Candidate Number: 600038093 BA (Hons) Philosophy and Politics University of Exeter Department of Sociology and Philosophy POL: 3040

Dissertation

Humanitarian Intervention as a Necessary Evil

J u s t Wa r, H u m a n i t a r i a n i s m a n d t h e P r o b l e m o f D i r t y H a n d s

Abstract
This dissertation investigates the legitimacy and utility of the emerging norm of the Responsibility to Protect. I identify the norm as an emergence of natural law principles embodied in just war theory into the debate about humanitarian intervention. It questions the place of such norms in international society and how much is expected of them. It then examines the legitimacy of justifying humanitarian interventions under the responsibility to protect, suggesting that the current scheme of just war theory is inappropriate and we should instead view humanitarian interventions not as just wars, but as necessary evils. It thus advocates a restrictionist policy and pleas for the removal of the militaristic aspect of the Responsibility to Protect. It then illustrates why we might expect a restrictionist policy of this sort to reduce some of the hazards to which the Responsibility to Protect contributes.

Contents
! ! ! ! ! ! 3 6 6 7 8 10 13 16 18 18 24 27 28 28 32 35 37 38 41

Introduction I : N a t u r a l L a w i n I n t e r n a t i o n a l R e l a t i o n s
T h e Re s p o n s i b i l i t y t o P ro t e c t Definitions O r d e r v s . Ju s t i c e Ju s t Wa r T h e o r y a n d R 2 P I n t e r e s t o r Ru l e G ov e r n e d ? Conclusion

II. Humanitarian Intervention as a Necessary Evil

Ju s t Wa r T h e o r y The Problem of Dirty Hands Conclusion

I I I . T h e Fa i l u r e t o P r o t e c t
State Abuse Moral Hazards Re s t r i c t i n g t h e N o r m Conclusion

I V. C o n c l u s i o n Bibliog raphy

Introduction
One of the most taxing moral issues in international relations is whether states should have the right to violate sovereign boundaries to save strangers from acts that shock the moral conscience of mankind. It is not difcult to nd examples of cases where this has been considered a necessary action, it is their plentitude that is alarming. The Rwandan genocide that claimed the lives of estimates up to 800,000 Tutsis, the Kosovo war that killed 12,000 civilians and displaced a further 800,000, the 430,000 lives that have been claimed in Darfur since 2003 are just a few of an embarrassingly long list. Over the past two decades there has been a global call to recognise events of this sincerity as a just cause to use forcible military intervention to put an end to such tragedies, culminating in the Responsibility to Protect (R2P) in 2005, which saw the emerge of just war theory as a recourse to the moral obligation to save strangers. Under this doctrine, each state is responsible for the protection of the welfare of its citizens; if a state fails to do so through acts of genocide, war crimes, crimes against humanity or ethnic cleansing, then the state cannot be seen as legitimate and calls for humanitarian intervention are appropriate. Whether voluntary military intervention under the tutelage of R2P is an acceptable justication for saving strangers is the focus of this dissertation. The idea that we should save strangers in a humanitarian crisis is undoubtedly a noble one,

however, l argue that the method of justication to voluntarily engage militarily under just war theory contributes substantially to the problems that humanitarian intervention aims to prevent. This is because it neglects the moral complexity of the exceptional situation in which humanitarian intervention places us, depending on an overly optimistic and idealistic conception of international relations that is unreective of actual political practices. The justication of R2P on just war theory adds fuel to the re for potential abuse from states acting in their own interest, whist giving no further impetus to transfer the words of the doctrine into the deeds when most needed. It further complicates the problem by placing expectation on the potential victims of a humanitarian crisis, causing them to, in some cases, pull the trigger on the gun pointed at them. In the hope of avoiding
3

such perils, humanitarian intervention must be viewed through a more scrupulous moral lens. To praise the decision to intervene as a right or just action is to remove it from the context in which it rests: one half of a complex moral dilemma in which there is no clear answer. Instead of allowing states to intervene as an act of justice or responsibility, which can lead to abuse and misuse, humanitarian intervention is instead to be justied precisely as it is, a necessary evil, if there is hope of limiting its perverse consequences. This dissertation rst reviews the claims for, and against, humanitarian intervention and

R2P. I locate theorists on the ethics of humanitarian intervention as typically in either the solidarist tradition, that believes that purpose of international society is the promotion of a monistic view human values and dignity rooted in natural law, or the pluralist tradition, in which the role of international society is to allow states to peacefully coexist and advocate plural conceptions of the good. Despite the difference of their perspectives, the moral concerns of each school are often similar: they both desire the minimum amount of casualties and to reduce the amount of humanitarian crises. It is therefore a debate about whether the means of intervention or nonintervention are most effective. Distinguishing between these two schools helps dene my problem, as arguments for R2P rest upon the assumption that the interest of states are inuenced by the rules of international society. If so, the rules we endorse must be investigated scrupulously. To examine the adequacy of just war theory as a legitimation of humanitarian intervention,

I turn to its main proponent, Michael Walzer. I compare his work on just war theory to his lesser known work on the problem of dirty hands: a moral conict into which we are forced and must accept either action as evil, whilst choosing the lesser evil. Whilst the notion of saving strangers from gross deprivations of human rights is morally sound, the evils of permitting humanitarian intervention are plentiful, which are further exaggerated through the tendency of States to act upon their own interest. To see humanitarian intervention through the eyes of the dirty hands problem reveals its moral complexity. To ignore this is to confuse a morally necessary act with morally
4

praiseworthy act. This reveals a discontinuity in just war theory when applied to humanitarian intervention. Instead of the perception that the intervener is a superman state who nobly saves strangers, the intervenor violates the very principles it cherished that drove them to intervene. To praise humanitarian intervention is thus often to praise an evil act as just. Building on the rst two chapters, the nal chapter illustrates that if we are to see state activity as interest governed, the just cause rhetoric of R2P can lead to perverse consequences. Firstly, glorifying any voluntary intervention as just opens the door for potential abuse from states who have little or no humanitarian concerns for their intervention. Secondly, the expectation that western sates will intervene in the domestic affairs of weaker states may encourage action from rebel groups that increase the chance of the very perils humanitarian intervention aims to prevent. The annulment of the R2P, suggested from the outcomes in Chapter II, will help reduce these issues surrounding humanitarian intervention, placing the burden of proof on state to explain their actions as a moral necessity against positive law, rather than in accordance with it. Potential criticisms of this hypothesis will be considered.

I N a t u r a l L a w i n I n t e r n a t i o n a l Re l a t i o n s
The rst point of call for my investigation is to determine whether norms that invoke natural

law principles should be welcome in international policy making. This chapter will review the relevant literature on R2P and humanitarian intervention, in order to gain an understanding of what role in international society we can expect it to play. It will rst dene the crucial terms for this essay and provide an outline of the normative criteria of R2P. It will then evaluate the normative claims it makes and assess whether they should be welcome in international society by reviewing solidarist and pluralist arguments on the matter. Finally, it will look at the empirical assumptions about whether international society is interest or rule governed in order to determine the R2Ps limitations as an emerging norm in international society. I argues in favour of the solidarist cause that states should act in terms of natural law and that justice must contribute to the actions of states. However, the empirical assumptions that proponents of R2P make are overly optimistic about the benevolent role the initiative will play, it being susceptible to abuse by interest governed states or lack of use by disinterested states. T h e Re s p o n s i b i l i t y t o P ro t e c t The Responsibility to Protect is a UN initiative that attempts to establish a norm (dened

below) that redenes sovereignty as conditional on the welfare of citizens rather than as a right to non-intervention. A state that commits mass atrocities against its own citizens sacrices its legitimacy both domestically and in the international community, and thus its right to non-intervention. It is also a plea for the international community to accept responsibility for those whom mass atrocities are being committed against. According to Ban Ki-Moon, the responsibility to protect rests upon three pillars:

1. the responsibility of the state to protect its own populations from genocide, war crimes, ethnic cleaning and crimes against humanity; 2. The international community's commitment to assist states in meeting these obligations; 3. The international communitys responsibility to respond in a timely and decisive manner when a state is manifestly failing to protect its population, using the peaceful means of Chapter VI, the coercive means of Chapter VII the regional arrangements of ChapterVIII of the UN Charter.1 Whilst there is long standing agreement on the peace-building principles of the rst and

second pillars, the real controversy over R2P is the emergence of natural law principles embodied in just war theory (discussed below) into the debate about humanitarian intervention. This dissertation will deal with the legitimacy of the coercive means described in the third pillar, and whether the practice of military intervention should be endorsed for humanitarian reasons. Definitions Humanitarian Intervention: For the purpose of this essay Holzegreffes denition is most appropriate: Humanitarian intervention is dened as the threat or use of force 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 is applied. 2 Norm: A norm can be understood as an accepted standard of behaviour of group actors. These are usually expectations regarding behaviour, such as the principle of non-intervention or the correct conduct in wartime.

