Third World Quarterly, Vol. 25, No. 5, pp 977–992 2004
FEATURE REVIEW
The Responsibility to Protect: is anyone interested in humanitarian intervention? S NEIL MACFARLANE, CAROLIN J THIELKING & THOMAS G WEISS
In a post-September 11 and post-Iraq world, many people and states are having second thoughts about the importance and risks of humanitarian intervention. Does any one care any longer? Observers have become uneasy about strengthening the hand of interveners, most especially of the USA, but also of such allies as the UK. The ex post facto humanitarian justification of regime change in Baghdad highlighted the potential for abuse of the idea that there is an international responsibility to protect those suffering serious harm if their own state is either causing or alternatively unwilling or unable to avert it. As a result, the modest space for consensus about the legitimacy of military interventions for specific human protection purposes that had been emerging since the mid-1990s has been undermined and may suffer lasting damage. Future attempts to intervene in cases of mass murder or systematic human rights violations could be discredited merely by referring to the war in Iraq. Moreover, the war against terrorism consumes military resources, most particularly Washington’s. How many lives and how much money can be spared in order, paraphrasing Nicholas Wheeler, ‘merely’ to save the lives of strangers?1 The responsibility to protect needs adjustment in the light of the increasing demands on resources associated with the threat of terrorism. Humanitarian efforts that are not immediately connected with national interests could be regarded as a diversion from pressing new security challenges. In addition, attacks on humanitarian personnel in Afghanistan and especially in Iraq have raised the stakes for the civilian purveyors of aid. In short, the prospects for victims hoping for humanitarian intervention seem rather bleak. Has the concept of the responsibility to protect died after September 11, 2001 and the wars in Afghanistan and Iraq? Or is there still hope for a S Neil MacFarlane is Professor of International Relations and Carolin J Thielking is a doctoral candidate in International Relations at the University of Oxford. Thomas G Weiss is Director of the Ralph Bunche Institute for International Studies, Graduate Center, City University of New York, 365 Fifth Avenue, Suite 5203, New York, NY 10016-4309, USA. Email:
[email protected]. ISSN 0143-6597 print/ISSN 1360-2241 online/04/050977–18 © 2004 Third World Quarterly DOI: 10.1080/0143659042000232063
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continuing, deep normative change in contemporary international society with regard to the protection of civilians? Virtually coinciding with the September 2001 terrorist attacks on US territory was the publication of the report of the International Commission on Intervention and State Sovereignty (ICISS).2 In spite of academic attention and reviews,3 the December 2001 launch of The Responsibility to Protect has failed in the political goal of consolidating the consensus on conditions for humanitarian interventions after the events of the 1990s. Timing, indeed, is everything. We use the reactions to the ICISS suggestions as a touchstone for assessing current views about the prospects for future humanitarian interventions. We start by looking at academic and policy reactions and continue by examining regional responses. Next, we consider how the events of 11 September 2001 and the wars against Afghanistan and Iraq are affecting humanitarian discourse. We conclude that the concept of a responsibility to protect civilians in extreme humanitarian emergencies survived September 2001 and the war in Afghanistan, but is grievously threatened by the war in Iraq. The ‘responsibility to protect’ idea The Canadian government created the ICISS in September 2000 after UN Secretary-General Kofi Annan issued a challenge. He asked poignantly, ‘If humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica—to gross and systematic violations of human rights that offend every precept of our common humanity?’4 The commission’s report argued that the relationship between sovereignty and intervention was complementary rather than contradictory. Sovereignty was conceived as a conditional right dependent upon respect for a minimum standard of human rights and upon each state’s honouring its obligation to protect its citizens. If states were unwilling or unable to protect them, the responsibility to protect them would have to be borne by the international community of states. Building on earlier work by Francis M Deng,5 the opening lines of the ICISS report contain its central conclusion: State sovereignty implies responsibility, and the primary responsibility for the protection of its people lies with the state itself. 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 non-intervention yields to the international responsibility to protect.6
The notion of the responsibility to protect connotes a continuum of responsibilities to prevent, to react and to rebuild. The report employs a just war framework with respect to its ‘Principles for Military Intervention’ and presents additional ‘Operational Principles’ to guide decision makers contemplating interventions for human protection purposes. Most notably, the ICISS insists that the criterion of ‘right intention’ is only fulfilled if the primary motive of such a military action is to halt or avert human suffering. ‘Right authority’ stipulates that the UN Security Council is the appropriate body to approve such interventions. Only if the council fails to act may authorisation be found either in the General 978
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Assembly or in regional organisations under Chapter VIII of the UN Charter. The other criteria require that all non-military options should have been explored before military force is used (‘last resort’); that the scale, duration and intensity of an intervention be proportionate to the humanitarian objective (‘proportional means’); and that the operation must have a reasonable chance of success (‘reasonable prospects’). The operational principles are already supported by most practitioners: a clear mandate, a common military approach among coalition partners, co-ordination with humanitarian organisations, and the acceptance that force protection cannot become the principal objective of an intervention. The current debate on humanitarian intervention There are three distinct clusters of opinion in the debate on humanitarian interventions. The impact of September 11 is obvious in all. Opponents The first group more or less unequivocally condemns the idea of humanitarian intervention and the responsibility to protect. Four arguments stand out.7 First, the concept of sovereignty as responsibility resurrects ‘standards of civilisation’ and ‘the white man’s burden’. From this perspective the responsibility to protect has the potential to divide the world into ‘civilised’ and ‘uncivilised’ zones and promotes a return to semi-colonial practices in the latter. Not least, it is argued that powerful states will determine whose human rights justify departure from the principle of non-intervention. Most importantly, there is a clear and present danger that the responsibility to protect is