Unauthorised Humanitarian Interventions in World Politics: An Assessment of Their Impact on International Society [1st ed.] 9783658321789, 9783658321796

Table of contents :
Front Matter ....Pages i-xx
Introduction (Christian Pohlmann)....Pages 1-9
English School as Theoretical Paradigm for the Analysis of Humanitarian Interventions (Christian Pohlmann)....Pages 11-26
The Humanitarian Intervention Debate (State of the Art) (Christian Pohlmann)....Pages 27-45
Humanitarian Intervention: A Non-Normative and Analytical Definition (Christian Pohlmann)....Pages 47-63
Impact Theorems: Concretising the Solidarism-Pluralism Debate on HI (Christian Pohlmann)....Pages 65-78
A Systematic Case Pre-Selection (Christian Pohlmann)....Pages 79-88
Humanitarian Interventions in Contemporary History (1946–2005) (Christian Pohlmann)....Pages 89-152
Operationalisation and Research Design (Christian Pohlmann)....Pages 153-168
Short of Great Power Politics, Short of Impact: The UHIs in the Cold War (Christian Pohlmann)....Pages 169-178
The Benefit of Being on One’s Own: The Impact of ECOWAS’ UHI in Liberia (Christian Pohlmann)....Pages 179-195
The Coerced Great Power Concert: The Impact of NATO’s UHI in Kosovo (Christian Pohlmann)....Pages 197-217
The Tale of Opened Floodgates: Comparing and Explaining the Impact of UHIs on International and Regional Order (Christian Pohlmann)....Pages 219-240
Human Rights are an Inelastic Regime: Comparing and Explaining the Impact of UHIs on Human Rights (Christian Pohlmann)....Pages 241-246
UHI-Impact Theory and Implications for the Understanding of International Society (Christian Pohlmann)....Pages 247-261
Conclusion (Christian Pohlmann)....Pages 263-273
Back Matter ....Pages 275-296

Citation preview

Globale Gesellschaft und internationale Beziehungen

Christian Pohlmann

Unauthorised Humanitarian Interventions in World Politics An Assessment of Their Impact on International Society

Globale Gesellschaft und internationale Beziehungen Series Editor Thomas Jäger, Köln, Germany

More information about this series at http://www.springer.com/series/12384

Christian Pohlmann

Unauthorised Humanitarian Interventions in World Politics An Assessment of Their Impact on International Society

Christian Pohlmann Fakultät für Gesellschaftswissenschaften Universität Duisburg-Essen Duisburg, Germany Diese Arbeit wurde von der Fakultät für Gesellschaftswissenschaften der Universität Duisburg-Essen als Dissertation zur Erlangung des Doktorgrades (Dr. rer. pol.) genehmigt. Name der Gutachter: 1. Prof. Dr. Tobias Debiel 2. PD Dr. Daniel Lambach Tag der Disputation: 13.08.2020

ISSN 2626-2339 ISSN 2626-2347 (electronic) Globale Gesellschaft und internationale Beziehungen ISBN 978-3-658-32178-9 ISBN 978-3-658-32179-6 (eBook) https://doi.org/10.1007/978-3-658-32179-6 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Responsible Editor: Stefanie Eggert This Springer VS imprint is published by the registered company Springer Fachmedien Wiesbaden GmbH part of Springer Nature. The registered company address is: Abraham-Lincoln-Str. 46, 65189 Wiesbaden, Germany

Acknowledgements

This dissertation has matured over several years. I guess the same is true for me as well. Over the years there have been many people who inspired me, supported my project and provided guidance towards the end of this journey. First of all, I want to thank my supervisor, Prof. Dr. Tobias Debiel. His support during the work on my thesis and especially in my academic career as lecturer at the Institute of Political Science at the University of Duisburg-Essen has provided me with a secure basis on which I was able to write this thesis. I am very grateful for the continuously help with the countless questions, which appeared with almost every new idea or page. Likewise, and almost since the beginning of my project, PD Dr. Daniel Lambach, has been a second pillar; enriching my ideas and arguments, while helping me to keep focus on the guiding thread of my research. A focus that is necessary at an intellectually diversified academic home as the Institute of Political Science in Duisburg is. In its first years the thesis could not have been possible without the support of the Friedrich-Naumann-Stiftung für die Freiheit with funds of the German Federal Ministry of Education and Research. Further, several conferences, especially within the English School of International Relations, have given me inspirations for my work and been a source of feedback to early papers and draft chapters. Among those I want to highlight the PhD students workshops at the Department of Political Science at Aarhus University, the doctoral student workshop at the University of Bristol, and the frequent joint doctoral student workshops of the Institutes for Development and Peace as well as of Political Science of the University of Duisburg-Essen, the Faculty of Social Sciences and Cultural Studies of the Hochschule Düsseldorf, University of Applied Science, and the Institute of Social Sciences of the Heinrich-Heine University of Düsseldorf.

v

vi

Acknowledgements

Numerous fellow scholars contributed with their feedbacks, inspirations and suggestions to the success of this thesis: Markus Bayer, Felix S. Bethke, Corinne Heaven, Christof Hartmann, Dorte Hühnert, Kai Koddenbrock, Tonny Brems Knudsen, Aletta Mondré, Holger Niemann, Henrik Schillinger, Georg Sørensen, Arne Sönnichsen, Elena Sondermann, Cornelia Ulbert, and Carmen Wunderlich. I am very thankful for the proof-reading and corrections given by Martin Grabmann, Lina Liedlbauer, Anna-Lea Pietsch, Lisa Scholz, Oliver Schwarz, and Manuel Wilmanns. At the end of this journey I would not have found the time necessary for the finalisation, would there not have been colleagues that stand in for my jobs outside of the academic work. I especially want to thank Ralph Bombis, Tamer Kandemir and Peter Schittkowski for the collegial support. I am as well obliged to gratitude to the brethren at the Benedictine monastery of Kornelimünster, who offered me a haven from the noise of life to write down the main chapters of this thesis. Finally, I am deeply grateful to my wife Svenja. I know that she had to make sacrifices for almost two years and, nevertheless, kept on helping me to complete this stage in my academic life. With this thesis printed that phase has come to an end. In February 2020

Christian Pohlmann

Contents

1

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2

English School as Theoretical Paradigm for the Analysis of Humanitarian Interventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 International Society Theory: The Fundament of Solidarism and Pluralism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 The Solidarism-Pluralism Debate . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 The Theoretical Fundaments of the HI Debate (Chapter Summary) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3

4

The Humanitarian Intervention Debate (State of the Art) . . . . . . . . 3.1 Grotius and His Heirs: The Major Contributors to the HI Debate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 From the HI Debate to the R2P Debate: Scholars Making Politics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 Leftovers: Humanitarian Intervention in IR Theory and International law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4 Abuse, Moral Hazard and Imperialism: Humanitarian Intervention’s Dark Side . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5 Framing the Humanitarian Intervention Debate (Chapter Summary) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Humanitarian Intervention: A Non-Normative and Analytical Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 What is Humanitarian? Differing Views According to Motivation and Outcome . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 11 11 22 25 27 28 30 38 40 44 47 49

vii

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Contents

4.2 4.3 4.4 4.5 4.6 4.7 4.8 5

6

Armed Interferences: UNGAR 3314 and a Narrow Understanding of Intervention . . . . . . . . . . . . . . . . . . . . . . . . . . . . Infringement on the Principle of Sovereignty: The Prerogative of Invitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Massive Humanitarian Emergencies: The Shock of Mankind’s Conscience . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Humanitarian Motivation: The Interpretative Way . . . . . . . . . . . UNSC as the Only ‘Competent Body’: Infringement on the Principle of Non-Intervention . . . . . . . . . . . . . . . . . . . . . . Positive Relief Effect: When the Outcome Justifies the Means . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Definition of Humanitarian Intervention (Chapter Summary) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Impact Theorems: Concretising the Solidarism-Pluralism Debate on HI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1 The Value Decay Cascade: Abusing Humanitarian Motivation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 Eclipsing the Security Council: The Impact of UHI’s on the Central Secondary Institution . . . . . . . . . . . . . . . . . . . . . . . 5.3 Positive-Progressive Impact by UHIs? The Stick-and-Carrot Approach and the Re-Empowering of the UNSC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4 Impact Theorems as Fundament for the Operationalisation (Chapter Summary) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A Systematic Case Pre-Selection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1 Approach and Data Sets for the Pre-Selection . . . . . . . . . . . . . . 6.2 International Military Intervention Data Set . . . . . . . . . . . . . . . . 6.3 Major Episodes of Political Violence Data Set . . . . . . . . . . . . . . 6.4 Case Pre-Selection Step 1: Combined Military Interventions After Major Episodes of Political Violence Data Set . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5 Case Pre-Selection Step 2: Possible Humanitarian Interventions Data Set . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.6 Identifying Possible Humanitarian Interventions (Chapter Summary) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

51 53 55 58 59 61 62 65 67 72

75 77 79 80 82 83

85 86 87

Contents

7

8

Humanitarian Interventions in Contemporary History (1946– 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1 Congo Crisis (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2 Syrian Intervention in Jordan During Black September (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3 Indo-Pakistani War (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4 Interventions in the Lebanese Civil War (1976/1982) . . . . . . . . 7.5 Vietnamese-Cambodian War (1978) . . . . . . . . . . . . . . . . . . . . . . . 7.6 Uganda-Tanzania War (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.7 India’s Assistance in the Sri Lankan Civil War (1987) . . . . . . . 7.8 The Liberian Civil War and ECOWAS’ Intervention (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.9 The Gulf War and International Interventions in Iraq in the 1990s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10 Bosnian War (1992 & 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11 Somali Civil War (1992 & 1993) . . . . . . . . . . . . . . . . . . . . . . . . . 7.12 Rwandan Genocide (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.13 The First and Second Congo War (1996–2003) . . . . . . . . . . . . . 7.14 The Sierra Leonean Civil War and Its Assistance Missions (1997–2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.15 Kosovo War (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.16 East Timorese Independence and the Australian-led Intervention (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.17 The Burundian Civil War (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.18 The Entirety of Unauthorised Humanitarian Interventions (Chapter Summary) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Operationalisation and Research Design . . . . . . . . . . . . . . . . . . . . . . . 8.1 The Previous Research Process . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2 Methodological Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3 Case Selection and Time Frame for the Case Studies . . . . . . . . 8.4 Operationalisation: Subsidiary Research Questions and Indicators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.5 Research Design: The Structure of the Empirical Analysis . . . 8.6 Empirical Fundament: Data and Material Selection . . . . . . . . . . 8.7 Operationalisation and Research Design (Chapter Summary) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

ix

89 92 94 97 102 109 112 117 120 125 128 129 131 133 137 142 146 148 149 153 153 155 156 158 162 163 167

x

9

Contents

Short of Great Power Politics, Short of Impact: The UHIs in the Cold War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1 Case Descriptions: East Pakistan 1971, Lebanon 1976, Cambodia 1978 & Uganda 1979 . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2 Impact on International Order: Statistical Findings and Assessment in Literature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.3 Impact on Human Rights: Statistical Findings . . . . . . . . . . . . . . 9.4 Insignificant and Negligible: UHIs in the Cold War (Chapter Summary) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

10 The Benefit of Being on One’s Own: The Impact of ECOWAS’ UHI in Liberia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.1 Case Description: Liberia 1990 . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2 Impact on International Order: Statistical Findings . . . . . . . . . . 10.3 Impact on International Order: Assessment in Literature . . . . . 10.4 Impact on Human Rights: Statistical Findings . . . . . . . . . . . . . . 10.5 Impact on Human Rights: Assessment in Literature . . . . . . . . . 10.6 Hazard-Free Within Regional Communities: UHI by ECOWAS (Chapter Summary) . . . . . . . . . . . . . . . . . . . . . . . . . 11 The Coerced Great Power Concert: The Impact of NATO’s UHI in Kosovo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.1 Case Description: Kosovo 1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.2 Impact on International Order: Statistical Findings . . . . . . . . . . 11.3 Impact on International Order: Assessment in Literature . . . . . 11.4 Impact on Human Rights: Statistical Findings . . . . . . . . . . . . . . 11.5 Impact on Human Rights: Assessment in Literature . . . . . . . . . 11.6 Using the Outside Option, Once-in-a-Lifetime: UHI by NATO (Chapter Summary) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 The Tale of Opened Floodgates: Comparing and Explaining the Impact of UHIs on International and Regional Order . . . . . . . . 12.1 Comparing the Impact of UHIs on International and Regional Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.2 The Legitimate Body: UNSC and International Security . . . . . 12.3 World’s Elite Pact: UNSC as Great Power Instrument? . . . . . . 12.4 From Kosovo via Libya to Syria: The State of the R2P . . . . . . 12.5 Regional Communities and Great Powers: A Shortcut to Humanitarian Interventions? . . . . . . . . . . . . . . . . . . . . . . . . . . .

169 170 171 175 177 179 179 180 185 190 193 194 197 197 198 201 211 214 216 219 219 222 228 235 237

Contents

12.6 The Impact of Previous UHIs on the UNSC and International Order (Chapter Summary) . . . . . . . . . . . . . . . . 13 Human Rights are an Inelastic Regime: Comparing and Explaining the Impact of UHIs on Human Rights . . . . . . . . . . . 13.1 Findings for Human Rights Commitment and Compliance . . . 13.2 UHIs’ Impact on Human Rights Commitment . . . . . . . . . . . . . . 13.3 UHIs’ Impact on Human Rights Compliance . . . . . . . . . . . . . . . 13.4 The Impact of Previous UHIs on Human Rights (Chapter Summary) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

xi

238 241 241 243 244 245

14 UHI-Impact Theory and Implications for the Understanding of International Society . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.1 Theorising the Impact of Unauthorised Humanitarian Interventions on International Order and Human Rights . . . . . . 14.2 Towards a More Solidarist International Society: A Transfer to International Society Theory and Norm Research . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.3 Four Conditionalities for the Impact of UHIs and Their Implications (Chapter Summary) . . . . . . . . . . . . . . . . . . . . . . . . . .

258

15 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

263

Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

275

247 248

253

Abbreviations

acPTS ADF AFDL AFRC AFL AHI AI AMIB AU AwL BRICS CI ClI CNN CoE COW CRC CV ECOMOG ECOWAS EO EROS ES EU

average combined Political Terror Scale Arab Deterrent Force Alliance des Forces Démorcratiques pour la Libération du CongoZaire Armed Forces Revolutionary Council (of Sierra Leone) Armed Forces of Liberia Authorised humanitarian intervention Armed interference African Mission in Burundi African Union Awami League Brazil, Russia, India, China, South Africa Common interest Classical (non-humanitarian) interventions Cable News Network Council of Europe Correlates of War (data set by Meredith R. Sarkees & Frank Wayman, 2010) United Nations Convention on the Rights of the Child Common value ECOWAS Monitoring Group Economic Community of West African States Executive Outcome Eelam Revolutionary Organisation of Students English School of International Relations European Union

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FDP FRY G7 GP HAM HI HM HR HR4 HRCm HRCp HRinIR HRV ICISS ICJ ICTY IGO IMI

INPFL INTERFET IoPoNI IoPoS IPKF IR KVM LNM MAD MEPV MHE MHRVA MNF NAM

Abbreviations

Forcibly Displaced Populations (data set by Monty G. Marshall, 2008) Federal Republic of Yugoslavia Group of Seven Great power Humanitarian assistance mission Humanitarian intervention Humanitarian motivation Human rights Human rights regime ratification ratio (index generated for this thesis) Human rights compliance Human rights commitment Human Rights in International Relations (by Raymond J. Vincent, 1986) Human rights violations International Commission on Intervention and State Sovereignty International Court of Justice International Criminal Tribunal for the former Yugoslavia International governmental organisation International Military Intervention (data set by Frederic S. Pearson & Robert A. Baumann, 1993; updated by Emizet F. Kisangani & Jeffrey Pickering, 2008) Independent National Patriotic Front of Liberia International Force East Timor Infringment on the principle of non-intervention Infringment on the principle of sovereignty Indian Peace-Keeping Force (in the Sri Lankan civil war) International Relations Kosovo Verification Mission Lebanese National Movement Mutual Assistance of Defence (Protocol of ECOWAS) Major Episodes of Political Violence (data set by Monty G. Marshall, 2010) Massive humanitarian emergency Massive human rights violation action (index generated for this thesis) Multinational Force (in the Lebanese civil war) Non-Alignment Movement

Abbreviations

NATO NPFL OAF OAU ONUC OPC OSCE OT P5 PITF PLO PPP PRE PTS R2P RCD RUF SAA SADC SFRY SLA SMC SRQ UHI UK UN UNAMIR I UNAMIR II UNC UNGA UNGAR UNIFIL UNITA UNITAF UNMIL UNOSOM I UNOSOM II UNPROFOR

xv

North Atlantic Treaty Organization National Patriotic Front of Liberia Operation Allied Force (in the Kosovo conflict) Organisation of African Unity Opération des Nations Unies au Congo Operation Provide Comfort Organization for Security and Co-operation in Europe Operation Turquoise Permanent five members of the UNSC Political Instability Task Force (data set by Monty G. Marshall, Ted R. Gurr & Barbara Harff, 2012) Palestine Liberation Organization Pakistan People Party Positive relief effect (on a massive humanitarian emergency) Political Terror Scale (data set by Mark Gibney et al., 2019) Responsibility to Protect Congolese Democratic Movement Revolutionary United Front (in the Sierra Leonean civil war) Stabilisation and Association Agreement Southern African Development Community Socialist Federal Republic of Yugoslavia Sierra Leone Army Standing Mediation Committee (of ECOWAS) Subsidiary research question Unauthorised humanitarian intervention United Kingdom United Nations 1st United Nations Assistance Mission in Rwanda 2nd United Nations Assistance Mission in Rwanda Charter of the United Nations United Nations General Assembly United Nations General Assembly Resolution United Nations Interim Force in Lebanon National Union for the Total Independence of Angola Unified Task Force United Nations Mission in Liberia 1st United Nations Operation in Somalia 2nd United Nations Operation in Somalia United Nations Protection Force

xvi

UNSC UNSCR UNSG US USA

Abbreviations

United United United United United

Nations Security Council Nations Security Council Resolution Nations Secretary General States (of America) States of America

List of Figures

Figure 7.1 Figure 9.1 Figure 10.1 Figure 11.1 Figure 11.2

Cases of humanitarian assistance missions and humanitarian interventions by year . . . . . . . . . . . . . . . . . . . . Wars and peace operations within 5 years after onset in the Cold War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Wars and UN peace operations within 5 years after onset (Liberia 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Wars and UN peace operations within 5 years after onset (Kosovo 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Active civil wars & their consideration by UNSCRs per year, 1990–2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

150 172 182 199 202

xvii

List of Tables

Table 7.1 Table Table Table Table Table Table Table Table Table Table Table Table Table Table Table Table Table Table

7.2 7.3 7.4 7.5 7.6 7.7 7.8 7.9 7.10 7.11 7.12 7.13 7.14 7.15 7.16 7.17 7.18 7.19

Table 8.1 Table 8.2

Intervention types by criteria of unauthorised humanitarian interventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . UHI-criteria summary for Congo (1960) . . . . . . . . . . . . . . . . UHI-criteria summary for Jordan (1970) . . . . . . . . . . . . . . . . UHI-criteria summary for East Pakistan (1971) . . . . . . . . . . . UHI-criteria summary for Lebanon (1976/1982) . . . . . . . . . . UHI-criteria summary for Cambodia (1978) . . . . . . . . . . . . . UHI-criteria summary for Uganda (1979) . . . . . . . . . . . . . . . . UHI-criteria summary for Sri Lanka (1987) . . . . . . . . . . . . . . UHI-criteria summary for Liberia (1990) . . . . . . . . . . . . . . . . UHI-criteria summary for Iraq (1991–1997) . . . . . . . . . . . . . UHI-criteria summary for Bosnia (1992 & 1993) . . . . . . . . . UHI-criteria summary for Somalia (1992 & 1993) . . . . . . . . UHI-criteria summary for Rwanda (1994) . . . . . . . . . . . . . . . UHI-criteria summary for Congo (1996–2003) . . . . . . . . . . . UHI-criteria summary for Sierra Leone (1997–2000) . . . . . . UHI-criteria summary for Kosovo (1999) . . . . . . . . . . . . . . . . UHI-criteria summary for East Timor (1999) . . . . . . . . . . . . . UHI-criteria summary for Burundi (2001) . . . . . . . . . . . . . . . Input and outcome-related categorisation of unauthorised humanitarian interventions . . . . . . . . . . . . . . . . . Unauthorised humanitarian interventions according to the case selection criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Selected theorems categorised by theoretical origin and focus on international order or human rights . . . . . . . . . . . . .

91 95 97 102 110 113 117 120 124 128 130 131 132 136 141 147 148 149 152 157 159

xix

xx

List of Tables

Table 8.3 Table 8.4 Table 9.1 Table 9.2 Table Table Table Table

9.3 9.4 9.5 10.1

Table Table Table Table

10.2 10.3 10.4 11.1

Table Table Table Table Table Table Table

11.2 11.3 11.4 11.5 14.1 14.2 14.3

Quantitative data and qualitative material according to the theorems and SRQs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Methodological parameters . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conduct ratio of peace operations within five years of a war (Cold War UHIs) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . MHRVA indices for Cambodia (1978) and Uganda (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . HR4 and acPTS indices for Uganda (1979) . . . . . . . . . . . . . . HR4 index for Lebanon (1976) . . . . . . . . . . . . . . . . . . . . . . . . Results of the case studies for the four Cold War UHIs . . . . Conduct ratio of UN peace operations within five years of a war (Liberia 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . MHRVA indices for Liberia (1990) . . . . . . . . . . . . . . . . . . . . . HR4 and acPTS indices for Liberia (1990) . . . . . . . . . . . . . . Results of the case study for Liberia (1990) . . . . . . . . . . . . . . Conduct ratio of UN peace operations within five years of a war (Kosovo 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . MHRVA indices for Kosovo (1999) . . . . . . . . . . . . . . . . . . . . Unadjusted HR4 index for Kosovo 1999 . . . . . . . . . . . . . . . . HR4 and acPTS indices for Kosovo (1999) . . . . . . . . . . . . . . Results of the case study for Kosovo (1999) . . . . . . . . . . . . . UHI-impact on the three levels of international society . . . . The legality-legitimacy nexus . . . . . . . . . . . . . . . . . . . . . . . . . . Impact conditionality of humanitarian interventions . . . . . . .

166 167 173 174 176 177 178 181 183 191 195 198 200 212 213 217 250 257 260

1

Introduction

“If a Man does not infest my Country, but is only vexatious to his own; tho’he is at a Distance from my Nation, yet if he disturb his own; so great a Depravity of Mind has cut him off from human Society, and makes him to me, and all the World, a Foe”. Lucius Annaeus Seneca, cited in Grotius 2005: 1023f

The question if sovereigns should engage in situations where rights, freedom and lives of strangers are at risk has been a long-lasting issue within the field of International Relations and is perhaps the most crucial one in just war theory. For sovereigns today it is still as important as it was in Seneca’s time. Yet, its meaning shifted over time. In the Roman Empire this idea was expressed by civilising barbarians, under Spaniards Indians were proselytised and Napoleon’s aim was to liberate the people of Europe. Throughout history world leaders were engaged in ‘saving’ strangers. Today, one might say that we take the meaning of saving lives more seriously: NATO’s intervention in Kosovo was perhaps, when taking a post-realistic perspective, a more humanitarian moment than it had been in previous times. Although international society had to focus more on the classic inter-state stability during the Cold War, than on the maintenance of human rights, in the 1970s and 1980s the former just war discourse developed to a debate on the moral, legal and normative foundations of humanitarian interventions (HI). As we will see, the outcome of this debate has been a solid base for the condensed academic development that took up speed in the 1990s (especially with Kosovo). After the end of the Cold War, international society had enough capabilities to finally overcome the necessary focus on inter-state stability and reroute its attention to human rights. This decade witnessed—beside all the tragedies that © The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2021 C. Pohlmann, Unauthorised Humanitarian Interventions in World Politics, Globale Gesellschaft und internationale Beziehungen, https://doi.org/10.1007/978-3-658-32179-6_1

1

2

1

Introduction

still occurred—the ability of international society and its major actors to address human rights violations and conduct authorised humanitarian interventions (AHI) in order to save strangers. It reached a milestone with the Kosovo intervention of NATO in 1999; yet, this specific intervention had not been authorised.1 Coinciding with the practice of humanitarian interventions, the emerging academic humanitarian intervention discourse reached a parallel milestone with the establishment of the International Commission on Intervention and State Sovereignty (ICISS) by the Canadian government and its report of September 2001: “The Responsibility to Protect” (R2P). R2P was one of the once-in-a-lifetime occurrences the academic community sometimes witnesses: The former academic discourse transformed via ICISS to a policy advice that had the potential to build a new norm in international society. This R2P concept metamorphosed within six years to a norm, although rudimentary and vulnerable to contestation. Yet, the adaptation of R2P by the world summit 2005 resulted in a different R2P as the ICISS suggested. We shall not belief that it is still used for the same idea as introduced by ICISS. The wish to establish a norm that would legalise an intervention in order to save strangers, a norm that bypasses the difficult terrain of the United Nations Security Council (UNSC) has been cleared from the remaining R2P norm. Therewith, a core of the ICISS’ R2P report has been buried. With regard to the question of humanitarian intervention, the R2P of the ICISS is not the R2P of the United Nations (UN) (Allison 2013b: 68; Bellamy 2008: 623; ibid. 2011a: 31; Hehir 2010b: 225; ibid. 2018: 73 & 78; Hehir & Lang 2016: 205; Menon 2016: 10). R2P had witnessed a pattern more common in economics than in politics: a hostile takeover. The problem of this hostile takeover is that the academic debate in some part had narrowed to the former R2P concept. Had it been a debate on HI in general prior to the ICISS report, it was transformed after 2001 into a debate foremost about R2P. The unwillingness of international society to integrate the entire concept of the R2P—especially the route to HIs without UNSC authorisation, led to a decline in the wider academic debate.2 This thesis will reconnect to this original HI debate. I believe that a significant part of the academic debate has been regrettably neglected by the focus on the R2P. A part that can tell us about the potentials and dangers of humanitarian interventions for international order in general, but also for the gentle task 1A

detailed definition of AHIs and UHIs will be provided in chapter 4. considered the sources for this theory part, I have estimated that the years between 2000 and 2009 have witnessed an academic contribution three times higher than in the following ten years.

2 Having

1

Introduction

3

the idea of humanitarian intervention wants to solve: the maintenance of human rights beyond state sovereignty. Therefore, it is important to pursue the discourse on humanitarian intervention: a discourse about its legality, the possibility for an emerging norm, its practicability, the potential for danger this idea poses for human life, and (in my view most importantly) its impact on international order as well as on human rights, by and large, apart from the specific case. This work shall be a contribution to the HI debate and the last of its abovementioned elements: the question what impact humanitarian interventions have on international order on the one hand and the maintenance of human rights on the other hand. At the current state of the HI debate, I can detect an empiricalanalytical gap when it comes to this question. As will be shown, the argument, which went back and forth between solidarists and pluralists, remained a mere theoretical one and led to an agreement that AHIs are no danger to international order3 (Bellamy 2005a: 33; Buergenthal, Shelton & Stewart 2009: 5; Donnelly 2003: 253; Hehir 2010a: 73; Hurrell 2007: 155 & 184; Jackson 2000: 251f; Knudsen 1999: 79f; Wheeler 2000: 8), but the same question still needs to be empirically-analytically assessed and answered for UHIs. Both arguments towards the impact of UHIs will be presented in subchapter 2.2, yet, for the time being the following two statements shall outline the core argument of both sides. Solidarists think that HIs without the authorisation of the UNSC will be considered a legitimate infringement on the principles of sovereignty and non-intervention. The outcome—saving human lives—will justify the means not only morally but also when it comes to the reaction of opposing actors of the specific intervention. Opposing states will tolerate successful UHIs, in consequence the impact on international order is minor or less. Pluralists on the contrary, see the common ground of international society endangered. Without the authorisation of the UNSC, the ability of states in favour and states opposed to the specific UHI to work peacefully and efficiently together will be weakened. This will be a burden for the maintenance of human rights and particularly problematic concerning the ability of great powers (GPs) to work together. Having both perspectives towards such impacts of UHIs in mind, the general research question is: Which impact have unauthorised humanitarian interventions on international order and human rights? Based on this I will formulate in chapter 8 subsidiary research questions (SRQs) and explain the research design. Besides the core of solidarist and pluralist (theoretical) perspectives on this question, there are almost no specific ideas on what such an impact might look like.

3 One

author still opposed to HIs with an UNSC authorisation is Ayoob (2002: 94).

4

1

Introduction

Most of all the debate remained vague when it comes to narrow theoretical assumptions (theorems). At the end of this theory part, I will, nevertheless, excavate aspects of the HI debate that are useful to formulate theorems and, based on those, subsidiary research questions. Basic Premises Within the English School of International Relations (ES), it is a core understanding that “scholarly integrity” (Jackson 2000: 58) does not mean that academics have to pursue a “value neutrality” (ibid.) in their proceedings. Contrary, it is a common understanding that scholars have their own basic premises towards their research objects. Bull described this understanding as follows: “Nothing could be further from my mind than to suggest that this inquiry is, or could be, ‘value-free’. […] What characterizes a properly academic approach to the study of world politics is not the absence of value premises, but the willingness to state these premises explicitly and to subject them to examination and criticism – to treat one’s value premises as part of the subject.” (Bull 1975: 284)

This idea is somewhat similar to Yanow’s call for ‘reflexivity’ for researchers using an interpretive methodology, which brings an awareness for “the expectations one brings to the field […] and the ways in which these shape what one is surprised by – and, therefore, focusses attention on; […] one’s own background […]; [and] the demographic aspects of one’s being” (Yanow 2009: 436). Consequently, before briefing on the methodological approach of this thesis, I will outline my basic premises. I will do so now briefly, but in more length at the beginning of chapter 5. Within the debate of solidarists and pluralists, I share several concerns of the latter regarding a right to or norm of UHI. The wish of solidarists to save more human lives in massive humanitarian emergencies cannot be neglected, but one has to keep in mind the effects such interventions have on international order. Since a disturbance of international stability limits the ability of its actors (states and IGOs) to maintain human rights, the international order itself is a value that has to be preserved. With regard to international order, I assume the impact of UHIs to be quite severe: Without interstate order no intrastate justice. “[I]f the system of states breaks down because there are many humanitarian interventions […] perhaps this collapse is a desirable thing” (Tesón 2003: 114), would clearly not be a position I can share. Therefore, I align my own basic premises with the pluralist side in the HI debate.

1

Introduction

5

Basic Methodology The debate of humanitarian intervention is the core of the larger solidarismpluralism debate, which itself is especially common in the ES. It seems obvious that the methods used by its scholars are particularly worthwhile to conduct this thesis that is supposed to contribute to the HI debate. Therefore, the methods used in this thesis will be based on the ES methodology. What is the methodology of the ES? It is difficult to describe English School methodology (Finnemore 2001: 509–11; Navari 2009a), but to start with, we can say that its scholars regard international relations (and politics in general) as social science; a science working with an interpretative methodology unlike natural science, which works positivistic. “The English School is a form of classical humanism, whose subject is human conduct. What we are concerned with, in the English School approach, are not technical facts but human relations, and human relations understood of normative standards” (Jackson 2009: 21). ES methodology has, consequently, a focus on the view of statespersons (ibid. 2000: 57; Murphy 1996: 15; Wheeler 2000: 6 & 22f). Applied to my question, this means necessarily to ask for the view of statespersons resp. diplomats on the impact of such interventions or the effect for human rights rather than rely merely on the positivistic measurement of available data. Such a positivistic approach is a useful supplement, but it is not sufficient in itself. As Bull pointed out, both hyper-theoretical approaches as well as mere empirical studies have led to a dead end in the past (Bull 1972: 48–54). Empiricism itself is therefore inadequate as well, because it needs a normative and theoretical root that guides the direction for the conduct of empirical-analytical research. Positivistic supplements can indicate a specific trend. But to depict a social reality (if the social sphere can ever be an absolute reality) it is moreover necessary to pay attention to the perception, the interpretation, and the assumption of statespeople regarding the actual world of international relations and the code of conduct within (Dunne 1998: 61f; Jackson 2000: 22f, 44, 72 & 96; Kellstedt & Whitten 2009: 47–9; Linklater & Suganami 2006: 6f & 18; Navari 2009a: 4 & 8; ibid. 2009b: 41–7; Vincent 1986: 121). A second argument against an over-sophisticated, positivistic method (and terminology) for a contribution to the HI debate is the problem of transfer from theory to practice. Scientists within the field of political science as well as international relations shall have in mind (at least to some point) that we are not working in an ivory tower. Our contributions shall help politicians, diplomats and militaries likewise to determine the pros and cons of specific actions in world politics. It is not helpful in this sense to cipher the language and encode the methods used to analyse, but to describe the research conducted. Such a reader-friendly

6

1

Introduction

proceeding is less difficult to achieve with an interpretative, explanatory approach than with a positivistic one (Jackson 2000: 92–5). It is an easy task to portray what statespeople are saying and perhaps thinking as well. To unveil the rules that let them act and why they think as they do is harder; it takes an interpretative approach to do so. For example: In this study I will set up the theorem that states, which are concerned of being the target of future UHIs, will increase their commitment in the human rights regime by ratifying new treaties. Empirically we might find evidence for such a commitment in the aftermath of interventions. Yet, I might thereby not rule out the possibility of other reasons for this, and hence an equifinality. Correlation or parallelism does not equal causation. Discovering empirical facts does not subsequently lead to the solution of the multi-causality problem. For this, experience is necessary; one has to understand the rules of international politics, the reasoning of statesmen and -women. Positive assessments need to be interpreted; they cannot provide a guaranteed, reliable generalization. At best such findings can tell us that something has happened in the past with a specific degree of possibility. Why that happened remains untold. Interpretation is therefore essential to unveil the reasons for such an outcome (Dunne 1998: 7–9; Finnemore 1996: 159; Jackson 2000: 22f; Linklater & Suganami 2006: 33; Wheeler 2000: 7f). Interpretation that focusses on the beliefs of the broad civil society or even the narrow space of non-governmental actors alone, however, leads to a fallacy; it is necessary to observe the sphere of statespeople, even when they are ‘merely’ representing their people, because they are the ones who are shaping international society. Mankind is not participating in a global direct democracy; the world is not an enhanced Switzerland. We need to pay attention to the actions, the speeches, the thinking, but also the hidden actions, non-actions and the rules of statespeople, which have not necessarily to be repeated in every single speech or even mentioned at all, because they are so fundamental for international politics. The material which I need to derive my results from are: Speeches, statements, official papers, resolutions, declarations, as well as the hidden sphere of international politics, besides mere positivistic data.4 It will be examined through historical analysis, the interpretation of the conduct of states and especially statespersons, diplomats and other actors who influence international politics (Jackson 2000: 26–37; Navari 2009b: 41–7). If those materials have already been analysed and interpreted by fellow peers, their work can be likewise a useful base for this study. 4 At

this point I want to note that the bibliography has been separated in two parts. Official documents (esp. UN-documents) and legal sources can be found in the second section. Books, articles, reports and every other source are listed in the first section.

1

Introduction

7

This thesis will, therefore, be conducted within the methodological pluralism of the English School that embraces historical, interpretative methods primarily, but also esteems ‘foreign’ attempts that come without an addiction to sacrosanct positivistic empiricism (Linklater & Suganami 2006: 87–91; Little 2009: 88–94). Contents The thesis will be structured in four parts with 15 chapters in total. The first part is the theory part to which the introduction belongs. After this introduction with the research question and basic methodology, the theory chapter including an overview of English School theory with focus on those aspects that are relevant for a research project within the HI debate will follow. The solidarism-pluralism debate as step-stone between the ES theory and the HI debate in specific will also be presented at this point. In chapter 3 I offer an insight into the HI debate. The academic debate is quite complex. This goes for the variety of items discussed within it, but also for its development and quite unique interaction with practical international politics. I will start with its main contributors and then cut the minor developments short to the point the HI debate narrowed into the R2P (debate). I, afterwards, take a look on two side-branches that have not focussed on the R2P in specific but remained in the broader, original HI discourse and are necessary to know for this thesis, before summarising the chapter with the contributions to and interactions with IR theory as well as the debate towards international law, which will be followed by the special discussion about abuse, moral hazard and imperialism. I will present in chapter 4 the definition of humanitarian intervention used in this thesis with its criteria of armed interference, infringement on the principle of sovereignty, massive humanitarian emergency (MHE) as just cause, and motivation to mitigate these MHEs. Prior a discussion on how to interpret the term ‘humanitarian’ in humanitarian interventions will be included. This will bring us to the minority opinion of Tesón and Wheeler that the outcome might justify an intervention to be called humanitarian. This criterion, therefore, will be presented in a later section of this chapter after having elaborated the difference between authorised and unauthorised HI, and before coming to the chapter conclusion. In chapter 5, I formulate theorems on possible impacts of UHIs. I will derive those ideas about what might happen in the aftermath of an UHI by elements of the HI debate that have been presented in chapter 3, ES school theory as outlined in chapter 2, and to a not only minor part my own reasoning. Chapter 5 will, in result, be the nucleus by which an operationalisation for the research question can be built later.

8

1

Introduction

The second part of this thesis will include the case-selection and operationalisation. It will contain a solely data-based case pre-selection (chapter 6) and the actual case selection (chapter 7) with the identification of the UHIs in the history of international society based on the criteria elaborated in the definition chapter (4). Due to the necessary timeframe to assess the impact after an UHI the case-selection will end with the year 2005. The identified UHIs in the time from 1946 to 2005 are: East Pakistan (1971), Lebanon (1976), Cambodia (1978), Uganda (1979), Liberia (1990), and Kosovo (1999). The second thesis part concludes with chapter 8. Here, I will lay out the operationalisation of the research question and present the research design, which is based on a structured, focussed comparison and a mixed-method design. The main part of this thesis consists of the chapters 9 to 14. The first three chapters present the statistical data and assessment in literature for the impact on international order and human rights. The four UHIs in the Cold War will be analysed in chapter 9; followed by the UHI in Liberia in chapter 10 and the one in Kosovo in chapter 11. With these chapters an analysis focussed on the individual UHI will be conducted. The result will be the interpretation of the impact on international order and human rights of those six UHIs. The task of the two following chapters will be to abstract from the individual case studies. In chapter 12 I will compare the results of the three analysis chapters. A special, explanatory focus will be directed on the UNSC and the great power concert, as they are the formal and informal bodies in which international order is maintained, stabilised if necessary and altered if applicable. The same will be conducted for human rights in chapter 13; here the explanatory focus is on the theoretical assumptions on human rights commitment and compliance. Finally, I will transfer the results of this study in chapter 14 to a theory on the impact of unauthorised humanitarian interventions as well as discuss the deducible implications for international society resp. ES theory and normative theory. The thesis will conclude with chapter 15, in which I will sum up the previous elaborations, the HI categorisation as undertaken in the case selection part and the analysis, interpretation and theory development as formulated in the main part. Further, I will give a prospect on future research in the debate of humanitarian intervention at the end. In result this thesis shall answer which impact unauthorised humanitarian interventions have on international order as well as on human rights. So far, this would be the fulfilment of the outlook presented here in the introduction. However, I want to go beyond an academic contribution and try to offer an analytical basis for those that have to make hard choices in the future again; when international society will be facing massive humanitarian emergencies and stalemate between

1

Introduction

9

great powers once more; when states are willing to choose the moral option over the legal imperative; when there is the question whether we shall infringe on the principles of sovereignty and non-intervention in order to meet international society’s responsibility to protect human life or not. This work shall contribute to make good choices in such tragic times; decreasing human suffering not only in the short run, but over the long-term as well.

2

English School as Theoretical Paradigm for the Analysis of Humanitarian Interventions

The humanitarian intervention debate is mainly taking place within the solidaristspluralist-debate. The debate between solidarists and pluralists itself belongs to the normative part of the English School of International Relations. To understand the background of the different positions within the HI debate, it is, therefore, advisable to lay out the arguments of solidarists and pluralists as well as the core of their debate and its basic assumptions, which is done best by outlining the theoretical background of the ES itself (Bellamy 2003: 321). The idea of the ES to see the world as an international society with common interests, common rules and common evolved institutions is a somewhat holistic approach to the HI debate.

2.1

International Society Theory: The Fundament of Solidarism and Pluralism

The first English School agenda set up in the 1950s and 1960s focussed on the question how international structure is shaped and maintained. English School theory nowadays rather deals with the question of how international justice interacts with international order and if new or old claims for more justice can be established in international society. Following this sequence, I will present the items of the first ES agenda in this subchapter, before coming to the new ones in the following subchapter.

© The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2021 C. Pohlmann, Unauthorised Humanitarian Interventions in World Politics, Globale Gesellschaft und internationale Beziehungen, https://doi.org/10.1007/978-3-658-32179-6_2

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12

2.1.1

2

English School as Theoretical Paradigm for the Analysis …

International Structure and Normative Assumptions

The basic entities of the international structure these days are states. States are defined as a body which has supremacy about all individuals and entities within their territory and which represents them in interactions with other states. Furthermore, under normal circumstances states hold absolute sovereignty that is in reality more relative and might vary from the normative claim (Bull 2002: 8). Actually, states as such do not constitute any international structure on their own. They have to establish and maintain relations between them, without developing a supreme entity above them. Without relations or contact no structure emerges and with a world-wide supremacy an empire instead of a system of states would develop. Such a fundamental structure is called ‘international system’ and constitutes the first level of international structures (Bull 2002: 9–11; Wight 1991: 1f).1 Contrary to empires, the absence of hegemonies is not necessary for the existence of the international system. A lack of supremacy does not mean that no hierarchy of power with great powers and pariah states at their ends would exist. Moreover, English School theory assumes that there is such a hegemonic differentiation in international system. Nevertheless, it is expressed in terms of a multiplicity of hegemonies, conducted by different, competing great powers, rather than a sophisticated empire or perhaps a system of dominion (Watson 1992: 15f & 313). The second level at the same time is the main area of research of English School theory: international society. It is built upon international system and consolidates the contacts between states. Initial contacts evolve through a process of interests and perhaps value exchange between states. This exchange does not mean that the system of states adopts every interest or value, but that each state reflects as well as respects those of others and act in knowledge of those interests and values, whereby they form a society of states that establishes a set of common interests and values (Wheeler 2000: 24). This ‘formation’ is neither an official act nor a ceremony etc.; it is not visible. It is an evolution that can be unveiled by historians, international lawyers and scholars of our profession among others. An international society exists when a group of states recognises that they are connected to each other through common interests (CIs), which are expressed in

1 Sometimes

the view that an international system can exist in practice is challenged. E.g. Linklater & Suganami point out such positions in the work of James and Wendt (2006: 53).

2.1 International Society Theory: The Fundament of Solidarism …

13

common, reciprocal obligated rules and are implemented and maintained through common institutions (Bull 2002: 13; Bull & Watson 1984: 1). In the light of the current research, it is possible to divide this second level. Such a differentiation separates according to the degree of affinity between states. At the beginning of his magnum opus Bull considered “common interests and perhaps some common values” (Bull 2002: 13) to be necessary for an international society. In his following explanations, however, he almost completely took a pass on common values (CVs) and focussed on CIs instead.2 This may be reasoned within his pluralist view, which he focussed on interests as the engine of international relations rather than values, which are formed by other motives than the maximisation or maintenance of power, profit, security and so on (ibid. 2002: 63f). On the contrary, the modern solidarists of the English School redirect their focus on those other motives, on supranational topics—like human rights, which they concede to have more importance in modern international relations (Linklater & Suganami 2006: 242–6). Although the current international society has not recognised common values (or has at least problems to do so), it is obvious that the ‘old’ European society has been increasingly consolidated through such values into a regional community (Watson 1992: 306–9). The state of current research relativizes Bull in so far, as for an international society merely CIs are necessary, but the recognition of CVs establishes an international community (Brown 2000: 92f; Buzan 2004: 111; Jackson 2000: 127f; Mayall 2000a: 62f; Pohlmann 2008; Stivachtis 2001; Watson 1992: 306–9). The third level of the international structure is not necessarily based on the state as basic entity like the previous levels. According to its tag, world society, it more or less disregards ‘inter’-national relations. It focusses on the interlinking elements of the individual parts in a world of mankind. The basic entities of such a world (pan-national) society are individuals, rather than states (Bull 2002: 19–21; Buzan 1993: 336f). This three and a half level-approach of English School theory is not merely classing international structures, but also aligning scholars according to the normative origin in their research on international relations. Based on the view towards international society resp. international community, as a scholar, you may find yourself to be more in the pluralist or the solidarist field of research. While 2 It

seems that Bull used the idea of common values just as a supplement to common interests. In this manner, Bull talked at the beginning of his famous definition of international society about ‘common interests and common values’. Soon after, he wrote about ‘common interests and perhaps common values’. In the following paragraph, the relation turned over to a ‘common interests or values’ and finally in the further paragraphs on international society the notion of values totally disappeared (Bull: 2002: 13–5).

14

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English School as Theoretical Paradigm for the Analysis …

solidarist are more open to CVs, which transcend the society of states, and will take a focus on international community, whereas, pluralists are more sceptical about such CVs and focus on CIs as well as international society. What advantage does this international society theory bring for the understanding of the HI debate? Focussing on the impact of humanitarian interventions on international order it would not make any sense to adhere to the archetypes of international system or world society theory. In such a case, either the assessment would need to neglect any transnational values, common rules and institutions or ignore national interest driven states. Thus, it is advisable to depart from international society theory including the possibility for international communities. What is quite impossible is to scrutinise HI while neglecting the importance of common interests, common rules and common institutions or the system of states altogether. Before taking a deeper look on the anatomy of international society, I would like to take a short detour on one aspect. ES does not view international structures as fixed in time or space. ES scholars are open for historical change and regional differentiation. Watson’s ‘Evolution of International Society’ is a centrepiece on this matter. His understanding that the integration of a society can be deeper in different part of the worlds or different times of world history might be common to those who are conducting their research under constructivist or liberalist theories of IR. Yet, it clearly distinguishes ES scholars from neo-realist scholars who have less awareness of differences in time or region and the causes of this. It contains an important lesson for the HI debate and this research: It is worthwhile, to take a separate look on different regions and perhaps even different times and eras (Buzan 2014: 14f; Jackson 2000: 13 & 337; Linklater & Suganami 2006: 44 & 53; Watson 1992: 13 & 306–8).

2.1.2

The Anatomy of International Society

International society is an evolved structure. It is not a contract between states. It was not formed at a specific date or time. Nonetheless, I think there are logical steps in the idea of international society, which can help to understand its anatomy: When states (1) establish interstate relations (2) they form an international system. Based on this fundament they recognise common interests (3a), which they express in common rules (4) and implement as well as maintain through

2.1 International Society Theory: The Fundament of Solidarism …

15

common institutions (5) (Bull 2002: 13; Bull & Watson 1984: 1).3 Interests, rules and institutions define an international society. As elaborated above the recognition of common values (3b) followed by the stages 4 and 5 would lead to an international community. While states and the fact of relations as is, does not have to be explained, I will do so for common interests, common rules and common institutions. Examining the history of international relations and the research about this field, rationalists—such as ES scholars as well—conclude three CIs, which are shared by every state: guarantee of sovereignty, pacta sunt servanda and limitation of the use of force (Draper 1990: 193f; Grotius 2005: 85f; Hoffmann 1982: 9; Hölzel 1970: 83; Lauterpacht 1946: 7).4 These three CIs are expressed in “rules of coexistence” (Bull 2002: 66). Yet, Bull acknowledged two further sets of rules; one prior to rules of coexistence and one subordinate to them. Prior to these rules are the “constitutional normative principles of world politics” (ibid.: 65); I will call them ‘constitutive principles of international society’. They constitute that states (and nowadays their established IGOs as well) are the only subjects in world politics as well as that rules and institutions have a binding and not merely an advisable character. Following rules of coexistence are the “rules of co-operation” (ibid.: 67). Those are the rules that are not necessary to maintain international society as is, but a way to conduct a common policy, or better to conduct global (progressive) governance (Ayoob 2002: 81; Jackson 2000: 102; James 1999: 468; Knudsen 2019: 33). For this thesis and under a pluralist perspective the rules of coexistence are of main interest, because the principles of sovereignty and non-intervention fall into this set of rules. Those principles are in a pluralist understanding of humanitarian intervention most vulnerable (Jackson 2000: 17f). Coinciding with this, a principle of responsibility to protect (human beings) has to be subsumed under rules of cooperation, since they are originating out of a CV to protect not only the state itself, but also every human being within it. It is necessary that international society is capable of using the right tools to maintain these rules. English School theory defines these tools as (common) 3 The

term ‘institution’ here has not to be understood in a usual way (e.g. international organisations), but in the ES understanding of institutions, which will be described at a later point. 4 In some cases, rationalists include the restitution of damage and recourse to punishment in case of rule violations as further common interests. In my view, those are not wrong, yet, there will be no sovereignty or pacta sunt servanda without those two coinciding interests. In result, it is appropriate to subsume those common interests under the three at first mentioned ones.

16

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institutions. By institutions in this understanding not positive-legal institutions are meant, as the League of Nations or the UN, but fundamental institutions. In fact, Bull called these entities of international society “pseudo-institutions” (Bull 2002: xxxv). What are described by these are the practices and patterns of behaviour of states in international society. They need to be recognised and practiced by the society of states (Buzan 2004: 181; Knudsen 2019: 28).5 While Bull was offhand about positive-legal institutions, modern ES scholars have supplemented the school’s research focus with a broad study about those in ES terminology called ‘secondary institutions’. Knudsen offered a good understanding on the different functions of fundamental and secondary institutions: “fundamental institutions are ontologically privileged in the sense that they are constitutive of international society as such, [while] international organizations [(secondary institutions)] are important as means and drivers of fundamental institutional change” (Knudsen 2019: 24).6 Modern ES scholars understand institutions as a two-sided medal with the fundamental (original) institutions introduced by Bull and his peers as well as secondary (positive-legal) institutions that have become so familiar in everyday international politics. What are then the (fundamental) institutions? I believe that Bull’s original five institutions are the best starting point to determine these institutions as elaborated by current ES research. But, nevertheless, I would like to discuss briefly possible further institutions, about which there has been a distinct debate (incl. their number and shape) in recent years (Schouenborg 2011: 28). Besides minor differences, quite often sovereignty and non-intervention have been included as further institutions (Buzan 2014: 17, Knudsen 2019: 33–38). In the way that Vincent did, I believe (since both are the essence of constitutive principles of international society and rules of coexistence) it is not wise to include them in the set of institutions (Vincent 1986: 117). Such an undertaking would blur the border between rules and institutions. A more viable attempt of adding further fundamental institutions has been made by those committed to a more solidarist research focus. It has been rightfully recognised that Bull’s original five institutions are invented out of pluralist perspective. From a solidarist perspective there may be further institutions detectable (Buzan 2006: 79f & 95; Knudsen 2019: 39). While this critique in general is correct, I find the arguments for the offered additional (solidarist) institutions such as “humanitarian intervention, international criminal jurisdiction […], and international trusteeship” (ibid.: 39) not as convincing as to include them in a 5 See 6 See

for further descriptions: Knudsen 2019: 28. for a coinciding interpretation: Friedner Parrat 2019.

2.1 International Society Theory: The Fundament of Solidarism …

17

theoretical basis for this thesis. In my view, such proposed new, solidarist institutions are not fundamental institutions—in the understanding that they will exist throughout international history and world politics cannot be understood without them—as Bull’s original five are. To include such institutions, one would have to differentiate between master and derivative institutions; as is done within the above mentioned institution discourse in ES (Buzan 2004: 182). Yet, I find the advantage by such an overstretched theoretical basis to be not sufficient for this study. Further, the proposed new solidarist institutions derived out of common values are not firmly globally shared or in the case of trusteeship limited to the time of de-colonialization. To be clear, I will not discharge the solidarist critique about the missing solidarist institutions in classical ES theory. The state of the current research about this topic is simply not as convincing as to include those proposed new institutions at this time. I believe that such solidarist institutions, derived out of the rules of cooperation have to be more general than the proposition as made; likely solidarist institutions could be international trade (which is not within the scope of this work) or international justice resp. human rights. Consequently, for this theoretical fundament I will stick with the original five institutions of international society as presented by Bull: war, (the concert of) great powers, balance of power, diplomacy and international law (Bull 2002: 97–222).

