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From right to responsibility: Humanitarian Intervention and International Society. (Review Essay).

Simon Chesterman, Just War or Just Peace? Humanitarian Intervention and International Law (Oxford: Oxford University Press, 2001), 295 pp.

Nicholas J. Wheeler, Saving Strangers: Humanitarian Intervention in International Society (Oxford: Oxford University Press, 2000), 336 pp.

The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Centre for ICISS, 2001), 91 pp.; and The Responsibility to Protect: Research, Bibliography and Background, Supplementary volume to Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Centre for ICISS, 2001), 410 pp.

Humanitarian intervention has been the subject of much recent controversy--not only within the academic community but also within international organizations, nation-states, and nongovernmental organizations (NGOs). At the heart of the debate is the tension between the principle of state sovereignty (a defining pillar of the UN system and international law) and emerging international norms related to the use of force for humanitarian purposes. The three works reviewed here are vitally important markers in the development of literature on humanitarian intervention. The first, Just War or Just Peace? by Simon Chesterman, provides a comprehensive treatment of the legal issues and presents the case against the existence of a right of humanitarian intervention. Saving Strangers, by Nicholas J. Wheeler, offers a different reading of state practice--and more importantly, the justifications that states provide for their actions--to argue that new norms legitimating humanitarian intervention have developed since the e nd of the Cold War. The final piece, Report of the International Commission on Intervention and State Sovereignty (ICISS), is the product of a broad-based international dialogue designed to reconcile two building blocks of today's international society: nonintervention and respect for the rights of individuals. Its holistic framework offers guidelines not only for responding to massive violations of human rights, but also for preventing such tragedies and for rebuilding conflict-ridden societies.

I begin this essay by reviewing the legal questions surrounding humanitarian intervention and then broaden the discussion to include ethical dilemmas. In the third section, I analyze the attempts by Wheeler and the ICISS to offer scholars and policymakers a solution to the apparent stalemate between those who jealously guard sovereignty and those who seek to enforce human rights standards. Finally, I identify the challenges in designing criteria for a legitimate humanitarian intervention and conclude by discussing how the debate has been affected by the events of September 11.

The Controversy over "Right"

The backdrop for Just War or Just Peace? is the 1999 North Atlantic Treaty Organization (NATO) bombing of Kosovo and the heated legal debate that it generated. (1) As Chesterman notes, on the face of it the legal position seems clear: existing treaty law on the use of force does not permit military intervention for humanitarian purposes. The basic presumption of international law post-1945, according to Article 2 (4) of the UN Charter, is that the use of force is illegal. The accepted qualifications to this rule are claims made in the name of self-defense (Article 51) or collective security (in which case the Security Council may authorize the use of force if it does so explicitly through a resolution adopted under Chapter VII). Yet lawyers commenting on the air campaign in Kosovo arrived at opposing positions, both on the status of the law as it stood at the outset of NATO's action and on the question of whether a new exception to the prohibition on the use of force had emerged.

Those arguing in favor of a right of humanitarian intervention frequently assert that it predates the charter. Chesterman's first task is to determine whether they are right. His historical overview of legal writings and state practice reveals that the notion of humanitarian intervention emerged only in the nineteenth century and that it was not established as any coherent legal right. Most lawyers placed the question outside the realm of law altogether, describing it as a matter of politics, policy, or morality. At best, Chesterman argues, humanitarian intervention "existed as a lacuna in a period in which international law did not prohibit recourse to war" (p. 3). The cases alleged to be humanitarian interventions--efforts by European states to protect Christians in the Ottoman Empire, or U.S. and British intervention during the Boxer Rebellion in China--"can be dismissed as opportunistic or optimistic interpretations of the doctrine" (p. 26).

In the course of reviewing the pre-1945 evidence, Chesterman makes an important observation. The origins of humanitarian intervention are located in the tension between the belief in the justice of a war waged against an immoral enemy, first forwarded by jurist Hugo Grotius, and the emerging principle of nonintervention as a component of sovereignty. As Chesterman shows, this is not simply a precursor to the contemporary tension between two sets of legal rules (those related to human rights and those related to state sovereignty). Rather, the heritage of humanitarian intervention "lies in the earlier conflict between the moral impetus to war over religious differences and the legal restraints that came to be placed on states entering into a society of equals" (p. 7). In other words, it is an issue that puts international law in an uneasy relationship with international morality.

The emergence of the modern doctrine of nonintervention was closely connected to the rise of positivism in international law, through the writings of Emmerich de Vattel and Christian Wolff. By the early twentieth century, Chesterman argues, the Vattelians had won out over the Grotians. Intervention was sanctioned only in situations of civil war where clear lines could be drawn between rulers and their people; it could not be justified as a defense of the rights of the oppressed in other jurisdictions against their sovereign. Furthermore, the League of Nations Covenant and the Kellogg-Briand Pact strengthened the international community's commitment to redressing conflict through peaceful means.