Ban Ki Moon, Responsible Sovereigns, address of the UN Secretary-General, SG/SM/11701, 15 July, 2008; Luck, E., The United Nations and the Responsibility to Protect. Political Analysis in Brief, (The Stanley Foundation, Aug, 2008)
1

Holzgreffe, J.L., The Humanitarian Intervention Debate, Humanitarian Intervention: Ethical, Legal, and Political Dilemmas, (eds. Holzgreffe, J.L., Keohane), pp. 15-53
2

Natural law: Advocates of the doctrine of natural law that human beings have certain moral duties by virtue of their common humanity which are knowable to all. These are a priori universal duties, and thus can be attained by anyone capable of rational thought. It is upon natural law which universal values such as human rights rest. Natural law advocates regard institutions as just if and only they reect natural law.

Positive Law: Advocates of positive law (legal positivists) believe the only relevant laws are those that are man made. Legal positivists regard norms as just if and only if they are legal, regardless of their moral content.

O r d e r v s . Ju s t i c e Whether natural law should be accommodated for in foreign policy usually falls in the order

vs. justice debate between the solidarist and pluralist factions in the English School of international relations. Hedley Bull, the forefront English School thinker, most explicitly distinguished the two factions in the Anarchical Society.3 Whilst states operate in an anarchic international arena, both factions seek an extent of cooperation through the development of international society; solidarists, on the one hand argue for a cosmopolitan maximization of shared norms and cooperation, pluralists arguing for minimal normative restrictions to allow greater freedom. The nature of solidarist theory follows Grotius argument that natural law principles about

justice ought to be applied to international relations. 4 Justice comes out of natural law and is thus inherently universalist in the sense of being applicable to all humankind. The task of diplomacy is thus to translate this latent or immanent solidarity of interests into reality.5 It takes a humancentric stance over state-centrism. If international order is detrimental to natural laws of human

3 4

Bull, H., The Anarchical Society: A Study of Order in World Politics, (London: Macmillian, 1977)

Linklater, A., & Suganami, H. English School of International Relations : A Contemporary Reassessment. (New York: Cambridge University Press, 2006)
5

Mayall,J., World Politics: Progress and its Limits (Cambridge: Polity, 2000). pp. 14 8

rights and justice, the rules of non-intervention should be challenged. Advocates argue that state sovereignty must fulll certain criteria in order to have the right to non-intervention.6 Solidarists prioritize natural law over positive law and are, at their most extreme, in favour of breaching international order for the sake of justice. This is, however, not representative of all solidarists. Nicholas Wheeler, perhaps the foremost solidarist thinker on humanitarian intervention, avoids referencing natural law in legitimizing humanitarian intervention and instead advocates its justication on the basis of positive law.7 He argues that intervention should not occur without a positive law justication. This sentiment is echoed by Bellamy, who argues that positive law is a necessary derivative of natural law, its purpose being to constraint natural law arguments.8 There can be no right to intervention aside from a legal right. Although avoiding a natural law justication of intervention, the preference for intervention over non-intervention is implicitly based upon natural law. R2P is most closely related to this milder version of solidarism, professing a need for positive law shift from state-centrism to human centrism, whist denouncing illegal military interventions. Pluralists argue, on the other hand, that there is little agreement in international society on

substantive issues such as human rights, and thus reject the idea that natural law should be included in international society. Recognising that social and political life disclose divergent and even contradictory ideas, 9 international law should be value-neutral, moral rules only existing if in terms of positive law that is agreed, with no reference to moral truth. Pluralism is thus strongly state centric and the only positive laws that are, or can be, expected are minimal laws that allow as much independence as possible whilst maintaing a mutual interest in avoiding conict. International law

Tson, F., The Liberal Case for Humanitarian Intervention, Humanitarian Intervention: Ethical, Legal, and Political Dilemmas, (eds.) Holzgreffe, J.L. and Keohane R. O., pp. 98; R.J. Vincent and P. Watson, Beyond Non-Intervention, in I. Forbes and M.J. Hoffmann, (eds.) Political Theory, International Relations and the Ethics of Non-Intervention
6 7 8

Wheeler, Saving Strangers:Humanitarian Intervention in International Society (Oxford; Oxford University Press, 2000)

Bellamy, A. J., Ethics and Intervention: the Humanitarian Exception and the Problem of State Abuse, Journal of Peace Research, Vol. 41, No. 2 (2004), pp. 131-147
9

Jackson, R., Pluralism in International Political Theory, Review of International Studies, Vol. 19, Vol, 3 (1993), pp. 279 9

has a procedural and hence non-developmental 10 character and is largely conned to agreements about non-intervention, rules for diplomacy and the recognition of state sovereignty.11 Pluralists usually express one of two concerns about natural law in international relations.

The rst adopts a moral relativist position, asserting that different conceptions of the good are dependent on their cultural context and thus cannot be universalized. It is committed to upholding plural conceptions of the good. This is, however, morally bankrupt, and it is difcult to see why we should value pluralism if it allows leaders to hide behind the shield of absolute sovereignty whilst committing gross violations of human rights. The second may agree with solidarism on the belief in higher and lower laws, but, as argued

by Bull, the fact that there are different conceptions of the good is problematic for the solidarist project. To attempt to change these conceptions could lead to violence and disorder. 12 For Jackson, the debate between solidarism and pluralism is not a debate about those concerned with human rights and those who are not, it is a debate about the basic values of society.13 International society is simply not apt to pursue a monistic conception of value without jeopardizing international security. These claims rests upon an empirical shortcoming of the international system to construct norms that guide state behaviour. These concerns are also shared with many earlier solidarists, just as R.J. Vincent who worried that in absence of international consensus on the rules governing a practice, states will act upon their own moral principles, thereby weakening an international order built upon non-intervention, sovereignty and non-use of force.14 This pluralist challenge to natural law is based upon the ought implies can principle - since international society cannot pursue justice in terms of natural law, it cannot be morally required to. This criticism, however, begs the question of whether

10 11

Mayall,J., World Politics: Progress and its Limits, pp.14

Jackson, R., The Global Covenant: Human Conduct in a World of States, (Oxford: Oxford University Press, 2000); Mayall,J., World Politics: Progress and its Limits Wheeler, T., and Dunne, T., Bulls Pluralism of the Intellect and Solidarism of the Will, International Affairs, Vol 72, No. 1, (Jan., 1996), pp. 94
12 13 14

Jackson, R., The Global Covenant: Human Conduct in a World of States, pp. 291 Vincent, R.J., Human Right and International Relations, 10

international society can accommodate for changing norms about the good. If it can be demonstrated that norms based on natural law have a positive effect on justice without being detrimental to order, then pluralism and sovereignty should not be valued as absolute.

