In this article I am going to defend Fernando R. Tesón’s liberal moral argument that military intervention which prevents or ends grave human rights violations is just.
The most common counter-arguments against humanitarian intervention are that:
- it infringes upon the principle of sovereignty and non-intervention
- it poses a threat to the stability of international law and order
- it is ineffective/ does more harm than good.
In the following I will discuss each of these points individually by drawing on liberal political philosophy, theories of justice and human rights and legal as well as empirical evidence.
- SOVEREIGNTY AND THE NON-INTERVENTION PRINCIPLE
Since the ‘Peace of Westphalia’ in 1648 the sovereignty of nation-states has been one of the most fundamental principles in international relations.
The Westphalian Treaty marks the manifestation of the view that people enter into a social contract when they transfer their individual freedom to the sovereign in exchange for personal and public safety and the termination of the supposedly anarchic and therefore undesirable ‘state of nature’.
According to Realism, as the dominant theory in international relations, states are independent, legally equal agents with internal as well as external sovereignty and a right to determine the fate of its peoples without interference by other states or external actors.
Intervention is the ‘”[…] dictatorial or coercive interference, by an outside party or parties, in the sphere of jurisdiction of a sovereign state, or more broadly of an independent political community” (Hedley, 1984: 1).
Thus intervention is perceived as infringement on the self-determination right of nations and the government as its representative.
In the next section of I am going to assess the validity of the concept of absolute sovereignty as a moral political basis for the legitimacy of the non-intervention principle.
Thomas Hobbes’ Leviathan
Hobbes developed one of the earliest accounts of the proper role of government. He presumes that people would in principle (social contract) voluntarily defer their inherent right to self-determination to an sovereign with absolute power (Leviathan) in exchange for personal and public safety and in order to evade the anarchic and violent ‘state of nature’ (war of all against all; theoretical starting point of society without a sovereign power) (Hobbes 1995, xiii and xiv).
Hobbes argues that the sovereign must have absolute, undivided and unlimited power in order to deter any attempts of infringement on the rules and deterioration into a state of civil war (Hobbes 1995, xiv.10).
Since the individuals have transferred their self-determination rights to the sovereign power, it embodies all the rights to self-determination of the political unit and thus other states must respect this and refrain from interfering in that state’s internal affairs (Hobbes 1995, xviii.18).
Therefore Hobbes believes that the legitimacy of the sovereign does not rest on the form (democratic or not) of government, but solely on the fact whether it provides for the personal and public security of its people (Hobbes 1995, xix).
Nevertheless Hobbes implicitly acknowledged that there are certain limits of obligation to the sovereign.
In his works, such as in Leviathan and De Cive, he argues that by entering the social contract, man gives up his right of defending others, but not the right to defend his own life (Sreedhar, 2010: 10).
Hobbes also argued for ‘true liberties of subjects’: They consist of “[…] (1) the liberty to direct their lives as they wish on matters that the law does not regulate, and (2), the liberty to disobey a very particular set of directives from the state” (Sreedhar, 2010: 57-58).
‘By appealing either to the words of the social contract or to the purpose for which the sovereign was instituted, one can establish whether an instance of refusal to obey is justified’ (Sreedhar, 2010: 58).
This rather rebellious section of Hobbes’ theory has puzzled many realist thinkers that, for the most part, have simply and rigorously ignored it. The realist interpretation of Hobbes theory as absolute sovereignty is thus a gross caricature as Boisen & Boucher (2011, p. 81) correctly identified.
If Hobbes’ limits to the obligation towards the sovereign were taken into account, statist theorists would have to admit that Hobbes’ absolute sovereignty is not that ‘absolute’.
In fact the sovereignty of the state is limited by the right to self-defense and the true liberties of subjects, which in my view can be regarded as equivalent to a set of basic human rights.
Although Hobbes never expanded on the consequences of the violation of the ‘true liberties’ by the sovereign, one would have to reason that the social contract becomes invalid, because states and their political institutions lack the moral worth and respect we owe to humans and thus have no intrinsic but only instrumental value (Caney, 2005: 11-13)
Hence if the sovereign fails to provide for the personal safety and civil liberties (which he promised in exchange for the obedience of his people) he must – logically speaking – lose his legitimacy.
