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Aarhus University Silvia PerinoVaiga, 201211198

International Jurisprudence essay Date: 03.06.2013

Military Interventions for Humanitarian Purposes. A practical

application of Rawls’ Duty of Assistance

Introduction

In his work The Law of Peoples (1999) John Rawls gives a comprehensive list of the general

principles which ought to be shared as the basis of a global coexistence among peoples. One of the

most controversial of these is the non-intervention. Though historically perceived as an

international formally uncontested standard, this principle has been violated several times in the

past, and is still addressed as one of the biggest dilemmas in the international relations doctrine.

Rawls himself claims that the principle “have to be qualified in the general case of outlaw states and

grave violations of human rights” (Rawls, 1999: 37), and therefore gives the concept a relative

dimension, leaving room for the possibility of a violation when required by highest purposes. What

these purposes are is made clear in Rawls’ doctrine, which asserts that an external intervention in

state’s private affairs has to be tolerated when the goal is to compensate for a violation of human

rights or for a lack of order within the society in question. Though, when applied this theory

presents many criticalities, especially concerning the particular kind of action labeled as military

intervention.

The purpose of this essay is thus to investigate the way in which the military intervention for

humanitarian purposes affects the fragile line between the protection of human rights and the

violation of states’ sovereignty, and how the international community should coordinate in order to

confer efficiency to its action. Trying to find a concrete application of the Duty of Assistance pattern

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designed by Rawls, I’ll analyze its strong points as well as its weaknesses. I’ll then take the

example of the Afghanistan war as a study case to demonstrate how a lack of clearness in the

purposes of the intervention and in the role of the actors risks to de-legitimate a humanitarian

intervention.

The final aim of the essay is thus to find a feasible way of applying Rawls’ philosophy on the

imperfect actual world, identifying some generic guidelines which would ensure a fair, honest and

effective conduct of the military intervention for humanitarian purposes, broadening to the greatest

possible extent the international consensus on it.

Rawls’ theoretical model: The Law of Peoples and the Duty of Assistance

First of all it is worth examining how Rawls’ speech has to deal with the debate on sovereignty and

intervention. The central point of Rawls’ work actually goes beyond the classical conception of a

world composed of sovereign states, since the author focuses on peoples as the primary actors in the

global society. This position makes it possible to easily overcome the traditional idea of sovereignty

as recognized in the Westphalian conceptualization, and to take a more dynamic perspective

towards the autonomy of the states. The first step of Rawls’ work is therefore aimed to

“reformulate the power of sovereignty (…) and deny to states the traditional rights to war and to

unrestricted internal autonomy” (Rawls, 1999: 27). This de-escalation of the states’ right to

autonomy makes straightforwardly clear that the interests of peoples are of primary importance, and

if a state exists it has the exclusive duty to defend the interests of its citizens; no abuses of the

state’s independence jeopardizing human security can be tolerated by the international community.

This relativization of the importance of the state ought to be used as a key to the interpretation of

the eight principles enunciated as the “basic charter of the Law of Peoples” (ivi: 37). In particular,

my suggestion is that the fourth principle (the duty of non-intervention) is contingent upon the

fulfillment of the sixth (the obligation for peoples to honor human rights) and the eighth (the duty to

assist other peoples under certain conditions). As Rawls himself claims, his eight principles are

unconditionally valid in an ideal society exclusively made up of well-ordered peoples, whereas the

occurrence of imperfect and unjust peoples demands a shift in the perspective upon a global justice.

Not even the right to independence and the right to self-determination can be taken as

unquestioningly certain, and the occurrence of a coercive intervention is regarded as legitimate

where disordered peoples are responsible for wars or dangerous violations of human rights.

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A central issue in Rawls’ discussion is therefore the categorization operated between different kinds

of peoples.He basically distinguishes peoples from their different degrees of orderness and their

capacity to accomplish the principles summed up in the Law of Peoples. His basic distinction is the

one between well-ordered and non-well-ordered peoples. In the former category we find both

liberal and decent peoples. They differ in their internal degree of fairness and reasonableness, but

they share a consensus about the way peoples should interact and are therefore able to build up a

stable and peaceful form of coexistence, which is the final goal of Rawls theory. Unless a decent

people is not internally fully just, it respects a minimal list of rights and ensures a level of

democratic debate – more properly “a decent consultation hierarchy” (ivi: 61).Thus it can be said

that a decent society doesn’t threaten the international order and for this reason it has to be tolerated

by the liberal ones that don’t have any right to intervene and try to affect its policies and behavior.