2.1.3

The Five Institutions of International Society and the HI-Debate

This work will base on the five institutions as elaborated in Bull’s ‘The Anarchical Society’. An outline of these five institutions, including their function, limits and interaction will be presented now; yet, I will reduce this to those aspects necessary for this work. The best way to get a deeper understanding would be to study Part 2 of Bull’s ‘The Anarchical Society’. Further, in the following section I will refrain from connecting each aspect with the HI debate, since most of it should become clear without an explicit explanation or will be done so in chapter 5.

War The first and oldest institution is war which exists since the beginning of mankind. The structure of sovereign states in the absence of a supreme power is always dependent on war as ultima ratio when enforcing order and peace. Only a world executive would possess the capabilities to enforce order and justice without war.

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Although actions of such an executive would come close to wars in the international system, they would be nothing else than police measures conducted with air campaigns and artillery barrage. There is no international structure without war and without an international structure no war is necessary (Bull 2002: 23f & 181; Howard 1992a: 11; Howard 1992b: 25). The functions of war can be separated into those for states, those for the international structure at large and those for international society. For a state, war is an imposition, since it is capable of influencing opposing states to its own end. Thereby, war serves as an instrument of power maintenance and power expansion. In the international system again, it has the function of natural change. Here, it is necessary to mitigate tensions that exist in parts of the system. In this type of international structure war is most powerful. With the progress of socialisation in international society war becomes less important. In international society balance of power and international law are more responsible for change and evolution as well as maintenance and order, although war does not lose its importance at whole. It turns into a mere ultima ratio, an emergency or support institution, when balance of power and international law fail to mitigate tensions. For international society war is the continuation of diplomacy with other means (Bull 2002: 180f). Nonetheless, at the same time war is a threat for international society. It is not only a rational instrument for the maintenance of the international order, but also an instrument for the realisation of national interests, which are normally shortranged and directed against order. Hence, in the view of international society war is an ambivalent institution, on the one hand a necessity and a danger on the other hand. Resulting from this, the society of states acknowledges the common interest to contain war and establish appropriate rules—especially the principle of non-intervention (ibid.: 181).

Great Powers The second institution of international society is the concert of great powers. Two characteristics define great powers in international structures. First, great powers never exist alone. If they did, they would not be a great power, but a dominion or an empire. Second, for great powers it traditionally was necessary to possess a large military capability; having the ability to deploy intervention forces unilateral world-wide one might even call them superpowers. Nowadays, this would mean that they need to be a nuclear power. This second condition is challenged today. It is controversially discussed whether a large economic or cultural capability in an increasing, peaceful globalised international society would also be sufficient as entrance card for the club of great powers (ibid.: 194–6).

2.1 International Society Theory: The Fundament of Solidarism …

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Great powers are distinguished by a third characteristic. They are accepted by other minor powers and by their own leaders as states with special capabilities. This may sound quite obvious, but it underlines that they do not only possess special capabilities in their exercise of power and in this way for the determination of international politics. Moreover, the positions of great powers to detailed questions of international relations will be assigned a higher weight, which other states do not possess. In doing so, great powers are resp. their joint concert is erected to the level of an institution. International society recognises the potential of great powers to serve as an instrument for the maintenance of international order, whereby exceptional rights and duties are associated to them, which might be claimed by society (ibid.: 196f; Hurrell 2007: 282f; Jackson 2000: 173). In the absence of a supreme power, great powers are assigned the role of an auxiliary executive. With their military capabilities they possess a leverage which they can use for the maintenance of international order and therewith for the enforcement of international law and the balance of power (Bull 2002: 200–2 & 206f; Hurrell 2007: 34 & 51; Jackson 2000: 201; Wheeler & Dunne 1996: 96). Surely, this function for the international order is only one possible way of utilising their capabilities and their role. National interests will always influence the exercise of virtual executive power (Bull 2002: 102–4 & 200; Jackson 2000: 115).

Balance of Power The third institution is the balance of power between states. Until today, the definition of the Swiss scholar of International Law Emer de Vattel remains valid. According to de Vattel, balance of power is a condition within international relations where no power possesses a supreme position where it “can lay down the law to others” (de Vattel 1916: 251). Balance of power holds three functions for international order. First, it prevents the establishment of a supreme dominion or universal empire, which could result from the unrestrained enlargement of the leading great power. Second, it protects the sovereignty of states by containing the expansion of great and regional powers. And finally, it ensures the functionality of the other four instruments, through the preservation of an international, non-suzerain order (Bull 2002: 102 & 111f).7

7 It

is a paradox of this institution that it is only achievable (with exceptions) through an infringement on other institutions, as diplomacy and international law, because balance of power is sometimes restored through violent measures. Although balance of power seems to be an anachronistic institution that conflicts with international society, critics of balance

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A criticism is the influence of national interests in maintaining balance of power (ibid.: 102–4). The existence of balance of power to protect international society from shifting to an empire or dominion does not mean that every state seeks for the enlargement of its territory and power. The suggestion of Hobbes, which is that states use all their resources to conduct war and hence ignore the wealth of their economy and people, is a misconception of raison d’état (Hobbes 1996: 105). Nowadays, states need to decide between a more of external power and a more of internal wealth more often. Merely, a nominal rest decides in favour of the first alternative, when jeopardising the second (Bull 2002: 107). Adam Watson called this decision in favour of one’s own wealth and against excessive exercise of power ‘defensive hegemony’. This kind of hegemony is a status-quo approach of great powers on behalf of balance of power. Through such a rational restraint a state secures its power and at the same time escapes from an antihegemonic reflex of international society (Watson 1992: 126f & 313f; Linklater & Suganami 2006: 130).

Diplomacy Diplomacy is the fourth institution. Diplomacy is non-violent interaction, communication between states and perhaps other political entities. This institution arose from the common interest of states to conduct their mutual relations in a peaceful manner (Bull 2002: 157 & 161). The institution of diplomacy has four functions for international society: communication between states, negotiations of conventions, information procurement and mitigation of frictions. Communication between states is the first and most fundamental function of diplomacy. Aside from mere communication, international society benefits from the reduction of mistrust between states, which is according to realist theory the main reason of war. The second function is the negotiation of conventions, agreements and treaties between states. Diplomacy, thereby, is the instrument through which ‘overlapping interests’ can be found and common rules can be established. Thus, these acts of diplomacy prove the existence of common interests and rules, enlarge the canon of common rules and consolidate international society. The prevention of communication interferences through informational procurement constitutes the third function of diplomacy. The acquisition of knowledge by another state diplomacy helps a state to consolidate and enlarge power, since an information advantage is also a power advantage. It also serves international society by the detection of endeavours to change of power need to address the question how to contracept imperialistic megalomaniacs without the use of force and infringement on sovereignty (Bull 2002: 102–5).

2.1 International Society Theory: The Fundament of Solidarism …

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the status-quo and therewith of interferences with the international order. Lastly, because of its natural diplomatic ways of conduct diplomacy mitigates international frictions. Diplomacy stresses the similarities and places special emphasis on peaceful solutions. As war is the business of soldiers, peace is the business of diplomats (ibid.: 163–5; Butterfield 1953: 74f; Herz 1974: 39; Vincent 1986: 132).

International Law The fifth and final institution is international law, which is established through the common rules of international society. International law is a corpus of rules that shall bring order to international relations and for this reason has been established by the society of states as interstate-binding law (Bull 2002: 122). This institution has three functions for international society: the declaration of the structural fundaments of international society, the codification of the legal fundaments of coexistence and co-operation as well as the establishment of conformity with those common rules. In fact, this institution inhabits (unlike the other institutions) no instrument or procedure. International law merely is a codex of common rules. It serves as a method of self-identification and as a manual for its members. Beyond this scope only the principle of reciprocity can be found, according to which the members of society recognise and practice international law, since the observance of international law makes their own actions predictable for other members, increases mutual trust and reduces the necessity of military protection. The principle of reciprocity harmonises behaviour with international law and results in an instrument for one’s own security and therewith for international order (ibid.: 134–6; Murphy 1996: 22f). International law is subject to four restrictions. Firstly, this institution does not necessarily have to exist for the maintenance of international order, since order can also rest upon balance of power. Secondly, under normal circumstances it only functions retroactive or passive and cannot contribute to order in international society without diplomacy or war. The only active way is, as mentioned above, the reciprocal behaviour of states. Thirdly, a rigorous compliance to international law may lead to a destabilisation of international law, when balance of power would be affected by adhering to the letters of law. Fourthly, parts of international law may also have another agenda than the maintenance of international order. Especially the international co-operative law may undermine fundamental rules of international society or international coexistence law, if being excessively increased—like it especially is the case for the research topic, humanitarian interventions (Bull 2002: 136–9).

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The Solidarism-Pluralism Debate

English School scholars have elaborated two normative assumptions on international society. The first group of scholars sees international society as capable of enforcing demands for justice solidary among states, especially regarding universal human rights and their protection. Hence, they are called solidarists. The second group of scholars rests its theory wing on the assumption that international society holds just enough power to enforce the most fundamental demands for order, due to pluralistic interests that interfere with collective capabilities of international society. Therefore, they are called pluralists (ibid.: 136–9). The doctrine of humanitarian intervention, which is centred between the protection of international order and the enforcement of universal justice, is the crystallisation point of disagreement between both wings (Bellamy 2003: 321; ibid. 2005b: 285; Burchill 2005: 172; Linklater & Suganami 2006: 246; Knudsen 1999: 89; Wheeler 2000: 21).8 The question of humanitarian intervention is so central for the debate between pluralist and solidarist, since all three points of difference between both as outlined by Bull can be found here: First the status of war in international society, second the sources of international law and third the position of the individual in an international society (Bull 1966: 52; Buzan 2004: 45f; ibid. 2014: 15; Bellamy 2003: 323f; Knudsen 1999: 48 & 51; Linklater & Suganami 2006: 5f & 60; Miller 2007: 273; Wheeler 2000: 11; Wheeler & Dunne 1996: 94). It should be clarified that archetypes will be considered now. No scholar will completely fit into one wing of English School theory. Most scholars are close in their argumentation and vary on nuances only, concerning the balances in favour or against UHIs. In the view of pluralism, war is not discriminating. This means that third parties need to grant both belligerents the same yeas and nays—the presumed just party as well as the alleged unjust party. Solidarism, however, assumes war to be discriminative. A just party therefore needs to be treated in a better way than the unjust party (Linklater & Suganami 2006: 61–3). What does this mean for humanitarian intervention? While in ‘normal wars’ it is hard to tell who is just

8 Once

again, I would like to draw attention to the dual nature of the solidarism-pluralism debate. As Buzan, Linklater and Suganami rightly are pointing out the debate is not only empirical, but also normative. Academics will be in an interpretative position within the spectre of solidarism and pluralism. They will come to different interpretation of international society and detailed questions regarding this position. This exemplifies the critique of the English School regarding a mere scientific approach (Buzan 2014: 84; Linklater & Suganami 2006: 68).

2.2 The Solidarism-Pluralism Debate

23

and who is unjust, a humanitarian intervener should usually be seen as just. Therefore, solidarism claims that such a humanitarian intervention should be backed by international society, as long as the humanitarian cause has not been abused for such an exception. On the other hand, pluralism requires a neutral behaviour of third states even in a case of humanitarian intervention as long as it is not authorised by a proper organ of international society. This is an indiscriminate view on war. Consequently, current solidarists accept the general prohibition of the use of force, but they add just causes in cases of humanitarian emergencies as a third exception besides self-defence and actions carried out under Chapter VII of the United Nations Charter (UNC) (Knudsen 1999: 60–3 & 70; Tesón 2003: 94). Solidarism acknowledges not only positive law made by states, but also natural law as source for international law. Here natural law is a reserve right for whenever positive law is not capable of solving issues that have occurred. For Hugo Grotius, who is generally seen as the ur-solidarist, such a positive law derived from the law of nature: “Again, since the fulfilling of Covenants belongs to the Law of Nature, (for it was necessary there should be some Means of obliging Men among themselves, and we cannot conceive any other more conformable to Nature) from this very Foundation Civil Laws were derived.” (Grotius 2005: 93)

To pluralists, international law is solely based on positive law established between states. It denies the binding force of natural law. This does not mean that in a pluralist view there is no space for natural law, ethics and moral in international politics. Yet, it has to be enforced in accordance with international positive law (Burchill 2005: 180; Jackson 2000: 43; Linklater & Suganami 2006: 63; Vincent 1986: 117f). It is remarkable that an early idea of this supremacy of positive law can be found in Grotius’ work, too: “But when a Civil Law regulates Things otherwise, the Law of Nature itself commands us to observe it. For tho’ the Civil Law can enjoin nothing which the Law of Nature forbids, nor forbid any Thing which that enjoins; yet it may restrain natural Liberty, and prohibit what was naturally lawful; and consequently, by its own Authority, may prevent and hinder that Property and Dominion which might otherwise be naturally obtained.” (Grotius 2005: 433)

Finally, both archetypes are divided in their view on the position of individuals in international order. On the one hand, pluralism acknowledges that it is a part of international morality to consider individuals and their rights as most important end in international politics. Indeed, pluralists would not deny that states have

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a moral duty to protect their individuals and human rights in general; but they argue that it is too dangerous to choose the rights of individuals over the security of nations (Bull 2002: 147; Jackson 2000: 174 & 291; Wheeler 1992: 468). Solidarism again considers individuals as an element of international law, namely in universal human rights. Based on the classic, rationalist idea that the state is a mere tool to secure the life and property of its people, the argument seems convincing: “[…] the reason for creating and maintaining states and governments is precisely to ensure the protection of the rights of the individuals. A necessary condition to justify political power exercised by human beings over their fellow human beings is that the rights of everybody be respected. Thus states and governments do not exist primarily to ensure order, but to secure natural rights. […] To wage war against such states (except in self-defence) is a crime. But governments who turn against their citizens are on a different moral footing. By denying human rights they have forfeited the protection afforded them by international law.” (Tesón 1997: 118f)

Natural law therefore unfolds the right to enforce human rights, wherever it is in danger, whether or not positive law may be infringed on (Knudsen 1999: 53; Linklater & Sugamani 2006: 63f). These solidarist attempts are originated in the interlinked understanding of state and natural law. A state only exists to guarantee the natural rights of individuals. Referring to Grotius such rights are the right to life, the right to property, the binding force of treaties (pacta sunt servanda) and the punishment of illegal behaviour.9 These four rights are called the natural law maxims. In normal conditions, only states are responsible for the enforcement of these rights within their boundaries. But solidarists acknowledge a jus gentium intra se. This means natural law maxims not only are a source of domestic law, but constitute a universal law that is equal to every state and needs to be enforced by every state in every part of international society. Yet, Grotius recognised solely one such right: the right to life. Every enlargement beyond this most basic right to life would erode the fundaments of international society (Kingsbury & Roberts 1990: 28–30; Vincent 1974: 24). According to this solidarist assumption, both natural law and the rights of individuals are part of international law and therewith of international society. Pluralists do not concentrate on the rejection of this idea in general; indeed, they accept the idea of universal human rights for individuals derived from natural 9 The

compensation was included as well as the right to life excluded in Grotius’ original enumeration. However, the first one is embedded in the right to property and the second one is an outstanding specification of this right (Grotius 2005: 85f).

2.3 The Theoretical Fundaments of the HI Debate (Chapter Summary)

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law. But they see these rights to be best preserved in a stable international society. The order in such a society would erode through an enforcement of human rights under the infringement on the principle of sovereignty and non-intervention, since states would not agree on common rules and institutions, when a loophole in terms of natural law would exist and threaten their very existence (Wight 1977: 135). Therefore, pluralists believe that justice, including the rights of individuals, is best maintained within states, whereas order is the most international society can seek for (Dunne 1998: 169; Knudsen 1999: 69; Wheeler 1992: 468); or as Vincent stated: Pluralism is “not the absence of morality but the recognition of its limits” (Vincent 1986: 114). Pluralists today acknowledge the possibility of rights of individuals in general and the conduct of humanitarian intervention in specific. Such an exception of the use of force besides self-defence is accepted when conducted with a mandate of the UNSC, because this is the proper body of international society to establish further exceptions of the principle of non-intervention (Knudsen 1999: 79). Regarding the rights of individuals, the difference between solidarism and pluralism is focussed on the question whether natural law enforcement should take place without legality by positive law. Coming to the general positions of pluralism and solidarism on UHIs: Pluralism recognises no sufficient degree of solidarity for UHIs. It is apprehensive about the possibility of a war with regard to classical just war theory, which would endanger international order in default of a wide support of international society. It prefers the secureness of a minimal international order, backed by positive law, to the interests of human individuals, backed by natural law (Bellamy 2003: 323f; Burchill 2005: 180; Buzan 2014: 84f; Linklater & Suganami 2006: 64–6). Solidarism, moreover, suggests a potential support of international society for HIs; not only when authorised by a competent body of society. It assumes that there is a sufficient degree of stability in international order as well as the necessary solidarity in international society, to conduct humanitarian intervention without eroding side effects. Following this, positive law needs to be put aside in cases of massive humanitarian emergency which have to be resolved by the maxims of natural law (Bellamy 2003: 324f; Linklater & Suganami 2006: 60 & 64–6).

2.3

The Theoretical Fundaments of the HI Debate (Chapter Summary)

The debate about humanitarian interventions is not reduced to the English School alone; yet, much of the arguments exchanged between the two sides of the HI debate, those with a progressive approach and those with a sceptic approach, are

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embedded in English School and the discourse between solidarists and pluralists. It clearly does make sense to use this rich background to engage in a study on humanitarian interventions. ES offers for such a study the concept of a society of states that has evolved institutions and, yet, is subject to change and contestation. It offers the understanding of a world that is not clear and simple, but complex and subject to one’s own interpretations (even as academic participant). It offers the advice to focus not on the visible and obvious (international organisations, treaties and speeches), but to focus on the hidden and opaque (ideas, norms and behaviour).

3

The Humanitarian Intervention Debate (State of the Art)

The debate about humanitarian intervention is a living fossil in the discipline of international relations theory debate. Yet, it is a quite vivid one. Political philosophers have dealt with the question if there is a right that has to be enforced throughout mankind at whole and not only within a state, empire, kingdom and so on for millennia. What today is humanitarian intervention was religious wars in the 16th and 17th centuries and the conquest of empires in the 19th century (Abiew 1999: 33; Bass 2008: 378f). In this chapter, I want to offer a brief overview on the current HI debate. This modern HI debate started as one of international lawyers and (political) philosophers (Vincent 1986: 45) in the 1970s and 1980s. Yet, this is not the part of the HI debate this thesis is taking place in. I will focus on the part of the HI debate within or connected to the IR discipline, which has since the late 1990s contributed to a large amount of literature. I will start by offering a short list of the main contributors to the HI debate in general up to the mid of the Cold War and those among political philosophers and IR scholars since then. Afterwards, I will present an understanding of the main portion of the HI debate that had been transformed with the ICISS report in 2001 to a debate about R2P, most of all. The knowledge about the R2P will be helpful to set the elaborations made in chapter 11 in context. I would not go as far as to determine this R2P-focussed HI debate as a “consensus” (Menon 2016: 5) on the lawfulness or a norm of unauthorised HI, but it is correct to conclude that the vast majority of literature in the current HI debate is originating in a solidarist approach to HI. Since NATO’s intervention in Kosovo this R2P-focussed HI debate has become a frequent topic of diplomats, IR scholars and public debate (Menon 2016: 5–7; Reinold 2014: 86; Stromseth 2003: 232). Within this presentation, I will also emphasise the difference between the R2P concept as introduced by the ICISS and the R2P norm © The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2021 C. Pohlmann, Unauthorised Humanitarian Interventions in World Politics, Globale Gesellschaft und internationale Beziehungen, https://doi.org/10.1007/978-3-658-32179-6_3

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as adopted, while been adapted, by the UN General Assembly (UNGA) in 2005. After this overview, I will shortly present the not R2P-focussed approaches still made by a few realists, pluralists and in international law contributions. Before summarising and offering a frame to the current HI debate, I will take a specific look at those contributions in the HI debate that are dealing with possible dangers of the HI debate. This is necessary in order to have a background for the more complex argument about theorems I will lay out in chapter 5.

3.1

Grotius and His Heirs: The Major Contributors to the HI Debate

Taking a look at the history of international law and international relations thinking, will lead certainly to one name: Hugo Grotius. Bull, the first and most prominent scholar in ES theory, dedicated, alongside his peers Kingsbury and Roberts, a whole edition to Grotius and IR. Sure there are other classical thinkers (e.g. St. Thomas Aquinas, Vitoria, de Vattel, Kant and Oppenheim), but Grotius with his most influential ‘Prolegomena’ of ‘De Jure Belli ac Pacis’ is the norm when referring to the origins of the HI debate (Abiew 1999; 33–7 & 41–3; Buergenthal, Shelton & Stewart 2009: 3; Chesterman 2001: 8–16; Weiss & Collins 2000: 17). During the Cold War era, the HI debate had been pale. Nevertheless, scholars of international law and political philosophy made fruitful contributions. Among those to mention are Fonteyne, Lauterpacht, Lillich, Reisman and (of course) Walzer (Seybolt 2007: 10). The debate, since Lauterpacht’s ‘International Law and Human Rights’ (1973 [1950]) and up to Reisman’s ‘Sovereignty and Human Rights in Contemporary International Law’ (1990), was a debate within those two scholarships, at times contributing to one another, but not gaining broad momentum in the studies of international relations. The modern HI debate in IR kick-started with Vincent’s more neutral ‘Human Rights and International Relations’ (HRinIR) as well as Tesón’s hard solidarist ‘Humanitarian Intervention: An inquiry into law and morality’ in 1986 resp. 1988.1 Vincent’s work is a point of reference for HI debate especially within the English School up to our time. To contribute within ES to the HI debate 1 In

some accounts there are earlier works by Lillich or Lauterpacht (each 1973) mentioned; yet, I see just a limited impact on the HI debate as is continuing until our days. The same goes for contribution in ES literature, such as ‘Diplomatic Investigations’ (1966), Bull’s ‘The Anarchical Society’ or Vincent’s ‘Nonintervention and International Order’ (1974).

3.1 Grotius and His Heirs: The Major Contributors to the HI Debate

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without referring to Vincent is quite impossible.2 Tesón on the other hand had delivered a radical view on international relations and the importance of human rights, by which he evolved to somewhat of a ‘Marx of the HI debate’—both regarding his mythic extreme ideas (“if the system of states breaks down because there are many humanitarian interventions […] perhaps this collapse is a desirable thing” [Tesón 2003: 114]) as well as the fact that his work is still on the left or solidarist end in the spectrum of the HI debate. The academic debate pushed to the fore in the 1990s by UNSC’s practice of authorised humanitarian interventions in Somalia, the Balkans and so on. Yet, it is to some decree surprising that aside from Murphy’s ‘Humanitarian Intervention: The United Nations in an evolving world order’ and perhaps Finnemore’s ‘Constructing Norms of Humanitarian Intervention’ (both 1996) it is hard to detect any significant contribution to the HI debate between 1990 and 1999 (Buergenthal, Shelton & Stewart 2009: 4). Although I regard both as important for my own studies, the impact of Ramsbotham’s and Woodhouse’s ‘Humanitarian Intervention in Contemporary Conflict’ (1996) and Knudsen’s PhD thesis ‘Humanitarian Intervention and International Society: Contemporary manifestations of an explosive doctrine’ (1999) were limited on the debate (Seybolt 2007: 9). The years 1999, 2000 and 2001 were the three most important years for the HI debate so far. 1999 is clearly associated with the central humanitarian intervention, NATO’s unauthorised HI in Kosovo. The year 2000 has brought the most influential work in the debate—Wheeler’s ‘Saving Strangers: Humanitarian intervention in international society’—as well as the pluralist ‘answer’ on his solidarist claims, Jackson’s ‘The Global Covenant: Human conduct in a world of states’. In 2001, the report of the International Commission on Intervention and State Sovereignty had been published and introduced the concept of ‘Responsibility to Protect’ to the debate. In my view, the works of Wheeler and Jackson build until these days, together with Vincent’s HRinIR, the three pillars of the theoretical side of the HI debate. While Wheeler and Jackson are each culminating the core of solidarist and pluralist thinking (Buzan 2014: 84), Vincent is somewhat neutral and without a strong prescriptive approach in the middle, pocketed by solidarist and pluralist likewise. Although those three years marked the most important phase in the HI debate, it has been overlaid afterwards by 9/11 and the focus shifting from Kosovo and HI

2 Further

important contributors of the ES to the HI debate are Roberts (1993) and Mayall (2000b) (Linklater & Suganami 2006: 2).

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towards the international war on terror.3 An evolution in practice was necessary to let the HI debate gain momentum again. The significantly altered adoption of the R2P by the UN world summit in 2005 has been this turning point. Significant contributions thereafter have been made by the ICISS’ commissioners Evans and Thakur and its research director Weiss; the latter one stands out with his work ‘Humanitarian Intervention: Ideas in action’ (2007). Regarding other monographs Seybolt’s thesis ‘Humanitarian Military Intervention: The conditions for success and failure’ (2007) and Bellamy’s ‘Responsibility to Protect: The global effort to end mass atrocities’ (2009) have been most influential in recent years. Aside of Bellamy I would see as further important contributors Hehir and Welsh with several frequent research outputs.

3.2

From the HI Debate to the R2P Debate: Scholars Making Politics

Since there is a detectable HI debate—which can be dated back to the 1970s— it has been a progressive one. As for its later rebrand—the R2P debate—it did not lack of “enthusiastic supporters” (Hehir 2018: 73). Contributors were not merely analysing traces of an evolving norm, but advocating the implementation of a norm concept. For sure, the debate was not merely within the solidarist faction, yet pluralists were in a minority throughout the debate. In the 70s and 80s the debate remained most of all one of political philosophers and international lawyers. The first considering the necessity for the enforcement of human rights beyond borders, the latter analysing the emergence of a humanitarian exception in the principle of non-intervention. Both had a hard stance, comparing the debate of scholars with the world of reality. The best to be said for the Cold War era is that there had been an emerging human rights regime (Hehir 2010a: 71). However, this regime lacked one thing especially: any clue of an international or supranational right to enforcement. The consensus between states that human rights exist was reality, the consensus that these rights were beyond classical sovereignty was not. Whenever there was a discussion about human rights violation, the classic response has been ‘this is a matter of internal affairs’; a response, which is quite rare in our times (Farer 2003: 72). Even those three cases that had been considered in HI debate as instances 3 The

contribution with the most impact at this time would be Franck’s ‘Recourse to Force: State action against threats and armed attacks’ (2002) (Buergenthal, Shelton & Stewart 2009: 4).

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of humanitarian intervention (East-Pakistan 1971, Cambodia 1978 and Uganda 1979), have not been justified on humanitarian grounds by those that had been conducted the intervention (Jackson 2000: 259).4 To some decree, it is astonishing that despite this fact scholars, and to a certain level international society, accepted a humanitarian reason without the interveners having claimed it (Arend & Beck 1993: 130f). The HI debate in the 70s and 80s was progressive, yet not mirrored by an influence in the real world. HI debate got momentum in the IR scholar community by Vincent’s HRinIR in 1986 and Tesón’s bold approach in 1988. Yet, the time of the Cold War was almost over and the debate should witness one of those rare moments in history, where thinking would be overtaken by reality. The “fundamental transformation of the balance of global power” (Ayoob 2002: 87) led to conditions that could not have been foreseen: The vacuum by the breakdown of the Soviet Union was filled by a Western momentum—foremost the USA (Menon 2016: 8). At this early time within the new world order, Wheeler identified “a new willingness in the society of states to legitimise humanitarian intervention” (Wheeler 1992: 482). Considering society’s willingness to intervene in Iraq, Somalia and Bosnia it is correct to call the 90s “the decade of humanitarian intervention” as Chomsky did (2003: 22). The new interventionism and priority for humanitarian values shaped international relations in the 1990s (Chandler 2004a: 83; Hurrell 2007: 154; Orford 2003: 2). International society introduced the humanitarian exception in the principle of non-intervention, the scholars of the HI debate sought for. Yet, it tied it to the authorisation of the UNSC and the procedures under Chapter VII UNC (Hehir 2013c: 35). The 90s led to a new norm of authorised humanitarian intervention as exception to the principle of non-intervention (Ayoob 2002: 83f; Heinze & Steele 2013: 137). The HI debate could not react as quickly as the world changed. Yet, rapid change in politics commonly leads to politics without a clear guidance or concept; politics without explicit policy. At this point the HI debate was able to catch up with reality, although in a new brand. UN Secretary General (UNSG), Kofi Annan, invited politicians and scholars to rethink the principle of sovereignty and “to reconsider the rules governing humanitarian intervention” (Barnett & Finnemore 2004: 155) in the mid of the crises in Kosovo and East Timor. Coinciding with this, there had emerged an awareness among the scholar community that the “humanitarian interventions of the early 1990s took place largely without conceptual guidance” (Weiss & Collins 2000: 170). Within this development an exclusive and progressive forum for a new understanding of sovereignty and the HI debate 4 See

subchapter 7.3, 7.5, & 7.6.

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(with many of its earlier contributors) had been established in September 2000: the Canadian-sponsored ICISS (2001: 81). While the ICISS worked on its most important contribution to the HI debate, the year 2000 gave an interlude. Two major publications in the debate have been published then: Wheeler’s ‘Saving Strangers’ and Jackson’s ‘The Global Covenant’. Of those two contributions Wheeler’s is clearly the more important one. Its impact factor alone is twice as high as Jackson’s, not mentioning that his work is specifically focussed on HI and not international society in general. Wheeler had been analysing the HIs of the past, esp. the fresh intervention in Kosovo, and established a coherent solidarist concept of humanitarian interventions in international society. His unfussy approach to deal with the topic, a clear, progressive but constructive language and the attention of a whole IR theory circle—the English School—has led to the highest impact a contribution has made in modern HI debate. Jackson on the other hand presented a broader view on a pluralist international society in general, yet with clear answers—or better rejections—to Wheeler’s solidarist approach. Thus, aside of the R2P the new millennium witnessed with ‘Saving Strangers’ and ‘The Global Covenant’ two contributions that are up to today the nucleus for the continuing, but rebranded debate. The result of the ICISS was the R2P. After the report came out in late September 2001, there was hardly a HI debate detached from the controversy about and approach of R2P any longer. The new brand of the HI debate had become the R2P debate (Hehir 2013a: 9). What is left-over from the HI debate that is not directly connected to the concept of R2P will be shown in Subchapter 3.3.5 The material for the scientific and political debate that came with the R2P is quite enormous. As said before, since the academic debate intertwined with international politics by the R2P concept, I will now depart from a mere description of a scholar debate and analyse the R2P in general. I will start discussing what R2P is, present the adopted, while adapted, R2P by the world summit in 2005, and then lead via an examination of the resistance, the implementation of the original R2P concept had faced, to its current state as is in 2019 and a limited prospect of its future. 5 The

status of R2P in terms of international relations theory remains unclear. As for this thesis I will lean towards Bellamy’s terms and see R2P as concept since its introduction by the ICISS in 2001, while I consider its altered and shortened implementation by the UN world summit of 2005 as an established norm (Bellamy 2009: 7). However, in perspective (aside this thesis) I have some sympathy to call it a regime (Bellamy & Dunne 2016: 11), perhaps the humanitarian responsibility regime; a rudimentary regime with an agreed principle (at least since 2005) and limited and still contested norms, yet, without clear rules or even procedures.

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3.2.1

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What is the R2P?

The crucial point, determining what R2P is, regards its connection with the idea of a right to humanitarian intervention. R2P is at the same time the continuation of this earlier debate and its culmination into a single concept, yet goes beyond it. Evans, one of ICISS’ co-chairs, pointed out in 2008 that among five misunderstanding of R2P the first one is that “R2P is just another name for humanitarian intervention” (Evans 2008: 56). He traces this misunderstanding back to “the global South” (ibid.: 128) and stresses that the responsibility to prevent is at least as important as the responsibility to react is (ibid.). Bellamy shares this analysis, yet, at the same time criticises that the report dedicated twice as much space to the section on reaction than on prevention and rebuilding (Bellamy 2008: 616; ibid. 2009: 64 & 196–8); a perspective shared by Chandler (2004b: 64–8). Indeed, it should not be surprising that two years after Kosovo with further fresh memories on East Timor and Sierra Leone some statespeople had been concerned, when in such a prominent concept as the R2P—cheered by many among Western governments—a bypass to the principles of sovereignty and non-intervention is included. A bypass which means that in extreme circumstances not only the UNSC could authorise HIs, but the UNGA under its ‘Uniting for Peace’ procedure and even beyond this, multilateral engaging actors could conduct legal HIs. Such a reaction to the R2P as door-opener for HIs is all but surprising. The R2P concept is clearly a continuation of the HI debate and its controversial idea for a right to HI beyond the UNSC capabilities. A more substantial innovation has been R2P’s understanding of sovereignty: “[S]overeignty implies a dual responsibility: externally […] and internally, to respect the dignity and basic rights of all the people within the state. […] Sovereignty as responsibility has become the minimum content of good international citizenship” (ICISS 2001: 8). In the HI debate this understanding had been quite common and not even rejected by the strongest adheres to pluralism (Abiew 1999: 23; Tesón 1997: 15f & 118f; Weiss 2007: 16f; Wheeler 2000: 27); pluralist however reject the idea that an irresponsibility would lead to a general right to intervene (Jackson 2000: 211). As it had been for pluralists, it has been for statesperson likewise: While the controversy about a right to HI emerged at the political stage, the relativisation of the principle of sovereignty has not. It can be quite surely determined that this understanding of sovereignty with responsibility has not been challenged, because it had already been established in the minds of world leaders; at least by its emphasis through the R2P report (Duffield 2007: 120).

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3.2.2

3 The Humanitarian Intervention Debate (State of the Art)

R2P’s Adaptation by International Society

For four years the impact of the R2P concept did almost not exist. As mentioned 9/11, the war on terror and the Iraq invasion absorbed almost every capability and attention of the international society; the space for human rights narrowed rapidly (Bellamy 2005a: 50). Welsh even argued that international society’s willingness to conduct HIs declined; an argument that I cannot verify as will be shown in chapter 11 (2011: 1199). The year 2005 brought some significant progress on the way to evolve the R2P from a concept to a norm by its adaptation at the UN world summit. Seybolt and Morris are claiming that the UN world summit of 2005 “endorsed” (Morris 2013: 1265; Seybolt 2007: 2) the concept of R2P and Weiss—the research director of the ICISS—called the summit’s result a “blessing of R2P” (Weiss 2007: 116). He determined “that [it] had broken speed records in the international normative arena” (ibid.). More neutral were Bellamy and Hehir by pointing out that the world summit changed the idea of R2P into a real norm resp. principle (Bellamy 2009: 95; Hehir 2012: 49). As in every good debate, there are also some (over-) negative assessments on the other side of the aisle: Hehir called the 2005th R2P a “restatement of the status quo” (2012: 50) and Menon entitled it a “watereddown R2P” (Menon 2016: 10). The reactions are quite mixed, but I find that (as usually) the ‘truth’ lies somewhat in the middle. A good ‘via media’ assessment has been made by Bellamy. He counted five significant differences between the R2P of the ICISS and the R2P as embedded in the 2005 world summit: The rejection of any criteria, the rejection of “a code of conduct for the use of the veto” (Bellamy 2008: 623; ibid. 2009: 96), the confirmation of the UNSC’s sole right to authorise HI, a raised threshold for the transfer of responsibility from state to international society from former “unable or unwilling” (ICISS 2001: 16) to “manifestly failing” (UNGAR 60/1: 30)6 , and the denial of any UNSC obligation to act (Bellamy 2008: 623; ibid. 2009: 96). This finding is shared by Menon for the question of authorisation beyond UNSC and missing obligation (Menon 2016: 10 & 92f). In sum, the assessments on the R2P status after the 2005 world summit are quite mixed. One will probably confirm that the international understanding of responsibility to protect human life has not been the same before and after the world summit. Yes, we had already seen a practice of enforced protection by international society “on a case-by-case basis” (UNGAR 60/1: 30) in the 90s. This part is 6 United

Nations Security Council and General Assembly Resolutions will be referred to using their acronyms “UNSCR” and “UNGAR” followed by the official resolution number.

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not new, but what is, is the clear statement that “[e]ach individual State has the responsibility to protect” (ibid.). There are, after the world summit, no isolated ‘internal affairs’ anymore when it comes to genocide and ethnic cleansing. 2005 led from absolute sovereignty to sovereignty with responsibility. In this aspect, a norm had been established. A second innovation is the implicit responsibility of international society for the maintenance of human rights, when a state is failing to do so. This part has been watered-down quite a bit, but it still exists without having been denied in the text of the world summit (Bellamy 2008: 623). The R2P after 2005 is as Weiss wrote to Bellamy a “R2P lite” (Weiss, in Bellamy 2009: 206), but it is still a norm; an achievement that would not have been possible without the scholar community and esp. the ICISS. For this study it is quite interesting where the gravitational pull away from the ICISS’ wished kind of R2P has been coming from. In an important contribution, Allison points out that it was foremost Russia that “was reluctant to accept further erosion of the principle of non-intervention” (Allison 2013b: 64). This blockade was backed by China as well as India and the Philippines. Asking what the reason for this policy towards a minimalistic R2P adoption was, he stressed that it was esp. the negative experience the two great powers had with UHI in Kosovo and the misuse of humanitarian justifications during the Iraq invasion (ibid: 64f & 68). What we might see is the problem (pluralists have argued) that in the case of an extended right to HI without an UNSC authorisation the safety and influence of major powers might be corroded, and the stability of the great power concert weakened. However, as I will argue in subchapter 12.1, having examined the impact of the UHI in Kosovo, indeed this UHI had a more positive impact than a negative one. I would even question if the adoption of the R2P in 2005 could have been possible without Kosovo. Besides the opposition by non-Western states, there was a certain opposition by Western states themselves. Bellamy, Kuperman and Menon are pointing out that those states were concerned about clear criteria. They even feared that a more progressive responsibility transfer to the international level would interfere with national interests. Due to this understanding the ‘case-by-case’-formula was included. Menon identifies four reasons for this. Two reasons regarding the personality of the potential intervenee (the state in which an intervention is taking place): a potential intervener will not intervene into an ally nor into a more powerful state. Two reasons regarding the personality of the potential intervener: an estimated complex, long and/or costly intervention as well as an intervention without any non-humanitarian interests at stake. Bellamy further points out that the criteria of the ICISS are not needed since there is no right without an UNSC authorisation and therefore the jury function of the UNSC is sufficient to determine the just

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cause for a HI (Bellamy 2008: 625–30; Kuperman 2008: 52; Menon 2016: 13 & 126f). Although scholars differ on their perception towards the R2P after the 2005 world summit, the assumption that R2P is still a contested norm is widely accepted within the HI debate. The evidence of a contested norm is foremost provided by the Libya intervention in 2011. Murray assessed the way to UNSC resolution (UNSCR) 1973 and determined that any reference of R2P (beside the reiteration in the perambulatory clauses) had been cancelled (2013: 28). Hehir further draws attention to the fact that UNSC members refrained from referring to the R2P in their statements (Hehir 2013b: 148f). Aside of this several authors reason a norm contestation with a wider examination. Morris concludes that R2P is “subject to a far lesser level of norm-cascade than is often suggested” (Morris 2013: 1273), Hehir and Reinold reason the norm contestation with its missing internalisation (Hehir 2013c: 52; ibid. 2018: 78; Reinold 2014: 87), and Welsh identifies procedural disagreements as well as one about the content of R2P (Welsh 2013: 382–6). The over-stretched implementation of UNSCR 1973 and the resulting regime change, has, anyway, not reduced the suspicious positions towards any more progressive ways of implementing or even enhancing the R2P (Bellamy 2011a: 31; Evans 2016: 919; Gray 2018: 51; Hehir 2013c: 52; Menon 2016: 119; Morris 2013: 1272–7; Murray 2013: 28 & 31; Welsh 2010: 426; ibid. 2011: 1200); an argument that I will extend in subchapter 12.4.

3.2.3

R2P’s Current State and Future

R2P is a contested, yet established norm; this is the current state of ICISS’ original concept after the UNGA has trimmed it. Coming back to the state of the HI debate, an insight in current academic contribution shows one major problem. Although several authors state that the R2P of 2005 is still contested, a significant part of the academic (and supposed to be neutral) HI debate is still referring to the original ICISS’ debate when describing R2P’s current state. They are assessing that there is a new norm, but as well “an unfinished journey” (Weiss & Thakur 2010: 322) towards the (real) R2P. Bellamy stresses that states and international organisations are referring to the 2005th R2P, not ICISS’ (Bellamy 2008: 622). Hehir and Menon add that due to this problem the understanding of R2P differs now between the real world and the academic world (Hehir 2018: 73; Menon 2016: 10) and leads the latter to “a conceit” (ibid.: 10). Consequently, there is some confusion within the HI debate as to which R2P—concept or norm—to refer to. I would strongly advise that scholars reach a common understanding in

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the debate, resulting in different terms for the original R2P by the ICISS and the adopted, while being adapted, R2P by the 2005th world summit. Further, at some point it would be wise to refocus the academic debate on its empiric-analytic contributions. What does the future hold for the R2P? Besides non-empirical believers in a progressive future for the original R2P, the academic field is quite pessimistic on this question. The experience of Libya has led especially non-Western great powers to fear a further erosion of classical sovereignty and therewith their own power in international society. It is questionable, whether China and Russia as well as other BRICS states will internalise the R2P norm (Hehir & Lang 2016: 205; Menon 2016: 8f; Morris 2013: 1280). Moreover, it is quite possible that we will witness a roll back of the norm in the future (Morris 2003: 1280; Welsh 2010: 428); and it will not help that the reason for this is not the norm itself, but how it “was applied in Libya” (Evans 2016: 919) as Evans analysed. At least the implementation of R2P can be a “long and winding road” (Bellamy 2011a: 200). To strengthen the norm, I believe it is necessary to cooperate with those states that are sceptical regarding its implementation. A further way might be to re-level R2P from the international to the regional sphere; an argument that I will unfold in subchapter 12.5 after having examined the impact of the UHI in Liberia (1990). In this sense, Hehir detects that international society is willing to accept a more progressive implementation of R2P within regional organisation, e.g. the African Union; a finding that I second (Hehir 2012: 51f; Pohlmann 2008). As opposed to how the HI debate has been in the 70s and 80s—which was rarely being in touch with international politics—since the R2P was invented by ICISS in 2001, the debate took a dramatic turn. It influenced international politics and led to the integration of a new norm. This R2P norm might not be the same as many in the scholar community had wished for, but it is still an astonishing success for the normative and progressive HI debate.7 R2P today is still a contested norm. Implemented with caution, without hesitation (what can be cruel when it comes to human life), R2P can become a norm that changes international society to the solidarist version many among my peers are seeking. The HI debate as such emerged in the 1970s and 1980s with the first instances of interventions, which had been interpreted as humanitarian. Much work on which the enriched debate since 1999 is based on, however, had been contributed since the end of the 1980s, starting with Vincent’s HRinIR. The milestone for the 7 The

problem from an academic point of view is that the debate became itself subject of the debate. Several scholars are so prominent engaged that they may be perceived actually as an actor in the debate.

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debate came with the UHI in Kosovo and the establishment of the ICISS in the same year. The ICISS later introduced the concept of R2P. This concept had been adopted, while adapting it, at the UN world summit in 2005. Since then, a R2P norm developed, which is still contested in our current days. Problematic is that by focussing on this R2P the academic HI debate narrowed; many scholars left the broad debate and got themselves engaged in the norm entrepreneurial process beyond scientific objectivity.

3.3

Leftovers: Humanitarian Intervention in IR Theory and International law

Apart from R2P, the main brand of the current HI debate, there are few leftovers. Nonetheless, I assess three further items of the ‘old’ HI debate that remained: Realist and pluralist critique and the contributions focussing on the legal questions. Presenting the realist and pluralist critique shall not be a form of bias here, although I trace my own basic premises back to pluralism. I simply view many of the constructivist and solidarist contributions to the HI debate as clearly within the R2P main brand. In other words, while realist and pluralist are still opposed to resp. unconvinced of the emergence of the R2P as a norm, solidarist and constructivists are not. Moreover, constructivism is interested in how a norm, in which national interest is not the seed of everything, can develop and what that means for a neutral, perspective view on interstate interactions (Chandler 2004a: 83 & 86; Finnemore 2003: 52 & 55f). Realist and pluralist, in contrast, are most of the time dealing with the subject more general and not even referring to R2P in title or keywords; they do not want to contribute in a R2P debate, but in a HI debate in general. Starting with realism: one of the most important realists of our current time is Mearsheimer. In his magnum opus ‘The Tragedy of Great Power Politics’ he identifies three reasons why a humanitarian intervention might be conducted at all: There has to be some (national) interest other than humanitarian that makes the pursue of the later rational, such an event “does not conflict with balance-ofpower logic” (Mearsheimer 2001: 46), and the intervention is limited in time and cost (ibid.: 46f). The one that is widely shared and even discussed outside realism is the first, as we will see in the next subchapter, for example by Murray, Seybolt as well as Welsh, and had already been circumscribed by Lauterpacht early on (Lauterpacht 1973: 32f; Murray 2013: 31; Seybolt 2007: 25f; Waltz 1959: 211; Welsh 2004: 58). Nonetheless, I find the explanation of Ayoob best to enlighten the problem:

3.3 Leftovers: Humanitarian Intervention in IR Theory …

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“[…] most states will not be inclined to undertake humanitarian intervention unless their national interests are directly or indirectly involved. Even if they commit themselves to intervene for altruistic and humanitarian reasons, in the absence of pressing national interest concerns they will normally not be in a position to sustain such a commitment when faced by human and material costs that their publics most likely will not be willing to pay.” (Ayoob 2002: 85)

Second, coming to pluralism: pluralism is also highlighting the danger of HI. Realists are doing so in connection with state’s own interests, pluralists are doing so in connection to international society’s interest at whole. Based on Wheelers finding that the recourse to HI at last resort “is a moral duty in cases of […] supreme humanitarian emergencies” (Wheeler 2000: 13), Linklater points out that legalists—and as such pluralists—regard respect for the existing positive international law and here for the authorisation capability of the UNSC. The latter is what has a moral superiority for pluralists to Wheelers understanding of moral duty (Linklater 2007: 85). The reason for this is that pluralists believe that more lives are in danger when international order is at stake than when UHIs are conducted under violation of the principles of sovereignty and non-intervention (Ayoob 2002: 93; Jackson 2000: 251; Vincent 1986: 114). They believe that “states remain the rightful authority on, and guarantor of, human rights” (Hehir 2010a: 72). Finally, among international lawyers prior to the UN system a humanitarian intervention was accepted, when conducted collectively (Chesterman 2001: 40f). Since the prohibition of the use of force, this right for collective HI has ended. The International Court of Justice (ICJ) found in its Nicaragua decision of 1986 that an intervention unilaterally conducted by a state, even when it is justified with humanitarian reasons, is illegal (Chandler 2006: 26; Chesterman 2001: 60–2; Douzinas 2007: 213). The sole exception agreed on among scholars is an authorisation by the UNSC (Barnett & Finnemore 2004: 128f; Bellamy 2005a: 33; Buergenthal, Shelton & Stewart 2009: 5; Donnelly 2003: 253; Henkin 1999: 826). Voices opposed to this consensus are rare; Ayoob is such an exception (2002: 94). In the legal part of the HI debate quite often the emergence of a right to HI in customary international law is scrutinised. This means to ask for the development of a new legal norm by state practice. Although this attempt is leading to a negative result, Welsh identifies a general restraint in the UNSC when it comes to humanitarian justifications (Welsh 2011: 1200). Gray points out that in the cases of Afghanistan and Iraq, the intervening states have refrained from using clear HI language (Gray 2018: 51); they deemed the reference to the right of self-defence and the same for the controversial preventive version to be of more legal traction than a humanitarian justification. Similar assessments have been made for the Cold War era as well by Bull, Finnemore and Holzgrefe (Bull 1984: 193;

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Finnemore 2003: 73; Holzgrefe 2003: 48). Hence, most of all, a right to UHI established by customary international law is likewise not accepted in the legal debate. Asking why states are reluctant to integrate such a new norm, two articles offer quite convincing legal arguments. Lyons and Mastanduno saw beyond all power balancing, great power contest and Realpolitik problems, the core problem of UHI to be in the question “who determines that a state has not met its sovereign obligations and that the consequences are such that intervention to force compliance is justified” (Lyons & Mastanduno 1995: 8). Taking a look at the status quo, the answer is quite obvious. Contrary to pre-UN era, international society nowadays has specified such an authority that deals with matters of international order: the UNSC. As for almost every domestic law, international law does not recognise vigilantism (Walzer 2004: 106). “The law against unilateral intervention may reflect, above all, the moral-political conclusion that no individual state can be trusted with authority to judge and determine wisely” (Henkin 1999: 825). Even though the current solution may not be perfect, states refrain from jeopardising the established system as a whole. They are not willing to transfer the sovereignty to determine the right for HI to the individual state, but accept HI authorised by UNSC. This acceptance of AHI in international law is the very reason why pluralism nowadays recognises such instances of HI as less problematic for international society (Hehir 2010a: 73; Hurrell 2007: 155; Jackson 2000: 201–5 & 251f; Knudsen 1999: 80).8 The two IR theory traditions not directly dealing with R2P, which are realism and pluralism, are quite cautious on an abstract level. As shown, in international legal discourse about HI this scepticism is shared as well. In the following subchapter, I will deal with this critique more specific.

3.4

Abuse, Moral Hazard and Imperialism: Humanitarian Intervention’s Dark Side

Originating in the more general and unspecific argument that humanitarian interventions have a negative influence on international order, a branch of the HI 8 Aside

from legality by positive law this mandate has a second advantage for pluralists. According to the constitution of the Security Council, it includes the integration of great powers, which have as mentioned above a special function in international society. Thus, frictions in international society due to humanitarian interventions in special or jus gentium intra se in general can be minimised through an embedding in positive law and an integration of the concert of great powers (Jackson 2000: 201–5; Knudsen 1999: 80).

3.4 Abuse, Moral Hazard and Imperialism: Humanitarian …

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debate is dealing with the likeliness of abuse, the moral hazard in specific events and the possible occurrence of human rights maintenance as form of neoimperialism. Beyond this debate lays another one about the necessity and reality of humanitarian motivation and humanitarian justifications, which is esp. important to understand the fear of abuse. I will start off by describing this scrutiny on motivation and justification. It has been accepted—virtually as concession to the realistic critique—that there cannot be a HI solely conducted under humanitarian motivation. Chmosky wrote in 1999 that the “category of genuine humanitarian intervention might turn out to be literally null” (Chomsky 1999: 80), if someone tries to identify HIs with a purely humanitarian motivation, which is an argument backed up by many scholars within the HI debate (Donnelly 2003: 256; Hehir 2010a: 61–7 & 156; Walzer 2004: 101; Weiss 2007: 7; Wilen 2012: 34). What has been the common agreement instead is that the humanitarian motivation must be primary (Brown 2006: 135; Hehir 2010a: 19). Even in Tesón’s writing this consensus is vivid (1997: 121). This means that there can be other interests and motivations as well, which tip the scale in favour of the potential gains in contrast to the potential risk, but the humanitarian motivation must remain superior. In practice and in retrospective to an intervention, when it comes to preserving the goal of mitigating MHE or pursuing one’s selfish interest, the first must have been favoured. If confronted with the dilemma of cutting MHE two months and two thousand more deaths short or reaching the desired regime change, the first needs to be favoured. “The primary purpose of the intervention, whatever other motives intervening states may have, must be to halt or avert human suffering” (ICISS 2001: xii). This primary humanitarian motivation necessity is a common agreement. Just few contributions accepted a way short of a primary humanitarian motivation. One such important exception is Wheeler, originating in ideas of Tesón (Hehir 2010a: 153). He reasons his humanitarian criterion with the idea that the end justifies the means. Her argues that it is not necessary to have a humanitarian motivation. Instead, it is also valid to conduct an intervention driven by non-humanitarian motives, when at the end the result is the mitigation of humanitarian crisis (Wheeler 2000: 38f). The idea might be of some value, when it comes to the question if a HI was rightful, legitimate, morally acceptable and so on; perhaps even to determine a legality, when it should ever be the case that international law integrates a right to UHI. Yet, I do not see the impact of such an idea for the norm-building of HIHI or R2P, nor the acceptance of possible UHIs in international society. What influence should such positive outcome have on states normally opposed to UHI? Might they grant a potential intervener more allowance? ‘He has done quite a good job in the past; let’s allow him to violate

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our common rules again in the future.’ Not quite. Wheeler’s concept of considering the successful outcome in order to estimate the ‘humanity’ of an intervention remains interestingly but is not at all taken up in the scholar debate—aside from Tesón. Being aware that there might be some temptation to use a humanitarian justification in order to ‘sell’ an intervention driven by primary non-humanitarian motives, the HI debate has dealt with risk of an abuse of humanitarian motivation. The common concern is that states might be tempted to reason interventions, which are motivated not primarily on humanitarian grounds (that is to say to mitigate a MHE), by using a humanitarian justification as excuse to raise the chance to be accepted or at least tolerated in their doing.9 Allison, Barnett, Gray, and Seybolt each argue that such an abuse of humanitarian motivation was the case in the US-led invasion of Iraq in 2003 (Allison 2013b: 65; Barnett 2011: 192; Gray 2018: 51; Seybolt 2007: 2). I share this fear but must stress that up to now it is not common to abuse humanitarian language in order to pursue non-humanitarian goals. Besides Iraq and perhaps the Russian Federation in Georgia (GCR2P 2008) there are rarely practical examples of such an abuse. Even in those cases, an indepth analysis would likely show that it was at no point the main justification for action; the humanitarian argument had been tested as excuse, but the backlash was so huge that the interveners switched to other more viable justifications within days.10 But let us not neglect the possibility for such an abuse, although the empirical data does not back the argument at this point. I believe that, to a large part, abuse is not happening, because the route to UHI in general is still so outrageous in international society. States with a primary humanitarian motivation and without abusing this, would obviously be treated less harsh, but are still seen as violators of international law. Their action remains illegal, although for some colleagues legitimate. The fact that there are legally more accepted ways for justification (self-defence e.g.) is the reason why the humanitarian motivation is rarely being abused. I am confident that as soon as there is a ‘normal’ way to UHI in international society, there will be abuse. This is a fear broadly shared in the academic debate (Ayoob 2002: 92; Chesterman 2001: 231 & 234; Farer 2003: 74–80; Jackson 2000: 171; Menon 2016: 10; Stromseth 2003: 233; Vincent 1986: 114). 9 Justification

and motivation here are most of the time not identical. Motivation is the ‘true’ reason of action, while justification is the reason publicly offered in order to achieve the highest possible acceptance. As Finnemore is pointing out: to discover such ‘true’ motivations is difficult and time lengthy, but for the following case selection I deem it necessary to do so (Finnemore 1996: 158f). 10 See for the case of Iraq the examination in subchapter 11.3.