merely a euphemism for American hegemony.8 Even its most bitter opponents like Mohammed Ayoob, however, sometimes admit that the sovereignty as responsibility approach has ‘considerable moral force’.9 The second criticism addresses the so-called ‘Just-Do-It-But-Don’t-Call-It-ADoctrine Approach’. Such critics are uncomfortable with instrumental decision making. According to this view, the decision to go to war in Kosovo is doubly problematic. Continuing on a case-by-case basis raises the matter of selectivity and arbitrary application, which affect legitimacy. Moreover, moving ahead with Security Council authorisation creates a gap between the legality and the legitimacy of an intervention. In David Chandler’s view, this is ‘an open argument for law-making by an elite group of Western powers sitting in judgement of their own actions’.10 A third position includes those who have backed off from humanitarian intervention. The most visible example is journalist David Rieff. A former proponent of forceful intervention in the Balkans and Rwanda, he now recommends a return to the ‘good old days’—when the standard operating procedures were the minimalist principles of the International Committee of the Red Cross (ICRC) and its off-shoot, Me´decins sans Frontie`res (MSF). He now favours impartiality and neutrality and attacks by name Michael Ignatieff and other 979
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optimists who preach ‘a revolution of moral concern’, because they have not ‘actually kept a single jackboot out of a single human face’.11 Finally, refugee and advocacy organisations warn about the effects of a politically motivated interpretation of the concept of a responsibility to protect. Examples include the UK’s ‘new vision’ for the global management of asylum seekers as well as the controversial notion put forward by Mrs Ogata of the ‘right to remain’.12 If interpreted selectively, the ICISS emphasis on prevention could subordinate the protection of refugee rights in host countries to protecting displaced persons in their countries of origin.13 Human Rights Watch (HRW) believes that this so-called new vision constitutes an effort to avoid the UK’s responsibilities under the 1951 Refugee Convention and other human rights treaties to protect refugees from return to an unsafe place and to uphold the right to asylum. Thus, it undermines the ‘responsibility-sharing principles’ of the international refugee protection system.14 However, representatives of the refugee community note that the responsibility to protect also implies the recognition of the right to asylum and thus welcome the concept. Agnostics and sceptics A second cluster of views encompasses a spectrum from agnosticism (or perhaps indifference) to scepticism, which has two main manifestations. One is the dearth of serious discussion of the topic of humanitarian intervention in the main journals focusing on international security since September 2001. The mainstream (realist) American security studies community is clearly disengaged, if we are to judge by the pages of International Security, International Organization, World Politics and Security Studies. Most scholars other than those who deal directly with human security and humanitarian action appear unfamiliar or unconcerned with humanitarian intervention. However, it is perhaps too early to say whether this reflects a major divergence in the discipline or merely the fact that the uptake of ideas is a slow process. The second dimension includes those scholars and policy analysts who judge the responsibility to protect more as a clever twist of vocabulary than as a first step towards an operational doctrine. They argue that the new term does not solve the fundamental problems of insufficient political will or provide a politically realistic blueprint for the changes in state practice that would be required to make the responsibility to protect meaningful in policy and operational terms. For example, it is suggested that the report’s criteria are simply a reformulation of Augustine’s doctrine of just war, with too little useful refinement to adapt this doctrine to contemporary conditions.15 The standardisation of criteria governing humanitarian interventions remains problematic; the key questions of authority, political will and operational capacity remain. Even if the ICISS has altered little with regard to the underlying issues, the change of terminology from a ‘right to humanitarian intervention’ to a ‘responsibility to protect’ has the potential to focus debate on the merits of individual cases and reduce polemics about the use of force to protect human beings.16 Nevertheless, the shift in vocabulary, in this view, is at most a fledgling step. However sympathetic to the report’s agenda for change, sceptics also underline 980
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the likely difficulties in attempts to implement the ICISS’s agenda. They emphasise the tremendous rhetorical and actual commitments required to live up to the idea of the responsibility to protect, and that such commitment is improbable. The report’s proposals represent a long-term agenda, given the political and financial impediments to their implementation. Optimists The final cluster of opinion suggests that the report is visionary but is none the less a realistic and substantial step, particularly in the longer term. Incremental improvements are more likely than ambitious reform. Moreover, many of the optimists still accept the need to develop an effective strategy to generate necessary political will. Indeed, many commentators argue that the key issue left in suspense is how to generate sufficient political will to respond consistently to those cases that meet the ICISS criteria for intervention.17 At the far end of the optimists’ cluster is an enthusiastic group who believe that the ICISS has produced a guide to action that is unlikely to be rejected out of hand and that will substantially advance the debate on and practice of humanitarian intervention. UN Secretary-General Kofi Annan suggests that the notion of the responsibility to protect takes away the last excuses for states to do nothing when doing something can save lives.18 Of major government leaders, Tony Blair is probably the only one who has embraced the ICISS report enthusiastically. As Guardian journalist John Lloyd argues, the report can be regarded as ‘the logical extension of the ethical dimension in foreign policy that Labour promulgated when it came to office’.19 The bottom line is that optimists view The Responsibility to Protect as the most comprehensive attempt to date to tackle sovereignty versus intervention. It captures a workable consensus, ‘the international state of the mind’ according to former New York Times columnist Anthony Lewis.20 The report is more successful in balancing and reconciling the sometimes contradictory political, legal and moral arguments relating to humanitarian intervention than are the Danish and Dutch government reports of 1999 and 2000, and the 2000 report (sponsored by the Swedish government) of the Independent International Commission on Kosovo.21 Regional responses A recurrent issue in responses to the report revolves around the liberal internationalist framework that the commission adopted. The commission’s conclusions were supposed to be a product of a truly international dialogue. However, in spite of the commission’s composition and globe-trotting to take into account diverse perspectives in order to move beyond pro-intervention and transatlantic views, some commentators argue that the ICISS remains confined to liberal internationalist discourse. It does not reflect a universal consensus on the issue of humanitarian intervention; and, therefore, it is not going to have significant effects on international political practice.22 General statements regarding the responses of individual regions are problem981