One of the pillars of the theory is in fact the conceptualization of a toleration that peoples owe to

each other in the absence of serious violations of the order. This toleration is explained in the need

for respect among peoples, and any violation of it requires considerably strong justification.

Going back to the main point of this discussion, a military intervention is certainly to be considered

the ultimate exception to the toleration principle. How Rawls justify the occurrence of such an

objection is explained, again, with the opposition between well-ordered and non-well-ordered

peoples. In the second category he enumerates three types of people that, for different reasons, have

to be labeled as non-well-ordered. In each of these cases a major interest of both liberal and decent

peoples is to encourage a development of these societies in terms of fairness and liberalism, in order

to achieve the final ideal goal of a world in which all peoples share the principles of the Law of

Peoples (i.e. a word of exclusively well-ordered peoples). The aim of such a development is what

theoretically allows a state to intervene with any mean (included military ones) in the private affairs

of another state.

This doesn’t mean, however, that the possibility of military intervention is absolute and

unconditioned. An important session of Rawls’ work is dedicated to the elaboration of a Just War

Doctrine that points out how the aim of a just war is “a just and lasting peace among peoples” (ivi:

94). The use of military force is then admitted just in order to fulfill the long-run aim to bring all

societies to the standing of full members of the society of well-ordered peoples. This implies that

the respect of Human Rights of the members of the other side is the basic condition in the conduct

of a fair war, since the intervention must always be targeted at establishing a new and better

political regime, which improves the condition of the civilians living in the affected area and their

participation to the global order.

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What has to be underlined is the outstanding role that Human Rights have in the intervention

doctrine: they serve as a reason to justify a war, limiting the internal autonomy of a regime, and at

the same time they constitute a primary requisite to be respected in the conduct of war. This

reflection straightforwardly leads to the central part of Rawls’ Nonideal Theory, expressed in the

concept of the Duty of Assistance. As required by the eighth point of the charter of the Law of

Peoples, in fact: “Peoples have a duty to assist other peoples living under unfavorable conditions

that prevent their having a just or decent political and social regime” (ivi: 37).

Thus, assumed that it is an obligation for well-ordered peoples to assist burdened societies, a further

reflection is requested on which features this assistance ought to present (such a reflection has in

fact crucial implications on the concrete applications of the right to intervene). Rawls’ claim is that

there is not a direct connection between the level of wealth of a nation and its being well-ordered.

Therefore, the goal of the intervention must be the political and social culture of a society, and not

its standards of wealth and richness. Even more important is then the transitional character of this

duty: once the people object of intervention turns able to autonomously manage its own interest in a

reasonable and rational way (i.e. once it becomes well-ordered), the duty of assistance ceases.

Logically speaking, in such a case further assistance would rather be considered illegitimate, since it

would represent an outlawed interference in the private affairs of a well-ordered society, which is

categorically refused by Rawls himself. Thus, the Duty of Assistance constitutes a temporary tool

whose validity stops when all the peoples have achieved a just or at least decent basic feature.

It has to be recognized that Rawls’ position towards the possibility and legitimation of certain forms

of intervention is theoretically and logically coherent. Though, the aim of the present discussion is

to accept the Rawlsian theory as a first step for a further analysis of the military intervention

doctrine in the real world. Assumed that a Duty of Assistance exists, and that a violation of a state’s

sovereignty can be justified if aimed at safeguarding human rights, it’s important to analyze how

and to what extent the exposed theory can be applied in the actual international system.

ICISS 2001 Report: the Responsibility to Protect

Due to the order that emerged after the end of the Cold War, a debate arose during the 90’s about

the new frontiers of the international intervention. That period has determined a change in the

balance between order and justice, making the human justice one of the main goals of new possible

models of international cooperation. An increasing attention was given to the issue of human

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security, and this posed a serious challenge to the traditional concept of sovereignty. From this point

of view it can be assessed that during the last two decades the global order has been changing in a

direction which made it more similar to the ideal proposed in Rawls.

Nevertheless, the opportunity to mobilize in name of justice or humanitarian principles didn’t reach

a high level of sharing among all the countries. In particular, following the genocide in Rwanda in

the late 90’s and the international community’s failure to intervene, the feeling of urgency in the

intervention debate became stronger, and the search for certain rules regulating it got more serious.