3.4 Abuse, Moral Hazard and Imperialism: Humanitarian …

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While the danger of abuse remains to be empirically proven (aside of the Iraq singularity), a second danger is quite new in the HI debate, but to be shown with a solid empiric-analytical foundation. Kuperman introduced the argument that HI in general (AHI and UHI) leads to moral hazard: “The emerging norm of humanitarian intervention, or ‘responsibility to protect,’ is well-intentioned but sometimes counter-productive. Its call for intervention to aid groups suffering from state violence can lead nonstate actors to view rebellion as a no-lose proposition: if the state eschews retaliation, the rebels win; if the state does retaliate, the international community intervenes and the rebels still win. Though the prospect of intervention is uncertain, it has proved sufficient to trigger some rebellion without deterring all state retaliation, thereby causing some genocidal violence that otherwise would not have occurred.” (Kuperman 2008: 75)

His finding is up-to-now shared by Hehir and Menon. Cases for which this argument has been proven valid are Kosovo and Libya (Hehir 2010a: 122; Kuperman 2013: 123–5 & 134f; Menon 2016: 13f). Some relativisation can be seen in Bellamy, who argues that the implementation of R2P “would act as a damper on moral hazards” (Bellamy 2008: 632). A second practical problem was paid attention to by Kuperman as well, although this has not received a likewise resonance. He states that states willing to intervene “tend to demonize the regime of the country they are targeting” (Kuperman 2013: 134f). This leads most of all to a more intense—since more irrational—conflict. A more intense conflict would mean that the risk for civilians, who should be saved, are higher. A more intense conflict would, further, mean that the costs for both sides (the intervener as well) are higher. Higher costs and more risk for civilians mean, moreover, that with progress in the conflict the humanitarian motivation may shrink. It is the old song of war, so well-known from the Vietnam fiasco: once you started it, you might not get out anymore and escalate no matter what, without having the original motivation in view. Having said this, it is clear that this a problem of war in general and not just of the humanitarian version. Finally, within the HI debate the emerging humanitarianism has been compared to a way of new imperialism. Prominent outside the narrow HI debate was Fukuyama who called the 1990s “a de facto international imperial power” (Fukuyama 2004: 97) considering the decade of HI. “This international imperium may be a well-meaning one based on human rights and democracy, but it was an imperium nonetheless and set a precedent for the surrender of sovereignty to governance by international agencies.” (ibid.: 98) Vincent shared this believe even before the HIs in the 90s took place and among progressive scholars the concern for such a— especially Southern—perspective towards HI emerged in mid-90s (Vincent 1986:

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3 The Humanitarian Intervention Debate (State of the Art)

129; Wheeler & Dunne 1996: 104). The problem for the South is, as Ayoob puts it, that the emergence of HI “has the potential to divide the world once again into zones of civilised and uncivilised states and legitimise predatory actions by the former against the latter” (2002: 85) as well as “raises the spectre of a return of colonial habits and practices on the part of the major Western powers” (ibid.). I find this interpretation quite harsh and coincide with Bass, who reasons that “humanitarianism and imperialism should not be casually blurred together. […] Imperialism is about domination and superiority, not the empathy of humanitarianism” (2008: 378f). Yet, I need to mention that both sides (the West and the South) are part of the international discourse. When non-Western scholars—as Ayoob is doing—are concerned of a re-emergence of imperialism, this is something the scholar community cannot brush off. It is a warning that has to be addressed and recognised. It is a problem that the norm of R2P has been and will be “selectively applied” (Menon 2016: 12). R2P is a norm enforced especially by strong states on weak fellows (Ayoob 2002: 92; Seybolt 2007: 1f; Welsh 2011: 1202). A problem that transferred to the international criminal law regime has even reached popular culture in all its complexity.11 Above all, we cannot shrug off the cautious voices about imperialism through humanitarianism. We have to be aware of those perceptions—might they be rationally based or not. The more specific cautious contributions have elaborated the danger of abuse that might appear in the case of a right to UHI. As I have argued, such a danger for abuse of humanitarian language might be real, but (due to the restricted adoption of R2P) rarely exists now. For this thesis, the argument of motivation abuse is the fundament on which I will elaborate in chapter 5 the theorems that assume a negative impact of UHIs. We have seen that Kuperman made minor but still important contributions on the direct effect of HIs on the ground: moral hazard and an overall obsessed HI-conduct. More crucial and still to be appropriately addressed is, in my view, the connection especially the global South—academic and political— is making between humanitarianism and neo-imperialism. One does not have to share this connection resp. view, but one must recognise its existence.

3.5

Framing the Humanitarian Intervention Debate (Chapter Summary)

In this chapter I have outlined the debate about humanitarian intervention so far. Its central source is since 2001 the ICISS report ‘Responsibility to Protect’. The 11 See

most recently the BBC production ‘Black Earth Rising’ first aired in 2018.

3.5 Framing the Humanitarian Intervention Debate (Chapter Summary)

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most influential IR thinkers of the current debate can be identified to be in its solidarist spectrum; I count as such esp. Wheeler and Weiss. More neutral, significant contributions have been made by Vincent, Murphy, Knudsen as well as more recently Bellamy, Hehir and Seybolt. Originating in the pluralist spectrum of the debate I advise to include Jackson and Welsh in a short list. The R2P report and concept was agenda setting and changed the HI debate. Since its publication in 2001 I determine that the original, broad debate has been narrowed to one about R2P in specific. The debate that had been already normative and theoretical from the beginning had become part of the political process itself. Although international society, from a human rights point of view, has been advanced positively by this academic participation, the debate itself lost its already weak empirical elements in this development. The HI debate at the current point is one of the least empirical based in IR discipline. There are less scientists scrutinising and explaining reality, than scientists engaged in establishing a desired reality. Of course, this possibility is tempting for many scholars. It is not surprising that those cautious about the real impact of the ICISS’ original R2P are a minority among scholars. Yet, there still is an important part in the HI debate that is contributing to the original, broad HI debate—detached from practical participation, especially with those who find themselves to be more in the realist, pluralist or international law section. Finally, I have directed attention to the literature that is specifically dealing with the dangers of HI—as this thesis will be as well. Kuperman has offered a sophisticated analysis on the moral hazard of HIs in the past. Several contributions have dealt with the negative effect of an abuse of humanitarian motivation in order to justify interventions with different primary motivations and the specific Southern perspective towards a right to HI. The problems of abuse and (to a lesser degree) imperialistic perception are of importance for this study. I would like to point out that this interpretation or approach to frame the HI debate is just that: only one way of interpreting the debate. An examination of the academic debate under solidarist basic premises for example might lead to a different result, but I believe that the way outlined here is sufficient to understand the background on which this thesis is written.

4

Humanitarian Intervention: A Non-Normative and Analytical Definition

The HI debate is not facing the same problem terrorism research is. There, a wide range of definitions exists; here, the definitions are quite similar to each other. I concur with Hehir, who examines in an overview on definitions used within the debate that all of them include the elements a) use of force, b) the involvement of states on both sides and c) an event aimed at preventing or ending massive human rights violations. Additionally, it is most common to include threat of force as alternative to its use as well (Finnemore 2003: 53; Hehir 2010a: 17; Murphy 1996: 3f & 11; Seybolt 2007: 5f; Shaw 2003: 219; Weiss 2007: 5). Frequently used and referred to is the definition introduced by Holzgrefe: “the threat or use of force across state borders by a state (or group of states) aimed at preventing or ending widespread and grave violations of the fundamental human rights of individuals other than its own citizens, without the permission of the state within whose territory force is applied” (Holzgrefe 2003: 18)

I find that this definition is sufficient to determine nearly all possible cases, which are supposed to be classified as HI. Certain elements, nevertheless, have to be altered or included as well as specified outside of the text of the definition itself. I will do so in the following subchapters, yet like to list those elements beforehand: – Human suffering not actively caused by a state needs to be included. – The threat or use of force has to be specified. – The distinction of authorised and unauthorised HI has to be added for the purpose of this thesis. – Permission of the state resp. the threshold to infringement on the principle of sovereignty has to be specified.

© The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2021 C. Pohlmann, Unauthorised Humanitarian Interventions in World Politics, Globale Gesellschaft und internationale Beziehungen, https://doi.org/10.1007/978-3-658-32179-6_4

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– The ‘aim’ of the intervention resp. its motivation needs specification. – Finally, the additional alternative to humanitarian motivation by some solidarists shall be included here as well: the positive relief effect resp. outcome. Before coming to the definition, which I will use for this thesis, I would like to review the claims for additional criteria made in the HI debate. I mentioned that esp. in solidarism and the original R2P concept additional thresholds exist that have to be fulfilled to conduct a legitimate HI. The most prominent example of this are the criteria in the ICISS’ R2P concept that have to be met to acquire a right to HI: last resort, proportional means, reasonable prospects (ICISS 2001: 36f). I find that having an intervention meet these criteria, we might then call it a very or highly humanitarian one; but those should not be necessary to speak of a HI at all. Wheeler acknowledged regarding last resort that “[i]t is too demanding to require politicians to exhaust all peaceful remedies” (Wheeler 2000: 35). Having examined the Kosovo case, I clearly recommend to those tempted to second such criteria: study e.g. Clark’s first-hand insight of the Kosovo case in ‘Waging Modern War’ (2001) and evaluate the practicability of such additional thresholds. At least the career of and likewise the public opinion about politicians and militaries are at risk, if in order to meet the last resort criterion those able to prevent a Rwandan-like genocide miss the opportunity to do so. In theory it sounds easy, but on the ground, decisions have to be reached within days or hours. The same goes for proportionality and reasonable prospects. Talking of Kosovo, one of the common critiques during this intervention has been that the conduct by NATO was too cautious, that it over-valued last resort and proportionality and let in consequence human suffering continue (Clark 2001: 238 & 314–7; Murphy 2007: 74). As stated in the section on HI debate, it is not surprising that great powers on both sides of the aisle refused to include ICISS’ additional thresholds in the adapted norm. In consequence, additional criteria for HI are rarely practical and should not be included in a HI definition. Consequently, for the case selection and the following empirical-analytical assessment, I will set up a definition that it is able to include all such humanitarian interventions that are generally seen as such as well as those determined by outcome, which have been included by some solidarists as well. The definition stipulated is broad rather than narrow: Humanitarian intervention is an armed interference in the sovereignty of a state conducted with the motivation to relieve or prevent a massive humanitarian emergency. Leading to a positive relief effect on such a crisis, an intervention might

4.1 What is Humanitarian? Differing Views …

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be seen as humanitarian likewise. It is unauthorised, when conducted without the mandate of a competent body of international society.

4.1

What is Humanitarian? Differing Views According to Motivation and Outcome

This definition of humanitarian intervention is anormative and analytical. It is a rational definition of humanitarian interventions and not an idealistic definition of what a humanitarian intervention should be. I find this sometimes not to be clearly separated in the relevant literature, where criteria of classical just war theory or the original R2P concept are included into given definitions. To be clear, this broad attempt of defining humanitarian intervention already might be seen as statement of pluralist theory. Yet, I argue contrary that this definition neither excludes HIs that are included by solidarists, nor such included by pluralists. It adds no iunctim of collateral conduct or justness as it is embedded in just war theory and solidarism; no threshold of necessity, last resort, proportionality etc. as is included as criteria in ICISS’ R2P. Yet, it includes Tesón’s and Wheeler’s outcome option (Tesón 1997: 121f; Wheeler 2000: 38). With this broad approach to HI definition, this thesis will be able to assess cases that are not bias-selected. This definition is broad enough to enclose interventions primarily conducted for other purposes but resulting in a relief of massive humanitarian emergencies. It is still narrow enough to exclude so-called humanitarian interventions, which neither were conducted for humanitarian reasons, nor led to such a relief in the end. Realists may criticise the inclusion of such a criterion as motivation in a definition that deals with international politics. As shown above, they argue that no intervention is conducted for other reasons than national interest. Yet, one central assumption of neo-realists is wrong: states are not black boxes. Their policies are formulated by more than just raison d’état. In democracies, the pressure of the electorate might shape foreign policy (Jackson 2000: 171; Köchler 1995: 18–36). They are in close interaction with mass media, which have an inherent attraction to conflicts, especially to humanitarian emergencies that shock the conscience of mankind. Hence, there is no foreign policy that is determined by national interest only. Foreign policies are not, as realists suggest, shaped by ratio alone, but often influenced by emotio also, as pluralists remind us (Ignatieff 1998: 298f; Shaw 2003: 219). An inclusion of humanitarian motives in the definition is therefore applicable. Yet, it remains an interpretative task to decide under which circumstances a motive is primary humanitarian, value-based, rather than national, interest-based. For instance, it is sometimes hard to ascertain the primary

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motivation of an intervention, when at the same time a humanitarian emergency as well as geo-strategic interests of the intervening state are at stage. Those interventions conducted for humanitarian reasons should even be covered by the definition, when they did not result in the factual, desired relief of humanitarian emergency. Such interventions are not losing their humanitarian tag, because the desired outcome is missing, neither would they be impact-free on international society, when conducted unauthorised. Solidarists (unlike Tesón and Wheeler), on the other hand, might have a problem with the inclusion of interventions that were not motivated on humanitarian grounds, but let to the relief of a massive humanitarian emergency ex post. This critique could be based on the interveners view itself: How can we talk of a humanitarian intervention, when the intervener based its action on different grounds? Is this not only a positive side-effect that has no effect on the humanitarian intervention debate? Yet, has it really no impact on the humanitarian intervention debate in IR or the norm-building process of states? Although Wheeler and Tesón are rather alone in their abstract opinion, several authors have included actual cases such as India’s intervention in East Pakistan in 1971, Vietnam’s Intervention in Cambodia in 1978 or Tanzania’s in Uganda in 1979 in their studies on humanitarian interventions. Three cases that have not been justified by humanitarian reasons; although I will determine in subchapter 7.3 for the case of India that it, nevertheless, had a hidden primary humanitarian motivation. Wheeler (among other peers) has done so, to lay out that unilateral (resp. unauthorised) humanitarian interventions appeared already in the 1970s (2000: 55–136). So, interventions without a primary humanitarian motivation or such a justification that led to the relief of a massive humanitarian emergency are playing a role in the humanitarian intervention debate. They are in the eyes of the following generations of scientists events worthy to be discussed. How could I ignore those interventions, then? In result, this study has to include those interventions that were primarily conducted for other reasons then humanitarian one but result in a positive relief effect. At this point I want to make a short detour: Since I doubt the impact such interventions, categorised as HI merely by the outcome criterion, might have for future humanitarian interventions, I would advise in general to exclude them in further HI debate contributions and refocus on HIs with a humanitarian motivation. I argue also with reference to the research question of this thesis for such a broad definition at this point. Dealing with at least two different approaches in the HI debate towards what constitutes the ‘humanitarian’ criterion in the definition, it would be interesting to assess, if there are different results after having examined diverging cases according to the research question posed. Do HIs with a positive relief effect, yet without the primary motivation have different impacts

4.2 Armed Interferences: UNGAR 3314 …

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on international society than HIs with just the motivation in favour, but not the desired outcome? I am not sure, if I will establish such a differentiation. Having examined the HI debate so far, it is, nevertheless, worth scrutinising. Therefore, both, a primary interest-based intervention with a resulting relief of humanitarian emergency as well as a primary value-based intervention without the desired relief, are included in this definition for the specific purpose of this thesis.

4.2

Armed Interferences: UNGAR 3314 and a Narrow Understanding of Intervention

The first criterion to assess is armed interferences. Narrowing intervention to armed interferences means that the mere interference by diplomatic, social, economic pressure etc. is excluded from the definition. This exclusion is a consequence of the assumption that such non-violent interferences in the affairs of another state are insufficient to constitute a case of infringement on the principle of sovereignty, which is backed by two observations: sanction practice and international law (Murphy 1996: 10). This means certainly not that the term intervention can solely be understood as intervention by military measures. Ramsbotham and Woodhouse as well as Bellamy are correct to suggest in general a broad understanding of intervention (Bellamy 2003: 329–34; Ramsbotham & Woodhouse 1996: 106–35). The definition used here is, however, focussing on the most controversial parts of the HI debate. After all, diplomatic, social or economic pressure are less controversial than military interferences (Seeger 2009: 32). To open the route for the broad understanding would blur the focus of this research. Further, international politics continuously deal with cases where one state impose sanctions on another. These sanctions may regard diplomatic, social or economic spheres. Rarely, international society has agreed to condemn pressure used to achieve a specific behaviour by another member of society. The same goes, generally, for the instruments of retorsion and reprisal. As a reply to injustice, states are entitled to execute such non-violent acts against an opponent. A retorsion is even then allowed under international law, when not conducted in the consequence of an unlawful behaviour by the opponent. Such retorsions might be economical embargos, entry barriers for citizens of the opponent state or severance of diplomatic relations. Reprisals, on the contrary, are such measures that are only lawful under international law, when the opponent has conducted injustice to the active state, but which are short of the use of self-defence. Such a reprisal might be e.g. the interruption of the fulfilment of bilateral contracts. Retorsions

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as well as reprisals are legal and accepted in international society by practice and theory. The international society agrees that non-violent actions are allowed in interstate relations. Therefore, humanitarian actions need to be conducted by military force and fit the definition of aggression to constitute an intervention; otherwise they remain interferences (Dinstein 2005: 221; Kokott, Doehring & Buergenthal 2003: 224–6). This observation is also backed by the definition of aggression in international law. The term of aggression is of high importance, because it determines the condition when international peace is breached, which happens in the case of armed interference (Dinstein 2005: 288 & UNGAR 3314: Art. 5 Nr. 2). A broad debate exists about the question, how aggression then shall be defined. Following the debate of the International Criminal Court on the same matter three different approaches can be made: A generic approach, the adoption of UNGA resolution (UNGAR) 3314 for the definition of aggression, or a case-by-case approach based on the Security Council’s decisions (Trahan 2002: 449). In my view the first and last approach should be discarded. The first approach means that a new definition would be found while others already exist; an arbitrary definition, even if made by experts of international law. The last approach would likely result in having no clear definition, since the Security Council is not forced to reason every case and does not even have a record that would come close to universal clarification. Consequently, the most suitable approach to define armed interference is therewith, to draw on the General Assembly’s resolution on the act of aggression. The relevant part of UNGAR 3314 reads as follows: “Article 3 Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression: (a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; (c) The blockade of the ports or coasts of a State by the armed forces of another State; (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;

4.3 Infringement on the Principle of Sovereignty: …

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(e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; (f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; (g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.” (UNGAR 3314)

This resolution contains a limitation for minor cases. Article 2 ‘admits’ slight incidents, which “are not of sufficient gravity” (UNGAR 3314). Those shall not be regarded as an act of aggression. This threshold prevents from disproportional responses to minor cases, since those responses are seen as the real act of an aggression. Before stipulating “a few stray bullets across a boundary” (Broms 1977: 346) as illegal act, UNGAR 3314 has excluded such cases and denied the route to self-defence for these in order to secure international peace (Dinstein 2005: 128; Seeger 2009: 41). For this research this de minimis clause will enable to exclude minor cases. Summarising the specification of this criterion: only the active use of military violence or the blockade of a port trigger an armed interference.

4.3

Infringement on the Principle of Sovereignty: The Prerogative of Invitation

The second criterion I will specify is the infringement on state sovereignty. An armed interference that is conducted after an invitation resp. permission is given by the state being targeted does not infringe on the principle of sovereignty. I will call those events ‘humanitarian assistance missions’ (HAM) instead. An important question is whether HAMs that are welcomed only because of previously on-going non-violent pressure, constitute such an infringement. To phrase it differently: Would an invitation given after intense diplomatic pressure still be sufficient for a HAM or has an armed interference on this basis to be determined as infringing on the principle of sovereignty? To find those events infringing on sovereignty would mean supposed-to-be assistance missions invited under constraint would be in fact interventions. Well, why then should the acting state use non-violent pressure in the first place, when its succeeding actions would

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be considered as an intervention? If the acting state violated international law regardless of whether it used non-violent pressure in the first place or took direct recourse to the use of force, it would more likely prefer the latter one. Hence, an escalation ladder exists: Intervention is first reached, when a state is using military force that is conducted without the consent of the government of the intervened state ex ante. Only the use of force, but not diplomatic pressure beforehand, has to be determined as an infringement on state sovereignty. More problematic are conditions when the circumstances on the ground make it hard to identify who is actually in charge, with whom the power in the state in focus rests. This is a situation quite common in civil war, when rebels are attempting to overthrow the current government or head of state and seek for a regime change. In international law, it is necessary that an invitation comes from the official government under the rules and regulations of domestic law (Dinstein 2005: 114). “The consent of a state [for an intervention] cannot be deduced from the request of a puppet government […]” (Wright: 1957: 275). Lauterpacht adds: “So long as the revolution has not been fully successful, and so long as the lawful government, however adversely affected by the fortunes of civil war, remains within national territory and asserts authority, it is presumed to represent the State as whole” (1947: 93). However, it may be argued in international law that there is a point when a government is not able to execute its power ‘effectively’ anymore. It is even discussed if in such conditions a sovereign state does still exist (Kokott, Doehring & Buergenthal 2003: 18). But, can this theory of effectiveness be translated to the sphere of practical international politics? Taking a look on the practice in international society especially in the first among failed states, Somalia, I think it is quite obvious that the society at any point of a civil war and even in a de facto domestic anarchy is tempted to identify the last piece and body of government with whom sovereignty still may legitimately rest. International society tries to avoid any vacuum. A willing intervener—or better assistant—has every right to acquire its invitation even from a government that has its power and influence reduced to the capital or a suburb of it, or—as in the case of Sierra Leone—to the capital’s airport.1 What is necessary, as Wright said, is that it is not an illusion of government but still according to domestic law entitled to exercise the sovereignty of the state. In sum, although in international law theory the effective assertion of power might be necessary for a government, it is not practical to wait until a government under siege regains control in order to assist it in its attempt to re-establish order and therewith the conditions for safe human life. 1 See

subchapter 7.14

4.4 Massive Humanitarian Emergencies: The Shock …

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Besides the problems of invitation and who is entitled to issue such, it is sometimes emphasised that Article 2 (4) UNC, which forms the basis of prohibition of the use of force in international law, states that an intervention is aimed “against the territorial integrity or political independence” (UNC: Art. 2 (4)). Those doing so (e.g. Tesón) argue that humanitarian actions can never constitute an intervention, because they are not directed against the territorial integrity or political independence of a state, but on the humanitarian emergency in a specific area (Tesón 1997: 150f). Truly, considering the letters of this article only, neither the integrity nor the independence of a state is affected. However, taking a look back on the San Francisco Conference at the beginning of the UN, it is obvious that both were an accentuation of the principle of non-intervention rather than a qualification. This emphasis was added with an adopted amendment introduced by the Australian delegation. It was never the intention of the contracting parties to relativize the principle of non-intervention by this formulation (Akehurst 1984: 104f; Chesterman 2001: 49; Holzgrefe 2003: 37f; Ninˇci´c 1970: 72; Seeger 2009: 76f). Having said this, actions conducted against the sovereignty of a state for humanitarian purposes are not excusable by Article 2 (4) UNC and remain interventions. Thus, an action constitutes an intervention only when conducted without a previous invitation. On the other hand, every infringement on the principle of sovereignty constitutes an intervention, regardless of its purpose. In case a government’s assertion of power is challenged or limited, this government is still entitled to issue an invitation for assistance.

4.4

Massive Humanitarian Emergencies: The Shock of Mankind’s Conscience

Coming from ‘intervention’ to ‘humanitarian’: the world summit of 2005 adopted a broader criterion of massive humanitarian emergencies than has been proposed with the ICISS concept in 2001. While the just cause has been for the ICISS large scale loss of life or large scale ethnic cleansing (ICISS 2001: 32f), the UN added war crimes and crimes against humanity also (UNGAR 60/1: 30). Interestingly, the ICISS was more cautious and even referred to “those crimes against humanity and violations of the laws of war […], which involve large scale killing or ethnic cleansing” (ICISS 2001: 33), therefore with the non-restrictive clause limiting it to deaths or ethnic cleansing only. It would be interesting to analyse why the world summit has gone beyond the original concept, but this would lead us to far away from the topic of this thesis. However, I assume that in this case the

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established norms of the international criminal law regime have been transmitted to the new R2P norm. So, we have to deal with diverging specifications of massive humanitarian emergencies: the ICISS limited one and the UN broader one. For this thesis, I will use the ICISS introduced—and here limited—specification of the original R2P concept. Although, as said, this is not the place to examine the reason the R2P norm seems to be based on the Rome Statute, I suppose that it is likely that practical, political considerations have outweighed rational deliberations. If international society, as discussed earlier, had prior to 2005 problems to deal even with cases of probable ethnic cleansing as in Darfur, why should it include then elements of human rights that are even more difficult to prevent and—one has to admit—compared to averting genocide and ethnic cleansing are of lower priority? As shown in the case of Obama’s ‘red lines’ in Syria, war crimes, such as the use of chemical weapons (esp. against civilians), are hard to stop and even harder to retaliate against and prosecute. In an environment where even the more severe violations are difficult to prevent and to be reacted to by international society, it is rather ambitious to include those two latter criteria (Evans 2008: 11f). The preference for the narrow specification is further supported by operational necessity for this thesis. As laid out in the content overview in the introduction and stated at the beginning of this chapter, this thesis will conduct a case identification in its second part. To determine a large scale loss of life or ethnic cleansing will here be unproblematic with the existing dataset. Yet, the contrary goes for crimes against humanity and war crimes. While the Rome Statute counts five cases of the crime of genocide, it counts eleven for crimes against humanity and more than fifty for war crimes (Rome Statute: Art. 6–8). Hence, I am convinced the attempt to identify humanitarian interventions would be made extremely difficult, when one has to determine not only large scale loss of life or ethnic cleansing, but also war crimes and crimes against humanity. It would not offer much for this thesis to add cases, which are that difficult to determine, when they obviously rarely lead to an intervention anyway. In consequence, both due to an estimated minor importance for the task at hand and a highly problematic, inefficient operability the broad specification of massive humanitarian emergency will be declined for this thesis and the narrow one chosen. Massive humanitarian emergencies considered here take place when a large scale loss of life occurred (a) that has been caused or not prevent by the state responsible (b & c) or an ethnic cleansing took place (d). Coming to criterion (a): At which point is it appropriate to talk of a large scale loss of life? In practical politics this is not a matter of numbers, but

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in Oppenheim’s sense a matter of shocking the conscience of mankind.2 Furthermore, Michael Walzer is right when he condemns any specification of this “old-fashioned language [which] seems to [him] as exactly right” (2004: 107), because it is not a matter of criteria, but of “moral convictions of ordinary men and women” (ibid.), which determines whether a humanitarian intervention should take place or not. Therefore, it is necessary to decide on a case by case-basis if those criteria are fulfilled.3 The criterion becomes more difficult to evaluate, when not an actual but an apprehended large scale loss of life appears. According to the definition used here this option would open the path for a humanitarian intervention that is preventing and not ending a massive humanitarian emergency. It is not reasonable for a possible intervener to “wait for the killings to start if there is clear evidence of an impending massacre” (Bazyler 1987: 600). Again, the Kosovo intervention, can be used as an example for such a case. The problem here is that it will be more difficult to ascertain if there is genocide or ethnic cleansing imminent. It is quite sure that in exactly those cases that already lead to frictions in international society, this apprehension will be focussed on. Coming to criteria (b & c): The actual or prepared loss of life needs to be directly connected to the state responsible for the fatalities in the first place. A natural disaster claiming many victims would not be sufficient on its own because the loss of life has to result from state action (b), a lack of such or the inability of the state to act at all (c). The last case may occur, either because the state was not capable of doing so in the specific circumstances or it can be generally regarded as a failed state. Finally, criterion (d) has to be specified: Besides a large scale loss, an ethnic cleansing constitutes a massive humanitarian emergency as well. Hereby, an ethnic group is expelled from their ancestral territories. From the perspective of the violator the area has been ‘cleaned’. Such a cleansing does not necessarily mean that genocide has taken place. However, every genocide is an ethnic cleansing as well (Mann 2005: 11–8; Petrovic 1994: 354–8).4 The same state responsibility as stated above in criteria (b & c) is necessary for this kind of massive humanitarian emergency. 2 The

term ‘shocks the conscience of mankind’ is commonly used in international law to describe the crime of genocide (ICJ 1993: 348; Oppenheim 1955: 279). 3 For the practicability of this research I will start with pre-selecting the cases that have experienced more than just limited violence. These cases will then be scrutinised in detail in the case selection chapter. 4 For a systematization of types of cleansing in relation to types of violence see Mann 2005: 12.

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The inclusion of additional triggers for this criterion will overshoot the goal. Bellamy as well as Tesón have argued for a wide interpretation of this central criterion of ‘humanitarian’ (Bellamy 2003: 335–8; Tesón 2003: 95). Likewise, the attempt of Wheeler (at least in part) to include the breakdown of states as a cause for humanitarian intervention would lead too far (Wheeler 2000: 34). Such an anarchical situation is not itself a massive humanitarian emergency. As Bull pointed out, anarchical societies have existed through the history of humankind. Anarchy in this context means a society without a clear supreme institution (Bull 2002: 57–62). Hence, anarchy does not necessarily denote a collapse of law and order, as Wheeler suggests. The narrow understanding as incorporated in the R2Ps (concept and norm) or in the definition for this research is commonly shared in the HI debate (Bellamy 2003: 335; ibid. 2008: 623f; Evans 2008: 11f; Walzer 2004: 107; Wheeler 2000: 50). In sum, I specify a massive humanitarian emergency according to the original R2P concept as large scale loss of life or ethnic cleansing. Such a ‘large scale’ will be determined inductive without a fixed numeric or relative threshold. I have to be convinced that the common appreciation of states in international society is that the scale shocks the conscience of mankind; in this case I can determine a massive humanitarian emergency.

4.5

Humanitarian Motivation: The Interpretative Way

For the criterion of humanitarian motivation, a more interpretative approach will be necessary than for the other criteria. The motivation of a state cannot be analysed solely with datasets and official documents. Otherwise it would be easy to abuse the criterion of motivation in international relations by just dissembling one’s intention. Here, it is obvious that recourse to an interpretative, classical approach is necessary; I need to scrutinise the motives of a state on an individual basis (Finnemore 1996: 158f). Although this means a higher responsibility for the researcher’s own choices and positions, one may find indications that help to uncover a pretended or true motivation. Such indications can be of strategic, event-/conduct-related, behavioural or systemic nature. This list is not complete, but their examination might give evidence which kind of indications one has to look for. Starting with the strategic indication, we have already seen the realist criticism on humanitarian interventions, which neglects any motivation other than national interest: A state never acts on behalf of others, but on behalf of itself only. Therefore, I consider the interests of the intervening state regarding the inventing state

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(Welsh 2004: 62f). The indication through the specific course of events is similar. One may find that the particular course of action is usually based on other reasons than presented to international society. For example, continuous border violations between two states may unlikely end in a humanitarian intervention, but rather in a classic interstate war; or the primary occupation of economical points of interest by the supposed humanitarian assistant may falsify a humanitarian motivation (Wheeler 2000: 40). Further, signs may be found in the long-term behaviour of the state. As long as a state is able to resist using force in every-day politics and upholds an appreciation for the observance of human rights, a state may resort to humanitarian intervention motivated in sincerity. So, its international reputation in the fields of use of force and human rights are important, too (Linklater 2007: 85; Vincent 1986: 106). Finally, drawing on the liberal theory of democratic peace and the specific character of democratic states one may even conclude that democracies inherently use humanitarian motivations in just causes only or are at least more likely to do so than non-democratic states. After all, the question remains how one considers the fundament of international society and the rules in national decision-making processes. Realists may focus on the strategic, national interests, as liberal scholars might bear upon the systemic character of the intervening state. I, however, have the basic premise that the current international structure is a pluralistic international society with solidaristic potential. Therefore, none of the possible indications are excluded; nevertheless, the relevance of the extreme kinds of indication might be negligible. Moreover, multiple motivations may be possible, for which reason the predominant aspect of motivation forms the basis for my assessment (Tesón 1997: 121). This is coinciding with the scholar consensus (shown above) that the humanitarian motivation must be primary in order to constitute a humanitarian intervention. The United Kingdom (UK) likewise reasoned during the Kosovo case that the national interest does not negate a humanitarian motivation for intervention (Wheeler 2000: 267). Therewith, the predominant indications have to be preferred in a particular case.

4.6

UNSC as the Only ‘Competent Body’: Infringement on the Principle of Non-Intervention

The category of humanitarian intervention being the focus in this research is UHI. Its counterpart, AHI, is widely accepted as legal (Akehurst 1984: 106; Evans 2008: 134; Franck 2003: 216; Henkin 1999: 826; Jackson 2000: 25f; Linklater & Suganami 2006: 72; Murphy 1996: 2; Simma 1999: 1–6; Vincent 1986: 117;

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Wheeler 2000: 8, 16, 168f, 183, 200, 285 & 295). This consensus is existing in international law as well as in IR. Pluralism is accepting AHI as marginally effecting international order. As Jackson expressed it: What is necessary to enforce human rights is the unity of great powers. To jeopardize this unity would mean to hazard international order in whole (Jackson 2000: 291). Great power cooperation ensures pluralists that at least this category of humanitarian intervention is less dangerous for the international order (Linklater & Suganami 2006: 143). A finding that can be made by the observation of international practice since the French Revolution as well: Where great power cooperation was not given, single great powers refused to intervene most of the time between 1789 and the First World War (Seeger 2009: 63–8). Therefore, unauthorised humanitarian interventions nowadays remain the sole controversial issue within the HI debate. Prior to the UN era, authorisation meant the mandate to conduct interventions given by a competent body of international law. Such a competent body was every sovereign in international society, prior to the establishment of the prohibition of the use of force and the principle of non-intervention (Dinstein 2005: 75–7). This understanding can be traced back to Grotius: “[…] [A] publick War ought not to be made, but by the Authority of the Sovereign” (Grotius 2005: 257). Since the foundation of the UN, the only right to wage war for states is given in the case of self-defence. Besides this, the Security Council has a right to infringe legally on the principle of non-intervention. Based on Art. 39 in conjunction with Art. 42 UNC, the council is the competent body by international law to decide a threat or breach of peace and thereby mandate the use of force to restore international order. Regional organisations, however, should have in my opinion the right to establish intraregional legal regimes, under which they are able to establish a competent body for the authorisation of a humanitarian intervention in a member state (Pohlmann 2008). Such a development can be seen e.g. in the Economic Community of West African States (ECOWAS) (Franck 2003: 223; Mayall 2000b: 98). At first sight, those agreements would not threaten great power cooperation, since those states would deal with matters within them, solely. Yet, the UNC and international law does not recognise such an exception for regional organisations at the moment (Seeger 2009: 164f). Thus, I will categorise humanitarian interventions regarding their mandate given by the Security Council in authorised and unauthorised humanitarian interventions. At last, it is necessary to clarify the point of time at which the authorisation is given. In some cases, the Security Council has passed resolutions to cases after they have taken place. Thus, they may have gained legalisation ex post. In my view, a resolution legalising such cases ex post is reached under military coercion

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after the facts have been made and does not constitute the true consensus of international society. Hence, such cases would be under pluralist assumptions as harmful as other unauthorised humanitarian interventions. In sum, while authorised humanitarian interventions have a mandate of the Security Council ex ante, unauthorised humanitarian interventions have no such mandate, or the mandate was given ex post.

4.7

Positive Relief Effect: When the Outcome Justifies the Means

Above I made it clear that I do neither concur to include interventions with solely a positive relief effect on a massive humanitarian emergency, nor to exclude the primary humanitarian motivation in a general HI definition. However, events, which are subsumed under this category of outcome-defined HIs, are common in the HI debate: Cambodia and Uganda. I, therefore, have included this second kind of HIs in the specific HI definition used here in order to compare the results of UHIs in the different categories of ‘humanitarian’ in chapters 12 and 13. What still remains is to determine when such an outcome-defined humanitarian intervention with a positive relief effect is at place. A wishful thought would be that the HI debate has already established a hardnumeric number or equation as is the case in peace and conflict studies. But this is not the case. The most workable attempt in HI literature is Seybolt who seconds the outcome definition of HI and states that it should be determined by the number of lives saved (2007: 3f). Thus, when the intervention ends there have to be fewer civilian casualties than in the time prior to the intervention. The same would go on for internally displaced persons or refugees—as to operationalise the ethnic cleansing option of MHE. More problematic is to specify the time between the beginning and ending of the intervention. To conduct a successful intervention is already difficult, to do so with as few civilian casualties as possible even more so. Consequently, adding that during the intervention the number of casualties or displaced persons has to halt or at least not significantly rise would make it much harder to verify any HI. A second problem is the threshold in time for the ‘safe phase’ after the intervention ends. If one sets the necessary ‘safe phase’ too long, it is quite likely that the transitional period with intervention troops already being pulled out, leads again to violence, casualties or displaced persons. To set the ‘safe phase’ too short, would rise the likeliness that no sustainable security has been established. Both problems, I believe, cannot be determined deductively without having a grip on actual cases. With the problematisation here, the necessary transparent argumentation has been done in order to examine such cases as neutral and

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objective as possible. In sum, I would assume that—as Seybolt pointed out very briefly—the time after the intervention has to result in less casualties and displaced persons than prior to its conduct; how to determine the timeframe before and after as well as how to include the intervention phase itself has to be determined within the case selection.

4.8

The Definition of Humanitarian Intervention (Chapter Summary)

This chapter has shown that within the HI debate there is a common core to a HI definition shared by a vast number of scholars and most likely on both sides of the aisle: in pluralism as well as in solidarism. Yet, I have argued that for this thesis a broader definition shall be used, or better, the definition shall be expanded with an element in the edge of the debate: namely Tesón’s and Wheeler’s option to include interventions without a motivation but with a positive relief effect on a massive humanitarian emergency. Although this can just be a by-product of this thesis, I desire to examine if those outcome-determined HIs have a different or the same impact as motivation determined HIs. Interestingly, those outcome-determined HIs (as Cambodia or Uganda) have been included in several contributions without even having considered that those are not fulfilling the commonly accepted HI definition, but only the outcome-determined one. Further, I have distinguished between authorised and unauthorised humanitarian intervention. As I have shown above, the former is almost uncontroversial in HI debate. Yet, UHIs are the ones where the appreciation of solidarists and pluralists, especially regarding their impact on international society, differ fundamentally. This is the very reason why this differentiation has been included in our HI definition. The definition that has been elaborated for this assessment is a broad one: Humanitarian intervention is an armed interference in the sovereignty of a state conducted with the motivation to relieve or prevent a massive humanitarian emergency. Leading to a positive relief effect on such a crisis, an intervention might be seen as humanitarian likewise. It is unauthorised, when conducted without the mandate of a competent body of international society. To be able to work with this definition and stipulate the specifications beforehand and not wait until the case selection process, I have specified the criteria and discussed different approaches to do so in this chapter. Coming to ‘intervention’,

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only the active use of military violence or the blockade of a port triggers an armed interference. It is not an intervention when conducted with a previous invitation of the targeted state. As is common in civil wars, the circumstance that the assertion of governmental power is challenged or limited, does not restrict the government to issue an invitation. Coming to ‘humanitarian’, I have specified massive humanitarian emergency according to the original R2P concept as large scale loss of life or ethnic cleansing. Such a ‘large scale’ will be determined not by a numeric or relative threshold, but by an interpretative approach. Further, I have discussed which indications might show that a humanitarian motivation is at place. Those can be of strategic, event-/conduct-related, behavioural or systemic nature (among others). And finally coming to the expansion and differentiation of the core definition, I have argued that an authorisation for a HI cannot be given ex post, but has to be given by the UNSC ex ante and discussed the possible but in a deductive way problematic specification of the positive relief effect. In consequence, in the subsequent case selection part six criteria have to be examined, two of which can be examined in one step. The sequence of criteria examination will be altered in the following, in order to reduce the workload and stop early, if a (less difficult to assess) criterion is not met: – – – – –

Armed interference Unauthorised Conduct (Infringement on the Principle of Non-Intervention) Infringement on the Principle of Sovereignty (Invitation) Humanitarian Motivation Positive Relief Effect (and therewith Massive Humanitarian Emergency)

5

Impact Theorems: Concretising the Solidarism-Pluralism Debate on HI

In my conclusion on the HI debate, I stated that the early HI debate was more holistic and not as narrow as it has become after ICISS’ report and its turn into the R2P debate. At the beginning of the discourse on humanitarian intervention the focus was not as much on ethics, law or practice alone, but on its interaction with international order and consideration under diverging IR theories. After 2001, contributions in such a spirit have been somewhat marginalised. Although I am glad that IR discipline in general, and those contributing to HI and R2P in specific, have changed the world to a potentially better future, it is quite disappointing that the debate has lost its earlier broad view. In this phase, little attention has been paid to the possible problems (as positive potentials for international society likewise) for international society arising with the desire for HIs without UNSC authorisation. In a discipline, whose goal it is to keep and establish Kant’s dream of a perpetual peace, it appears too short-sighted to focus on do-gooder and technocratic debates, while losing the view on its potentials and dangers. After getting the insight in the HI debate as well as its theoretical frameworks and having established a definition for this thesis in chapters 2–4, in this chapter I will theorise and pose theorems on the potential impact of unauthorised humanitarian interventions on international order and human rights. I want to emphasise that this chapter is a theoretical element of my thesis and not a methodological one. I will consider the potential impact of UHIs without the constraints of a specific research design. To transfer the following arguments and resulting theorems in more detailed research questions with identifying possible indicators and explaining the underlying assumptions, which can be quantitatively analysed or qualitatively assessed, will be the task of chapter 8. Likely, it will be necessary there to cut some of my theorisations short and focus on those theorems that can be efficiently studied with a clear and focussed research design. © The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2021 C. Pohlmann, Unauthorised Humanitarian Interventions in World Politics, Globale Gesellschaft und internationale Beziehungen, https://doi.org/10.1007/978-3-658-32179-6_5

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Nevertheless, the value of this chapter is to have a deeper insight in the fears and beliefs solidarists and pluralists have while arguing for or against a right to unauthorised humanitarian interventions. Before coming to the potentials and dangers, I will expand my basic premises and intention as laid out in the introduction in order to enrich a fruitful critique on this thesis. Is it not the most pleasant task for a scholar in our field to discover the conditions for the peaceful co-existence in our world of human beings? As Burke reminds us, conflict and war cannot be banished in the anarchic society, hence, we shall attempt to mitigate “those evils which we are unable to remove” (Burke 1999: 134). Indeed, such a peace shall not rest with states alone; it needs to be transferred and opened up for their individuals, who are the reason for their existence in the first place. Yet, does the society of states not found its legitimacy on the well-being of its citizens? When Tesón states that “whatever the merits of the state system, its preservation cannot surely be achieved at the kind of human cost” (2003: 112) he leads one to assume that international society is not sufficiently securing human life. I argue that the contrary is the case. We have not seen a phase of international society as peaceful as now, with the principles of sovereignty and non-intervention as well as the respect given for international law (human rights being a part of it). The latter cannot be endangered by the former. Those who might prefer the former above the latter, might ask the question why academics, diplomats and statespersons deem the sovereignty of states to be of such fundamental value. Shall the merits ancestors achieved for international peace be endangered by claims the current generation is making? Shall the right to humanitarian intervention be paramount to the right of sovereignty? Or, would it be wise to harmonise the rights of individuals with the order on which international peace is based on? I second pluralists, who argue that the enforcement of human rights is best done with the current international order and not against it (Chesterman 2001: 236; Franck 2003: 229; Jackson 2000: 291). The idea I prefer is a harmonisation of the right to humanitarian intervention without the authorisation of the UNSC with international order. For this task the problems of such an integration need to be scrutinised, in order to profit as global society from its potentials. As Kuperman has challenged the “common wisdom […] that humanitarian military intervention reduces the amount of genocide and ethnic cleansing” (2006: 1) by examining their impact on specific cases and therewith not at least enabled politicians, diplomats and militaries to conduct HIs more successfully, I want to challenge the belief that a right to UHI will come without a severe effect on international society by examining the impact of UHIs

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on international order and human rights. Nonetheless, I will do so as impartially as possible and suitable for a scholar of international relations, following the empirical evidence and assessments wherever they lead.

5.1

The Value Decay Cascade: Abusing Humanitarian Motivation

The first problem coming along with humanitarian interventions is based on the core of realist thought, as it is also embedded in English School theory: ‘Realpolitik’. Realism traces every problem, every decision, and every mannerism of international relations back to one single point: the national interests of states. Reason of state, raison d’état or ‘Realpolitik’ is the source of decisions made in international politics for realists—as well as an important source for rationalists (Waltz 1959: 211). A state will only acts, if it serves its ends. Translated to humanity, it is only of matter for states if it serves their purposes. But, when does humanity serve a state at all? For realists benevolence is never proper. A state seeks power, regardless if violent, meaning military, or non-violent, meaning economic, diplomatic and so on. Humanitarian motivation can never be a real, a true motivation. Under realistic understanding it has to be abused for primary, selfish ends. In consequence, a humanitarian intervention is just a smokescreen for interventions on other grounds (Ayoob 2002: 86; Farer 2003: 77–9; Wheeler 1992: 471; Wheeler 2000: 29). This understanding of primary ends is widened in rationalist thinking. English School theory, our day’s rationalist heir, rejects the realist black box of national interest. Military or economical ends might be important parts of national interests, but are not the only ones (Bull 2002: 63f; Welsh 2004: 62f). Statesmen and -women are no robots who execute operations that are defined by raison d’état but human beings, who might be more cold-blooded than their fellows, but are still made of flesh and blood. Heads of state not only decide by reason of state, but at least also by reason of humanity, which is accepted by classical realism, contrary to neo-realism. Additionally, statespersons are not only bound by the interest of state, but by their own interest of adhering to power. In democracies, governments will not only base their decisions on the best for the state, but also on the best for their re-election. In autocracies, dictators will not only base their decisions on the best for state, but on the best for their political and physical survival. The realist legend of the black box of national interest is a dystopian fallacy. Indeed, there is a danger of abuse of humanitarian interventions, but not every humanitarian justification for an intervention is a smokescreen. Humanity and democratic

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values may constitute a real motivation for humanitarian interventions (Jackson 2000: 171; Vincent 1986: 124f). Why is the potential for abuse so problematic in theorising about HI? As we have seen, order in our current international society is not only maintained by the great power concert and balance of power—which would be rather disappointing for minor states—but to a large part as well by the rule of law and the reciprocal assumption that when state A is respecting the sovereignty of state B as well as the principle of non-intervention, state B will do the same in respect to state A. In my view, the rapid reduction of interstate conflict has shown that this assumption is met by reality in the 21st century international society. Most important here is the clear reduction of exceptions to non-intervention on two cases as embedded in Chapter VII UNC: Measures by the UNSC in order to “maintain or restore international peace and security” (UNC: Art. 39) and here then actions infringing on the principle of sovereignty (UNC: Art. 42) or “the inherent right of individual or collective self-defence” (UNC: Art. 51). Besides this, the route to armed interference is blocked. When we now witness from time to time that even this clear and high limitation is trespassed—e.g. by arguing for a right to preventive self-defence (USA in the Iraq war of 2003) or a right to self-determination of people that would outrank sovereignty and non-intervention (Russian Federation in the Krim annexation of 2014)—we can understand how strong the tension between national interest and the rule of law esp. for great powers is. Would the principles of sovereignty and non-intervention now been compromised or altered by frequent UHIs, UHIs commonly accepted or even a right to HI without seeking the authorisation of the UNSC, international society would be confronted by a far lower limitation. Having stated three possible endangerments (practice, acceptance or legal amendment), I want to clarify that I deem each possibility to be dangerous. In the eyes of the potential intervenee it does rarely matter if the danger lays in a frequent practice, an establishing customary behaviour of states or even in the alteration of previous international law. Concerning self-defence, the rules and regulations are very clear in international law; the only major challenge laying in the argument for preventive self-defence, which has been ruled out by a vast majority of international lawyers. And still, even in this ‘difficult’ environment for warmongers, international society witnesses attempts to justify interventions on this ground or an even more rickety basis (Farer 2003: 74–80). This restricted environment would clearly be not the case with UHIs entering the stage. There would be a broader way to justify intervention, than prior to UHI. Having always pursued their national interests, states offered a wider range of justifications will be more tempted to recourse to intervention. One may argue

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that in the individual case the persuasiveness of the benefit of the principle of non-intervention would still lead to the peaceful option. But I would argue that not the ideal individual case matters, but the enlarged possibility. When the probability gets higher, the time to see such a first case of abuse of the humanitarian motivation becomes shorter; this is a probabilistic risk assessment. Hence, I argue, as many scholars in the HI debate have done before: With a way to HI aside of the UNSC authorisation comes the danger of its abuse (Chesterman 2001: 231; Seybolt 2007: 5). What consequence has this danger of abuse? The institution of international law, which has become so important in our current international politics, established a peaceful international society. It has paid off, quite literally, since it is not as necessary for states to prepare for war as it was prior to the UN era and esp. prior to the end of the Cold War. Being confronted with a shaky third exception to the principle of non-intervention, distrust and friction raises again. The control about war that foremost was bound to the UNSC and therewith to great powers is forfeited. International society and its states are endangered by “floodgates to intervention” (Linklater & Suganami 2006: 140; Wheeler 2000: 47) that might open. States that could rely on the previous strong rule of law, must prepare for self-help again. The institution of international law will be pushed back and the institutions of balance of power, of great powers and war regain higher importance again. Although I speak here of institutions as incorporated in English School theory, this is also rather literally meant. Preparing for self-help, states have three options: First and most difficult to establish defensive alliances; the right to collective self-defence is still given and will also be valid against an intervener with supposed-to-be humanitarian motivation. Although, I have seen esp. in Tesón’s writing many revolutionary ideas, I have not seen any argument that the intervenee shall lose its right to self-defence. Yet, this way is problematic since such a state has to find other states willing to establish such an alliance. An alliance must be founded for which the intrinsic interest has not been there prior to UHIs emerging. I find this possibility least likely. Secondly, such states might try to rely more on the protection of great powers or regional powers. We call this the bandwagoning effect. Thirdly, states will take self-help literally and increase their defence capabilities; take recourse to armament (Mearsheimer 2001: 162f; Welsh 2004: 63). As said, I find the alliance-building not very likely and will focus now on bandwagoning and armament as response to this danger of UHIs.1 1A

fourth way to establish protection might be proactive, preventive self-help. The problem here is that it is not assured who the potential opponent will be. So, there seems to be

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So, the step 1a in the down-spiral after established UHIs will be bandwagoning. Weaker states that are endangered by the possibility of UHIs will seek the protection of stronger states. Yet, weaker states that could previously rely on international law, will have contributed to the enforcement and maintenance of this rule of law. If they now have to bandwagon with stronger states, the institution of international law will be weakened by losing those vigorous supporters (Burchill 2005: 167; Wheeler 1992: 486; Wight 1991: 130). Further, the power of great powers will increase; a circumstance that will be important as we are looking further down the spiral. Step 1b will be the armament option. Besides turning to great powers or the less likely option of alliances, the first way of protection is: train, equip and prepare. In his early writings Wheeler acknowledged that weak, potential target states of HIs, will have “incentives […] to try and improve their power position in the international order, leading to the further militarisation of international relations” (Wheeler 1992: 486). Throughout history of states, every uncertainty, every crisis, every misunderstanding on an international level has brought forward the hawks in the state’s elites. Although we live now in prosperous and peaceful times, what we can witness after Kosovo, Georgia and Krim is the rearmament and militarisation of politics in the West and the East. The ideological differences are missing this time, but the rivalry between NATO and the Russian Federation as well as the recourse to potential self-help is growing again. Why should it be any different when it comes to UHIs, which cause even more uncertainty? What follows with bandwagoning and armament? A highly weakened institution of international law. As made clear before, within English School theory, it is commonly accepted wisdom that this institution is the element for a more peaceful international society. Staying on the abstract level, weakening international law will necessarily lead to less security and less order in international relations. Yet, getting more concrete: For bandwagoning I have said that this strengthens great powers—which are already most powerful—and perhaps regional powers as well. Great powers who are in lesser need to rely on the rule of law, but their own capabilities will not be as incited to maintain, enforce or even respect no definite target for preventive action. Yet, considering that foremost democracies are tempted to use a humanitarian motivation as justification for intervention (being it abused or not), would at least narrow the target list. Here now the actual confrontation between the NATO and the Russian Federation shows that it is quite possible to act against a potential democratic state intervening proactive by using the methods of hybrid warfare and destabilise those potential opponents from within (e.g. by the tools of propaganda and fake news). Yet, for this research this kind of deterrence will be too difficult to examine. Therefore, I will not take recourse to this fourth option.

