Vol. 14 No. 6 (June 2004), pp.363-373
READING HUMANITARIAN INTERVENTION: HUMAN RIGHTS AND THE USE OF FORCE IN INTERNATIONAL LAW, by Anne Orford. Cambridge: Cambridge University Press, 2003. 256pp. Hardback. $75.00. £50.00. ISBN: 0521804647
Reviewed by Henry F. Carey, Department of Political Science, Georgia State University. Email: firstname.lastname@example.org
Is there a connection between the public and intellectual apathy about responding to mass murder abroad and the intellectual postmodernism in vogue during much of the past two decades? Do radical paradigms in academia misrepresent the legitimacy of human rights regimes? I will argue affirmatively to explain the pervasive public and intellectual apathy about gross and systematic human rights violations in the world in reviewing the interesting, postmodern and post-colonialist critique of humanitarian intervention written by Professor Anne Orford. Deep skepticism that armed interventions are little more than the latest version of imperialism has led to apathy rather than moral outrage. Intellectual apathy and the consequent lack of public attention led to the FAILURE OF THE WEST in Bosnia, to quote David Rieff’s (1995) title, partly because international laws against aggression and murdering civilians were not seen as legally binding by many academic skeptics during the genocides like Bosnia, Rwanda and Kosovo. Much of the intellectual environment of the 1990s, after abandoning liberalism and Marxism, adopted anti-Western narratives in all contexts. Rather than carefully distinguishing just humanitarian interventions from unjust wars, such as the 2003 invasion of Iraq, all geopolitics is seen as driven by imperialism.
Postmodern and post-colonial critiques of imperialism abjure the universal legal and moral basis for condemning human rights violations and for authorizing interventions to halt them. Such universality also provides the legal and moral basis for outrage. One such postmodern approach, Orford’s READING HUMANITARIAN INTERVENTION, asserts that the academic and policy support for humanitarian intervention is rooted in the interests of dominant states to maintain their power over weak tyrannical states. In her view, the victims of mass oppression, whom the West asserts should be liberated, become little more than pawns in great power struggles searching for rationales to dominate unstable societies. Geopolitics, then, not humanitarian motives, drives foreign intervention, whether humanitarian or self-defense in justification.
To her credit, like Amy Chua (2003), Orford argues that many Western ideas have violent consequences, such as the ethnic conflict resulting from colonially-favored, market-dominant minorities. “Liberated” peoples should determine economic policy and not have privatization imposed on them, as the West has often attempted, including recently in Iraq. Orford’s critique, that “militarized humanitarianism” is an [*364] oxymoron, is also valid. Moreover, the US does not seriously promote democracy among all or even a majority of its autocratic allies, even if it nominally imposes it on the regimes established after its humanitarian interventions. More generally, the US does not act according to its professed values of supporting human rights, by, for example, supporting torturers and using torture in places like Pakistan, Guantanamo and Iraq. The US has, by pushing, coercing and intervening in Central America, just as the French and British in their former colonies, has intervened at times in ways which are neo-colonial in many respects.
Yet, had Orford been writing about the aggression by the US and the UK against Iraq since 2003, much of her book would be convincing. In fact, following the failure to find weapons of mass destruction or links to al-Qaeda, the US proffered a humanitarian justification, post hoc, for the invasion. However, the invasion of Iraq was not, legally speaking, a humanitarian intervention, itself not yet accepted as a legal norm under customary international law—a subject ignored by Orford. Only the UK suggested that removing Saddam for humanitarian reasons was a reason for joining the US, but it was never the main UK stated motive and it was never stated as the US justification for preemptive war and preemptive self-defense against Iraq. The fact that humanitarian intervention is not yet accepted by either academia or the international law of states is a rather misleading oversight by Orford, because the entire book assumes that all proponents of humanitarian intervention have few disagreements. In fact, the conditions for legal humanitarian intervention are narrowly defined by most proponents, and many of Orford’s examples simply would not apply because some of the interventions exemplified do not represent genuine attempts to save lives.
