Of Persons and Borders
There is a temptation these days to treat humanitarian intervention as a suspect category within the lexicon of international justice. This is hardly a surprise, since the Iraq war was undeniably commenced on pretextual grounds and then terribly bungled. This temptation is exacerbated by the assumption, held by many international lawyers, that humanitarian intervention is only appropriate where the U.N. Charter says so. The tendency to see humanitarian intervention solely through the prism of international law renders invisible the deeper moral principle at play, that is, a concern for the well-being and flourishing of all human beings, no matter where they happen to live.
There are a number of reasons to cast a skeptical eye upon the way the U.N. Charter regulates humanitarian intervention. To begin with, one may question whether the body charged with regulating humanitarian intervention, the U.N. Security Council, is an institution up to the task. The Security Council was established in the wake of the Second World War with the specific purpose of regulating threats to international peace and security – in other words, to minimize large scale military conflict. Under the Charter, the use of force is permissible only in self defense or where the Council authorizes the use of force as a collective response to the use or the threat of force. Genocide or state-sponsored violence appear nowhere as acceptable grounds for intervention in the affairs of another country. It is no surprise, then, that the structure and decision-making powers of the Council provide a relatively blunt and ill-adapted instrument with which to address the complex, and fundamentally moral, question of humanitarian intervention. Further, although the precondition of a Security Council resolution may give the impression of international consensus and adherence to the principles of international law, the essentially undemocratic nature of the Security Council (in particular, the veto power of the Permanent Five members) and the often unspoken political motivations behind the voting patterns of Member States frequently render this impression a mere illusion.
The aforementioned flaws in the functioning of the Security Council, are, of course, just empirical limitations of the current international security regime. One might imagine a more well-ordered regime – one that is more responsive to the needs of all human communities (not just those that happen to be of interest to the industrial world) – and thereby erase these limitations away. One way in which the Security Council might increase its democratic legitimacy is to expand the number of Member States involved in the decision-making process, thereby ensuring that the views of a wider cross-section of the international community are represented and that any humanitarian intervention undertaken as a result of the process is a more accurate expression of the collective international will. (While some balk at the notion that a larger Security Council could work, few would challenge the basic premise that the Council, in its current guise, has failed to really keep its finger on the pulse of popular sentiment, especially justifiable feelings of moral outrage at the various genocides and state-sponsored atrocities currently underway across the globe.) However, addressing the criticism that Member States will act in their own political interests as opposed to humanitarian interests is a considerably more challenging task – one which may require greater transparency and public debate in the development of Security Council decisions.
What that public debate might look like, and how public sentiment might be better gauged and weighed, are difficult issues best left for another day. Yet even if the Security Council were more firmly oriented towards humanitarian concerns, and less embroiled in the pull and haul of ordinary politics, it is unlikely our shared moral values will consistently be captured by its resolutions. After all, it’s an international body with a mandate which assumes the fundamental legitimacy of national borders when evaluating whether or not humanitarian intervention is necessary. But this assumption about the value of borders is not universally shared. For example, the international community instinctively reacted with horror to the Rwandan genocide, indicating that many see the preservation of human life as the fundamental metric against which we assess Security Council decisions. The normative justification for humanitarian intervention is, therefore, independent of any action of the Security Council, bringing into sharp relief the fallacy of the notion that Security Council resolutions are somehow self-justifying.
We would be remiss if we didn’t note that the 2005 World Summit introduced a new way of thinking about humanitarian intervention, an approach that would allow the Security Council to play a more proactive role in combating genocide and state-sponsored carnage. At the Summit, world leaders introduced the Responsibility to Protect (R2P), a doctrine which essentially says that Member States have a responsibility to intervene – breaching borders if necessary – to protect people from genocide, war crimes, ethnic cleansing, and crimes against humanity whenever states fail to do so. The U.N. Secretary-General, Ban Ki-moon has pledged to take steps to “operationalize” R2P by the end of 2008. Although it is unclear precisely what operationalizing R2P would involve, the key to R2P is its undeniable grounding in uncontroversial, widely-accepted international law: Since states have a responsibility to protect their own populations from genocide, war crimes, and the like, a failure on their part to fulfill this obligation represents a breach of international law that calls out for some form of redress.
Does R2P represent a sea change in the way the Security Council handles humanitarian crises? Perhaps. It cannot be gainsaid that the advent of R2P is a result of the public outcry over Rwanda and Kosovo, which surely implies that moral sentiments have a direct and measurable impact on the development of the suite of policy tools available to the U.N. Security Council. R2P is, thus, certainly a step in the right direction. Nevertheless, the relatively late appearance of R2P on the official agenda of Council reinforces, rather than undermines, the claim that international institutions, no matter how well-intentioned, must ultimately answer to our considered moral judgments about what justice requires. (And, for those who are familiar with the 2005 Summit, it is worth remembering that there was fierce debate about whether the qualification-laded conception of R2P ultimately adopted really goes as far as it should to protect victims of genocide and other crimes against humanity. Critics have been even more scathing in their assessment of the real-world impact of this nifty new doctrine, calling it “a doctrine real only on paper.”)
What then are our shared moral values, when it comes to humanitarian intervention? At the root of the concept of humanitarian intervention is the idea that state boundaries do not carry significant moral weight, an argument employed convincingly by Peter Singer in advocating for a substantial increase in private donations by citizens of wealthier, industrialised nations to their poorer brothers and sisters in the third world. To truly abide by the Kantian notion that human life has no price, and that the value of a human being’s life can never be determined by race, nation or geographical proximity, we must be prepared to challenge the Security Council (or any other international institution) whenever human life is bartered away for the sake of borders.
A graduate of the University of Melbourne Law School, Edwina Chin is an Articled Clerk for a large Australian law firm. Edwina has an interest in international human rights law in general, and has focused her academic
research on the relationship between anti-terrorism legislation and executive powers. In addition to serving on the Melbourne Journal of International Law, in 2007 Edwina received the Alan Missen Foundation Essay Prize for the best essay on Civil Liberties in Australia.
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