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international law as minor powers are. They will trust more on their non-violent influence or violent enforcement capability. Further, with more power to one great power and less differentiated distribution of power comes the necessity of other great powers to increase their effort to maintain the balance of power. Coming to armament. Minor states, concerned by the possibility to be a target of an intervention with an abused humanitarian motivation, will arm themselves. Yet, this armament does not necessarily reduce the risk of being intervened in. Neighbours might take recourse to armament themselves, because they estimate an increased risk through the renewed military power, which might be used for other purpose than self-defence; what is another realist paradigm: the security dilemma. In the absence of absolute transparency, every armament may raise the risk of being used against one’s own. Since having the responsibility for more than just their own life, state leaders must take recourse to armament itself; the dilemma begins. Both the enlarged likeliness of a recourse to violence as well as the re-emergence of the old balancing of powers will lead to step 2: a less orderly and stable international society and therewith increased anarchy. A third step in this cascade follows. Through the recourse to bandwagoning and armament as well as the increase of anarchy, international society is confronted with classical international problems. The UNSC most likely will deal with mitigating tensions between great powers. Summits deal with arms control and disarmament. State budgets will focus more on their own defence than human security abroad. International society will become primarily engaged with the maintenance of international peace and international order, not with the enforcement of human rights or the establishment of international justice. The Security Council, world leader summits and heads of state would be challenged with this primary problem of internationality. They simply have less capabilities and resources for the maintenance of human rights as in a stable order. And this not only concerns military force and monetary budget, but also attention by senior cabinet members, time for special conferences and so on. What is true for politicians is also applicable to international media and mankind as a whole. Thus, international society will be less able to mitigate massive humanitarian emergencies, when facing the problems of great power conflict and recourse to war again. A further effect of this erosion in international law would be the erosion of the human rights regime in general. A state, which is confronted with the possibility of humanitarian interveners would spend less resources on negotiating new treaties in this regime, when it is obvious that an interested party could start an intervention at any time, regardless if such treaties are adhered to or not. In sum, the international society is additionally challenged by a step 3 in the aftermath of

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emergence of UHI: a value decay (Jackson 2000: 259 & 291; Morris 2013: 1274; Seybolt 2007: 5; Vincent 1986: 134f). In sum, I assume that unauthorised humanitarian interventions might lead to what I call the value decay cascade. Through the direct effects in a first step minor states, which have to anticipate being target of an intervention with abused humanitarian motivation, react by bandwagoning to great powers (or at least regional powers; less likely alliance-building) and armament. This leads in a second step to the effect that international society as whole is confronted with increasing disorder, instability and increasing anarchy. In a third and final step international society is less able than before to deal with matters of human rights and inter- or supranational justice. It cannot deal with matters of common value, when common interests are in danger again. So, international society faces value decay, finally.

5.2

Eclipsing the Security Council: The Impact of UHI’s on the Central Secondary Institution

In my outline of English School’s understanding of international society, I have mentioned that ES originally focussed on the fundamental institutions (international law etc.) but supplemented it within the last two decades with the study of secondary institutions (UNSC etc.) and their interaction and mutual influence on each other. I want to supplement the value decay theorem presented just now in a coinciding approach. While I have, in the previous subchapter, focussed on the impact of UHIs on fundamental institutions as well as international order and international society in general, I now want to theorise about the impact of UHIs on the central secondary institution: the UNSC. I agree with Knudsen that the traditional English School approach and the arguments in the HI debate originating from it, might have underestimated the significance of this UN body (Knudsen 2019: 10f). I find that it is difficult to understand its peculiarities if solely considering fundamental institutions. Let me start this time by explaining the merits of the UNSC for the mitigation of massive humanitarian emergencies and the danger a disturbance of the UNSC might consequently cause. To some extent the arguments I will bring forward now are specifications, just made previously abstract for the fundamental institution of great powers. In my view, the UNSC has three positive functions when it comes to mitigating MHE: firstly, passing the responsibility to protect human life from international society in general to a specific and capable body, when the individual state abdicates its responsibility. Secondly, to function as jury that determines

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whether a MHE has occurred or not. This might seem as just one element of its general responsibility, but since it has been a focus in literature, I emphasise this element as an individual function. And finally, to function as the diplomatic forum in which the peaceful and frictionless mitigation might be reached. As is normal for mankind, we first recognise something when it is not working, or even failing its purpose. Besides all the critique it faced, I am glad to live in an international society having a body charged with the responsibility to maintain international peace and security and nowadays the most basic human right as well. Would we really prefer those responsibilities to be placed on all 193 states of international society? I argue that it is better to hold those 15 members of the UNSC and esp. the great powers, which are able to react with the necessary military power to enforce those most basic human rights, responsible. For the UNSC as central secondary institution, what ES has stated as the function of great powers does indeed apply: in serving as the instrument for the maintenance of international order, exceptional rights but also heavy duties are assigned to the UNSC and its members by international society (Bull 2002: 196f; Hurrell 2007: 282f; Jackson 2000: 173). What is quite frequently identified, examining the UNSC when it comes to HI, is its jury function. Under the current conditions of international law, it is necessary that international society functions as a jury (however partisan), when it comes to claims of massive humanitarian emergencies, or otherwise has a designated body to do so. In the UN system the latter option has been incorporated by the UNSC. Specific cases will be presented through diplomats of the member states, the UN Secretariat with its UNSG, and indirect international media to the members of this jury (Franck 2006: 150–2; Hurrell 2007: 184; Sweet & Sandholtz 2004: 259f; Wheeler 2000: 2). Franck has elaborated its working in more detail: The function as jury “ensures due attention to the appropriate situational variables and brings into play contextual, textures – not absolute or simple – standards” (Franck 2003: 227). He emphasises that it is of course a political and perhaps biased jury. The UNSC has the advantage that it is in its size manageable and by its system of regional proportionality and representation no region of the world can refrain from considering a case. The two other options he lists that are able to perform the function of a jury have a lesser degree of responsibility or have no right of initiative: the UNGA or the ICJ. So, the UNSC is—despite being political and surely biased—the central jury in international society (Franck 2003: 227–31; ibid. 2006: 148–50). The UNSC in its third function serves as a diplomatic forum. Diplomatic negotiations, minimisation of frictions and maintenance of peace and order is the ethical fundament of their profession. For sure, every diplomat represents their

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state and government. They will not strain from their national interests. But diplomats are dealing primarily with other diplomats. They need to consider to a far lesser decree the world outside of the corridors on the East River. While statesmen need to consider their poll numbers and militaries are preparing for war, not peace, a diplomat “seeks always to reason or persuade rather than to bully or threaten” (Bull 2002: 165). That is why handling massive humanitarian emergencies in the sphere of diplomacy contributes to the maintenance of international order, while international justice can be enforced. Inversing these aspects: When UHIs establish, I argue that all three functions will suffer. It might sound progressive that not only the UNSC, which has in the eyes of UHI supporters not met its responsibility, has the sole responsibility any longer, but every state of international society. But to whom will the public then turn on and request: ‘Fulfil your duty!’? It will rarely be autocratic regimes; who (at least) in this aspect have a much easier international life. It will be surely human rights advocating democracies. Having again a MHE in Africa, will it be the African states—who have the least capabilities to act sufficiently, will it be the Europeans who still are so reliant on the USA, or will it be a USA with a Trump government at the current time? I argue that the redistribution of responsibility outside a specific body would do more harm than good. Coming to the jury function: International society will be disabled to judge. A common agreement about the existence of massive humanitarian emergencies will be less likely. Thus, every state will choose by its own reason how far a MHE takes place or not. A conglomerate of opinions and a cacophony of voices will arise. One surely might argue that the best argument may win, but this is rarely the case in power politics. Finally, diplomacy will lose its value. The world is faced with a new ‘coalition of the willing’ for every conflict. The corridors at the East River will not be empty, but witness deliberations less likely. The reason for this will be not at last the turnover of the diplomatic chorus to insignificance. Head of states and militaries will take the reins, having a different approach for international order than diplomats before. I argue that in this case war and intervention is more likely, while the preference for negotiation and settlement disappears. Intervention might sound good to UHI supporters. But an intervention that does not experience international acceptance, faces even more difficulties to be successful in the end. Again, I refer to Clark’s first-hand report of NATO’s Kosovo intervention. He stated that with NATO’s self-chosen exposition, in several member states, the political survival of their governments depended on the mission’s successful accomplishment, and NATO itself was at risk (Clark 2001: 422). This estimation of the impact of UHIs on the UNSC, I find hardly desirable. Even if just a smaller portion of this should

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occur, it would be a set-back for the enforcement of human rights; a set-back that cannot be balanced by the merits UHIs might bring. With the demotion of the UNSC, the great power concert is weakened. My assumption is that great powers benefit from being responsible for the maintenance of international order. A weakened UNSC is, therefore, everything but in their interest. We have already seen in the previous chapters accounts that concur with this assumption. Allison pointed out that Russia e.g. accepts the enforcement of human rights in extreme circumstances through the ways and means of the UNSC. But Russia is cautious of any attempt to do so outside of the UNSC, which would undermine its power and be regarded as threat to their interests (Allison 2013b: 69). Welsh argues that the wrongful invocation of a humanitarian motivation in the Iraq invasion has resulted in “almost kill[ing] the progress of R2P within the United Nations” (Welsh 2011: 1200). Most recently, it is argued that the overstretched implementation of the HI authorisation for Libya led to a reluctance among non-NATO great powers to work in a concerted way in the Syrian civil war (Doyle 2016: 685; Morris 2013: 1274). Those are just three accounts, but they might offer a preview of what might happen, when UHIs are endangering the secondary institution of UNSC: aside of a great power disturbance in general, we could witness it in three specific variations: the emergence of irresponsibility in international society, an repeal of the international jury and diplomacy losing its significance.

5.3

Positive-Progressive Impact by UHIs? The Stick-and-Carrot Approach and the Re-Empowering of the UNSC

Besides this assumed destructive impact of unauthorised humanitarian interventions it is possible that they might have positive-progressive impact as well. Of course, such interventions could end massive humanitarian emergencies sufficiently. Yet, this thesis does not evaluate the impact on individual cases, but the general impact they have for international society and its order. It can and will not be ruled out that UHIs have a positive impact on the enforcement of human rights or the cooperation between great powers. As said before, although I conduct this assessment under pluralist basic premises, I will not deny a solidarists perspective either. The first assumption made hereinafter is connected to the bandwagoning and the armament steps of the value decay cascade: deterrence from violating human rights. The second consideration is based on the inverted perspective on the impact on UNSC, which has discussed in the previous subchapter.

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Challenging the bandwagoning and armament assumptions in the value decay cascade theorem—the idea that states are faced with an increasing threat to be the ‘victim’ of an unauthorised humanitarian intervention might take recourse to armament or bandwagoning to scale down the chance of getting attacked by a powerful human rights enforcer that might be willing to act outside of international law—one might be reminded that statespersons seldom have one opportunity only; nothing is really ‘alternativlos’2 . So, what would be an alternative option? States and their leaders act, aside from some emotional moments, rationally. This does not mean that the black box legend will have a revival here, but normally the actions taken by states make some sense in the perspective of national interests. When a leader calculates the dangers of an unauthorised humanitarian intervention in his state, he might choose armament resp. bandwagoning, because its autocratic regime relies for its survival on methods which violate human rights. However, this regime might also conclude that the expenses for this are too high in comparison to a transition of policy; a transition from the usage of human rights violations for its own internal sovereignty to an observation of human rights for the preservation of external sovereignty. Perhaps, they might get incentives for respecting human rights. Basically, it is the translation of the deterrence theory resp. carrotand-stick approach to the current problem: The potential human rights violator could decide that it is less expensive and perhaps even profitable to observe rights, because the principle of non-intervention would no longer guarantee his survival after the emergence of unauthorised humanitarian interventions (Evans 2008: 229f). In a similar way Goldsmith and Posner have argued that states with a problematic human rights record start to comply and join human rights treaties when offered incentives, such as development aid (Goldsmith & Posner 2005: 128). Therefore, unauthorised humanitarian interventions might lead to deterrence from violating human rights and therewith the maintenance of the human rights regime. Secondly, a similar aspect could affect the central secondary institution, the Security Council. It is not inevitable that this body of international society will lose its function in the aftermath of unauthorised humanitarian interventions. As stated before, those would be followed by the establishment of unilateralism for the conduct of such interventions. Yet, unilateralism does not take place in a vacuum. When some, ‘human rights friendly’-states leave this international jury or threaten to do so, this does not mean that no one is left behind. The non-progressive ‘human rights unfriendly’-states are isolated and excluded from decision-making processes regarding one of the most important fields of international politics. It would be natural for them to try to enter the club of great powers 2 German

for ‘without alternative’.

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again, or better revive it. Instead of letting the ‘human rights friendly’-states act on their own, they could decide to avoid an emerging unilateralism by lowering their standards to strengthen the enforcement of human rights. Allison has shown such a behaviour in the case of Russia during the Kosovo intervention (Allison 2013b: 61). In consequence, unauthorised humanitarian interventions would pressure under this theorem the non-progressive states to move forwards and arrange new deals with progressive states. Thereby, the enforcement of human rights outside of the East River chamber could indirectly re-empower the UNSC (Bellamy 2005a: 52; Henke 2008: 124–6; Henkin 1999: 827). However serious the criticism of pluralists might be, there are at least two potential positive impacts that might come along with unauthorised humanitarian interventions. Actually, they are two different levels of positive impact. One dealing with the micro-level impact on the individual state likely to be a ‘victim’ of UHI, the other macro-level focussing on how the UNSC might be turned into a more proactive forum for enforcing human rights: We might witness a deterrence from violating human rights in individual states or the re-empowering of the UNSC on the international level.

5.4

Impact Theorems as Fundament for the Operationalisation (Chapter Summary)

The first impact theorem presented in this chapter is the value decay cascade. Here, I argued that the probable impact of unauthorised humanitarian interventions on international society starts with two (connectable) routes. In step 1a, the recourse to bandwagoning with great (or regional) powers and in a step 1b, armament. This will lead in step 2 to increased diversion among states, the emergence of instability, and, therewith, a weakened rule of law. I call this the step of increased anarchy. Finally, in a step 3 international society has to deal again with the issues just mentioned, which are of higher priority than the maintenance of human rights. Thus, in this final step a value decay can be witnessed. Following the increasing focus of English School on secondary institutions, I have theorised the impact on the UN and here the UNSC in specific as well. Coinciding with the estimations in the value decay cascade theorem, I established three specified theorems all within the general great power disturbance theorem: the emergence of irresponsibility, leading not to more, but to less HIs, a repeal of the international jury, leading to inconclusive judgments on the appearance of massive humanitarian emergencies, and diplomacy losing its significance,

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meaning that the peaceful and orderly balance mechanisms between states would suffer. Finally, this chapter turned to the solidarist perspective. I have considered two potential positive impacts, which can appear after UHIs are becoming a frequent phenomenon, being accepted or even incorporated in international law. The first assumption is focussing on the perspective and options to act as individual state that might be the target of UHI. The second consideration has dealt with its influence on international society resp. the UNSC. In sum, I take into account that a deterrence from violating human rights in individual states might appear or the UNSC on the international level might become re-empowered. With theorising about impact theorems, the theoretical preparations for this thesis are concluded. As emphasised at the beginning of this chapter, the theorems elaborated here have an independent value. Not all of them will be selected for operationalisation in chapter 8. Before I will come to this operationalisation and laying out the research design, in the following part of the thesis the case selection will be made by applying the definition that has been established.

6

A Systematic Case Pre-Selection

In this chapter I will come to the pre-selection of cases, which shall be outlined in the following chapter. What is meant by case pre-selection and what is the for conducting such a process? In the original outline of the thesis proposal, I based the case selection for unauthorised humanitarian interventions on articles and books that have been published so far within the humanitarian intervention debate (see chapter 3). This may seem sufficient for the task of a proposal, but how is it possible to ensure that indeed all possible cases of UHIs have been examined in this debate? It is not. For example taking a look at the central contributions by Tesón (1988), Murphy (1996) and Wheeler (2000), an sophisticated justification for their case selection cannot be found.1 Those and other works seldom contain a core of criteria for or against the inclusion of a specific case; frequently the cases had been suggested because the authors were involved in their prior studies with those specific cases. In an ideal academic understanding such a case selection is subject to bias. How reliable can a result be when the objects considered are chosen by a subjective and

1 Murphy: “Those interventions selected for assessment here purportedly have some humanitarian characteristic on the basis of either the reasons stated by the intervening state or the facts of the intervention itself” (1996: 86); Tesón: “I will examine several instances in which military force has arguably been used for humanitarian purposes” (1997: 177); Wheeler: “I examine the legitimacy of intervention in seven cold-war and post-cold-war cases” (2000: 2).

Electronic supplementary material The online version of this chapter (https://doi.org/10.1007/978-3-658-32179-6_6) contains supplementary material, which is available to authorized users.

© The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2021 C. Pohlmann, Unauthorised Humanitarian Interventions in World Politics, Globale Gesellschaft und internationale Beziehungen, https://doi.org/10.1007/978-3-658-32179-6_6

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perhaps unreflected decision? That a case is ‘interesting’ should not be a selection criterion (George & Bennett 2005: 69). To get reliable results, researchers either have to consider a ‘real’ random sample, picked out by a random generator without human interference, or the universal spectrum of objects (Seawright & Gerring 2008: 295). Thus, by basing the case selection of this thesis just on the body of cases of previous works, I would be liable to the same possible bias as the works before. I cannot and shall not simply examine UHIs based on the body of cases discussed in the humanitarian intervention debate so far. Which alternatives do exist? Instead of compiling all cases from the current humanitarian intervention debate, one may rely on data sets. Unfortunately, there is no humanitarian intervention database yet, but instead it is possible to draw on and combine two other data sets to a database that gives an overview of all possible cases of humanitarian interventions. I can perform this task by separating the humanitarian intervention definition stated in chapter 4 in its two main parts: the armed interference in the sovereignty of a state and the motivation of the intervener to relieve a massive humanitarian intervention ex ante or a positive relief effect on such a crisis ex post. This pre-selection on the basis of two combined data sets shall be the solution for the above-mentioned general bias problem when it comes to the case selection of unauthorised humanitarian interventions. In this chapter I will therefore explain the approach to the case pre-selection, including the description of the two data sets used for the database of possible cases of humanitarian interventions and the parameters used for its compilation, as well as carry out the case pre-selection in two steps. Step 2 will be a focussed manual review of the cases that the data set combination has revealed in step 1, on which base I then perform the main case selection in chapter 7.

6.1

Approach and Data Sets for the Pre-Selection

The approach for the pre-selection requires a description of the whole of possible humanitarian interventions. For this, I combine a data set for all interventions in the UN era with a data set that includes all events of massive humanitarian emergencies.2 Such cases, where in the aftermath of a massive humanitarian emergency an intervention within the same state occurred, will be the result of the 2 Such

cases prior to the UN era are out of scope of this research, since the prohibition of the use of force was established first with the UN Charter. In the international law before 1945 each state was an authoritative body that could conduct humanitarian interventions. So, no distinction between authorised and unauthorised interventions by states can be made prior to the UN era.

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combination of these two data sets and therefore the case pre-selection. This may also include cases where an intervention took place in the context of a massive humanitarian emergency, yet without any apparent connection to the latter. Therefore, I have to add a second step by reviewing the sample generated in the first step. Thus, the sample generated in the first step will be subject to review in the form of a plausibility check; a plausibility check for humanitarian interventions, which have the potential to be either an intervention with a primary humanitarian motivation or an intervention with a relief effect on the massive humanitarian emergency. To achieve this, three aspects have to be scrutinised in this second step. Firstly, did a massive humanitarian emergency take place (in my understanding a large scale loss of life or ethnic cleansing)? Secondly, could the intervention have been primarily motivated to mitigate those emergencies or could it have brought in consequence a relief effect to this emergency? Finally, I have to exclude the cases that are not violating the sovereignty of a state, because the targeted state gave an invitation for the, so-called, humanitarian assistance. By examining those cases, which were selected in the first step of the pre-selection, by means of these three aspects, I will come to the final case pre-selection and furthermore be able to identify the entirety of unauthorised humanitarian interventions in the following chapter.3 We will now come to the two data sets that will be used for the case preselection.

The data set for events of massive humanitarian emergencies might start later to the beginning of the UN era: It is necessary to use for this data sets that begin in the year prior to the first case of an intervention, as listed in the intervention data set. If the intervention data set e.g. lists the first intervention in 1960, it is necessary to search for a massive humanitarian emergency in 1960 or 1959. Cf. Subchapter 6.4. With this approach, the qualitative, interpretative understanding of massive humanitarian emergencies as outlined as an ideal approach in Subchapter 4.4 will be left. The use of data sets will result in a more quantitative approach, where a case might be regarded as massive humanitarian emergencies by e.g. its death toll or number of dislocated persons. However, I take recourse on this in order to establish a systematic case selection. By this approach, it will also not be possible to include interventions to mitigate imminent humanitarian emergencies. To include interventions after imminent cases of massive humanitarian emergencies would require a pure qualitative approach by which any intervention would have to be examined. This, however, is beyond the goal a thesis like the one at hand can accomplish. 3 It will also be possible by this pre-selection in a follow-up study to identify authorised humanitarian interventions.

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A Systematic Case Pre-Selection

International Military Intervention Data Set

For armed interferences in the sovereignty of a state I will be using the International Military Intervention (IMI) data set built up by Frederic S. Pearson and Robert A. Baumann and updated in 2008 by Emizet F. Kisangani and Jeffrey Pickering (Pearson & Baumann 1993b; Kisangani & Pickering 2008b). The data set includes military interventions by regular armed forces of one state in another state. The data set defines military interventions “as the movement of regular troops or forces (airborne, seaborne, shelling, etc.) of one country into the territory or territorial waters of another country, or forceful military action by troops already stationed by one country inside another, in the context of some political issue or dispute” (Pearson & Baumann 1993a: 1; Kisangani & Pickering 2008a).

This definition matches the definition of armed interferences in Subchapter 4.1. The IMI data set contains all interventions from 1946 until 2005. The fact that the data set ends in 2005 is acceptable for this study. Since the impact of interventions might develop only to a recognisable scale within a couple of years, a threshold of ten years or more seems reasonable. Of course, the ten-year frame is artificial; yet, which one would not be? To set up a more sophisticated timeline it would be essential to examine the time necessary for an intervention to have an impact on international order and human rights. Yet, while the identification of such a more sophisticated timeline might be a by-result of this thesis, it cannot be a task undertaken at its beginning. Besides that, there are no studies on this matter. As a consequence, a data set that ends close to ten years prior to the finalisation of this thesis is appropriate for this purpose. Most variables of the IMI data set are irrelevant for this task: the relevant ones are ‘Troop Activity’ (Variable 7) and the force related variables (8–10). In variable 7 at least a patrol, guard or defend activity (Variable 7, Alternative 3–5) is necessary to be counted as armed interference. Cases of evacuation (Alternative 1) are not included, because they are considered legal and not violating state sovereignty, when conducted without further intrusion. The transport of troops or those with a mere observation task have to be excluded (Alternative 2) since such activities cannot lead to a relief of a humanitarian emergency per se. Cases that are not ascertained (Alternative 9) are included. Finally, at least one force (army, air force, navy) has to be deployed by the intervener: One of the Variables 8–10 has to be positive (higher than zero).

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Compiling these criteria brings me to 830 cases within the IMI data set that consist of an intervention-related troop activity.4

6.3

Major Episodes of Political Violence Data Set

The second data set has to contain all massive humanitarian emergencies during the time between 19455 and at least the same end of time frame as the IMI: 2005. This is more difficult due to the fact that no specific data set exists for this purpose. The data sets that have been considered for this are the ‘Correlates of War’ (COW) project, the ‘Forcibly Displaced Populations’ (FDP) data set, the ‘Major Episodes of Political Violence’ (MEPV) project and the data set of the ‘Political Instability Task Force’ (PITF). The data set should be able to provide the basis for a database in which all massive humanitarian emergencies are included. Cases that might be included, but cannot be subsumed under the definition in subchapter 4.4, will not affect the case selection; they will be deleted in the second step of this pre-selection. The COW data set includes all intra-state, inter-state and non-state wars since 1818. It includes the state, the activities which have taken place, the time period (if possible, on a daily basis) and the total death toll. The COW data set might, therewith, help to outline all massive humanitarian emergencies. Problematic, however, is the focus on deaths. I defined massive humanitarian emergencies as large scale loss of life or ethnic cleansing, so in general this data set appears to be satisfying for this purpose. Yet, while any large scale loss of life will be included in this data set, ethnic cleansing does not necessarily mean a high death toll—forcible displacement falls also under this subject—and therefore not every occurrence of ethnic cleansing might be included in this data set (Sarkees & Wayman 2010). The missing part in the COW data set is the focus of the second data set considered. The FDP project of the United States Committee for Refugees and Immigrants focusses specifically on such refugees. The second manifestation of ethnic cleansing, forcible displacements of people, can therefore be covered with the FDP data set. It is set up on a yearly basis and includes all data from 1964 until 2008, the time before 1964 is not covered. Since the IMI data set contains 4 The

selected 830 cases have been attached to the submitted and approved PhD thesis as Annex A. The IMI data set can be found here: https://www.k-state.edu/polsci/intervention/ 5 Since the previous year will be considered for a massive humanitarian emergency too, if the intervention occurred in the first three months of a year, this second data set has to start in 1945 instead of 1946.

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the first interventions in January 1946, it is necessary to use another data set that includes earlier data (Marshall 2008). The MEPV data set includes cases of intra-state or inter-state violence resp. war. Violence here is understood as “fatalities and casualties, resource depletion, destruction of infrastructure, and population dislocations, among other things such as the psychological trauma to individuals and adverse changes to the social psychology and political culture of affected social identity groups” (Marshall 2010b: 7). The included time-period is, contrary to the IMI data set not set up on a daily basis, but per year (ibid.). This data set can, therewith, generally identify those cases, which this thesis is considering (Marshall 2010a). The last possible data set is the PITF. This one focusses on three different events of political instability: political and ethnic wars, adverse regime change and genocide as well as politicide. It ranges from 1955 until 2008. Besides the non-sufficient time focus, this data set examines death tolls for genocides resp. politicides. Same as the COW data set, the PITF does not include every form of ethnic cleansing. Furthermore, the time period is too short for this purpose (Marshall, Gurr & Harff 2012). As a result, I will use the MEPV as second data set. The most appropriate other solution, a combination of the COW and FDP data sets would leave a time period of eighteen years uncovered for the possible detection of massive humanitarian emergencies due to displaced population in the context of ethnic cleansing. In MEPV’s violence description both kinds of massive humanitarian emergencies are included as outlined in subchapter 4.4: large scale loss of life as well as ethnic cleansing. Several other variations of violence (e.g. destruction of infrastructure) will be included as well. Yet, these can be discarded in the second step of the preselection. Those manifestations of violence that do not stipulate genocide or ethnic cleansing (according to the codebook) will be excluded prior to this, in the first step of pre-selection. Those are the MEPV-categories 01 (Sporadic or Expressive Political Violence) and 02 (Limited Political Violence). The latter differs from ‘Serious Political Violence’ (Category 03) by the level of dislocated population. While in Category 02 such dislocations “of short duration may occur” (Marshall 2010b: 11), they are initiated by specific military or police operations in Category 03 (ibid.). As the MEPV data set should include all cases of massive humanitarian emergency, due to the fact that the data set is listing its cases on a yearly basis

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and has no daily approach, it has minor deficits for the data set compilation that will be solved. Further inaccuracies have been cleared manually.6 Selecting all cases of intra-state violence will bring us to 883 time periods of one year, in which a state appeared within Category 03 or higher.7

6.4

Case Pre-Selection Step 1: Combined Military Interventions After Major Episodes of Political Violence Data Set

Having selected the two data sets for armed interferences and massive humanitarian emergencies, I now have to combine both in a ‘Military Interventions after 6 In

a review of the MEPV data set two inaccuracies have been observed. The state list was not complete and data were not available for states in which an intervention took place in the following of their independence. States that are not listed in the MEPV data set are Bahamas, Belize, Brunei, Grenada, Iceland, Maldives, Malta, Suriname, Tonga, Vanuatu and Zanzibar. The IMI identified twelve cases in those states that match the criteria established in subchapter 6.2. Those interventions have been reviewed for a reasonable humanitarian motivation or a massive humanitarian emergency. Among them were four interventions to restore order after rebellions, coup d’etat or riots: The British support in the Brunei Revolt in 1962, the intervention of Papua New Guinea in Vanuatu to counterinsurge the rebellion on the island of Espiritu Santo in 1980, the US-Intervention in Grenada in 1983, and the Indian intervention in the Maldives in 1988. In each of these events the intervention took place within days or weeks after the tensions begun. In none of them could a massive humanitarian emergency develop that justifies the inclusion of this event in the combined data set. Even Grenada, which Tesón counts as humanitarian intervention, does not features large scale loss of life or ethnic cleansing (Davidson 1987: 53–137; Gilmore 1984: 30–6; Levitin 1986: 642–5; Majid 2007: 74–133; Murphy 1996: 108–11; Payne, Sutton & Thorndike 1984: 105–67; Shears 1980: 206–10; Tesón 1997: 210–7). In 18 cases that match the criteria established in subchapter 6.2, data for the year in or prior to the intervention are missing. Among those are non-humanitarian interventions; mainly acts of separatism and independence wars, as well as interventions within their context: Syria 1946, the First Indochina War 1946, and the Arab-Israeli War in 1948. Two exceptions exist: The British intervention to restore order in Mauritius in 1968 and the Croatian intervention in Bosnia and Herzegovina in 1992. In the first case an invitation by the Mauritian government was given prior to the intervention (Hansard HC Deb 23 January 1968: vol. 757, cols. 216f.) In the second case such interventions were part of the general warfare in former Yugoslavia; to describe such events as humanitarian interventions would turn almost every war into such a case. 7 The selected 883 cases have been attached to the submitted and approved PhD thesis as Annex B. The MEPV data set can be found here: https://www.systemicpeace.org/inscrd ata.html

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Major Episodes of Political Violence Data Set’. While the IMI and the MEPV data sets are based on the same actor code (both are state focussed and use the COW country codes), they code time periods differently. The IMI data set captures interventions with the exact date of the beginning and in 95 percent of the cases a specific ending date. MEPV does not list events but years and is therefore year-sharp only. However, a combination is still possible. Considering the run of events, an intervention can only be counted as such after a massive humanitarian emergency began. Would an intervention start prior to such an emergency, it could not be based on a humanitarian motivation or claim to have mitigated this emergency, due to the fact that the latter started after its occurrence. In consequence, I have to consider the conditions in a state prior to an armed interference. For the case pre-selection, I will ask in which situation the state was, regarding political violence in the year of the intervention’s start date. However, decision making processes in international politics, especially when it comes to the deployment of troops in other cases than self-defence, are rarely impulsively. It might even occur that a decision for an intervention takes place at a time, when the emergency began to sort itself out. Thus, to include such cases I will include interventions in the results, which were conducted in the first quarter of the year after the political violence had been located in a MEPV-category higher or equal to 3. Having concluded the first step of the case pre-selection the data set encloses all cases of military interventions (with related troop activity by the intervener) that took place in a year in which the intervenee experienced at least serious political violence. If the intervention occurred in the first three months of a year, the state’s internal condition in the previous year would be considered, too. This ‘Combined Military Interventions after Major Episodes of Political Violence Data Set’ leads to 253 cases (see electronic supplementary material to this chapter).

6.5

Case Pre-Selection Step 2: Possible Humanitarian Interventions Data Set

In the second step of the case pre-selection it will now be necessary to answer briefly to the three posed questions: Did a massive humanitarian emergency (in my understanding of large scale loss of life or ethnic cleansing) take place prior to the intervention? Could the intervention have been primarily motivated to mitigate those emergencies or could it have brought in consequence a relief effect to this emergency? Has it been an uninvited intervention or an invited assistance

6.6 Identifying Possible Humanitarian Interventions (Chapter Summary)

87

mission? By this plausibility check it is possible to identify the cases of unauthorised humanitarian interventions in the next chapter, without relying on the case selection made within the humanitarian intervention debate so far. The result are 50 possible humanitarian interventions (see electronic supplementary material to this chapter) in 22 conflicts or individual military operations:8 Congo Crisis (1960), Syrian intervention after Black September (1970), IndoPakistani War (1971), Lebanese Civil War (1976), Vietnamese-Cambodian War (1977), Uganda-Tanzania War (1978), Sri Lankan Civil War (1987), Liberian Civil War (1990), Gulf War (1991), Operation Provide Comfort (1991), Bosnian War (1992) Operation Southern Watch (1992), Somali Civil War (1992), Operation Deny Flight (1993), Rwandan Genocide (1994), 1st Congo War (1996), Operation Northern Watch (1997), 2nd Sierra Leonean Civil War (1997), 2nd Congo War (1998), Kosovo War (1999), East Timorese Independence (1999) and Burundian Civil War (2001). In the process of scrutinising the cases in the following chapter I integrated the three operations in Iraq in the subchapter on the Gulf War (1991), have done the same for the operation in the Bosnian War (1992) and merged the 1st and 2nd Congo War in a mutual subchapter, using the same context description for cases that concerned one and the same target state resp. intervenee.

6.6

Identifying Possible Humanitarian Interventions (Chapter Summary)

The task of this pre-selection chapter was to establish a complete and objective data set by which it is possible to identify humanitarian interventions. The reliance on those cases that were discussed in the humanitarian intervention debate so far would have been subject to bias, since these debated cases were not the result of a selection based on the entirety of humanitarian interventions. By combining two data sets for international military interventions and major episodes of political violence it was possible to generate a new and universal data set of possible humanitarian interventions. Based on this, all UHIs will be identified in the next 8 The

deleted 203 cases were separated in the these categories: interstate war (43), border dispute (24), counter-insurgency support (23), counter-insurgency (22), protection of nationals abroad (15), unknown (15), military support (13), humanitarian assistance (11), insurgency support (8), aggression (6), interstate conflict (3), retaliation (3), incorporation (2), occupation (2), possible humanitarian assistance (2), post-colonial struggle (2), proxy conflict (2), skirmishes (2), border violation (1), intrastate war (1), lost army unit (1), refugee uprising (1), retreat (1).

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chapter; however, it is also possible to identify in a follow-up study all authorised HIs. Often discussed alleged humanitarian interventions, as the US intervention in Grenada (1983) or the case of Haiti (1994) were beyond the scope of this combined data set since no massive humanitarian emergency was at place, but a rarely discussed humanitarian intervention in the context of the Congo Crisis (1960) has been (re-)discovered: the Opération des Nations Unies au Congo (ONUC). Yet, this case selection is still just halfway finished. The 50 cases of possible humanitarian interventions that were selected out of 830 international military interventions and 883 major episodes of political violence need to be examined in more detail in the next step.9

9 While

scrutinising those 17 subchapters, a new, legally individual case might appear. The same is possible the other way around. In total these changes will reduce the case number to 44: Cases that have to be categorised differently according to the established HI definition are IMI no. 160 (3 cases) and IMI no. 657 (2). In the case of Sierra Leone (2000) I have considered four additional cases, one of which had been previously excluded (IMI no. 982). Cases that could not be identified as interventions in the examination are those with the IMI no.: 509; 953; 957, 972, 973 & 992. Cases that have been merged into one or more examined new cases are those with the IMI no.: 582, 583, 584 & 588 (2); 755, 756 & 757 (1); 806, 807, 808 & 810 (2); 840, 842 & 843(3); 883 & 884 (1).

7

Humanitarian Interventions in Contemporary History (1946–2005)

In the previous chapter, 22 conflicts or individual military operations with possible humanitarian interventions with 50 individual cases have been identified by the combined military intervention after major episodes of political violence data set. Those 22 episodes contain all cases in which it is possible that a humanitarian intervention was conducted.1 Based on this data set, those cases which constitute unauthorised humanitarian interventions between 1946 and 2005, are going to be selected in this chapter. In chapter 4 the criteria for unauthorised humanitarian interventions has been established on the following definition: Humanitarian intervention is an armed interference in the sovereignty of a state conducted with the motivation to relieve or prevent a massive humanitarian emergency. Leading to a positive relief effect on such a crisis, an intervention might be seen as humanitarian likewise. It is unauthorised, when conducted without the mandate of a competent body of international society. Consequently, five criteria have to be examined for each case: Did the external action count as an armed interference (AI)? Has this interference been an intervention, because it infringed on the principle of sovereignty (IoPoS)? Has it been humanitarian motivated in order to relieve a massive humanitarian emergency 1 At

this point, it shall be clarified that not every (UN) peace operation is a humanitarian intervention. This thesis is dealing specifically with HIs under the definition established in chapter 4. There can exist peace operations categorised as non-humanitarian due to the missing massive humanitarian emergency, which is defined not just simply as eruption of violence or civil war, and non-interventions due to the missing infringement on the principle of sovereignty. © The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2021 C. Pohlmann, Unauthorised Humanitarian Interventions in World Politics, Globale Gesellschaft und internationale Beziehungen, https://doi.org/10.1007/978-3-658-32179-6_7

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ex ante (HM)? Has it had a positive relief effect on this massive humanitarian emergency ex post (PRE)? If it violated the principle of sovereignty, had it been authorised by the United Nations Security Council or had it been conducted unauthorised and had therewith infringed on the principle of non-intervention?2 Since several criteria are more difficult to examine than others, yet the space for this chapter shall be reduced in order to keep an acceptable proportion with the other parts of this thesis, the examination procedure will be arranged according to efficiency, as follows: First, the ‘simple’ task of unveiling an armed interference will be performed. After determining such interference, I will clarify if an authorisation by the UNSC was given. If this is not the case, I search for a proper invitation by the intervenee. This task is more difficult, since the competent body for such an invitation has to be determined by the intervenees constitutional law and the practical conditions ‘on the ground’, which is sometimes difficult to observable under the conditions of conflict—as can be seen e.g. in the case of the Lebanese civil war. Finally, and reaching the level of interpretation, the humanitarian motivation and/or the relief effect on the massive humanitarian emergency will be scrutinised. The examination of the pre-selected cases will stop at any point, at which the results do not fit with the definition of unauthorised humanitarian interventions. However, in a follow-up study a full criteria examination will be helpful to establish a solid humanitarian intervention database. In sum, the order of the case examination will be the following: – – – – –

Armed interference Infringement on the principle of non-intervention (unauthorised conduct) Infringement on the principle of sovereignty (without invitation) Humanitarian motivation Positive relief effect on a massive humanitarian emergency

If all of the above criteria were examined (in a follow-up study), it would be possible to observe four types of cases (see Table 7.1): – Classical interventions: Cases where neither the humanitarian motivation, nor the relief effect can be verified, and an intervention took place. 2 The

criterion of massive humanitarian emergency has already fulfilled on the basis of the data set combination in the previous chapter. However, it might be possible that a massive humanitarian emergency took place in another part of the state intervened in than the part where an armed intervention took place. If this case should occur in the following chapter, such a situation would not fulfil the fundamental criterion of massive humanitarian emergency.

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– Humanitarian assistance missions: Cases where the humanitarian motivation and/or the relief effect can be verified, yet the targeting state invited the assisting force. – Authorised humanitarian interventions: As above, yet no invitation of the targeting state will be given, albeit the UN Security Council authorised the conduct. – Unauthorised humanitarian interventions: As above, yet the UNSC authorisation was not given as well.

Table 7.1 Intervention types by criteria of unauthorised humanitarian interventions Intervention types

Classical intervention (ClI)

Humanitarian assistance mission (HAM)

Authorised humanitarian interventions (AHI)

Unauthorised humanitarian interventions (UHI)

Other results

Armed interference (AI)a

+

+

+

+

+/−

Infringement on the principle of non-intervention (IoPoNI)a

+/−

/

−

+

+/−

Infringement on the principle of sovereignty (IoPoS)a

+

−

+

+

+/−

Humanitarian motivation (HM)a

−

−/+,+/ −, + / + b

−/+,+/ −, + / + b

−/+,+ /−, + / + b

+/−

Positive relief effect (PRE)a

−

+/−

Source: Author’s own table a The criteria have been defined in chapter 4 b Either HM, PRE or both have to be present

The 22 conflicts or individual military operations will be examined in 17 subchapters, using the same context description for episodes that concerned one and the same target state resp. intervenee. The subchapters with more than one conflict or operations are the following: i) Gulf War (1991) + Operation Provide Comfort

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(1991) + Operation Sothern Watch (1992) + Operation Northern Watch (1997), j) Bosnia (1992) + Operation Deny Flight (1993), m) 1st Congo War (1996) + 2nd Congo War (1998). After several alterations, which had to be made in the conduct of the examination3 , the number of individual cases will be reduced to 44. The case-selection will be summarised in the final subchapter. This chapter will show in the end that only six cases fulfil the UHI criteria as established in chapter 4: East Pakistan (1971), Lebanon (1976), Cambodia (1978), Uganda (1979), Liberia (1990) and Kosovo (1999).

7.1

Congo Crisis (1960)

The first conflict that will be examined under the HI criteria is the UN interference in the Congo Crisis of summer 1960. It was the first account of UN military action after the Korean War. This instance of world interventional politics is an interesting part of HI history since it contradicts the common expectation that mutual, authorised humanitarian interventions first started in the 1990s.

7.1.1

Belgian Evacuation Mission

The Congo Crisis broke out in summer 1960. Shortly after the independence of the Republic of the Congo (capital Kinshasa; the official name nowadays: Democratic Republic of the Congo). On June 30th the young African state experienced a violent conflict that started with a mutiny in the Congolese army. The creeping anarchy was life-threatening for many Belgian citizens living in the young independent state, which is why the Belgian government sent evacuation troops on July 9th to rescue and protect their nationals abroad (Boulden 2015: 161; Debiel 2003: 67; Durch 1993: 317f; United Nations 1961: 54). This deployment might already be an infringement on the Congolese sovereignty, yet such evacuation missions are considered as measures ‘short of war’ in international law. Hence, this Belgian mission does not constitute an armed intervention.

3 See

Fn 8 in Chapter 6.

7.1 Congo Crisis (1960)

7.1.2

93

The Original ONUC Peacekeeping4 Mission

The first mission, which was not just temporarily deployed, is the UN mission ONUC. This mission will be examined in the following part. Due to the changing Congolese attitudes towards ONUC the mission has to be separately analysed for the time periods of July 16th 1960 to February 21st 1961 and afterwards until its withdrawal on June 30th 1964. The United Nations deployed several thousand peacekeepers who began on July 16th 1960 to restore order and ensure the post-colonial transition (withdrawal of Belgian forces). This constitutes an armed interference in the Congo (United Nations 1961: 53).5 The deployment was sanctioned on July 14th as the UNSC authorised the Secretary-General with resolution 143 “to take the necessary steps […] to provide the Government with such military assistance as may be necessary until […] the national may be able […] to meet fully their tasks” (UNSCR 143). Additionally, the Congolese government directly requested military assistance by a presidential cable to Secretary-General on Hammarskjöld on July 12th (UNDoc. S/4382). Hence, an authorisation as well as an invitation were given prior to the armed interference. ONUC did neither infringe on the principle of nonintervention nor on the principle of sovereignty and, therefore, this case cannot be regarded as an unauthorised humanitarian intervention. One may speak of a humanitarian assistance mission, if one of the two humanitarian criteria would be fulfilled.

7.1.3

The ONUC Intervention

ONUC changed its nature by UNSCR 161, which added the allowance to use force, if necessary (UNSCR 161). This mere difference might not be sufficient for a separate examination. Yet, the Congolese government has not agreed to Resolution 161. Hence, for the time between February 21st 1961 and its withdrawal on June 30th 1964 the mission has to be categorised differently.

4 Having

used the term ‘peacekeeping’ at this point the first time in this thesis, I want to emphasise that I use the terms ‘peacekeeping’, ‘peace operation’ etc. interchangeably. The task of this thesis will not be to contribute to the categorisation debate about peace operations resp. peacekeeping missions. A differentiation will also not offer a deeper insight in the impact of UHIs. 5 The contributing states were Ethiopia (460), Ghana (770), Morocco (1,250) and Tunisia (1,020) (UN-Doc. S/4389: 9).

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As more than seven months before, ONUC still constitutes an armed interference in a massive humanitarian emergency. Yet, the mission ex nunc infringed on the principles of sovereignty, since the Congolese government condemned the enforcement elements in the ‘new’ ONUC mandate. President Kasavubu saw UNSCR 161 as an “infringement o[n] the sovereignty of the Republic of the Congo by the United Nations” (UN-Doc. S/4743: 2). Thus, Congolese sovereignty was violated by the UN. At the same time, the resolution authorised the sovereignty violation by ONUC. Therefore, an infringement on the principle of non-intervention did not take place. The earlier ONUC mission had been determined to be a humanitarian assistance mission but it changed on February 21st 1961 to an authorised humanitarian intervention.

7.1.4

Humanitarian Intervention in the Congo Crisis (Subchapter Summary)

The attempt which has been made by the UN to solve the Congo Crisis has to be categorised in two different ways. The established ONUC is a humanitarian assistance mission by invitation of the Congolese government from July 16th 1960 until the night of February 21st 1961. With the negative response of the Congo to the enlarged mission mandate on February 22nd , the mission, however, has been switched ex nunc to an authorised humanitarian intervention, starting on February 21st . In sum, none of the three cases fulfils the UHI-criteria (see Table 7.2).

7.2

Syrian Intervention in Jordan During Black September (1970)

A brief, but harsh confrontation between two states in the Middle East, which had been allied just three years prior in a war against Israel, is the foundation for the second conflict that has to be examined under the criteria for unauthorised humanitarian interventions. This is the so-called Black September, the short but intense civil war within Jordan in September 1970. On September 17th Jordan started its operation against Palestinian guerrilla groups within its own territory. These were described by Ashton and Garfinkle as “state within a state” (Ashton 2006: 100; Garfinkle 1985: 129), in order to restore full control on Jordanian territory. Up to this date, the Palestinian population in Jordan was in a state of internal opposition to the Jordanian king and his government. The ‘state within a state’ meant on the other side that Israel was

7.2 Syrian Intervention in Jordan During Black September (1970)

95

Table 7.2 UHI-criteria summary for Congo (1960) Casesa

AIb

IoPoNIb

IoPoSb

HMb

PREb

Sum

Belgium > Rep. of the Congo (09.07.1960)

−

(−)

(−)

(−)

(−)

−

UN > Rep. of the Congo (16.07.1960)

+

−

−

(+)

?

− (HAM)c

UN > Rep. of the Congo (21.02.1961)

+

−

+

(+)

?

− (AHI)c

Source: Author’s own table a The cases are coded in the following order: intervener > intervenee (beginning of the armed interference) b The abbreviations are as follows: AI (armed interference), HM (humanitarian motivation), IoPoNI (infringement on the principle of non-intervention), IoPoS (infringement on the principle of sovereignty), PRE (positive relief effect). The criteria are explained in chapter 4 c The different types of interventions resp. assistance missions are explained at the beginning of this chapter. The abbreviations are as follows: AHI (authorised humanitarian intervention), HAM (humanitarian assistance mission)

under a permanent threat from the Palestinian controlled territories within Jordan and in return, Jordanian sovereignty and internal stability was threatened by this ‘semi-external’ conflict from both sides: the Israeli side as well as the Palestinian one. The Palestinian guerrilla group that was approximately in charge during this time, the Fedayeen, was backed by Syria. Thence, it might not be surprisingly that Syria interfered in this conflict two days later at first with servicepersons and a day later, on September 20th , with a full scale operation based on a brigade consisting of 300 tanks (Ashton 2006: 107; Brandon 1973: 166).6 However, since Syria was not willing to back its own ground forces with air support, the Syrian forces had to retreat within a week by September 23rd (Ashton 2006: 115f). This operation falls within the scope of UNGAR 3314 since it constitutes an invasion of Syria into Jordan. Four times in 1970 the UNSC adopted resolutions regarding the situation in the Middle East: UNSCR 279, 280, 285 and 286. None of these resolutions included an authorisation for the Syrian invasion. Therefore, the Syrian armed interference of September 19th was unauthorised. 6 It

has to be mentioned that Seale dated it two days earlier on September 18th 1970 (Seale 1988: 158).