Orford overlooks other important issues raised in orthodox treatments of humanitarian intervention. Among those issues were those mentioned by the spokesman of UN Secretary-General Kofi Anan on April 20, 2004 when he proposed a high-level panel. (UN Press Briefing): “What the Secretary-General has asked that panel to do is to look at new threats to international peace and security, including key questions like when can there be a humanitarian intervention? Under what conditions? Who will authorize it? Who will participate in the intervention, et cetera?” Furthermore, not all humanitarian interventions have been undertaken by larger powers like the US, the UK, or Australia, as her book implies—e.g., Vietnam in Cambodia in late 1970s, India in East Pakistan in early 1970s, and Tanzania in Uganda in the 1970s. She asserts that “[t]exts about humanitarian intervention represent the international community as guarantor of the values of human rights and democracy, and as the protector of suffering peoples” (p.168). However, most of the defenses of humanitarian intervention prior to the 1990s assumed that small countries could just as easily undertake them, as they did without UN support, and in the 1971 Indian intervention in East Pakistan, inducing explicit UN condemnation.
Despite the title’s billing, Orford hardly considers official legal texts of states, intergovernmental or nongovernmental organizations—mostly analyzing scholarly texts, and generally those [*365] already criticizing the West or powerful states, or both. The vast majority of texts cited are not from advocates of humanitarian intervention, but from proponents of various feminist, psychoanalytic, postcolonial, anti-imperialist and/or postmodern, skeptical approaches. She does not examine such books on humanitarian intervention by Murphy (1996), Téson (1997), and Schnabel and Thakur (2000), as well as innumerable law review essays by others. She presents, surprisingly few scholarly defenders of humanitarian intervention (viz., Robertson, Roth, Farer, Gordenker and Weiss, Bloomfield among them) and few quotes from US government officials, other than US Ambassador Madeline Albright. She ignores the rubrics of customary international law, which demands evidence from governments of consenting state practice and opinio juris to constitute the basis for new norms, such as for humanitarian intervention. There are, of course, difficulties in identifying evidence of changes in the law. Yet, she feels no obligation to consider this process of law formation, which presumably is little more than a pretext for imperialism. Nor does she acknowledge that realist scholars from the West have opposed coercive enforcement of human rights or humanitarian intervention, including Hans Morgenthau and Henry Kissinger. Furthermore, the realist advocacy of coercive support for democracy and freedom in the Middle East has paradoxically come from the unlikeliest of US administrations, that of George W. Bush, who campaigned for office against humanitarian intervention (e.g, specifically against one in Rwanda even in response to a real genocide, in response to a question from journalist Jim Lehrer) and against nation-building. The invasion of Iraq was only rhetorically focused on humanitarian liberation, and that only after weapons of mass destruction were not discovered by US forces. Here, Orford’s approach eerily would share the intellectual assumption of the Straussianism prevalent among the neo-conservative architects of the war, that one should not take statements at face value. If this is indeed the case, then Orford’s postmodernism suggests that there is little reason to expect any rational public discourse upon which democracy depends, a conclusion too skeptical for this reader. Such an extreme interpretation is only possible when postmodenists use straw men to depict their opponents, in this case, that advocacy of humanitarian intervention adopt one set of postulates. It would have been more helpful to examine in depth the texts of advocates, rather than the texts of their opponents.
To make her case, Orford should have actually undertaken what is suggested in her book title: to examine government, UN or other official statements. She cites Amnesty International and Human Rights Watch, but she has only one citation to Prime Minister Tony Blair, in advocating humanitarian intervention, admits national self-interest is combined with humanitarianism. There are no references to the abrupt change by Kofi Annan in endorsing humanitarian intervention. In November 2000, he stated, “I myself believe, and I think it is implicit in the Charter, that there are times when the use of force may be legitimate and necessary because there is no other way to save masses of people from extreme violence and slaughter” (Annan 2000). Annan has also [*366] frequently endorsed the important, Canadian-sponsored study, “The Responsibility to Protect,” which strongly supports humanitarian intervention because “The principle of non-intervention yields to the international responsibility to protect” (Report of the International Commission on Intervention and State Sovereignty 2001, xi). One of the commission members, Gareth Evans, is also the Co-Chair of the aforementioned Secretary-General’s Panel on Threats, Challenges and Change.
