By Robert Legvold
The Pugwash Study Group on Intervention, Sovereignty and International Security and these companion essays join a conversation already well in progress. With every new episode of local violence and international intervention, more voices weigh in on the legitimacy, wisdom, effectiveness, and consequences of outside states making the suffering or abuse of citizens within any given state a community responsibility. By now the newness of the argument over new norms of intervention and whether they have begun to trump the old norms of state sovereignty is gone. The issues are increasingly clear. Their resolution is not.
Put Hugh Beach, Alain Pellet, and Gwyn Prins, the authors of these three essays, among the defenders of not only the worth but the reality of a new regime sanctioning -- maybe obliging -- states to act on behalf of human rights. Count me among those who are less sure, but who believe it would be good were it so. They, however, do much more than make the case in general terms. They make the case for the hard case -- for the moral and, indeed, the legal rectitude of what the NATO nations did to uphold the new standard in the Balkans in the spring of 1999. The U.S.-led NATO decision to use massive military force to stop the Milosevic regime from harming the Albanians of Kosovo raises difficult challenges to the "new norms" argument, and the three authors take these head-on. They are, however, mindful of the troubling and potentially hazardous implications of the case, and this leads them to judge cautiously both Kosovo's lessons and how much can or should be expected from what an earlier study called the "emerging norms of justified intervention."(1)
As they underscore, the stakes are enormous, far more extensive than the discomfort of seeing fellow beings suffer at the hands of brutal governors, far more even than the uneasiness that pockets of disorder surrounding grave human rights violations generate within the larger international setting. We live in an age, as Beach notes, when the community of nation-states has already ceased to be the few dozen entities of the late 18th century or even the 70 or so early in the 20th century. We are at 193 sovereign states and counting. Exploding numbers, however, are not the point. Rather it is the impulses producing them: the all-too-often malign forces prompting national groupings to want out of multi-ethnic states. Or the sad effects when new states embrace tyranny or predatory policies against neighbors or, at the other extreme, fail to function and collapse into chaos. As Prins reminds us, the century just past provides grim proof of how lethal domestic disorder and murderous regimes can be. Four times more so than the (35million) dead produced by all the century's wars. Add this demonstrated capacity to the potential fuel in the fragmentation of the nation-state order, and one soon sees that the abuse of human rights is not simply a matter of disturbed consciences in polite society.
Not for a very long time, if ever, they argue, has the right of regimes to do what they please to their own people been unconstrained. By logic and law no population can be expected to accept the caprice and cruelty of those in power. Prins supplies the logic from Emer de Vattel's 1758 defense of what the sovereign state is: societies of men become "a moral person," a "political association" in which "each citizen submits himself [only] to the authority of the whole body." Although Prins does not make the point, the logic extends through various notions of the social contract, including, in particular, Jean-Jacques Rousseau's by which the "citizens," a microcosm of the "sovereign" (being the people not the state) have the right of revolution. By extension, presumably so do they also have the right to expect the redress of an unjust order from whatever quarter.
In modern times, Pellet argues, that right has become more explicit and reinforced in a principle of law. There have come to be standards in the sphere of human rights that are not merely "binding" but "peremptory;" standards recognized by the international community as a whole, standards, in the words of the 1969 Vienna Convention, "for which no derogation is permitted." When they are violated, not merely the victims are "injured," but the entire community of states. Presumably such norms create not only the right to intervene on their behalf, but arguably the duty.
By introducing the distinction, however, Pellet also begins to limit the universe of norms of intervention over which there can be no dispute. For, as he notes, the standard of a peremptory norm holds only in the extreme. Most would apply it to egregious abuse, such as slavery, genocide, and apartheid. Few could claim that it includes most civil rights, such as free speech, freedom of assembly, or a right to due process. That suits Prins fine. While he and Beach, supported by Pellet, join those who see human rights as transcending absolute state sovereignty and constituting a legitimate concern of the international community, neither seems eager to justify regular and wide-spread international intervention to correct every abuse, let alone, to impose democratic forms. Prins cites approvingly Adam Roberts's argument that, in the absence of an incontestably universal new norm of intervention, the exceptional justifications required for cases like Kosovo do, in fact, implicitly reinforce the long-standing alternative rule of non-intervention.
Beach sets the limits differently, but no less stringently. After insisting at length on the perils should the international community fail to make human rights a concern, he then treats the option of intervention as highly circumscribed. Not only does he implicitly agree that intervention should only be to "prevent widespread death or suffering amongst the population," he seems to argue that this is not enough. Before armed intervention can be justified it must satisfy other requirements: That the probability of success be high, hence, a test of feasibility met; that recourse to force be a last resort, requiring thorough and committed diplomacy beforehand; and that, when used, military force be used with restraint. By the last he means proportionate to the offense or "the good to be achieved," and respectful of civilian life and safety. Neither Prins nor Pellet would appear to disagree.