Chesterman's second objective is to tackle three contemporary arguments in favor of a right of humanitarian intervention. First, some legal scholars have suggested that there is a loophole in UN Article 2(4) that would support the use of force for humanitarian purposes. (2) There are two variations here. According to the first, humanitarian intervention would not contravene the charter if it did not violate the "territorial integrity or political independence" of the target state (narrowly defined). According to the second, humanitarian intervention would not be contrary to the purposes of the UN Charter if we consider the objectives related to human rights and freedom listed in Article 1(3). (3) Chesterman's "restrictionist" (4) response to both arguments is convincing: intervention for the purposes of humanitarianism or democracy building does not pass the hurdle of a legitimate exception to the ban on the use of force. This interpretation is strengthened by considering the UN Charter's purpose: to delegiti mize individual acts of war by vesting sole authority for the nondefensive use of force in the Security Council. (5)

Next, Chesterman takes on contemporary international lawyers such as Fernando Teson and Christopher Greenwood, (6) who suggest that there is emerging customary law on humanitarian intervention running parallel to the charter. These "counter-restrictionist" lawyers point to a series of cases from the 1990s, (7) largely carried out by Western governments, as state practice supportive of a new customary rule. The problem with such an approach, as Chesterman demonstrates, is that it privileges custom over treaty--a controversial move from the perspective of the Vienna Convention. (8) In addition, non-Western legal opinion opposes this interpretation of the customary law on intervention, since it seems to suggest that certain types of practice "count" more than others--that is, the actions of Western states versus the stated opposition from those such as China, Russia, and India. In Chesterman's reading, the alleged cases of humanitarian intervention lack a crucial element: "the necessary opinio juris that might t ransform the exception into the rule" (p. 87). His more fundamental point is that the effort of scholars to establish a right of humanitarian intervention challenges traditional legal approaches and "raises questions of evidence and motive in the formation of international law" (p. 2).

For Chesterman, then, the very notion of humanitarian intervention is inconsistent as a principle. Moreover, acknowledging and codifying a new right of humanitarian intervention would have two negative consequences. First, he doubts whether the right would operate in the manner prescribed by its advocates. In his view, it is likely in practice to license self-interested interventionism under the guise of humanitarianism: "States have demonstrated their willingness to intervene on any number of dubious bases--the question ... is whether a further and necessarily subjective legal basis should be given for future interventions" (p. 236). And second, the creation of a new norm would be inimical to the project of establishing an international rule of law by weakening the constraints on the use of force. In the end, he argues forcefully that unilateral intervention (of the kind we saw in Kosovo) is not an alternative to collective action under the charter, but rather the very antithesis of it.

Chesterman's conclusion does beg the question, however, of whether and how state behaviors and expectations are changing. While the lawyers supporting a new customary right overstate their case, there is a body of post-1990 practice that demonstrates support--or at least toleration--for UN-authorized actions with an expressly humanitarian purpose. This is manifest not only through the use of Security Council resolutions that authorize the "use of all means necessary" to secure humanitarian objectives, but also in the ex post facto UN endorsements given to interventions carried out by regional coalitions of states, such as that led by the Economic Community of West African States (ECOWAS) in Liberia in 1990.

The cases of intervention in the past decade are striking in two ways. First, contrary to what is commonly believed, they do not present a clear-cut conflict between sovereignty and intervention. Some instances of intervention in the post--Cold War period involved host-state consent--albeit frequently coerced--for the presence of foreign troops. In fact, in the case of East Timor, the Habibie government's consent was taken as a necessary condition before an international mission could proceed. Furthermore, most examples of intervention in the post--Cold War period (Kosovo and Northern Iraq being major exceptions) involved Security Council resolutions that invoked Chapter VII. One interpretation of this trend is that states are still uncomfortable asserting that a human rights violation by a government against its own people is, in itself, a sufficient justification for the use of force. Instead, the rationale is reinforced by the claim that international stability is being threatened by those violations, eith er through the flow of refugees or the spillover effects of civil war. Such an expansion could be made compatible with a doctrine of state sovereignty and thereby enable traditionally noninterventionist states to support UN action. (9)

Second, the cases demonstrate that the thorniest issues around sovereignty come to the fore not so much at the moment of intervention, but rather after military force has been used and the participating states are deciding how long their commitment should last. During the 1990s, states engaged in missions for humanitarian purposes found themselves rebuilding conflict-ridden societies. In the process, their actions raised serious questions about the legitimacy and viability of international civil authorities, a theme I return to later. (10)

In the end, despite Chesterman's compelling argument, one is left wondering whether legal objections to humanitarian intervention get us very far. This is partly due to the standoff that exists within the legal community itself. But it is also due to the deeper objections lying underneath the legal positions, whether about the strength of developing norms or larger objections to any use of force in international relations. Indeed, Chesterman acknowledges that those who argue for humanitarian intervention ultimately do so on moral grounds--the need to "do something" in the face of evil (p. 236). Moral concerns also motivate those who argue against.