Ju s t Wa r T h e o r y a n d R 2 P The most commonly invoked principle to justify humanitarian intervention, including R2P,

is just war theory.15 This is the theory that in order for a war to be justly waged (jus ad bellum), it must pass a number of threshold conditions, which can be generalized as such: (i) There must be a just cause. Amongst just war theorists, this is unanimously considered to be a resistance against aggression, aggression being dened as the use force in violation of someone elses basic rights.16 (ii) A just war must also have the right intention, that is to correct the wrong that was committed to constitute a just cause. (iii)There must be proper authority to declare the war. (iv) War must be the last resort, after other means have been exhausted or would be ineffective. (v) The probability of success must be high. (vi) The use of force must be proportional to the universal17 good it would serve. It was upon this which the principles for military intervention under R2P were derived. The

predominant aim of R2P is to redetermine in the eyes of international society what constitutes a threat to international peace and security under Article 39 of the UN charter, the exception clause that allows the UNSC to determine when military action is permitted.18 A state is only justied in going to war if the rights of that state (usually of non-intervention) have been breached. This is in accordance with article 2(4) which prohibits the use of force, including military force, by individual member states, unless such State has suffered an armed attack, in which the inherent
See Walzer, M., Just and Unjust Wars; Wheeler, N., Saving Strangers; Bellamy, A.J., Just Wars: From Cicero to Iraq (Cambridge, Polity 2006)
15 16 17

Walzer, M., Just and Unjust Wars, (Basic Books: New York, 2006) pp. 54

Universal is a key word here, as the emphasis is on the good that the war will serve for all, not just for the benet for those who were wronged in the rst place. The overall state of the world must be better. Bellamy, A.J., Humanitarian Intervention. Contemporary Security Studies, (eds.) Collins, A., (Oxford: Oxford University Press), pp.336 11
18

right of self defense may be used (article 51). Appealing to just war theory, R2P attempts to redene aggression to human rights as well as state rights, constituting a just cause for intervention. The 2001 ICISS report on R2P dened the just cause threshold as: a) large scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act, or failed state situation; or b) large scale ethnic cleansing, actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape. 19 The ICISS report includes other jus ad bellum principles, outlining its precautionary principles

as: right intention, last resort, proportional means and reasonable prospects. An intervention must also be declared by the right authority. It is clear that advocates of humanitarian intervention use just war theory strongly in their justication of warfare. There is, however, little work on whether this justication of humanitarian intervention is compatible with its practices. This is crucial when determining whether the R2P should indoctrinate the natural law proclamations of just war theory. The R2P and the concept of protecting humanitarian values in an armed conict share the

same normative framework, however, it is important for the purpose of this investigation to distinguish between the two. The norm of protecting civilians is undeniably connected to the R2P, it is upon on this norm upon which the R2P rests. However, as similar as the normative concerns are, they differentiate on their scope and interpretation. The focus on conditional sovereignty in R2P is open to the interpretation that regime change is a goal in itself when conducting humanitarian intervention under the tutelage of R2P. Whilst this is goal is not denied in the concept of protecting humanitarian values, it is instrumental and subservient to humanitarian values. This is a point often overlooked in debates about conditional sovereignty. As will be demonstrated in this dissertation, this shift of focus risks ignoring the humanitarian concerns upon which the justication for R2P rests.

International Commission on Intervention and State Sovereignty (ICISS), The Responsibility to Protect, (Ottowa: IDRC, 2001) pp. xii-xiii 12
19

I n t e r e s t o r Ru l e G o v e r n e d ? The indoctrination of natural law principles into an international norm rests upon the

assumption that these norms will make signicant changes to the way states act. If we are to justify a norm in the international arena, it must rst be seen to be benecial and then seen to be feasible. Can we expect states to follow the rules, or does the R2P risk becoming another instrument in the hands of the powerful? Crucial to the solidarist paradigm and the endorsement of R2P is the idea that norms and

rules have the ability to guide state behaviour. This is based on the constructivist school of thought that argues whilst states may act in their own interest, this interest is dictated through social construction. Alexander Wendt argued, in Anarchy is What States Make of It, 20 that there is nothing essential about anarchy that guides state conduct - power politics are the result of institutions. Applying this theory to humanitarian intervention, Martha Finnemore has argued that the descriptive realist view that states necessarily act in accordance with an interest for power and security is insufcient in describing how state interest changes over time.21 A norm for humanitarianism has emerged, explaining the improvement in state behaviour regarding humanitarian concerns, such as the abolition of the slave trade and the heavy sanctions placed upon South Africa during apartheid. Focusing on the justications for humanitarian intervention, she notes that norms shape interest and interest shapes action. This, however, has only an enabling quality, not an ensuring one.22 States now prefer to intervene multilaterally rather than unilaterally, which is not in the interest of power politics. This implies that the interests of states change with respect to international institutions, the norms of international society being able to constrain state

Wendt, A., Anarchy is What States Make of It: The Social Construction of Power Politics, International Organization, Vol. 46, No. 2, pp. 394
20

Finnemore, M., Constructing Norms of Humanitarian Intervention, The Culture of International Security Norms and Identity World Politics, (Eds.) Peter J. Katzenstein,
21 22

Ibid., pp. 4 13

interest.23 Wheeler follows this constructivist tradition, arguing that state practice in eight cases since 1945 reveals a change in discourse in international relations, a pluralist attitude being replaced by a solidarist. 24 He attributes this to a changing of the rules in the international relations game, which constrain states from making certain moves. Constructivists put forward a convincing case that state interests can be changed through changing social movements and norms of international and domestic society. However, if norms do inuence and constrain state behaviour, then we must be weary of the consequences that imposing a norm into international society will have. Norms are not always benecial to justice, so they must inuence the right actions and their constraints must be adequate. Although some aspects of state interest may have changed over time, it is certainly

questionable whether state attitudes to partaking in military conict have done. Many thinkers criticize humanitarian intervention for the reason that it becomes a veil for non-humanitarian interests, Chomsky questioning whether the category even exists. 25 Any policy about humanitarian intervention, if we are to take this empirical claim to be true, has to account for the fact that states will act only in their own interest. As states interest are governed by the desire for power and security, the R2P will either be neglected or abused. The problem of selectivity is one that plagues humanitarian intervention. This problem

arises when an agreed moral principle is at stake, a just cause for intervention such as genocide, for example, but the national interest of states constitutes a divergence of responses. Even in cases of mass killings and genocide, indifference and political interest have stalled action, with states engaged in debates on the factual existence of genocide, whilst the killing continues. A paradigmatic example of this is Rwandan genocide of 1994. Approximately 800,000 tutsis were massacred in what was one of the most horrendous examples of genocide since WWII. The systematic slaughter which
23 24 25

Ibid., pp. 22 Wheeler, Saving Strangers Chomsky, Humanitarian Intervention, Boston Review, (December 1993 - January 1994) 14

took place over the course of approximately 100 days between April and July of 1994, was perpetrated in full view of the international community. The already present UNAMIR forces were unable to stop the violence as states that were contributing to the peacekeeping started to withdraw their forces in fear of them being wounded or hurt. 26 Belgian soldiers withdrew, halving the strength of the force. The lack of states willing to contribute troops to the UNAMIR peacekeeping forces, and as UNAMIRs mandate to monitor the Aursha Accords was ending and no state was interested in renewing the mandate stressing the obligation of the security council to protect the lives of its peacekeepers.27 The acts of individual states were equally as neglectful. Murphy notes the US government knew within 10 to 14 days of the plane crash that the slaughter was premeditated, carefully planned, was being executed according to plan with the full connivance of the thenRwandan government. 28 Despite this knowledge of the atrocities occurring, the US were reluctant to label the events as genocide, as such rhetoric would have compelled them to intervene and made their policies of inaction untenable.29 It is clear that one of the main reasons that the intervention was untimely was the lack of state interest in the intervention, Rwanda not being a signicant enough cause to warrant the deaths of soldiers. Whilst this was a case before the emergence of the R2P (it was in fact, an instigating factor in the emerging norm), it is certainly questionable as to whether a new norm could provide states with the impetus to intervene as the international community were fully aware of their obligation to prevent genocide, yet pursued a policy of non-intervention. This is no isolated case, with near identical events occurring in Darfur since the acceptance of the R2P by the UN general assembly, which will be further investigated later in this essay.

26

International Panel for Eminent Personalities, Rwanda: The Preventable Genocide, (Addis Abba: Organization of African Union, 2000, pp. 136 Barnett, M. N., The UN Security Council, Indifference, and Genocide in Rwanda, Cultural Anthropology, Vol. 12, No. 4 (1997), pp. 551-578
27

Murphy, S. D., Humanitarian intervention The United Nations in an Evolving World Order, (Philadelphia: Philadelphia University Press, 1996) pp. 283
28 29

Chesterman, Just War or Just Peace: Humanitarian Intervention and International Law, pp. 146 15

There has been long term concern with the issue of the abuse of humanitarian assertions to

justify non-humanitarian interventions. This is best exemplied by Hitlers invasion of Czechoslovakia in 1939, in which he referred to assaults upon life and liberty by their intolerable terroristic regime.30 Thomas Frank and Nigel Rodley argue that a further exception to humanitarian intervention should not be permitted as the UN charter was already vulnerable to abuse, without making it easier for states to further weaken the restraint in Article 2(4). Having investigated both pre-1945 and post-1945 cases, they conclude that in very few, if any, instances has the right been asserted under circumstances that appear more humanitarian than self-interested or power seeking..31 This problem will be further considered in Chapter III. When attempting to socially construct a new norm of international society, it is crucial to bare in mind the realist concerns with allowing a policy permitting humanitarian intervention. Constructivists can account for changing concerns, but fall short when these norms conict with the national interest of states. It is highly questionable if states will ever intervene in situations where there is no national interest and be prevented from abusing the doctrine. In light of these concerns, to determine whether R2P is an appropriate norm for international society, the next chapter will investigate the philosophical implications of applying just war theory to humanitarian intervention, which have previously been overlooked. Chapter III will investigate empirically the problems associated with R2P and will speculate the implications of applying the results of the previous chapter as a solution.