That’s the reason why in September 2000 the Canadian Government established the International

Commission on Intervention and State Sovereignty (ICISS), with the purpose to elaborating an

answer to the question posed at the United Nations General Assembly by the Secretary-General

Kofi Annan: “if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how

should we respond to a Rwanda, to a Srebrenica - to gross and systematic violations of human

rights that affect every precept of our common humanity?”.

The work of the Commission had then to be focused on the elaboration of legal, moral, operational

and political prescriptions to deal with this discussion, and possibly to find a broader consensus

among the international community in order to make the intervention doctrine clearer and its

application more effective.

Of outstanding importance for our reflection is the new perspective adopted by the Commission,

which shifted the terms of the debate from a dual opposition between human rights and sovereignty

to a wider horizon summarized in the figure of the “Responsibility to Protect” forged by the

Commission itself. The central theme of the Report points out that this responsibility to protect

citizens from avoidable catastrophes primarily relies on sovereign states; when, on the other hand, a

state is unwilling or unable to do so, then the same responsibility moves to the international

community (ICISS 2001, VIII). What can be deduced is therefore a kind of subsidiarity principle as

the main regulation in the contraposition between sovereignty and human rights. This perspective

is particularly interesting for us, since it somehow reflects the relative importance that Rawls

confers to the principle of non-intervention which, as has been said, ceases in case of gross

violations perpetrated by non-well-ordered peoples.

It is however worth going a bit more into details in the analysis and prescriptions exposed in the

Report. Although clear and well formulated, the expression “Responsibility to Protect” doesn’t say

much about the concrete practice that have to be adopted by the states in their interference actions.

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The Commission’s further claim is that this responsibility can be divided into three fundamental

elements (ICISS 2001, XI):

- Responsibility to Prevent: the first duty for the states is to pay attention to the presence of

potentially dangerous situations and to try to stop their emersion;

- Responsibility to React: where these dangerous situations already affect the safety of human

beings, the states are requested to respond with measures, such as sanctions, prosecution

and, in extreme cases, military intervention;

- Responsibility to Rebuild: particularly after a military intervention it is part of states’

responsibility to provide recovery, reconstruction and reconciliation in order to give the

population all the tools to re-establish a situation of normality.

Again, it is possible to recognize a parallelism between Rawls’ speech and the Report’s claim, in

particular concerning the last point (the Responsibility to Rebuild). This prescription can in fact be

understood as a practical transposition of the Rawlsian principle of assistance as a transitional step

in a long path to a new autonomy and a new and better order for the society affected by the

intervention (Rawls, 1999: 118).

On the other hand, the report lacks the ideal dimension constantly implied in Rawls: while the

theoretical approach of The Law of Peoples is aimed at realizing a situation in which every society

is well-ordered and therefore not dangerous for the global order nor for its own population, the

ICISS Report assumes a more restricted and less ambitious perspective. It just focuses on the

suggested behavior in each case of security or humanitarian emergency, but it doesn’t imagine a

future in which the practice of intervention will be obsolete and useless because of a general well-

order established in every society. Although the procedural approach proposed by the Commission

seems to perfectly match the ideal suggestions emerging in The Law of Peoples, in terms of final

goals the two positions are indeed extremely different. This doesn’t change the fact that the

Responsibility to Protect pattern can be interpreted as a practical transposition of what Rawls calls

Duty of Assistance.

The ICISS Report doesn’t have the same background distinction between well-ordered and non-

well-ordered societies, since it would be difficult and definitely unfair to put a general tag on

societies. To qualify the legitimacy of a military intervention, the Commission instead uses a model

based on a “Just Cause Threshold” (ICISS 2001, XII). In brief, this principle supports the idea that

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the justification for a military intervention lies in “the presence of serious and irreparable harm

occurring to human beings, or imminently likely to occur”. This harm can be of two kinds:

- Large scale loss of life;

- Large scale ethnic cleansing.

Continuing the parallelism between the two models of the Responsibility to Protect and the Duty of

Assistance, it seems reasonable to identify a situation in which the Just Cause Threshold is fulfilled

with the occurrence of what Rawls would call a burdened society. Thus, it is once again confirmed

that in the ICISS proposals we find a quite suitable, though not overlapping, application of the Duty

of Assistance.