The Ethical Dimension

The ethical objections to humanitarian intervention fall broadly into two types. The first argument, best articulated by Michael Walzer, claims that sovereign states provide the protective shell for the process of self-determination. As such, they are moral entities and should enjoy the presumptive right of nonintervention. (11) It is through the state that political communities--and by extension, individuals--realize their rights to freedom. As the ICISS report states: "The non-interference rule not only protects states and governments; it also protects peoples and cultures, enabling societies to maintain the religious, ethnic, and civilizational differences that they cherish" (p. 31). The norm of nonintervention is intended to apply to all communities equally. In practice, however, it has had particular power for developing countries and former colonies. By emphasizing nonintervention's connection with self-determination, such countries have sought to protect themselves from stronger powers seeking to furth er their selfish interests (the mixed-motive actions that Chesterman is so keen to prevent). This protective interpretation of nonintervention is clearly evident in Chinese reactions to the Kosovo campaign, which China depicted as an attempt to legitimate interventions designed to force countries to change their political systems. (12) China's proposed principles for international relations stress the importance of respecting the "national conditions of each country" and the freedom of each country to "choose its social system and road to development independently." (13)

The second set of ethical objections to interventionism is consequentialist. Even if one could overcome concerns about self-determination, intervention is opposed because of the negative outcomes it can generate. Unanticipated consequences, such as the mass movement of people in the Kosovo case, have led some commentators to claim that good intentions cannot outweigh bad results.

There are three different consequentialist arguments at work. First, as realists such as Henry Kissinger contend, intervention in the name of humanitarianism or democracy is likely to create more problems than it solves. It is impossible to know beforehand if intervention will succeed or whether it will lead to an acceptable level of casualties; there are simply too many unknown variables that the intervening state cannot control. As such, it is "irrational" policy and compromises the national interest. (14) Consequentialists identify a variety of new problems. Opposition may be created on the ground in the course of engaging in military action. Expectations may be inflated among those suffering from oppression elsewhere, who will quickly level the charge of selectivity if there is no intervention to support their cause. Hostility may be provoked among other governments that fear they might suffer the same treatment. Under any of these circumstances, the consequences will be disillusionment and resentment--th e breeding ground for new enemies.

A second version of consequentialism alleges that any use of force, no matter how well intentioned, can potentially lead to chaos. As Robert Jackson has argued, while states have a responsibility to pursue international justice where they can, they should not jeopardize other fundamental values in the process. In balancing these considerations, international peace should have particular weight, since it is in situations of war--particularly war between great powers--where humanitarian values are most likely to be threatened. (15) There is a moral obligation to prevent war, which trumps the moral obligation to promote human rights and democracy elsewhere.

The third argument about consequences rests on a deeper set of beliefs about the nature of international order. This "pluralist" (16) account closely resembles the Vattelian position outlined by Chesterman. It contends that the consensus that underpins international society is a procedural rather than substantive one--limited to agreements about what constitutes acceptable external behavior and reciprocal rules like nonintervention. In other words, the bases for international order begin and end at state frontiers and do not extend to a deeper homogeneity in political, social, or cultural values. For pluralists like Hedley Bull, sovereign states are unlikely to agree about what counts as injustice or oppression inside a state, and hence are unlikely to agree when interventions to change societies would be justified. Any attempt to impose a consensus on human rights may therefore undermine the fragile order that exists in international society. (17) This order, based on mutual toleration of difference, is also viewed as the best guarantee of individual well-being.

A strong non-Western defense of pluralism has been mounted recently by Mohammed Ayoob, (18) who suggests that humanitarian intervention carries shades of neocolonialism. For Ayoob, this contemporary revival of imperialism threatens to erode the legitimacy of an international society that for the first time has become truly global in character. More troubling, it is likely to impair the capacity of states to provide for political order inside their frontiers without providing a strong enough alternative to take its place.

But while effective and legitimate states remain the most solid foundation for international society, the reality of the post-Cold War world has frequently seen the opposite: fragile, fragmenting, or collapsing state entities that expose their civilians to displacement, terror, or slaughter. How can the international community respond?

Sovereignty as Responsibility

If Kosovo lurks behind Chesterman's book, it is the ghost of Rwanda that inspires the work of the ICISS and Nicholas Wheeler. Both argue that despite legal and moral objections, a consensus on certain legitimate cases of humanitarian intervention is emerging in international society. This change is a product of three recent developments: a more expansive definition by the Security Council of what constitutes threats to international peace and security; the revolution in information technology that has heightened awareness of conflict and suffering around the world; and the increased robustness of international human rights norms.

The ICISS was launched at the UN Millennium Assembly in September 2000 (19) in response to Kofi Annan's challenge to the international community to act upon future violations of human rights and humanitarian law. (20) It was cochaired by Gareth Evans, former foreign minister of Australia, and Mohamed Sahnoun, a senior Algerian diplomat and special adviser to the secretary-general. (21) Modeled along the lines of the Brundtland Commission (World Commission on Environment and Development), the ICISS was designed to meet three ambitious goals: (1) to promote a comprehensive debate on the issue of humanitarian intervention; (2) to foster a new global political consensus on how to move forward; and (3) to find new ways of reconciling the principles of intervention and state sovereignty.