Conclusion R2P represents an emerging norm that attempts to apply the natural law principles

embodied in just war theory to the issue of humanitarian intervention. There are two debates surrounding indoctrinating natural law in an international norm. Firstly is a normative debate, as to
30 31

Ibid. pp. 27.

Frank, T., and Rodley, N., After Bangladesh: The Law of Humanitarian Intervention by Military Force, American Journal of International Law, 1973, pp. 290 16

whether such a task should be undertaken. The solidarist claim that international law should increase international justice as much as possible has the most morally intuitive pull. Pluralists object that international law should be a minimalist positive law as the attempt to incorporate natural law will lead to disorder. This is not necessarily the case as it rests upon the second debate: whether the interest of states will converge or whether states will abuse the norm. This chapter has found that although states interests may change over time, what constitutes a benet to a state is less contingent. The most threatening objection to humanitarian intervention is that states will only act if there is a a direct benet to them. This marks the sad reality of humanitarianism. Whilst states have an interest in the welfare of strangers that was once never present, it does not usually pose enough of a benet for states to act. Norms based on natural law have a place in international society, but baring in mind that states but also only follow the rules when they do not conict with other interests, we must place extra care on what norms are being endorsed.

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II Humanitarian Intervention as a Necessary Evil

This chapter investigates the merits of the solidarist claim that humanitarian intervention can be a just war. I nd this description wanting, as it fails to acknowledge the moral complexity of the actual practice necessitated by the extraordinary circumstances in which the decision to intervene is made. This justication of the R2P is based on a synthesis of two contradictory strands of reasoning in just war theory explored in this chapter: the rst is the doctrine of double effect (DDE), which is the traditional justication of non-combatant deaths in warfare, and the second is the utilitarianism of extremity, which is implicit in the argument for the necessity of committing evil acts in a supreme emergency. This latter justication is more appropriate to humanitarian intervention as we cannot intervene militarily without getting our hands dirty, however necessary this may be. Our foreign policy should reect this moral dilemma; humanitarian intervention should be an exception to the rule, and not a rule of exception.

Just

War

Theory

The jus ad bellum for military intervention under R2P is that incidents of mass murder, ethnic

cleansing, genocide and crimes against humanity are a grave moral evil that should not be tolerated. These acts, in the words of Michael Walzer, shock the moral conscience of mankind.32 This humanitarian purpose is predicated on the basis that an attack towards innocent civilians, or noncombatants is an evil.33 Humanitarian intervention is justied only to prevent innocent civilians from death relating to aggression from another. It is worth noting that some scholars, such as Nicholas Wheeler, do not believe that humanitarian intent is a necessary condition for an

32 33

Walzer, M. Just and Unjust Wars, pp. 108

See Bellamy, A.J., Ethics and Intervention: the Humanitarian Exception and the Problem of State Abuse, Journal of Peace Research, Vol. 41, No. 2 (2004), pp. 131-147; de Wizje: Dening Evil: Insights from the Problem of Dirty Hands, de Wizje, Targeted Killing: A Dirty Hands Analysis; Walzer, Just and Unjust Wars, Walzer, M., The Politics of Rescue, Social Research, Vol. 62, No.1 (Spring 1995), pp. 53-66, Wheeler, N.,Saving Strangers, 2000, 18

intervention being just, what matters is the fact that humanitarian concerns are being met.34 Nevertheless, it is upon the assumptions that deaths of innocent civilians in wartime is wrong and that the justication for an intervention is to be considered on its combatting this evil that this argument rests. An intervention that does not meet these concerns is, by denition, not humanitarian. Our responsibility to protect thus rests upon a moral symmetry between doing and allowing harm; it is just as bad to stand by and do nothing when able to prevent a tragedy as it is to cause one. The impetus for humanitarian intervention and the normative drive behind R2P is the recognition of the principle that to foresee and allow harm to come to innocent individuals, when we can prevent it, is not a morally justiable action. In justifying a military intervention on humanitarian principles, we deny the distinction between foreseen and intended deaths. Humanitarian Intervention, if conducted properly and according to the just war criteria

outlined in Chapter 1, would undoubtedly be an unvarnished good, rooted in the altruistic desire to protect others. This, unfortunately, has never been the case. Humanitarian intervention, as with any armed conict, results in both the allowance and the committing of many acts that would be considered evil, predominantly the deaths of innocent civilians. Our wartime actions violate our jus ad bellum criteria.The question then is, how can just war theory justify these actions if we are to adhere to humanitarian principles? The typical justication for the deaths of non-combatants, dating back to thinkers such as

Cicero, Augustine and St. Thomas Aquinas, yet still prominent in the morality of war, is the doctrine of double effect (DDE). Advocates of this theory contend that all actions result in more than one consequence, and often these other consequences are unintended. There is a signicant moral difference between intending to cause harm to someone and their harm being a result of your actions. The doctrine of double effect, however, is not merely a statement on the lack of moral responsibility in an accident, as it allows harm to be foreseen, but not intended. The actor may be

34

Wheeler, N., Saving Strangers, pp.35 19

fully aware that harm may be caused by his actions. All that is required to justify the killing an innocent person in combat is that the killing is beside the intention 35 (the harm is not a means to an end, or an end in itself), and that it is proportional to the good intended consequences. This is the classic conception of DDE can be formulated as such: an unjust action (U) is permissible if an actor (X) performs action (T), which would under normal circumstances be just, if just consequence (J) is achieved, and is proportional to the cost of (U).36 Under the classic conception of DDE, we can imagine the following scenario as just: When

engaged in a humanitarian intervention, agent (X) authorizes an air-strike on a military base in which there are several high prole members of an abusive military dictatorship (T). In authorizing the air-strike of the base, (X) believes it will considerably reduce the harm to the overall population, and the dictatorship will be severely weakened (J). Upon ordering the air-strike, (X) learns that there are 70 civilian hostages in the base, who will certainly be killed (U). (X) authorizes the attack anyway. In this scenario, the deaths of these civilians are foreseen, but not intended, and thus entirely justied in just war theory. The agent does no wrong in authorizing the attack. It is certainly intuitive that this attack may be deemed unfortunate, but a necessary military action. It is the classic conception of DDE which is implicitly used when instigating the norm of

R2P in spite of its unintended yet foreseen consequences for civilian casualties. The focus on the removal of the sovereign power (T), which is implicit in R2P, is often treated as an end in itself. This is to distract from the instrumental nature of the act towards protecting civilians. Whilst the goal of the air-strike in a territorial war would be to eliminate the military dictatorship, in a humanitarian intervention, this is only an instrumental goal to the protection of the lives of the civilians. This shift of focus from humanitarian protection to the removal of the sovereign power allows justication of civilian deaths under DDE. If the civilian casualties of a conict are proportional to the good of the intended consequences, then states are not held accountable for these deaths.
35 36

Aquinas, T., in Holmes, R.L., On War and Morality, (Princeton: Princeton University Press, 1989), pp. 177 Orend, B., War, Stanford Encyclopedia of Philosophy, 2009 20

This, I argue, is an illegitimate justication for humanitarian intervention. The classic

conception of DDE abandons the moral semblance between doing and allowing harm implicit in our grounds for intervention. This may be a plausible reasoning process for the foreseen deaths of civilians by a state aiming to protect its territorial integrity, but it is not so straightforward in the case of humanitarian intervention. The aim of a humanitarian intervention is to protect the lives of innocent people. In such conicts our priorities change and our role as a protector implies a moral symmetry. We thus have obligations that may not exist in non-humanitarian conicts. Upon noticing civilian hostages in the airstrike target, action (T) becomes an unjust action as our intent is to not rescue them. This moral semblance between killing non-combatants and letting noncombatants die is denied when justifying the deaths non-combatants under DDE. So it appears that advocates of humanitarian intervention under this conception want to have it both ways. Natural law dictates that allowing the deaths of innocent individuals in combat is wrong, but also defends the deaths of civilians in collateral damage as not wrong. We cannot deny this moral semblance whilst maintaining justice in our cause for intervention; however, if we are to accept this moral semblance, we cannot justify any deaths of non-combatants as the result of the conict, so the DDE becomes an illegitimate move of justication and we must acknowledge that we are acting against natural law. If we accept that combat that results in the deaths of innocent civilians is morally

impermissible and maintain that there is a distinction between doing and allowing evil, then it begs the question as to whether humanitarian intervention can be justied in the rst place. Robert Holmes argues that whilst allowing the death of innocent people is bad, the killing of innocent people is much worse, and should never be committed.37 We have a duty not to infringe upon the rights of others, others do not have a right to be protected at all costs. Our duty to protect others always yields to our duty not to kill others. If we were to follow this doctrine, then no military intervention, except perhaps one of pure self defense could be tolerated. The prospect of saving
37