Let’s then move towards in the report contents to explore how this Responsibility to Protect ought

to be shared by the international community. As it has already been said, the primary responsibility

relies in the sovereign states. When the state fails in applying it, the burden moves to the

international community, which then has to manage it through a multi-level model structured as

follows: the most appropriate body to authorize a military intervention for humanitarian purposes is

the UN Security Council. Security Council authorization is necessary in any case of military

intervention. “Those calling for an intervention should formally request such authorization, or have

the Council raise the matter on its own initiative, or have the Secretary-General raise it under

Article 99 of the UN Charter1” (ivi, XII). If the Security Council rejects a proposal of intervention,

or fails in taking a position within a reasonable amount of time, the responsibility can be assumed

either by the General Assembly or by regional or sub-regional organizations (which shall seek

subsequent authorization from the Security Council).

This focus on the role of the United Nations highlights the attempt to find the largest possible

consensus among the international community in developing a military intervention. The post-Cold

War history has in fact demonstrated that a normalization in the interference practice is possible

when most of the international actors support it. In other words, a collective intervention is per

definition more legitimate than a unilateral one. And this is due to the fact that a collective

intervention is usually authorized by an institution which already enjoys the trust of the

international community. In this specific case, the sanction of the United Nations is depicted as the

most appropriate and effective way to confer a character of justice and desirability to the action.

1 The Article 99 of the UN Charter establishes that “The Secretary-General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security.”

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The fact that the ICISS Report looks for a new custom in the international relations doctrine is made

clearer when it mentions the existence of an “emerging principle” supporting military interventions.

It is claimed that “there is not yet a sufficiently strong basis to claim the emergence of a new

principle of customary international law” (ICISS 2001, 2.24), but the notion of Responsibility to

Protect is practically already incorporated in many legal sources as: “the fundamental natural law

principles; the human rights provisions of the UN Charter; the Universal Declaration of Human

Rights together with the Genocide Convention; the Geneva Conventions and Additional Protocols

on international humanitarian law; the statute of the International Criminal Court; and a number of

other international human rights and human protection agreements and covenants” (ICISS 2001,

2.26).

In summary, what is basically assumed by the Commission is that a fundamental consensus on the

intervention issue has already been reached. Lacking, though, is a common language that is able to

provide certain rules and procedures in order to maximize the effectiveness of the process.

Providing this basic grammar for humanitarian intervention is the global aim of the Report; that’s

why it operates a re-conceptualization of the issue which shifts the terms of the debate from a “right

to intervene” dilemma to a “Responsibility to Protect” statement.

The examined Report seems to give a feasible and concrete answer to our question of whether an

application of the Rawlsian model is possible in the actual international contest. Oddly enough, the

Report was published a few weeks after the terroristic attack of 11 September 2001 in New York

and Washington DC, which posed a radical challenge to the perception of the global order and its

rules. As clarified in its preface, the Commission’s report was largely completed before the 9/11

events; therefore it doesn’t take in account the opening of new horizons in the conceptualization of

the global order.

To explore this substantial switch in the international relations context and its repercussion on the

military intervention debate it is worth reflecting on the Afghanistan case as a model of how the

practice of interference and its legitimation have been affected by the new situation.

The Afghanistan Intervention: between humanitarian and strategic reasons

As argued, the events of 9/11 have advanced a new security concern, much more focused on self-

defense issues than on humanitarian ones. The major purpose of the Western presence in

Afghanistan was clearly the War on Terror, and it is understandable that in the absence of national

security concerns nothing would have been done to improve the Afghan institutional or civilian

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situation. This War on Terror actually didn’t need any further justification since it was already

warranted by the events themselves: the UN Charter recognizes an even stronger legitimacy to the

right to self-defense than to the right to intervene in another state’s private affairs2, and theoretically

speaking, the self-defense is considered one of the basic principles in the theories of a Just War.

Nonetheless the history of the Afghanistan intervention shows how, even in presence of other valid

motivations, the international community brought the humanitarian purpose as a justification for the

military action. Unfortunately, this attitude tends to have a negative impact on the legitimacy of the

intervention in general: the risk is in fact that an overuse of the human rights defense pattern could

bring a loss of credibility to the pattern itself.