The purpose of Wheeler's book, Saving Strangers, is more theoretical: to tip the balance away from pluralism and toward a solidarist understanding of international society. The defining feature of a solidarist society of states, he claims, "is one in which states accept not only a moral responsibility to protect the security of their own citizens, but also the wider one of 'guardianship of human rights everywhere'" (p. 12). Contrasting case studies from the Cold War and post--Cold War periods, Wheeler argues that international society has evolved to recognize the norm of humanitarian intervention as a legitimate exception to the rules of nonintervention and nonuse of force. In mounting his case, he defends the larger constructivist claim that state actions will be constrained if they cannot be legitimated and that new norms enable new practices to develop. (22)

The emerging norm of humanitarian intervention suggests that when all other diplomatic actions have failed, states can legitimately employ military force against another state in order to protect civilians in danger. In both Saving Strangers and the findings of the ICISS, this right is allegedly derived from a more fundamental shift in the understanding of sovereignty in international relations--a move from "sovereignty as authority" to "sovereignty as responsibility." (23) The former defines sovereignty as unrivaled control over a delimited territory and the population residing within it, while the latter suggests that sovereignty is conditional on a state demonstrating respect for a minimum standard of human rights. According to the ICISS,

It is acknowledged that sovereignty implies a dual responsibility:

externally--to respect the sovereignty of other states, and internally, to respect the dignity and basic rights of all the people within the state. In international human rights covenants, in UN practice, and in state practice itself, sovereignty is now understood as embracing this dual responsibility. Sovereignty as responsibility has become the minimum content of good international citizenship. (p. 8)

For the ICISS, this move from the "right to intervene" to the "responsibility to protect" is more than semantic. It shifts the focus of the debate away from the claims of the interveners back to where it should be: "on the requirements of those who need or seek assistance" (p. 16). This formulation also reintroduces the moral-legal tension highlighted by Chesterman.

Neither Saving Strangers nor the report of the ICISS convincingly refute the legal objections. For his part, Wheeler gives too much credence to Teson, whose reading of the law on the use of force is highly controversial. In the case of the ICISS, the reasoning is incomplete. On the one hand, the commissioners admit "there is not yet a sufficiently strong basis to claim the emergence of a new principle of customary international law" (p. 15). On the other hand, they claim that there is "an emerging guiding principle"--yet fail to show us how it can be derived from either natural law or existing treaties, such as the genocide convention. While it is true that most states in the international community have accepted, through their ratification of the convention, an obligation "to prevent and to punish" acts of genocide, many legal scholars deny that this sanctions humanitarian intervention. (24)

What these two contributions do offer, however, is an account of changing values and practices in international society. They also provide powerful tools for responding to the ethical objections to humanitarian intervention.

Let us look first at the objection related to self-determination. As Walzer himself admits, (25) this protective shell breaks down once the integrity of popular sovereignty is questioned--that is, if there is a clear absence of fit between a state and the underlying political community. In at least two cases, self-determination can be said to be in suspension, making intervention morally defensible: when a community fragments and there are competing factions in active revolt; and situations of extreme humanitarian emergency. When the rights of individuals within a community are seriously threatened such that they can no longer be said to be truly self-determining, outside intervention to protect basic individual rights is morally defensible. As stated in the basic principles of the ICISS, "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 nonintervention yiel ds to the international responsibility to protect"(p. xi).

It is crucial to reiterate that the moral legitimacy of intervention is limited to extreme cases that "shock the conscience of mankind." If the right of self-determination is to be respected, then policymakers must clearly separate a minimalist conception of human rights protection from a maximalist intention to reshape societies in a Western, liberal-democratic image. Further, as Wheeler argues, the threshold of suffering needs to be great for other states to put their own soldiers at risk: "It cannot be a 1:1 exchange, because the consequentialist ethics that justify humanitarian intervention demand that any loss of life, as a consequence of intervention, be outweighed by the number of lives saved as a result of it" (p. 51). Yet he offers little beyond "sympathy" and "empathy" to guide political leaders who must make these life-and-death calculations. The ICISS report goes somewhat further but also underestimates the difficulty in establishing measures of what constitutes "extreme." In its formulation, a mo ral defense of intervention can be mounted in two cases: where there is a large-scale loss of life--with or without genocidal intent--that results from deliberate state action or the massive failure of state structures; and where there is large-scale "ethnic cleansing" carried out by killing, rape, torture, or mass expulsion. In both instances, it argues that these actions can be "actual or apprehended" (p. 32). This phrasing suggests a more permissive approach to legitimizing intervention.

