Humanitarian intervention: the elephant in the room?

Development Policy13 Jun 2010David Moszkowicz

At a conference on R2P, one has to be modest when talking about humanitarian interevention, since much emphasis is put on the distinction between the two. Indeed, as we have learned, concerns about military intervention can be seen as the main obstacle in the search for international consensus on R2P. So let me start with the following: I agree that R2P is about much more than military intervention, I agree that R2P has not legalized unilateral humanitarian intervention, and I agree that prevention is better than intervention.

Still, I think it is interesting to study the relation between the two. Notwithstanding its importance, I am not so much interested in the legal status or the political reality of R2P. Rather, I see R2P as a powerful normative concept. More specifically, the possible transfer from the primary responsibility of the State concerned to the secondary responsibility of the international community. My assumption here is that ‘responsibility’ implies certain duties, possibly including the duty of third states or international organizations to intervene militarily in extreme situations. Academically, the military component is especially interesting, because it can be seen as the hardest case of a duty to protect.

My main focus therefore is on moral philosophy, but the challenge is to see how moral philosophy and international law and its development can learn from each other. And since the focus is on moral philosophy, humanitarian intervention includes military intervention for humanitarian protection purposes that is authorised by the Security Council, while I am of course aware of the importance of the distinction in international law. In moral philosophy, however, the division is less strict and since a true success of intervention by the Security Council can make unilateral intervention irrelevant, it seems to make sense to look at them together.

So, inspired by the normative force of R2P, the idea that I want to test here is to approach humanitarian intervention, broadly conceived, from the perspective of an obligation, instead of merely a right. Or in a Hohfeldian analysis: a duty, instead of a liberty. This perspective should by no means give the impression that the horrors of military intervention are taken light-heartedly. One still ought to be extremely reserved about the use of force. Nevertheless, the assumption is that under certain circumstances, a moral duty of humanitarian intervention can be seen as an extreme sub-category of a moral duty for ‘bystanders’ to protect (possible) victims from mass atrocities. However, logically, humanitarian intervention in a particular situation is only morally obligatory, if it at least satisfies the stringent requirements of moral permissibility, the latter being a necessary, but not sufficient condition of a moral duty of humanitarian intervention.

A duty of humanitarian intervention seems intuitively compelling. Indeed, a tragic history of events such as in Rwanda shows that the question of permissibility is only part of the story. For the protection of populations from mass atrocities, it is not enough that there is the liberty to act on the part of international actors, since what often lacks is the political will to act.

However, complex issues remain. How can such a moral duty be grounded? Who are the bearers of such a duty? And what are the prospects of international legal developments in this regard?

A moral duty of humanitarian intervention has been defended on different grounds: for example by a goal-based theory, such as utilitarianism, if the consequences of an intervention promote the welfare more than the consequences of non-intervention. Or it can be grounded in the duty to counteract injustice, without establishing a correspondent claim right at the side of the (possible) victims of this injustice.

More in line with the developments in human rights theory, however, is a moral duty of humanitarian intervention that correlates to a claim or demand based on individual moral rights. Two versions can be distinguished. The first one, defended by Thomas Pogge, is based on negative duties not to do harm. In short, his argument goes as follows: many humanitarian crises are caused by the global institutional system we live in and as long as we fail to reform these institutions, we violate our negative duty not to do harm. His argument is not vulnerable to the libertarian critique that only negative duties of justice exist, but it might seem problematic to prove causality in some cases, while protection would still be just.

This concern is met by the forward-looking foundation of a duty to protect by, among others, Henry Shue. His theory is based on positive duties to protect ‘basic rights’, such as the right to life. These rights are so fundamental that it should not only lead to a claim right corresponding to a duty of non-interference, but also to a duty to protect these basic rights. At another degree of abstraction, this claim right would entail a prima facie right to be rescued by third parties, even if this is not without risks and costs.

The next question is of course how to distribute these duties. If all bear a duty to coordinate their efforts in order to answer the claim of basic rights, according to which principles can these duties be assigned? Responsibility can, for example, be allocated on the basis of a special relationship such as historical ties, or on the basis of primarily consequentialist considerations such as capacity or effectiveness, as James Pattinson has convincingly illustrated. Of course, all these principles have their limitations. For example, what if a country is rather isolated and has no special ties, or is it fair that the agent that is most capable has to carry all the burdens? Is there a lexical order between them, as James Pattison seems to argue? Or should one, following David Miller, just look for the strongest connection in a particular case?

Of course, the difficulty lies in the translation of these moral principles to the legal system and institutions, such as the UN Security Council. A duty to intervene can never be an absolute duty, since the risks or costs for the intervening party should not be unreasonable. But probably such an intervention would not even be morally permissible, since, following the common core of just war criteria, there would be no reasonable chance of success.

Within the wider category of the moral duty to protect, different types of duties seem to exist, including the moral duty to reform institutions if there is a protection gap. Leaving aside the political feasibility, from a moral perspective I would encourage developments that restrict the discretionary power of the Security Council. The possible development of legal restraints on the use of the veto in R2P situations, as elaborated on by Anne Peters, is one hopeful way in which the moral and the legal discussion can meet. Guidelines for the use of force of the Security Council getting back into the discussion would be another one.