Moreover, what’s more important for the central point of the present reflection, is that the

Afghanistan case is a clear example of how the declaration of a Duty of Assistance can be used to

hide states’ egoistical interests: this brings a vagueness to the objectives that eventually affects the

results of the intervention negatively.

The Western military presence in Afghanistan starting in October 2001 immediately assumed an

ambiguous significance. If the main target of the action was the terroristic organization responsible

for the attacks (and therefore not circumscribed within certain national frontiers), why did the

American Government choose to concentrate its activity on the Afghan territory? This is linked to

the peculiar choice to give the action the typical character of the previous humanitarian

interventions conducted during the 90’s.The military intervention took place on an area where a

conflict between the Taliban and the Northern Alliance3was already opened. For this reason the

American military campaign has to be defined as an intervention instead of a proper war between

the US and Afghanistan. This factor represents a huge ambiguity in the analysis of the phenomenon

because for most of the duration of the action the human rights defense has been of secondary

importance against the aim to neutralize a danger threatening all the principal western democracies.

In particular, the first phase of the conflict has been characterized by the American presence in

Afghanistan under the umbrella of the Operation Enduring Freedom (OEF-A). Even though the US

President G. W. Bush depicted the operation as a real “crusade” against terror, the mission has to be

labeled as a traditional unilateral war operation. When, on 7 October 2001, the US and the British

Army started the operation, they declared to the Security Council that the mission constituted an

2 Article 51 acknowledges “the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations” 3The civil conflict for the control of the Afghan territory exploded after the end of the Soviet presence in 1989

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application of the Article 51 of the UN Charter, which allows for the use of military force as a self-

defense after an armed attack. From the point of view of international law, the framework provided

in order to justify the operation actually raised some controversies, regarding in particular the

identification of the terrorist attack with a conventional armed attack, and the affiliation of a private

actor as Al Quaeda with a single state (Carati, 2010). Nevertheless, it was understandable that the

strategic aim of Enduring Freedom was the destitution of the Taliban regime. This goal was reached

in a considerably short time.

The crucial turning point of the events has been the Conference held in Bonn in December 2001,

after the defeat of the Taliban in Kabul. The Conference gathered all the Afghan anti-Taliban

leaders to re-create the State of Afghanistan and form an interim government. The so called “Bonn

Agreement” established an Afghan Interim Authority lead by Hamid Karzai, who was then elected

President in 2004. During the Conference, moreover, a road map was opened to determine the

guidelines for a stabilization and a democratization of the Afghan political structure.

The event is remarkable as it has to be regarded as the real beginning of the collective character of

the international presence in Afghanistan: on the one hand, in fact, it initiated a new phase of broad

participation involving many states and international organization; on the other hand it was the

prelude to the UN sanction to the collective intervention. On 20 December 2001 in fact the Security

Council unanimously adopted the Resolution 1386, which established the International Security

Assistance force (ISAF) to assist the Afghan Interim Authority in the maintenance of security in

Kabul and surrounding areas. From the end of 2001 the international intervention in Afghanistan

assumed a double face: besides the War on Terror conducted by the US through the Operation

Enduring Freedom, the international community started a process of political stabilization of the

country. Thus, the objective of the intervention has gone beyond the simple fight against terrorism:

the international community committed itself to the construction of new democratic institutions and

to the promotion of human rights in the area. The broad participation of many states and

organizations contributed to the legitimation of the action, and settled the basis for a long-lasting

commitment.

This double shape of the intervention (both strategic and humanitarian) did indeed cause various

problems regarding the attempt to create a synergy between Enduring Force and the ISAF

operations. This issue brought the complexity which is typical of collective actions to the attention

of the international debate. Different strategic approaches and unequal levels of commitment among

the intervening actors determined a substantially limited efficiency of the military presence in

Afghanistan. The motivations that convinced some of the states to participate in the operations

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were often ambiguous too: somebody could claim that some political leaders decided to engage

only to gain credibility and negotiable power in the eyes of their allies.

Again, the discussion ends up coping with the question of whether the humanitarian intervention

and the Responsibility to Protect can be used just as an excuse to hide particular interests. It seems

reasonable to deduce that in the Afghanistan case this happened, and the history tells us that the

results of such a situation have been deleterious for the Afghan population. Today, after almost

twelve years of international presence on the territory, the political and institutional situation in the

country remains extremely unstable. High levels of corruption detract legitimacy to the police

forces, the controversial 2009 elections confirming Karzai revealing a serious lack of democracy

and deepening the disillusion within the population. Moreover, the Taliban’s power hasn’t been

defeated at all, since they managed to re-establish a parallel net of control which adds complexity to

the situation and strongly threatens the security of the nation.