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atic. In addition, any account of reactions to the report must acknowledge the distorting effects of the war against Iraq. With respect to Arab and Muslim countries, it seems impossible to disentangle the debate about guidelines for future interventions for human protection purposes from polarising issues in the current politics of the Middle East. In recent literature, however, the following assessments can be found. While Western and many sub-Saharan African and Latin American countries have largely welcomed the report, East Asian countries are more cautious, Russia appears to be lukewarm, and China seems to disapprove. Nearly all governments are hesitant to commit themselves to criteria that would require military action, although the value of discussing guidelines is recognised. China’s utter rejection of the notion of humanitarian intervention, which was expressed during the ICISS’s roundtable consultation in Beijing in June 2001, has, according to some, not been adequately taken into account in the report.23 The fact that the commission did not include a Chinese member makes it difficult to dismiss outright such criticism. In Russia there is a group of writers who share a certain apathy rooted in the feeling that Moscow will not be in a position to influence significantly the humanitarian intervention agenda anyway. There are also more critical voices who stress the importance of a strict non-intervention rule because Russia itself could become a target of an intervention in Chechnya for human protection purposes.24 Given the legacy of conflicts in Africa, it is not surprising that the importance of the ICISS agenda is widely recognised by states on the continent.25 The inclusion in the charters of both the African Union (AU) and the Southern African Development Community (SADC) of explicit provisions for intervention to curb genocide, war crimes, and crimes against humanity is potentially highly significant. However, the ICISS thresholds do not include systematic racial discrimination and massive human rights abuses, which are jus cogens norms for most international lawyers. ‘Ironically, it appears that the ICISS thresholds for intervention are more conservative than those of African states’, writes Jeremy Levitt, ‘which historically are among the staunchest subscribers to the international law principles of nonintervention and state sovereignty’.26 Although the principle of non-interference is still vibrant in the Americas, it is clearly not sacrosanct and was disregarded in 1994 in Haiti, where democracy was overthrown and human rights violated. In September 2001 member states of the Organization of American States (OAS) adopted the Inter-American Democratic Charter, which formalises the hemisphere’s determination to take collective action when democracy is threatened. At a 2002 conference of the Fund for Peace (FFP) on the perspectives from the Americas on military intervention within the context of the Regional Responses to Internal War Program, participants adopted the language of the ICISS and explicitly accepted the responsibility to protect civilians from massive abuse.27 Within the same programme another consultation showed that East Asian governments and regional organisations still cling firmly to the principles of sovereignty and non-interference in internal affairs. Nevertheless, attitudes towards military intervention by outside forces in humanitarian crises seem to 982
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have evolved somewhat—it is now considered a legitimate if extraordinary response.28 A panel of speakers brought together at the Asia–Pacific Roundtable in Kuala Lumpur to discuss The Responsibility to Protect highlighted Asian fears that action by states without UN authorisation can set dangerous precedents.29 During this meeting, the sentiment that developing countries have little voice in intervention decisions loomed large. The Responsibility to Protect after 11 September 2001 and the war against Iraq At the Security Council’s annual private retreat in May 2002 the ICISS recommendations were discussed with the commission’s co-chairs. The USA was unenthusiastic about The Responsibility to Protect. The Bush administration does not and will not accept the substance of the report or support any formal declaration or resolution about it.30 This reluctance is nothing new. US views about force requirements go beyond what other NATO members see as desirable, even in an instance like Rwanda.31 Hence, Washington’s position reflects not only its current preoccupation with the war on terrorism but also a general policy to avoid entanglements that do not directly concern its national interest. Reservations towards general guidelines for humanitarian intervention began long before 11 September 2001. However, other Security Council members also voiced concerns about committing to any criteria and were unwilling to give up the practice of case-by-case decision making about whether to intervene for humanitarian or any other reasons. An additional subterranean theme was that criteria might actually facilitate intervention rather than make it more accountable. Moreover, according to the British and French ambassadors, there was widespread agreement during the retreat that, if new situations emerged—for example in Burundi or the Congo—the five permanent members and the broader council would lack the political will to deliver troops and would restrict themselves to condemnatory resolutions.32 It thus remains politically impossible to codify criteria for humanitarian intervention in contemporary international relations. They may be useful in theory, but they only harden opposition in current political practice. For the Congo and Liberia the prediction that major powers would not respond forcefully to a new humanitarian emergency after September 11 proved somewhat too pessimistic. France led a multinational EU force into the Ituri region of the Congo in summer 2003 to halt an upsurge of ethnic violence and perhaps to demonstrate to Washington that the EU can act outside of the continent independently of NATO. The effort also sought to further develop an EU security identity which embraces the basic idea of a responsibility to protect. The US decision to burnish its image in Africa and Europe after attacking Iraq without UN authorisation was evident in keeping 2000 marines off-shore in Liberia, but only a small number went ashore and only for a limited period; it was Nigerian soldiers who, once again, did the heavy lifting under the aegis of the Economic Community of West African States (ECOWAS). The September 2002 National Security Strategy of the USA significantly affects the way that the concept of a responsibility to protect has been received 983