In the end, however, while principle is important, all three authors know that the more intense dispute in the Kosovo case is over agency. Not whether morality or law by some fair, albeit contested reading justified forcible action from the outside, but whether the agent and auspices were legitimate. Did NATO, in the absence of prior UN approval, have the right to do what it did? And, second, did it have the right to do what it did in the way that it did it?
Pellet appears to acknowledge that, while intervention to end or prevent crimes against humanity has multiple grounds, armed intervention is another matter. To the extent that the UN Charter forms the backbone of the international community's effort to regulate the use of force, no state or collection of states can arrogate the right to use force against another, save for the purpose of self-defense. Prins tends to circumvent the problem of agency by in effect questioning the Charter's categorical proscription when the underlying justification is so compelling and the practical difficulty of making the organization do what it should is so great.
Beach is not far behind. He claims that endorsement from the Security Council is a "sufficient but not always a necessary condition of legitimate intervention." Ostensibly he bases himself on the eyebrow-raising proposition that one should not "vest the conscience of mankind" on such issues in the likes of Russia and China, given their dubious record in the realm of human rights. This, however, appears to be more a reflexive than a considered argument, and the reader suspects that, as earlier he is leaning on just war theory, only here without saying so. From Augustine and Aquinas to the present, war is just when intended "to restore what has been seized injuriously." Says Beach, in modern times ethnic cleansing constitutes values "seized injuriously."
Pellet is more eager to justify NATO's actions within the terms of the Charter. This he does in somewhat jerry-rigged fashion. By adding together the reasonableness of NATO's posture, Milosevic's disregard of prior UN resolutions, and the implied post facto approval for the war under UN Resolution 1244, he fashions a surrogate sanction. But, to judge from Pellet's concluding characterization of NATO's self-justification as "the legally embarrassing 'Zorro principle,'" it is not one that he finds terribly satisfying.
These intelligent and vigorously argued essays make well the ethical case for NATO's war against Serbia. But is that sufficient? What renders Kosovo so intractable in the debate over "emerging norms of justifiable intervention," in my view, are the problems beyond principle. Or, more accurately, the unhappy interaction between principle and politics.
Perhaps Russian, Chinese, and others' defense of the principle of state sovereignty over the principle of human rights is, as Prins intimates, unprincipled. Well it may represent an unseemly attempt to exempt their own behavior from responsibility before the international community, rather than a different view of how one brings order to the international community. But it is much less easy to dismiss on the same grounds their far more heated objection to the manner of the intervention. Not that their preferred notion of agency -- one that insists on UN sanction -- is not self-interested. Norms, however, if they are to have force, will always reflect the selfish interests of some critical makeweight of the international community. And in this case the bulk of self-interested states appear to side with the Russians, Chinese, et. al.
Thus, we are brought squarely against a dilemma: the only way a norm whose time has come may be reliably implemented is if those states that are both strong and virtuous act without undue regard for the opinion of others. But to disregard the opinion of others and, in particular, others who are far from powerless, threatens to destroy the chance of establishing the norm. On this score, it is one thing when, to return to Gwyn Prins's historical metaphor, Athens faces Melos; it is another when the opposition is Sparta.
Conceivably there is a way out. Conceivably the dissenters could be rallied to a narrowly defined norm of justifiable intervention -- one in extremis -- if they were conceded the principle of agency. And, if they accepted or tolerated a narrow norm of intervention, conceivably genuine multilateralism would be allowed to function (in place of unilateral collective action). Not only is this important in general, but because the severest tests of the norm may yet come from events within or near these states. If "within," leaders can be expected to defect from multilateral efforts to right the wrong. But they should then be isolated, not aided by a prior consensus among disgruntled states.
Not to be thick about the concerns at the root of Beach, Pellet and Prins's arguments, I realize that they are not unmindful of the political problem posed by the resistance of China, Russia, and much of the Third World. Prins, in fact, mentions it specifically. They, however, seem driven more by another competing but unspoken fear: that in the end the strong and the virtuous will defect; that the Western powers and potential think-alikes will find the problem of intervention in the hard cases too vexing, too unrewarding, and too costly, and slink away from the challenge.
Note
1. Laura W. Reed and Carl Kaysen, eds., Emerging Norms of Justified Intervention (Cambridge: American Academy of Arts and Sciences, 1993).
Robert Legvold is professor of political science and former director of the Harriman Institute at Columbia University, and vice chair of the Committee on International Security Studies at the American Academy of Arts and Sciences.
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