Holmes, R.L., On War and Morality, (Princeton: Princeton University Press, 1989) pp. 201 21

strangers would be lost and we would have a rm non-intervention policy. Are we really willing to accept this conclusion? Pushed to its logical extreme, Holmes argument would prohibit the killing of even one

innocent person to potentially save the lives of thousands. This absolutist claim is complicated to refute, and whilst this task is not within the scope of this essay, I contend that it does not rest with common intuitions about the morality of humanitarian intervention. If we are to appeal to our common intuitions, is certainly appears that there are cases where we deem it necessary, albeit unfortunate, to intervene in other countries affairs, and potentially put civilian lives at risk.To take the atrocities in Rwanda as an example, the routine massacre of hundreds of thousands of Tutsis, who were unable to defend themselves against the horrors that were committed, surely constitutes a just cause for intervention. It is often argued that the intervention was grossly ineffective, the late response reecting poorly on the international community, but it is not a leap of faith to imagine that if there was no intervention at all, a strict pacist response, then there would have been a total annihilation of the Tutsi race. It is certainly questionable as to whether this would be a price we are willing to pay to avoid breaching our duty to not kill innocent people. To recapitulate, in order to justify a humanitarian intervention, we must maintain that we

have a moral obligation to not allow harm to others if we may prevent it, and that in order to fulll this obligation we may have to cause harm. We must accept that the deaths of innocent civilians as a result of our combat is an evil. Walzer, criticising the classic conception of DDE, has argued that it provides a blanket

justication for civilian casualties.38 Under this classic conception, it is not required that civilian deaths are minimized, but simply that there are no more than militarily necessary. We can increase the amount of civilian casualties in our act (T) (provided it meets the other constraints) if the expected good is proportional so that act will remain just. The proportionality constraint integral to

38

Walzer, Just and Unjust Wars, pp. 153 22

DDE, Walzer argues, is too easily overcome as it does not provide an adequate commitment to saving civilian lives. The deaths of non-combatants are not to be allowed so the doctrine of double effect thus requires a double intention as well: not only should the good be achieved, but the foreseeable evil be reduced as far as possible.39 This is the modern conception of DDE. This is certainly a step closer to bridging the gap between the disagreement with doing and allowing harm, as it acknowledges that allowing civilian casualties violates natural law. It is, however, insufcient as a double intention allows for an intention beside the protection of civilians; in humanitarian intervention, this is our only intention. Nevertheless, it recognises the symmetry; the evil is accepted and reduced as much as possible. The evil of the double effect has not been excused, it has been acknowledged. So we have reached a quandary: we must use evil to ght evil. The civilian casualties can be justied, but are always wrong. We might deny this obligation to protect civilians at any cost as we have not intervened to

prevent small scale deaths to civilians, just disproportionately large mass killings. By allowing minimal collateral damage, we have not betrayed our principle for intervention. This argument is appealing; however, our objection to mass killing must surely be based on our belief that the intended deaths of innocent civilians are wrong. It would be eccentric to object to mass murder whilst regarding individual acts of murder as morally permissible. Our principles for intervention reect our every day morality, so extreme human rights violations differ in degree, not in kind. Furthermore, if we were to aggregate all of the civilian casualties that have occurred in interventions which were ostensively humanitarian, then this would certainly be on a comparable scale to mass killing. This objection therefore cannot account for the justication of humanitarian intervention as an enterprise.

39

Walzer, Just and Unjust Wars, pp. 153 23

The

Problem

of

Dirty

Hands

How are we to commensurate the view that the killing of innocent people is both

unquestionably wrong, but also right at the same time? To address this question I appeal to Walzers earlier work on The Problem of Dirty Hands.40 This arises when we nd ourselves forced, for moral reasons, to commit evil acts because they have been necessitated by the evil acts of others. These are acts of genuine evil, rather than the result of a confused or misplaced system of morality. This violation of cherished principles becomes necessary because our moral world is not a good world, 41 and to deny the existence of the dirty hands problem is to wish for a perfect world. When forced to choose the lesser of two evils, our actions are 1) justied, even obligatory, but 2) none the less, somehow wrong. 42 These acts morally taint the agent and are, appropriately, accompanied with feelings of guilt, or as de Wizje distinguished, tragic remorse.43 The same moral concerns about wrongness we hold from our everyday morality are appropriate as it is for this concern of wrongness that we are forced to commit wrong. It is due to our objection towards the deaths of civilians that we must allow their deaths to result from airstrike (T). At this point, we have entered the realm of necessity and the rules given by natural law must not be undercut or eroded, but overridden by a calculation of the utilitarianism of extremity. 44 We rst count the action as wrong, as dictated by natural law, but then double count the morality of the action in the context of the realm of necessity and make a preferential decision, our action being both wrong but justied.45 This is the method Walzer uses to justify actions in a supreme emergency, such as the killing

of non-combatants in the act of bombing German cities in WWII. Walzer contests that these acts,
40 41 42 43

Walzer, M., The Problem of Dirty Hands, Philosophy and Public Affairs, Vol. 2, No. 2 (Winter 1973), pp. 160-180 Stocker, Dirty hands and Ordinary Life, Cruelty and Deception, pp. 32 Ibid., pp. 27

Walzer, M.,The Problem of Dirty Hands, pp. 166; de Wizje, S., Tragic-Remorse: the Anguish of Dirty Hands. Ethical Theory and Moral Practice, Vol. 7 (2004), pp. 453-471
44 45

Walzer, 1977, pp. 231 Stocker, M. Dirty hands and Ordinary Life, pp. 30 24

although abhorrent, undeniably and absolutely evil, were justied.46 This logic is not extend to the foreseen deaths of non-combatant civilians, but is reserved for supreme emergencies in which noncombatant deaths were intended. This is perhaps because this logic is used in Just and Unjust Wars to bypass positive international law, and not natural law, as these are not necessarily legislated against. That is, it only the intended deaths of non-combatants that are legislated against in positive law, and not the foreseen deaths. If we are to be consistent with our assertion that as a protector, we acknowledge the moral symmetry between doing and allowing harm, then the intended foreseen distinction is not a dening factor in our moral evaluation and so we must apply this same logic to the wrongness of the foreseen yet allowed deaths of non-combatants. R2P rests upon this utilitarianism of extremity logic, rather than that of double effect, however in doing so, denies itself the right to exist as a norm. Some theorists attempt to dissolve this paradox that an action can both be wrong and right

at the same time. Arguing from a weakly consequentialist, thoroughly contextualist 47 perspective, Kai Nielsen believes that although it is important to have moral rules, the abstract rule must be viewed on its applicability in a given context.48 If it is seen that the rule does not promote the best consequences, then it is not wrong to perform the lesser evil. In doing what we ought to do, we cannot do wrong. 49 Our feelings of guilt are misplaced, and in the assertion that our tragic remorse is appropriate, we are confusing feeling guilty with being guilty.50 Rule utilitarianism, or the weak consequentialism of Kai Nielsen, if it is to justify the deaths of non-combatants as right, in most cases will suggest that rules, although useful for guiding action, are not always sufcient to do so. It requires an act calculation as well in which we judge the validity of the rule to our context, granting an exception to the rule. This exception is, however, case specic as are all act calculations. It
46 47 48 49 50