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and will be interpreted.33 A special section of The Nation in July 2003, for instance, was supposedly devoted to ‘Humanitarian Intervention: A Forum’. However, the contents reflected the preoccupation of a dozen commentators with Washington’s strategy for the use of force. Richard Falk began, ‘the American approach to humanitarian intervention morphed into post hoc rationalizations for uses of force otherwise difficult to reconcile with international law’.34 In this context, another backlash was the hostile reaction to Canadian Prime Minister Jean Chre´tien’s and British Prime Minister Tony Blair’s efforts at the 13–14 July 2003 Progressive Governance Summit of left-of-center government leaders to quote the basic principle from the ICISS report in the final communique´ and to seek support for a continued discussion at the United Nations. When Argentina, Chile and Germany in particular strongly objected to such a suggestion, a supportive passage was removed. Care is necessary not to extrapolate from a single event, but this seemed a surprising new kind of hostility among countries that earlier might have been counted among the supporters of the concept. Their worst fears regarding US military activism were revived by the Iraq crisis and confirmed by UK Prime Minister Tony Blair’s and US President George W Bush’s attempt to twist the concept of the responsibility to protect to provide a justification after the fact for the use of force in Iraq. Human protection became the only remaining justification for the US-led war after the failure to find any weapons of mass destruction in Iraq or to establish clear links to Al Qaeda. However, the war against Iraq clearly does not fulfil the ICISS criteria. The criteria of ‘just cause’ and ‘last resort’ demand large-scale human suffering that cannot be averted by other means. There was no such instant crisis in 2003, even if some of those who belong to the liberal left have ended up supporting the intervention because of the human rights problem in Iraq. The criterion of ‘right authority’ requires a UN Security Council mandate, or at least an overwhelming degree of international support. Both were lacking in the case of Iraq. Finally, the initial justifications of the USA did not correspond to the criterion of ‘right intention’. The title of the introduction to the 2004 annual report from Human Rights Watch says it well: ‘War in Iraq: Not a Humanitarian Intervention’.35 But there are also suspicions beyond the war in Iraq. The Bush doctrine of pre-emptive or even preventive self-defence is regarded by many states as a general threat that requires a renewed commitment to the non-intervention rule. Thus there is likely to be more pressure to return to classic Westphalian notions of sovereignty that underpin international society than to pursue vigorously criteria that would justify humanitarian intervention. Indeed, the Bush administration regards humanitarian action as one of the fields of operation to win the war on terrorism, which thus makes so-called humanitarian motivations even more suspect. This manipulation of the humanitarian rationale for self-interested military interventions seriously undermines the idea of an impartial and neutral responsibility to protect—even if this phenomenon also is not new. As David Rieff notes, it has become virtually impossible for a Western democracy in the post-cold war era to wage war ‘without describing it to some extent in humanitarian terms’.36 The war on terror is corrosive of the responsibility to protect in another way 984
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as well. The quest for allies in the war against terror may be undermining commitments to the human rights principles that underpin the logic of humanitarian intervention. The international tolerance of Pervez Musharaf’s suborning of the democratic process in Pakistan is one example. The willingness to deal with Afghan warlords such as Rashid Dostum at the expense of the development of democracy and human rights in Afghanistan is another. A less well known example of the trade-offs is the USA’s courting of Uzbekistan’s Islam Karimov. Access to Uzbek bases and air space is deemed important to the war against remnants of the Taliban and Al Qaeda in Afghanistan. With this in mind, the USA has mounted a substantial security assistance programme in return for the right to use the Khanabad airbase, while muting its criticism of Uzbekistan’s human rights record.37 In contrast, in October 2002, the British ambassador severely and publicly criticised the Uzbek government for its human rights record, noting that ‘no government has the right to use the war against terrorism as an excuse for the persecution of those with a deep personal commitment to the Islamic religion, and who pursue their views by peaceful means’.38 His remarks reportedly irritated the US ambassador, and Washington’s displeasure was brought to the attention of the prime minister’s office. When the British ambassador left for home on health grounds, Britain’s press reported that he was being hounded out of the Foreign Service for being ‘off message’. To the extent that major powers are willing to write off their human rights agendas as part of a counter-terrorist strategy, real questions must be raised about the viability of the responsibility to protect as a key principle of international society. The future of humanitarian intervention The military action by French and British forces in the Congo and in Liberia reminds diplomats and humanitarians of the continuing challenges of assistance and protection outside Afghanistan and Iraq. However, the rising death toll of foreign military and humanitarian personnel in the latter two countries and the intractability of the situations on the ground could also make it harder in the future to generate support for humanitarian interventions without the expressed consent of warring parties. Most importantly, given competing demands for limited resources, politicians will be obliged to balance the requirements of the war against terrorism for the sake of their own populations against the vaguer, or at least more distant, demands of humanity. Although the empirical link between destitution and terrorism is much disputed, failing to address root causes or the demands of humanity will undoubtedly exacerbate the challenge of terrorism. US military hegemony is a stark reality in the contemporary international system. ‘Primacy’ fails to capture the fact that Washington’s military expenditures are more than the rest of the world combined.39 Thus, assent, if not participation, by what former French Foreign Minister Hubert Ve´drine called the ‘hyper-puissance’ (hyper-power) is a sine qua non of large-scale collective military responses. This reality will not change unless Europeans have an independent military capacity; and to date neither populations nor parliaments 985