In modern words it means that if states don’t provide for safety and civil and political human rights that fall under their responsibility, they forfeit their rights to sovereignty and non-intervention.
However, some people may object that states are analogous to persons and do have intrinsic value.
Even if we assumed that, one would still have to show that the value of the state as such cannot be outweighed by human rights considerations (Caney, 2005: 13).
It is reasonable to assume that the oppression, persecution, torture and even murder of human beings, will at some point reach a magnitude, in which the situation resembles the state of nature and thus the horror does not only outweigh the intrinsic value of states, but renders the state – quite simply – irrelevant.
The notion of absolute sovereignty and non-intervention cannot only be assessed from Hobbes’ theory, but also from the viewpoint of the extremely influential philosopher Immanuel Kant.
For Kant individuals have an “[…] innate right to freedom by virtue of their humanity” (Freeman, 2011: 27) and thus don’t lose their freedom in the social contract to a paternalistic sovereign that can rule how he likes as Hobbes suggested.
Rather the peoples are the ultimate source of sovereignty (popular sovereignty) and fulfill themselves a ‘paternalistic’ role by guiding the government: In a republic every law must in principle (quasi-contract) have the consent of rational people and the ruler must conform to the law and the will of its citizens (Riley, 1977: 451).
Although Kant endorsed the idea of popular sovereignty he argued that even if the contract seems to be broken, people should still obey the sovereign as executor of legal justice because Kant perceives imperfect legality to be still superior to anarchy (ibid).
Moreover Kant (1932) argued republics that derive their sovereignty from their people don’t go to war with each other and that enduring peace required that all states still living in the violent state of nature become republics (democratic peace). But then again it seems that Kant nevertheless rejects any outside help for revolutionaries and military intervention in another state that aims at overthrowing a (tyrannical) regime (Williams, 2010: 103).
This paradox of simultaneously ascribing inalienable rights to citizens but rejecting forceful means to protect these rights presumably stems from Kant’s horrifying impression of the French Revolution and ‘La Terreur’ and his subsequent conclusion that violence has moral costs that should not be underestimated (Scruton, 2004: 3).
Nevertheless Kant defended the American and French Revolutions on the grounds that they brought the state closer to the republican Ideal and to overturn them would mean regress (Scruton, 2004: 3; Riley, 1973: 451).
Not only Fernando Tesón (2005), but also other modern theorists like David Luban (1980) and Simon Caney (2005) have tried to overcome this weakness of Kant’s political philosophy.
Tesón (2005: 16-18) claims that states are only legitimate as long as they protect and enforce the natural rights of its citizens and a state that fails to do this or even engages in human rights violations breaks the social contract and forfeits its internal and external sovereignty (Tesón 2005: 16).
Tesón’s argumentation for humanitarian intervention can be described as Kantian because it rests on the basic assumption that citizens have inalienable freedom rights and are the ultimate source of sovereignty (popular sovereignty).
But Tesón disagrees with Kant insofar that he transcends the Kant’s (ironically rather Hobbesian) emphasis on order and security within the state: Tesón is prepared to sacrifice momentary order (with all its terrible short-term consequences) for long-term liberty (Williams 2010: 109):
“If there is an obvious proposition in international ethics, it has to be that war is a terrible thing. Yet the deeply ingrained view that war is always immoral regardless of cause is mistaken. Sometimes it is morally permissible to fight; occasionally, fighting is even mandatory” (Tesón, 2001, P. 5)
In fact, Tesón argues that the autonomy states enjoy internationally is derived from the freedom rights that Kant ascribes to individuals. Thus there can plausibly be no (international) respect for the autonomy and sovereignty of states that themselves violate the rights of their citizens.
The international respect for the autonomy of states was also questioned by David Luban (1980: 168), who argued that one has to distinguish between a nation, which is formed by the common life of a political entity, and a state, which is composed of the government and its political institutions.
Since the nation exists before the state and the state receives his rights from the contract with its nation, it is only the custodian, but not the owner of the autonomy right (which is expressed internationally in the principle of self-determination and non-intervention).
