legally agree to enslave a minority, or commit genocide.
Jus cogens (and human rights) have been called ambiguous, tautological, and even nonexistent. The ambiguity critique stems from the difficulty in defining their origins. Who made this list, the List? Jus cogens seem to emerge, rather than being legislated as with other law. The tautological critique stems from there self-defining character. The nonexistant critique (also leveled at international law) stems from the lack of an overarching enforcer. On the other hand, like other social constructions, we behave as though they exist. Furthermore, jus cogens have the force of law; one can argue and base rulings on jus cogens in the International Courts of Justice. For our purposes, this answer must be satisfactory.
The “why” of humanitarian intervention must foreground some notion of the international interest. By international interest I mean a focus on upholding provisions of human rights and humanitarian standards that “embody in legal terms the core of our respect for humanity and Mankind.” These elements constituting what I call the international interest have “been adopted only at the expense of vast and painstaking political efforts, in many cases even preceded by conflict and bloodshed.” I have backgrounded the national interest to emphasize the idea of setting aside personal, short-term gain. Disinterestedness is a key component of humanitarian intervention. This is not to say national interest counts for nothing, concern with refugee flows and potentially destabilizing consequences of humanitarian catastrophes definitely focus the minds of neighbors and near neighbors; these concerns also have some claim to legitimacy, but overall I place more emphasis on the core humanitarian and human rights interests of the international system. Engendering this type of collective responsibility, and conditional autonomy of states, is an underlying theme of the R2P.
The idea of disinterestedness also entails acting in the best interest of the target country. America’s barring of French, German, and Russian companies from competing for approximately $20 billion in contracts for Iraqi reconstruction would be an example of acting in a manner very partial to oneself. It contributes to calling into question of the motives of the intervening party.
Foregrounding the international interest and backgrounding the national interest runs counter to schools of thought that emphasize, perhaps even fetishize, the national interest. National interest über alles, succinctly describes the realist perspective that there are a handful of “objective” core state interests, often geopolitically defined. Not to assert that the Straits of Hormuz are unimportant, but there are a core set of values in the international system that are crucial to human dignity. As a consequence of backgrounding national interest, the threshold for humanitarian intervention I present here is lower than that presented of Michael Mandelbaum. In response to the legitimate critique of limited resources, “the world is a big place filled with distressed people, all of whom, by these lights, have a claim to American attention,” I offer the answer of pursuit of non-military means mentioned earlier and an ongoing consideration of proportionality as concomitant with humanitarian intervention.
How humanitarian intervention & by what process?
The process for a humanitarian intervention can take three courses. The most legitimate and clearly legal scenario is UN Security Council approval for intervention. Hotly disputed regarding their legality are the alternate possibilities of regional international organization approval and coalitions of the willing or unilateral action. I would contend both these possibilities, with qualifications, can be included in a norm of humanitarian intervention if a state does wrong within its borders. These latter two courses demonstrate the tension between legality and legitimacy; my qualifications are an attempt to bridge the gap between the two. Though, I am disposed towards the assertion that “all interventions that bypass the United Nations at least need a very strong case to rebut the presumption that they are ethically dubious.”
A UN Security Council resolution in authorizing intervention represents the gold standard for international intervention. Widely recognized as the legitimate forum for adjudicating matters pertaining to international peace and security, Security Council authorization means a prospective humanitarian intervention has passed a rigorous political test. Unfortunately, five veto-wielding Security Council members represent a difficult hurdle to overcome. An intervention must not conflict with any of these key nations’ positions or interests in order to garner support, or, at least, an abstention.
Also problematic for gaining agreement on humanitarian interventions is the prospect of Security Council reform, increasing the size of the Security Council from 15 to 25. The Security Council as currently constituted represents the major powers shortly after World War II. After reform, it would grow more inclusive, depending on the proposal, adding as permanent members Brazil, India, Germany, Japan, and an African nation (possibly South Africa or Nigeria). Current veto-holders have taken the position that relinquishing the veto is a non-starter. While more representative of the powers in the international system today, these additions would make coming to agreement even more difficult.
The fact that Security Council approval is a time consuming and cumbersome process prompts my willingness to allow the broader norm of humanitarian intervention by other international organizations, coalitions of the willing, and unilaterally. Despite Security Council resolutions to “remain actively seized of the matter,” avoiding stepping on the toes of five veto wielders is difficult. Humanitarian catastrophes can be fast moving. For instance, the genocide in Rwanda is noted for its fast pace, 800,000 killed in 100 days required a pace of approximately five people killed per minute, around 300 murders an hour.
An alternate route would be approval by regional institutions like the African Union, European Union, Association of Southeast Asian Nations, or the Organization of American States. This route is preferable to a coalition of the willing or unilateral humanitarian intervention, though less safely situated in international law than UN Security Council approval.