A possible understanding of the Afghanistan case within the Rawls’ model

From a Rawlsian point of view the Afghan intervention constitutes quite an interesting case, since it

partly follows the intervention pattern exposed in The Law of Peoples, but it eventually fails in the

final goal of creating a new well-ordered society. More in details, we can assume that the Afghan

people in 2001 was what Rawls would define an outlaw state. It had in fact a non-compliant and

disordered institutional structure, characterized by the Taliban’s political power, which threatened

both the internal security of citizens and the global international stability. The principles enounced

in the Law of Peoples allow other peoples to fight outlaw states in self-defense (as the US did

during the very initial phase of the conflict), and to conduct an action aimed at bringing the society

to honor the Law of Peoples, giving it a well-ordered structure (which was the purpose of the

international action authorized by the UN Security Council). As previously claimed, there are a few

doubts that the humanitarian label of the intervention was in part a pretext to hide more egoistic

national interests, but this indeed doesn’t affect the validity of the Rawlsian theory. Rawls in fact

accepts that well-ordered peoples behave in defense of their self-interest (i.e. attempt to eradicate

the instability brought by the existence of non-well-ordered peoples), provided that they respect the

principles concerning a just conduct of war.

Assuming that the most basic conditions required in Rawls were fulfilled on the eve of the

intervention, what went wrong? Why didn’t the international community of liberal democracies

manage to obtain a higher respect of human rights within the country? And why didn’t the liberal-

democratic institutional model fit the Afghan society?

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The roots of this failure have to be sought for in two elements. First of all, the re-establishment of

the Taliban’s power a few years after its defeat demonstrates that no matter how strong the

international presence is, the social framework of the Afghan people is still based on tribes and

warlords, and a central state in such conditions will always have difficulties in establishing an

effective control. The belief that human rights can be secured is therefore an illusion, at least in the

short term.

The second and equally relevant condition which caused the disappointing result of the operations is

the substantial lack of organization in the joint action of the international actors. From the very

beginning it has never been clear what the actors stood for, or which was the organizational model

of the cooperation. The double presence of Enduring Freedom and ISAF operations mixed up the

objectives of the intervention, and made the US position particularly unclear. The initial American

attitude towards the unilateral mission authorized by the United Nations has been not only modestly

active, but also quite suspicious. The American behavior has slightly changed since 2003, when the

mission passed under the NATO control. After 2003 the US Government pressured for a fusion of

the two missions, but it found a huge reluctance on the European side. This is only one example of

how the plural shape of the intervention and the lack of clearness in the organizational structure

eventually caused the failure of the operation.

If the first reason of the bad result of the intervention (the intrinsically unstable nature of the

Afghan society) is something that goes beyond the Rawlsian understanding, the importance of

finding a clear pattern for the conduct of the intervention is made more than evident in Rawls’

speech. While talking about “Law of Peoples as a guide to Foreign Policy” he, in fact, claims that in

order to achieve the aim of a society of well-ordered peoples, liberal and decent societies ought to

“establish new institutions and practices to serve as a kind of confederative center and public forum

for their common opinion and policy toward non-well-ordered regimes”. He then adds that “they

can do this within institutions such as the United Nations or by forming separate alliances” (Rawls,

1999: 93).

This recommendation seems to be quite close to the indications given by the ICISS Report about

the authorities which own the right to legitimate an intervention (ICISS 2001, XII), and it must be

noticed that the international community’s action in the Afghanistan case basically didn’t differ

from this model. Thus, history shows that such a generic configuration is not enough to ensure the

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effectiveness of a military intervention. Something more must be done to confer coherence and

efficacy to the international consensus on each intervention.

Conclusive suggestions for a better conduct of military interventions

The analysis conducted so far highlighted that the present international context has reached a

general awareness about the opportunity of military interventions when these are necessary to

establish a better democratic order in certain areas of the world. The concern about the violation of

states’ sovereignty has been overtaken, and in most of the cases the legitimacy of the intervention is

ensured thanks to the authorization given by lawful international organizations (in particular the

UN). Therefore, the focus of the current debate ought to be shifted from the legitimacy issue to the

more outstanding search for the highest level of efficiency and effectiveness in the international

cooperation. This is a theme that, although just briefly outlined in Rawls, becomes of main

importance when we want to apply Rawls’ prescriptions to the reality.