However, if the state (custodian) abuses his power to oppress its own nation (right-holder), then the social contract becomes invalid and the state loses his legitimacy and the autonomy right is transferred back to its original owner, the nation.
Therefore external help through intervention to overthrow and illegitimate government serves the citizens, and is legitimate, if it prevents or ends gross and wide-scale human rights violations.
Nevertheless, Tesón (2005: 16) also acknowledges that Kant’s fear of unrestricted rebellion and outside intervention has some legitimacy and therefore he qualifies his argument with the following conditions:
a) the moral costs of the violence caused by the intervention undertaken in principle by liberal actors must be proportionate to the suffering caused by the human rights violations and
b) the suppressed people must actually or hypothetically welcome the foreign armies that come to their rescue and
c) the intervention must be consistent with the doctrine of double effect (difference between foreseen and intended bad consequences and foreseen, but unintended bad consequences).
Tesón’s pledge, for allowing humanitarian intervention, is philosophically speaking even more Kantian than Immanuel Kant himself, because Tesón is unshakable in his defense of freedom and international human rights.
- INTERNATIONAL LAW AND ORDER
It is often argued that humanitarian intervention violates the general prohibition of the use of force (except for self-defense) in international law.
This argument is often made with the additional remark, that defendants of humanitarian intervention argue subjectively, value-based whereas the lawyers argue objectively, evidence-based.
There are three arguments that disqualify this critique of humanitarian intervention:
a) No one objects that the use of force is and should be prohibited in international law. But humanitarian intervention is and should be the last exceptional response to exceptional tyranny and human rights violations, such as crimes against humanity. Great evil requires exceptional measures.
Moreover, even in international law we find several clauses that acknowledge the urgency of these human emergency situations and allow for the use of force:
– The UN Charter provides for UNSC legitimized use of force by sea, air and land in Article 42, Chapter VII.
-Article I of the Genocide Convention prescribes the duty to prevent and punish genocide and Article VIII permits any contracting party to
call upon the UN to take (including military) action to prevent or suppress acts of genocide.
-The responsibility to protect (R2P) was adopted by the UN General Assembly in 2005 and it comprises the obligation of the international community to take peaceful and if necessary military measures to protect citizens from mass atrocities.
b) There is no value-based, subjective interventionist argumentation vs. an objective, evidence-based legal one: In fact, those opposed to humanitarian intervention are often informed by state-oriented values that put emphasis on security and order. Therefore the real difference is between those who base their judgment on human values and those who rely on state-centered values.
As I have explained above states only have instrumental value as custodians of its citizen’s rights. Thus if the states to fulfill its role as custodian (and let’s be honest, there is no order or security in situations of civil war, gross human rights abuses, ethnic cleansing or genocide under tyrannical regimes) then the only true value- and right-holders are the humans, not the state.
c) If someone still believes that international law is objective and separate from moral arguments, then one can nevertheless take the position of de lege ferenda:
If international law currently prohibits humanitarian intervention and if at the same time, it is true that there is a moral obligation to protect human rights internationally and to prevent crimes against humanity, then the logical conclusion is that international law must be reformed.
Indeed, positive international law is built on state practice and there is good evidence to believe that since the 1970s we have experienced state practice deviating from the traditional norm of non-intervention (see Nicholas Wheeler, 2002 on Vietnam’s intervention in Cambodia, Tanzania’s intervention in Uganda and the intervention in Kosovo).
Since state practice has changed, it is reasonable to argue that international law should adjust accordingly if necessary.
- INEFFECTIVENESS/ DOES MORE HARM THAN GOOD
Edward N. Luttwak (1999) believes that war brings about peace faster than humanitarian intervention. He claims that political conflicts can solely be solved in violent confrontation that ends when both parties are exhausted or when one party wins the war decisively.
This – the author implies – will resolve the conflict with a clear and incontestable result and consequentially will show each party its status and rank in the power relations. In turn this outcome will allow for ‘normal’ political interaction between the former belligerents (again) as each party knows its basic position in the international order and permissible (re-)actions and demands.
