Intervention: When, Why and How?

Written evidence from Edward Newman , Professor of International Security in the School of Politics and International Studies at the University of Leeds

About the Author

Edward Newman is Professor of International Security in the School of Politics and International Studies at the University of Leeds. Between 2007 and 2013 he was at the Department of Political Science and International Studies at the University of Birmingham. Before that he was Director of Studies on Conflict and Security in the Peace and Governance Programme of the United Nations University, based in Tokyo. He is the editor of the journal Civil Wars. For further information see: www.edward-newman.net

The legitimacy and legality of intervention for humanitarian reasons

1) The use of chemical weapons in the Syrian civil war and the international response to this has exposed fundamental differences of opinion in the UK regarding the legitimacy and legality of using armed force to alleviate human suffering. It has also demonstrated significant confusion regarding the principle of a Responsibility to Protect (R2P) and the so-called doctrine of humanitarian intervention. The UK government’s legal position on humanitarian intervention is highly controversial and arguably not in line with prevailing international political and legal norms. Moreover, the parliamentary debate of 29 August 2013 on the use of chemical weapons in Syria indicated that many parliamentarians mistakenly believe that R2P allows military intervention when the United Nations is not able to act – or even that R2P is a principle to be invoked when UN action is stymied. It is not. An informed debate – which reflects broader global politics – is needed in order to build consensus on how to respond internationally to terrible abuses of human rights. Well-intentioned but ill-founded national positions on humanitarian intervention will, in the longer term, weaken the R2P principle, possibly irrecoverably. Moreover, injudicious action in this area can also have negative repercussions for the UK’s broader relationships and diplomatic credibility with important states (such as China, Russia, India and Brazil) which take a more conservative position on the subject of humanitarian intervention.

2) The broader context of this controversy relates to some of the most difficult questions in international law and politics. How should international society collectively, or individual states, respond to grave and widespread abuses of human rights? How should the norm of non-intervention be balanced against the human rights of individuals in peril? Should force be used to prevent or stop human suffering, and if so, under what legal, political or moral authority?  These questions have been the subject of perennial and inconclusive debates for decades – perhaps centuries – although there have arguably been substantial changes in the terms of the debate since the end of the Cold War. Human tragedies in the midst of conflict in places such as Iraq, Somalia, Rwanda, Bosnia, Kosovo, East Timor, Sudan and Libya, amongst others, have galvanised international actors and consensus has gradually emerged on the principle that atrocities should be addressed.

3) The UK should take a leadership role in this evolving debate. However, the doctrine of ‘humanitarian intervention’ remains problematic, and the UK should be cautious in promoting it. The use of military force for human protection purposes is in tension with state sovereignty, the bedrock of international order. Such force is also very selective; without exception it is something that is undertaken by powerful states against weaker, poor states in the developing world. Inevitably, this raises the impression that humanitarian intervention is undertaken for geo-strategic purposes.

4) The 2005 UN World Summit sought to define an international Responsibility to Protect humans in such a way that addressed these controversies. UN members accepted that individual states have the responsibility to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity, and to prevent such crimes, including their incitement. The agreement stipulated that the international community should encourage and help states to exercise this responsibility and support the UN in establishing an early warning capability. It also indicated that the international community, through the UN, has the responsibility to help to protect populations from these atrocities where national authorities are manifestly failing to protect their populations.

5) However, the UK government’s legal position, and substantial parts of the parliamentary debate on Syria, do not reflect the prevailing international consensus on R2P. If this type of thinking forms the basis of future initiatives relating to R2P it could heighten resistance to the principle internationally by countries which are wary of broad norms on human protection.

6) The UK government legal position stated that "If action in the Security Council is blocked, the UK would still be permitted under international law to take exceptional measures in order to alleviate the scale of the overwhelming humanitarian catastrophe in Syria by deterring and disrupting the further use of chemical weapons by the Syrian regime. Such a legal basis is available, under the doctrine of humanitarian intervention". No reference to R2P is made in the legal opinion, which circumvents the UN Summit stipulation that any coercive international action undertaken to address atrocities must be "through the Security Council, in accordance with the Charter, including Chapter VII". The legal opinion therefore appears to rest upon a customary norm of humanitarian intervention: but this is absolutely not generally accepted as a tenet of international law. Indeed, there is a weighty body of legal opinion that explicitly refutes the idea that intervention can legitimately occur in response to domestic human rights issues.

7) It may be possible to make a moral case which seeks to trump international law – as some political leaders sought to do in relation to Kosovo in 1999 – but such as argument falls outside international law. If serious human rights abuses have destabilizing cross-border consequences they are a threat to international peace and security, and this provides a clearer and arguably more solid case for intervention.