Like many of the metaphors, the insight is more poetic than specific and defensible from a social science perspective. The US view of the UN was most positive under George Bush 41 and is least favorable under George Bush 43, though the latter has had his comeuppance to the extent that his administration has had to rely on the UN more than it wanted in Iraq today. Orford does not consider the main scholarly issue debated—at what point does sovereignty end because of excessive human rights violations? Orford does worry about the consequences of losing sovereignty, to the extent that the occupier will adopt malignant neo-colonialism through militarism and imperial economic control. It is as if the orthodox world is beyond the reach of argument. For all the various artistic and progressive approaches Orford uses, she does not seem to have any sense of tragedy. These situations are among the worst in the world. For all the downside costs to these interventions, there is the upside of saving lives, which goes unmentioned after her introduction. The tragedy of humanitarian intervention is that there are both negative and positive consequences—not just one or the other.
In addition, Orford does not consider the more obvious imperial threats, either direct intervention for reasons largely of self-interest, or on the other hand, not intervening for reasons of self-interest. Nor does she consider the relationship of humanitarian intervention and US foreign policy, both the Clinton doctrine on democracy enlargement and the Bush doctrine of preemptive self-defense or the more radical, preemptive war. Both US administrations’ foreign pollicies are much more akin to imperial intervention than any US doctrine of humanitarian intervention, which still has not yet been formally adopted by any administration, though implicitly was utilized in Haiti 1994, Bosnia 1994 and 1995 and Kosovo 1999. She should explain the reluctance of putative imperial power in words and deeds to undertake humanitarian interventions.
In the past century of academic study of international law, the dominant approach has assumed the primacy of law, even if debates about how to define law and its authority and interpretation have never been resolved. Different paradigms have emerged, analogous to domestic interpretive frameworks on defining what is the law based on such frameworks as evolving principles, common law lawmaking, textualism, realism, traditionalism, and originalism. Yet, international law is even more political since the conditions in which it is applied are so varied. So, beyond just defining what the law is, the question also emerges whether the law even exists and to what purpose. There is no presumption that, if the rule of law does not exist, it should, or that it is always just.
[*367] Following the post-World War II evolution of the “New Haven School” of policy approaches, the international legal academy has been enhanced over the past two decades with a wave of interdisciplinary, postmodern and postcolonial critiques. The views from the New Haven School varied from arguing that the more powerful states can and should promote values in international law that advance human dignity to accepting the skepticism of these three more recent approaches that imperialism can ever be reformed. Just as no consensus has ever emerged in the New Haven school about the motives and capabilities of great powers to promote international law, nor is there any monolithic view among proponents of humanitarian intervention about what great powers can and should attempt and achieve. Many of their disagreements are over issues presented by Orford as if there is general consensus.
Orford’s argument is that Western rhetoric on democracy, human rights, and peace are emphasized to cover the ulterior motives of powers to conduct humanitarian interventions, which are really pretexts to extend capitalist domination and empire. International law facilitates this fraud, with justice held aloft as the stated goal, but disguising the real purpose of tyrannical exploitation. In this regard, nothing has changed since the Treaty of Westphalia. Televised images make the Western narrative of “rescue” for humanitarian reasons conveniently self-deceiving, as well since the imperatives of intervention and occupation become imperialistic. The use of force is actually counter-productive. Those rescued “have instead seen one form of domination followed by another” (p.22). Orford’s line of reasoning may or not be persuasive, but it is clear and it is based on reason.