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have demonstrated any willingness to spend more on defence. Increases in rhetoric about a European Security and Defence Policy (ESDP) far outpace those in spending. Andrew Moravcsik argues for a division of labour between US enforcement and European peacekeeping.40 But the next Kosovo will almost surely take place outside the continent, and Europe’s failure to develop an independent capacity—indeed, its military capabilities continue to decline vis-a`vis those of the USA—imposes a severe constraint on UN activities, especially humanitarian intervention. At the same time downsizing of the armed forces over the past 15 years means an insufficient supply of equipment and manpower—in the USA and elsewhere—to meet the rising demands for humanitarian intervention or even peacekeeping. There are bottlenecks in the US logistics chain—especially in airlift capacity—that make a rapid international response improbable in a fast-moving, Rwanda-like genocide. With half the US army tied down in Iraq and reserves routinely being called upon to serve overseas, questions are being raised about the capacity to respond to a serious security threat, let alone to ‘distractions’ like Liberia or Haiti. Indeed, the scrambling by Washington and Ottawa, along with Paris, in order to send a few thousand troops after JeanBertrand Aristide went into exile underlines the difficulties of responding even in the ‘backyard’. However, as to the basic question of what kind of role humanitarian interventions should play in a post-September 11 world, the answer should be clear. Mass starvation, rape and suffering will reappear as global security threats, and humanitarian intervention will continue to smoulder on the public policy agenda. The debates of the 1990s will retain salience.41 Conscience-shocking human suffering will not be passe´ after the wars with Afghanistan and Iraq. Rather, there will be more humanitarian crises, and we will know about them ever more rapidly, even if they occur in faraway places. It is hard to imagine an indifference so widespread that there will not be calls to do something to halt or attenuate mass suffering. There is no alternative in many situations to military coercion for human protection purposes. And at the point at which a politically acceptable threshold has been crossed—and the ICISS’s bar of mass loss of life and ethnic cleansing hardly seems too high—there undoubtedly will be a call in the West to examine the option of humanitarian intervention and come to the rescue. In this context, in a January 2003 survey by the Program on International Policy Attitudes (PIPA), US citizens were asked whether they thought that the USA and other Western powers had a moral obligation to use military force in Africa, if necessary, to prevent one group of people from committing genocide against another.42 Fifty-five percent believed that the USA does have such an obligation. This result is virtually unchanged from June 1999, when a Pew survey found 58% saying the USA had this moral obligation. When asked the same question about Europe in the January 2003 poll, 74% responded that the USA has a moral obligation to prevent genocide there, and only 16% said it does not. According to PIPA, this difference is the result of greater satisfaction with the outcomes of the interventions in Bosnia and Kosovo. When Pew asked this question about Europe in 1999, only 60% believed in an obligation to intervene, 986
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a percentage slightly higher than figures indicating support for interventions in Africa or Asia. It seems that public opinion in the country whose focus could arguably have shifted exclusively to the war against terrorism still accepts the idea of a responsibility to protect after September 11, and one to undertake military action in Afghanistan and now in Iraq—at least as long as there are reasonable prospects that the intervention for human protection purposes is going to be successful. There is no reason to believe that support for such operations outside the USA has changed significantly since 2001. In short, the Western public’s belief in an obligation to respond to gross and systematic human rights violations in other countries has survived the attacks of September 11 as well as the wars in Afghanistan and Iraq. Some modest steps forward? In order to have a report on reform before the General Assembly in 2004, the UN Secretary-General has established a 16-person High-Level Panel on Threats, Challenges and Change. Humanitarian intervention is on the panel’s radar screen. What cannot and can be done? Does any one any longer care? Three common thoughts about reform are bound to arise but are problematic in the present charged political environment. Altering the Security Council is an illusion for well known reasons: the P-5 will not give up their vetoes, and there is no gimmick to finesse the lack of consensus about other permanent seats. The persistence of discussion of this topic in UN circles demonstrates the extent to which process takes priority over pragmatism.43 None of the proposals under consideration would actually make humanitarian intervention more likely—indeed, fewer decisions and less action would emanate from a ‘rump General Assembly’ in the form of an enlarged Security Council. There also is no need for Charter reform to permit Chapter VII humanitarian intervention, which was suggested by the Commission on Global Governance and others,44 because the definition of ‘international peace and security’ has effectively expanded to include humanitarian catastrophes. Finally, the notion of an independent rapid reaction force to halt major humanitarian catastrophes is economically, logistically and politically infeasible. Are there other actionable steps that could move the agenda of humanitarian action ahead? Five come to mind, and they are listed in order of urgency. First, laments about inefficiency and overlap within the UN delivery system are commonplace, but eyes glaze over at the mention of ‘co-ordination’. Yet a radical consolidation of the UN’s humanitarian machinery almost took place. It was in the penultimate draft of the 1997 reform at the outset of Kofi Annan’s first term, until turf-consciousness surfaced, and bureaucratic shenanigans replaced meaningful centralisation.45 Radical surgery should not be postponed any longer. Pulling together the UN’s emergency menagerie (UNHCR, UNICEF, WFP, UNDP and OCHA) under the leadership of a single agency is urgent and doable. Moreover, there is no career track for civilian humanitarians, which would be possible within a ‘World Humanitarian Action Organization’. Second, it is time to revisit the security posture of civilian personnel on the ground in active war zones. The inadequacy of ‘copyrighted’ humanitarian 987
