Justice in an interventionist era
IT is conventionally accepted that the mid-seventeenth century Peace of Westphalia, marking the end of a century of religious wars in Europe, laid the foundations for rules of sovereignty and non-intervention. The First and the Second World Wars gave legitimacy to rules condemning aggression, and these were sought to be operationalised through the League of Nations and the UN Charter. International law, respecting the sovereignty of nation states, and non-intervention in the internal affairs of those states, is as much a product of prudence as it is of moral and ethical considerations.
The logic of constitutionalism applies not only to norms of governance within countries, but also to the conduct of statecraft in international relations. Limiting absolute power, by introducing checks and balances, is a device of prudential rationality. The rules of international law, on the circumstances when aggression and war can be justified, are meant to be restraints that would serve the long-term interests of all people, even though, at any given point in time, preventive or preemptive wars may appear warranted from the point of view of countries that feel they have been violated by state-sponsored acts of terrorism.
September 11, 2001 has changed all this. The Bush Administration’s National Security Strategy, issued on 20 September 2002, has overturned the classic principles of international law on war. An era of intervention in the internal affairs of nation states has arrived. The United States has the power to defy international law without risking any serious penalty. It is another matter that the long-term interests of the United States, and indeed of people in any other country, will be best served if international consensus on the basic principles of the laws of nations is respected. The United States, one hopes, will realize, sooner than later, that its legitimacy in the conduct of its foreign policy depends upon respect for the law of nations.
Meanwhile, what of justice, therefore, in an era where intervention in the internal affairs of nations is justified in the name of justice? Justice is important, not only because it is the first among the public virtues, but also because unjust acts will reap their consequences on perpetrators, sooner or later.
In his millennium report to the United Nations, Secretary-General, Kofi Annan noted that human rights and humanitarian justification for intervention in the internal affairs of nation states had gained ascendancy throughout the 1990s: ‘Once synonymous with the defence of territory from external attack, the requirements of security today have come to embrace the protection of communities and individuals from internal violence.’1 The defence of humanity and the defence of sovereignty, according to Kofi Annan, are essential principles that must be supported. The UN Charter affirms both principles. The dilemma arises when the two principles are in conflict.
Kofi Annan pointed out, ‘It is not the deficiencies of the Charter which have brought us to this juncture, but our difficulties in applying its principles to a new era; an era when strictly traditional notions of sovereignty can no longer do justice to the aspirations of peoples everywhere to attain their fundamental freedoms.’2 But many member states of the United Nations are suspicious about authorising armed intervention in situations of civic conflict that are perceived to be threats to peace and security. In an unequal world it is understandable that the principles of equality, sovereignty, and non-intervention in the internal affairs of states, are regarded as the last bastion of protection against possible imperialistic interventions by powerful states.
Human rights and humanitarian activists who favoured intervention are now increasingly concerned about the selectivity of interventions, and the preponderance of national interests of powerful states.3 Way back in 1993, Ian Martin warned:
‘I do want to argue against too easy an enthusiasm in the human rights movement, and especially in the United States, for military intervention on humanitarian grounds. The human rights movement has struggled successfully to establish that national sovereignty and non-interference in internal affairs are not absolute principles which necessarily prevail over the international responsibility to prevent mass violations of human rights. But when it involves the use of force, such international responsibility can be properly exercised only by a multilateral decision of the international community through the UN. And the legitimacy of such decisions of the UN depend upon a proper distribution of power within that organization, the application of a set of principled criteria for military intervention which is not politically selective, and the development of the ability of the UN itself to maintain control of a military operation.’4
This warning was prescient. David Chandler has persuasively documented how humanitarian and human rights arguments for intervention by the international community, with or without UN Security Council blessings, have compromised the fundamental right of people to have some say in decisions that affect them.5 Democratic universalism is eloquently espoused by President Bush: ‘People everywhere want to be able to speak freely; choose who will govern them; worship as they please; educate their children – male and female; own property; and enjoy the benefits of their labour. These values of freedom are right and true for every person, in every society.’6
The dilemma is that the right of people to choose who will govern them is seriously compromised when their country is in the control of international forces – whether those of a ‘coalition of the willing’ or some other international entity with real decision-making powers. The governments that get established with the blessings of interventionist forces, regardless of their professed commitment to human rights, are unlikely to command the legitimacy required to guarantee to people law and order, and the administration of justice.