Orford makes her case for humanitarian intervention as just another example of imperialism is based on the mere presence of capitalist institutions, particularly the IMF and World Bank and the involuntary imposition of neo-liberal policies, as part of Western “liberation.” That these institutions are the only ones with sufficient resources for reconstruction is not accepted as a fact of life, but as evidence of subtle conspiracy. She suggests that these institutions are little different from the League of Nations, which created colonies, disingenuously calling them “mandates.” The Orwellian rhetoric of humanitarianism must be unmasked. Integration into the world economy is a method of political domination because no real popular sovereignty accrues, whether in Kosovo or presumably in post-Saddam Iraq, a case that came after the book’s publication. There is no choice over economic policy, and often only a quisling government is permitted, subject to overrule by a Raj-like administrator, such as the OSCE civilian leader of postwar Bosnia.
International law, the main discipline of Orford’s book, is an instrument of domination limiting the rights of ostensibly “liberated” peoples. “In ‘recognising’ new entities entitled to self-determination, the law is creating new legal subjects. These subjects must fulfill what the spirit of international law requires, excluding what the international community perceives as alien or other at any given time. In the era of free trade and liberal democracy, the law’s new subjects can determine [*368] their own destiny only within the constraints imposed by liberal capitalism” (p.28). There is no liberation from the IMF and the World Bank, which are self-evidently choice-eliminating.
A key assumption of Orford is that colonialism has continuously, negative long-term effects. Such a view is akin to arguing that there has been no essential progress from ending legalized slavery, genocide or colonialism or establishing human rights institutions domestically and internationally—patently false and absurd arguments.. It is analogous to the contention that the Civil Rights movement in the US produced no essential change in the extent of official and cultural racism. A more reasonable view is that, although progress remains insufficient and in some ways has reversed, life is still categorically different from the days of organized lynching by officials and their publicists. Yet, Orford asserts:
Both this delusion (that anything has really changed under international law), and the failure to realize it, shape international law. International legal texts embody the faith that a renewed law emerged with the creation of the United Nations and the birth of the era of decolonisation. In contrast, this book follows legal theorists such as Anghie, Berman and Gatthi in reading texts about humanitarian intervention as intimately connected with, rather than as a decisive departure from colonialism. To read international law after colonialism is to try to remember its imperial past, and to become familiar with the specters of colonialism that haunt the law today. (pp.46-47)
The second two-thirds of the book becomes has more postmodern, where the critique sacrifices clarity of argument for insights based on pervasive skepticism. Thus, in discussing colonial continuities, Orford argues that development aid in Africa has “promoted oppression” (p.108) by promoting humiliation and dehumanization through authoritarian aid agencies. No particular evidence for this assertion is offered. She suggests that the UN Mission in East Timor relates to the local population through the “colonial concept, that of pedagogy” (p.138), but it not clear how such a post-genocidal society could develop without some form of education from without. However, since colonialism under Edward Said’s notion of pedagogy legitimated its oppression through hypocritical, self-serving notions of “civilizing missions,” any similar attempt at teaching today must amount to the same thing. That the UN does not own East Timor does not strike Orford as a relevant distinction. Who is going to be the educator if the UN is not? She suggests that all such societies would be better off without any technical assistance, lest they get co-opted by the global capitalist system. And why is capitalism the same as colonialism? She writes:
The system as a whole, however, operated to integrate the mandate society into the international economy in a subordinate role. As a result, while these territories appeared to be freed from political control, they remained subject to the control of the parties that exercised power within the international economy. The resources and people of those territories were exploited just as efficiently under this new arrangement as they were under classical colonialism. Many of the same arguments can be seen to apply in the cases of Bosnia-Herzegovina and East Timor. (p.141)
The postmodern imputation of the [*369] colonial “other” (“alterity”) applies to those who are ostensibly saved from exploitation in humanitarian interventions. “The Third World has long been imagined as the double or the other of ‘the West’, now the international community” (p.153). Orford then quotes Jennifer Beard’s postmodern observations, not from any text about a humanitarian intervention where the victims are portrayed as the “others” to be controlled by the enlightened West. Still, Orford concedes that all peoples are supposed to be treated equally under international law. The proof of hypocrisy is that the exploited people are not entitled to their right to self-determination, a hypocricitical form of “phallocentricism” (p.154). Aside from the relevance of the latter postmodern term, it is by no means clear to this reader that self-determination is controversially denied by an intervening power. To the contrary, the international law of self-determination, if it means anything, means that basic human rights need to be provided by a host government or occupying power. There is no right to ethnic secession or independence, contra Orford, except for colonies. Orford considers decolonization meaningless for the Third World unless every major ethnic group is legally entitled to its own state and freed from the capitalist system.