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principles (neutrality and impartiality) was palpable even before attacks in Baghdad on UN and ICRC headquarters in August, September and October 2003. Since 1992 over 200 UN civilian staff have been killed in 45 countries by ‘malicious acts’, while they were delivering food, medicine and shelter and reconstructing war-torn countries. Another 270 staff (both civilian and military) have been held hostage in 27 countries, and 34 are still detained.46 The UN is obliged to be present in every emergency, but its personnel and procedures are ill adapted to an increasing number of extremely violent war zones. If occupying forces or outside military forces do not provide relief and protection in such areas, then ‘civilian’ personnel with military expertise might fill the gap. In this context, the role of private military companies and the notion of ‘white helmets’ (retired military personnel with a self-protection capacity) to provide succour in truly dangerous wars should be considered. Third, on the normative front and as suggested by the ICISS, it would be worthwhile over the medium term to pursue the humanitarian equivalent of 1970 General Assembly resolution 2625. The ‘Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States’ helped recast sovereignty (particularly self-determination and decolonisation) ‘in accordance with the Charter of the United Nations’. The codification of sovereignty as responsibility in the form of soft law, or emerging custom, would help advance the norm that halting egregious abuses of human life matters more than treating sovereignty as sacrosanct. Principles are diluted through inconsistency; a ‘Declaration on Responsible Sovereignty’ might help reduce selectivity. The ICISS proposed two thresholds—large-scale loss of life and ethnic cleansing. This bar is too low for some member states and too high for others, which suggests the right politically feasible height. The declaration would also refer to just war criteria or precautionary conditions (right intention, last resort, proportionality and reasonable prospects) that apply to humanitarian intervention. The occasion of the UN’s 60th anniversary in 2005 provides a possible moment to revive this notion. Fourth, public opinion is crucial in generating the requisite national and international political will for humanitarian intervention, and ways should be found to help facilitate better media coverage of crises in which the responsibility to protect might be invoked. This reality was crystal clear in Samantha Power’s book about how the USA, the home of Holocaust awareness, permitted the Rwandan genocide.47 A key factor in making future humanitarian interventions actually happen would be that the media take up the responsibility to cover massive and systematic human rights violations as early and as much as possible in order to raise the public awareness of atrocities. Dafur comes to mind. Fifth, respect for human rights constitutes an integral part of the academic definition of ‘security’ for many, but it is not yet so perceived by most foreign policy decision makers. In order to make the need to react occupy a more prominent place on the great powers’ agenda—they are the only ones that have the capacity to intervene—it is necessary to marshal evidence for the redefinition of their short-term and long-term national interests. This approach is hard to universalise. On the one hand, Europe’s policy makers will see rights abuses in their neighbourhood as imminent threats to peace and security because of the 988
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price paid (migration, criminality, etc), just as Haiti in 1994 and even in 2004 was so viewed by the USA and East Timor in 1999 by Australia. The case is much tougher to make for a Burundi or a Congo for any country in the West, but the importance of helping to build an international society in which genocide is not a policy option may become more evident. How many more times do states have to establish ad hoc criminal tribunals and spend billions of dollars addressing the fallout from humanitarian disasters before this basic lesson is learned? Conclusion The previous argument points in the direction of a reduced emphasis on humanitarian intervention from the heady days of the 1990s. Human rights liberalism currently seems a luxury. It is not without interest that Michael Ignatieff, a member of the ICISS and long a strong voice for human rights, now recommends the expansion of the responsibility to protect to cover eliminating weapons of mass destruction and the terrorist threat.48 And Anne-Marie Slaughter, while president of the American Society of International Law, wrote that old international conventions could be of limited use in the new era.49 The vastly changed security landscape ensures that humanitarian intervention is likely to remain a distraction unless the concept of sovereignty as responsibility is joined to a debate about the range of horrors that could justify military action to sustain human values. Many of those who support the idea of humanitarian intervention as yet seem unwilling to engage in a broader discussion about the range of legitimate uses of military force. Indeed, many shy away from the notion of a larger debate in order to avoid in any way appearing to approve the rhetoric and reality of US foreign and military policy since 11 September 2001. Yet the debate has begun. Lee Feinstein, and Slaughter, for instance, argue for a new ‘duty to prevent’ that is an ‘extrapolation’ of the responsibility to protect, while Allan Buchanan and Robert Keohane are calling for the ‘cosmopolitan’ use of preventive military force.50 It is still conceivable that the tragic terrorist attacks of September 2001 and their aftermath, including the so-called war against terrorism and the actual wars in Afghanistan and Iraq, may not overwhelm the concept of humanitarian intervention.51 The discussion of rescuing individuals from the throes of war does not exist in isolation but is part of a broader process of embedding protection in international norms and practice. This process includes the accumulation of Security Council resolutions mandating the use of force for humanitarian purposes. The agenda underpinning these resolutions has been reaffirmed as a general principle in two resolutions (1265 and 1296) on the protection of civilians in war, which posit that massive human rights violations or interference with humanitarian access can constitute threats to international peace and security and that in such circumstances the council may consider action under Chapter VII. This agenda is also clear in the array of resolutions on the needs of women and children in war. In other words, there is a substantial and growing body of quasi-legislation or soft law under the general rubric of the responsibility to protect. The establish989
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ment of the International Criminal Court (ICC), despite Washington’s strident opposition, suggests a similar trend in international criminal law. At the regional level the trend is evident in the gradual EU move towards the creation of a multinational force with a substantially humanitarian mandate. Although the war on terror takes the headlines, there is evidence of a quieter movement over the longer run towards institutionalising the protection of civilians in international society. Furthermore, the war on terror has dramatically changed the assessment of threats from an exclusive focus on states to one that also includes transnational groups. It has also required consideration of appropriate responses to unconventional and asymmetrical uses of violence by these non-state actors. It has raised the issue of the legality or desirability of the pre-emptive use of force, where waiting for an attack—the location, nature and scope of which are difficult to predict—is potentially disastrous. The concept of humanitarian intervention— and the idea of a responsibility to protect—still matters in a deeper way by expressing the necessity of taking into account the fate of human beings in the articulation of foreign and security policy, including the use of force.