Next, let us consider responses to the consequentialist challenges. Though formidable, they do not necessarily preclude action in extreme cases. The first general point is that consequentialist reasoning is not as straightforward as it seems. Which set of consequences should we consider--short term or long term? For example, while in the short run the NATO bombing made the situation worse for civilians in Kosovo, in the long run many refugees returned and political change took place in Serbia.

Second, while consequentialists like Kissinger rightly emphasize the "national interest," this concept need not be limited to concern for one's own citizens. It can be argued that the pursuit of national interest in our globalized world demands attention to new sources of instability, even if they are within the domestic jurisdiction of other states. For those states in the developing world, this connection derives partially from a history of dependence and misguided foreign interventions. But it also stems from the transnational nature of today's security threats. In the view of the ICISS, "human security is indeed indivisible. There is no longer such a thing as a humanitarian catastrophe occurring 'in a faraway country of which we know little'" (p. 5).

Third, although the potential for interstate war should be guarded against, it is arguably not the most significant threat to humanitarian values in modern international society. As the ICISS notes, "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" (p. 13). Surely the United Nations, a body dedicated to managing international peace and security, must adjust to these changes in the nature and magnitude of conflict.

Fourth, while diversity continues to characterize international society in the twenty-first century, there is a greater degree of consensus on the meaning of sovereignty and human rights today than the pluralists suggest. Bull's pluralist writings emphasized the difference between Western notions about the rights of individual persons against the state, versus the Soviet conception of rights as conditions brought about by the state and the Third World emphasis on collective rights. The post--Cold War period has seen less tension between individual and collective rights and a greater willingness on the part of states such as China to sign on to international human rights agreements. (26) As the ICISS concludes, "The defence of state sovereignty, by even its strongest supporters, does not include any claim of the unlimited power of a state to do what it wants to its own people" (p. 8).

Fifth, the sovereignty norm should not give developing states licence to complete their state-building process using whatever means deemed necessary. The international community can no longer accept the killing of innocent civilians as a necessary part of state making--not only because it may threaten international peace and security, but also because the citizens inside weak states should enjoy the same basic rights as those in the developed world. (27) As international organizations and NGOs become increasingly involved in state building around the world, new goals and measures must be established to ensure balance among the goals of stability, individual freedom, and economic development.

Finally, the use of force does not imply that law and morality have ceased to operate. It is possible to conceive of a limited and regulated practice of intervention designed to address extreme cases. Even under these criteria, one could never completely erase the possibility of abuse or the selective application of the practice. But these objections in and of themselves are not strong enough and should not prevent action where there is a will to act and capacity to make a difference. As Wheeler writes, "Addressing the charge if selectivity requires treating like cases alike, but, with the best will in the world, it is just not possible to take the same action in every case where human rights are threatened, because prudence as a moral virtue dictates different responses in different cases" (p. 48). There are examples (such as Rwanda) where the timely use of force could succeed in alleviating mass human suffering.

Establishing Criteria

In developing regulations for morally defensible intervention, both Wheeler and the ICISS rely on the traditional "just war" framework. Wheeler identifies four criteria that would constitute a legitimate humanitarian intervention: just cause (a "supreme humanitarian emergency"); last resort; proportional use of force; and high probability of achieving a humanitarian outcome (p. 34). The ICISS takes a more ambitious line, listing six principles for the "responsibility to protect": right cause; right intention; right authority; last resort; proportionate means; and reasonable prospects.

Before analyzing these in more detail, it is important to underscore the challenges associated with applying just war concepts. As ICISS participant Michael Ignatieff has shown, (28) any criteria established by the international community may produce perverse reactions from actors on the ground. For example, if the only "just cause" for foreign intervention is large-scale and systematic human rights abuses, rebel groups desiring outside help may trigger that threshold themselves and provoke mass killing. Ultimately, threshold conditions are political--subject to interpretation and manipulation. Similarly, if proportionality is a key criterion for legitimate action, and the West continues to prefer strategic air campaigns, opponents may put civilians next to military targets to test resolve. In addition, just war principles sit uncomfortably with some of the political and technological realities of the twenty-first century. As Nick Rengger has argued, today's world is dominated by adherence to universally appl icable moral rules, which contrasts with the "particularist, case-based" reasoning that characterized the medieval and early modem just war tradition. Modern armies in liberal states also have the power to fight their opponents with greater precision and "justice" than ever before. (29)

Yet just war thinking is the most sophisticated framework we have for thinking about moral action in the context of war. As such, it remains a vital resource for those who wish to legitimate the use of force for humanitarian purposes. If we are to employ a just war framework, Wheeler's list of four criteria serves us better than that forwarded by the ICISS. The two additional principles in the "responsibility to protect" complicate the issue of legitimacy even further.

The first is "right intention." Wheeler wisely avoids the position that a legitimate humanitarian intervention must include the primacy of a humanitarian motive. Given the inevitable mix of interests and values in international relations, we would search forever for a case of pure intention. In addition, as Wheeler explains, the problem with relying on motive "is that it takes the intervening state as the referent object for analysis rather than the victims who are rescued as a consequence of the use of force" (p. 38). A better approach, particularly given consequentialist objections, is to concentrate on the prospects for a humanitarian outcome. As long as the motives and means do not undermine that result, we are justified in considering an intervention as humanitarian (even if it is accompanied by more strategic rationale). This does not solve the problem of determining exactly when "the job is done," but it does keep policymakers focused on the humanitarian impact of their diplomatic and military strategi es.

