[Peace-discuss] "Humanitarian intervention"

[C. G. Estabrook]

	"The Responsibility to Protect"
	Noam Chomsky
	Text of lecture given at UN General Assembly
	New York City, July 23, 2009

The discussions about R2P, or its cousin "humanitarian intervention," are 
regularly disturbed by the rattling of a skeleton in the closet: history, to the 
present moment. Throughout history, there have been a few principles of 
international affairs that apply quite generally. One is the maxim of Thucydides 
that the strong do as they wish while the weak suffer as they must. A corollary 
is what Ian Brownlie calls "the hegemonial approach to law-making": the voice of 
the powerful sets precedents. Another principle derives from Adam Smith's 
account of policy-making in England: the "principal architects" of policy -- in 
his day the "merchants and manufacturers" -- make sure that their own interests 
are "most peculiarly attended to" however "grievous" the effect on others, 
including the people of England, but but far more so, those who were subjected 
to "the savage injustice of the Europeans," particularly in conquered India, 
Smith's own prime concern. A third principle is that virtually every use of 
force in international affairs has been justified in terms of R2P, including the 
worst monsters. Just to illustrate, in his scholarly study of "humanitarian 
intervention," Sean Murphy cites only three examples between the Kellogg-Briand 
pact and the UN Charter: Japan's attack on Manchuria, Mussolini's invasion of 
Ethiopia, and Hitler's occupation of parts of Czechoslovakia, all accompanied by 
lofty rhetoric about the solemn responsibility to protect the suffering 
populations, and factual justifications. The basic pattern continues to the present.

The historical record is worth recalling when we hear R2P or its cousin 
described as an "emerging norm" in international affairs. They have been 
considered a norm as far back as we want to go. The founding of this country is 
an example. In 1629, the Massachusetts Bay Colony was granted its Charter by the 
King, stating that rescuing the natives from their bitter pagan fate is "the 
principal end of this plantation." The Great Seal of the Colony depicts an 
Indian saying "Come Over and Help Us." The English colonists were thus 
fulfilling their responsibility to protect as they proceeded to "extirpate" and 
"exterminate" the natives, in their words, "and for their own good, their 
honored successors explained. In 1630, John Winthrop delivered his famous sermon 
depicting the new nation "ordained by God" as "a city on a hill," inspirational 
rhetoric that is regularly invoked to this day to justify any crime as at worst 
a "deviation" from the noble mission of responsibility to protect.

There is no difficulty adding similar examples from other great powers in their 
day in the sun. It is understandable that the powerful should prefer to declare 
that we should forget history and look forward. For the weak, it is not a wise 
choice.

The skeleton in the closet made an appearance in the first case considered by 
the International Court of Justice 60 years ago, the Corfu Channel case. The 
Court determined that it "can only regard the alleged right of intervention as 
the manifestation of a policy of force, such as has, in the past, given rise to 
most serious abuses and such as cannot, whatever be the defects in international 
organization, find a place in international law...; from the nature of things, 
[intervention] would be reserved for the most powerful states, and might easily 
lead to perverting the administration of justice itself."

The same perspective informed the first-ever meeting of the South Summit of 133 
states, convened in April 2000. Its declaration, surely with the bombing of 
Serbia in mind, rejected "the so-called 'right' of humanitarian intervention, 
which has no legal basis in the United Nations Charter or in the general 
principles of international law." The wording reaffirms the important UN 
Declaration on Friendly Relations (UNGA Res. 2625, 1970). It has been repeated 
since, among others by the Ministerial Meeting of the Non-aligned movement in 
Malaysia in 2006, again representing the traditional victims in Asia, Africa, 
Latin America, and the Arab world.

The same conclusion was drawn in 2004 by the high-level UN Panel on Threats, 
Challenges and Change. The Panel adopted the view of the ICJ and the Non-aligned 
Movement, concluding that "Article 51 needs neither extension nor restriction of 
its long-understood scope." The Panel added that "For those impatient with such 
a response, the answer must be that, in a world full of perceived potential 
threats, the risk to the global order and the norm of nonintervention on which 
it continues to be based is simply too great for the legality of unilateral 
preventive action, as distinct from collectively endorsed action, to be 
accepted. Allowing one to so act is to allow all" -- which is, of course, 
unthinkable.