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An invitation by the Jordanian ruler Hussein was not given. Moreover, Jordan conducted various efforts to get Western military support. Especially the governments of the United States and United Kingdom were frequently addressed through diplomatic and military channels in order to relief the Jordanian operation via air support (ibid.: 104). According to Ashton, the Jordanian government even appealed to the permanent UNSC members to condemn the Syrian intervention (ibid.: 112). Further, the goal of the Jordan operation seems to be to dismantle Palestinian control on core parts of the Jordanian territory; a Palestinian control that was backed by Syria and destabilised the Jordanian state (Brand 1995: 52f). As a result of this, Syria’s interference infringed on the Jordanian sovereignty. Finally, the humanitarian motivation or a positive relief effect on a massive humanitarian emergency has to be examined. The death toll of the Jordanian Black September is difficult to state. Palestinian sources estimate 3,400, while foreign journalists report between 7,000 and 20,000 deaths, mainly on the Palestinian side. Among them, according to senior Fatah leader Mohammad (Abu) Daoud Oudeh, around 950 guerrillas (Al Jazeera English 2009: 13:30–13:51). For this purpose, I estimate the number between the two different sources: 5,000 deaths (Bailey 1984: 57; Bulloch 1974: 67; Massad 2001: 342). A massive humanitarian emergency in context with the events on Black September 1970 can be considered to be likely. Syria is seen by Garfinkle as acting under its interest to support the Fedayeen, who were linked to them, contrary to most other Palestinian organisations (Garfinkle 1985: 120). Considering a possible stronger humanitarian motivation, Ashton summarised the intension of Syria’s President Hafez al-Assad as “prevent[ing] the massacre of the Palestinians, perhaps by setting a safe haven in northern Jordan under Syrian protection” (Ashton 2006: 109). Assad himself declared later that their goal was to “protect[…] the guerrillas” (Al-Assad, cited in Seale 1988: 159). While Brandon on the other site analysed that the Syrian intervention in Jordan has been mostly a continuity of the East-West-confrontation of the Cold War, he acknowledges that Syria’s self-interest laid in supporting the Palestinian Fedayeen and in “intimidating the Jordanian army” (Brandon 1973: 168). The Syrian intervention, consequently, was motivated by the support of Palestinian guerrillas rather than being a humanitarian mission to save lives of Palestinian civilians in general. This finding is also backed by the Jordanian conduct itself. Soon after the events of Black September Jordan attended a peace conference in Cairo on September 27th , although their anti-Palestinian operation was condemned throughout the Arab world, and accepted a truce with the Palestinian organisations (Ashton

7.3 Indo-Pakistani War (1971)

97

2006: 116). This account of power-adjustment between Jordan and the Palestinian organisations in its own territory is supported by Barari’s description of Black September as a “military showdown” (Barari 2008: 241) between those two opposing parties. These aspects let me assume that the operations were not conducted in order to carry out genocide or ethnic cleansing or similar tasks, which would constitute the base for a humanitarian intervention. Finally, I have to consider a positive relief effect. Since the Syrian intervention was defeated within less than a week and the establishment of a safe haven did not take place, a causally determined positive relief effect on a massive humanitarian emergency cannot have occurred. The Syrian interference in the Palestinian-Jordanian crisis of September 1970, called Black September, was, therefore, a (failed) unauthorised classical intervention (see Table 7.3). Table 7.3 UHI-criteria summary for Jordan (1970) Casea

AIb

IoPoNIb

IoPoSb

HMb

PREb

Sum

Syria > Jordan (20.09.1970)

+

+

+

−

−

− (ClI)c

Source: Author’s own table a The case is coded in the following order: intervener > intervenee (beginning of the armed interference) b The abbreviations are as follows: AI (armed interference), HM (humanitarian motivation), IoPoNI (infringement on the principle of non-intervention), IoPoS (infringement on the principle of sovereignty), PRE (positive relief effect). The criteria are explained in chapter 4 c The different types of interventions resp. assistance missions are explained at the beginning of this chapter. The abbreviation is as follows: ClI (classical intervention)

7.3

Indo-Pakistani War (1971)

Possible humanitarian interventions in the 70s were conducted in the context of interstate conflicts. In this chapter another interstate conflict possibly including a humanitarian intervention will be examined. This time it is a far-reaching episode of the Pakistani history and the Indo-Pakistani struggle; a struggle that can be traced back to the Indian independence in 1947 and has seen two major interstate wars in 1947–1948 and 1965. The episodes particular starting point can be dated back to March 26th 1969, when the Pakistani military and state leader Yahya Khan

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declared to hold elections and allow full political activity in the future (LaPorte Jr 1972: 99; Marwah 1979: 557; Matinuddin 1994: 133). Those elections were held on the 7th of December 1970 after existing tensions between West and East Pakistani intensified due to the election campaigns and a disastrous cyclone that hit East Pakistan in November. This cyclone lead to deaths in an estimated amount between 300,000 and 800,000, resulting in more Indian humanitarian relief efforts than by the Pakistani government itself. The elections were won by the main East Pakistani party, the Awami League (AwL), which gained 160 seats of 300 seats been up for election (the total size of the parliament was 313, of which AwL held 162 after the election), yet won no seats in West Pakistan at all (Choudhury 1974: 110 & 128; O’Donnell 1984: 84–7; Zaheer 1994: 125–30). In the following three months negotiations between the AwL and the Pakistan People Party (PPP) were held. However, they did not result in any agreement on a new Pakistani post-military rule constitution prior to the scheduled first session of the National Assembly, which was set for March 2nd 1971. Moreover, riots erupted on January and February in East Pakistan, leaving several hundred people dead. The PPP declared two weeks prior to the constitutive session its boycott, leading the military ruler Khan, who was still in office, to declare the postponement of the National Assembly indefinitely on March 1st (LaPorte Jr 1972: 100; Marwah 1979: 559; Matinuddin 1994: 160 & 177f). The following weeks, until Operation Searchlight was exercised on March 26th , were characterized by attacks on West Pakistan citizens in the East Pakistani provinces. Pakistani security forces and military responded mainly with curfews. Yet, they did not implement them stringently. In those 3 ½ weeks approximately 100,000 people were killed in East Pakistan, according to Matinuddin (1994: 186). Attacks by the military or police could not be recognized in this time (Bose 2005: 4464f). The first severe action by the Pakistani government started in the early hours of March 26th with Operation Searchlight: AwL political leaders were arrested as well as potential disloyal servicepersons and police forces were disarmed. This also let to casualties. The death toll of this first night has been estimated with no less than 500 deaths. O’Donnell describes the action carried out by Pakistani military, as “systematic[…] kill[ing]” (1984: 93). This operation was followed by further actions against East Pakistani, including pillages of villages in the provinces (Bose 2005: 4465f; LaPorte Jr 1972: 101f; Matinuddin 1994: 247–9). Civil war in East Pakistan, leaving hundreds of thousands dead and several million displaced from home, ended at the end of 1971 after an Indian intervention.

7.3 Indo-Pakistani War (1971)

99

India invaded East Pakistan with regular troops on November 21st 1971. The war ended on December 17th (Choudhury 1974: 213; LaPorte Jr 1972: 102–5; Matinuddin 1994: 293 & 360–2; O’Donnell 1984: 103). Several experts suggest that an Indian involvement in the East Pakistani civil war began as early as April 1971 (Kessing’s Worldwide 1971: 24597, Matinuddin 1994: 227). Those accounts might be more accurate, yet, common view has not adopted those findings. Therefore, I will date the Indian intervention in East Pakistan to November 21st 1971. An Indian armed interference into Pakistan is given. Neither an invitation by Pakistan nor an authorisation by UNSC was given for this armed interference. Although, the circumstances are suggesting this assumption already, it can also be substantiated by referring to a letter of the Pakistani UN representative Agha Shahi from April 8th , stating that the current situation is an internal affair of Pakistan (Kessing’s Worldwide 1971: 24597). There is also no question on the legal authority for an invitation, since military ruler Khan was still in office at the end of 1971 and, furthermore, India first recognized the post-civil war state Bangladesh on December 6th (LaPorte Jr 1972: 103–5; Marwah 1979: 550). An UNSC authorisation was not given either. Several sessions were hold in the context of the Indian intervention; yet, UNSCR 307 was the only resolution, passed after the Indian victory and without an authorisation (UNSCR 307). The General Assembly, contrary, adopted on December 7th with UNGAR 2793 by 104 Yeas to 11 Nays a resolution calling for a cease-fire (UNGAR 2793).7 Therefore, neither an invitation nor an authorisation were given. A massive humanitarian emergency was given in East Pakistan. Although the Pakistani army might have been disciplined until Operation Searchlight, the first two months of 1971 led to several hundred deaths, most of all West Pakistani. Their death toll rose in March, before Operation Searchlight, to around 100,000, to be followed by estimated 15,000 deaths on the side of the Bengalis until the end of March. At the beginning of April 1971, therefore, we can speak of a large scale loss of life according to the massive humanitarian emergency criterion. The numbers in total go up to the millions, deaths as well as refugees. To specify this massive humanitarian emergency in numbers: Drawing on estimations by several peers I average the death toll to 1.5 million; the United Nations estimated seven million refugees (Bose 2005: 4465; Hippler 2006: 236; LaPorte Jr 1972: 100 & 105; Marwah 1979: 560; Matinuddin 1994: 186 & 280; O’Donnell 1984: 94 & 101; Ziegler 2000: 71). Investigating the humanitarian motivation of India, I draw on two sources: Matinuddin in 1994 offers a rather pro-Pakistani account, whereas Marwah in 7 See

also: Marwah 1979: 578; Matinuddin 1994: 445–8; UN-Doc. A/8702(Supp): 59–81.

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1979 seems to be more objective, however, he frequently emphasises accounts that may favour India. Seven elements will be scrutinized at this point: The general tensions between India and Pakistan and the Indian policy in context of the East Pakistani civil war, its general relation with the Bengals and in specific the effect of the enormous refugee problem on India, India’s geostrategic as well as tactical considerations and finally the humanitarian characteristics of its engagement in the civil war. The bilateral relations of India and Pakistan were tense to say the least. This can be traced back to the independence of the former British colony as mentioned above. However, those tensions were felt mainly at the western border and not in the eastern theatre. Marwah states that: “East-Pakistan was hardly ever mentioned in Indo-Pakistan dialogues” (1979: 555). This circumstance might be explained by the more or less stable border between India and East Pakistan. At the same time, this should not lead to the mistaken belief that India has seen East Pakistan and the Bengali populace indifferently. Contrary, several offers for relief assistance had been made by India prior to 1971 in cases of natural disasters in East Pakistan. Also, the Indian reaction on Operation Searchlight came soon and in favour of the Bengalis. On March 31st the Indian parliament passed a resolution condemning the killings and military action in general as well as calling on the world to end genocide (Kessing’s Worldwide 1971: 24597; Marwah 1979: 551–60). India was also affected directly by the Pakistani civil war: Until summer 1971, when India started its first planning for a unilateral intervention, around 5.5 million refugees fled to India. LaPorte considers this refugee crisis and its impact on India as the main motivation for an intervention. In contrast, Matinuddin calls such a justification as “an excuse for invading” (1994: 280) yet acknowledges the direct impact of the refugee crisis on India (LaPorte Jr 1972: 103f; Marwah 1979: 557 & 560; Matinuddin 1994: 280). The start of the intervention was scheduled for winter 71/72 due to tactic and political considerations. On the tactical side, India planned its action for winter in order to use the better conditions on-ground in East Pakistan and a worsened terrain condition at the border to West Pakistan. On the political side, India saw a window of opportunity at the end of 1971 due to the for February 1972 scheduled visit of US President Richard Nixon in China and its estimation that China would interfere less likely in the months prior to this visit (Marwah 1979: 562–6). The Indian course of action alongside the civil war and the increasing death toll resp. stream of refugees depicts a regional power that first tried to solve the neighbouring catastrophe on a political and diplomatic level and, afterwards, intervened with specific limited purposes. In summer 1971 India offered political solutions. Yet, leading to no result, India decided to intervene at a time at which

7.3 Indo-Pakistani War (1971)

101

even Matinuddin saw more concern in the Pakistani government about an international discussion on the genocidal aspects of the situation in East Pakistan than about a defeat against India. The limited and specific, perhaps humanitarian goals of India’s intervention can be seen on four accounts: (a) India calculated losses on the western front, (b) it had a window of opportunity within the two weeks following victory in East Pakistan to proceed its campaign in West Pakistan, yet, refused from advancing in this direction and, contrary, declared unilateral ceasefire at the western front, (c) its engineering corps restored (perhaps most, if not all) communications and bridges in East Pakistan within two months and (d) India, itself not a developed country, spent 2.25 billion US-Dollar in total for the campaign (1 billion) and developing aid for Bangladesh (1.25 billion) afterwards; and therewith at least came close to the even today hardly achieved ‘Responsibility to Rebuild’ (Marwah 1979: 567–77; Matinuddin 1994: 444f). Having seen several aspects of the Indian intervention and the events leading to it, I conclude that India acted with a humanitarian motivation. On a strategic level, India was of course partly led by a possible victory over Pakistan and a restriction of power of its main opponent. Further, solving the refugee crisis was in India’s self-interest. Yet, although solving a refugee crisis is almost in every case in the interest of the intervener, it is nonetheless a humanitarian action (as well). Taking the specific course of action into account, I acknowledge that the intervention came late; for several hundreds of thousands of Bengalis too late. India was already planning for the intervention in summer, and merely, waited for its conduct until winter for tactical and political reasons. India exercised this intervention for the limited purpose of ending the civil war through a Bengali independence; it refused afterwards to proceed with its campaign into West Pakistan. Perhaps, the stop at this point came out of India’s self-understanding as a saturated power in Bismarck’s terms after its victory over Pakistan in later Bangladesh. Nonetheless, it coincided with the successful solution for the East Pakistani tragedy. In general, India’s behaviour corresponds with its actions regarding East Pakistan, as can be seen by the various relief efforts after natural disasters in Bangladesh. In consequence, whereas India’s action might also be based on a self-interested motivation, India’s behaviour during and after the intervention leads to the conclusion that its intervention was mainly a humanitarian motivated one. Coming to the last criterion for an unauthorised humanitarian intervention, I also verify that the tragedy in East Pakistan, which manifested in the high death toll and refugee crisis, ended with the Indian victory against the Pakistan army and the independence of Bangladesh. The Indian intervention into East Pakistan in 1971 was an unauthorised humanitarian intervention (see Table 7.4), due to its armed interference, the missing

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invitation by Pakistan and not given authorisation by the UNSC, its humanitarian motivation and a positive relief effect afterwards. Table 7.4 UHI-criteria summary for East Pakistan (1971) Casea

AIb

IoPoNIb

IoPoSb

HMb

PREb

Sum

India > Pakistan (21.11.1971)

+

+

+

+

+

+ (UHI)c

Source: Author’s own table a The case is coded in the following order: intervener > intervenee (beginning of the armed interference) b The abbreviations are as follows: AI (armed interference), HM (humanitarian motivation), IoPoNI (infringement on the principle of non-intervention), IoPoS (infringement on the principle of sovereignty), PRE (positive relief effect). The criteria are explained in chapter 4 c The different types of interventions resp. assistance missions are explained at the beginning of this chapter. The abbreviation is as follows: UHI (unauthorised humanitarian intervention)

7.4

Interventions in the Lebanese Civil War (1976/1982)

The Lebanese Civil War started on April 13th 1975 and lasted until a Syrian major operation in October 1990. The civil war included several interventions and interferences, which will be considered here: a Syrian intervention and two interferences by the Arab League in 1976, an Israeli intervention and a multilateral interference, both in 1982. The intervention by Israel in 1982 had been excluded in chapter 6. Israel responded to an increasing Palestine Liberation Organization (PLO) threat with this intervention in order to expel them from Lebanon. Its objectives were therefore non-humanitarian and a positive relief effect to the massive humanitarian emergencies within Lebanon has not taken place in the aftermath of the Israeli intervention (Friedman 1991: 157; Helmer 2007: 27–39). This overview will serve to categorise the remaining Syrian and Arab League interventions in 1976 and multinational intervention in 1982.

7.4.1

Syria’s Intervention

Syria interfered several times during the Lebanese civil war: By the occupation of a buffer zone at the Lebanese-Syrian border on April 9th (O’Ballance 1998:

7.4 Interventions in the Lebanese Civil War (1976/1982)

103

49 & 51; Odeh 1985: 166), by the direct influence in the Lebanese parliamentary presidential election on May 8th and the armed interference on the night of May 31st to June 1st (el Khazen 2000: 344f; Hiro 1993: 40f; O’Ballance 1998: 52; Odeh 1985: 168; Schiegl 2007: 42f; Weinberger 1986: 201–3, 209f & 213f). The influence on the election was not executed by Syrian troops directly, but by troops of the Palestine Liberation Army and Palestinian Ba’athist faction As-Sa’iqa. AsSa’iqa is linked to the Syrian government, yet was already established as one of the Lebanese civil war factions. Therewith, criterion (g) of the act of aggression definition (“The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries” [UNGAR 3314]) does not apply in this case, nor by the way of Syria’s “substantial involvement therein” (ibid.). In consequence, the Syrian armed interference started on April 9th and fully rolled out on May 31st by the direct invasion and military occupation of essential parts of the Lebanese territory fulfilling article 3 (a) of the act of aggression definition. The United Nations Security Council has not considered the situation within Lebanon in 1976. Considerations in 1975 dealt with other issues than the intraLebanese conflict. Accordingly, no authorisation for a Syrian intervention was given. The question whether the Syrian armed interference was welcomed ex ante remains difficult to solve. Although the seat of the Lebanese president was virtually empty between Elias Sarkis’ election on May 8th and his inauguration on September 23rd (O’Ballance 1998: 51 & 58), due to a boycott by the current President Suleiman Frangieh to leave office, according to Odeh the Syrian intervention was at last questioned by Sarkis and the LNM leader Jumblatt (1985: 174). Coinciding, Weinberger saw at the beginning of 1976 several appeals for a Syrian intervention, yet in June she estimates “clearly a penetrational intervention” (Weinberger 1986: 140). Hiro, however, describes the Lebanese attitude to the Syrian intervention contrary, by referring to President Sarkis’ inaugural speech, in which he seemed to have “underlined the need for the Syrian military presence” (Hiro 1993: 43). Further, el Khazen points to the support of the then President-in-office Frangieh for the Syrian intervention (2000: 346). Aside of those views, this examination has to rest on the question, if a legal invitation by the right Lebanese authority existed prior to the Syrian interference. According to the Lebanese constitution of May 23rd 1926, in its amended version of November 9th 1943, the president is the executive power and responsible for negotiating and ratifying of international treaties (Lebanese Constitution 1973: Art. 51f). Although the constitution does not directly specify which power represents Lebanon externally, it can be assumed that the president is this right authority.

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In consequence, the question can be specified: Was Syria invited by President Frangieh to interfere prior to the armed interference of April 9th ? Under this question, the findings and estimations of Hiro, Odeh and Weinberger have to be ignored. El Khazen, who presented the support of President Frangieh, did that unspecific regarding the way of this support and its time: “Its military intervention received the support of Frangiyeh” (el Khazen 2000: 346). In my view more specific is Ajaj in his PhD-thesis on the legality of the Syrian intervention. He pointed out that President Frangieh indeed welcomed the Syrian intervention and declared it as legal based on a bilateral Syrian-Lebanese treaty ex post, which in fact was never published and does not seem to contain any provisions on a potential Syrian intervention. A published and recorded invitation or merely one that served as justification cannot be found (Ajaj 1990: 186–191). It would have been possible (with ease) to present the invitation or treaty referred to, if it had existed in reality. Concurring with Ajaj’s opinion, the Syrian intervention, will therefore be categorised as a violation to the principle of sovereignty without the necessary Lebanese invitation (1990: 209 & 236). For its intervention, Syria officially focussed on the justification by humanitarian motives. President Assad argued that Syria “had a fraternal and humanitarian duty” (Al-Assad, cited in Ajaj 1990: 119) and “could not stand by and watch the massacres” (ibid.). Yet, other motives were in play as well. Syria had geostrategic interests in Lebanon, esp. in order to maintain the regional balance of power,8 and a rising domestic unrest that had to be contained through an intervention (Lawson 1984; Schiegl 2007: 54f & 94f; Weinberger 1986: 5). Further, it reinforced its economic power through the attempted stabilisation of Lebanon and its international trade routes (Lawson 1984: 476). Assessing the four indications for the intervention motivation (strategic, incidental, behavioural and systemic)9 , a humanitarian motivation has to be denied as well. First of all, on the strategic level Syria had main interests in the condition of the Lebanese state. This does not mean that it sought for a stable Lebanon. A mixture of instability (with negative effects on Israel) and stability (with positive domestic effects) was in Syrian favour throughout the Lebanese civil war. Secondly, the course of events leads to the assumption that those humanitarian motives were at no time a primary concern for Syria. During the first year, it 8 Syria

made clear that it had special interest into Lebanon at the beginning of 1976 (Odeh 1985: 151; Weinberger 1986: 212). Its foreign minister, Abdel Halim Khaddam, announced on 7th January coinciding with this: “We will not permit the division of Lebanon. Any attempt at division will lead to our immediate intervention. […] Lebanon can either be united or return to Syria” (Khaddam, cited in Pipes 1990: 120). 9 Yet, the systemic indication will not be scrutinized at this point.

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105

made no attempt to intervene, as the warring factions were more or less balanced. Further, at the beginning of 1976 it made clear that it would intervene, if Lebanon was in danger of splitting apart (geostrategic reason) without referring to the catastrophic humanitarian situation. Finally, the intervention happened at a point, when the (Lebanese National Movement) LNM and Palestinian forces advanced military and politically to a point that could have ended the civil war in an early state. Coinciding with this was the small-scale interference that started on April 9th , according to Odeh mainly in order to prevent the LNM/Palestinian advance. Finally, the Syrian recourse to interventions and military forces was well-defined. Syria was a leading force in every Arab-Israeli war until 1976 (Arab-Israeli war of 1948, Six-Day war of 1967, Yom Kippur War of 1973). In addition, it did not hesitate to intervene in Jordan during the Black September in 1970 as well, again to keep the Arab-Palestinian power relations at status quo. The use of military force as a way of politics was common in Syrian politics and not a last resort mainly reserved for cases of massive humanitarian emergencies. Accordingly, aside the possibility that the humanitarian reason was a motive for the Syrian intervention as well, it certainly was not the predominant reason and therewith no primary humanitarian motivation for the Syrian intervention existed. Le Monde estimated the casualty figure in the first year of civil war with 15,000, the conflict was still hot and, having in mind the ‘cleansing character’ of almost any internal conflict party action, constituted a massive humanitarian emergency. The Syrian intervention, as well as the later Arab League interference, has not been able to mitigate the crisis. Contrary, estimates went up to more than 20,000 civil war victims until October 1976. Ghali goes further by linking those interventions with an increasing conflict: “There is no doubt that the intervention of non-Lebanese actors […] expanded the intra-Lebanese conflict to the regional level and made the conflict more intractable” (Ghali 1993: 181f). In consequence, the Syrian intervention was conducted on the basis of massive humanitarian emergency, yet, has not brought a relief effect to this. The Syrian intervention on April 9th 1976 was an unauthorised classical intervention.

7.4.2

The Arab League Intervention

The second foreign interference came by a joint deployment of Arab League member states as replacement or veil, depending on the interpretation, for the Syrian intervention.

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The detachment of the Arab peacekeepers started on June 11th 1976. Its first composition was made of troops from Sudan, Libya and Algeria (Odeh 1985: 174f; Weinberger 1986: 217). Those replaced Syrian troops, which intruded in Beirut the previous days (Odeh 1985: 175). This ad hoc peacekeeping force was transformed on October 25th into the Arab Deterrent Force (ADF) that was built with troops of various Arab states, but mainly Syrian troops (el Khazen 2000: 353f; Hiro 1993: 43f; O’Ballance 1998: 59; Odeh 1985: 183; Weinberger 1986: 228f). The ADF falls within article 3 of the act of aggression definition and therewith its deployment constitutes an armed interference into Lebanon that started on June 11th 1976. As for the case of the Syrian intervention, the Arab League interventions had no authorisation by the United Nations Security Council prior to June 11th (and also none ex post). The Arab League intervention got no invitation of the Lebanese president either. President Frangieh instead denied in a letter to the Secretary-General of the Arab League, Mahmoud Riad, explicitly the right of the Arab peacekeepers to interfere in Lebanon (Ajaj 1990: 188f & 270). Therefore, the deployment of peacekeeping forces on June 11th infringes on the principle of sovereignty. This situation changed with the Cairo agreement of October 25th which was brokered between the Palestinians and Syria foremost (el Khazen 2000: 353f; Hiro 1993: 43; O’Ballance 1998: 59; Odeh 1985: 183; Weinberger 1986: 228f) and accepted by President Sarkis (Weinberger 1986: 230). The assessment of the Arab League’s motivation to intervene in Lebanon is more difficult than in the Syrian case. The classical strategic dimension is more or less irrelevant, unless the intra-regional sphere is considered. Here, the organisations strategic interest rests upon the supreme interest to sustain independence and sovereignty of its member-states (Pact of the League of Arab States: Art. 2). Not even massive humanitarian emergencies within a state may constitute an official issue of the Arab League. Only if involving a risk to the independence and sovereignty of other member-states, they can become relevant for the organization’s agenda after all. The strategic dimension neither includes an indication pro nor versus humanitarian motivation. The course of events and Arab League’s overall behaviour attests an impartial, mitigating account. Aside from the general support of the Palestinian groups, the Arab League was not in favour of a warring faction. It could have done so, by giving its preference to the Arab forces, yet there was no sole Arab civil war faction in Lebanon. Throughout the conflict the civil war sides consisted of multiple Sunnite, Shia and Druze forces as well as secular Arab factions. The Arab group within Lebanon was as varying as it was within the Arab League.

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107

Under these circumstances the Arab league interference of June 11th constitutes a rough exception of the merely diplomatic interference it performed until then. I assume that the Arab League was motivated by containing the escalating conflict within Lebanon and preventing the crisis from spreading over the Arab region. This may not be an intrinsic humanitarian motivation to mitigate the on-going massive humanitarian emergency in Lebanon, nevertheless, it is a self-interested (still) humanitarian motivation. Two further decisions confirm this estimation as well: First, the later Arab Deterrent Force was wittingly named ‘Deterrent’, which in the original Arabic (‫ )الرادع‬means providing with powers to force absolute obedience (Ajaj 1990: 291). Secondly, the ADF observed the command of the Lebanese president. Even if this command was in fact undermined by the Syrian officers, who were in charge of their troops and therewith of two-thirds of the ADF, the intention of the Arab League seemed one in order to mitigate civil war by enabling the Lebanese authorities to restore internal power. Both choices back the classification of the Arab League interference five months earlier as motivated on humanitarian grounds. The massive humanitarian emergency in Lebanon, which caused approximately 15,000 deaths within the first year, could not be contained by the first Arab League intervention in June 1976. However, the deployment of the ADF marked for the common Lebanese civil war research the end of its first episode and contained the violence more or less until early 1978. In consequence, I argue that until October 1976 the ADF had a positive relief (or at least containment) effect. However, due to the fact that the conflict heated up after 1978 and especially in 1982 (during which time the ADF continued), the positive relief effect, in sum, will be denied (Hiro 1993: 44; O’Ballance 1998: 61). The ADF, in consequence, was an unauthorised humanitarian intervention, until it switched by the Cairo agreement of October 25th to a humanitarian assistance mission.

7.4.3

The Multilateral Interventions

The last interference in the Lebanese civil war that has to be examined in this case-selection is the multinational engagement in 1982. After six years of prolonged civil war with an Israeli punitive mission and a following United Nations Interim Force in Lebanon (UNIFIL) in 1978, Israel invaded Lebanon on June 6th 1982 on full-scale. To solve this escalation that could have triggered an even more disastrous regional conflict between Israel, Syria and perhaps further Arab countries, the Western great powers (esp. the USA) worked out agreements to decrease the possibility for such an escalation and enforce order

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on the front line of the Lebanese civil war: Beirut. The deployment of France soldiers started on August 21st , those of the USA on the 25th (Hiro 1993: 81–90; O’Ballance 1998: 113–7). At the end of September 1982 those peacekeepers were transferred to the Multinational Force (MNF) with over 3,300 men, including Italian soldiers as well. The MNF stayed for eighteen months until early 1984 (Hiro 1993: 107; O’Ballance 1998: 120 & 139–40). This constitutes an armed interference. An authorisation by the UNSC was neither given for the forces that were deployed in August 1982 nor for the MNF, which started at the end of September. The legal base of the first detachments on August 21st was a multilateral agreement between the USA, Syria and Lebanon as well as the non-state actor PLO in order to evacuate Palestinian troops from the Israeli-sieged Beirut. The Lebanese government previously had called for international help to broker a truce between the internal warring factions and Israel (O’Ballance 1998: 114f; United Nations 1983: 465f).10 The MNF was detached on September 24th and requested by the Lebanese government as well (Brouillet 1985: 115–31; O’Ballance 1998: 120; United Nations 1983: 469f).11 For some scholars of international law, it remains a question, whether the Lebanese government had at both times the authority to give an invitation for foreign forces. Zimbler e.g. denies the effective control of the government about Lebanon; a reasonable doubt (1984: 243). Yet, as outlined before in the criterion in Subchapter 4.3, effective control cannot be requested as necessity for a legal assistance mission in cases when a legal government precisely tries to restore such an effective control. Therefore, both interferences by the MNF have been legal and happened by an invitation of the Lebanese government; they will be categorised as assistance missions. The criteria of humanitarian motivation and a relief effect on a massive humanitarian emergency will not to be scrutinised.

7.4.4

Preventive Interventions and Humanitarian Assistance Missions in the Lebanese Civil War (Subchapter Summary)

Lebanon had witnessed several armed interferences during its sixteen years of civil war. The Israeli interventions (mainly those of 1978 and 1982) had been 10 For the text of the Italian-Lebanese agreement (through an exchange of letters) see: Massai 1984: 68. 11 Again, for the Italian-Lebanese agreement see: Massai 1984: 71f.

7.5 Vietnamese-Cambodian War (1978)

109

ruled out previously in chapter 6. Besides this, I found three variations of armed interferences in this conflict: humanitarian assistance missions, humanitarian interventions and classical interventions (see Table 7.5). The first interference assessed was the Syrian classical intervention on April 9th 1976, which was neither legal by a Lebanese invitation, nor authorised by the UNSC. Further, it was neither predominantly motivated on humanitarian grounds, nor let to a positive relieve effect on the civil war. This intervention was followed by the military interference of the Arab League of June 11th 1976. The Arab Deterrent Force had no Lebanese invitation until October 25th as well, yet it was motivated on humanitarian grounds. The ADF was not sanctioned by the UNSC nor did it lead to a mitigation of the conflict. The latter interferences were the multinational detachments of the USA, France and Italy on August 21st and September 24th 1982. Those came after an invitation by the Lebanese government, first in the form of a multilateral treaty, then in the form of several demands of the government. They might constitute presumably unsuccessful humanitarian assistance missions, if they were primary humanitarian motivated or led to the attempted mitigation of the civil war. An UNSC authorisation was not necessary, since no infringement on the principle of sovereignty took place. Consequently, one unauthorised humanitarian intervention was conducted in the Lebanese civil war: The ADF deployment of the Arab League of June 11th 1976.

7.5

Vietnamese-Cambodian War (1978)

Decolonialisation and the problems during processes of transition kept being a burden in the southern hemisphere throughout the second half of the 20th century. What started with the 1st Indochina war as an independence war versus the French colonial rule transformed in the 60s and 70s into the 2nd Indochina or Vietnam war led by the USA. At the end of 1978 a 3rd Indochina war between Vietnam and Cambodia erupted. This 3rd Indochina war is the case of the sixth possible humanitarian intervention that will be examined now. Soon after a coup d’état in Cambodia, the new leaders, the Khmer Rouge, implemented their ideology of demodernisation. They began abolishing cities within the same year and continued in 1976 with mass killings of citizens with medium and higher education resp. professionalism. Klintworth observed that the Vietnamese minority in Cambodia was targeted as well. He describes “the policies and practices of the Pol Pot government […] [as] horrific enough to ‘shock the conscience of mankind’” (Klintworth 1989: 8). Early estimation numbered the Cambodian death toll between April 1975 and early 1976 with 800,000 people.

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Table 7.5 UHI-criteria summary for Lebanon (1976/1982) Casesa

AIb

IoPoNIb

IoPoSb

HMb

PREb

Sum

Syria > Lebanon (09.04.1976)

+

+

+

−

−

− (ClI)c

Arab League > Lebanon (11.06.1976)

+

+

+

+

−

+ (UHI)c

Arab League > Lebanon (25.10.1976)

+

+

−

+

−

− (HAM)c

USA, France, Italy > Lebanon (21.08.1982)

+

+

−

(+)

?

− (HAM)c

USA, France, Italy > Lebanon (24.09.1982)

+

+

−

(+)

?

− (HAM)c

Source: Author’s own table a The cases are coded in the following order: intervener > intervenee (beginning of the armed interference) b The abbreviations are as follows: AI (armed interference), HM (humanitarian motivation), IoPoNI (infringement on the principle of non-intervention), IoPoS (infringement on the principle of sovereignty), PRE (positive relief effect). The criteria are explained in chapter 4 c The different types of interventions resp. assistance missions are explained at the beginning of this chapter. The abbreviations are as follows: ClI (classical intervention), HAM (humanitarian assistance mission), UHI (authorised humanitarian intervention)

The British The Telegraph numbered in April 1976 between 500,000 and 800,000 deaths in an article entitled ‘Genocide in Cambodia’ (Kiernan 2007: ixf; Klintworth 1989: 6–8 & 18–20; Metzl 1996: 16–21). The Extraordinary Chambers in the Courts of Cambodia quantify the death toll with at least 1.7 million or 1,250 per day of the Khmer Rouge being in power (ECCC 2015). Both considering mere numbers and the specific quality of loss of life in Cambodia, I categorise this situation that started in April 1975 as a massive humanitarian emergency. The tensions between Vietnam and Cambodia intensified prior to December 1978, leading to several border violations on both sides. However, none of the operations conducted by Vietnam are directly connected to the full-scale interference on December 25th 1978. This interference at the end of December was argued by Vietnam and their great power ally, the Soviet Union, as an act of selfdefence against the attack by Cambodia. The majority of reports let me conclude that indeed Cambodia started the conflict with an aggression itself. Yet, the Vietnamese reaction trespasses the threshold between a reaction of self-defence and an invasion. Vietnam accomplished its operation by defeating the Khmer Rouge forces within two weeks and installing a new government on January 8th 1979.

7.5 Vietnamese-Cambodian War (1978)

111

Hence, an armed interference was conducted by Vietnam, starting on December 25th 1978 (Kiernan 2007: xi; Klintworth 1989: 7; Metzl 1996: 66, 98 & 102). The massive humanitarian emergency in Cambodia was a deliberate action of the Khmer Rouge regime. They seemed to be willing throughout the months prior to December 1978 to escalade the tensions with the Vietnamese minority in Cambodia as well as those Vietnamese across the border in order to regain support with the Khmer majority in Cambodia (Klintworth 1989: 19). After the invasion started, Ieng Sary, the then deputy prime minister of Cambodia declared in a telegram to the UNSC that Cambodia considers the Vietnamese action as an invasion (UN-Doc. S/13001). This fact as well as the regime change initiated by Vietnam leads to the conclusion that a Cambodian invitation for the Vietnamese interference was not given. Within the UNSC no draft was brought to a vote prior to the invasion. This can be explained by the tension in the communist faction, where China supported Cambodia and the Soviet Union backed the Vietnamese reaction. The first reaction within the UN came with UNGAR 34/22 that called in November 1979 for a withdrawal of all foreign forces. Therefore, the Vietnamese invasion infringed on the principle of non-intervention (Berdal & Leifer 2007: 34f; Metzl 1996: 158f; UNGAR 34/22). To assess the Vietnamese motivation, I draw attention to the international response. The ambassador of the United Kingdom acknowledged the serious harsh humanitarian situation in Cambodia, yet, at the same time called the Vietnamese and Soviet behaviour, a “mass baptism” (UN-Doc. S/PV.2110: 6): “They will understand, therefore, if I still feel doubtful as to whether their conversion to the cause of human rights is real rather than tactical” (ibid.). France seconded this opinion and valued the sanctity of sovereignty and non-intervention higher than the attempt to mitigate the massive humanitarian emergency in Cambodia. Western governments in general agreed that the Cambodians had carried out massive human rights abuses. However, they (nevertheless) saw no legal justification for an intervention based on such internal Cambodian affairs (Akehurst 1984: 97f; Metzl 1996: 133). Vietnam itself used a mixture of reasons for their intervention in Cambodia. On the one hand, it claimed at the same UNSC meeting as mentioned above to have acted under its right to self-defence. It stated further that it saw Cambodia as a proxy aggressor that could lay the ground for a more dangerous intervention by hostile China. On the other hand, it reminded during this meeting as well as in public statements about the atrocities, which the Khmer Rouge had committed against its own people. But, Vietnam did not take recourse on an alleged

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humanitarian intervention doctrine as legal justification (Chesterman 2001: 80; Klintworth 1989: 10f; UN-Doc. S/PV.2110: 8). Taking a closer look at the action itself, Vietnam had experienced prior to its reaction several border incursions by Cambodia. Although, these incursions coincided with the peak of the Cambodian genocide, Vietnam seems to have acted first as the Vietnamese minority in Cambodia was directly under threat and used the Cambodian aggression as its vehicle to overthrow the Khmer Rouge. The late response and the specific protection of the Vietnamese minority may lead to the conclusion that Vietnam had a self-interest motivation. However, one may argue that the protection of a Vietnamese minority in Cambodia is a humanitarian motivation as well (Metzl 1996: 106f). Considering all arguments, I conclude that the Vietnamese motivation was not a primary humanitarian one. The timing was late and the fear of a dual-border conflict with Cambodia and China at the same time high. The geostrategic motivation, therefore, outweighs the humanitarian one. The Vietnamese intervention in Cambodia was not primarily humanitarian motivated. Genocide in Cambodia had been stopped by this intervention. Nonetheless, the humanitarian crisis continued in 1979. Cambodians were threatened by famine. Yet, such a situation occurred mainly in the refugee areas along the CambodianThai border due to continuing fights between remaining Khmer Rouge and the new regime. External observers could not verify a famine in general. Moreover, the nutritional level was acceptable, although Cambodia recognised a decrease in agricultural production in 1979 (Metzl 1996: 144–9, 156f & 165). Therefore, I determine that the humanitarian situation in Cambodia was improving after the Vietnamese invasion. A positive relief effect to the massive humanitarian emergency was reached due to the Vietnamese intervention. Consequently, I identify an unauthorised humanitarian intervention of Vietnam in Cambodia that fulfils the criterion of a positive relief effect on a massive humanitarian emergency (see Table 7.6).

7.6

Uganda-Tanzania War (1979)

Another case appeared aside of the focus of great powers several months after the Southeast Asian case in the previous subchapter. This case that will now be examined is the Tanzanian intervention in Uganda in 1979. It consists of the first war of two independent African nations and the overthrow of the Ugandan dictator Idi Amin.

7.6 Uganda-Tanzania War (1979)

113

Table 7.6 UHI-criteria summary for Cambodia (1978) Casea

AIb

IoPoNIb

IoPoSb

HMb

PREb

Sum

Vietnam > Cambodia (25.12.1978)

+

+

+

−

+

+ (UHI)c

Source: Author’s own table a The case is coded in the following order: intervener > intervenee (beginning of the armed interference) b The abbreviations are as follows: AI (armed interference), HM (humanitarian motivation), IoPoNI (infringement on the principle of non-intervention), IoPoS (infringement on the principle of sovereignty), PRE (positive relief effect). The criteria are explained in chapter 4 c The different types of interventions resp. assistance missions are explained at the beginning of this chapter. The abbreviation is as follows: UHI (unauthorised humanitarian intervention)

Idi Amin seized power on January 25th 1971, while the current president of Uganda was on a conference in Singapore. The toppled President Milton Obote got asylum in the neighbouring Tanzania. After several border incursions of Uganda in Tanzania in 1971, both countries clashed in the following year. A Tanzanian invasion attempt at the end of 1972 was condemned by the OAU and resulted in the Mogadishu Peace Agreement between Tanzania and Uganda, which included limited military forces in the Kagera region of Tanzania. Peace between both countries was lived in practice, yet, was contradicted by unfriendly media reports and diplomatic tensions. Tanzania, nonetheless, reduced its troops along the border to Uganda as well as ended its official support for the Ugandan exile forces until the Ugandan border incursions in 1978 (Avirgan & Honey 1982: 4, 34–7 & 41f; Hassan 1980: 868f; Okoth 1987: 153). The events prior to the Tanzanian intervention started in summer 1978 with cross-border violations of both sides. Avirgan & Honey trace back the later invasion of Uganda in the Kagera Salient to first serious preparations in August the same year. The conflict escalated until a direct confrontation was reached by Ugandan attacks via land- and air-based bombardments on October 18th . Seven days later, Uganda invaded the Kagera Salient, finding Tanzania not able to react, because of a minimal military strength in this region. According to international media, which based their reports on the media in Uganda and Tanzania, the full-scale invasion started on October 30th 1978 and stopped at the Kagera river approx. 30 km inside Tanzania (Avirgan & Honey 1982: 51–4, 58, 65 & 67; Burrows 1979: 308; Okoth 1987: 155).

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In the aftermath of the Ugandan invasion in Tanzania, the latter demanded compensation from Uganda and assurances against further aggressions. Tanzania’s President Nyerere, likewise, demanded a condemnation of the Ugandan invasion by the OAU. Neither demand was fulfilled in the following two months. Tanzania intervened on January 21st 1979 in Uganda, backed by Ugandan exile forces, which had prepared for an operation in the meantime. After proceeding to the first Ugandan border towns and repeating the same demands to Uganda and the OAU, Tanzania proceeded its operation at the beginning of June 3rd , whereby it conquered Uganda entirely. The Ugandan capital Kampala was seized on April 10th . Three days later, a new Ugandan government was installed (Avirgan & Honey 1982: 69, 72f, 126–142, 151–153 & 196). In sum, an armed interference by Tanzania in Uganda took place, which started on January 21st 1979. The official international response was scarce, if happening at all. Diplomats in Dar es-Salaam advised Tanzania to hold its operations at the Ugandan border in order to not being seen as invaders themselves. Yet, international community did not protest against Tanzania’s actions. Only the OAU pressured Tanzania to settle the dispute peacefully. Within the UNSC the Ugandan-Tanzanian war and the interferences of both sides in October 1978 and January 1979 has not been publicly discussed. A request by Uganda for such a discussion on March 28th was withdrawn within a week due to pressure by African states (Avirgan & Honey 1982: 77f; Burrows 1979: 309; UN-Doc. A/34/2(Supp): 55). Consequently, the armed interference by Tanzania in Uganda infringed on the principle of nonintervention. A violation of the principle of sovereignty thus seems to be quite obvious. However, Tanzania argued that it helped the new Ugandan government on invitation in erasing remaining Amin troops since April 1979. This invitation is under international law invalid since it was given by a newly, under Tanzania’s umbrella established government (Wani 1980: 25). An infringement on the principle of sovereignty therefore exists with the armed interference of Tanzania in Uganda. More problematic to determine is the motivation of Tanzania for its intervention in Uganda. To do so, I will consider the strategic reasons for the Tanzanian intervention, followed by a report on the humanitarian situation of the supposed-to-be humanitarian intervener and its international reception as well as an event-related analysis. Starting on the strategic level it is apparent that Uganda was Tanzania’s main opponent. Tanzania hosted Uganda’s former President Obote and supported a Ugandan exile army since spring 1971. Ugandan border incursions occurred in 1971, including bombardments in the Kagera Salient. In September 1972 Uganda attempted an invasion in Tanzania, in reaction Ugandan exile forces invaded

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themselves backed by Tanzania. For this interference in Uganda, Tanzania was condemned by the OAU and forced into a peace agreement in October 1972. Peace between both countries was lived in practice, yet the tensions remained in official statements and the local media. Although, Tanzania refrained from a more direct support of anti-Ugandan actions, it trained Ugandan exile forces in 1974 and 1977. From a strategic perspective, Tanzania had any reason to interfere in Uganda (Avirgan & Honey 1982: 34–7). The humanitarian situation in Tanzania was not a sufficient one until 1978. However, Hassan reports a better human rights record in 1978. The international society accepted a humanitarian component and its legitimacy. UK recognised the new Ugandan government within a week. Although, expressing the principles of sovereignty and non-intervention, the African community of states in majority welcomed the overthrow of Idi Amin without expressing so in public. They pointed out the infringement on international law, but at the same time, stressed the importance for the maintenance of human rights within Uganda and Africa. This is best seen in the swift acceptance of the credentials of the new Ugandan mission to the OAU. Even if not overwhelmingly convincing, the international support and humanitarian record of Tanzania seems to slightly favour a primary humanitarian motivation of Tanzania (Burrows 1979: 309; Hassan 1980: 860, 866, 881 & 891; Okoth 1987: 155–7). The event-related view on the Tanzanian intervention is more ambivalent. In their preface Avrigan & Honey reported that no censorship occurred during their embedment in the Tanzanian operation. They state that this was enforced by a direct order of President Nyerere. Such a fact is quite odd for an operation in the time of Cold War. Yet, it let me take an insight in the conduct of the Tanzanian operation. Although, merely 500 Ugandan civilians were killed during the war, Avirgan & Honey report at the same time that deliberate atrocities by the Tanzanian army occurred at the beginning of its campaign. Atrocities were committed further by Tanzanian forces among Libyan soldiers fighting alongside the Ugandans in the days before the fall of Kampala. Pro-Amin civilians were killed occasionally by Ugandan exile forces in the days after the take-over of the Ugandan capital. In total, the conduct of the Tanzanian campaign was not free of violations of international humanitarian law. However, the death toll in direct context of the campaign and amount of atrocities remained (relatively) low (Avirgan & Honey 1982: xii, 70, 85, 91, 149 & 196; Chatterjee 1981: 757; Hassan 1980: 866). The decision-making process and campaign advancement for the total regime change in Uganda seems likewise defensive resp. slow. The decision for a fullscale invasion in Uganda was made first after a peaceful solution with Uganda

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could not be reached and the OAU refused to condemn the Ugandan interference.12 Tanzania proceeded cautiously, waiting for international reaction after taking retaliation by occupying the border region on the Ugandan side. Under the Responsibility to Protect this may be seen as trying every non-violent or diplomatic solution, before taking recourse to the last resort: a full-scale humanitarian intervention. Yet, Tanzania did not demand a change in the internal Ugandan situation, but a securement against new Ugandan aggressions. Hassan argues that the humanitarian objective was reached after the fall of Kampala. He interprets the ongoing campaign as a sign against a humanitarian driven intervention. Yet, considering the threat for Tanzania to be solved after the fall of Kampala is shortsighted. International society today acknowledges—at least since the expulsion of Al-Qaida from Afghan soil in the course of 9/11 by overthrowing the Taliban regime—that the right self-defence in some cases can justify a regime change. Such an acceptance can be assumed in cases, where international society does not limit the right to self-defence as exercised by the intervener, e.g. by invoking the UNSC rights under article 51 UNC. Yet, such a fully accomplished campaign can prove both a humanitarian motivation, as well as a self-interested one. Thus, the delayed campaign does neither prove a humanitarian, nor a self-interested motivation (Avirgan & Honey 1982: 78 & 83; Chatterjee 1981: 756f; Chesterman 2001: 78f; Hassan 1980: 893; Okoth 1987: 152, 154, 157f & 160). Examining the strategic aspects, the humanitarian level and the international reaction as well as the specific course of events, neither a humanitarian nor a selfinterested motivation has been proven as primary for the Tanzanian intervention. Hence, I come to Tanzania’s own justification. President Nyerere mainly reasoned his campaign advancement (after the occupation of the southwestern part of Uganda) with the OAU’s failure to maintain collective security in Africa. The humanitarian tragedy in Uganda was frequently mentioned by Tanzanian officials. Yet, the security of Tanzania was pointed out first, in almost every situation. Consequently, I assume a secondary humanitarian motivation and acknowledge a primary self-interested one for Tanzania’s intervention in Uganda (Chatterjee 1981: 757; Hassan 1980: 866). Finally, I take a look at the massive humanitarian emergency in Uganda after the fall of Idi Amin. Amnesty International estimated 300,000 killed Ugandans under Amin. Avirgan & Honey estimated between 250,000 and 500,000 Ugandans killed prior to the intervention. Reports concluded a total breakdown of the rule of law and unlimited powers of state agents to kill and torture any Ugandan. 12 Okoth points out that the OAU leadership seemed to be quite partisan in the conflict (1987: 152 & 154).

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Although, Uganda experienced an uneasy transition in the post-war years, including civil war, the high death toll of the Amin years was not reached (Amnesty International 1979: 38; Avirgan & Honey 1982: 27; Hassan 1980: 892). The Tanzanian intervention, consequently, led to a positive relief effect on the massive humanitarian emergency in Uganda. Having examined the Tanzanian armed interference in Uganda in 1979, I conclude that due to the lack of an UNSC resolution and an invitation by the Ugandan authorities, but mitigating a massive humanitarian emergency, this case was an unauthorised humanitarian intervention (see Table 7.7). Table 7.7 UHI-criteria summary for Uganda (1979) Casea

AIb

IoPoNIb

IoPoSb

HMb

PREb

Sum

Tanzania > Uganda (21.01.1979)

+

+

+

−

+

+ (UHI)c

Source: Author’s own table a The case is coded in the following order: intervener > intervenee (beginning of the armed interference) b The abbreviations are as follows: AI (armed interference), HM (humanitarian motivation), IoPoNI (infringement on the principle of non-intervention), IoPoS (infringement on the principle of sovereignty), PRE (positive relief effect). The criteria are explained in chapter 4 c The different types of interventions resp. assistance missions are explained at the beginning of this chapter. The abbreviation is as follows: UHI (unauthorised humanitarian intervention)

7.7

India’s Assistance in the Sri Lankan Civil War (1987)

The last case in the Cold War era that has to be examined is the Indian assistance in the Sri Lankan civil war that started on 30th July 1987 and lasted until the end of 1988. During the examination of this case it has been noticed that it consists of two cases that might fulfil the criteria. Therefore, unlike the result of chapter 6 implied, two separate cases will be examined in this subchapter.

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Indian Humanitarian Aid Operations

Based on a long ongoing conflict within Sri Lanka between the ethnic groups of the majority Sinhalese and minority Tamil, clashes intensified in 1987, whereby, the government and army took side on the Sinhalese community and started counter-insurgency operations (O’Ballance 1989: 55–74; Rao 1988: 431f). In April 1987 the clashes turned more violent. On April 17th 1987 the Tamil Tigers attacked a civilian group, killing 127 men and women, Sinhalese in majority. Four days later a bomb exploded in Colombo, killing 110 people. This time, the Eelam Revolutionary Organisation of Students (EROS) was responsible for the massacre. This incident on April 21st and the Good Friday Massacre led to a turn in the easing conflict (O’Ballance 1989: 75f; Pfaffenberger 1988: 138). Besides India’s call for a non-violent solution to the Tamil problem, the Sri Lankan government started its main counter-insurgency operation on May 26th , called Vadamarachchi Operation. Until June 10th the operation caused over 200 victims on the side of the Tamil Tigers and 37 dead servicemen on Sri Lankan side (O’Ballance 1989: 77–84). India gave notice to the Sri Lankan foreign minister on June 1st that they would send relief supplies in the Jaffna Peninsula. This humanitarian aid operation was launched on 3rd of June as a civil fleet departed from the Indian port of Ramaeswaran, but intercepted and denied entrance in Sri Lankan territorial waters by the Sri Lankan navy. A second approach was made on the next day by dropping supplies via transport aircraft. This time the operation was successful, probably because the five Indian aircrafts were guarded by combat aircraft. The air operation led to a breach of Sri Lankan airspace for several minutes, while India gave a prior notice. Besides the Indian information about their missions, Sri Lanka saw the first as a threat and the second as a breach of their sovereignty. The increasing Indian pressure resulted in an Indo-Sri Lankan Agreement that was reached on June 15th , under which limited civilian relief supplies could be shipped to the Tamil part of Sri Lanka (O’Ballance 1989: 85f; Pfaffenberger 1988: 140f; Rao 1988: 433). The hindered Indian relief mission by sea of June 3rd is no armed interferences, since the Sri Lankan territorial waters were not entered by the Indian fleet. The successful Indian relief mission by air of June 4th may constitute an armed interference, since Sri Lankan airspace was invaded for several minutes by five Indian aircrafts. UNGAR 3314 stated explicitly that “the invasion […] by armed forces of a State of the territory of another State […] however temporary” (UNGAR 3314) qualifies as an act of aggression. The short airspace intrusion for several minutes constitutes, though, a de minimis case (see Subchapter 4.2). An

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on-going intervention has not taken place. This incident nevertheless added to the Indian pressure on the Sri Lankan government. Consequently, the Indian action is classified as an advanced interference that is short of an act of aggression and therewith no armed interference under the criteria established.

7.7.2

The Indian Peace-Keeping Force (IPKF) in Sri Lanka

The fighting between the Sri Lankan army and Tamil rebels as well as within the Tamil rebel factions continued after the end of the Vadamarachchi Operation during July 1987. Under the impression the Indian intervention in East Pakistan and the new impact of the Indian relief mission of June 4th made, as well as increasing Indian concerns to the situation in northern and eastern Sri Lanka, the Sri Lankan government resumed its more general negotiations with India soon after. This resulted in the Indo-Sri Lankan Peace Accord of 29th July 1987, which was backed by four of the five Tamil rebel groups as well (O’Ballance 90f; Pfaffenberger 1988: 141; Rao 1988: 433f; Rösel 1997: 206). Until the end of July, about 3,000 Indian peacekeepers were deployed to northern Sri Lanka in accordance with the agreement (O’Ballance 1989: 93). The number of the then Indian Peace-Keeping Force (IPKF) rose to 10,000 until the end of August, 20,000 until February 1988, and 65,000 in April 1988 (Braun 1989: 23; O’Ballance 1989: 96; Pfaffenberger 1988: 137). The IPKF-mission is an armed interference on Sri Lankan territory. Further, in 49 meetings in 1987 the Security Council has not considered the conflict in Sri Lanka or the Indian interference within it. If seen as intervention, the Indian action, consequently, could not have been authorised by the United Nations Security Council. Yet, the deployment was not infringing on Sri Lankan sovereignty, since the Indo-Sri Lankan Peace Accord included this mission in its full extent. Therefore, the IPKF was no unauthorised humanitarian intervention, but a humanitarian assistance mission instead.