More problematic is the question of "proper authority." While Wheeler omits authorization from his criteria for a legitimate intervention, the ICISS draws on Article 24 of the charter to argue that the Security Council has "primary responsibility for the maintenance of international peace and security." There are two variations on this general rule. First, Articles 10 and 11 of the charter, supported by the "Uniting for Peace" Resolution of 1950, give the General Assembly some responsibility for matters of international peace and security. It should be remembered, however, that the assembly's decisions are not binding and only have the status of "recommendations." Second, Chapter VIII confers security roles and responsibilities on regional organizations. In this case, the Security Council is to "be kept fully informed of activities undertaken or in contemplation under regional arrangements."

These provisions for Security Council authorization suggest that ad hoc "coalitions of the willing," acting without UN endorsement, have dubious status. Furthermore, such efforts could threaten to erode an important source of legitimacy in international society. On this issue, the ICISS and Chesterman are in full agreement: developing a consensus on military intervention requires working through the collective mechanisms of the UN, not around them. "The task is not to find alternatives to the Security Council as a source of authority, but to make the Security Council work much better than it has" (p. 49).

Nonetheless, as acknowledged by some ICISS commissioners (p. viii), complete reliance on Security Council authorization could prove problematic for moral and practical reasons. As the Kosovo intervention illustrated, the moral case for action does not necessarily depend on authorization from an international organization. Nor do claims of illegality necessarily absolve those who have the power to act from their moral responsibilities. We have witnessed instances of intervention, both during and after the Cold War, where acts have been morally but not legally justifiable.

Additionally, the UN Security Council may not bear the weight being placed on it. It is worth recalling that the principle of nonintervention outlined in the charter is not only concerned with protecting domestic jurisdiction. As Edward Mortimer has observed, it also reflects a more general belief held by the charter drafters that decentralized action by individual nation-states is a more effective strategy for creating order than supranationalism. (30) Today's UN is not yet a world government and has only rudimentary competence (legally and practically) to intervene in domestic crises.

While one of the original purposes of the Security Council was to act as guardian for international order, the behavior of individual members of the Council is not always encouraging. The veto-bearing Permanent Five can rest assured that they are unlikely to be on the receiving end of a humanitarian intervention, yet they can also block other UN actions for narrow political reasons. (31) This problem is exacerbated by the fact that the Security Council is viewed by some states as unrepresentative and a poor proxy for "international will." (32) The ICISS solution, a "code of conduct" for the use of the veto, is a useful reform in theory but unlikely to be realized in practice.

Finally, policymakers need to confront the possibility that unilateral action can be more timely and effective, especially if undertaken by a regional power with the right mix of knowledge and capability. Three interventions from the Cold War period--Tanzania in Uganda, India in East Pakistan, and Vietnam in Cambodia--lend some support to this view. Even where UN Security Council authorization has been given, it is clear that action in most cases would have been unlikely if a neighboring state with a strong national as well as humanitarian interest had not taken the lead. The Australian-led use of force in East Timor is the most recent example.


Despite these limitations in the ICISS criteria, there is no doubt that the commission has made great strides in meeting its three objectives. The extensive consultation exercise, supported by an in-depth program of research, has left an invaluable legacy of material for scholars and pa1icymakers. (33) For some, the biggest contribution of the ICISS is its official sanctioning of a new language with which to talk about humanitarian intervention: one based on responsibilities rather than rights. Arguably more valuable, however, is its notion of a continuum of action. If there is a responsibility to protect, there is also a responsibility to prevent and to rebuild. This recognition is a partial response to Chesterman's critique that the proponents of humanitarian intervention too often set up a false dichotomy: "They rest on the premiss [sic] that a humanitarian crisis with a military dimension presents the dilemma of doing 'something' or doing nothing: the just war or just peace" (p. 236).

In reality, the spectrum of possible action is wider. To date, the policy debates surrounding humanitarian intervention have been skewed in favor of issues like strategic bombing, exit strategies, and criminal proceedings. There is also a tendency to equate failure with a lack of military action on the part of the international community. The possibility that the international community has already failed if the need for military action arises has not been adequately acknowledged. The alternatives are not simply invasion or inaction. If there is indeed a responsibility to protect, then the crucial time for action is when human rights reports arrive that document deteriorating situations in foreign countries. There is also an ongoing need and responsibility to build capacity in weak states to provide for basic human rights.

