Humanitarian Intervention Essay
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Sample Essay on Humanitarian Intervention
For those who argue that there is a legal right of humanitarian intervention, a typical theme is that such interventions have long been an accepted customary practice among nations and that there are numerous writings by various publicists identifying it as an acceptable action. In this connection, reference is sometimes made to the writings of early authorities on international law, such as Hugo Grotius. Later references are to the groundbreaking treatise in 1836 of Henry Wheaton, who argued for a customary legal right of humanitarian intervention “where the general interests of humanity are infringed by the excesses of a barbarous and despotic government” (Wheaton 1978).
The precedent in law that supposedly dates from this earlier period is often reinforced by citations of more contemporary authority, such as the well-known text on international law by Lassa Oppenheim, which first appeared in the early twentieth century and went through a number of subsequent editions. Oppenheim observed as follows:
There is general agreement that, by virtue of its personal and territorial supremacy, a State can treat its own nationals according to discretion. But there is a substantial body of opinion and practice in support of the view that there are limits to that discretion; when a State renders itself guilty of cruelties against and persecution of its nationals in such a way as to deny their fundamental rights and to shock the conscience of mankind, intervention in the interests of humanity is legally permissible (Oppenheim 1955).
The phrase “to shock the conscience of mankind” is a virtual mantra among those who argue for the legal right of humanitarian intervention, although the definition of which practices are likely to create such a shock and, for that matter, how we can determine whether the conscience of mankind is actually aroused over a particular situation is left unstated and ambiguous. What is important here is that defenders of the legality of humanitarian intervention tie their case to what they feel are significant legal precedents. More to the point, they assert that these precedents retain their force even given new legal regimes such as those established by, say, the United Nations Charter. In the contemporary period, the writings of Richard Lillich, Julius Stone, Myres McDougal, and Michael Reisman have been prominent in their support of a legal right to humanitarian intervention in appropriate circumstances (Lillich 1977).
There is an equally strong position held by other international legal scholars that humanitarian intervention has no foundation in the law of nations and, indeed, that such action is specifically proscribed by international legal norms. Not surprisingly, the emphasis in this case is on the absence of any general international convention allowing such intervention. Moreover, these scholars are quite unpersuaded that a customary right of humanitarian intervention has been or ever was established. The debate in this instance generally turns on very different interpretations of actual state practice with regard to humanitarian actions, which is essentially an empirical rather than a narrowly legal issue.
Those who favor humanitarian intervention are confident that states have, in fact, often intervened on humanitarian grounds; those opposed suggest that such has rarely, if ever, been the case. These arguments are sometimes expressed in surprisingly fierce terms, with the skeptics sometimes implying, for example, that proponents of the right of humanitarian intervention are a threat to the very sanctity of the international legal system or at least to the effective restraint that that system has imposed on the behavior of states.
Let us look at the position held by one of the leading British authorities on international law, Ian Brownlie. In reacting to the claim of one of his American colleagues, Professor Richard Lillich of the University of Virginia, that a presumptive legal right of humanitarian intervention may indeed be identified, Brownlie waxes indignant, and in places almost more than indignant. “It is clear to the present writer,” he says, “that a jurist asserting a right of forcible humanitarian intervention has a very heavy burden of proof. Few writers familiar with the modern materials of state practice and legal opinion on the use of force would support such a view” (Brownlie 1973, 218). Brownlie offers his own rather numbing list of authorities who have questioned the legal basis for humanitarian intervention. He also suggests in the bargain that Lillich’s stance on humanitarian intervention is “almost entirely devoid of any serious examination” of how customary and especially conventional international law (particularly as it involves the Charter of the United Nations) has regarded the practice of humanitarian intervention (Brownlie 1973, 220). The most that Brownlie is willing to concede is that there may be very rare occasions in which a “euthanasia analogy” may be justified in international relations. The practice of euthanasia is legally proscribed almost everywhere—and, according to Brownlie, should remain so—but doctors do nonetheless occasionally assist in ending their patients’ suffering. It is a little unclear here how nations, rather than individuals, can actually be put out of their suffering.
What to make of all the legal disputation concerning humanitarian intervention? First, it would appear that there have been three general phases in the attitude of most legal scholars toward the subject. Prior to 1945, there was a distinct, although hardly universally agreed, position that humanitarian intervention was a legally-defensible activity, particularly if custom was accepted as a source of international law. In the years after 1945, however, given the obligations of the United Nations Charter, opinion swung back toward the idea that humanitarian intervention was proscribed, given a positivist interpretation of the duties that treaty (convention) provided. More recently, a reinterpretation of both customary and conventional sources of international law has led many to the conclusion that humanitarian intervention may be legally defensible if certain circumstances obtain.