7.7.3

India’s Assistance in the Sri Lankan Civil War (Subchapter Summary)

India interfered two times in the Sri Lankan civil war in 1987; none of these constitute an UHI (see Table 7.8). The first interference on June 4th does not constitute an armed interference since it was so short that it has to be regarded as a de minimis case in international law. The second case, the IPKF deployment

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that started on July 30th was an armed interference, without an authorisation of the UNSC, but with an invitation of the Sri Lankan government by case of contract (the Indo-Sri Lankan Peace Accord of July 29th ). Table 7.8 UHI-criteria summary for Sri Lanka (1987) Casesa

AIb

IoPoNIb

IoPoSb

HMb

PREb

India > Sri Lanka (04.06.1987)

−

?

?

?

?

−

India > Sri Lanka (30.07.1987)

+

/

−

(+)

?

− (HAM)c

Sum

Source: Author’s own table a The cases are coded in the following order: intervener > intervenee (beginning of the armed interference) b The abbreviations are as follows: AI (armed interference), HM (humanitarian motivation), IoPoNI (infringement on the principle of non-intervention), IoPoS (infringement on the principle of sovereignty), PRE (positive relief effect). The criteria are explained in chapter 4 c The different types of interventions resp. assistance missions are explained at the beginning of this chapter. The abbreviation is as follows: HAM (humanitarian assistance mission)

7.8

The Liberian Civil War and ECOWAS’ Intervention (1990)

One may assume that the end of the Cold War let to a new dawn for the enforcement of human rights in Africa as well. Yet, the new leading great power, the USA, was engaged on the Arabian Peninsula after Iraq attacked and conquered its neighbour Kuwait. Africa was far less important compared to oil-rich Kuwait and other international powers for the conduct of peace enforcement operation were not available. So, a civil war erupted in West Africa that gained almost no extra-African reaction. This civil war, the Liberian Civil War, and the Intervention by the Economic Community of West African States (ECOWAS) will be the first case to be scrutinized after the end of the Cold War. On December 24th 1989 around 100 rebels under the command of Charles Taylor, firming as the National Patriotic Front of Liberia (NPFL), launched an attack on Nimba County in the northern part of Liberia (Dennis 2006: 3; Ellis 1999: 75; Lambach 2008: 211). The NPFL was supported by Burkina Faso, Ivory Coast and Libya (Ahadzi 2009: 54; Huband 1998: 85 & 104f; Sesay 1996: 38). Soon after the incursion the Armed Forces of Liberia (AFL) reacted and sent forces to

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Nimba County. Their main target was not the NPFL, but civilians, foremost members of the Gio and Mano tribes, who were suspected to support the rebels. The civil war that erupted led to several major atrocities conducted by both sides, the NPFL and the AFL (Dennis 2006: 3; Howe 1996: 149; Jaye 2003: 121). In early 1990, the NPFL made huge progress and controlled 90 percent of Liberia until summer (Ellis 1995: 166f; Jaye 2003: 122; Lambach 2008: 212). The clashes let to estimated 160,000 refugees (Mutwol 2009: 52f). In the first two weeks of fights 1,000 deaths were reported (Jaye 2003: 121). The capital Monrovia was place of heavy clashes between NPFL, Independent NPFL (INPFL) (an NPFL offspring) and the AFL in mid-July. It was throughout summer 1990 in a state of anarchy (Huband 1998: 163–5; Mutwol 2009: 53). A major atrocity on July 29th , leading to 600 killed members of the Gio and Mano tribes in the Lutheran Church of Monrovia, got international attention. It is unclear if this was conducted by INPFL or AFL troops. In consequence, Liberia experienced in mid-summer 1990 a massive humanitarian emergency (Alao 1998: 43 & 173–5; Jaye 2003: 127). The only substantial external response came from ECOWAS. The regional organisation formed on the Banjul summit on May 30th the Standing Mediation Committee (SMC) in order to mitigate the erupting civil war (ECOWAS-Doc. A/DEC.9/5/90). This decision, however, faced internal opposition from francophone states, especially those in support of the NPFL: Ivory Coast and Burkina Faso (Alao 1998: 57; Mutwol 2009: 56f). On 6–7 August, the SMC met and—in view of the NPFL’s reluctance to cooperate—passed a mandate for 3,000 servicemen organised in the ECOWAS Monitoring Group (ECOMOG) to be deployed to Liberia in order to enforce a cease-fire. The mandate included the obligation for all warring parties to disarm and transfer their weapons to ECOMOG. The decision was made, while Ivory Coast and Senegal refused to participate at the SMC meeting. The first ECOMOG forces were built up by forces from Gambia, Ghana, Guinea, Nigeria and Sierra Leone. Nigeria contributed 70 percent of the men at ground (Howe 1996: 152; Mutwol 2009: 56f). ECOMOG arrived at the freeport of Monrovia on August 24th with 4,000 men at arms (Ahadzi 2009: 57f; Howe 1996: 154; Jaye 2003: 149; Sesay 1996: 42). As mentioned earlier, the role of the UNSC was scarcely active at best. Liberia tried to get its attention since July 1990 but failed to do so. The first serious consideration of the Liberian civil war took place on January 22nd 1991. Although, Jaye claims an ex post authorisation by an UNSCR, legally this never happened (Jaye 2003: 3). The relating resolutions 788 and 813 commend ECOWAS and ECOMOG for their effort and exclude ECOMOG from an arms embargo. Yet, neither formally authorises ECOWAS, the SMC nor ECOMOG to intervene in Liberia (Alao 1998: 104f & 107f; Howe 1996: 151; Jaye 2003: 131f; Kihunah

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2005: 124). The UNSC, therefore, did not authorise ECOWAS’ intervention into the Liberian civil war. Two other justifications for the ECOMOG intervention exist besides the legend of an ex post authorisation: An authorisation by the UN Secretary General and a justification by the ECOWAS Protocol Relating to Mutual Assistance of Defence (MAD) Protocol. Yet, an UNSG authorisation as claimed by Sesay, does not exist in international law (Seeger 2009: 277; Sesay 1996: 44). The second attempt for a justification was made by ECOMOG contributors themselves by referring to the MAD Protocol. Ahadzi points out that the SMC justified the given mandate on this protocol. Mutwol and Sesay refer to this protocol as well (Ahadzi 2009: 56; Mutwol 2009: 58; Sesay 1996: 43). However, neither article 16 relating to an external armed threat or aggression, article 17 concerning a conflict between ECOWAS member states nor article 18 referring to an internal conflict were formally invoked. Consequently, the armed interference of ECOWAS into Liberia infringed on the principle of non-intervention. The second possibility for a legal intervention would be an invitation by Liberia’s President Doe. Several circumstances let me assume, however, that such an invitation was not given. Those authors who argue that Doe invited ECOWAS fail to point out to a specific speech, situation or written document. Alao, moreover, acknowledges only a request for mediation made by Doe in a letter to ECOWAS on July 14th 1990 (Ahadzi 2009: 54f; Alao 1998: 60; Jaye 2003: 146; Sesay 1996: 42 & 44). None of those arguments are convincing in my view. The intervention, in result, infringes on the principle of sovereignty as well. The statements in the SMC and in ECOWAS let me to suggest that the concern for a conflagration or a refugee crisis at best was the primary internal motivation. While the official SMC justification was made on humanitarian grounds, several member states gave a quite different perspective. Ghana for example saw Taylor and his NPFL as regional security risk and Sierra Leone as well as Gambia estimated the NPFL as threat for their own internal stability (Ahadzi 2009: 56; Alie 2009: 85 & 87; Ellis 1995: 168f; Howe 1996: 150; Huband 1998: xxi; Sesay 1996: 38f). Mutwol points out that the SMC justified the intervention with the huge refugee crisis that reached 500,000 people and therewith had a regional dimension (Mutwol 2009: 56f). Based on the refugee crisis and its destabilizing effect for other ECOWAS member states, I assume that the internal motivation was based on humanitarian grounds. Taking a look on the international response it is quite obvious that the intervention was not seen as illegitimate. Merely francophone ECOWAS states (Burkina Faso, Togo and Ivory Coast) were opposed to the ECOMOG intervention. At the same time, they were more or less actively supporting the NPFL and, thus,

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indirectly involved in the Liberian civil war. One would be wise, therefore, not to build an argument versus a legitimate intervention based on their opposition. Contrary to those three states, the OAU, the UN and USA supported ECOMOG with advice as well as military and financial aid. As outlined above the UNSC was in support of its intervention likewise (Huband 1998: 210; Jaye 2003: 224; Sesay 1996: 42). In sum, the international reactions show overall support for the intervention. After the internal motivation and international response, I also take into account the conduct and rules of engagement of ECOMOG’s mission. Several sources report cooperation between ECOMOG and the INPFL and AFL. However, it seems likely that ECOMOG used this cooperation to attain a balance of power and mitigate violence. Atrocities by AFL and INPFL forces happened as well; especially notorious has been the INPFL, which killed President Doe in September. The ECOMOG’s influence on those two warring parties could indeed have limited violence. Moreover, ECOMOG’s operations led to casualties as well. Especially air raids on NPFL territory were criticised. In general, however, those operations made it possible for humanitarian relief missions to operate (Ahadzi 2009: 59f; Dennis 2006: 3; Ellis 1995: 169 & 171; Gerdes 2013: 118f; Howe 1996: 155–7; Huband 1998: 193–7, 199–203 & 217f; Mutwol 2009: 58; Sesay 1996: 45f). “ECOMOG’s offensive certainly saved thousands of lives by preventing a factional battle for Monrovia and by restoring peace that allowed food and medical supplies to enter Monrovia” (Howe 1996: 155). In sum, the conduct of ECOWAS’ intervention supports my assessment so far. We have analysed the internal motivation, international response and conduct of the intervention. Each of those aspects led to the conclusion that the intervention was motivated primarily by humanitarian reasons. Finally, we will take a look at the possible relief effect of ECOWAS mission to the humanitarian crisis in Liberia. As shown above, Liberia experienced a massive humanitarian emergency by mid-summer 1990 with estimated 160,000 refugees in consequence. Several peace accords were signed, yet, violence kept a daily common in Liberians life. In October 1992, an NPFL offence on Monrovia and a counter-attack by ECOMOG led to 3,000 civilian deaths. Moreover, even after Taylor was elected as president in 1997, a new civil war erupted in 1999. Peace was reached not earlier than in summer 2003, when Taylor was forced to resign and United Nations Mission in Liberia (UNMIL) forces supervised the transition phase (Alao 1998: 68; Huband 1998: 197f, 210f & 219; Lambach 2008: 213f).13 The analyses in several contributions to the Liberian civil war are mixed. While 13 Likewise

see Abiew 1999: 210.

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Ahadzi and Howe are pointing out that the NPFL was close to victory prior to ECOWAS’ involvement and therefore could have established a less violent, however, autocratic rule in Liberia, Adebjao, Jaye and Sesay argue that ECOMOG had a positive effect as it established a safe haven in Monrovia for refugees from the countryside resp. it enforced a buffer zone between the warring parties. The argument of Ellis that the NPFL controlled territory was the quietest and peaceful part in Liberia seems to support the finding of Ahadzi and Howe (Adebajo 1996: 224; Ahadzi 2009: 58–73; Ellis 1995: 186; Howe 1996: 165f & 172; Jaye 2003: 232 & 249f; Sesay 1996: 44). At last we can look on the numbers: the death tool and refugee count. Between 60,000 and 200,000 Liberians killed in the context of the civil war are estimated. The refugee count ranges between 1.3 and 2.5 million (Adebajo 1996: 222; Ellis 1995: 174, 313 & 316; Huband 1998: 219; Jaye 2003: 228). All numbers are for the whole length of the humanitarian emergency. In comparison with a four-digit death tool and six-digit refugee number as outlined prior to the intervention, the crisis in Liberia got worse rather than better with ECOMOG’s deployment. In sum, the event in Liberia after August 24th 1990 can still be described as deteriorating, among experts the results are mixed, yet, the numbers show no improvement for Liberia for the time of the ECOMOG involvement. Even if not totally clear, a positive relief effect on the massive humanitarian emergency cannot be seen. I can, therefore, verify an unauthorised humanitarian intervention of ECOWAS in Liberia that fulfils the criteria of humanitarian motivation, yet not that of a positive relief effect on a massive humanitarian emergency (see Table 7.9).

Table 7.9 UHI-criteria summary for Liberia (1990) Casea

AIb

IoPoNIb

IoPoSb

HMb

PREb

Sum

ECOWAS > Liberia (24.08.1990)

+

+

+

+

−

+ (UHI)c

Source: Author’s own table a The case is coded in the following order: intervener > intervenee (beginning of the armed interference) b The abbreviations are as follows: AI (armed interference), HM (humanitarian motivation), IoPoNI (infringement on the principle of non-intervention), IoPoS (infringement on the principle of sovereignty), PRE (positive relief effect). The criteria are explained in chapter 4 c The different types of interventions resp. assistance missions are explained at the beginning of this chapter. The abbreviation is as follows: UHI (unauthorised humanitarian intervention)

7.9 The Gulf War and International Interventions in Iraq in the 1990s

7.9

125

The Gulf War and International Interventions in Iraq in the 1990s

There was a reason for the non-interventionism of the West and great powers in the Liberian civil war: The crisis in the Gulf. In the month ECOWAS decided to intervene in Liberia and begun to deploy the first forces, Iraq invaded Kuwait. On August 2nd 1990 Iraqi forces crossed the border to neighbouring Kuwait. The international reaction to this invasion will be the second case after the end of the Cold War and include four separate instances that have to be scrutinised under HI-criteria.

7.9.1

The Liberation of Kuwait by Operation Desert Storm

The UNSC reacted to Iraq’s aggression in 1990 with eleven resolutions short of authorising the use of force within Iraq’s territory. On November 29th the UNSC finally took recourse to this last resort: “The Security Council, […] Acting under Chapter VII of the Charter, […] Authorizes Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the above-mentioned resolutions [660, 661, 662, 664, 665, 666, 667, 669, 670, 674 and 677], to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area” (UNSCR 678).

UNSCR 678 not only gave an authorisation to third parties to use force in order to liberate Kuwait, but included a deadline for peace and the point of time for war: January 16th 1991. On this date, 7:00 pm EST (1/17/91, 3:00 am AST), forces led by the United States started Operation Desert Storm in order to liberate Kuwait (Bush 1991). The first instance in this conflict is a classic case of authorised intervention or collective self-defence.14

14 Since UNSCR 678 refers to Chapter VII in large, it is not ascertained in literature if Operation Desert Storm is an authorised intervention under article 42 UNC or a case of the inherent right to collective self-defence as imbedded as well in article 51 UNC. For a detailed discussion of this question see Schachter 1991.

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The Multilateral Intervention Operation Provide Comfort

The crisis in the Gulf, however, did not end with the cease-fire agreement between Iraq and the coalition forces on March 3rd 1991. Two days earlier, Shi’i soldiers in Basra began demonstrating against Saddam Hussein and violence erupted throughout Basra. The revolt spread to other cities in southern Iraq, including Karbala, Najaf, Nasiriya, Samarra, Amara, Hillah, and Diwanniya. The Kurds in the north, who recognized the opportunity and had carefully planned for it, revolted against the government as well and by March 19th had taken over control in the northern cities of Irbil, Dahuk, Kirkuk, and Sulaimaniyya. Hahn stated in 2012 the death toll with 350,000; Hooglund counted 6,000 in the south and Seybolt 20,000 in the north. Additionally, more than two million people (mostly Kurds in the north) were internal displaced (Freedman & Karsh 1993: 419–21; Hahn 2012: 108; Hooglund 1991: 10; Kostiner 2009: 148; Seybolt 2007: 47f). The severe humanitarian situation convinced the United States, the United Kingdom and France to give humanitarian aid to Kurds. This aid programme was named Operation Provide Comfort (OPC). After yet another attack on Kurds in April 1991 and UNSCR 688 was adopted, this operation turned military by the relief operations via airdrop missions (legally a de minimis case) on April 7th (Rudd 2004: 40) and the establishment of a no-fly-zone within Iraqi air space the same day (Freedman & Karsh 1993: 421–4; Hahn 2012: 117f; Malone 2006: 88; Rudd 2004: 45; Seybolt 2007: 49). Safe havens were established, beginning on April 21st (Rudd 2004: 115f). Hence, those three states interfered by armed forces in Iraq in April 1991. This interference was justified by the acting states with UNSCR 688. This resolution, adopted on April 5th 1991, condemned “the repression of the Iraqi civilian population […], the consequences of which threaten international peace and security in the region” (UNSCR 688) and demands to end this repression. An authorisation or a decision, legally binding, was not included in UNSCR 688. This justification alone is, therewith, at least questionable and an infringement on the principle of non-intervention is possible. Most international lawyers, yet, accept the legality of the armed interference on the base of UNSCR 678 in context with UNSCR 688. While the historian Hahn and the jurist Seeger request an authorisation within UNSCR 688 (Hahn 2012: 108; Seeger 2009: 277–80), the common argument is that resolution 678 authorises international society not only to enforce the previous resolution, aiming at the liberation of Kuwait, but also “to restore international peace and security in the area” (UNSCR 678). Weston, former professor of law, besides objecting the use

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of force after the liberation of Kuwait, acknowledges that UNSCR 678 with this wide references to the restoration of international peace and security “left obvious room for interpretive and operational maneuver” (Weston 1991: 525); he called this the “unrestricted character of resolution 678” (ibid.: 526). The professors of international relations resp. international law, Adam Roberts, Eugene V. Rostow and Oscar Schachter, concur with this opinion (Roberts 1993: 437; Rostow 1991: 514; Schachter 1991: 467–9). Sometimes resolution 688 has been accepted as the sole legal source for OPC; yet, this attempt seems not to be convincing (Freedman & Karsh 1993: 421).15 The arguments most likely to convince against a still ongoing authorisation by UNSCR 678 are those connected to UNSCR 686 and UNSCR 687: UNSCR 686 is affirming the sovereignty of Iraq and noting the intention of the interfering powers to end their military presence, UNSCR 687 in provisional clause 6 is reaffirming this. A decision to end the authorisation, yet, was never made. In other words, resolution 678 “set no time limit” (Weston 1991: 526). In consequence, an infringement on the principle of non-intervention does not exists and Operation Provide Comfort had been an authorised—likely humanitarian—intervention.

7.9.3

Operation Southern Watch and Operation Northern Watch

In chapter 6 I have identified two further cases within this conflict: Operation Southern Watch of August 27th 1992 and Operation Northern Watch of January 1st 1997, which is the succeeding operation after the end of OPC at the end of 1996. Since both operations were conducted without a termination of the authorisation in resolution 678 and this legal base has not been commonly contested among international lawyers, I categorise those as cases of authorised interventions.

7.9.4

Multilateral Interventions in Iraq (Subchapter Summary)

Four cases of possible humanitarian interventions had been identified in chapter 6: Operation Desert Storm (1/16/91), Operation Provide Comfort (4/7/91), Operation Southern Watch (8/27/92) and Operation Northern Watch (1/1/97). Each of these armed interferences had been conducted under the authorisation of UNSCR 678 and are, therefore, authorised (humanitarian) interventions; in the case of OPC 15 See

for a further discussion: de Wet 2004: 284–90.

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as collective self-defence instead or likewise (see Table 7.10). Consequently, an unauthorised humanitarian intervention had not been taken place.

Table 7.10 UHI-criteria summary for Iraq (1991–1997) Casesa

AIb

IoPoNIb

IoPoSb

HMb

PREb

Sum

USA et al. > Iraq (16.01.1991)

+

−

(+)

?

?

− (ClI)c

USA et al. > Iraq (07.04.1991)

+

−

(+)

(+)

?

− (AHI [or ClI])c

USA et al. > Iraq (27.08.1992)

+

−

(+)

(+)

?

− (AHI)c

USA et al. > Iraq (01.01.1997)

+

−

(+)

(+)

?

− (AHI)c

Source: Author’s own table a The cases are coded in the following order: intervener > intervenee (beginning of the armed interference) b The abbreviations are as follows: AI (armed interference), HM (humanitarian motivation), IoPoNI (infringement on the principle of non-intervention), IoPoS (infringement on the principle of sovereignty), PRE (positive relief effect). The criteria are explained in chapter 4 c The different types of interventions resp. assistance missions are explained at the beginning of this chapter. The abbreviations are as follows: AHI (authorised humanitarian intervention), ClI (classical intervention)

7.10

Bosnian War (1992 & 1993)

The conflicts in Liberia and Iraq were in context of the end of Cold War. In 1991, another conflict connected to this milestone of international history occurred: The Socialist Federal Republic of Yugoslavia (SFRY) had begun falling apart in June 1991 when Slovenia and Croatia declared their independence. War between the remaining state and the newly independent countries erupted and were followed by the disintegration of Bosnia-Herzegovina. This country declared its independence on March 3rd (Burg & Shoup 1999: 69 & 73). The disintegration soon turned to be violent. An internationally recognised incident took place on April 6th 1992 as the city of Sarajevo was attacked by artillery. Within the second quarter of 1992 the refugee count in Bosnia reached

7.11 Somali Civil War (1992 & 1993)

129

more than 1.2 million (Burg & Shoup 1999: 129; Calic 2012: 121; Murphy 1996: 200f). As part of the cease-fire in Yugoslavia the UNSC established the United Nations Protection Force (UNPROFOR) and authorised its full deployment to Yugoslavia (UNSCR 743; UNSCR 749). The UNPROFOR headquarter was established on March 13th in Sarajevo (UN-Doc. S/23777). Hence, an armed interference by authority of the United Nations occurred in the Bosnian War that had not been infringing on the principle of non-intervention. Since this interference had been taking place in context of a cease-fire agreement this interference by March 13th 1992 did as well not infringe on the principle of sovereignty. The UN mission grew rapidly into a complex peacekeeping operation. While its first deployment had been made in context of the cease-fire agreement, the UNSC developed within months the “ever-changing mandate of UNPROFOR” (Economides & Taylor 2007: 68):16 Under UNSCR 781, yet outside of the ceasefire agreement, a no-fly zone was established and under UNSCR 816 regional organisations were authorised to enforce this decision, which NATO did since April 12th 1993 (NATO 1993; UNSCR 781; UNSCR 861). NATO interfered in the conflict further. By UNSCR 824 safe areas had been established and by UNSCR 836 UNPROFOR had been given the authorisation to use force to protect those areas, although it was described as “acting in selfdefence” (UNSCR 824; UNSCR 836). UNPROFOR had on several occasions been doing so with the help of NATO forces (Calic 2012: 183; Murphy 1996: 207f). Yet, those NATO actions remained under the auspices of UNPROFOR and therewith the authority of the United Nations. Those interferences, therefore, cannot be seen as a separate case. Consequently, a humanitarian assistance mission by the United Nations in Bosnia beginning on March 13th 1992 is verified (see Table 7.11). Since the enforcement of the no-fly zone this mission turned in an authorised humanitarian intervention.

7.11

Somali Civil War (1992 & 1993)

In 1991 the civil war in Somalia had been in its fourth year. It begun in 1988 as an extreme burden on its population, leaving more than 50,000 people dead and more than 300,000 displaced. Yet, the destruction of basic resources let to an escalation 16 See for coinciding assessments: Burg & Shoup 1999: 189 & 199; Rogel 1998: 64; Seybolt 2007: 62–7.

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Table 7.11 UHI-criteria summary for Bosnia (1992 & 1993) Casesa

AIb IoPoNIb IoPoSb HMb PREb Sum

UN > SFRY & success. (13.03.1992) +

−

−

(+)

?

− (HAM)c

UN > SFRY & success. (12.04.1993) +

−

(+)

(+)

?

− (AHI)c

Source: Author’s own table a The cases are coded in the following order: intervener > intervenee (beginning of the armed interference) b The abbreviations are as follows: AI (armed interference), HM (humanitarian motivation), IoPoNI (infringement on the principle of non-intervention), IoPoS (infringement on the principle of sovereignty), PRE (positive relief effect). The criteria are explained in chapter 4 c The different types of interventions resp. assistance missions are explained at the beginning of this chapter. The abbreviations are as follows: AHI (authorised humanitarian intervention), HAM (humanitarian assistance mission)

in 1991: In the time between January 1991 and August 1992 between 131,000 and 152,000 deaths by famine, while 15,000–40,000 people suffered death by the on-going violence (Seybolt 2007: 53).17 The United Nations tried to mitigate this humanitarian crisis by three UN peacekeeping forces: UNOSOM I, established by UNSCR 751 on April 24th 1992 and deployed on July 5th , UNITAF established by UNSCR 794 on December 3rd 1992 and deployed on December 9th , and UNOSOM II, established by UNSCR 814 on March 26th 1993. UNOSOM I had been deployed in consent with warring parties including interim President Ali Mahdi, while UNSCR 794 and UNSCR 814 had been adopted without the references to a Somali invitation. The UNSG described that, in context with the adoption of UNSCR 814, the UN envois merely sought assurance with “Somalis at the local level” (UN-Doc. S/24992: 5f); interim President Ali Mahdi was one among those twelve movements on the local level, but not listed as interim president (UN-Doc. S/24343; UN-Doc. S/23829; UN-Doc. S/24976; UN-Doc. S/24992; UNSCR 751; UNSCR 794; UNSCR 814). Therefore, while UNOSOM I had been established as humanitarian assistance mission, UNITAF and UNOSOM II were authorised humanitarian interventions (see Table 7.12). The ‘humanitarian’ dimension of each mission has not been scrutinised, but can be assumed.

17 For

additional information see: Debiel 2003: 134 & 137; Weber 1997: 55 & 62.

7.12 Rwandan Genocide (1994)

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Table 7.12 UHI-criteria summary for Somalia (1992 & 1993) Casesa

AIb

IoPoNIb

IoPoSb

HMb

PREb

Sum

UN > Somalia (05.07.1992)

+

−

−

(+)

?

− (HAM)c

UN > Somalia (09.12.1992)

+

−

(+)

(+)

?

− (AHI)c

UN > Somalia (26.03.1993)

+

−

(+)

(+)

?

− (AHI)c

Source: Author’s own table a The cases are coded in the following order: intervener > intervenee (beginning of the armed interference) b The abbreviations are as follows: AI (armed interference), HM (humanitarian motivation), IoPoNI (infringement on the principle of non-intervention), IoPoS (infringement on the principle of sovereignty), PRE (positive relief effect). The criteria are explained in chapter 4 c The different types of interventions resp. assistance missions are explained at the beginning of this chapter. The abbreviations are as follows: AHI (authorised humanitarian intervention), HAM (humanitarian assistance mission)

7.12

Rwandan Genocide (1994)

The next case is connected to the humanitarian emergency in Somalia and international society’s response to it. Since its involvement in Somalia was a huge setback for the wish for a more global responsibility to protect human lives, the international response to the genocide in Rwanda was contrary to Somalia: there had been almost none. On April 6th 1994 the genocide on the Tutsi minority in Rwanda rocketed out of virtually nothing. The starting signal for those atrocities came with the shot-down of Rwanda’s presidential airplane, with himself, Juvénal Habyarimana, on-board and killed. Within hours the government was decapitated as several ministers were killed as well. An obviously planned genocide had started, resulting in estimated 100,000 Tutsi and moderate Hutu killed within two weeks and 500,000 up to one million within three months (Debiel 2003: 180; Kuperman 2001: 27; Paris 2004: 73; Seybolt 2007: 70). A massive humanitarian emergency, therefore, appeared in Rwanda. The United Nations were already present in Rwanda at this time. UNAMIR I had been deployed in context of a cease-fire agreement. While nearly all of UNAMIR’s personnel had been withdrawn within days after April 6th , some units were still able to save the lives of tens of thousands of Rwandans (Paris 2004: 73; Seybolt 2007: 74f; UNSCR 872). Since the cease-fire agreement had been signed in consent with the Rwandan government, UNAMIR I had conducted a humanitarian

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assistance mission since the beginning of the humanitarian emergency on April 6th (see Table 7.13). International society second guessed its decision to withdraw the international contribution to Rwandan order and security: On May 17th the UNSC adopted with UNSCR 918 a robust mandate for UNAMIR II. Member states, yet, were reluctant to contribute. In consequence France offered to lead a multilateral interim force to stop the genocide. This mission was conducted under the name Operation Turquoise (OT). OT was authorised on June 22nd 1994 by UNSCR 929 and its first contingents were deployed the following day. According to Seybolt 13,000–20,000 lives had been approximately saved by OT. Yet, OT resulted in the escape of the genocide perpetrators as well; its humanitarian purpose, therefore, had been challenged in the aftermath. Without an acting and internationally recognised government in Rwanda OT has to be categorised (at best) as an authorised humanitarian intervention (Debiel 2003: 181 & 187f; Kuperman 2001: 45; Paris 2004: 73; Seybolt 2007: 76 & 87; UNSCR 918; UNSCR 929). OT’s interim phase lasted for 60 days. On August 21st 1994 UNAMIR II took over full responsibilities; a shared responsibility had begun earlier (Debiel 2003: 186; UN-Doc. S/1994/1133: 6). Since its mandate was beyond the scope of the international involvement agreed on the cease-fire agreement, this mission had been an authorised humanitarian intervention as well. Table 7.13 UHI-criteria summary for Rwanda (1994) Casesa

AIb IoPoNIb IoPoSb HMb PREb Sum

UN > Rwanda (06.04.1994)

+

−

−

(+)

(+)

− (HAM)c

France et al. > Rwanda (23.06.1994) +

−

+

?

(+)

− (AHI)c

+

−

+

(+)

?

− (AHI)c

UN > Rwanda (21.08.1994)

Source: Author’s own table a The cases are coded in the following order: intervener > intervenee (beginning of the armed interference) b The abbreviations are as follows: AI (armed interference), HM (humanitarian motivation), IoPoNI (infringement on the principle of non-intervention), IoPoS (infringement on the principle of sovereignty), PRE (positive relief effect). The criteria are explained in chapter 4 c The different types of interventions resp. assistance missions are explained at the beginning of this chapter. The abbreviations are as follows: AHI (authorised humanitarian intervention), HAM (humanitarian assistance mission)

7.13 The First and Second Congo War (1996–2003)

7.13

133

The First and Second Congo War (1996–2003)

The Rwandan genocide functioned as a “catalyst” (Prunier 2009: 72) for the already existing conflict in eastern Zaire (in the following called Congo). The refugees that sought shelter in the camps in Congo’s Kivu provinces included to some degree also rebels that operated against the new Rwandan government. In late 1995 it came to several attacks by those rebels and a destabilisation of the province that led to a stream of repatriation. What followed were years of civil war, external interferences and regime changes in Congo (Nest, Grignon & Kisangani 2006: 12 & 22f; Prunier 2009: 56f & 72).

7.13.1 The First Congo War and the Multilateral Interventions Rwanda supported other rebel forces in Congo since August 1996. Those rebels were later known as the ‘Alliance des Forces Démorcratiques pour la Libération du Congo-Zaire’ (AFDL). Since September 12th it supported those rebels with Rwandan army forces that had been deployed via Burundi. Earlier this month there had been already border violations by Rwandan forces at the border between Burundi and Congo. This policy and actions were supported by Uganda as well. While the Burundian support may have been passive, Prunier refers to an active element of Uganda since November 13th as Ugandan forces intervened in Congo in order to pursue rebels. According to Thom, Angola entered this conflict on side of Rwanda in mid-February 1997 (Eriksen 2009: 656; Nest, Grignon & Kisangani 2006: 23; Prunier 2009: 69f & 120f; Reyntjens 1999: 242; Thom 1999: 104 & 110). Therefore, within six months there had been three armed interferences by Rwanda, Uganda and Angola in the conflict in eastern Congo. Burundi, moreover, had co-responsibility for the intervention by Rwanda, since the later used Burundi’s territory and border with Congo for its operations. Neither an authorisation by the UNSC nor an invitation by the Congolese government had legalised those actions. In the first war the UNSC, however, were leaning in support of Rwanda and its allies, although there was a call for “respect [of] the territorial integrity and national sovereignty” (UN-Doc. S/PRST/1998/26: 1) of Congo. An invitation, on the other side, seems unlikely. In the end the intervention led to the overthrow of the current Congolese government under President Mobutu (Eriksen 2009: 656). The armed interferences violated the principle of non-intervention as well as the principle of sovereignty. The primary motivation for the interveners seems to be their own stability. The rebel threat for their countries (with the exception of Angola) was so serious

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that they took recourse to the military option. To a lesser degree there might also had been a wish for regime change in Kinshasa. Humanitarianism might at best have been the excuse for the interventions. Prunier e.g. points out that massacres conducted on the Banyamulenge ethnic group in South Kivu gave Rwanda the reason to intervene. Yet, Rwanda, itself did not take recourse on this reasoning. Moreover, Prunier as well reports about a press conference in which Rwanda’s President Bizimungu tried to argue that North Kivu was historically Rwandan territory (Prunier 2009: 66–9, 71 & 73; Reyntjens 1999: 242f). The conduct of the interventions supports this finding. Although, it had been quite clear that Rwanda had intervened, it denied doing so. Several massacres and violence on civilians (esp. internally displaced persons and refugees) occurred in the fog of war, leading to hundreds of thousands new refugees at the end of October. The United Nations stated in 1998 that “the killings by AFDL and its allies, including elements of the Rwandan Patriotic Army, constitute crimes against humanity” (UN-Doc. S/1998/581: 2). At the time of the interventions, the UNSC condemned any external interference in Congo. Consequently, since Rwanda and its allies did not admit to their interventions, the conduct was not adjusted in order to minimise civilian casualties and the international society refrained from a support for the measure of external interference, I determine that their motivation was a classical, non-humanitarian one (Prunier 2009: 116f & 143; Thom 1999: 106; UN-Doc. S/1998/581: 2; UN-Doc. S/PRST/1998/20: 2; UN-Doc. S/PV.3713; UNSCR 1078). As for the possible humanitarian relief effect, Prunier examines in detail that about 371,000 refugees had been repatriated to Rwanda, yet more than 400,000 had been missing or not accounted for. He concludes that about 300,000 might have been killed during the conflict in autumn 1996 and the interventions itself led to a massive humanitarian emergency. Further, the interwar period had seen at best the same degree of human rights violations than under Mobutu and more likely a worsened situation (Prunier 2009: 70, 116–22 & 148–54). The interferences that led to the First Congo War had no positive relief effect and were therefore classical interventions.

7.13.2 The Second Congo War and the Multilateral Interventions The end of the First Congo War was marked by the power change from Mobutu to Kabila on May 17th 1997. As said before, the humanitarian situation did not lighten compared to the time under Mobutu and the violence in Kivu came back

7.13 The First and Second Congo War (1996–2003)

135

within a month. It led alone in September to more than one thousand casualties. The relationship between Kabila and his supporters beyond the eastern border deteriorated within a year and the president requested at the end of July 1998 the withdrawal of the Rwandese troops in Congo (Nest, Grignon & Kisangani 2006: 23; Prunier 2009: 136, 173f & 178; Reyntjens 1999: 246; Thom 1999: 113). The echo followed soon as Rwanda intervened on August 3rd , a day after a mutiny (possibly with external support) within the AFDL forces erupted that led thirteen days later to the formation of the Congolese Democratic Movement (RCD). Ugandan forces joined the intervention on August 10th , yet its government denied officially any participation. This triggered a multi-party war18 as Angola and Zimbabwe (with support of Namibia, possibly Chad, Eritrea and Sudan as well) entered the conflict on August 19th . (Eriksen 2009: 656; Nest, Grignon & Kisangani 2006: 25f; Prunier 2009: 181, 184f & 195; Reyntjens 1999: 247). Therefore, three interferences in Congo by Rwanda, Uganda and a joined one by Angola and Zimbabwe occurred in August 1998. An authorisation for those interventions cannot be found. Surely, Kabila had requested the support of Angola and Zimbabwe in order to deal with the intervention by Rwanda and Uganda (Prunier 2009: 184f). However, a humanitarian motivation by Rwanda and Uganda was not at place. Prunier outlined that Rwanda and Uganda had internal and regional-geostrategic reasons to intervene in Congo. He points out that in the case of Uganda military commander’s saw in the intervention an opportunity for individual profit. In the case of Rwanda, the intervention was especially directed in order to get rid of Kabila and accomplish a regime change that might bring less Congolese disturbances. On the international level the OAU condemned those interventions. The main reason for the intervention by Angola and Zimbabwe had been the protection of the current Congolese government resp. the preservation of the current power structure in the region (Prunier 2009: 181–4 & 194–7). Regarding the humanitarian situation Nest, Grignon & Kisangani counted three million deaths caused directly by the violence or indirectly by the conflict; the humanitarian situation worsened drastically (2006: 12). Consequently, the Second Congo War included three classical interventions in which the preservation of human lives was not a priority.

18 Prunier’s

description of “Africa’s World War” (2009: Title) is, however, an overstatement.

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7.13.3 Multilateral Interventions in the Congo Wars (Subchapter Summary) In the second half of the 1990s the Congo had turned into Africa’s battleground. It has seen years of internal conflict and human suffering with two wars of a continental scale. In each war, four neighbouring states conducted armed interferences (see Table 7.14). None of the resulting six interventions had a primary humanitarian motivation or led to a positive relief effect on the massive humanitarian emergency that Congo had faced.19 Table 7.14 UHI-criteria summary for Congo (1996–2003) Casesa

AIb

IoPoNIb

IoPoSb

HMb

PREb

Sum

Rwanda & Burundi > Congo (12.09.1996)

+

+

+

−

−

− (ClI)c

Uganda > Congo (13.11.1996)

+

+

+

(−)

−

− (ClI)c

Angola > Congo (??.02.1997)

+

+

+

(−)

−

− (ClI)c

Rwanda > Congo (03.08.1998)

+

+

+

−

−

− (ClI)c

Uganda > Congo (10.08.1998)

+

+

+

−

−

− (ClI)c

Angola & Zimbabwe > Congo (19.08.1998)

+

+

(−)

−

−

−

European Union et al. > Congo (06.06.2003)

+

−

(−)

(+)

?

− (HAM)c

Source: Author’s own table a The cases are coded in the following order: intervener > intervenee (beginning of the armed interference) b The abbreviations are as follows: AI (armed interference), HM (humanitarian motivation), IoPoNI (infringement on the principle of non-intervention), IoPoS (infringement on the principle of sovereignty), PRE (positive relief effect). The criteria are explained in chapter 4 c The different types of interventions resp. assistance missions are explained at the beginning of this chapter. The abbreviations are as follows: ClI (classical intervention, HAM (humanitarian assistance mission)

19 Since it is assumed that the last case of interference and possible humanitarian intervention identified in the previous chapter constitutes the Operation Artemis of the EU and supporting nations that was authorised by the UNSC, this case has not been scrutinised in detail, but been included in the case summary of this subchapter. For further information see: Homan 2007: 151–5.

7.14 The Sierra Leonean Civil War and Its Assistance Missions …

7.14

137

The Sierra Leonean Civil War and Its Assistance Missions (1997–2000)

‘Complex’ is a term in vogue in today’s science of international relations. Complex, however, is indeed a good description for the Sierra Leonean Civil War with no less than six armed interferences that occurred in its context. The war started in March 1991 as a spillover from war-torn Liberia by the Revolutionary United Front (RUF) that invaded on March 23rd and soon gained control of a large part of the country (Goldmann 2005: 460; Kargbo 2012: 65; Olonisakin 2008: 13; Zack-Williams 2012: 14 & 20f). The poor military record against the RUF resulted in a coup d’état by officers of the Sierra Leone Army (SLA) in April 1992. Their government was internationally accepted and regained some control. In spring 1995 RUF forces were advancing on Freetown in which consequence the government hired Executive Outcome (EO), a private military firm. EO operated in Sierra Leone on behalf of its governments until February 7th 1997. Their involvement turned the balance in favour of the Sierra Leonean governments and forced the RUF into the Abidjan peace accord in November 1996 (Debiel 2003: 268; Hirsch 2004: 521; Olonisakin 2008: 14f; Woods & Reese 2008: 27, 29f, 35 & 40). Meanwhile, presidential elections in March 1996 brought Ahmad Tejan Kabbah to power. His government reached the above-mentioned peace with the RUF. However, without the support of EO peace remained fragile and on May 25th 1997, another military coup d’état overthrew the civilian government; this time their coup was internationally and regionally condemned. Rescuing foreign nationals, US forces were landing in Freetown soon after the coup; their presence ended after the evacuation (Gberie 2004: 144f; Olonisakin 2008: 18–21; Woods & Reese 2008: 32, 40 & 42; Zack-Williams 1999: 152). The 2,258 days from RUF-Invasion on March 23rd 1991 to the second military coup d’état on May 25th 1997 can be described as the internal phase of the Sierra Leonean civil war. The second military coup d’état, however, changed the nature of this conflict to a more regional and international one. This second coup had been made under different signs. Neighbouring countries were in opposition to the power change and willing to engage in the Sierra Leonean conflict. Consequently, Nigeria intervened in the conflict with troops already stationed in Sierra Leone as part of ECOMOG, which was supposed to keep the peace in neighbouring Liberia. This interference and its transformation under the ECOWAS umbrella will be dealt with and examined under the UHI criteria in the following. In February 1998, these forces expelled the military junta, called the Armed Forces Revolutionary Council (AFRC), from Freetown and reinstalled

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President Kabbah on March 10th (Olonisakin 2008: 23f). On July 13th UNOMSIL was established by UNSCR 1181. Yet, neither the West-African forces nor UNOMSIL were able to maintain the peace process sufficiently: AFRC and RUF began their offense on Freetown on January 6th 1999, lifting themselves via a cease-fire and a peace agreement back into a then power-sharing government in July 1999 (Kargbo 2012: 65; Olonisakin 2008: 32f & 39; Woods & Reese 2008: 47f). This new approach for peace should have been supervised and maintained by UNAMSIL, which was created by UNSCR 1270 on October 22nd 1990, alongside the ECOMOG forces (Olonisakin 2008: 41f). Yet, RUF and AFRC tried to regain full control by kidnapping 498 UNAMSIL servicemen on May 4th 2000—the same day the responsibility for the peace process was transferred from ECOMOG to UNAMSIL (Goldmann 2005: 464; Hirsch 2004: 521; Olonisakin 2008: 57f). In reaction to this, UK forces interfered on May 7th ; this case shall be examined under the UHI criteria after the ECOMOG interference has been examined in detail (Olonisakin 2008: 63f). UN hostages were released on May 16th and a final peace agreement was signed on November 10th 2000 in Abuja (ibid.: 101; Woods & Reese 2008: 63). This formal peace lasted and was able to end the Sierra Leonean civil war. Before examining the three relevant cases of armed interferences under the UHI criteria, it shall be clarified that no less than three other cases occurred during the civil war that are clearly short of an UHI: The US rescue mission for foreign nationals at the end of May/beginning of June 1997, which is obviously insufficient to constitute an infringement on the principle of sovereignty, and the UN missions UNOMSIL and UNAMSIL. The last two were mandated by UNSCRs 1181 resp. 1270 prior to the first deployments and might (as well) be welcomed by the government of President Kabbah.

7.14.1 Nigeria’s and ECOWAS’ Interference in Summer 1997 The coup of the later called AFRC military government in May 1997 was echoed by a regional response. In context of ECOWAS engagement in the Liberian civil war, contingents of Nigerian, Guinean and Ghanaian forces were already stationed in Sierra Leone. Those three states used those forces after the coup of May 1997 to interfere. Although President Kabbah called for an intervention by ECOWAS, there was no decision for an engagement by ECOWAS, neither in May nor in June. Nigeria, Guinea and Ghana, consequently, interfered in May 1997 in the Sierra Leonean civil war without the umbrella of ECOWAS (Adebajo & Keen 2007: 255; Goldmann 2005: 469; Grebe 2015: 79; Olonisakin 2008: 9 & 21).

7.14 The Sierra Leonean Civil War and Its Assistance Missions …

139

The UNSC considered the situation in Sierra Leone in its 3781st meeting two days after the coup. A mandate for the interference was not given thereby (UNDoc. S/PV.3781): the interference infringed on the principle of non-intervention. What is, however, more likely is a legality by invitation; although only in the shape of behaviour implying such an invitation. The original ECOMOG forces from Nigeria, Guinea and Ghana were deployed to Sierra Leone with the agreement of all Sierra Leonean governments, military as civilian ones. Moreover, Nigeria at least was legally allowed to use its forces within the country on the base of a bilateral agreement (Hartmann 2010: 184; Olonisakin 2004: 21 & 225f). A direct invitation of President Kabbah to the three interfering states cannot be found, but it is reported that he requested assistance by ECOWAS on its summit at the end of August in Abuja (Gberie 2004: 160; Goldmann 2005: 469; Levitt 1998: 367). Moreover, the three, then interfering countries enabled President Kabbah to act out of Lungi airport north of Freetown as well as at least out of one of its capitals (Woods & Reese 2008: 42 & 46). Finally, ECOWAS member states expressed in the UNSC to act in order to restore Kabbah to power (UN-Doc. S/PV.3797). I, therefore, estimate that an implied invitation to interfere was given by President Kabbah. As result, the interference does not infringe on the principle of sovereignty and is likely classified as a humanitarian assistance mission. The armed interference of Nigeria, Guinea and Ghana has been transformed to an interference of ECOWAS by the mandate given on the ECOWAS summit of August 29th (ECOWAS 1997: 11f). Since neither nature of its mission nor the actual forces on the ground and their rules of engagement changed, the finding of the interference by Nigeria, Guinea and Ghana applies for the ECOWAS interference as well. Further, I do not need to consider an authorisation of the UNSC,20 since the interference was conducted based on an actual request to ECOWAS by President Kabbah (Goldmann 2005: 469), who, furthermore, took part as elected Sierra Leonean president on the ECOWAS summit the mandate was decided on.

7.14.2 UK’s Extended Evacuation Mission in May 2000 Following the kidnapping of up to 500 UNAMSIL servicepersons at the beginning of May 2000, UK deployed forces to Lungi airport on May 7th in order to conduct an evacuation mission to rescue foreign nationals in Freetown. This 20 Such discussions can be found in the discourse on ECOWAS and the Sierra Leonean civil war (e.g.: Hartmann 2010: 183). As explained in Subchapter 4.6 an UNSC mandate has to be given ex ante to legalise an intervention under international law.

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original mission itself was finished by May 9th . However, the operation soon had been extended and supported by UK navy exercises to a general backing of SLA and UNAMSIL forces in order to regain control against the once more rebelling RUF. The main part of these UK forces was extracted on May 15th , while about 200 military advisers remained in order to train SLA forces in the future (Adebajo & Keen 2007: 263; Olonisakin 2008: 63–6; Woods & Reese 2008: 62–4). Hence, the United Kingdom conducted an armed interference, beginning on May 7th and ending on May 15th 2000. The evacuation of foreign nationals is sanctioned by international law and therefore not infringing on the principle of non-intervention. Having stated that, the ‘extended’ evacuation mission since May 10th 2000 now has to be considered under the remaining UHI criteria. A mandate naming the UK in specific, or any volunteering country in general, to help in the case of the UNAMSIL servicepersons taken hostage, was not given by the UNSC. UN Secretary-General Kofi Annan, however, made clear that UNAMSIL needed the British engagement in early May. He stated in his report to the UNSC of May 19th : “It is hoped that the United Kingdom will be able to maintain a military presence in the country until UNAMSIL has received the necessary reinforcements” (UN-Doc. S/2000/455). UK forces therefore acted outside of the UNAMSIL command structure, yet they were welcomed by the UN in order to secure UNAMSIL contingents. Further, they acted within the mandate terms given for UNAMSIL that is to say “take[ing] the necessary action to ensure the security and freedom of movement of its personnel and […] to afford protection to civilians under imminent threat of physical violence” (UNSCR 1270). Shall an action that differs in the structure of command due to necessity of time, yet is in every other aspect within the limit of the mandate given by the UNSC, and moreover even welcomed by the same UN that is executing the mandate in general, be seen as infringing on the principle of non-intervention? Sense and reason advise not to differentiate between those actions and the formal UN mission. I therefore conclude that the principle of non-intervention was not infringed on. The same goes for an infringement on the principle of sovereignty. Since remaining UK forces were stationed to train SLA forces no more than a week after the extended evacuation mission and the UNAMSIL mission was welcomed by the Sierra Leonean government as well, I determine that its behaviour implies an invitation. Woods and Reese further state that the British government got not later than May 5th a request by the UN and President Kabbah (Woods & Reese 2008: 60f). The principle of sovereignty was, therefore, not infringed on. The UK’s extended evacuation mission was, as the Nigerian and ECOWAS ones of 1997 were, likely a humanitarian assistance mission.

7.14 The Sierra Leonean Civil War and Its Assistance Missions …

141

7.14.3 Multilateral Assistance in the Second Sierra Leonean Civil War (Subchapter Summary) In the context of the Sierra Leonean civil war we have seen six cases of armed interferences (see Table 7.15): An US evacuation mission in May 1997, an interference (likely a humanitarian assistance mission) led by Nigeria in the same month, its transformation to a mission mandated by ECOWAS in August 1997, the UN missions UNOMSIL and UNAMSIL and finally an UK ‘extended’ evacuation mission (likely a humanitarian assistance mission as well) in May 2000. Yet, neither an unauthorised humanitarian intervention nor an authorised one has been verified. Table 7.15 UHI-criteria summary for Sierra Leone (1997–2000) Casesa

AIb IoPoNIb IoPoSb HMb PREb Sum

USA > Sierra Leone (??.05.1997)

+

−

−

?

?

− (HAM)c

Nigeria, Guinea & Ghana > Sierra + Leone (??.05.1997)

+

−

(+)

?

− (HAM)c

ECOWAS > Sierra Leone (29.08.1997)

+

+

−

(+)

?

− (HAM)c

UN > Sierra Leone (13.07.1998)

+

−

−

(+)

?

− (HAM)c

UN > Sierra Leone (22.10.1999)

+

−

−

(+)

?

− (HAM)c

UK > Sierra Leone (07.05.2000)

+

−

−

(+)

?