The ICISS continuum is not without its problems. On the front end of the spectrum, it confronts formidable political impediments to preventive action. Despite scores of studies on the merits of prevention, it has proven exceedingly difficult to marshal the resources and vigilance in the absence of a full-scale crisis. On the back end, there is growing concern that the international community, by taking on expanded reconstruction responsibilities, is entering into the next generation of imperialism. If Western states (many of which are former colonizers) lack the "stomach" for a long-term rebuilding, then we are faced with a dilemma: only action to address root causes is likely to prevent human suffering over the long term, yet neither the resources nor political will are being provided to enter into such commitments.

As the ink was coalescing around the commission's work, the horrific terrorist attacks of September 11 occurred. There can be little doubt that these events deflected attention from the ICISS's efforts to develop a new consensus on humanitarian intervention. In fact, the commission took pains to offer a preemptory response to September 11 and draw distinctions between two kinds of military action: an act of self-defense designed to respond to terrorist attacks in one's own state; and military action in another state for human protection purposes (pp. viii-ix).

There are at least three ways, however, in which the work of the ICISS and the broader war against terror connect. First, as the commission notes, the rules and principles it outlines to govern the use of force (such as right cause and proportionality) should continue to regulate any military operation in international society. The temptation of Western leaders to "take the gloves off' and abandon restraint in combating terrorism must be strongly resisted. (34) Second, while self-defense (not humanitarian intervention) was the justification offered for war against Afghanistan after September 11, we might reasonably ask what the international community could and should have done prior to that date to prevent massive human rights violations inside that country, particularly against women. If September 11 had not occurred and the Taliban had survived, would its actions against its own citizens have crossed the threshold to "shock the conscience of mankind"? If so, what tools should have been used to prevent furt her suffering?

Lastly, if one is to believe the statements of world leaders after September 11, especially British prime minister Tony Blair, (35) the issue of selectivity that has dogged humanitarian intervention may wane in the future. The situation in Afghanistan proved tragically that state failure anywhere could have consequences far wider than that particular state's population. If the world truly has become more interconnected, and the conditions within developing countries have been linked to the war against terror, then perhaps Kofi Annan's dream of "no more Rwandas" will be realized.


Jennifer Welsh is university lecturer in international relations at the University of Oxford and a fellow of Somerville College.

(1.) A discussion of the legal positions can be found in the Independent International Commission on Kosovo, The Kosovo Report (Oxford: Oxford University Press, 2000). See also Peter Hilpold, "Humanitarian Intervention: Is There a Need for Legal Reappraisal?" European Journal of International Law 12, no. 3 (2001): 451-452.

(2.) Chesterman focuses his analysis on Anthony D'Amato, International Law: Process and Prospect (Dobbs Ferry, N.Y.: Transnational, 1987); and Fernando Teson, Humanitarian Intervention: An Inquiry into Law and Morality, 2d ed. (Dobbs Ferry, N.Y: Transnational, 1997).

(3.) "To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all."

(4.) The debate between "restrictionists" and "counter-restrictionists" over the meaning of Article 2 (4) is summarized by Wheeler (pp. 40-47).

(5.) Chesterman relies heavily on the arguments of Oscar Schachter. See "The Legality of Pro-Democratic Invasion," American Journal of International Law 78 (1984): 646. The charter prohibition on the use of force is also supported by subsequent UN declarations, such as the 1965 General Assembly Declaration on the Inadmissibility of Intervention and the 1970 General Assembly Declaration on Friendly Relations and Co-operation Among States.

(6.) See Teson, Humanitarian Intervention; Christopher Greenwood, "International Law and the NATO Intervention in Kosovo," International and Comparative Law Quarterly 49, no. 4 (2000): 926-934.

(7.) The cases that would be included are Liberia (1990-1992), northern Iraq (1991), Bosnia and Herzegovina (1992-1995), Somalia (1992-1993), Rwanda (1994), Haiti (1994), Albania (1997), Sierra Leone (1997-present), Kosovo (1998-1999), and East Timor (1999).

(8.) As Chesterman has argued more recently, "Since clear treaty provisions prevail over customary international law, an ordinary customary rule allowing intervention is not sufficient to override Article 2(4). The only way intervention for purposes beyond those of self-defence of collective security could be considered legal is if such interventions had acquired the status of jus cogens." See Michael Byers and Simon Chesterman, "Changing the Rules About Rules? Unilateral Humanitarian Intervention and the Future of International Law," in J. L. Holzgrefe and Robert O. Keohane, eds., Humanitarian Intervention: Ethical, Legal and Political Dilemmas (Cambridge: Cambridge University Press, in press).

(9.) This reasoning convinced China to refrain from the use of its veto with respect to northern Iraq.

(10.) There is a burgeoning literature on the topic of transitional administrations. See, for example, Richard Caplan, A New Trusteeship? The International Administration of War-Torn Territories, IISS Adelphi Paper 341 (2002); Simon Chesterman, "East Timor in Transition: Self-Determination, State-Building and the United Nations," International Peacekeeping 9, no. 1 (2002): 45-76; and Yossi Sham and Juan J. Linz, Between States: Interim Governments and Democratic Transitions (Cambridge: Cambridge University Press, 1995).