8) After the humanitarian crises of the 1990s the International Commission on Intervention and State Sovereignty produced a report in 2001 which gave birth to the R2P idea. This indicated that the UN Security Council is the best organ for making decisions on interventions, but it suggested that "if it fails to discharge its responsibility to protect in conscience-shocking situations crying out for action, concerned states may not rule out other means to meet the gravity and urgency of that situation." Whilst this report made a significant impact, the weight of diplomatic opinion was resolutely against such an evolution of international law. On many occasions UN member states have reiterated that military force may only be used according to the UN Charter: in self-defence, collective self-defence, and with the approval of the Security Council in response to a threat to international peace and security. It is notable, in addition, that when the Security Council has authorized the use of force in connection with human atrocities, it has tended to link this to threats to international peace and security – in keeping with conventional rules on the use of force.

9) The UK government’s position therefore seems closer to the 2001 version of R2P (presented by a panel of experts) rather than the 2005 UN Summit declaration that was endorsed by all UN members, and which explicitly stated that international force can only be used with the approval of the Security Council.

10) The parliamentary debate also illustrated some controversial – or confused – opinions regarding R2P and humanitarian intervention. The Prime Minister’s assertion that "the principle of humanitarian intervention provides a sound legal basis for taking action" will surprise many international lawyers. He elaborated that "it cannot be the case that [a Security Council resolution] is the only way to have a legal basis for action, and we should consider for a moment what the consequences would be if that were the case. We could have a situation where a country’s Government were literally annihilating half the people in that country, but because of one veto on the Security Council we would be hampered from taking any action." This may be a morally persuasive position, but it is contrary to the 2005 UN agreement. The Prime Minister also conflated R2P with humanitarian intervention, even though those who champion R2P go to great lengths to distinguish the two. Other members of the House alluded to R2P as a general principle "that if countries default on their responsibility to defend their own citizens, the international community as a whole has a responsibility to do so." Yet the 2005 UN Summit outcome and subsequent international deliberations and agreements ties this strictly to a Security Council decision.

11) The parliamentary debate illustrated confusion about the procedure of R2P. It was suggested that as long as there is "a genuine attempt" at obtaining UN Security Council support for military action, this would be satisfactory for the legitimacy of action even if the Security Council did not give support. Similarly, it was suggested that what is important is that the Security Council considers and votes on the matter, but not that Security Council support was essential for taking collective military action on humanitarian grounds. It was also suggested that a Russian or Chinese veto in the Security Council would not be a bar to action: "if a proper case is made, there is scope in international law…for action to be taken even without a chapter VII Security Council resolution." It was also suggested that if there was convincing evidence of extreme humanitarian distress, no practicable alternative to the use of force, if action was proportionate and limited in time, and there is a reasonable prospect of success, then R2P is relevant. However, none of these factors legitimize military action under R2P without Security Council authorization. The idea that moral outrage provides a justification for humanitarian intervention, if necessary by democratic countries outside the UN, is attractive in some Western capitals but it is highly controversial in a global context.

12) Political discussion in the UK has also downplayed how controversial R2P is globally. During the parliamentary debate it was suggested – and this became a theme repeated in the days that followed – that "We cannot allow a situation whereby the international community’s ability to implement international law is thwarted by a constant veto by Russia and China" and "what do we do if 98% of the UN wish to pass a resolution but a country such as Russia blocks us?" However, this is a spurious framing of the question: scepticism towards humanitarian intervention is shared by a far broader collection of states, indicated by General Assembly debates on R2P since 2009. Opposition to humanitarian intervention outside UN channels is overwhelming.

13) The situation in Syria is appalling, and the desire to relieve human suffering is an admirable British trait. However, the UK’s response must be coordinated with evolving global debates on human protection. The political narrative of the government and indeed much of the opposition reflects the 1990s, but things have moved on since then. Aside from the effectiveness of using military force to ease humanitarian suffering – which is highly questionable in this case – such a course of action, without UN authority, would further damage the emerging R2P norm.

14) Aside from the debate about legality and legitimacy there are other reasons why the UK should take a cautious approach towards humanitarian intervention. Military intervention – even when aimed at preventing and stopping human suffering – in situations of ongoing armed conflicts tends to prolong and intensify violence. Intervention can create unforeseen hazards because it changes the local political balance, something amply demonstrated in Iraq, Afghanistan and Libya. Moreover, The UK public is generally sceptical of military intervention, and there is substantial survey data which indicates that the public is unclear about the objectives of recent interventions. In contrast, multilateral peacekeeping and peacebuilding intervention has a good record at promoting stability and preventing the recurrence of conflict.

15) Intervention is often oriented around military solutions, yet experience tells us that this can be of limited utility or have unintended consequences. The UK has an admirable record of promoting stability and developing through – for example – DFID and the Building Stability Overseas Strategy (BSOS). The UK campaign to prevent the use of rape and other forms of sexual violence as a weapon of war is also an excellent demonstration of leadership. Yet the investment in initiatives such as these, compared to costs of military intervention, is small. If the UK wants to address underlying (social, economic, environmental) drivers of conflict in line with its broader goals – including the Strategic Defence and Security Review), non-military forms of intervention may offer a far more effective means of promoting peace and stability. This is also far more likely to tackle the conditions in which violent extremism thrives and which can lead to atrocities.

October 2013