− (HAM)c

Source: Author’s own table a The cases are coded in the following order: intervener > intervenee (beginning of the armed interference) b The abbreviations are as follows: AI (armed interference), HM (humanitarian motivation), IoPoNI (infringement on the principle of non-intervention), IoPoS (infringement on the principle of sovereignty), PRE (positive relief effect). The criteria are explained in chapter 4 c The different types of interventions resp. assistance missions are explained at the beginning of this chapter. The abbreviation is as follows: HAM (humanitarian assistance mission)

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Kosovo War (1999)

Among all the interferences examined in this work the Kosovo War of 1999 is the most focussed on in the scientific as well as the public debate on humanitarian interventions. Cottey calls this case “the high-water mark of western power and the liberal values underpinning the idea of humanitarian intervention” (Cottey 2009: 593). The Kosovo war had its origins in the ethnic conflict between Serbs and the Kosovar Albanian majority it its southern province. In 1996 the Kosovo Liberation Army began a rebellion, which led to a severe humanitarian emergency in Kosovo in early 1998. European Union (EU) and NATO member states were specifically engaged in a mitigation of this crisis and sought for a diplomatic and peaceful solution with the Serbian government resp. the Federal Republic of Yugoslavia (FRY). After a temporary success in fall 1998, the crisis inflamed again in December 1998 and culminated in a widely recognised massacre (Petritsch, Kaiser, & Pichler 1999: 219; Petritsch, Pichler & Prochazka 2005: 134–6 & 184f; Phillips 2012: 89). On January 15th 1999 Serb forces killed 45 people (all or at least the vast majority of them being civilians) in the village of Racak. The Kosovo Verification Mission (KVM) of the Organization for Security and Co-operation in Europe (OSCE) stated that this had been a Serbian responsibility and the victims were civilians. Two findings that have been subject to some objections, yet are accepted nowadays by the majority of scholars and the international society. For NATO this incident was the turning point and led finally to its intervention in the FRY (Clark 2001: 158–70; Loquai 2001: 2000: 45–51; Petritsch, Pichler & Prochazka 2005: 134–6, 184f & 188–93; Phillips 2012: 89, 98f & 101; Posen 2000: 43f; Roberts 1999: 113; Seeger 2009: 242f; UN-Doc. S/PRST/1999/2: 1). Before taking recourse to the military option a last attempt for a peaceful solution had been made by two negotiations in Rambouillet and Paris. However, during this diplomatic attempt Serbian forces within Kosovo had been increased by 40,000 and preparations for the ethnic cleansing of the Kosovar Albanians were made (Clark 2001: 111; Petritsch, Kaiser, & Pichler 1999: 332–46; Petritsch, Pichler & Prochazka 2005: 198 & 236; Phillips 2012: 104 & 109).21 On March 24th 1999 NATO started its air campaign, called Operation Allied Force (OAF), against the FRY which marked the beginning of the Kosovo War (NATO 1999). Until the end 21 Some are even convinced that the ethnic cleansing in Kosovo started prior to the NATO intervention (Clark 2001: 173 & 435; Daalder & O’Hanlon 2000: 1; Murphy 2007: 71 & 77; Petritsch, Pichler & Prochazka 2005: 292)

7.15 Kosovo War (1999)

143

of OAF on June 10th 1999 NATO conducted an armed interference in the FRY (Clark 2001: 373). The intervention by NATO in the FRY has been conducted without an authorisation by the UNSC. In some statements, NATO reasoned the intervention with the implicit authorisation given through UNSCR 1199. Yet, in most cases it seemed to be aware of the missing legality of its operation. UNSCR 1199 has not included an authorisation for an armed interference. While it had been passed with “Acting under Chapter VII of the Charter” (UNSCR 1199), the authorisation for the use of force or at least the passage ‘use of all necessary means’ is missing. An invitation by the FRY seems also highly unlikely, since even the ultimatum of March 22nd did not lead to a positive reaction by the FRY authorities (Clark 2001: 134–6; Daalder & O’Hanlon 2000: 102; Economides 2007: 232; NATO 1999; Petritsch, Pichler & Prochazka 2005: 159 & 253; Seybolt 2007: 81; Wheeler 2000: 260f; Yoo 2000: 1726). Consequently, NATO’s intervention in Kosovo was unauthorised and conducted without an invitation by FRY; it has been conducted in violation of the principles of non-intervention and sovereignty. Was the decision for the intervention based on a humanitarian motivation? The humanitarian situation in Kosovo had gotten worse after the temporary successful attempt in fall 1998. At least since March 24th 1999, with the beginning of the NATO intervention, this situation turned into an ethnic cleansing (Petritsch, Pichler & Prochazka 2005: 293). This leads to the assumption that preparations for this ethnic cleansing of Kosovar Albanians in Kosovo had to be made prior to the NATO intervention and the intervention gave the fog of war under which these plans could be carried out with less noise (O’Neill 2002: 25f). Phillips even saw a genocide at place (Phillips 2012: 108). Yet, this is neither the broad consensus in the scientific community nor was it one of the charges against FRY President Milosevic in the International Criminal Tribunal for the former Yugoslavia (ICTY) (Vetlesen 2006: 44). For NATO itself, the ethnic cleansing started with its intervention (Clark 2001: 234). In literature as well as the ICTY trial cases this is the common argument (Economides 2007: 229). Bellamy and Wheeler, however, state first incidents of deportation of Kosovar Albanians by Serb forces and their expulsion at the borders to Albania and North Macedonia as early as March 15th , when the Serbs believed that NATO turned from the level of diplomacy to the level of military (Bellamy 2002: 164f; Wheeler 2000: 265). The academic dispute if an ethnic cleansing was at place prior or after the intervention, however, deflects from the fact that not only a manifest ethnic cleansing gives ground for a humanitarian intervention. It is common wisdom that prevention ex ante is better than intervention ex post. Since the international society witnessed

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the outraging massacre of Srebrenica in 1995 and, as the ICTY trial cases showed, some individuals of the Serbian military and political class (possibly incl. President Milosevic himself) were responsible for this massacre (ICTY-Doc. IT05–87-T: 408), NATO had every reason to act not ex post, but ex ante to prevent a second Srebrenica. The conditions in Kosovo made it possible to intervene with a humanitarian motivation.22 NATO and its member states had every reason to act on humanitarian grounds. However, reviewing the statements of those actors some doubt has to be expressed on their primary motivation for this operation. The reasoning within NATO was at least diverged. Clark confirms that at the beginning of OAF no clear goal had been identified: At the end of his memories he said: “The air campaign began with one objective – drive the Serbs back to the negotiations at Rambouillet – and quickly moved toward other aims, such as halting the ethnic cleansing, and then, after the NATO summit, the five conditions endorsed by the G-8 foreign ministers – a cease-fire, the withdrawal of all Serb forces, the return of all refugees and displaced persons, the presence of a NATO-led international force, and subsequent participation in a political settlement.” (Clark 2001: 423f)

In the literature, solving the humanitarian situation resp. preventing a second Srebrenica is not the only reason for NATO. Often the main purpose of OAF has been described as forcing Belgrade back to the negotiation table (see Clark above). Likewise, the desire for regional stability has been quite often analysed as a motivation for NATO. Yet, all these reasons are different aspects of the same underlying goal: to solve the massive humanitarian emergency in Kosovo. Negotiations are the direct tool to come to an agreement on how to solve the humanitarian situation and regional stability as the overall condition under which peace can exists. More problematic is the finding often made that NATO’s credibility was at stage and the intervention had to take place in order to uphold the deterrence effect of NATO’s earlier actions. This analysis is convincing, since Clark also confirmed this: “We put NATO’s credibility on the line. We have to follow through and make it work. There’s no real alternative now” (Clark 2001: 171). Yet, this driver for its actions is based on NATO’s involvement for peace and human security in Kosovo that begun in 1998. NATO (especially EU member states) had taken responsibility in the year prior to the intervention for a lasting peace on the Balkan, whether this had to be achieved on the diplomatic or on the military level. This aspect could show at most that NATO did take recourse to 22 For

the contrary opinion see: Loquai 2000: 141–4.

7.15 Kosovo War (1999)

145

intervention without having sought for every other option, without the necessity for this last resort. Yet, the stalemate at the diplomatic level and the preparations for the ethnic cleansing lead to the conclusion that NATO had the necessity for this last resort (Bellamy 2002: 155f & 213f; Clark 2001: 193–220; Economides 2007: 230 & 237; Loquai 2000: 104; Murphy 2007: 73 & 171; Petritsch, Pichler & Prochazka 2005: 384; Seybolt 2007: 82; Vetlesen 2006: 42; Webber 2009: 452f; Wheeler 2000: 265). The conduct of the intervention was subject to wide criticism. The critique has been directed at the restriction to an air campaign without the backup by ground forces (Wheeler 2000: 242–84). Clearly, this restriction was a problem since it hindered an effective outcome and to halt the ethnic cleansing in the short term. Even NATO was aware of this circumstance at that time. Clark said later that the “air campaign began with enough forces to punish the Serbs, but it lacked the mass and capabilities needed to halt the ethnic cleansing” (Clark 2001: 424). Yet, as Bellamy correctly points out: “There would have been no air campaign at all had there been serious talk of a ground campaign at the outset. Instead, the question is, was the air campaign a better strategy than choosing not to act?” (Bellamy 2002: 207) In this sense, I argue that the air campaign restriction is not a proof against, but for the humanitarian motivation. Further, NATO tried to avoid civilian casualties from the start. Its targets were chosen in order minimise collateral damage, there had been many instances where targets were cancelled due to an increased risk for civilian casualties and even if NATO attacks had caused loss of civilian life it dealt with those instances transparently. The one thing that is contracting the humanitarian motivation based on the consideration of the interventions conduct is the fact that NATO considered the necessary humanitarian assistance for Kosovar Albanians on the ground only in the hours before the intervention started. Yet, in the overall perspective the conduct of the intervention confirms the humanitarian motivation (Bellamy 2002: 207; Clark 2001: 170f, 189, 193–242, 249f, 254f, 314–7, 319 & 424; Murphy 2007: 74 & 305). In international society the support for the interventions outweighed the opposition. The later came from Russia, China, Latin American states, the NonAligned Movement and the Group of 77. Yet, none of this critique has been focussed on nor mentions a lacking humanitarian motivation. The opposition was based on the violation of international law. Consequently, taken a look on the reaction of international society, the positive finding of a primary humanitarian motivation for the intervention sustains (Bellamy 2002: 211; Daalder & O’Hanlon 2000: 127; UN-Doc. S/PV.3930: 3f; UN -Doc. S/PV.3988: 2–5, 7, 9 & 19; Webber 2009: 453f; Wheeler 2000: 275–81).

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A positive relief effect on the massive humanitarian emergency in Kosovo is also confirmed. While the number of refugees and internally displaced persons were from August to March 1999 between 160,000 and 300,000 and increased with the ethnic cleansing in April 1999 with more than 1.4 million it dropped rapidly after the end of OAF and the settlement with the FRY to almost zero. Approx. 10,500 civilians were killed in Kosovo and between 1,000 to 5,600 Serbs (civilians and servicepersons) during the war, while the threat for life was after June 10th insignificant, although Serbs within Kosovo were subject to some violence. Even when the situation got worse in the short term (in April and May 1999), it is widely accepted that it led to the desired positive relief effect on the massive humanitarian emergency in the long term (after June 10th 1999) (Clark 2001: 234 & 403; Cottey 2009: 597; Daalder & O’Hanlon 2000: 3f, 6, 11f, 22, 27, 35, 43, 63 & 109; ICTY-Doc. IT-05–87-T: 405f; Murphy 2007: 74 & 305; O’Neill 2002: 14–7; Petritsch, Kaiser, & Pichler 1999: 226; Petritsch, Pichler & Prochazka 2005: 165, 175, 198, 280 & 293; Posen 2000: 62f; Roberts 1999: 112f, 120 & 260; Seeger 2009: 241; Seybolt 2007: 80 & 82–6; Vetlesen 2006: 42f; Webber 2009: 451 & 454; Wheeler 2000: 269). In result, NATO started on 24th March 1999 an unauthorised humanitarian intervention in the FRY (see Table 7.16).23

7.16

East Timorese Independence and the Australian-led Intervention (1999)

International society was deeply engaged in settling humanitarian emergencies in Africa, Middle East and the Balkan after the end of the Cold War. The first case in Asia appeared in 1999 in the Indonesian province of East Timor that had been annexed by Indonesia in 1975. Human rights violations were reported in the 1990s, while the internal conflict increased and culminated in an agreement between Indonesia and Portugal in May 1999 that led to a referendum about East Timor independence in August (Chesterman 2007: 194; Friend 2003: 413 & 439–41). 23 In

some cases, it has been questioned if NATO can be seen as the intervening actor since it is not a state but an international organisation. This question maybe an interesting aspect for the discipline of international law, yet, it is not necessary to be answered for this purpose in the field of international relations. The necessary, legal binding, procedure within NATO, the so-called activation order, has been given on October 12th 1998. With this decision, every NATO member state is accountable for the actions by NATO within the limits of this activation order.

7.16 East Timorese Independence and the Australian-led …

147

Table 7.16 UHI-criteria summary for Kosovo (1999) Casea

AIb

IoPoNIb

IoPoSb

HMb

PREb

Sum

NATO > FRY (24.03.1999)

+

+

+

+

+

+ (UHI)c

Source: Author’s own table a The case is coded in the following order: intervener > intervenee (beginning of the armed interference) b The abbreviations are as follows: AI (armed interference), HM (humanitarian motivation), IoPoNI (infringement on the principle of non-intervention), IoPoS (infringement on the principle of sovereignty), PRE (positive relief effect). The criteria are explained in chapter 4 c The different types of interventions resp. assistance missions are explained at the beginning of this chapter. The abbreviation is as follows: UHI (unauthorised humanitarian intervention

Soon after the referendum took place and the votes had been counted, a serious humanitarian emergency erupted. Within days, more than 1,000 lives had been lost and a significant part of the population sought refuge beyond East Timor borders or was internally displaced. This circumstance had been confirmed by the UNSG and led to an UNSC mission to Indonesia and East Timor. As the mission points out in its report, the emergency “could not have occurred without the involvement of large elements of the Indonesian military and police” (UN-Doc. S/1999/976: 4f). Therefore, in September 1999 a massive humanitarian emergency appeared in East Timor (Cotton 2004: 60f; Cristalis 2009: 204–6, 209f & 253f; Martin 2001: 92; UN-Doc. S/PV.4043: 1; UN-Doc. S/1999/976: 4–6). On September 20th the International Force East Timor (INTERFET) with a majority of Australian troops was deployed to East Timor (see Table 7.17). Since Indonesia’s President Habibe agreed on September 12th to this mission and with UNSCR 1264 an authorisation had been given as well, the INTERFET mission, starting on September 20th 1999 was a humanitarian assistance mission (Chesterman 2007: 196; Cristalis 2009: 233f; Dobbins et al. 2005: 159; Friend 2003: 446; Marker 2003: 199; Nevins 2005: 108 & 125; Seeger 2009: 251f; Seybolt 2007: 89; Smith 2003: 45; Taylor 1999: 229; UN-Doc. S/1999/976: 4; Wheeler & Dunne 2001: 823f).24

24 Sometimes it has been argued that the invitation by Indonesia has been reached under international pressure. However, as discussed earlier, this question remains irrelevant for the conclusion here made (See for the argument of ‘invitation under pressure’: Cristalis 2009: 231 & 233f; Dobbins et al. 2005: 153; Nevins 2005: 119 & 125; Wheeler & Dunne 2001: 807 & 818–22).

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Table 7.17 UHI-criteria summary for East Timor (1999) Casea

AIb

IoPoNIb

IoPoSb

HMb

REb

Sum

Australia et al. > Indonesia (20.09.1999)

+

−

−

(+)

(+)

− (HAM)c

Source: Author’s own table a The case is coded in the following order: intervener > intervenee (beginning of the armed interference) b The abbreviations are as follows: AI (armed interference), HM (humanitarian motivation), IoPoNI (infringement on the principle of non-intervention), IoPoS (infringement on the principle of sovereignty), PRE (positive relief effect). The criteria are explained in chapter 4 c The different types of interventions resp. assistance missions are explained at the beginning of this chapter. The abbreviation is as follows: HAM (humanitarian assistance mission)

7.17

The Burundian Civil War (2001)

The Burundian civil war is the last conflict in the region of the African Great Lakes considered here that witnessed an external interference. The conflict started in the late 1980s and led alone in 1993 to 50,000 dead people on both sides of the ethnic division between Hutus and Tutsis as well as hundreds of thousands of refugees in neighbouring countries (as we have already seen). It made slow progress towards a peaceful solution after the beginning of the new millennium (Reyntjens 2005: 117; Uvin 1999: 259 & 262f). Before the beginning of the transitional phase, South Africa deployed 700 servicemen on October 29th 2001 to the Burundian capital Bujumbura (see Table 7.18). This mission was followed by and integrated in the African Mission in Burundi (AMIB) on April 27th 2003 (ACCORD 2007: 26 & 33; Badmus 2017: 7 & 9; Reyntjens 2005: 118). Those interferences had been conducted without UNSC mandate. However, the Arusha Agreement of 2000 included a request for an international resp. African peacekeeping force and, although the Burundian army were initially opposed to the South African mission, Burundi requested this presence. Since AMIB is more the ‘multi-nationalisation’ of the South African mission than a new mission in its own, this request is assumed for AMIB as well (Arusha Agreement 2000: 93; Badmus 2017: 7f; Reyntjens 2005: 118; UNDoc. S/2001/1013; UN-Doc. S/PV.4467: 3). Consequently, Burundi had requested a humanitarian assistance mission that had been established by South Africa on October 29th 2001 and for which the African Union had taken responsibility and authority on April 27th 2003.

7.18 The Entirety of Unauthorised Humanitarian Interventions …

149

Table 7.18 UHI-criteria summary for Burundi (2001) Casesa

AIb IoPoNIb IoPoSb HMb REb Sum

South Africa > Burundi (29.10.2001)

+

+

−

(+)

?

− (HAM)c

African Union > Burundi (27.04.2003) +

+

−

(+)

?

− (HAM)c

Source: Author’s own table a The cases are coded in the following order: intervener > intervenee (beginning of the armed interference) b The abbreviations are as follows: AI (armed interference), HM (humanitarian motivation), IoPoNI (infringement on the principle of non-intervention), IoPoS (infringement on the principle of sovereignty), PRE (positive relief effect). The criteria are explained in chapter 4 c The different types of interventions resp. assistance missions are explained at the beginning of this chapter. The abbreviation is as follows: HAM (humanitarian assistance mission)

7.18

The Entirety of Unauthorised Humanitarian Interventions (Chapter Summary)

The case pre-selection concluded with 50 individual cases in 22 conflicts or military operations. They have been dealt with in 17 subchapters: merging conflicts and military operations, which dealt with resp. were conducted in the same state. As emphasised at the end of chapter 6, while the studies were done, the case number has been altered. Due to changing legal character of interferences some cases had to be separated or added; some cases could not be identified in my research and some cases have been merged, especially since more than one actor has contributed to the same operation. In sum, instead of 50 possible cases of UHIs identified in chapter 6, I have finished the examination in chapter 7 with 44 cases. Figure 7.1 shows the 33 cases divided by type and year in which a humanitarian motivation or positive relief effect has been determined (for UHIs) or is at least assumed (for HAMs and AHIs). Most cases showed an acceptance of the affected state and are therefore humanitarian assistance missions (18). In nine cases an authorised humanitarian intervention has been identified. Unauthorised humanitarian interventions have been conducted in East Pakistan (1971), Lebanon (1976), Cambodia (1978), Uganda (1979), Liberia (1990) and Kosovo (1999).

HAMa

AHIa

UHIa

1946 1948 1950 1952 1954 1956 1958 1960 1962 1964 1966 1968 1970 1972 1974 1976 1978 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004

Figure 7.1 Cases of humanitarian assistance missions and humanitarian interventions by year. (Source Author’s own table. The abbreviations are as follows: AHI (authorised humanitarian interventions), HAM (humanitarian assistance mission), UHI (unauthorised humanitarian interventions))

0

1

7

2

3

150 Humanitarian Interventions in Contemporary History (1946–2005)

7.18 The Entirety of Unauthorised Humanitarian Interventions …

151

7.18.1 Moments of World Society—The Authorised Humanitarian Interventions The 1990s are the era of humanity in international society. International society had for the first time in recent history the ability to act together in the moments of massive humanitarian emergency. It acted against the will of the states that were affected by the missions, international society and especially the concert of great powers agreed on. In 1991, it had started with Iraq. However, I want to emphasise that this is not the first AHI in the era of the United Nations. The UN mission to Congo (ONUC) is an exception in the Cold War. Authorised humanitarian interventions were a rare phenomenon that required an enormous will to cooperate beyond simple power politics, among the great powers of international society.

7.18.2 New Concept of Sovereignty and New Borders for Non-Intervention?—The Unauthorised Humanitarian Interventions In the academic debate on unauthorised humanitarian interventions it is common to refer to East Pakistan (1971), Cambodia (1978), Uganda (1979), Liberia (1990), Sierra Leone (1997) and, of course, Kosovo (1999). In the studies conducted in this chapter, I have shown that this is for the most parts correct. Yet, identifying all UHIs between 1946 and 2005, I have excluded Sierra Leone (1997) from the list of UHIs. It could only be counted as UHI if one argues that the authorities of a state lose this authority, the right to request help from other states to deal with an aggressor, in the moment this aggressor has seized power in their state. This cannot be a serious idea. The society of states needs to have the legitimacy to come to help in times where fellow governments are threatened by coups etc. Would they forfeit this, it would lead to more chaos than we still feel sometimes. The case of Sierra Leone, therefore, cannot constitute as UHI. While Sierra Leone has to be excluded from the list, another case has to be added: Lebanon; or more specific: the UHI conducted by the Arab League in summer 1976 in Lebanon. Why has this case not been identified earlier? Although this cannot be sufficiently answered, it seems most likely that due to the chaos of the Lebanese civil war and the problematic source situation on the politics of the Arab League in those days, it has simply not triggered any attention. The UHI of the Arab League in Lebanon, however, is a support for the finding that is made at this early stage: UHIs come quite often with multilateralism. And here the Lebanon case is the only Cold War case coinciding with both post-Cold War

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cases: ECOWAS’ intervention in Liberia in August 1990 and NATO’s intervention in Kosovo in 1999. A feature of this chapter is the categorisation made possible in UHIs based on a humanitarian motivation and UHIs based on a positive relief effect on a massive humanitarian emergency (see Table 7.19). As will be shown, there is a difference between the former and the latter. I can understand Wheeler’s argument that the UHIs by positive relief effect, yet without the humanitarian motivation (Cambodia ‘78 & Uganda ‘79) should be seen as justifiable as well (2000: 295). However, I assume that the humanitarian motivation and especially its use by the intervener to justify the intervention is an aspect that will lead to fundamentally different impacts. A UHI by motivation has a much stronger normative impact, than a UHI by outcome. The latter will unfold its impact at best indirect by the review of scientists, diplomats and politicians. The former, yet, will have a direct impact, as it is challenging the principles of sovereignty and non-intervention without the necessity of interpretation. To be aware of this distinction between UHIs by motivation and UHIs by outcome is an important differentiation, delivered with this chapter.

Table 7.19 Input and outcome-related categorisation of unauthorised humanitarian interventions Type of humanitarian categorisationa

East Pakistan (1971)

Lebanon (1976)

Cambodia (1978)

Uganda (1979)

Liberia (1990)

Kosovo (1999)

Motivation

+

+

−

−

+

+

Relief effect

+

−

+

+

−

+

Source: Author’s own table a The six identified cases of unauthorised humanitarian interventions have been categorised according to humanitarian motivation (input) and positive relief effect (outcome)

In sum, a) the common classification of East Pakistan (1971), Cambodia (1978), Uganda (1979), Liberia (1990), and Kosovo (1999) as UHIs has been confirmed, b) it, yet, has been disconfirmed for Sierra Leone (1997), and c) a new case of UHI has been identified in Lebanon (1976).

8

Operationalisation and Research Design

Before coming to the main part of this thesis, I will state the research design as well as lay out the operationalisation for this study. I will do so in six steps. Firstly, I summarise the previous research process and emphasise its importance for this chapter. Secondly, the methodological approach will be laid out. Thirdly, I select the cases that will be studied in the following empirical-analytical part of the thesis and reason the time frame that will be imposed on those case studies. Fourthly, I will put the theorems established in chapter 5 in context with the following research design: I will a) reason the inclusion or exclusion of theorems in order to establish an efficient research design, b) state which object of study has to be considered for which theorem, and c) pose subsidiary research questions (SRQs) for those selected theorems as well as state possible indicators. Before this chapter concludes with a summary, I will present the research design based on the previous elaborations in two subchapters: This will include the structure of the following empirical-analytical part and the data and material selection for the studies. The preparations for the main task of this thesis will be concluded with this chapter.

8.1

The Previous Research Process

This thesis has started with the research question in the introduction: Which impact have UHIs on international order and human rights? This is an open Electronic supplementary material The online version of this chapter (https://doi.org/10.1007/978-3-658-32179-6_8) contains supplementary material, which is available to authorized users.

© The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2021 C. Pohlmann, Unauthorised Humanitarian Interventions in World Politics, Globale Gesellschaft und internationale Beziehungen, https://doi.org/10.1007/978-3-658-32179-6_8

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question. A question that calls attention to the effect a cause (UHI) might have. In normal circumstances, asking for the effects of a cause might lead to a ‘classical’ quantitative research design (Mahoney & Goertz 2006: 230–2). Yet, as I stated in the introduction, I do not believe that a mere quantitative methodological approach can be a useful way to explain what happens in the world. It is at most a way to say that B is likely to appear in the consequence of A; at best with a quantification of the probability of B. But that is not enough for the thesis I conduct here. It is also not a sufficient approach in a small-N study, as this thesis is. The way to solve this, will be to formulate subsidiary research questions that not only raise the question if B is likely to occur, but also enable to ask for the why. ES theory with solidarism and pluralism as well as the theorems elaborated, enable me to advance and split the main research question, determine indicators and state the operationalisation. To do that, chapter 2 has been in my view not only a prerequisite for this research design. It is especially necessary to help understand the terminology I will use, the perspectives I will take on and the explanations I will give. To read this research without the theoretical background of chapter 2 and the knowledge on the HI debate as elaborated in chapter 3 is possible but would be quite dry and difficult to do. The access ES gives to the concept of humanitarian interventions and its impact on international society, is— in my view—unique and quite different to other main theories, as is the specific context of the HI debate, which with the R2P transcended every normal academic debate. The same goes for the definition of HI and the concept of AHI/UHI delivered in chapter 4. In many—even influential—literature in the HI debate the definition of HI was (at least) vague or the list of HIs had been left uncontrolled. What might result in a ‘selection bias’ is not only a burden for a debate in general but hinders an efficient case selection (George & Bennett 2005: 73; Lauth, Pickel & Pickel 2015: 259). As criticised in chapters 6 and 7 this has let in instances of the HI debate to the inclusion of events in the entity of UHIs that were neither humanitarian nor interventions. In the process of this elaboration of a clear HI definition and an in-depth case selection procedure, I have identified all UHIs between 1946 and 2005, which can be subject to reproduction and review.

8.2 Methodological Approach

8.2

155

Methodological Approach

The methodological approach used for this thesis is the “structured, focused comparison” (George & Bennett 2005: 67); an approach also described as “systematic and contextualized comparisons” (Mahoney 2004: 1098) or “collective case studies” (Lune & Berg 2017: 175). It is an approach suitable for a small-N design: it combines the classical case study approach, which features an enriching description for each case, and at the same time includes the ability to test and expand existing theories by a systematic and focussed comparison of cases that might bring light to identic or divergent patterns (Hall 2003: 378; Lune & Berg 2017: 170–2; Mahoney 2004: 1098). George & Bennett explain that such a comparison is structured since “general questions […] reflect the research objective […] [and] are asked of each case under study to guide and standardize data collection” (2005: 67), which makes an systematic comparison possible. It is focussed because the case studies do not cover every aspect of the case; instead they focus on the aspects relevant for the research objective (ibid.). Having a specific objective in focus, it is necessary to conduct a theory-based research and set the purpose of one’s own study in context of the general debate (ibid.: 70f; Lune & Berg 2017: 172). Without this, one’s work would be less compatible to the larger academic debate on the specific topic. This context-setting has been done in the chapters 2–5. Where necessary I precisely argued why I differ from the established HI definition by Holzgrefe in chapter 4. In chapters 6 and 7 I laid the fundament for an exact and reasonable case selection. The main tasks of the first of three phases of a structured, focussed comparison (George & Bennett 2005: 73) have, therewith, been performed, after concluding this current chapter. Chapters 9–11 will contain the case studies (phase two), while the chapters 12– 14 will be used to compare the findings, and re-evaluate the theorems derived from the solidarist-pluralist as well as the HI debate and use them for a following theory development resp. expansion (phase three). For the second phase of the structured, focussed comparison it is necessary to use questions to systematic scrutinise the cases (ibid.: 69; Jahn 2006: 337; Mahoney 2004: 1098). Those subsidiary research questions (SRQs) will be posed in subchapter 8.4. They will be the guidelines for the case studies. The comparison of those studies makes it possible to come to generalised conclusions, review the claims made by solidarists and pluralists concerning UHIs and contribute to a theory of the impact of UHIs on international order and human rights. Later in this chapter I will explain on which standardised data selection the analysed will be conducted. This study is focussed as argued above, since I will neither deal

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with all theorems elaborated in chapter 5, but instead a reasoned selection only, nor consider all aspects of UHIs. Besides aligning the research design with the structured, focussed comparison approach by George & Bennett, I want to emphasise another methodological feature of this thesis. The research design will use a mixed method including an external validation to conduct the case studies. As will be seen, I will start in each study section with a quantitative analysis in order to gain empirical results to the questions asked. I will study the quantitative record of the UNSC’s work. I will scrutinise the change of international society’s ability to maintain the core common value of states: human rights. And I will empirically analyse how the human rights commitment and compliance in potential target states has changed. The operationalisation and data selection for these quantitative steps will be stated in subchapter 8.4 & 8.6. This will be followed by qualitative assessments based on the existing academic literature in this context (see also Table 8.3). Sources will be the academic discourse on the UNSC and great powers, the assessments regarding the maintenance of international peace and human rights and, concerning the change in human rights commitment and compliance of single states of an affected region, studies that analyse their individual human rights development (see subchapter 8.6). With this mixed-method design, I will set the empirical findings in perspective and interpret them in order to gain more reliable results (Behnke, Baur & Behnke 2010: 44; Braun & Maggetti 2015: 133; Lune & Berg 2017: 171). This interpretative part will be conducted in-depth to enable my argument to be subject to critique (Yanow 2009: 437). Hence, the structured, focussed comparison will not rely solely on qualitative methods, but on a mixed-method design.

8.3

Case Selection and Time Frame for the Case Studies

Coming to the UHIs, for which I will scrutinise the possible indications for an impact on international order and human rights: the selection of the research units. I have identified six possible cases in the UHI identification process of the previous two chapters: East Pakistan (1971), Lebanon (1976), Cambodia (1978), Uganda (1979), Liberia (1990) and Kosovo (1999). Since most of the theorems formulated are dealing with great powers, it is most important in my view to include a) cases with a potential great power confrontation or even a great power as intervening party and b) cases who are less likely to be in the narrow scope of great powers’ interest in the selection. On the other hand, cases for the two different concepts of what counts as ‘humanitarian’ are of interest for this study. As

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157

emphasised in chapter 4, two different approaches on defining the ‘humanitarian’ criterion exist: the general impact-related one and Wheeler’s outcome-related criterion. In chapter 7 I tagged for each UHI, whether it was categorised as such because it was c) humanitarian motivated (input) or had d) a positive relief effect (outcome). For the criterion of great power confrontation and participation, I determine that Cambodia (confrontation) and Kosovo (confrontation and participation) meet this criterion (see Table 8.1). To explain Kosovo does not seem necessary. Vietnam at the time it intervened in Cambodia had just witnessed a long civil war with the USA as one of the belligerent parties and in 1978 was still engaged in a continuing border conflict with China, not to mention that the Soviet Union was its supporting great power. Table 8.1 categorises the six UHI cases into the four criteria for the selection of the research units. A deselection of one of those UHIs is not necessary in my view. Consequently, all identified UHIs will also be studied. Table 8.1 Unauthorised humanitarian interventions according to the case selection criteria UHI differentiation

East-Pakistan (1971)

Lebanon (1976)

Cambodia (1978)

Uganda (1979)

Liberia (1990)

Kosovo (1999)

HMa

+

+

−

−

+

+

PREa

+

−

+

+

−

+

conf.a

−

−

+

−

−

+

GP part.a

−

−

−

−

−

+

GP a The

abbreviations are as follows: GP conf. & part. (great power confrontation & participation), HM (humanitarian motivation), PRE (positive relief effect)

As will be shown, the quantitative and qualitative material for Liberia (1990) and Kosovo (1999) are so sophisticated in number and quality that the thesis will mainly rest on these two case studies. The four Cold War cases can be studied only by limited data and academic studies. Yet, I deem it still worthwhile to include them in order to gain at least a limited comparison between cases prior and after 1990. To reduce the number of these Cold War cases is possible, but not necessary, since these cases will be efficiently studied in a single chapter by drawing on shared data and interpretation. The timeframe I choose for the study will be ten years prior and ten years after an UHI occurred. This seems to be a rather long frame. However, in human rights research it is often argued that commitment comes over a long time-period rather than within a blink of history (Goodliffe & Hawkins 2006: 361; Hathaway

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2002: 2010; Moravcsik 1995: 184; Moravcsik 2000: 217f; Neumayer 2005: 931f). I argue that the same could be the case for the impact on international order: that such an impact can only be ascertained by observing a longer time period rather than a short one. So, the timeframe of 10 + 10 years seems appropriate for the case studies.

8.4

Operationalisation: Subsidiary Research Questions and Indicators

The operationalisation and SRQs, which will be set up in this subchapter, are based in the theorems formulated in chapter 5. So, let me start with recalling them. The first four are a set of theorems, which I called combined the value decay cascade. The underlying assumption is that states, which feel endangered by the possibility of UHIs becoming a more frequent phenomenon, react by either bandwagoning with a powerful state resp. great power (step 1a) or seeking armament (step 1b). This will lead in a second step to more danger for other states (security dilemma) and, hence, the emergence of instability and a more anarchical society. In the final step, after bandwagoning, armament and anarchy, a third step follows: society must react to this threat, focus on the common interests and has less capabilities left to pursue the maintenance of value: a value decay emerges. The opposing theorem has been the assumption that a third option exists to the first step of the previous concept: yielding to deterrence. I argued that states might react not with armament or bandwagoning, but instead use a non-aggressive way and align themselves with the new reality. Thus, such states would be deterred from violating human rights. Aside of those I established five more theorems, which are focussing directly on the macro-level: international society. Here my assumptions do not take the individual state into account, but the body of international society responsible for the maintenance of order: the UNSC. I assumed that UHIs would lead to a great power disturbance, which can be seen in the emergence of irresponsibility, the repeal of the international jury and diplomacy losing its significance. My general assumption is that great powers benefit from being responsible for the maintenance of international order (see subchapter 12.3). A right to UHI would affect their relation; a disturbance would materialise. This disturbance would affect the UNSC in the way that irresponsibility would increase, it jury function be reduced and diplomacy in general weakened. The opposite assumption is that progressive states could revive the humanitarian role in the UNSC. Having progressive states that use UHIs more frequently could encourage non-progressive (great) powers to

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159

try to re-join with those states that left the consensus. The idea is that almost no power, especially not great powers, want to stay behind. Hence, action outside of the UNSC could in consequence re-empower the UNSC. The four theorems of interest and selected for the case studies are the value decay theorem (the final step in the cascade), the theorem on deterrence from violating human rights, the general great power disturbance theorem and its opposing theorem: a re-empowering of the UNSC. Hence, I discard the first two steps of the value decay cascade and put the three specific theorems of great power disturbance aside. I do so for the former, since I am interested currently if a value decay happened at all. To trace a process to such a value decay would then be a second step for a follow-up research. I do so for the latter, because it is less important to identify exactly one aspect of great power disturbance and more so to analyse if such a disturbance happened at all. With those four theorems, the case studies can be conducted by focussing on two assumptions based in pluralism and solidarism each (see Table 8.2). Table 8.2 Selected theorems categorised by theoretical origin and focus on international order or human rights Theoremsa

International Order

Pluralism

value decay great power disturbance

Solidarism

re-empowering the UNSC

a Theorems

Human Rights

deterrence from violating human rights

have been elaborated in chapter 5

These four theorems are dealing with different objects of study. While the deterrence theorem leads to an analysis in regions and individual states (the latter as sample for a qualitative assessment), the UNSC will be the object of study by the underlying assumptions of the other three theorems. Under ‘regions’ I will here understand the regions in direct connection to the UHI. Having a regional community as participant of the UHI, those communities will be the region. This is the case for Lebanon ‘76 with the Arab League and Liberia ‘90 with ECOWAS. Otherwise I define the states neighbouring the intervening state as such a region. This is the case in East Pakistan ‘71, Cambodia ‘78 and Uganda ‘79. For NATO’s intervention I merge both variations: I will include neighbouring Albania in the ‘region’ as well as all states of the former SFRY, since the conflict has to be seen in context of the break-up of this former socialist state. The argument behind this

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is that the effects will most likely emerge in the direct neighbourhood of an UHI conducting state resp. within the member states of an acting regional community. Coming to specific SRQs that will guide through the empirical-analytical assessment. The underlying assumption for deterrence from violating human rights is that under such a deterrence states will react by changing their human rights policy and/or practice. The indicator for a change in policy will be the human rights commitment (HRCm) as measurable by the ratification ratio in the human rights regime, which is additionally set in relation to the world average in order to circumvent the problem of accountability (Fariss 2014: 299 & 303). For human rights compliance (HRCp) the change can be detected by the Political Terror Scale (PTS); again, I will use a relation to the world average. The SRQs are: – Human rights compliance: How does the human rights compliance in the connected region change? – Human rights commitment: How is the human rights commitment in the connected region changing? For the value decay theorem, the indicator will be an increasing (or decreasing) ability of the international society to deal with human rights violations. As recalled above, the underlying assumption is that UHIs lead to a refocus of international society on the maintenance of order rather than the delivery of justice. When it is confronted with bandwagoning, armament and more anarchy again, it tries to deal with those first, before dealing with values as human rights. International society in this context will be narrowed to the UNSC. Hence, I will ask how the UNSC has changed its dealing with human rights violations and how successful it has been. The mere dealing, either by considering a case or by deciding action in a case, will be categorised as input. The actual deployment of a mission will, in contrast, be categorised as outcome. These indicators connect with the two input- and outcome-focussed SRQs: – Input-focussed value decay: Has the UNSC’s ability to deal with intra-state violence and human rights violations changed? – Outcome-focussed value decay: Has the UNSC’s ability to mitigate intra-state violence and human rights violations changed? Coming to the theorem on the UNSC in specific: the great power disturbance theorem. The underlying argument is that a frequent recourse to UHIs weakens the normal body for the maintenance of international order: the UNSC. The use

8.4 Operationalisation: Subsidiary Research Questions and Indicators

161

of force in international law is restricted to self-defence for states and Chapter VII powers for the UNSC. This restriction is not merely a legal aspect, but for the great powers an important source of their power. The Chapter VII mechanism is conditioning one of five institutions of international society: war. The sole legal entrance to this institution beyond self-defence goes through the great power concert. Hence, the great powers themselves have a high interest in a functioning and powerful or at least force restricting UNSC. When UHIs frequently occur, this would mean an additional way to the use of force outside of the UNSC; the UNSC is with this weakened. A weakened UNSC, hence, would result in a disturbance of the great power concert. I want to refrain from establishing specific indicators for this theorem, as I believe that the broad study of the academic perception will serve best to answer the SRQ. This resulting SRQ will be: – Great power disturbance: Is the cooperation of the great powers in the UNSC disturbed? The final theorem assumes the opposite of the previous one; that it might happen that the conduct of an UHI outside of the council chambers re-empowers those states willing to maintain human rights more actively. The argument is that sidelined great powers might try to find a new consensus with progressive states or perhaps fellow great powers. Such non-progressive states would prefer repositioning themselves rather than being cut off from power. This would mean that the UNSC in general is re-empowered concerning its ability to maintain and enforce human rights. As for the previous theorem, for the same reason I will not state explicit indicators at this point. The SRQ connecting with this theorem is: – Re-empowering: Is the UNSC more willing to maintain and enforce human rights? Let me briefly take a step back and take a look at the side benefits gained by answering those subsidiary research questions. While they are central to answer the general research question of this thesis, they also may lead to aspects of the impact of UHIs on the fundamental institutions of international society. Having until now spoken of international order being impacted, this means at the same time that international society in general is impacted and its institutions as outlined in chapter 2 are as well. The answers to the research questions now elaborated, can contribute to more than just our understanding of the impact on international order and human rights. By those answers it is also possible to come to conclusions for the impact on fundamental institutions esp. the great powers and international law.

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8.5

Research Design: The Structure of the Empirical Analysis

The empirical-analytical assessment will be conducted in three case study chapters, two chapters for the comparison and explanation of the findings and one chapter for the transfer on HI theory and the solidarism-pluralism debate. The case study chapters shall lead to answers to the general research question, guided by the subsidiary ones. I have decided to include only three chapters since the four Cold War UHIs can be studied together in one chapter. The reason for this is especially based on the restricted material available (quantitative and qualitative) for the Cold War cases. Moreover, the time frames for those cases, which originate all in the 1970s, are overlapping. Each of these case study chapters will start with a case description. The core of each chapter, then, will be separated in a section on international order and one on human rights. For both I will first start with the empirical findings by quantitative studies and conduct qualitative assessments based on academic contributions to this field afterwards.1 The quantitative studies will include the indices, which will be introduced in the following subchapter. However, besides the exclusive indices for international order, I will, likewise, draw in these subchapters on already existing empirical studies. In sum, in chapters 9–11 all six cases (East-Pakistan, Lebanon, Cambodia, Uganda, Liberia, and Kosovo) will be scrutinised for the impact of UHIs on international order and human rights. After those case studies, I will separately compare the findings for international order and human rights in one chapter each. I will also go beyond a mere comparison and explain the probable causation for the up-coming results. Such an explanation of the causes for the determined impacts, will be based on my interpretation and the evaluation in the academic discourse. Asking why it had or had not impacted on international order and human rights, will contribute to the theoretical debate. Thus, the purpose of the chapters 12 and 13 will not only be the comparison of the case studies, but also giving explanation, which will enable me to transfer the results to a theory of the impact of unauthorised humanitarian interventions on international order and human rights in chapter 14.

1 In

the chapter on the four Cold War cases these two tasks will be conducted in a single subchapter, since there is less or no material for the qualitative step.

8.6 Empirical Fundament: Data and Material Selection

8.6

163

Empirical Fundament: Data and Material Selection

In the following, I will present the empirical data and material, which will be used in the empirical-analytical assessment. I will take recourse to the academic debate on the UNSC in order to evaluate, and the statistical data used in this debate for findings in order to analyse its performance regarding international order.

8.6.1

MHRVA Indices

For the assessment of the value decay theorem, I will use different data for the input-focussed and the outcome-focussed assessment. For the former the massive human rights violation action (MHRVA) indices will be used. These are indices, which have been developed specifically for this study. The indices show how often UNSCRs dealt with a country with a rating of 5 in at least one of the two sources (Amnesty International or United States State Department) of the Political Terror Scale (Gibney et al. 2019a). The Political Terror Scale “measures levels of political violence and terror that a country experiences in a particular year” (Gibney et al. 2019b). The difference between the wide and the narrow index is the difference between ‘dealing’ and ‘acting’. While the wide MHRVA counts UNSCRs that ‘dealt’ with a country on at least one PTS 5 rating, the narrow MHRVA counts only such UNSCRs by which the UNSC took action in such a country (see electronic supplementary material to this chapter).2 The ratio is applied to the total amount of states with a PTS of 5 in at least one of the two sources. Consequently, the MHRVA indices measure how the UNSC is dealing with states violating human rights most severely. I argue that a value decay is best assessed by the data of these indices. They will give indications to answer the input-focussed value decay SRQ. Value here means that states are willing to pursue their most fundamental value: the maintenance of human rights. As argued in chapter 5, when international order is weakened by an UHI, states would redirect their energy towards the maintenance of order as it is in their most natural interest. The maintenance of value-based human rights then comes second. Stability is prior to human rights; order is prior to justice; interests are prior to values. To see a decrease of the UNSC’s ability to deal with states violating human rights the most, is a clear indication of such 2 Under

the UNSC action the following resolution mandates were subsumed: limited or robust use of force, assistance missions or programs, mediation, observation and sanction regimes.

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a value decay. The MHRVA wide and narrow indices offer findings for or against this theorem. It shall be emphasised that the PTS is focussing on long-term developments rather than actual events. Following this, the MHRVA indices will measure the dealing or acting with states with developed patterns of massive human rights violations. Yet, this limitation should be less problematic for this study. I am not restricting massive human rights violations action to the short-term. So, indices for input-focussed value decay SRQ that focus on the long-term human rights violations are satisfying.

8.6.2

Peace Operations within Five Years of Onset of a War (A Data Set by Bellamy & Williams)

The outcome-focussed assessment will be based on several data referred to in the academic discourse on UNSC’s performance. The most important one in my view is a data set introduced by Bellamy & Williams in 2015. They count peace operations deployed within five years of the onset of a war. This may be seen as a rather large amount of time. But acknowledging the circumstance that international politics is not moving in its decision making processes as autocratic regime can sometimes be, it is in my view a justifiable and a good approach to measure outcome performance. I will apply the data in two different ways. For the time of the Cold War, with a mostly paralysed UNSC, I will count every peace operation; for the time after 1990, in contrast, I will select UN peace operations only to measure the outcome performance to assess the value decay theorem.

8.6.3

HR4 Index (HRCm)

The deterrence theorem has been divided in two parts. First, I have stated that we might find that such a deterrence from violating human rights can be seen in human rights commitment. Secondly, it might be seen in human rights compliance. For human rights commitment, I have generated another exclusive database that analysis change in states commitment to human rights regime treaties (see electronic supplementary material to this chapter). As this change is measured by the ratification ratio, I have called this the human rights regime ratification ratio (HR4) index. To be clear, ‘ratification ratio’ does not mean the speed with which a state ratified new treaties, but the total amount of treaties ratified by a

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165

state. In the first steps the index measures the world’s average HR4, by setting the average number of human rights regime treaties ratified by states in relation to the total number of treaties in this regime. In the next step the same relation will be measured for each affected region and individual state. The regional one is then set in relation to the world’s average HR4. If e.g. the average state in the world would have ratified two treaties out of four treaties in total, the world’s average HR4 would be 50 percent. When now all states in a region affected would have ratified three treaties, the region would have a HR4 of 150 percent compared to the world’s average. The results for the individual states are necessary to identify sample states, for which I want to qualitatively review whether the quantitative results are caused by the UHI. The HR4 is in my view a sufficient way to measure human rights commitment by relying on a mere quantitative measurement without qualitative elements.

8.6.4

acPTS Index (HRCp)

For human rights compliance, I use the existing PTS, which also has been used for the MHRVA indices. However, I will alter the way the PTS is usually used. As mentioned above, measuring human rights compliance has been criticised by Fariss for the potential bias caused by change in the standard of accountability. He argues that altered access, change in the type of information or different types of classification make comparison by time difficult and potentially biased (Fariss 2014: 299 & 303). In order to eliminate such a potential bias, I will not simply compare the combination of the Amnesty International-based PTS score and the U.S. State Department-based PTS score for an individual state prior and after the UHI occurred. Instead, I compare the combined PTS of an individual state with the world’s average combined PTS score first and secondly statistically analyse its change prior and after an UHI. If a change in accountability appeared it will be levelled by this procedure, because I estimate that a change in accountability might happen between different years, but less so within the same year between different regions or states. The result will be the statement of the ten-year average combined PTS (acPTS) levelled by the world’s acPTS prior and after the UHI.

166

8.6.5

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Data and Material for the Empirical-Analytical Assessments (Subchapter Summary)

A good proportion of the quantitative data that will be used for the empirical study of the subsidiary research questions comes from indices developed for this thesis or existing in peace operation resp. human rights research. Among those have been the MHRVA indices, the peace operation data set by Bellamy & Williams (2015), the HR4 index and the acPTS index. By those five data sets resp. indices it is possible to derive findings for the value decay theorem and the deterrence from violating human rights theorem (see Table 8.3). If possible and helpful, the main data for the value decay theorem will be complemented with other data; so, the quantitative data are not restricted on the above explained ones. What have not been possible to study in a quantitative first step are the theorems of great power disturbance and re-empowerment. I can assess those theorems solely by the material of the academic discourse on the UNSC. Nonetheless, the mixed method approach is possible for the majority of the following empirical-analytical assessment. Table 8.3 Quantitative data and qualitative material according to the theorems and SRQs Theorem

SRQa

(Quantitative) Data

(Qualitative) Material

Deterrence from viol. HRa commitment human rights HRa compliance

HR4a index

Sample studies for two states based on sample state specific human rights literature

Value decay

MHRVAa indices

Input-focussed

acPTSa index

Assessment based on the academic discourse

Outcome-focussed Peace operation data “ set by Bellamy & Williams (2015), a. o. Great power disturbance

“

Re-empowering the UNSC

“

Source: Author’s own table a The abbreviations are as follows: acPTS (average combined Political Terror Scale), HR (human rights), HR4 (human rights regime ratification ratio), MHRVA (massive human rights violations action), SRQ (subsidiary research questions)

8.7 Operationalisation and Research Design (Chapter Summary)

8.7

167

Operationalisation and Research Design (Chapter Summary)

In this chapter I explained the methods and research design used for this thesis and, therewith, set the methodological parameters (see Table 8.4). The following empirical-analytical assessment will be conducted by a structured, focussed comparison including a (quantitative and qualitative) mixed-method. Qualitative methods will especially rest on an interpretative approach based on academic contributions on the objects of study. The research will be structured by the theorems, and subsidiary research questions stated in detail in subchapter 8.4. It will be focussed since I selected four theorems, which I argue are able to be studied efficiently in order to evaluate the perspectives taken on by pluralists and solidarists on the impact of UHIs on international order and human rights. Table 8.4 Methodological parameters Parametersa

Description

Unit resp. constant

Case studies UHIs for which an impact shall be selected studied

East Pakistan (1971), Lebanon (1976), Cambodia (1978), Uganda (1979, Liberia (1990, and Kosovo (1999)

Time frame

Selected time frame for the structured, focussed comparison

10 years prior and 10 years after the UHI occurred

Theorems selected

Theorems that will be assessed (selection of those theorems elaborated in chapter 5)

Theorems on internationsubchapteral order: value decay, great power disturbance and re-empowering the UNSC Theorems on human rights: deterrence from violating human rights

Objects of study

Units that shall be studied guided Deterrence from violating human by the subsidiary research questions rights theorem: Regions affected for each theorem by the UHIs and (two individual states each as sample study) (continued)

The cases, which will be studied, are: East Pakistan (1971), Lebanon (1976), Cambodia (1978), Uganda (1979), Liberia (1990) and Kosovo (1999). For these UHIs I will study the objects that are in the centre of attention of the four theorems. For the theorem on deterrence from violating human rights these are

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Table 8.4 (continued) Parametersa

Description

Unit resp. constant All other theorems: UNSC (and great powers)

Data and material selected

Data and material that will be used to assess the selected theorems

Material: Contributions to the academic debate on the UNSC (resp. great power concert) and human rights assessments for sample states Data: Data used in the academic debate on the UNSC and its performance, MHRVA indices, peace operation data set (by Bellamy & Williams 2015), acPTS index, HR4 index

a The

parameters have been elaborated in this chapter

the regions (and two states each as review samples) affected by the UHI. For the remaining three theorems, it is the UNSC as the most relevant secondary institution concerning questions of humanitarian intervention. While, for the assessment of two UNSC-relating theorems I draw on data existing in the academic debate on the UNSC, I will use for the value decay theorem and the deterrence theorem newly generated datasets and the already existing PTS. The new datasets, the MHRVA indices and the HR4 index, have been explained in subchapter 8.6. Some adjustments for individual problems will be explained in the following chapters, however. As explained in subchapter 8.3, I will use for each comparison a ten-year timeframe prior and after the UHI occurred. The following main part of this thesis will be sectioned in three case study chapters, two comparison and explanatory chapters as well as the transfer and theory development chapter: chapter 9 will contain the four Cold War cases, chapter 10 and 11 will study the impact of the UHIs in Liberia and Kosovo, chapter 12 will compare the results for the impact on international order and explain those, as will chapter 13 do for the impact on human rights, and chapter 14 will transfer those results and interpretation to a theory of impact of UHIs on international order and human rights.

9

Short of Great Power Politics, Short of Impact: The UHIs in the Cold War

The first four unauthorised humanitarian interventions each appeared within a time interval of almost seven years in the 1970s: India’s intervention in East Pakistan at the end of 1971, Arab League’s intervention in Lebanon in summer 1976, Vietnam’s intervention in the last days of 1978 in Cambodia and Tanzania’s intervention in early 1979 in Uganda. All, except of the UHI in Lebanon, were justified by the interveners as actions of self-defence. Yet, those three were discussed in the academic debate as humanitarian interventions (Fenton 2004: 15f; Weiss 2004: 41; Wheeler 2000: 55–136). This is the reason why not only Lebanon, but also the other Cold War UHIs still might have an impact, which I want to study in this chapter. For these studies methodological difficulties exist, which cause the statistical findings to be limited. First, for the MHRVA indices the problem consists in a lack of data in the PTS database. The Political Terror Scale exists for the years since 1976, yet, the first UHI appeared prior to this and the Arab League’s in the same year. In the other two cases the annual averages of the MHRVA indices and the acPTS after the UHI can only be compared for three resp. four years prior to the interventions. This means that the findings will be of reduced value. The one dataset left, that is considering data as early as 1962, is the HR4. Secondly, while in the post-Cold War interventions in Liberia and Kosovo, the amount of states, for which the analysis of the impact on human rights is conducted, has a size sufficient for a methodological acceptable analysis, this is both not the case for two of the four Cold War interventions. In the case of East Pakistan, neighbouring countries (of India) aside of the one directly involved in the intervention are Bhutan, Myanmar, Nepal and Sri Lanka, which is already very limited. Moreover, in the case of Cambodia, the only neighbouring countries to Vietnam, being not a conflict party, are China and Laos; what is insufficient © The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2021 C. Pohlmann, Unauthorised Humanitarian Interventions in World Politics, Globale Gesellschaft und internationale Beziehungen, https://doi.org/10.1007/978-3-658-32179-6_9

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for a comparison keeping in mind that China is a great power. Valuable findings, therefore, can be retrieved from the cases in Lebanon and Uganda. In the first I will consider all states, which were members of the Arab League in 1976,1 for the latter all neighbouring states. Those methodological difficulties mean that the following analysis will be conducted in a reduced and summarily version compared to chapters 10 and 11. After a description of the UHIs, the statistical findings for the impact on international order will be given and validated by available external studies. The statistics for human rights (HR) commitment and compliance will be analysed afterwards. However, the data set for compliance is used with some caution, as explained above. What cannot be conducted is an external validation of those findings, since country-specific HR examinations in the time of the Cold War are rarely existing or not at all. Based on these studies, I will give a conclusion at the end of this chapter.