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Nicholas J Wheeler, Saving Strangers: Humanitarian Intervention and International Society, Oxford: Oxford University Press, 2002. ICISS, The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty, Ottawa: International Development Research Council, 2001. These reviews include Joelle Tanguy, ‘Redefining sovereignty and intervention, Ethics and International Affairs, 17 (1), 2003, pp 141–148; Adam Roberts, ‘The price of protection’, Survival, 44 (4), 2002, pp 157–161; Ian Williams, ‘Righting the wrongs of past interventions: a review of the International Commission on Intervention and State Sovereignty’, International Journal of Human Rights, 6 (3), 2002, pp 103–113; David Ryan, ‘Report of the International Commission on Intervention and State Sovereignty: The Responsibility to Protect’, International Affairs, 78 (4), 2002, pp 890–891; Peter J Burgess, ‘The foundation for a new consensus on humanitarian intervention’, Security Dialogue, 33 (3), 2002, pp 383– 384; Jane Boulden, ‘Book review: The Responsibility to Protect’, Journal of Refugee Studies, 15 (4), 2002, pp 428–429; Edward Newman, ‘Humanitarian intervention, legality and legitimacy’, International Journal of Human Rights, 6 (4), 2002, pp 102–120; Thomas G Weiss, ‘To intervene or not to intervene? A contemporary snap-shot’, Canadian Foreign Policy, 9 (2), 2002, pp 141–157; Jennifer M Welsh, ‘Review essay: from right to responsibility: humanitarian intervention and international society’, Global Governance, 8 (4), 2002, pp 503–521; Jennifer Welsh et al, ‘The Responsibility to Protect: assessing the report of the International Commission on Intervention and State Sovereignty’, International Journal, 57 (4), 2002, pp 489–512; Daniel Warner, ‘The responsibility to protect and irresponsible, cynical engagement’, Millennium, 32 (1), 2003, pp 109–121; and Jeremy I Levitt, ‘The responsibility to protect: a beaver without a dam?’, Michigan Journal of International Law, 25 (1), 2003, pp 153–177. See also JL Holzgrefe & Robert O Keohane (eds), Humanitarian Intervention: Ethical, Legal, and Political Dilemmas, Cambridge: Cambridge University Press, 2003; Jennifer Welsh (ed), Humanitarian Intervention and International Relations, Oxford: Oxford University Press, 2003; Commission on Human Security, Human Security Now, New York: Commission on Human Security, 2003, pp 10, 57; Peter Singer, One World: The Ethics of Globalization, New Haven, CT: Yale University Press, 2002; Kathleen Newland, No Refuge: The Challenge of Internal Displacement, New York: OCHA, 2003; and John Harker, ‘Intervention is served: the US Federal Alien Torts Claims Act and the irony of ironies’, Cambridge Review of International Affairs, 16 (1), 2003, pp 155–164. Report of the Secretary-General on the Work of the Organisation, A/54/1, 1999, p 48. See, for example, Francis M Deng et al, Sovereignty as Responsibility: Conflict Management in Africa, Washington, DC: Brookings Institution, 1996; and Francis M Deng, ‘Frontiers of sovereignty’, Leiden Journal of International Law, 8 (2), 1995, pp 249–286. ICISS, The Responsibility to Protect, p xi.
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Mohammed Ayoob, ‘Humanitarian intervention and international society’, International Journal of Human Rights, 6 (1), 2002, pp 81–102; David Chandler, From Kosovo to Kabul: Human Rights and International Intervention, Pluto Press: London, 2002; Lance Selfa, ‘A new colonial “Age of Empire”?’, International Socialist Review, 23, 2002; David Rieff, A Bed for the Night: Humanitarianism in Crisis, London: Vintage, 2002; and Bola A Akinterinwa, ‘Sovereign irresponsibility and collective aggression’, This Day on the Web, 6 May 2002. Rosemary Foot, S Neil MacFarlane & Michael Mastanduno (eds), The United States and Multilateral Organizations, Oxford: Oxford University Press, 2003; and Michael Byers & Georg Nolte (eds), United States Hegemony and the Foundations of International Law, Cambridge: Cambridge University Press, 2003. Ayoob, ‘Humanitarian intervention and international society’, p 84. Chandler, From Kosovo to Kabul, p 135. Rieff, A Bed for the Night, pp 10, 15. ‘New international approaches to asylum processing and protection’, correspondence from UK Prime Minister Tony Blair to Costas Simitis, Prime Minister of Greece and President of the European Council, 10 March 2003. ‘Tony Blairs Anschlag auf den internationalen Flu¨chtlingsschutz’, Antifaschistische Nachrichten: Asyl- und Ausla¨nderpolitik, 8, 2003, at http://www.antifaschistische-nachrichten.de. The issue of the right to remain has a long pedigree. See also Guy Goodwin-Gill, ‘The right to leave, the right to return and the question of a right to remain’, in Vera Gowlland-Debbas (ed), The Problem of Refugees in the Light of Contemporary Law Issues, Dordrecht: Martinus Nijhoff, 1995. Human Rights Watch, ‘An unjust “vision” for Europe’s refugees: Human Rights Watch commentary on the UK’s “New Vision” proposal for the establishment of refugee processing centers abroad’, 17 June 2003, at http://www.hrw.org. Walter Dorn, Secretary of the Canadian Pugwash Group and Research Professor with the Department of Politics and Economics, Royal Military College. See Erika Simpson, ‘The Responsibility to Protect: A Seminar on the Report of the International Commission on Intervention and State Sovereignty’, Science for Peace/Pugwash Conference, Toronto, 23 March 2002, p 4. Newman, ‘Humanitarian intervention, legality and legitimacy’, p 108; and Weiss, ‘To intervene or not to intervene?’, p 144. Larissa Fast, ‘Reframing the intervention debate: a responsibility to protect’, Ploughshares Monitor, 23 (1), 2002, pp 2–5. UN document SG/SM/8125, 15 February 2002. John Lloyd, ‘Comment and analysis: the Left has lost the plot: by