Vol. 13 No. 7 (July 2003)
HUMANITARIAN INTERVENTION: Ethical, Legal, and Political Dilemmas, edited by J.L. Holzgrefe and Robert O. Keohane. Cambridge: Cambridge University Press, 2003. 350pp. $25.00 Paperback. ISBN 0-521-52928-X.
Reviewed by Susan C. Breau, School of Law, Queen’s University, Belfast, Northern Ireland. Email: s.breau@qub.ac.uk.
Some scholars might argue that the events of 11 September 2001 changed the landscape of international law, rendering the debate concerning humanitarian intervention obsolete. However, even those conflicts that have taken place in Afghanistan and Iraq contained elements of legal justification based on the massive violations of human rights. There have been large numbers of interventions since the Second World War, both with and without United Nations authorization, that were legally justified on the basis of preventing widespread and grave violations of fundamental human rights. Therefore, this book is timely and necessary. It contains an added feature of inter-disciplinary research with elements of international law, international relations, and political and moral theory. The standard review of humanitarian intervention has examined the concept within the scheme for the use of force under the Charter of the United Nations and the development of customary international law. The contributors to this collection place the legality issue in the frame of theory, which is so necessary to the study of this topic. Students of international law and international relations will find this collection particularly informative.
With the exception of Sean Murphy who wrote a definitive book on the subject, this collection contains contributions by most of the leading scholars working in this field. As Robert Keohane sets out in the introduction, this book is unique in that in analyzes humanitarian intervention in the context of moral theory, changes in international law and alterations in the concept of sovereignty. The volume is divided into four parts: the context for humanitarian intervention, ethics, law, and politics.
In Part I, J.L. Holzgrefe begins discussion of the debate in a dramatic fashion, reminding us that the international community did nothing to prevent the Rwandan genocide. He also provides a definition of humanitarian intervention which is wisely used throughout the volume. It is defined as “the threat or use of force across state borders by a state (or group of states) aimed at preventing or ending widespread and grave violations of the fundamental human rights of individuals other than its own citizens, without the permission of the state within whose territory force is applied” (p.18). This characterization is a good one in that it does not pre-judge the issue of authorization by the United Nations. Holzgrefe sets out a series of questions that the remaining contributors address. These questions revolve around the issue of whether the United Nations—or failing UN approval, individual states—have a duty to intervene in human catastrophes. He sets the theme for the whole collection when he argues that any attempt to separate legal questions from moral ones is doomed to failure. Although many may be familiar with the theoretical debate between natural law adherents and legal positivists, Holzgrefe discusses additional theoretical constructs such as utilitarianism, social contractarianism and communitarianism.
In this same section, Tom Farer discusses the two “jurisprudential camps” that have supported expanding the legitimate use of force beyond self-defence and Security Council enforcement actions. These two camps he calls the legal realists and the classicists. Farer discusses the legal realist position by examining the work of Michael Reisman, and the classicist position by assessing Sean Murphy’s recent paper. Farer finds something to be recommended in both approaches, and he supports Jane Stromseth’s “particularly persuasive” reconciliation of both viewpoints in her contribution to this book. As with the Holzgrefe categories, these may be rather artificial constructs, but they do place interpretation of UN Charter sections on the use of force into the important theoretical debate regarding the international constitutional process. He also introduces the important dimension of the post-9/11 view that there might be more rather than less interventions by the United States in which humanitarian intervention is argued as part of its effort to reduce the internal and external political cost of involvements. This is due to reduced significance of sovereignty and boundaries as outlined in the Bush doctrine of pre-emptive self-defence. This section is chilling as it predicts the international crisis that occurred when the United States acted unilaterally in Iraq.
Part II, the ethics of humanitarian intervention, contains a chapter by one of the foremost theorists on this issue, Fernando Tesón, who makes the case in his seminal book that humanitarian intervention is morally justified in certain circumstances. In his chapter, entitled “The Liberal Case for Humanitarian Intervention,” Tesón argues this position in light of liberal political philosophy that a major purpose of states and governments is to guarantee human rights. Governments that violate human rights should not be protected by international law. Allen Buchanan continues the theme and argues for a reform of international law in light of the moral imperatives and sets out a typology for justification of illegal acts of intervention on the basis of morally defensible principles. In his final guideline he summarises his position, stating that illegal acts (humanitarian intervention) likely to contribute to making the (international) system more consistent with its most morally defensible fundamental principles (human rights) are more easily justified. Both of these contributors argue for a dramatic restructuring of international law away from a focus on positivist legal doctrine to law as an ethical construct. These two contributions not only deal with one contested concept (humanitarian intervention) but also are essential reading in the more general understanding of the theoretical basis for international law.