The same basic position was adopted by the UN World Summit in 2005. While 
reaffirming stands that had already been accepted, the Summit also asserted the 
willingness "to take collective action, ... through the Security Council, in 
accordance with the Charter, ... should peaceful means be inadequate and 
national authorities are manifestly failing to protect their populations" from 
serious crimes. At most, the phrase sharpens the wording of Article 42 on 
authorization for the Security Council to resort to force. And it keeps the 
skeleton in the closet -- if, and it is a large if, we can regard the Security 
Council as a neutral arbiter, not subject to the maxims of Thucydides and Adam 
Smith, a matter to which I will return.

There have been efforts to draw a sharp distinction between R2P and its cousin. 
They may have some merit, but they go far beyond the evidence. There is a good 
reason why "the right of humanitarian intervention" has been hotly contested, in 
substantial part along North-South lines, while R2P was affirmed -- more 
accurately reaffirmed -- by consensus at the Summit. The reason is that the 
Summit acceptance of R2P rhetoric adds nothing substantially new. The rights 
articulated in the crucial paragraphs 138 and 139 of the Summit declaration had 
not been seriously contested, and in fact had been affirmed and implemented, for 
example, with regard to apartheid South Africa. Furthermore, the Security 
Council had already determined that it can even use force under Chapter VII to 
end massive human rights abuses, civil war, and violation of civil liberties: 
Resolutions 925, 929, 940, June-July 1994. And as J. L. Holzgrefe observes, 
"most states are signatories to conventions that legally oblige them to respect 
the human rights of their citizens." The few successes of R2P that have been 
widely hailed, as in Kenya, had no need for the Summit resolution, though the 
terminology of R2P was invoked.

In substance, R2P as formulated at the South Summit is a subcase of the "right 
of humanitarian intervention," omitting the part that has been contested: the 
right to use force without Security Council authorization. That does not imply 
that there is no significance to the more explicit focus on rights that had 
already been widely accepted. The significance of the rhetorical shift will be 
determined by how it is implemented. On that matter, there are few grounds for 
celebration.

There have been departures from the Corfu Channel restriction and its 
descendants. The Constitutive Act of the African Union asserts "The right of the 
Union to intervene in a Member State, ... in respect of grave circumstances." 
That differs crucially from the Charter of the Organization of American States, 
which bars intervention "for any reason whatever, in the internal or external 
affairs of any other state." The reasons for the difference are clear. The OAS 
Charter seeks to deter intervention by the "colossus of the North" -- and has of 
course failed to do so. But after the collapse of the apartheid states, the 
African Union faced no comparable problem.

If the African Union doctrine were to extend to the OAS or NATO, then they would 
be entitled to intervene within their own alliances. That idea yields 
interesting and revealing conclusions about the OAS and NATO, which should not 
need elaboration. But the conclusions would be inoperative, as in the recent 
past, thanks to the maxim of Thucydides.

I know of only one high-level proposal to extend R2P beyond the Summit consensus 
and the African Union extension, namely, in the Report of the International 
Commission on Intervention and State Sovereignty on Responsibility to Protect 
(2001). The Commission considers the situation in which "the Security Council 
rejects a proposal or fails to deal with it in a reasonable time." In that case, 
the Report authorizes "action within area of jurisdiction by regional or 
sub-regional organizations under Chapter VIII of the Charter, subject to their 
seeking subsequent authorization from the Security Council" ((3) E, II).