(11.) Michael Walzer, "The Moral Standing of States: A Response to Four Critics," Philosophy and Public Affairs 9, no. 3 (1980): 209-229.

(12.) See Zhang Yunling, "China: Whither the World Order After Kosovo?" in Albrecht Schnabel and Ramesh Thakur, eds., Kosovo and the Challenge of Humanitarian Intervention (Tokyo: United Nations University Press, 2000), pp. 117-127. Similar objections were voiced by Russia and India.

(13.) See, for example, the joint statement by the leaders of China, Russia, Tajikistan, Kazakhstan, and Kyrgyzstan at their summit meeting 25-26 August 1999.

(14.) Henry Kissinger, Does America Need a Foreign Policy? Toward a Diplomacy for the 21st Century (New York: Simon & Schuster, 2001).

(15.) Robert Jackson, The Global Covenant: Human Conduct in a World of States (Oxford: Oxford University Press, 2000).

(16.) Pluralism (and its counterpart solidarism) was originally coined by Hedley Bull in "The Grotian Conception of International Society," in Herbert Butterfield and Martin Wight, eds., Diplomatic Investigations: Essays in the Theory of International Politics (London: Allen & Unwin, 1966), pp. 51-74. For more on pluralism, see James Mayall, World Politics: Progress and Its Limits (Cambridge: Polity Press, 2000).

(17.) This is Hedley Bull's argument in Intervention in World Politics (Oxford: Clarendon Press, 1984), p. 193.

(18.) Mohammed Ayoob, "Humanitarian Intervention and State Sovereignty," International Journal of Human Rights 6, no. 1 (2002): 81-102.

(19.) Canada was a major financial backer for the ICISS. Other funders included the Carnegie Corporation of New York, the William and Flora Hewlett Foundation, the John D. and Catherine T. MacArthur Foundation, the Rockefeller Foundation, and the Simons Foundation.

(20.) See his Annual Report to the General Assembly, press release SG/SM7136, 20 September 1999.

(21.) The other members of the panel spanned a diverse range of regional backgrounds and perspectives: Gisele Cote-Harper (Canada), Lee Hamilton (United States), Michael Ignatieff (Canada), Vladimir Lukin (Russia), Klaus Naumann (Germany), Cyril Ramaphosa (South Africa), Fidel V. Ramos (Philippines), Cornelio Sommaruga (Switzerland), Eduardo Stein Barillas (Guatemala), and Ramesh Thakur (India).

(22.) For more discussion on the origin and evolution of norms, see Martha Finnemore and Kathryn Sikkink, "Norm Dynamics and Political Change," International Organization 52, no. 4 (1998): 887-917.

(23.) An earlier articulation of "sovereignty as responsibility" can be found in Francis M. Deng, et al., in Sovereignty as Responsibility: Conflict Management in Africa (Washington, D.C.: Brookings Institution, 1996). Samuel Barkin adopts a similar approach in "The Evolution of the Constitution of Sovereignty and the Emergence of Human Rights Norms," Millennium 27, no. 2 (1998): 229-252.

(24.) See, for example, William Schabas, Genocide in International Law (Cambridge: Cambridge University Press, 2000), pp. 501-502.

(25.) Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 3d ed. (New York: Basic Books, 2000), pp. 101-108; Walzer, "The Politics of Rescue," Dissent (winter, 1995): 35-41.

(26.) For analysis of China's participation in international human rights norms, see Rosemary Foot, Rights Beyond Borders: The Global Community and the Struggle over Human Rights in China (Oxford: Oxford University Press, 2000).

(27.) See Sam Makinda's response to Ayoob, "The Global Covenant as an Evolving Institution," International Journal of Human Rights 6, no. 1 (2002): 113-126.

(28.) Michael Ignatieff, "Human Rights, Human Wrongs," The Amnesty Lectures, 2 February 2001.

(29.) Nicholas Rengger, "On the Just War Tradition in the Twenty-first Century," International Affairs 78, no. 2 (2002): 360-361.

(30.) Edward Mortimer, "A Few Words on Intervention: John Stuart Mill's Principles of International Action Applied to the Post--Cold War World" (London: John Stuart Mill Institute, 1995), pp. 15-17.

(31.) Notable examples include China's use of the veto in February 1999 to block a continued UN peacekeeping presence in Macedonia, and the recent threat by the United States to veto the continuation of the mission in Bosnia.

(32.) This is Ayoob's point in "Humanitarian Intervention and State Sovereignty." For more on the contingent nature of Security Council authority, see Ian Hurd, "Legitimacy, Power, and the Symbolic Life of the UN Security Council," Global Governance 8, no. 1 (2002): 35-51.

(33.) The material can be located on a special ICISS website:

(34.) Rengger, "The Just War Tradition," p. 362.

(35.) See, for example, Blair's speech to the Labour Party conference, reprinted in The Guardian, 3 October 2001, p. 4.
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Author:Welsh, Jennifer M.
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Date:Oct 1, 2002
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