However, nowadays international peacekeepers, such as the United Nations, have – despite all their good intentions – impeded this natural peacemaking process of transforming violent clashes into stable post-war situations (Luttwak, 1999: 37). Their practice of imposing cease-fires ‘perversely’ counteracts the original purpose of fostering negotiation between the belligerents, because it lifts the burden of constant war and will intensify and prolong the conflict as the belligerents get undisturbed time to rearm their forces (ibid).
Therefore, Luttwak argues, war should be allowed to run its natural course and let itself burn out as it is the fastest way of establishing peace.
If the United Nations truly wanted to bring about peace more quickly, then, in Luttwak’s opinion, they should intervene on behalf of the stronger side in order to beat the weaker side more effectively, thus establishing a possibly unfair but stable post war situation, where peace can truly take hold (Luttwak, 1999: 37- 38).
But if we look into history, do we find Luttwak’s claims confirmed?
Well, there is strong evidence that war does not ultimately settle disputes, but rather coerces the weaker side into compliance until that party subsequently tries to spoil the ‘victor’s peace’ and to take military revenge. Hence war often leads to instability and further conflicts.
For instance in World War I the allies won and imposed their victor’s peace on Germany. This was manifested in the Treaty of Versailles, which declared that Germany is the single responsible party for the breakout of the war (‘Guilt Clause’ §231), demanded reparations in form of land and money and restricted Germany’s ability to trade, engage with colonies or build contractual relationships to other countries. This completely shut out Germany from the international community and consequently led to the growth of revanchist feelings amongst the population.
This unfair postwar situation didn’t open the way to a stable peace as Luttwak says, but rather established the ‘poisoned soil’ for Hitler to start World War II. Conflict is not resolved merely by the overwhelming demonstration of power, because the ‘big gun’ does not have a deterrent capacity on people who are willing to sacrifice everything: themselves, their country and their peoples.
However, Luttwak also claims that humanitarian intervention cannot be effective since the UN and many other institutions don’t even possess the strategic and military capacities to undertake successful interventions.
He argues that only military organizations such as NATO or ECOMOG have the internal and external structures to stop fighting, although in most cases they don’t do it for disinterested and frivolous reasons such as avoiding combat and troop degradation (Luttwak, 1999: 39, 40).
Humanitarian relief activities such as the UNRWA cause the worst postwar outcomes, according to Luttwak (1999: 42), because they provide the refugees with desirable camps, where revanchist ideologies are facilitated and reintegration into society is prohibited as the ‘transit-camps’ offer better living conditions than the national standard.
One has to acknowledge that Luttwak is right to claim that many institutions such as the UN, EU or the OSCE lack even the basic structures, like constantly available troops, to intervene effectively in serious conflicts (Luttwak, 1999: 38, 39).
It is also true that these organizations are indeed ineffective because when they intervene in conflicts, they often refuse ‘to engage in combat’ and protect civilians (such as in Srebrenica), thus they give the persecuted people a phony feeling of security, although it would be smarter for them to flee the country (Luttwak, 1999: 38).
But the ineffectiveness argument does not question the legitimacy of interventions altogether. Rather the mentioned problems have to be solved in order to make institutions more effective.
Despite all the problems, the UN still fulfills a legitimate, though admittedly limited, purpose: to observe conflicts and to report the happenings to the Security Council. Sometimes attention itself can prevent or at least suppress the outburst of hostilities long enough to find a solution.
To abolish peacekeeping organizations altogether would be a frivolous act as it would manifest the international community’s moral bankruptcy and encourage aggressors on the international stage.
Of course some conflicts are beyond peaceful measures and require military force to protect the lives of civilians. It is true that humanitarian intervention usually intensifies the conflict in the beginning and thus costs the lives of innocent people. But the harm that is done with good intentions to save many humans in the long run is preferable and morally superior to the incalculable risk of innocent lives lost in the ongoing mass slaughter.
In the case of Kosovo, Bosnia and Rwanda non-intervention would have/ has meant wide scale ethnic cleansing, war crimes, genocide and crimes against humanity and thus the loss of millions of innocent women, men and children, the destruction of countries and their economies with (potential) spill-over effects into neighboring countries/ regions.
To prefer this outcome, despite of all the drawbacks of intervention, is quite simply dangerous, cruel and foolish.
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