defending sovereignty in the name of anti-imperialism, opponents of war undermine their claim to champion the oppressed’, Guardian, 11 April 2003, p 25. Anthony Lewis, ‘The challenge of global justice now’, Dædalus, 132 (1), 2003, p 8. This is the view of Newman, ‘Humanitarian intervention, legality and legitimacy’. Compare Danish Institute of International Affairs, Humanitarian Intervention: Legal and Political Aspects, Copenhagen: Danish Institute of International Affairs, 1999; Advisory Council on International Affairs and Advisory Committee on Issues of Public International Law, Humanitarian Intervention, The Hague: Advisory Council on International Affairs, 2000; and Independent International Commission on Kosovo, The Kosovo Report: Conflict, International Response, Lessons Learned, Oxford: Oxford University Press, 2000. See Newman, ‘Humanitarian intervention, legality and legitimacy’; and Ryan, ‘Report of the International Commission on Intervention and State Sovereignty’. Williams, ‘Righting the wrongs of past interventions’, p 106. Victor Sheinis, ‘National interests and Russia’s foreign policy’, Mirovaya ekonomika I mezhdunarodnye otnosheniya, 4, 2003, pp 33–46; Alexei Bogaturov, ‘Revolt for defence of non-intervention’, Nezavisimaya gazeta, 18 February 2003. Roger Williamson, The Responsibility to Protect: The International Duty to Defend the Vulnerable, Report on Wilton Park Conference 700, p 10, at http://www.wiltonpark.org.uk. Levitt, ‘The responsibility to protect’. See also his Africa: Selected Documents on Constitutive, Conflict and Security, Humanitarian, and Judicial Issues, Ardsley, NY: Transnational Publishers, 2003. FFP Reports, Perspectives from the Americas on Military Intervention: Conference Summary, June 2002, p 4, at http://www.fundforpeace.org. FFP Reports, Perspectives from Asia on Military Intervention: Conference Summary, September 2002, at http://www.fundforpeace.org. “The Responsibility to Protect”: a special panel at the APRT, CANCAPS Bulletin, 34, August 2002, at http://www.iir.ubc.ca/cancaps/bulletin.html. Adam Roberts, ‘The United Nations and humanitarian intervention’, in Welsh, Humanitarian Intervention and International Relations, pp 71–97. See, for example, Alan J Kuperman, The Limits of Humanitarian Intervention: Genocide in Rwanda, Washington, DC: Brookings Institution, 2001.
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See Jennifer Welsh, ‘Conclusion: humanitarian intervention after September 11th’, in Welsh, Humanitarian Intervention and International Relations, pp 176–183. National Security Strategy of the USA, at http://www.whitehouse.gov/nsc/nss.html. ‘Humanitarian intervention: a forum’, The Nation, 27, 2003, p 12. The comments came from Commissioner Ramesh Thakur joined by Richard Falk, Mary Kaldor, Carl Tham, Samantha Power, Mahmood Mamdani, David Rieff, Eric Rouleau, Zia Mian, Ronald Steel, Stephen Holmes and Stephen Zunes. Ken Roth, ‘War in Iraq: not a humanitarian intervention’, in Human Rights Watch World Report 2004: Human Rights and Armed Conflict, New York: Human Rights Watch, 2004, pp 13–35. Rieff, A Bed for the Night, p 240. For example, in March 2003 the State Department failed to list Uzbekistan as a ‘country of particular concern’ under the 1998 International Religious Freedom Act, a decision which a Human Rights Watch researcher termed ‘absurd’, given the intensity of religious persecution in the country. Acacia Shields, ‘The meaning of concern: Washington indulges Uzbekistan’s atrocities’, Eurasianet, 27 March 2003, at http://www.eurasianet.org/departments/rights/articles/eav032703 pr.shtml. Quoted by Martin Bright, ‘Repression in Uzbekistan is “terrible” ’, Observer, 19 October 2003. ‘Last of the big time spenders: US military budget still the world’s largest, and growing’, Center for Defense Information, Table on Fiscal Year 2004 Budget, based on data provided by the US Department of Defense and International Institute for Strategic Studies, Washington, DC, at www.cdi.org/budget/2004/ world-military-spending.cfm. Andrew Moravcsik, ‘Striking a new transatlantic bargain’, Foreign Affairs, 82 (4), 2003, pp 74–89. A recent compilation is Anthony F Lang, Jr (ed), Just Intervention, Washington, DC: Georgetown University, 2003. See http://www.americans-world.org/digest/regional issues/africa/africa4.cfm. Thomas G Weiss, ‘The illusion of Security Council reform’, Washington Quarterly, 26 (4), 2003, pp 147–161. Commission on Global Governance, Our Global Neighbourhood, Oxford: Oxford University Press, 1995, p 90. The 1997 so-called reform is analysed in Thomas G Weiss, ‘Humanitarian shell games: whither UN reform?’, Security Dialogue, 29 (1), 1998, pp 9–23. ‘Scope of legal protection under the Convention on the Safety of UN and Associated Personnel. Report of the Secretary-General’, UN document A/48/187, 28 July 2003. Samantha Power, A Problem from Hell: America and the Age of Genocide, New York: Basic Books, 2002. Michael Ignatieff, ‘Why are we in Iraq? (And Liberia? And Afghanistan?)’, New York Times Magazine, 7 September 2003. Anne-Marie Slaughter, ‘Good reasons for going around the UN’, New York Times, 18 March 2003. Lee Feinstein & Anne-Marie Slaughter, ‘A duty to prevent’, Foreign Affairs, 83 (1), 2004, pp 136–150; and Allan Buchanan & Robert O Keohane, ‘The preventive use of force: a cosmopolitan institutional proposal’, Ethics & International Affairs, 18 (1), 2004, pp 1–22. See discussions in Jane Boulden & Thomas G Weiss (eds), The UN and Terrorism: Before and After September 11, Bloomington, IN: Indiana Univeristy Press, 2004; and Thomas G Weiss, Margaret E Crahan & John Goering (eds), Wars on Terrorism and Iraq: Human Rights, Unilateralism, and US Foreign Policy, London: Routledge, 2004.
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