Coalitions of the willing or unilateral humanitarian intervention represent potential legitimacy at its lowest ebb (to borrow from Justice Jackson’s Youngstown opinion). This route poses the potential for chaos in the international system if states maintain wide ranging scope in determining what a humanitarian catastrophe is and pursue humanitarian intervention as something other than a last resort. Here proceeding through the UN and regional bodies first is a crucial qualification. Actions on this front must be scrutinized closely, what is at stake is the order established by other core norms, like sovereignty, in the international system. 
So far in analyzing all three routes I have presented a state-centric, fairly hierarchical-based approach. The how of humanitarian intervention also needs to include the consideration of international publics and global civil society; this means including horizontal-based ideas regarding power. Whether via the UN Security Council, regional international organizations, a coalition of the willing or unilaterally, the broader atmosphere outside state-centered institutions is also worthy of consideration. Global civil society and the international public’s position is particularly worthy of consideration as having disinterested observers situated in multiple milieus in agreement fortifies an argument for humanitarian intervention.
Spheres of authority (SOAs) other than states, like global civil society and international publics, play a key role in the interaction that constructs a potential humanitarian intervention as legitimate or illegitimate; for instance compare NATO and Kosovo to the US’ coalition and Iraq. Because of their disparate nature SOAs, for instance the international legal epistemic community, will not necessarily produce definite answers. Furthermore SOAs are dynamic, an answer about the legitimacy of an intervention involves a process of argumentation and convincing. Despite these difficulties, in an international system where democracies hold a preponderance of the economic and military power, decision-makers on humanitarian intervention ignores the input and opinions of SOAs at their peril.
What about accusations of neocolonialism?
Calling humanitarian intervention neocolonialism may be a valid charge if the qualifications I have outlines are insufficiently met. During the course of outlining what a humanitarian intervention norm should look like, the burden of proof has been placed against expansive notions of sovereignty and against perpetual, self-interested humanitarian intervention. Overall the aim has been to prevent potential neocolonial mischief cropping up in interventions. Certain indicators highlight when an humanitarian intervention is not a humanitarian intervention.
Lacking an ongoing humanitarian crisis or gross human rights violations at the outset serves as one indicator. Wariness of including past crimes is not due to indifference, but a concern about granting states overly wide latitude in intervening. Intervention pursued precipitously, prior to other alternatives being considered and tested also indicates potential neocolonialist aims. Humanitarian intervention should not be a first resort, it should be a last resort. Interestedness and partiality linked with exploitation of decision-making authority yielded by humanitarian intervention are also indicators of neocolonialism; for instance decisions on the disposal or resources beyond the scope of humanitarian concerns.
The international community needs to act urgently against gross human rights abuses. This core principle, tempered by proportionality, lay behind advocacy for intervention in Libya.
But the US has a lot on its geopolitical plate at the moment. Perpetrators of mass murder do not schedule their crimes to suit. Criminals rarely account for the convenience of the law abiding or law enforcement authorities; war criminals are particularly inconsiderate that way. The objection is like complaining that bank robbers chose an inopportune moment for the police.
But how are we going to pay for intervention? This complaint echoes the first, perpetrators of crimes against humanity have not scheduled their murderous rampage at the right point in the business cycle. Yes there’s been a world financial crisis, but the Genocide Convention does not say prevent and punish genocide “as long as it’s convenient”. The responsibility to protect does not have the caveat “accountants permitting”.
But a more limited intervention could lead to a larger intervention; some argue this could be a slippery slope. Frankly, the future is uncertain. Maybe imposing a no-fly zone over Libya will lead to further intervention, like bombing Libyan tanks, as some warn. This consideration deserves careful thought, but does not excuse inaction or purely rhetorical action. Condemnations are a good first step, but we must be willing to go much further than a strongly worded statement. The situation requires, at minimum, the credible, early consideration of the use of force, we should prepare for that.
But past interventions have not all gone splendidly some contend, pointing to the cases of Bosnia and Kosovo. No, the past is not a humanitarian interventionist’s paradise. Some interventions are more successful than others. Too often skeptics of humanitarian intervention and post-conflict reconstruction point to Afghanistan and Iraq while proponents point to Germany and Japan when the overall picture is rather complex. RAND’s the UN’s Role in Nation-Building: From the Congo to Iraq testifies to this complexity and also the possibility for success; the cases include both failures and successes: the very successful (West Germany, Japan), successful cases (Namibia, El Salvador, Eastern Slavonia, East Timor), mostly successful (Mozambique), and partially successful (Congo, Cambodia) (here, here, and pdf).
Past history shows that when a state threatens citizens, dehumanizes opponents, shuts down communications, and orders mass murder, we end up profoundly regretting the Triumph of Evil. Witness Bill Clinton’s speech in Kigali, Rwanda from March 1998,
The international community, together with nations in Africa, must bear its share of responsibility for this tragedy as well. We did not act quickly enough after the killing began…. We did not immediately call these crimes by their rightful name: genocide. We cannot change the past. But we can and must do everything in our power to help you build a future without fear and full of hope….