Orford is one of the many Australian and other exponents of skeptical postmodernism in international law. Chua (2003) notes that there are more anti-US hate sites on the internet from Australia than in most developed countries, including many that asserted that the US deserved the attacks on September 11. Perhaps, Orford objects to her own government’s support for interventions in East Timor in 1999, Iraq in 2003, and more recently, perhaps, for letting the US prosecute Australian nationals for war crimes in Afghanistan. One could certainly empathize with her disgust at the Australian tolerance for the Indonesian annexation of East Timor and its subsequent genocide there. However, the Australians in 1999 were heroes, and Orford should not have any doubts about how they prevented further genocide and facilitated self-determination expressed for independence in the UN managed plebiscite.
On East Timor, she argues, “In the months following the intervention, critics were to argue that the reconstruction of East Timor was providing an opportunity for massive foreign direct investment . . . a democratically elected government would rely more on its own people’s resources and traditions, and would therefore put the breaks on the massive influx of foreign capital” (p.26). The problem is that a democratic government might not chose to put on the breaks, in part because it would likely attempt to attract as much foreign investment as possible. This is, in fact, what the democratically elected government that took power after independence chose to continue doing. While it might be argued that the delay in the handover to independence led to less autonomy, it is probable that the new government was not ready right away to take power, and a delay of two years was quite reasonable for a twice-colonized, genocidal regime.
Skeptics cited by Orford (e.g., Berman 1998) criticize current international law [*370] jurisprudence through the deconstruction of dominant discourses, contending that they hide the political motivations of those in power to exclude liberated groups seeking real sovereignty. One issue is that postmodernism is not social science, but an interdisciplinary humanities project. There are no testable hypotheses. Indeed, the critique purports to read assumptions and other hidden agendas without any necessity to prove their validity or offer better alternatives. The response is that the critics of critical theory do not provide relevant data either. Orford also ignores the advocacy of a post-Westphalian system by many liberal scholars, who advocate humanitarian intervention. Such cosmopolitans like Richard Falk, who inveighs against globalization, militarism and presents many other arguments about the debasement of international law, nonetheless support post-Westphalian adaptations of international law, including humanitarian intervention. Orford also adopts a number of jargon-laden and metaphorical, feminist arguments. She contends that the US and the UN are like “man and wife,” though any observer would say that such a marriage is rather estranged.
Hence, Orford’s conclusion is based on the assumption that neo-colonialism produces results (e.g., favoring global capital) that she does not like, leading her to posit that “post-conflict reconstruction in places such as Bosnia-Herzogovina and East Timor mirrors the way in which the international community supported colonialism in earlier periods” (p.26). She blames the continuation of neo-colonial policies on the dominance of global capitalist institutions. “Post-conflict reconstruction carried out under the auspices of international financial institutions is often concerned to create a secure environment in which foreign investment can produce profits for the shareholders of multinational and foreign corporations, free of the kinds of investment constraints that were the product of the efforts of decolonised states to create a new international economic order during the 1970s” (p.27). The problem with such anti-globalization arguments, like so much in this book, is the completely intentional omission of any preferred substitute policy.
For those concerned with parochial interpretivism, human rights are just a positivist form of status quo domination. For others, particularly those suffering under various forms of autocracy, human rights are to be greatly desired. If we consider human rights to be justice, following Aristotle, as opposed to mere legal forms of discrimination, we insist that human rights protection value incorporating more and more law in predictable, positive form. This is the hallmark of the democratization of domestic and international society, but requires coercion for enforcement of those rights.