Walzer, Just and Unjust Wars, pp. 231 Nielsen, K., There is No Dilemma of Dirty Hands, pp. 152 Ibid., pp. 141 Ibid. Ibid., pp. 140 25

therefore stresses the importance of the original rule being in place. We cannot have an exemption clause as this is a further act-guiding rule (the overall consequences of which this dissertation argues will not be utility-maximizing). Whether our feelings of guilt were appropriate or misplaced is somewhat supercial in a debate about policy making, as both theories believe that the rule against the deaths of civilians should be in place. The exceptional circumstances are to be judged on a case by case basis. If we were to adopt Nielsens view, it still agrees that it is a) it is benecial to have a rule against acts that are seen as grotesque abuses of rights, b) sometimes this rule should be overcome. The discrepancy about whether we call the lesser evil wrong but obligatory or right, but an exception to the rule is merely a cosmetic matter, as the implications for positive law are the same. At rst glance, it does not appear that the logic of dirty hands does add much to the modern

conception of DDE. They both use the same justication of the utilitarianism of extremity and condemn acts either side of the decision as evil. The difference lies in their policy implications. The double intention allows for the civilian casualties to be subordinate to another intention. Under the modern conception of DDE, deaths of civilians can still be justied minimized whilst pursuing another intention if they are minimized. Allowing for a non-humanitarian intention implies the justice in that intention trumps the injustice in the in-humanitarian effects. This will permit acts in policy that are not immediately humanitarian and detrimental to human security. It is thus not reective of our priority to human security in the R2P. Humanitarian intervention is a case where the natural law to not harm civilians in combat is in conict with that same law. We thus have only a single intention. This the only logic consistent with the moral conict we face when considering military intervention, upon which the justication for R2P must rest. This same logic, however, requires us to see humanitarian intervention as an exception to a rule rather than a rule of exception; the utilitarianism of extremity allows for justication only on a case by case basis. If our justication of the intervention is on whether it is in accordance with humanitarian principles, then

26

we should endorse a restrictionist policy, but allowing for a post-hoc mitigation in exceptional circumstances. It may be objected that allowing the utilitarianism of extremity calculation to enter our

political playing eld opens the door to allowing serious breaches of international law that would otherwise not occur. To this argument, there are two responses. 1) This is true, however if it truly is the lesser evil then to not do so would be worse. We should not do justice though the havens fall. 2) The restrictionist policy endorsed in this essay is not to allow some acts that are legally impermissible to be permitted, but to render some legally permitted acts as impermissible. This argument presented is limited in its assumption that humanitarian intervention, or the

responsibility to protect, does not produce more good than it results in. If having a responsibility to protect is in fact, overall benecial to human security, then we should consider the norm of R2P as a necessary evil and legislate accordingly. The third chapter will address this issue and illustrate why we might not expect this to be the case.

Conclusion To conclude, R2P cannot be justied in terms of just war theory is it ignores the moral

dilemma in which the responsibility to protect civilians from mass atrocities conicts with our practice of warfare. The classic conception of the doctrine of double effect ignores the moral semblance between doing and allowing harm we must acknowledge in order to justify our intervention in the rst place. The modern conceptions of the doctrine of double effect acknowledges this moral semblance but is still an insufcient justication for humanitarian intervention as it permits the deaths of civilians if minimized and subordinate to another end, whereas our obligations as protectors in intervening makes saving civilian lives our absolute priority. The most coherent justication for humanitarian intervention is Walzers utilitarianism of extremity, which requires the annulment of the R2P, with the practice of humanitarian intervention only mitigated when considered a necessary evil.
27

III A p p l y i n g t h e N o r m : T h e Fa i l u r e t o P r o t e c t
This chapter will illustrate that adopting the rhetoric of just war theory as a justication for

humanitarian intervention will incur perverse effects. Building on the last two chapters, it argues that if we are to often see the act of humanitarian intervention as a necessary evil, then the annulment of the militaristic aspect of R2P will contribute to the reduction these of the perverse consequences of humanitarian intervention, without signicantly hindering the probability of a necessary intervention occurring. The perverse consequences I refer to are those that lead to militaristic intervention when it could have foreseeably been avoided. The rst is the potential for states to abuse the normative criteria of the R2P to justify an intervention that is not humanitarian in nature. Second is the expectation from rebel groups that the stronger states will abide by the emerging norm and thus include the probability of an intervention into the rebels calculus, increasing the likelihood of genocidal violence.

State

Abuse

As was mentioned in Chapter I, there is grounding in the realist concern that states will abuse the leeway that the responsibility to protect allows and pursue state interest under the guise of humanitarianism. Abuse refers to cases where moral arguments are used to justify a war that is not primarily motivated by the moral concerns espoused, but by the short-term interests of those instigating violence. If contemporary international society is able to accommodate these abuses of moral rhetoric to justify intervention, this may lead to a more violent international society, as states will more readily be able to make use of these avenues. Whilst I agree with Wheeler that the intent of humanitarian motives is not a signicant factor in assessing whether an intervention is justied and we should not object if humanitarian concerns are being met, 51 there are identiably at least two cases since the initiation of the norm of R2P which have not met this criteria. The 2008
51

Wheeler, N., Saving Strangers 28

Russian invasion of Georgia; claiming that the Georgian authorities were committing genocide in South Ossetia, and the 2003 US led invasion of Iraq; which, after the evidence for weapons of mass destruction fell through, used humanitarian justications for their continued military presence. In August 2008, Georgian forces moved troops into the disputed territory of South Ossetia,

formally part of Georgian territory, and were met by a large military intervention from Russian forces. This included the Russian ariel bombardment of Georgias capital, Tblisi and the establishment of a buffer zone over 20 miles into Georgia proper. 52 Russias foreign minister, Sergei Lavrov, denounced Georgia as having committed genocide in South Ossetia and argued that the intervention was a legitimate exercise of R2P. There are clear reasons to doubt that the intervention was a benevolent act of humanitarianism. There was no empirical evidence for any occurrence of genocide in South Ossetia, the intervention being met with little support from the international community, China condemning the invasion. Secondly the scale of the Russian assault was grossly disproportionate to what was required to protect South Ossetian citizens.53 Russian forces entered Georgia proper, and attacked cities and ports that were unrelated to South Ossetia, suggesting that humanitarian concerns were not a primary motivating factor for intervention. This is clear evidence in favour of the realist concern that states will abuse the rhetoric of R2P to further geopolitical interest. On 20th March 2003, US and its allied forces (predominantly UK and Australia)

commenced their operation in Iraq. This began with a series of bombing attacks on Baghdad but three weeks later, troops entered Baghdad and sieged the city within the following two days. Although the conict ofcially ended on the 2nd May 2003, the coalition military presence in Iraq lasted a further 8 years until 18th December 2011. Whilst the rst deployment was claimed as

Bellamy, A.J., Humanitarian Intervention. Contemporary Security Studies, (eds.) Collins, A., (Oxford: Oxford University Press), pp. 367
52

Global Centre for the Responsibility to Protect, The Georgia-Russia Crisis and the Responsibility to Protect: A Background Note. www.globalr2p.org/pdf/related/GeorgiaRussia.pdf, (accessed 28 April 2013)
53

29

preemptive attack in self-defense, 54 the continued presence in Iraq was asserted on the basis of providing humanitarian assistance an environment in which Iraqis could determine their own fate peacefully and democratically. 55 The total number of civilian casualties that have resulted in this conict are between 112,217 and 122,757, with 14,915 reported as directly caused by the US coalition. 56 Initially, the intervention was attempted to be justied in terms of existing international law,

but was not found legal on any accounts, 57 Ko Annan condemning the coalition as having shamelessly disregarded international law.58 In the absence of a legal positivist justication, advocates of the invasion turned towards a natural law rhetoric, arguing that the human rights abuses of Saddam Hussein constituted a humanitarian exemption to the rule of non-intervention. Whilst the Hussein regime had a terrible human rights record, with a history of using chemical weapons against its own population, killing 100,00 citizens - mostly civilians - in 1988, 59 there was no apparent supreme emergency in 2003. The lack of evidence for an escalation of violence or human rights abuse in Iraq since the end of the rst Gulf War, and the sheer amount of civilian casualties from US coalition attacks suggest that the humanitarian justications used were illegitimate, constituting an abuse of the rhetoric. It is clear that the responsibility to protect does not adequately restrict state abuse, so placing

strict normative thresholds for intervention do little in helping. The real danger is opening the door to states to intervene militarily who would have normally been disinterested enough to not intervene, but now have an opportunistic excuse. The removal of the permissibility of humanitarian
54 55 56

National Security Strategy of the United States of America, 2002. Washington DC, White House Blair, T., & Bush, G.W., Joint Statement by Tony Blair and George W. Bush, Northern Ireland, 8th April 2003