Part III, on law and humanitarian intervention, at first glance may seem to return to well worn international law debates. However, the contributions in this section present innovative ideas on the subject, although they do not agree on the potential legitimacy of humanitarian intervention. Continuing themes discussed at length in their respective books, Byers and Chesterman assert that humanitarian intervention is not lawful, nor should it become so by expanding treaty interpretation or changing customary international law. They contend that the only way humanitarian intervention could be legitimate is if the norm attains the status of a peremptory norm (jus cogens), thereby overriding the UN Charter’s prohibition on the use of force. This is by no means a settled point as Stromseth eloquently argues in her contribution. There is a body of international law which allows for the emergence of a new rule of customary law on the use of force that can exist alongside the Charter (the rescue of nationals is one of those exceptions). In contrast, Thomas Franck argues for a middle ground where humanitarian intervention, although technically illegal, can be conducted if it is deemed necessary. An international jury of peers can waive strict reliance on law in the face of mitigating circumstances. He takes the position that the interpretation of the static provisions of the Charter can adjust and adapt to the “exigencies of each challenge to good order” (p.205). Wisely, Franck asserts that one cannot separate law from other policy considerations such as morality and justice. His contribution leads nicely into the excellent contribution by Jane Stromseth.
The final contributor to the international law section provides the most innovative approach to the legality argument. Stromseth does not agree with the Franck position, which she entitles the “excusable breach” approach. Instead, she argues persuasively that a norm of customary international law is beginning to develop in support of humanitarian intervention in rare cases. She examines the intercessions in Iraq and Kosovo in the context of factors that led to the unilateral use of force in extraordinary circumstances. These could be threshold conditions for legality, that are very similar to the ones set out in THE RESPONSIBILITY TO PROTECT (2001). The preconditions she articulates are: the UN Security Council is unable to authorize actions; it is necessary to use force to stop the atrocities; the force used is proportional to stop ongoing human rights abuses; there is a humanitarian purpose and effect to the intervention; it is a collective action; and finally the intervention is supported by existing law. Although she compliments the work done by the International Commission on Intervention and State Sovereignty, she correctly argues against the premature codification of their criteria and contends that any effort at an international instrument might potentially harden opposition. Overall, her contribution seems to reflect the reality based on years of experience culminating in the intervention in Kosovo.
Part IV, the final section of the book, debates concerns related to post-intervention economic and political reconstruction. Until recently, international lawyers neglected aftermath issues, concentrating instead on threshold legal justifications. Keohane and Ignatieff discuss post-intervention strategies from a political, ethical and international law perspective. Keohane addresses the concept of sovereignty and argues that a classical “Westphalian notion” provides a poor basis for policy with respect to post-intervention political decisions. Neither contributor offers definitive recommendations, but Ignatieff’s discussion of transitional trusteeships in Bosnia, East Timor and Kosovo provide evidence that state-building is emerging as a UN practice. Ignatieff concludes with reference to the report sponsored by the Canadian Government, THE RESPONSIBILITY TO PROTECT, which included critical recommendations on the responsibility both to prevent civil war and to rebuild following intervention. This report also advised constructive adaptation of Chapter XII of the UN Charter (the International Trusteeship section) to enable reconstruction and rehabilitation to take place with the support and assistance of the international community.
It would be difficult to find fault with this collection. Some international scholars might argue that the topic has been studied extensively and that this book is passé after September 11 and the wars with Afghanistan and Iraq. However, humanitarian intervention has always gone through phases of study. It was quite fashionable after the Indian intervention in Pakistan in 1971 and during the 1970s but fell into obscurity during the 1980s. It became a popular topic again in the 1990s, peaking with the intervention in Kosovo. No doubt, it will be current again as soon as the next and inevitable human rights catastrophe takes place. As long as there are despots willing to torture and murder their own citizens, these issues in international law will remain relevant.
REFERENCES:
Byers, Michael. 1999. CUSTOM, POWER AND THE POWER OF RULES. Cambridge: Cambridge University Press.
Chesterman, Simon. 2001. JUST WAR OR JUST PEACE? HUMANITARIAN INTERVENTION AND INTERNATIONAL LAW. Oxford: Oxford University Press.
International Commission on Intervention and State Sovereignty. 2001. THE RESPONSIBILITY TO PROTECT. Ottawa: International Development Research Centre.
Murphy, Sean D. 1996. HUMANITARIAN INTERVENTION: THE UNITED NATIONS IN AN EVOLVING WORLD ORDER. Philadelphia: University of Pennsylvania Press.
Tesón, Fernando R. 1997. HUMANITARIAN INTERVENTION: AN INQUIRY INTO LAW AND MORALITY (2nd ed.). Dobbs Ferry: Transnational Publishers.
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Copyright 2003 by the author, Susan C. Breau.