At this point, the skeleton in the closet rattles quite loudly. One reason is 
that the powerful unilaterally determine their own "area of jurisdiction." The 
OAS and AU cannot do so, but NATO can, and does. NATO unilaterally determined 
that its "area of jurisdiction" includes the Balkans -- but not NATO itself, 
where shocking crimes were committed against Kurds in southeastern Turkey 
through the 1990s, off the agenda because of the decisive military and 
diplomatic support for them by the Clinton administration, with the aid of other 
NATO powers. NATO has also determined that its "area of jurisdiction" extends to 
Afghanistan, and beyond. Secretary-General Jaap de Hoop Scheffer informed a NATO 
meeting in June 2007 that "NATO troops have to guard pipelines that transport 
oil and gas that is directed for the West," and more generally have to protect 
sea routes used by tankers and other "crucial infrastructure" of the energy 
system. The expansive rights accorded by the International Commission are in 
practice restricted to NATO alone, radically violating the principles of Corfu 
Channel and its descendants, and opening the door for resort to R2P as a weapon 
of imperial intervention at will.

The Corfu Channel principle provides considerable insight into both the timing 
of the rhetorical invocation of R2P and its cousin, and the selectivity of their 
application in this new incarnation. The "normative revolution" declared by 
Western commentators took place in the 1990s, immediately after the collapse of 
the Soviet Union, which had, in earlier years, provided an automatic pretext for 
intervention.

The Bush senior administration reacted to the fall of the Berlin Wall with an 
official exposition of Washington's new course: in brief, everything will stay 
much the same, but with new pretexts. We still need a huge military system, but 
for a new reason: the "technological sophistication" of third world powers. We 
have to maintain the "defense industrial base" -- a euphemism for 
state-supported high-tech industry. We must maintain intervention forces 
directed at the Middle East energy-rich regions -- where the threats to our 
interests that required military intervention "could not be laid at the 
Kremlin's door," contrary to decades of pretense. New pretexts for intervention 
were needed, and the "normative revolution" entered the stage -- once again.

The natural interpretation of the timing gains support from the selectivity of 
application of R2P. There was of course no thought of applying the principle to 
the Iraq sanctions administered by the Security Council, condemned as 
"genocidal" by the two directors of the oil-for-food program, Denis Halliday and 
Hans von Sponeck, both of whom resigned in protest. Von Sponeck's detailed study 
of the horrendous impact of the sanctions has been under a virtual ban in the US 
and UK, the primary agents of the programs. Similarly, there is no thought today 
of protection of the people of Gaza, also a UN responsibility, along with the 
rest of the "protected population" (under the Geneva Conventions), denied 
fundamental human rights. Nothing serious is contemplated about the worst 
catastrophe in Africa, if not the world: Eastern Congo, where only a few days 
ago, BBC reported, multinationals are once again being accused of violating a UN 
resolution against illicit trade of valuable minerals and thus funding the 
murderous conflict.

In another domain, there is no thought of invoking even the most innocuous 
prescriptions of R2P to respond to massive starvation in the poor countries. The 
UN recently estimated that the number of those facing hunger has passed a 
billion, while the World Food Program of the UN has just announced major 
cutbacks of aid because the rich countries are reducing their meager 
contributions, giving priority to bailing out banks. Several years ago UNICEF 
reported that 16,000 children die every day from lack of food, many more from 
easily preventable disease. The figures are higher now. In southern Africa alone 
it is Rwanda-level killing, not for 100 days, but every day. There is surely 
ample warning, but no thought of action under R2P, though it would be easy 
enough if the will were there.

In these and numerous other cases the selectivity conforms with painful 
precision to the maxim of Thucydides, and the expectations of the ICJ 60 years ago.

Perhaps the most striking illustration of the consistent radical selectivity was 
in 1999, when NATO bombed Serbia, an attack featured in Western discourse as the 
jewel in the crown of the "emerging norm" of humanitarian intervention, when the 
US was at the "height of its glory" in leading the "enlightened states," and the 
"idealistic New World bent on ending inhumanity" opened a new era in history by 
acting on "principles and values," to cite just a few of the accolades by 
Western intellectuals.