…It may seem strange to you here, especially the many of you who lost members of your family, but all over the world there were people like me sitting in offices, day after day after day, who did not fully appreciate the depth and the speed with which you were being engulfed by this unimaginable terror.
We have seen, too, and I want to say again, that genocide can occur anywhere. It is not an African phenomenon and must never be viewed as such. We have seen it in industrialized Europe We have seen it in Asia We must have global vigilance. And never again must we be shy in the face of the evidence….
The Universal Declaration of Human Rights states, “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.” Instituting a norm of humanitarian intervention would help realize this goal; I’d argue Immanuel Kant’s categorical imperative, John Rawls’ veil of ignorance, and Peter Singer’s drowning child thought experiment all point to a case for the morality of humanitarian intervention. From this perspective, humanitarian intervention resituates the individual as the center of interest in international relations, de-centering the state. That is to say, human security would be reinforced with a norm of humanitarian intervention. State sovereignty would be circumscribed in ways that favor the individual, possibly deterring leaders considering pursuing gross, widespread violations of human rights as a tactic for staying in power. A norm of humanitarian intervention acting to deter gross violations of human rights would make the international system a more humane and safe place for its ultimate end, the welfare of individual human beings.
 Harhoff, Frederik “Unauthorised Humanitarian Interventions – Armed Violence in the Name of Humanity?” Nordic Journal of International Law, 70, 2001, p. 66; State sovereignty or more specifically “the international prohibition on the use of force against the territorial integrity of a sovereign State,” Harhoff, p. 78-9
 MacKenzie, Lewis “Responsibility to protect: a great idea that can’t work” the Globe and Mail (Canada) Sep. 19, 2005, A17
 Coady, C. A. J. “the Ethics of Armed Humanitarian Intervention” United States Institute of Peace, 2002, pp. 10-11
 Parekh, Bhikhu “the Dilemmas of Humanitarian Intervention: Introduction” International Political Science Review Jan 1997, p. 5
 MacLeod, Michael “Forging Private Governance of Climate Change: The Power and Politics of Socially Responsible Investment” Oikos Ph.D. Summer Academy 2007, p. 12; Sikkink, Kathryn “Transnational Politics, International Relations Theory, and Human Rights” PS: Political Science and Politics 31, 3, Sep., 1998, p. 518
 Alvarez, Jose E. “the Schizophrenias of R2P: Panel Presentation at the 2007 Hague Joint Conference on Contemporary Issues of International Law: Criminal Jurisdiction 100 Years After the 1907 Hague Peace Conference” The Hague, The Netherlands, June 30, 2007
 Adams, Dean “The Prohibition of Widespread Rape as a Jus Cogens” San Diego International Law Journal 6, 2, 2005 pp. 357, 359-60; Christenson, Gordon A. “Jus Cogens: Guarding Interests Fundamental to International Society” Virginia Journal of International Law 28, 1988, p. 586
 Schwarzenberger, Georg “International Jus Cogens?” Texas Law Review, 43, 4, 1964 pp. 457
 Adams, p. 359-60
 Harhoff, p. 79
 Parekh, p. 5
 Mandelbaum, Michael “Foreign Policy as Social Work” Foreign Affairs 75, Jan/Feb 1996, pp. 16-32; p. Mandelbaum, p. 18
 Coady, p. 27
 For an argument that necessity may justify humanitarian intervention see, Spiermann, Ole “Humanitarian Intervention as a Necessity and the Threat or Use of Jus Cogens” Nordic Journal of International Law, 71, 2002, pp. 523-543; For an argument that international law does not provide the answer, but criteria can be outlined see, Harhoff, pp. 65-119; For an argument that unauthorized humanitarian intervention has no legal basis in current international law, notwithstanding ad hoc moral grounds based interventions see, Rytter, Jens Elo “Humanitarian Intervention without the Security Council: From San Francisco to Kosovo – and Beyond” Nordic Journal of International Law, 70, 2001, pp. 121-160
 Coady, p. 26
 “Security Council Reform: Where it Stands” Deutsche Welle 18/6/2005
 Blum, Yehuda Z. “Proposals for UN Security Council Reform” The American Journal of International Law, 99, 3, Jul. 2005 p. 637, 644; MacKenzie, p. A17
 “Rwandan Genocide 10 Years Later” CNN
 Justice Jackson’s three part test for presidential authority influenced this formulation. Jackson, Robert H. “Youngstown Sheet & Tube Co. v. Sawyer” Supreme Court of the United States, 343 U.S. 579
 Rosenau, James N. Distant Proximities, Dynamics Beyond Globalization Princeton University Press: Princeton, 2003, pp. 294-5
 Coady, p. 28
 Universal Declaration of Human Rights, Article 28