Giving guidelines for the actualization of humanitarian interventions has been the goal of the ICISS

in redacting the Responsibility to Protect Report. The pattern proposed by the Commission, which

entrusts the UN Security Council with the major authority in terms of sanctioning the interventions,

appears reasonable but indeed opaque, or at least too general. A more exhausting list of principles

about a fair and effective conduct of humanitarian interventions is offered by Daniele Archibugi,

who in his article “Cosmopolitan Guidelines for Humanitarian Intervention” (2004) gives shape to a

complete project to build institutions and practices for a broad consensus and a high effectiveness of

military humanitarian interventions. It’s important to clarify how the term “cosmopolitan” is

understood in Archibugi with a meaning that doesn’t oppose the Rawlsian position: his design of a

cosmopolitan democracy doesn’t deny the role of societies, but rather tries to find a way to

maximize the benefits of their coexistence. He focuses on four different steps, pointing out that the

implementation of each point requires the creation of new competencies and institutions.

These proposals for an institutional change can be summarized as follows:

a.In which cases is it necessary to intervene?

The author claim is that the practice ought to be codified in updating the UN legal framework with a

set of guidelines redacted by the International Law Commission4. These guidelines should precisely

4The Commission established by the UN General Assembly in 1948 for the “promotion of the progressive development of international law and its codification” (General Assembly resolution 174)

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indicate which crises can be labeled “humanitarian emergencies” and when a military intervention

without the consent of a legitimate government is justified.

b.Who is authorized to decide when a humanitarian intervention is needed?

When the international community agrees on the existence of a humanitarian crisis, the Security

Council should ask the International Court of Justice (the primary judicial branch of the UN) if a

military intervention is justified.

c.How is it necessary to intervene?

The task of identifying certain rules on acceptable methods to be used on the ground in military

interventions can be given to a joint committee of military and civilian organizations. The

International Criminal Court must instead have the role to individually charge those who are

responsible for crimes against humanity.

d.Who is going to intervene?

To give an answer to this question, Archibugi revises the proposal made by the French President

Mitterrand in 1992, who suggested that “about 50 among the largest and wealthy nations could

make available about 1,000 soldiers each for peacekeeping operations. These soldiers should have

been made available to the UN Secretary-General on a standby basis” (Archibugi, 2004: 13).

This set of proposal is of course just a draft, but it seems to give an exhaustive and satisfactory

answer to the need of organization and coherency which, as noted, constitutes the major weakness

of the present intervention doctrine.

As John Rawls, also Archibugi’s vision goes further beyond the traditional conception of states,

assessing that a new and better order will be realized just within a broader cooperation among

peoples: a cooperation which requires overtaking the state’s authority, if necessary. Here,

sovereignty is no more seen as an inviolable barrier, since the interests of peoples are always

superior to state’s ones. Rather, according to Archibugi, states ought to be willing to transfer part of

their sovereignty in order to achieve the highest goal of a global stability. From this point of view,

the cosmopolitan institutions designed by Archibugi seem to reconcile perfectly with the idea

advanced by Rawls’ The Law of People: the one of a global society made up of different peoples,

but eventually harmonized by the sharing of common rules of justice.

15

Thus, if one day the international community will find such an agreement on the troubled but

crucial theme of military intervention, this would represent an important step forward in the

effectiveness of the undertaken actions, and therefore a breakthrough in the path for the realization

of the Rawlsian realistic utopia.

References

- Archibugi, Daniele. “Cosmopolitan Guidelines for Humanitarian Intervention”, Alternatives. Global, Local, Political, vol 29, no. 1, Spring 2004, pp. 1-21.

- Carati, Andrea, 2010. “L’intervento militare democratico. Le nuove pratiche dell’ingerenza e la crisi della sua natura temporanea”, Franco Angeli, Milano.

- ICISS, 2001. “The Responsibility to Protect”, Report of the International Commission on Intervention and State Sovereignty.

- Rawls, John, 1999. “The Law of Peoples with the Idea of Public reason revisited”, Harvard University Press.