There are a few difficulties confronting this flattering self-image. One problem 
is that the traditional victims of Western intervention vigorously objected. I 
have already quoted the stand of the Non-aligned movement; Nelson Mandela was 
particularly harsh in his condemnation. That was unproblematic: the views of the 
unworthy are easily ignored. Furthermore, the bombing plainly violated the UN 
Charter. That problem too was easily put to rest. Some resorted to legalistic 
maneuvering, but as the Goldstone Commission more forthrightly determined, the 
bombing was "illegal but legitimate," a conclusion reached by reversing the 
chronology of bombing and atrocities. That leads to a third problem: the facts, 
which happen to be richly documented from impeccable Western sources. What they 
reveal is unequivocal. The NATO bombing did not end the atrocities but rather 
precipitated by far the worst of them, as had been anticipated by the NATO 
command and the White House. The conclusions that are so richly documented by 
the Western records are reinforced by the indictment of Milošević, issued by 
the International Tribunal at the height of the bombing. With a single 
exception, the crimes charged follow the bombing. And we can be confident that 
the one pre-bombing charge -- the Racak massacre -- was of little principled 
concern to the US and Britain, if only because at the very same time they were 
not merely condoning but actively supporting much more serious crimes in East 
Timor, where the background of atrocities was incomparably more grotesque than 
anything that had happened in the Balkans. And that is only one of many examples 
right at that time.

This problem too was overcome quite simply: by virtual suppression of the ample 
record.

The case of East Timor is particularly instructive. On a personal note, I 
testified about it at the Fourth Committee in 1978, when atrocities reached the 
level of "extermination as a crime against humanity committed against the East 
Timorese population," in the words of the later UN-sponsored Truth Commission, 
and Britain and France joined the US in supporting them, along with Australia 
and others, continuing to do so right through 1999 as atrocities sharply mounted 
again. After the final paroxysm of state terror in September 1999, which 
destroyed most of what remained of the country, National Security Adviser Sandy 
Berger said that the US would continue its support for the aggressors, 
explaining that "I don't think anybody ever articulated a doctrine which said 
that we ought to intervene wherever there's a humanitarian problem." R2P 
vanished in the familiar way.

To end the atrocities in this case would not have required bombing, or 
sanctions, or indeed any act beyond withdrawal of participation. That was 
demonstrated shortly after Berger's reaffirmation of Western policy, when, under 
strong domestic and international pressure, Clinton formally ended US 
participation. The invaders immediately withdrew, and a UN peacekeeping force 
was able to enter facing no army. That could have been done any time in the 
preceding quarter-century. Astonishingly, this horrendous story was soon 
reinterpreted as vindication of R2P, a reaction so shameful that words fail.

I mentioned that the consensus of the World Summit adheres to the Corfu 
principle and its descendants only if we assume that the Security Council is a 
neutral arbiter. It plainly is not. The Council is controlled by its five 
permanent members, and they are not equal in operative authority. One indication 
is the record of vetoes -- the most extreme form of violation of a Security 
Council Resolution. The relevant period is from the mid-1960s, when 
decolonization and recovery from wartime destruction gave the UN at least some 
standing as representative of world opinion. Since then, the US is far in the 
lead in vetoes, Britain second, no one else even close. In the past 
quarter-century, China and France vetoed 3 resolutions, Russia four, the UK ten, 
and the US 43, including even resolutions calling on states to observe 
international law. The skeleton in the closet nods in recognition as the maxim 
of Thucydides strikes again.

One way to mitigate this defect in the World Summit consensus would be to 
eliminate the veto -- incidentally, in accord with the will of most Americans, 
who believe that the US should follow the will of the majority and that the UN, 
not the US, should take the lead in international crises. But here we run up 
against Adam Smith's maxim, which ensures that such heresies are unthinkable, as 
much so as applying R2P right now to those who desperately need protection but 
are not on the favored list of the powerful.

American public opinion brings up a further consideration. The maxims that 
largely guide international affairs are not graven in stone, and, in fact, have 
become considerably less harsh over the years as a result of the civilizing 
effect of popular movements. For that continuing and essential project, R2P can 
be a valuable tool, much as the Universal Declaration of Human Rights has been. 
Even though states do not adhere to the UD, and some formally reject much of it 
(crucially including the world's most powerful state), nonetheless it serves as 
an ideal that activists can appeal to in educational and organizing efforts, 
often effectively. My suspicion is that a major contribution of the discussion 
of R2P may turn out to be rather similar, and with sufficient commitment, 
unfortunately not yet detectable among the powerful, it could be significant indeed.


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