The most comprehensive civilian casualty monitor can be found at http://www.iraqbodycount.org. It is constantly updated. Recommended by Bellamy, A. J., Ethics and Intervention: the Humanitarian Exception and the Problem of State Abuse, Journal of Peace Research Vol. 41, No. 2 (2004), pp. 131-147
57 58 59

Bellamy, A. J., Ethics and Intervention: the Humanitarian Exception and the Problem of State Abuse, pp. 135 Annan, K., Address to UN General Assembly, Tuesday 21 September, 2004 Bellamy, A. J., Ethics and Intervention: the Humanitarian Exception and the Problem of State Abuse, pp. 135 30

intervention in R2P will deny states from the ability to justify an intervention conducted on nonhumanitarian grounds leads to such abuse. It may be objected that the removal of the permissibility of intervention would not have

stopped states from illegitimate invasions. The Russian invasion of Georgia was done so without UN approval. But this does not mean we should make it easier for states to intervene. Whilst it is quite likely that a state pursuing an aggressive foreign policy would not wholly be deterred by a lack of UN authorization, this is not an argument in favour of R2P. It merely endorses the realist claim that states will act predominantly in their own interest, which the argument for the removal of R2P does not deny. If R2P cannot stop states pursuing their own interest yet still grapples with the problem of selectivity, it is unclear as to what the R2Ps contribution to the international society is. The onus is on advocates of intervention to provide evidence that the good that the R2P does is proportional to the harm it causes. The merits of R2P thus rest upon the assumption that humanitarian justications, genuine

or not, encourage states to be restrained by their arguments and abide by these concerns whilst pursuing their own interest in order to not appear hypocritical.60 It is unfortunate that there is little to no evidence of this hypothesis; there was certainly little concern for civilian protection in the Russian invasion of Georgia. However there may be some merit to the argument, and that the reason the results have not been congruent with it is not because states do not care about not being hypocritical, but that the method of justication for an intervention under the R2P is claiming that there is a just cause.The proportionality rule in the R2P is a particularly weak constraint as it is empirically difcult to determine, counter factual arguments being the only recourse for dispute. States simply have to argue that they intended to use proportional force only; the disproportionality was an accident. The hypothesis this essay poses is that the removal of the ability to justify an intervention under the rhetoric of the R2P will make states more likely to abide by humanitarian

60

Wheeler, N., Saving Strangers 31

considerations. The non-intervention principle places the intervention as an evil, which means the only justication under humanitarian grounds would be a post-hoc mitigation. In order for states to achieve the status of an intervention being humanitarian, they will have to prove not only that there is a just cause for intervening, but the intervention itself was conducted in accordance with the principles of humanitarianism, giving more impetus to abide by these concerns. The argument here is not that it will deter self-interested states from invasion, but in order for this to gain a degree of legitimacy, there must be proof in the pudding.

Moral

Hazards

A further concern of adopting the rhetoric of the responsibility to protect is its potential to

exacerbate, not prevent, conict. Genocidal violence is usually, apart from in exceptional cases like the holocaust, a response to an attack or threat from a vulnerable group who have acquired arms and challenged a states authority.61 Inuenced by expectations of international humanitarian intervention, rebel groups have historically made seemingly irrational suicidal attacks against governments which is then reciprocated by genocidal violence of this nature against civilians. The most convincing account of this phenomena is Alan Kupermans theory of the moral hazards of intervention. This is the phenomenon that the provision of protection against risk unintentionally encourages irresponsible or fraudulent risk taking, thereby increasing the likelihood of the outcome it means to prevent.62 Applying this theory to humanitarian intervention or R2P can cause sub-state actors to rebel out of the expectation that an outbreak of violence will warrant increased media attention from the international community, leading to an intervention that will increase the chance

Kuperman, A., cites: Harff and Gurr (1988) nd that in at least 30 (68%) of their 44 episodes of genocide and politicide from 1943 to 1988, the victim group provoked its own demise by challenging the states authority. Fein (1990) identies 19 cases of genocide from 1945 to 1988, concluding that: one could classify at least 11 cases [58%] as retributive genocide in which the perpetrators retaliated to a real or perceived threat by the victim to the structure of domina- tion. For a detailed analysis, see Kuperman (2002). Western (2005) disputes this interpretation. Valentino et al. (2004) nd that a rise in guerrilla threat from moderate to high is associated with a six-fold increase in the likelihood of mass killing, and a similar rise in civilian support for the rebels raises the likelihood eightfold. When both factors rise from moderate to high, the incidence of such atrocities increases a remarkable 18-fold., The Moral hazard of Humanitarian Intervention, International Studies Quarterly (2008) Vol. 52, pp. 49
61 62

Ibid., pp. 49-80 32

of the rebels success. This rebellion causes states to retaliate with genocidal violence before there is time for any decisive intervention to prevent the violence from the international community. The promise of intervention, or a responsibility to protect, thus feeds inated hopes to the rebels, and fears to the government with disastrous consequences. There is evidence for this theory in several cases of humanitarian intervention, 63 but the

events that unfolded Kosovo are perhaps the most explicit demonstration of how the moral hazard problem explains the instigation of suicidal violence. After eight years of pacist resistance, a militant faction of the disenfranchised and oppressed Albanians of Kosovo, the Kosovo Liberation Army (KLA), took up arms against the Serbian forces. Before this point, violence against the Serbian forces was considered an impossibility: even militant factions of the Albanians dismissed immediate violence as suicidal.64 The pacism the Albanians endorsed was mostly not based on principle, but a rational calculation that was achieving a moderate degree of success; despite the lack of a police force or army on their side, the Albanians had reached a state of de facto independence and had not been met with any genocidal violence by this point. This state of affairs changed dramatically in 1997, when the KLA consciously pursued a strategy of attacking the Serbian forces to attract foreign military intervention by provoking a Serbian retaliation against Albanian citizens.65 The chances of a violent response were extremely high, the Serbian forces having a clear record of genocidal violence against Albanians in other provinces. This attack sparked conict between the KLA and Serb forces, causing civilians to ee their homes. In March 1999, NATO declared it would bomb Yugoslavia unless President Milosevic accepted a U.S. Authorized peace agreement. Instead of inuencing Milosevic to sign the agreement, this threat instead increased the violence signicantly, instigating a mass ethnic cleansing in Kosovo, that within

Kuperman A.J., examines case studies in Kosovo, Bosnia, the 1993 Iraq War, and to a lesser extent, Rwanda in Transnational causes of genocide, or how the West exacerbates ethnic conict, Yugoslavia Unraveled: Sovereignty, SelfDetermination, Intervention (Ed.) R.G.C. Thomas ,(Lanham, MD: Lexington Books, 2003), pp. 5585
63 64 65

Kuperman A.J., The Moral hazard of Humanitarian Intervention pp. 65 Ibid., pp. 69 33

weeks, killed 10,000 Albanians, expelled 850,000 (half of the population of the province) and displaced most of the rest.66 The NATO bombing that ensued led to the withdrawal of Yugoslavs forces from Kosovo and ended the ethnic cleansing but was followed by a series of revenge attacks by Kosovos Albanians. It is clear from the impossibility of an unsupported Albanian victory and timing of the

events that occurred, that the prospect of humanitarian intervention and later, the ultimatum given to Milosevic by NATO, contributed signicantly to the ethnic cleansing in Kosovo. The moderate success of Albanian pacism up until the KLA attacks suggests that it was likely that if no such intervention was predicted by the rebel groups, and later threatened by NATO, that violence in the region would not have erupted, especially to the extent in which it did. The humanitarian intervention that occurred was given praise internationally, and was viewed as a permissible exception to the rule of non-intervention. 67 Nevertheless, it was a solution to a problem that it caused. The moral hazard problem is by no means an isolated issue, temporally or geographically, as

is demonstrated by the ongoing genocide in Darfur. After four years of gruesome conict, the emerging norm of R2P stained the 2006 Darfur peace talks, escalating the violence. The violence in the region attracted considerable international attention, and following an investigation by the US, Secretary of State, Colin Powell declared it a case of genocide on the 9th September 2004. Whilst this discourse of genocide was well intended, and was forwarded to the UN, there was no change to US foreign policy on the matter.68 On the other hand, Abdel Wahid, leader of the Sudan Liberation Movement, saw the possibility of an intervention comparable to the scale of the NATO

