Intervention, Law and Sovereignty

• “Humanitarian intervention both presupposes and subverts the statist manner of thinking”

• “The concept of humanitarian intervention…is logically unstable”

--Parekh

“Imaine for one moment that, in those dark days and hours leading up to the genocide, there had been a coalition of states ready and willing to act in defence of the Tutsi population, but the council had refused or delayed giving the green light. Should such a coalition then have stood idly by while the horror unfolded?  

To those for whom the Kosovo action heralded a new era when states and groups of states can take military action outside the established mechanisms for enforcing international law, one might equally ask: Is there not a danger of such interventions undermining the imperfect, yet resilient, security system created after the second world war, and of setting dangerous precedents for future interventions without a clear criterion to decide who might invoke these precedents and in what circumstances?”

--Kofi Annan

Intervention, Law and Sovereignty

Changing nature of sovereignty

• No remote catastrophes “over there”

• Sovereignty as Contingent upon Dual

Responsibility – External: to respect other states– Internal: to respect dignity and rights

• Sovereignty vested in individuals

Intervention, Law and Sovereignty

Changing nature of sovereignty (as individual)

• “When we read the charter today, we are more than ever conscious that its aim is to protect individual human beings, not to protect those who abuse them” (Annan)

• “Responsibility to protect” shifts to victims (ICISS, 2.29)

ICISS: The Responsibility to React

• Threshold: Just Cause– Large scale loss of life, actual or

apprehended, with genocidal intent or not– Large scale “ethnic cleansing:” killing,

terror, expulsion, rape

• Proper Authority: Security Council authorization (“multilateral”)

Right Authority

• UN authority: legitimacy not force

• Unilateral: illegitimate self-interest (6.9)

• UN General Assembly

• Regional organizations

• Unilateral intervention

ICISS: The Responsibility to React

“Precautionary Criteria”

1. Right Intention• Primary purpose to halt or avert suffering• Clear commitment to return territory to its

sovereign owner• Multilateral better assurance of right

intention• Is intervention supported by victims?

ICISS: The Responsibility to React

2. Last Resort

3. Proportional Means• IHL and even higher standares

4. Reasonable Prospects• “it may be the case that some human

beings simply cannot be rescued except at unacceptable costs”

• “In extreme and exceptional cases, the responsibility to react may involve the need to resort to military action. But what is an extreme case? Where should we draw the line in determining when military intervention is, prima facie [at first sight], defensible? The starting point, here as elsewhere, should be the principle of non-intervention. This is the norm from which any departure has to be justified.” (ICISS, The Responsibility to Protect, 4.10-4.11)

Summary

• Moral paradox of humanitarianism

• Intervention seen as human rights vs. national sovereignty

• ICISS: partly reconceives sovereignty

• Cosmopolitanism: need to do something but what are the risks and limits of intervening?