Even in the recent period, of course, there is hardly a legal consensus. As Tom Farer has suggested, the stance that one takes toward the legality of humanitarian intervention depends very largely on one’s overall theory about how international legal principles come into existence. Farer distinguishes between the so-called classical and realist schools of thought in international law. The classical school emphasizes the traditional sources of that law, including formal texts, a narrow interpretation of intentions, and state practice itself. The realist school operates more from a policy oriented perspective and grants legitimacy to actions based on the effective exercise of power in support of community objectives, and that receive at least tacit acceptance. Farer concedes that it is not possible, even today, to support a contemporary right of humanitarian intervention if one takes the classical approach (Farer 1991).
For those who favor a right of humanitarian intervention chiefly on the basis of moral considerations, it is tempting to suggest that if international law doesn’t allow for such interventions, so much the worse for international law. As the scholar D. W. Bowett has written, the presumed legal prescription against humanitarian intervention “is, because of its divorce from actual practice, rapidly degenerating to a stage where its normative character is in question” (Bowett 1992). Still, an attention to the legal framework by which humanitarian intervention can or should be conducted isn’t just a matter of dueling academics or tiresome abstractions. The international legal system has sometimes acted to restrain the more brutal or anarchic instincts of states and is not to be disregarded lightly. More to the point, there are some substantive aspects of the legalistic debate concerning humanitarian intervention that ought to engage the attention even of those who don’t normally spend much time pondering the latest pronouncements of the World Court.
One theme in the current denunciation of humanitarian intervention deserves attention, especially because it displays a particularly twisted logic. In this instance, an essentially Darwinian stance is taken concerning the world’s troubles. The notion is advanced that this is indeed a vale of tears, and that the capacity for human brutality and cruelty is such that it is well nigh hopeless to assume that we can make measurable progress in dealing with such a panoply of suffering. We are told to tend to our own knitting, to concentrate on the development and welfare of our own fortunately situated society, and to eschew the temptation to fritter away our resources on a vain attempt to cure the world’s ills. In this regard, reference is sometimes made to Secretary of State John Quincy Adams’s response to the pressures on the American administration in 1821 to assist the Greeks in their war of independence against the Turks. Adams admitted that America’s “heart, benedictions and prayer” would go out to any area where “the standard of freedom and independence has been or shall be unfurled.” Nevertheless, he said, the United States “goes not abroad in search of monsters to destroy. She is the well-wisher to the freedom and independence of all. She is the champion and vindicator only of her own” (Graebner 1994).
In one sense, such an argument is almost self-evident. The international community is indeed replete with examples of human suffering, and to attempt to remedy all of these equally and at the same time is to copy Don Quixote’s vain exercise in tilting at windmills. In the classic formulation, by attempting to do too much, we may wind up doing too little—the best can become the enemy of the good. Even so, the above thinking is on balance a virtual contradiction in terms. It suggests that if we can’t solve everything, then we shouldn’t even attempt to solve something. The currently fashionable idea that there must be an “exit strategy” before we attempt any form of humanitarian intervention in order to prevent “over-reach” and “mission creep” is particularly bizarre. Reduced to its essentials, this is really an argument against intervening at all, since human-rights crises are inherently unpredictable.
The attitude of all or nothing would have some interesting consequences if adopted in, say, the domestic life. For example, it is commonplace that a large percentage of the homicides committed are never solved and their perpetrators go unpunished. Does this mean that we should remove murder as a felony offense within the legal system? The point is obvious: there will always be human tragedies around the world that are ignored and whose creators will never face judgment, at least in this life. This hardly removes our duty, however, to deal with at least some of these tragedies and some of these perpetrators, within the limits of our resources and the possibility of effective action. There can hardly be a more pathetic philosophy than one that proclaims that since we can’t do everything, we will therefore do nothing.
Bowett, D. W. 1992. “Reprisals Involving Recourse to Armed Force,” American Journal of International Law 66, 172.
Brownlie, I. 1973. “Thoughts on Kind-Hearted Gunmen,” in Humanitarian Intervention and the United Nations, ed. Richard Lillich. Charlottesville: University of Virginia Press.
Farer, T. 1991. “An Inquiry into the Legitimacy of Humanitarian Intervention,” in Law and Force in the New International Order, eds. Lori Fisler Damrosch and David Scheffer. Boulder, CO: Westview Press, 188.
Graebner, N. 1994. Ideas and Diplomacy. New York: Oxford University Press, 88.
Oppenheim, L. 1955. International Law. London: Longmans, Green, 279–80.
Lillich, R. 1977. “Forcible Self-Help by States to Protect Human Rights,” Iowa Law Review 53, 24.
Wheaton, H. 1978. Elements of International Law. London: B. Fellowes, 124.