66 Kuperman
67

A.J., The Moral hazard of Humanitarian Intervention pp. 65

Bellamy, A. J., Ethics and Intervention: the Humanitarian Exception and the Problem of State Abuse Vol. 41, No. 2 (2004), pp. 143; Independent International Commission, The Kosovo Report. (Oxford: Oxford University Press, 2000)
68

Belloni, R., The Tragedy of Darfur and the Limits of the Responsibility to Protect 34

interventions in Bosnia and Kosovo.69 This led to his refusal to sign the Darfur Peace Agreement, considering any political guarantees to be insufcient compromises when compared to a UN intervention. Meanwhile, in further hope to instigate an intervention, the rebel leaders adopted a long term military strategy akin that of the Kosovo Albanians, which consisted of refraining from saving burning villages and letting the killing by the Janjaweed continue.70 Most tragically, the talk of intervention was followed by ineffective, untimely and inefcient intervention from the UN, so whilst exacerbating the violence, the inherent limitations of the responsibility to protect which revolve around the problem of selectivity did little to stop the violence. At this point, the R2P compromised the peace process. As it is the duty of a peacekeeping force to instigate peace, rather than to further rebel demands, through increasing the expectation of an intervention, R2P failed in its duty even before the deployment of troops. The problem with R2P is that its success is predicated on the expectation that States will

accept this responsibility over their own state interest. The factual evidence does not suggest that this is the case. The problem of selectivity is one that permeates any discussion of the credibility of R2P. Furthermore, attempts from the R2P to eliminate the problem of selectivity, whilst failing to do so, plays with re; it risks removing this calculation from the risk assessment of rebels. If the international community has a responsibility to act, regardless of their state interests, it may make the insurance policy of intervention seem more encompassing than it is in reality. This demonstrates a signicant problem in rhetoric encouraging the moral obligation to intervene militarily in positive law: Groups with previously no allies now have the international community backing them, or so they think. Restricting the Nor m

Due to a combination on its focus on sovereignty and its justicatory basis on doctrine of

double effect, the institution of R2P, and the states that act under its tutelage, are able to justify cases
69 70

De Waal, A., Darfur and the Limits of the Responsibility to Protect. Belloni, R., The Tragedy of Darfur and the Limits of the Responsibility to Protect. 35

of collateral damage without being held responsible. This leads to a blanket justication of all interventions that meet a minimum threshold that is not compatible with humanitarianism. Recourse back to a principle of non-intervention, in light of the above evidence, is expectedly the most effective method of reducing genocidal violence. It will relieve rebel groups of the belief that a humanitarian intervention may occur and increase their chances of success and restrain states from using the rhetoric of justice as a means for abuse. This will likely encourage peaceful means, or at least deter violent means of challenge to state sovereignty. There are many challenging objections to the thesis. The rst which needs to be addressed is

the claim that eliminating humanitarian intervention under R2P will deter states from intervening when necessary. There are two responses to this claim. 1) The sad truth is that states only intervene when it suits them in some way. There have been no successful cases of humanitarian intervention where intervention would probably not have occurred if there was no support. A state will intervene only if it feels there is a benet. To accuse that the removal of permissibility of humanitarian intervention will dissuade states from humanitarian intervention is to put faith in the fact that they were persuaded to intervene in the rst place. 2) Several interventions, arguably the most successful, have been undertaken without permissibility in positive law. A second objection is that R2P has the capacity to develop into a new norm, but such things

take time, and it may emerge that states will nd it in their interest to conduct missions of humanitarian intervention which are nowadays dismissed as idealistic. This may be true, however in light of the counter evidence, that R2P is not only ineffective, but detrimental to human security, we should err on the side of caution. Once again, to validate this claim leaves the burden of proof on advocates of humanitarian intervention, which has not been proven to be successful, even in the most recent cases where intervention has been necessary. The removal of the militaristic aspect of R2P may be incompatible with our western thought that military intervention is warranted in extreme circumstances. The reason the norm emerged is
36

because of our fear of people being dominated and exploited in repugnant regimes. Our moral conscience has extended to the point where we feel that we are now involved, so a strict policy of non-intervention can be perceived as abhorrent. However, I do not believe this will change if the militaristic aspect of R2P is annulled. These humanitarian concerns are still indoctrinated in the R2P - R2P was a result of this expansion of our moral consciousness, not vice versa. It is thus plausible that in the extreme circumstance where a military intervention is absolutely necessary, that we will perceive a forcible intervention as a necessary evil. Humanitarian Intervention has occurred without UNSC authorization, and yet been praised as illegal but legitimate 71 (IICK, 2000, p.4) demonstrating that the international community are willing to make exceptions when the reasons are morally compelling. To rule out the indoctrination of a responsibility to intervene militarily is not to necessarily rule out its ad hoc approval, but it may minimize the perverse affects to which its particular rhetoric is, at least partly, to blame. Conclusion This chapter has shown not only that the R2P is ineffective, but also that it is detrimental to

human security. Humanitarian intervention cannot be justied in positive law and the militarist aspect should therefore be annulled. The R2P is unsuccessful as it assumes the possibility of an ideal humanitarian intervention; a group of altruistically motivated states that will intervene in a humanitarian crisis without adding to the amount of civilian casualties. It is, in fact, more detrimental to the goals of humanitarianism to hand states the right (even a heavily regulated one) to intervene, rather than to assert a principle of non-intervention and mitigate the exceptional circumstances in which the intervention was benecial.

71

Independent International Commission, The Kosovo Report. (Oxford: Oxford University Press, 2000) 37

IV Conclusion
! This dissertation has argued that the justication to voluntarily engage militarily under just

war theory contributes substantially to the problems that humanitarian intervention aims to prevent. A policy restricting military intervention is the only justiable policy if we are to remain consistent with humanitarian principles. Chapter I identied the responsibility to protect as an emergence of natural law principles

embodied in just war theory. The responsibility to protect, with its focus on sovereignty as conditional risks potentially distracting from its humanitarian focus. Whether a norm that invoked natural law principles should be included in international positive law was considered, concluding that if found to be benecial to human security, then this justice should be valued over international order. There are, however, serious limitations on the construction of a new norm permitting humanitarian intervention; the indoctrination of an emerging norm does not mean that it is appropriate. Care has to be taken as to exactly what the norm will allow and will constrain. Further limitations are that state interests often conict with the requirements of R2P. This results in the problem of selectivity, in which states avoid justications for intervention, and the problem of abuse, in which states overzealously and illegitimately use the justications for non-humanitarian purposes. If normative principles of humanitarian intervention are to be constructed, then they must account for these issues. Chapter II investigated the legitimacy of applying just war theory to issue of humanitarian

intervention. It argued that the application of just war principles to humanitarian intervention is self contradictory, as it justies the allowance of non-combatant deaths whilst the cause for intervention was in the injustice of this act. This was due to the doctrine of double effect. When conducting humanitarian intervention, our role as a protector is reliant on the moral semblance between doing
38

and allowing harm, which the doctrine of double effect denies. Humanitarian intervention, as it involves the allowance, and sometimes the causation, of civilian casualties is instead a problem of dirty hands, where we must choose a lesser evil as opposed to a just action. This utilitarianism of extremity logic stresses the importance of there being a rule against both evils, yet the permissibility of these rules being overridden in extreme circumstances. We cannot use the natural law principles embodied in just was theory as a positive law justication for humanitarian intervention, as the act requires us to violate these same principles. Chapter III used the philosophical implications outlined in Chapter II to illustrate that a

non-intervention principle will help solve some of issues raised by the illegitimate rhetoric of just war theory in justifying humanitarian intervention. It argued that the removal of the militaristic aspect of R2P will contribute to the removal of the problem of moral hazards and will help restrict state abuse. With a non-intervention principle, the only justication of intervention can be post-hoc mitigation, which will encourage states who intervene to abide by humanitarian concerns more-so than a principle legitimizing it from the beginning of the conict. The argument posed in this dissertation is limited to conclusions drawn from the R2P in its

infancy. Whilst this dissertation has argued that the only justication for the legitimation of humanitarian intervention in positive law is that it contributed to the wellbeing of humans worldwide, which has been found wanting, this may be the result of the idea being in its genesis. This may well change over time and we may witness the principles being executed more willingly and efciently. However, to declare humanitarian intervention which results in the deaths of innocent civilians as a just action is to ignore the moral complexity of the situation we face. Forced by the evil actions of others, interventions involve the committing of crimes that we abhor, and thus cannot be justied. We must accept that we are committing an evil, albeit a necessary one.

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