Human rights is not a new idea, but is derived from Western sources; to that extent, they are relative to time and geography. Yet, they are universal because all states, over time, should develop protections of individuals and groups from undeniably universally perceived harms, the right to life and from torture and rape among them. Some rights are non-derogable and others are—on cultural grounds and [*371] other reasonable particularities, among them local institutional means of implementation. Only states can protect rights. How to reconcile the self-enforcing role of states with interests and motives of their own merits full scholarly consideration. This challenge should not be cavalierly dismissed as delegitimating. Thus, as Donnelly has suggested, “Human rights are, to use an appropriately paradoxical phrase, relatively universal” (Donnelly 1989, p.124).
Orford and other legal critics of humanitarian intervention have deepened our understanding of the biases inherent in these legal processes. Yet, they overlook that the difficult struggle to establish legal supremacy is a political process. As such, legal neutrality is neither possible nor desirable. The human rights system is not autonomous, as the laws should be in functioning systems. However, human rights depend upon functional if imperfect institutions, consensus and enforcement. Thus, we are left with a dilemma. These new legal critiques underscore shortcomings, but they are less successful in suggesting remedies. The challenge is to do both.
As former Nuremberg prosecutor and ever-eager octogenarian, Benjamin Ferencz, has urged, in response to a comment by Professor Alfred Rubin during the Opening Session of the International Law Weekend in New York on November 4, 1999,
Beware of delusion, I would agree. But without enthusiasm, you are not going to make any progress. You have seen and heard about the difficulties of legitimacy of power and enforcement. If you don’t have enthusiasm, you are going to go backwards and not forwards. You have got to have hope in order to raise the energy to do the impossible things that need to be done. And of course there are defects in all things. There is no instant evolution, and no painless revolution. But without enthusiasm, you’ll have nothing.
Deconstructing human rights law takes the skeptics’ eyes off the ball, which is that of developing methods, norms, and institutions for stopping murder, torture, rape, and other egregious violations of human rights. If morals and values are relativized and knowledge of good and evil cannot be “truthfully” arrived at, then the human rights project is no longer possible, and a sense of moral ambivalence concerning rectifying human rights results. Peggy Noonan (2000) suggested, “Ambivalent men do not win the presidency.” Similarly, ambivalent legal scholars do not take action or rally the troops to stop human rights violations. They lack what Vaclav Havel (1999, p.59) calls “the imperative of human judgment.”
To take one recent, but hardly noticed example, resulting from intellectual apathy, the US and France have not only overlooked the Rwandan government perpetrate genocide in 1994, but watched from the sidelines between 1998 and 2002, while war in the East of the Republic of Congo killed some three million. More died every day in eastern Congo than died in the Sept. 11, 2001, terrorist attack in the US. The UN finally decided in the spring of 2003 to intervene to try to bring to an end this complex, devastating, and seemingly intractable war. However, one had heard very little from postmodern critics about stopping the war in eastern Congo, or since. The topic is not mentioned by Orford. While that peace agreement has [*372] not lasted, there remains a clear need for institutions to protect human rights against the existing militias and paramilitary forces. Short of UN involvement, even more millions would have died. And, few in the academy have paid any heed to this crazy war, resulting in part from the genocide a decade earlier in Rwanda.
Orford’s book finds a spurious correlation—the mere fact that foreigners are intervening will mean that all the negative consequences of globalization, market developments, and military alliances will harm the interests of those who find themselves the hosts to intervention. While undoubtedly, some of these costs occur in some interventions, Orford makes no effort to compare the consequences in any systematic way. Nonetheless, even if this were true, is that sufficient reason not to intervene in Eastern Congo? Would Western companies make life worse there than have the militias over the past six years?
In 2003 in Eastern Congo, unlike in Iraq the, the UN orchestrated a multilateral humanitarian intervention, which was not imperalist. The chances that unilateral capitalism are less likely to be imposed—an issue stressed by Orford, but seems beside the point. For Orford, the UN is just a handmaiden of the US and not worthy of serious analytic distinctions. Such an attitude, so at odds with international law, is the kind of conclusion that spurs the apathy toward the war in the Eastern Congo even today, a year after the UN Security Council belatedly authorized a humanitarian intervention there. The problem, alas, is not too much humanitarian intervention, but too little.
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Copyright 2004 by the author, Henry F. Carey.