Weak governments, not strong states, are responsible for most conflicts and human rights violations that we have witnessed in recent decades. Strengthening governance is indeed the best way to address the ills of large-scale violations of human rights and perpetuation of poverty. But no government can be strong if it lacks legitimacy. That is why it is important to respect the rules of international law that have evolved in response to crises, so that interventionist crusades against tyrants identified with terror do not become crucibles for further crisis and cruelty against people.
It is ironic that barely a year after the member states of the United Nations had unanimously adopted the Millennium Declaration, in September 2000, that the core principles endorsed by Heads of States and Governments should be called into question. Clauses 4 and 24 of the Declaration state:
‘We are determined to establish a just and lasting peace all over the world in accordance with the purposes and principles of the Charter. We rededicate ourselves to support all efforts to uphold the sovereign equality of all states, respect for their territorial integrity and political independence, resolution of disputes by peaceful means and in conformity with the principles of justice and international law, the right to self-determination of peoples which remain under colonial domination and foreign occupation, non-interference in the internal affairs of states, respect for human rights and fundamental freedoms, respect for the equal rights of all without distinction as to race, sex, language or religion and international cooperation in solving international problems of an economic, social, cultural or humanitarian character.
‘We will spare no effort to promote democracy and strengthen the rule of law, as well as respect for all internationally recognized human rights and fundamental freedoms, including the right to development.’7
Reconciling sovereignty and intervention: At the same time as the Millennium Declaration was drafted and adopted by the United Nations, the International Commission on Intervention and Sovereignty began to explore the conceptual leap called for by Secretary-General Kofi Annan to reconcile the dilemma of according priority to human rights and humanitarian intervention over state sovereignty. The timing of the publication of the report of this Commission has resulted in its neglect.8 The conceptual leap in this report lies in its redefinition of sovereignty as the responsibility of a state to protect its people, especially the vulnerable populations. Only when a state is either unwilling or unable to protect citizens in danger would the rights of sovereignty and the principle of non-intervention yield to an international responsibility to extend the protection needed by vulnerable populations.
Mindful of the need to get consensus among the member states of the United Nations, a consensus that could lead to the ‘responsibility to protect’ becoming a principle of international customary law, the Commission retains the sovereignty principle, while qualifying it. It conceives of the responsibility to protect as encompassing the ‘responsibility to prevent’ and the ‘responsibility to rebuild’. This implies that international intervention should encompass early warning and conflict prevention efforts, peace building, security, economic development, and justice and reconciliation. The Commission affirms that ‘prevention is the single most important dimension of the responsibility to protect: prevention options should always be exhausted before intervention is contemplated, and more commitment and resources must be devoted to it.’9
The Commission reaffirms the primacy of the UN Security Council, arguing that when the council is unable or unwilling to act, intervention could be sanctioned by the General Assembly in Emergency Special Session under the ‘Uniting for Peace’ procedure, or by regional organisations under Chapter VII of the Charter, subject to subsequent authorisation by the Security Council.10 The Commission does not repeat the frequently made call to reform the Security Council by making it more democratic. Even though it counsels the permanent members of the Security Council not to use their veto power when considering international military intervention for protecting vulnerable people, one cannot help wondering whether Russia, in the case of the Chechens, or China, in the case of Tibetans, would overlook their own vital interests, should we reach a point when the ‘just cause’ for intervention threshold, as defined by the Commission is crossed. Secretary-General Kofi Annan, reacting to the Commission’s recommendations, ruefully noted: ‘Lack of political will, national interest narrowly defined, and simple indifference too often combine to ensure that nothing is done, or too little and too late.’11
Justice and international intervention: The problem of political will of member states of the United Nations cannot be overcome by moral exhortations. Meanwhile, it may turn out, as Michael Ignatieff suggests, that ‘backing human rights principles with political will and military steel’ was ‘an interregnum, made possible because western militaries had spare capacity and time to do human rights work.’ He predicts a new era in which human rights will become irrelevant, and in the aftermath of both Afghanistan and Iraq, one is hard put to refute this pessimism.12
There is a strong likelihood that the imperatives of interventionism will result in the imposition upon countries, whose state structures and justice systems have broken down, models derived from western countries. Even when countries have not necessarily been in crisis warranting intervention, foreign aid to reform the justice sector in many countries has shown the tendency to foist upon them models of the rule of law without a proper understanding of history, culture, and institutional diversity. It has been argued, for instance, that the current rule-of-law promotion field, which started in the mid 1980s in Latin America, suffers from a lack of knowledge at many levels of conception, operation and evaluation; that the base of knowledge from which rule-of-law aid practitioners are operating is startlingly thin.13
Legal transplants do not easily take root and flourish; for that the legal system in any country has to be more an indigenous species than an exotic one. Knowledge of history, culture, and social practices is important, especially for external agencies that seek to create new capacity in post-conflict situations, or develop existing capacity in the justice sectors in other situations. Just as the regime that comes to power after a phase of international intervention (assuming that there would indeed be an end to such intervention) can have legitimacy only if it is freely chosen by the people without any external pressures, so also the justice sector will command credibility only when reforms are ‘home grown’.
Many UN agencies, including the UNDP, are learning that national ownership is crucial if reforms in governance structures are to be successful and sustainable. UNDP has embarked upon a process of informing its decisions on what to support, and how to support, with knowledge garnered from practitioners in the field, many of them national officers who have the sensitivity and nous to judge what will work and what will fail. It would be ironic that just as the principal development arm of the United Nations is equipping itself to act with greater knowledge and flexibility to adapt its support to different contexts and circumstances, the role of the UN as a whole, in rebuilding states and societies, is diminished, and old imperialistic patterns of imposing institutions should gain ascendancy.
There are at least two good reasons for the UN to have a greater role in international affairs in an era of inevitable intervention. The first is the legitimacy of international law, and the confidence that it can give to people that international law can prevent a situation where one power will give the law to other countries. The second is that the development agencies of the UN are now better equipped to adapt their policies and programmes to the specific requirements of different cultures and contexts, unlike the economic policy prescriptions that have emanated from the Bretton Woods institutions.
* The views expressed here are the author’s personal opinions, and must not be attributed to the United Nations Development Programme. Thanks are due to Pernille Stallemo, UNDP Oslo Governance Centre, for summarising some of the sources cited in this paper.
1. Kofi Annan, We the Peoples: The Role of the United Nations in the 21st Century (New York: United Nations, 2000), p.43; available at www.un.org/millennium/sg/report.
2. Kofi Annan, ‘Address’ (annual report to the opening meeting of the United Nations General Assembly, 9 September 1999); available at www.un.org/News/Press/docs/1999/19990920.sgsm7136.html.
3. The issues are elaborated well in William Shawcross, Deliver Us From Evil: Peace- keepers, Warlords and a World of Endless Conflict (New York: Simon & Schuster, 2000).
4. Ian Martin, ‘The New World Order: Opportunity or Threat for Human Rights?’ Edward A. Smith Lecture, Harvard Law School Human Rights Programme, 1993. www.law. harvard.edu/programs/hrp/Publications/martin.html
5. David Chandler, From Kosovo to Kabul: Human Rights and International Intervention (London: Pluto Press, 2002).
6. President Bush’s foreword, The National Security Strategy of the United States of America, Washington, D.C.; White House, 2002, p. iv.
7. Resolution adopted by the General Assembly, 55/2. United Nations Millennium Declaration. http://www.un.org/millennium/declaration/ares552e.htm
8. The Responsibility to Protect, International Commission on Intervention and State Sovereignty, 2 vols. (Ottawa: International Development Research Centre, 2001); available at www.idrc.ca
9. Ibid., Synopsis, vol.1, p. xi.
10. The Emergency Special Session was the procedure adopted to sanction operations in Korea in 1950, Egypt in 1956, and the Congo in 1960, and the Economic Community of West African states authorised action in Liberia in the early 1990s and in Sierra Leone in 1997.
11. Speech at the International Peace Academy Seminar, ‘Responsibility to Protect’, New York, NY, 15 February 2002. www.un.org/News/Press/docs/2002/sgsm8125.doc.htm
12. Michael Ignatieff, ‘Is the Human Rights Era Ending?’ The New York Times, 5 February 2002, p. A25.
13. Thomas Carothers, ‘Promoting the Rule of Law Abroad: The Problem of Knowledge’, Working Papers, Rule of Law Series, Carnegie Endowment for International Peace, Number 34, January 2003.