9.1

Case Descriptions: East Pakistan 1971, Lebanon 1976, Cambodia 1978 & Uganda 1979

Looking back at the four remaining UHIs of the Cold War, the most interesting one has been the first. The intervention by India in East Pakistan, has been besides Kosovo, the only one where the primary humanitarian motivation and the positive relief effect coincide. Further, it has been the only UHI conducted by a democratic country, and with a strong humanitarian approach. India started its intervention on November 21st 1971 after the situation in East Pakistan deteriorated over the course of eight months. Within days it took over control, and helped to establish an independent state, called Bangladesh. India clearly had strategic interests as it had the opportunity to weaken its archfiend Pakistan with this operation. However, in the examination of this UHI I determined that the humanitarian motivation has been, nevertheless, the primary one. The UHI in Lebanon started on June 11th 1976 and had been conducted by the Arab League. I have determined a humanitarian motivation by the League for its intervention, yet, neither the organisation itself nor member states were publicly forced to disclose their motives. Its intervention remained under the radar. This is an important aspect, which I have to emphasise: until now Lebanon ’76 has not been recognised as a HI outside of this study; neither in the academic debate 1 Neighbouring

Israel will not be considered, as it was under Western protection and not impacted by an UHI.

9.2 Impact on International Order: Statistical Findings …

171

nor on the political or diplomatic floors. What does this mean for the research on impacts, when such an unacknowledged UHI is included? When international society, and their main actors—states—do not recognise that an event is related to the idea of humanitarianism at all, they can hardly be influenced by a primary humanitarian motivation or a positive relief effect. Possibly, the circumstance that neither the academic, nor the political community has recognised its humanitarian feature, is a severe restriction. The two remaining UHIs have been conducted in Africa and South-East Asia. In late 1978, Vietnam took the opportunity given by Cambodia’s border incursions and conducted a full-scale invasion in its western neighbour. The events leading to and following the intervention, have led me to the conclusion that this intervention was not primarily humanitarian motivated. However, the deliberate mass killings in Cambodia stopped and in sum Vietnam’s intervention had a positive relief effect. The same goes for the UHI of Tanzania in Uganda, which started only 27 days after the UHI in Southeast Asia. Again, one may conclude that an opportunity was used to get rid of a problematic government in a neighbouring state. Similarly, it had been a border conflict and the government in the opposing state had conducted atrocities that can clearly be counted as resulting in a massive humanitarian emergency. Also, the finding has been the same: Tanzania conducted an UHI in Uganda, not with a primary humanitarian motivation, but with a positive relief effect.

9.2

Impact on International Order: Statistical Findings and Assessment in Literature

Peace operations in the Cold War were an infrequent phenomenon. Whereas we are used to a regular response of international society since the end of the Cold War, this was not as common before. The data collected by Bellamy & Williams shows that in 23.75 percent of all wars, a peace operation had been set up within five years of its onset (19 operations in 80 wars) prior to 1990, compared to 41 percent in the 1990s (see Figure 9.1). Thus, during this time it was much more difficult to maintain peace and order in international society than in the era after its end (Bellamy & Williams 2015: Appendix B). Coming to the four conflicts in specific. The data of Bellamy & Williams show that the ability of international society to conduct a peace operation within five years after the onset of a conflict shrunk in three of four cases after an UHI took place (see Table 9.1). The one UHI where the ability raises by a short margin

Wars

Peace operaons within five years*

1946 1947 1948 1949 1950 1951 1952 1953 1954 1955 1956 1957 1958 1959 1960 1961 1962 1963 1964 1965 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989

Figure 9.1 Wars and peace operations within 5 years after onset in the Cold War. (*The peace operations have been categorised by the year of the war, not by the year of the operation. Source: Bellamy & Williams (2015: Appendix B))

0

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2

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9.2 Impact on International Order: Statistical Findings …

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was Uganda. Yet, the period of 1980–1989 witnessed only two peace operations (Bellamy & Williams 2015: Appendix B), therefore the explanatory use of this finding is very limited. Table 9.1 Conduct ratio of peace operations within five years of a war (Cold War UHIs) Conduct ratio of peace operations within five years of a war

East Pakistan (1971)

Lebanon (1976)

Cambodia (1978)

Uganda (1979)

Ten years prior to the UHIa

28.57 %

18.18 %

19.23 %

13.79 %

Ten years after the 14.29 % UHIa

15.79 %

7.69 %

16.67 %

Source: Bellamy & Williams (2015: Appendix B) a The abbreviation is as follows: UHI (unauthorised humanitarian intervention)

The two indices used particularly for this thesis, the wide and narrow MHRVA indices, will give (to some extend) additional statistical findings. I am more cautious at this point since they are based in the PTS, which starts with the year 1976. In consequence, the MHRVAs can be used for an indicating analysis of the impact of the two UHI’s in Cambodia and Uganda, yet not for the UHIs by India and the Arab League. Keeping in mind a reduced validity, due to the shorter time periods prior to the two UHIs, the results show an increased ability of the UNSC and international society to deal with massive human rights violations after Cambodia and Uganda (see Table 9.2). Yet, the MHRVA indices remain on an extreme low level for each interval not above eight percent for the wide version and even under one percent for the narrow variant. The statistical findings show that the UHIs coincide in three of four cases with a negative development of international society’s ability to conduct peacekeeping operations and a positive, yet, low levelling development in the UNSC’s ability to deal with massive human rights violations. However, at this point the problem of multi-causality is obvious. Each or none of the first three UHIs, which had been conducted within eight years, could have triggered this. Moreover, the assessment in literature highlights another reason: The UN and the UNSC are seen under the prevailing academic view as side-lined by the great powers. Without them valuing UN’s system of collective security and the ability to protect human rights by the provisions of the Charter, international society had few resources to deal with humanitarian matters in the way we are used to today (Doyle & Sambanis

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Table 9.2 MHRVA indices for Cambodia (1978) and Uganda (1979) MHRVAa indices

Cambodia (1978), ten year averages

Uganda (1979), ten year averages

Prior to the After the UHIa UHIa

Relative change

Prior to After the the UHIa UHIa

Relative change

3.91 %

7.67 %

+96 %

4.27 %

7.70 %

+80 %

Narrow MHRVAa 0.00 %

0.26 %

n.a.

0.00 %

0.26 %

n.a.

Wide MHRVAa

Source: Author’s own table The (wide and narrow) MHRVA indices are explained in subchapter 8.6. They measure the action frequency by UN Security Council Resolutions in states with the highest (meaning worst human rights compliance) rating of 5 in at least one of the two sources of the Political Terror Scale (Gibney et al. 2019a). For this research a ten year average has been taken for each object of study, resulting in index data for the ten year average prior to or after the UHI a The abbreviations are as follows: MHRVA (massive human rights violations action), UHI (unauthorised humanitarian intervention)

2006: 348f; Malone 2004a: 10). The UN was able to act, when the collision of great power interests was marginal or less and at least one great power had a particular interest in acting within the UN system (Bellamy & Williams 2015: 17f; Fenton 2004: 35f). Due to this situation, the UN was inactive when it came to humanitarian issues (Bosco 2014: 545), and “virtually a humanitarian tabula rasa [existed] at the outset of the 1990s” (Weiss 2004: 38). This analysis on the state of international order within and beyond the UNSC coincides with the insight that we got from the four UHIs. Having asked how they have been discussed in the UNSC’s chamber, I have shown in chapter 7 that such discussions and, therewith, the direct effect in the UNSC were at best limited. In the cases of Lebanon and Uganda there was no larger effect publicly recognisable, in Cambodia it was very limited, and even in the case of East Pakistan, where a UNGA resolution calling for a cease-fire was the consequence, the impact was not more than timely limited. An enduring effect as we will see to some degree in the two following post-Cold War UHIs did not happen. The statistical findings being inconclusive and the evaluation in literature regarding a causality on international order maintenance in general negative, I argue that the four UHIs in the Cold War in East Pakistan, Lebanon, Cambodia and Uganda had not made an important impact on international order. The cases do not deliver a substantial indication for or against one of the relating theorems.

9.3 Impact on Human Rights: Statistical Findings

9.3

175

Impact on Human Rights: Statistical Findings

To analyse the human rights commitment and compliance in the regions affected by the UHI, alterations must be made and restrictions taken into account, as outlined above. Firstly, like for the MHRVA indices, the PTS dataset limits the time for an analysis to post-1976. Consequently, East Pakistan and Lebanon, cannot be studied for a compliance change. Secondly and similarly, the human rights regime consisted until 1969 only of one treaty (the Genocide Convention, two other treaties came first in 1969 and 1970). Due to this, a study of the impact of the UHI of 1971 on commitment would have a low validity only. Thirdly, coming to the UHI in Cambodia, the number of states for which an impact will be assessed is very low. China, as one of the great powers, will not have been affected at all, since it is highly doubtful that China felt in any way pressured in the sense that it would have altered its human rights policy or practice. Therefore, the only state left is Laos. Thus, for the UHI of 1978 a comparison between states is not possible, neither for commitment nor compliance. So, coming to human rights compliance, the sole UHI, for which it makes sense to scrutinise impacts, is the one in Uganda. Finally, studies of human rights developments in those regions of the world affected by the four UHIs that are adequate for the interpretation of the statistical findings do (to my knowledge) not exists. In result, the compliance and commitment impacts of the UHI in Uganda as well as the commitment impact of the UHI in Lebanon are the sole, which will be scrutinised. The region that might be affected by Tanzania’s intervention I define as the states neighbouring it: Burundi, the Democratic Republic of the Congo, Kenia, Malawi, Mozambique, Ruanda, Uganda and Zambia. The annual ten-year average of the HR4 in the region compared to the world increases substantially after the UHI (see Table 9.3). Concerning the acPTS the annual average increased slightly in the ten years after the intervention.2 The reason for this diverging direction in the regions human rights development cannot be qualitatively assessed. However, if some states should indeed have felt a pressure to adopt to international human rights standards, they did so by committing rather than complying. This phenomenon could be explained by the current human rights research and called “window dressing” (Hafner-Burton & Tsutsui 2005: 1378). We will see another example of this later on (with North Macedonia in subchapter 11.5) and elaborate on the theoretical argument behind this in subchapter 13.2.

2 The

later comparison is of limited validity since the acPTS starts with 1976.

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Table 9.3 HR4 and acPTS indices for Uganda (1979) Indicial Uganda (1979), ten year averages change prior Human rights regime ratification to and after ratio (HR4) the UHIa Regionb Worldb Relation region to world

Average combined Political Terror Scale (acPTS) Regionb

Worldb

Relation region to world

Prior to the UHIa

1.205

1.9

63.4 %

2.696

2.31

116.7 %

After the UHIa

3.4

3.682

92.3 %

2.859

2.351

121.6 %

Relative change

+182 %

+94 %

+46 %

+6.05 %

+1.73 %

+4.20 %

Source: Author’s own table The HR4 and acPTS indices are explained in subchapter 8.6. The HR4 index measures the human rights ratification ratio (human right commitment) of an object of study. The acPTS index states the average combined Political Terror Scale (human rights compliance) of an object of study. For this research a ten year average has been taken for each object, resulting in index data for the ten year average prior to or after the UHI a The abbreviation is as follows: UHI (unauthorised humanitarian intervention) b The data of the ‘world’ contains all data available for states of the world in the particular year. The definition of ‘region’ is given in subchapter 8.4; in short, a region is defined as member states of a regional community involved in the current case or the states neighbouring the intervener

For Lebanon I will consider the Arab League member states.3 Israel is neighbouring Lebanon, but under a special protection by the West. Hence, an impact on Israel is unlikely. As explained above, the change in human rights compliance cannot be scrutinised since the acPTS is starting in the year of the intervention. The HR4 relation to the ten-year world average has been notably decreased by 18.6 percent in the Arab League after the intervention in Lebanon (see Table 9.4). Concerning the human rights impact, I remain cautious. The analysis of quantitative indicators could not have been undertaken as completely as would have been sufficient. Even more important is the lacking academic literature on the human rights development in states affected by the interventions. In a further study, it would be interesting to look at states neighbouring Tanzania and analyse 3 Those

are in 1976: Algeria, Bahrain, Egypt, Iraq, Jordan, Kuwait, Lebanon, Libya, Mauritania, Morocco, Oman, Qatar, Saudi Arabia, Somalia, Sudan, Syrian Arab Republic, Tunisia, United Arab Emirates and Yemen.

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Table 9.4 HR4 index for Lebanon (1976) Indicial change prior to and after the UHIa Prior to the

UHIa

Human rights regime ratification ratio (HR4) for Lebanon (1976), ten year averages Regionb

Worldb

Relation region to world

1.529

1.398

109.4 %

After the UHIa

2.794

3.14

Relative change

+82 %

+125 %

89.0 % −19 %

Source: Author’s own table The HR4 index is explained in subchapter 8.6. It measures the human rights ratification ratio (human right commitment) of an object of study. For this research a ten year average has been taken for each object, resulting in index data for the ten year average prior to or after the UHI a The abbreviation is as follows: UHI (unauthorised humanitarian intervention) b The data of the ‘world’ contains all data available for states of the world in the particular year. The definition of ‘region’ is given in subchapter 8.4; in short, a region is defined as member states of a regional community involved in the current case or the states neighbouring the intervener

whether their government felt a pressure to commit to the human rights regime after the UHI in Uganda. For this study, I need to leave it with an indication that such a pressure, resulting in commitment without compliance, might have appeared. Consequently, I cannot detect a human rights impact, yet at least a weak indication could be determined in U79.

9.4

Insignificant and Negligible: UHIs in the Cold War (Chapter Summary)

An UHI in the Cold War has rarely been seen as humanitarian action. When it still does, it rather remains part of the academic debate than being discussed in political or diplomatic environments. For the impact on order, I found mostly a negative direction in the ability of international society to start peace operations (except of the years after the last UHI), and a low-levelling increase of UNSC’s willingness to deal with massive human rights violations (see Table 9.5). Yet, having assessed the evaluation in literature, I concluded that UHIs in the Cold War had no impact on international order. For the impact on human rights it is almost the same. The two UHIs where an analysis was possible, Lebanon 1976 and Uganda 1979, showed contradicting results. The UHI in Uganda went parallel with an

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increasing human rights commitment, but not an increasing compliance. In Lebanon the commitment, however, decreased. The finding for Uganda might indicate that at least some states neighbouring the intervener, Tanzania, have changed their human rights policy under the influence of this intervention; but this remains a rather weak inference, not more. Besides, the finding for Lebanon goes contrary with the one in Uganda.

Table 9.5 Results of the case studies for the four Cold War UHIs Theorem

SRQa

East Pakistan (1971)

Lebanon (1976)

Deterrence from viol. human rights

HRa commitment

n.a.

Notable n.a. commitment decrease, but qualitatively not assessable

Substantial commitment increase, but qualitatively not assessable

HRa compliance

n.a.

n.a.

n.a.

Unclear & slight

Input-focussed

n.a.

n.a.

Important value strengthening (on an absolute low-level), but no causation assessed

Value decay

Cambodia (1978)

Outcome-focussed Value decay, but no causation assessed

Great power disturbance

No causation assessed

Re-empowering the UNSC

No causation assessed

Uganda (1979)

Value strengthening, but no causation assessed

Source: Author’s own table The table states the results of the case studies in this chapter and relates those to the theorems selected and SRQs formulated in chapter 8 a The abbreviations are as follows: HR (human rights), SRQ (subsidiary research questions)

The Benefit of Being on One’s Own: The Impact of ECOWAS’ UHI in Liberia

10

At the same time the Cold War ended, the fifth unauthorised humanitarian intervention began in Liberia. This chapter will open with a short review of the intervention itself and the events surrounding it. I will then present the statistical findings concerning the questions posed for the impact on international order and continue with the discussion of the assessment in literature of the same matter. Afterwards, two similar subchapters will deal with the questions posed for the impact on human rights, before concluding the findings of this chapter.

10.1

Case Description: Liberia 1990

In the final days of 1989, a civil war broke out in Liberia. However, during that period, international society in 1990 concentrated on the end of the Cold War and the Iraqi invasion in Kuwait. As the UNSC had just started into an era of great power cooperation, it did not have sufficient capabilities to focus on such a ‘minor’ conflict. Hence, another international (regional) organisation took over to mitigate the crisis: the ECOWAS. In a quite unusual procedural development (see Subchapter 7.8), an ECOWAS committee decided to deploy the forces necessary for an intervention. The mission was called ECOMOG and deployed on August 24th 1990 to the Liberian capital of Monrovia. My finding has been that said intervention was a humanitarian motivated and unauthorised one, which received international toleration (including the UNSC’s), but was not legally authorised. The impact on international society might in consequence just be minor or neglectable, since toleration should usually coincide with less impact on international order. However, this is a question that shall now

© The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2021 C. Pohlmann, Unauthorised Humanitarian Interventions in World Politics, Globale Gesellschaft und internationale Beziehungen, https://doi.org/10.1007/978-3-658-32179-6_10

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be answered. What must be emphasised is that this intervention has been conducted by a regional organisation within its own boundaries. So, technically speaking, it is different to the four examined Cold War UHIs or the NATO-conducted UHI in the FRY in 1999; yet it still remains illegal from a perspective of international law.

10.2

Impact on International Order: Statistical Findings

The statistical findings are separated in three parts. Firstly, I will present the record in peacekeeping prior to and after the UHI. By this I will evaluate the outcomefocussed value decay assumption. Secondly, the change in the UNSC in a) the MHRVA indices, b) the amount of UNSCR’s, c) the terminology for ‘responsibility’, d) the use of vetoes and e) mandatory sanctions within UNSCR’s will be shown. Finally, I will consider two additional findings concerning the ability to authorise ‘coalition of the willing’ and the ability to ‘legitimate’ the use of force ex post. The last two parts will enable me to analyse the input-related value decay assumption and perhaps also some indications for the other two theorems, which deal with the impact on international order.

10.2.1 Peacekeeping Record Several authors use the peacekeeping record to argue a significant performance increase of the UNSC in the years after the end of the Cold War, compared to the Cold War era itself. The data of Bellamy & Williams show that the UNSC initiated just three new peace operations between 1981 and 1990 to a conflict within five years after their onset—that is 20 percent of the total amount of new conflicts. In contrast, the UNSC established 12 new operations between 1991 and 2000—that is 32 percent of all new conflicts (see Table 10.1) (Bellamy & Williams 2015: Appendix B). Thus, the UNSC increased its performance regarding peacekeeping substantially (see Figure 10.1). The method of counting applied by Bellamy & Williams is quite unusual as they are, ‘granting’ the UNSC five years to act in order for a peace operation to be counted as a response to a crisis. However, in the complex world we live in, this is a more realistic approach than shorter conflict-response measurements. Their approach is also seconded by the findings of two other scholars. Voeten counts for the time prior to 1990 only authorised peacekeeping missions, while the first nine years of the 1990s saw 31 (2001: 846). Likewise, Mertus counted until 1987 13 UN operations, while the years

10.2 Impact on International Order: Statistical Findings

181

1988 to 2004 saw 55 (2009: 104). Both statistics are not within the timeframes of comparison for this study but still support the general assessment.

Table 10.1 Conduct ratio of UN peace operations within five years of a war (Liberia 1990) Liberia (1990)

Wars

UN peace operations

Conduct ratio of UN peace operations within five years of a war

Ten years prior to the UHIa

15

3

20.0 %

Ten years after the UHIa

37

12

32.4 %

Source: Bellamy & Williams (2015: Appendix B) a The abbreviation is as follows: UHI (unauthorised humanitarian intervention)

Luck recognized evidence for the improvement in the budget spent on and in servicepersons engaged in peacekeeping operations: In 1991 the budget added up to about 490 million US-Dollar and about 15,300 men and women were dispatched in the field. Two years later, the budget had grown to more than 3 billion US-Dollar and the servicepersons to 78,500 (Luck 2006: 37). I have to emphasise that, likewise, Luck used different timeframes in his study (as have Voeten and Mertus), yet I think that the highly increasing numbers are still useful to understand the peacekeeping context in the early 1990s. I will include similar studies in the following considerations.

10.2.2 MHRVA Indices and UNSC Record The MHRVA indices showed a massive resp. an exorbitant increase in UNSC’s ability to deal with or act in states violating human rights most severely. The finding for the wide MHRVA index is that 8.00 percent of the countries have been targeted by at least one UNSCR per year in the time period of 1981 to 1990 at average (see Table 10.2). Further, considering the narrow MHRVA index, the value drops to 0.85 percent. The numbers increase in the time period after the UHI. From 1991 to 2000 15.75 percent of those countries have been targeted by a UNSCR at average per year resp. in 8.87 percent of those countries a resolution included an active instrument. This is an increase by almost 96.97 percent resp.

1981

1982

1983

1984

1985

1986

1987 Wars

1988

1990

1991

1992

1993

1994

UN peace operaons within five years*

1989

1995

1996

1997

1998

1999

2000

Figure 10.1 Wars and UN peace operations within 5 years after onset (Liberia 1990). (*The peace operations have been categorised by the year of the war, not by the year of the operation. Source: Bellamy & Williams (2015: Appendix B))

0

1

2

3

4

5

6

10

7

8

9

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by 942.33 percent. Thus, in both cases, a very high increase in UNSCR’s dealing with states with the worst human rights records can be determined. Table 10.2 MHRVA indices for Liberia (1990) MHRVAa indices

Liberia (1990), ten year averages Prior to the UHIa

After the UHIa Relative change

8.00 %

15.75 %

+97 %

Narrow MHRVAa 0.85 %

8.87 %

+942 %

Wide MHRVAa

Source: Author’s own table The (wide and narrow) MHRVA indices are explained in subchapter 8.6. They measure the action frequency by UN Security Council Resolutions in states with the highest (meaning worst human rights compliance) rating of 5 in at least one of the two sources of the Political Terror Scale (Gibney et al. 2019a). For this research a ten year average has been taken for each object of study, resulting in index data for the ten year average prior to or after the UHI a The abbreviations are as follows: MHRVA (massive human rights violations action), UHI (unauthorised humanitarian intervention)

Several other studies exist on which inferences can be drawn from. However, as will be outlined some of those studies differ in the timeframe considered. Since they compare mostly a different time length prior and after the end of the Cold War or the point of comparison is shifted a few years from the year 1990, I deem it appropriate to consider these studies nevertheless without making unreasonable methodological concessions. In a similar way to the MHRVA indices, yet without connection to PTS, two articles by Voeten as well as Wallensteen & Johansson indicate an improvement in UNSC’s willingness to act forcefully by counting those UNSCRs invoking Chapter VII. Voeten counts two UNSCRs from 1977 to the start of war against Iraq, and 145 between 1990 and 1998 (2005: 531). Wallensteen & Johansson argue that the UNSC has come from “roughly one decision per month to one per week” (2004: 18)1 ; at the same time, they highlight that a quarter of all UNSCRs invoking Chapter VII in the years 1990 to 2002 have been targeted on Iraq. Furthermore, the civil war in Yugoslavia contributes to a similar large proportion of Chapter VII resolutions (ibid.: 19). In 2017, Strasheim, Haaß and Bethke published an analysis on responsibility language in UNSCRs. According to their finding the responsibility attribution in 1 However,

in their article they compare the years of the Cold War to the years since then, which means that their timeframe is not equivalent to the one chosen in this thesis.

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UNSCRs increased in the 90s compared to the previous years (Strasheim, Haaß & Bethke 2017: 298–301). A third way to state the change in UNSCRs is the use of veto. Depending on how to define the term ‘substantive veto’ Hulton, Johnstone, Malone and Voeten each express the positive change in the UNSC by arguing the significant drop in its use from between 193 (Malone) and 279 (Voeten) substantive vetoes in the Cold War to 11–14 in the years between 1990–2003 (Hulton 2004: 238f; Johnstone 2003: 460; Malone 2004a: 7; Voeten 2001: 846). Further, mandatory sanctions have been put forward to show the more active UNSC after the end of the Cold War. In the time of great power confrontation, the sole mandatory sanctions imposed were those reacting to apartheid in Southern Rhodesia in 1966 and South Africa in 1977. In contrast, until 1997, six new sanction regimes have been established: Iraq 1990, Yugoslavia 1991, Libya 1992, Haiti 1993, Angola (UNITA) 1993, Sierra Leone 1997 (Malone 1997: 399). Finally, Chesterman points out that the UNSC was willing to authorise coalition of the willing since 1990: ten, overall, including the authorised but not implemented Canadian-led supposed-to-be mission in Zaire 1996. He also hints at the ability to approve a mission ex post—e.g. ECOWAS in Liberia (Chesterman 2002: 299f).

10.2.3 Quantitative Analysis of the Impact on International Order (Subchapter Summary) The findings, in sum, show quite convincingly that the record of the UNSC in the ten years after 1990 is different than in the prior ten years. The UNSC has been engaged in new conflicts five times more than in the 1980s. Both indices introduced for this study show a significant improvement in the annual average: the narrow MHRVA index by 942.33 percent and the wide MHRVA index by 96.97 percent (see Table 10.2). The sheer number of resolutions per month quadrupled. Its own acceptance of responsibility as expressed in the use of the term in UNSCRs increased; the use of veto dropped; the use of mandatory sanctions increased; and tools of authorising a coalition of the willing (sometimes even approving ex post) rose. Hence, this consideration shows several indications in support of the solidarist point of view, yet none for the pluralist one. However, although the numbers are coinciding with ECOWAS’ UHI in Liberia, the intuitive assumption hints on the end of the Cold War as reason, yet not the UHI itself. Whether or not this is actually the case shall be elaborated on in the following.

10.3 Impact on International Order: Assessment in Literature

10.3

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Impact on International Order: Assessment in Literature

The discussion and assessment of the change in UNSC will be separated as follows: I start with the notions in literature for a change in general, which are not quantitative but interpretative. To come to inferences on the causation for this change, I will present the discussion on the origins of change afterwards. The policy alterations of the two great powers at most sceptical on the emergence of any humanitarian intervention, will be shown in two further parts. Fifthly, I will present the normative change in the UNSC by focussing on the inclusion of HR issues and the evolution of the principle of sovereignty in the Council. Finally, I will discuss how the UNSC and ECOWAS have dealt with the crisis in Liberia in two sections, before summarising this assessment. The first notion common in literature is the willingness of the “new Council” (Wallensteen & Johansson 2004: 30) to act in the face of human suffering. In the last subchapter, this willingness has been proved in numbers. Apart from those numbers, this change towards a more progressive Council is commonly accepted. The ‘former’ Council, continuously criticised for its inaction, no longer remained in this paralyse. Yet, action drove a hard reality in the Council chamber: difficulties in finding troops for the missions, warring factions refusing to follow UNSC decisions, and casualties among the peacekeeping forces. Malone points out that the Council had an “optimistic experimentation, often on a heroic scale, particularly during the years 1990–94” (Malone 1997: 404), yet, was then shocked when it faced casualties—as has been seen most notoriously in Somalia. The over-optimistic UNSC of the 90s was also challenged by a lack of capabilities. Although states were willing to act, they were less willing to put action to practice, especially when it came to contributing troops (Malone 2004a: 11). One positive side effect had been that sometimes in the situation, where states were unwilling to contribute to UN missions, the UNSC was willing to authorise coalition of the willing instead (Thompson 2009: 2f). Further, besides altering one part of the principle of sovereignty by intervening in civil conflicts (Malone 1997: 401), the Council kept the other part of the principle well alive and, moreover, sought consensus whenever possible. This went so far that legally a mission might have the ability to use all necessary means, but in practice the mission in the field sought every possible consensus with the warring factions they had to mediate (Forsythe 2018: 81). Besides this positive change for the world in general, the positive change within the concert of the permanent five members of the UNSC (P5) has been recognised in literature as well. While the P5 have “often fuelled conflicts […]

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during the Cold War” (Adebajo 2011: 233), under the progressive nucleus of the P5 the UNSC lived up in the new era to the responsibility enshrined at it by the UN Charter and dealt with the issues of international peace and security more seriously than in the Cold War (Wallensteen & Johansson 2004: 21). The concert of great powers did not only establish an “increased consensus in its decisionmaking” (Hulton 2004: 237), but also established, first between the US and Soviet Union and later between all five GPs, an informal forum as well as procedures by which most of the Councils decisions were made; beginning in 1986 with the IranIraq war (Krisch 2008: 136). It took eight years (even twelve if the years since 1986 are included) until this progressive nucleus showed signs of disturbance under the offensive by US and UK in Iraq in 1998 (Malone 2006: 11f). The common explanation for the change within the UNSC is connected to the end of the Cold War and the dissolution of the Soviet Union. However, in literature, which covers the origins of this change in more detail, two main actors and one additional milestone are mentioned, which are mostly not present in this common explanation. Two individuals, who changed their perception of the UNSC in matters of international peace and security, and one milestone, which can be seen as the test case for this progressive habit. The two actors were the heads of state of the two rivalling great powers: Gorbachev on side of the Soviet Union and Reagan on the American side. The change in the UNSC policy of the two major great powers can be traced back to a commitment delivered to UNSG Pérez de Cuéllar in 1985. In this, the Soviet Union claimed to live up to its responsibility and, therefore, gave reason to believe them to be more active in the future. Bosco describes that the UNSG manoeuvred the P5 in the Iran-Iraq war to address this issue in order to “test the new atmosphere” (Bosco 2009: 149). Hume equally traces the change in the UNSC back to the first Gulf war and the successful cooperation of the two leading great powers (Hume 2004: 607). Gorbachev announced this new Soviet UNSC policy publicly in his speech in the UNGA in December 1988 (Wallensteen & Johansson 2004: 18f). Hence, the UNSC’s (re)action in the IranIraq war was the first milestone for the upcoming era of great power cooperation. The final proof of this new ability of great power cooperation in the UNSC was the international response as orchestrated in the Council chamber after the Iraqi invasion of Kuwait in 1990 (Malone 1997: 397; Mertus 2009: 106; Voeten 2005: 530f; Wallensteen & Johansson 2004: 18f); which is the milestone commonly seen as the change from the ‘old’ to the ‘new’ UNSC. Fears that this cooperation could have been a singularity in the great power tragedy, appeared to be unfounded. The cooperation between the proactive, a new world order seeking Western great powers (especially the US) and Russia plus

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China remained vivid in the 90s (Malone 1997: 405). Russia was willing to cooperate in its former sphere of influence. If the West respected Russia’s remaining sphere (as in Chechnya), there was less need for a confrontation (Malone 2006: 272). Consequently, the one UNSC issue where friction was visible had been in Yugoslavia, where the Russian realpolitikal sphere of interest had been infringed on (Malone 1997: 395). The problem with such a ‘keep on going’-attitude towards a great power aiming at resp.‘re-ordering’ towards an alternate international society is—as realism reminds us—their habit of not sticking to their leeway, but instead overstepping boundaries. Apart from a free hand in Chechnya, Russia gained little from its willingness to cooperate. The culmination of this Western overreach from a Russian perspective then came with NATO’s intervention in Kosovo, which will be discussed in the following chapter, and led to a stronger Russian UNSC policy under Putin (Malone 2006: 272f). Meanwhile, China’s foreign policy changed under Deng Xiaoping from challenging the existing order to one embracing it (Legro 2005: 173). This Chinese change can be seen in its new policy towards international peacekeeping operations. Before the 1990s, China’s attitude towards peacekeeping operations had been a critical one but it turned into a more accepting one in the 90s and later even supporting and contributing to its operative parts (Hirono & Lanteigne 2011: 243f). This Chinese cooperation has been encouraged by “both economic side payments and security guarantees in exchange for its behaviour in the UNSC” (Voeten 2001: 846). Yet, this was not sufficient for the policy turn. China turned from seeing itself “as the representative of the Non-Alignment Movement (NAM) in the UNSC” (ibid.) to seeking acceptance as responsible great power. Such an acceptance could not stop with the appreciation of NAM-states, but necessarily had to aim for the appreciation of international society and world society at large. China found itself between states it cooperated with resp. sought to represent on the one side and the ‘developed’ world as well as international civil society resp. public on the other side. On the one hand, seeing the principles of sovereignty and nonintervention somewhat sacrosanct against an encroaching international society, and on the other hand, recognising the demand for action by international society, and UNSC in specific, in times of massive humanitarian emergencies. China had to balance those aspirations against its previous UNSC policy (Stähle 2008: 639). This also explains the finding that China often abstained on resolutions, yet still respected decisions it had abstained on (Voeten 2001: 846). Besides all the critique the UNSC and great powers were confronted with (Rwanda and Srebrenica being the most severe), the willingness of both—the formal body as well as the informal concert of great powers—was unprecedented

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(Malone 2004b: 626). What is sometimes overseen when referring to these tragedies, is the fact that the UNSC became a world body that could not stand idle in the face of genocide at the end of the 1990s. Prior to 1987, the UNSC would have been unable to act or sometimes even consider the case of a genocide (Donnelly & Whelan 2018: 184). Such an engagement in the event of MHE has not been a task the UNSC had to take on by the rules of the UN Charter (Weiss 2004: 45). The UNSC established a legal construct in order to gain the legal capability to act in such cases; it connected human rights violations (HRV) to international peace and security. By arguing that, HRV can lead to “plight of refugees [and hencewith an] […] destabilizing effect on neighboring states” (Malone 2004b: 626) it determined HRV as a threat to international peace and security (ibid.: 644f; Weiss et al. 2017: 186; Welsh 2008: 535f). The (rational correct) linking of HRV to a threat of international peace and security resulted ultimately in “shifts in perception of sovereignty” (Malone 1997: 405). “By 1999 it was widely although not universally accepted that tyrants could no longer seek refuge behind the walls of sovereignty to shield themselves from international concern and even action over massive human rights violations and humanitarian catastrophes” (ibid. 2004b: 644f). What is sometimes missed is the second shift that appeared besides this humanitarian shift. This second shift is the rapid decline in the use of force without UNSC authorisation. The rather strong great power cooperation led not only to a humanitarian decade, but also to one in which the norm of non-intervention was as strong as rarely ever before. Besides the above-mentioned US and UK interference in the pariah Iraq, the first serious challenge of this moment of non-intervention has been the Kosovo crisis in 1999 (Krisch 2008: 149f). The Liberia case itself happened at the beginning of this improvement of UNSC’s willingness to act, prior to the milestone at the end of 1990/beginning of 1991. Nevertheless, it remains possible that the P5 would have been able to act. Yet, as Adebajo points out, the three African members in the UNSC (politically) blocked an international action, based on their opposition to an intervention in an African state. This conditioning of P5 willingness to act to the position of the regional representatives in the Council or the relevant regional organisation is a quite common pattern in the Council (Adebajo 2011: 143) and known as ‘regional gatekeeping’. Instead, the UNSC took a neutral stand on this case, while giving ECOWAS a (legally not binding nor effective) political approval by a presidential statement (Ofodile 1994: 414) and commending ECOWAS and ECOMOG in two UNSCRs (788 and 813) for their effort (see subchapter 7.8). Likewise, in the long-run the implementation of the United Nations Observer Mission in Liberia mission can be seen as evidence that the effect of the Liberian case on the UNSC was anything but problematic.

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Besides the impact on the UNSC, it is interesting to consider the intra-West African impact of ECOWAS’ intervention in Liberia. As shown in Subchapter 7.8, the mandate of ECOWAS for the ECOMOG mission was not as smooth as we are used to in the sphere of world politics. Being an ad hoc decision (without a tested regional procedure) of an ad hoc committee, established not by consensus but majority only and with the refusal to participate of several member states, the mission had every reason to become the nucleus of a major intra-ECOWAS conflict. Put in perspective, however, ECOWAS’ willingness to act without bothering for legal questions or political consensus has not led to a severe, long-term friction in this regional organisation. The assessment of the impact of this particular UHI on its regional community is quite contrary. A substantial base of literature exists nowadays that connect the intervention of ECOWAS in Liberia, to the positive development of this community. Bah (2013: 89), Iheduru (2011: 218) and Francis (2001: 40) each trace the development in the intra-regional security cooperation back to this UHI. Arthur and Williams, moreover, argue that Liberia has led ECOWAS (for Williams via the steps in Sierra Leone and Guinea-Bissau) to establish the ‘Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peace-keeping and Security’ (Arthur 2010: 21; Williams 2016: 191–3).2 Alter, Helfer & McAllister connect the more recent human rights development in ECOWAS to the intra-regional experience in the 1990s (2013: 744f). The main rational behind these interpretations is that ECOWAS learnt—starting with Liberia—how to mitigate and embank internal crises and that the “‘try Africa first’ approach” (Francis 2001: 59) suits the member states of ECOWAS more than relying on the UNSC (Arthur 2010: 21f; Bah 2013: 91f). So, while the impact of the UHI in Liberia on the UNSC is at best difficult to assess, it is indeed severe for the regional community itself. ECOWAS did not only become a vanguard concerning the enforcement of human rights on a regional sphere, but was also able to revise its treaty in 1993 and adopt the above mentioned protocol in 1999, therewith not giving in to norm contestation, but living up to norm implementation (Aning 2004: 535; Bah 2013: 91f & 99). Further, it can even be described as a norm entrepreneur resp. source itself. To interpret it as ‘entrepreneur’ or ‘source’ depends here on the role it actually 2 Several

other authors connect the development of ECOWAS security sector and relating legal framework with later milestones. Most of them, however, acknowledge that these milestones are connected to ECOWAS’ intervention in Liberia. For the revised treaty of 1993 see: Aning & Bah 2009: 3; Bah 2013: 91f & 93. For the just mentioned mechanism see: Aning 2004: 535; Bah 2013: 91f. For later interventions of ECOWAS in member states see: Alter, Helfer & McAllister 2013: 744.

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played. To Gottschalk (2012: 17) the establishment of the ‘Peace and Security Council’ of the African Union (AU) has been more influenced by ECOWAS than by the EU. Likewise, Francis traces the security development in the AU and the Southern African Development Community (SADC) back to the one in ECOWAS (2001: 58f). Although I second both, the intra-ECOWAS as well as the widerAfrican assessment of the impact of ECOWAS’ intervention, I have to underline that a deeper analysis of the process that took place in ECOWAS has not been conducted so far. The UNSC, in perspective, remained mostly impact-free from ECOWAS intervention in Liberia. After the statistical consideration, the change in the UNSC performance coincides with the UHI in Liberia in 1990. Yet, taking a closer look, not only was the ‘new Council’ not invented in 1990 but in 1986/1987, but neither had the ECOWAS action any significant impact on the UNSC. This argument holds for the negative as well as the positive side. The emerging great power cooperation remained untested by this UHI, as was the development of a norm to act in the event of a MHE not caused by the Liberian case. Russia as the upcoming problem in the great power concert was not concerned by the case at all, neither were the P5 in general—as can be seen by them subordinating their decision to act on the three African council members. A severe impact can be noted on ECOWAS itself, leading not only to a norm implementation, but also to its codification in a new treaty and a specialised protocol. In result, indications (based on a quantitative analysis and withstanding a qualitative causality assessment) for the theorems on UHIs impact on international order could not be found. As were the Cold War UHIs the one of ECOWAS was beyond the focus of the great powers. Yet, it indeed had an impact on ECOWAS itself. The ECOWAS’ UHI in Liberia had no impact on international order, but it had a significant impact on the regional order; an aspect that will be discussed in subchapter 12.5.

10.4

Impact on Human Rights: Statistical Findings

Coming to the statistical data on human rights commitment (HRCm) and compliance of those states directly connected to the ECOWAS’ intervention: its member states. The human rights regime ratification ratio (HR4) in the world between 1981 and 1990 had been 45.9 percent: 3.899 treaties ratified at average per state and year to 8.5 international treaties existing at average per year. The HR4 of ECOWAS member states at the same time had been at 43.8 percent: 3.727

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treaties ratified at average per member state and year. ECOWAS member states had a HR4 of 95.6 percent in relation to the world average. In the time period of 1991 to 2000 this value increased slightly to 100.3 percent HR4 for ECOWAS member states in relation to the world average HR4 resp. 6.773 treaties ratified at average per year and state. The world average had been 6.752 treaties ratified by 13.5 treaties existing in average per year (see Table 10.3).

Table 10.3 HR4 and acPTS indices for Liberia (1990) Indicial Liberia (1990), ten year averages change prior Human rights regime ratification to and after ratio (HR4) the UHIa Regionb Worldb Relation region to world

Average combined Political Terror Scale (acPTS) Regionb

Worldb

Relation region to world

Prior to the UHIa

3.727

3.899

95.6 %

2.181

2.364

92.2 %

After the UHIa

6.773

6.752

100.3 %

2.667

2.470

107.9 %

Relative change

+82 %

+73 %

+4.92 %

+22 %

+4.48 %

+17.0 %

Source: Author’s own table The HR4 and acPTS indices are explained in subchapter 8.6. The HR4 index measures the human rights ratification ratio (human right commitment) of an object of study. The acPTS index states the average combined Political Terror Scale (human rights compliance) of an object of study. For this research a ten year average has been taken for each object, resulting in index data for the ten year average prior to or after the UHI a The abbreviation is as follows: UHI (unauthorised humanitarian intervention) b The data of the ‘world’ contains all data available for states of the world in the particular year. The definition of ‘region’ is given in subchapter 8.4; in short, a region is defined as member states of a regional community involved in the current case or the states neighbouring the intervener

The human rights compliance (HRCp) measured by the acPTS of ECOWAS member states in relation to the acPTS of all states for which PTS data exists, has been 92.2 percent in the timeframe 1981 to 1990. The acPTS relation increases notably in the timeframe 1991 to 2000 to a yearly average of 107.9 percent (see Table 10.3). Thus, the human rights situation got worse, since acPTS measure the scale of human rights violations from 0 (none) to 5 (most severe).

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For the interpretation of these findings, states with the leading alteration in the human rights commitment and compliance will be selected. Statistically, the highest increase in HR4 appeared in Côte d’Ivoire from 1 at average in 1981 to 1990 to 6 at average in 1991 to 2000. However, a similar increase can be observed in Benin: from 1.1 to 6.5. What makes Benin more interesting then Côte d’Ivoire is the rapid increase after the UHI occurred. Benin had ratified in 1990 just the United Nations Convention on the Rights of the Child (CRC) and previously in 1974 the International Convention on the Suppression and Punishment of the Crime of Apartheid, while committing in 1992 rapidly to five more HR treaties. Côte d’Ivoire, in contrast, took eight years to develop: from committing to the International Convention on the Elimination of All Forms of Racial Discrimination only, to ratifying eight HR treaties in 1997. The two states under consideration are simultaneously of interest for an interpretation of the findings on human rights compliance. Benin dropped in the combined PTS from an annual average of 2.45 to one of 1.55 (1981–1990 resp. 1991–2000). This is a drop to 63.3 percent and the highest in ECOWAS. Côte d’Ivoire at the same time—although we see a similar but not as sudden increase in the HR4—contrary to Benin witnessed an increase in its combined PTS by 85.7 percent. Its annual average had been at 1.4 for 1981 to 1990 and increased to an average of 2.6 for 1991–2000. Côte d’Ivoire has—with this increase in numbers—the second highest increase after Sierra Leone, which rose by 114.6 percent, yet should be explained foremost by the developing internal conflict. In sum, ECOWAS witnessed two opposing directions of human rights commitment and compliance development. While the commitment increased (HR4 in relation to the world average rose from 95.6 percent to 100.3 percent) the compliance took a turn for the worse (acPTS in relation to the world average rose from 92.2 percent to 107.9 percent). For the quantitative analysis of the deterrence of human rights violation theorem this is more a challenging indication than a supporting one. To study these increases more closely, two states have been identified: Benin and Côte d’Ivoire. Both share the highest increase in HR4, yet while Benin has the highest compliance improvement (acPTS decrease) of ECOWAS states as measured by acPTS, Côte d’Ivoire has the second highest compliance deterioration (acPTS increase), topped only by Sierra Leone.

10.5 Impact on Human Rights: Assessment in Literature

10.5

193

Impact on Human Rights: Assessment in Literature

The improvement of human rights commitment in Benin came with the change from a one-party-rule incorporated by the People’s Revolutionary Party of Benin (PRB) until 1990, to the interim period that was the result of a national conference in 1990 and the new democratically elected President Soglo in early 1991. A “peaceful democratic transition” (Houngnikpo 2001: 69) followed the presidential election in 1991, which improved the economic and civil liberties in Benin (Creevey, Ngomo & Vengroff 2005: 471f; Houngnikpo 2001: 69f). Taking a closer look, Gisselquist argues that in Benin clientelism exists (Gisselquist 2008: 810) and is embedded in a “consolidated (minimal) democracy” (ibid.: 790). Somewhat more positive is the view of Magnusson who points out that the juridical institutions are quite strong for an African state. The decisions of the constitutional court are adhered to by president and national assembly likewise, which also includes “disputes involving human rights violations” (Magnusson 2001: 225). Based on this I argue that in the Benin case the rule of law seems to be internalised and accepted by the political branch. If this inference is correct, then in the case of Benin the commitment and compliance should be stable in the long term, and is connected to a norm internalisation, rather than an adjustment made due to external pressure e.g. in connection to the UHI of ECOWAS. In 1990 Côte d’Ivoire was on a similar path as Benin. The year of the end of the Cold War was the year with the first Ivorian open elections. Yet, President Houphouet-Boigny had a more difficult start to negotiate a substantial coalition in the new political environment. After his death in December 1993, political frictions broke out and led to two competing claims of presidential succession (McGovern 2011: 16f). This political crisis was fuelled by an instrumentalization of the already existing economic crisis and a divide between the north and the south. The new President Bedie (among others) used Ivoirité (the “specific expression of the reinvention of a collective Ivorian persona” [Akindès 2004: 6]) not only to delegitimise his political opponents, but also for further political gains. What followed were economical and ethnical disturbances with special focus on citizenship that fuelled the already existing political crisis (Bah 2010; Kabia 2009: 142f). This corresponds with the increase in the PTS based on U.S. State Department reports, which sees a rating of 2 until 1993 and a rating of 3 and higher beginning with 1994.3 The “socio-political crisis” (Akindès 2004: 5) finally led to a military coup in 1999 (McGovern 2011: 15). Bellamy & Williams argue that 3 The

PTS scale based on AI reports remains in the 1990s at 2, except for the years 1992 and 1996 (rating: 3).

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this crisis was based on the internal power struggle rather than the effect of UHI in Liberia (2011: 830). While the HR4 finding for Côte d’Ivoire can be explained by its democratisation in the beginning 1990s, the raising socio-political crisis hindered a connecting compliance. Again, both developments in Côte d’Ivoire are unlikely to be connected to the UHI in Liberia. Having assessed the reason for the human rights development in two sample states, I conclude that neither a direct connection to the UHI, nor an indication for the deterrence from human rights violation theorem exists in the case of Liberia ‘90.

10.6

Hazard-Free Within Regional Communities: UHI by ECOWAS (Chapter Summary)

As result of this assessment of the impact of ECOWAS’ UHI in Liberia, I argue that a connection to the highly positive development of the UNSC as main body for the maintenance and protection in the 1990s does not exist. The peacekeeping performance, the improvement in its dealing with states that violate human rights the most and the increase in both MHRVA indices, the beginning and increasingly stable great power cooperation, the decrease in interstate violence and the upcoming normative change in the UNSC are very unlikely to be connected to or influenced by the UHI by ECOWAS. Even the time parallelism does not withstand scrutinization, since the change in the UNSC had started in the second half of the 1980s, rather than in 1990. For the impact on human rights, I see at least some impact. Yet, this has not appeared on national or international levels or in direct terms. Two assessments focussed on Benin and Côte d’Ivoire have shown no direct connection with their similar improvement of human rights commitment resp. the diverging development in human rights compliance. Quite interestingly, the change appeared in the regional organisation indirectly via an impact on the regional order. ECOWAS dealt with the Liberian crisis ad hoc, without standing procedures or existing and uncontested norms. The impact of its action led, however, to exactly those new procedures, which had been missing previously, as well as a norm development and internalisation. The change in the regional organisation of ECOWAS, indeed, is an impact—a positive impact—that the UHI in Liberia has achieved. Thus, again no causation of the UHI on the analysed developments in international order could be determined. No indication for or against one of the three relating theorems is apparent (see Table 10.4). The impact on the regional order, however, might constitute a similar process than assumed by the re-empowerment

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195

theorem. The same as for the order theorems goes for the human rights theorem. While indications for this assumption had been found, the assessment by two sample states has not proven any causation.

Table 10.4 Results of the case study for Liberia (1990) Theorem

SRQa

Liberia (1990)

Deterrence from viol. human rights

HRa commitment

Slight commitment increase

HRa compliance

Notable compliance decrease, although qualitative no causation assessed

Value decay

Input-focussed

Massive value strengthening, but no causation assessed

Outcome-focussed Great power disturbance

Disturbance decrease, but no causation assessed

Re-empowering the UNSC

Empowering, but no causation assessed

Source: Author’s own table The table states the results of the case studies in this chapter and relates those to the theorems selected and SRQs formulated in chapter 8 a The abbreviations are as follows: HR (human rights), SRQ (subsidiary research questions)

The Coerced Great Power Concert: The Impact of NATO’s UHI in Kosovo

11

The one UHI that is widely known outside the academic debate is the intervention of NATO in the Federal Republic of Yugoslavia in 1999. After a short review of the intervention itself and its political as well as humanitarian environment, I will present the statistical findings for the impact on international order. The discussion by its assessment in literature will follow thereafter, which is quantitatively and qualitatively more enriched than the one for ECOWAS’ intervention. As before, after the consideration of the impact on international order, I will lay out the statistical findings for the impact on human rights and discuss them based on the relating academic literature, before closing with the conclusion.

11.1

Case Description: Kosovo 1999

After several months of intense, yet unsuccessful, diplomatic pressure, NATO started its intervention in the FRY in order to protect civilian lives in the province of Kosovo on March 24th 1999. While humanitarian interventions were common in the 1990s, the circumstances in this case were not. NATO intervened without securing the authorisation of the Security Council. This led to unease on several sides. NATO member states had to justify their unauthorised use of force to the international public, to their peers in the UNSC, and to their domestic civil societies. The two opposing great powers, China and Russia, after a decade of cooperation with the USA, UK, France and other NATO member states, found themselves excluded from the decision-making process in matters of international order. In the case selection process, I determined the Kosovo case to be a special kind of humanitarian intervention for several reasons: it met the common humanitarian © The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2021 C. Pohlmann, Unauthorised Humanitarian Interventions in World Politics, Globale Gesellschaft und internationale Beziehungen, https://doi.org/10.1007/978-3-658-32179-6_11

197

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The Coerced Great Power Concert: …

criteria and was primarily humanitarian motivated. Additionally, it also fulfilled Wheeler’s criterion of a positive relief effect, so it had been attaining its desired goal. However, most important is the fact that it is the sole UHI conducted by a great power (actually three great powers) in the rivalling spheres of interest of great powers (namely the West and Russia).

11.2

Impact on International Order: Statistical Findings

The statistical findings will be presented in two parts. I will again start with the record in peacekeeping for the two timeframes prior to the UHI and after its beginning. Afterwards, the UNSCR record and the alteration of the resolution language will be quantified.

11.2.1 Peacekeeping Record For the peacekeeping record I take recourse once more on the study by Bellamy & Williams (2015). While the date of Bellamy & Williams state that in the 1990s 13 new UNSCR-based operations have been conducted within five years of a new conflict in those (see Table 11.1) and therewith a third of all new conflicts have been interfered in by a UN-peacekeeping mission, this amount rose in the 2000s to 42.9 percent, although the absolute number dropped to six new operations (Bellamy & Williams 2015: Appendix B). Following this argumentation, the UNSC once more raised its engagement on the ground by almost thirty percent compared to the 1990s (see Figure 11.1).

Table 11.1 Conduct ratio of UN peace operations within five years of a war (Kosovo 1999) Kosovo (1999)

Wars

UN peace operations

Conduct ratio of UN peace operations within five years of a war

Ten years prior to the UHIa

39

13

33.3 %

Ten years after the UHIa

14

6

42.9 %

Source: Bellamy & Williams (2015: Appendix B) a The abbreviation is as follows: UHI (unauthorised humanitarian intervention)

1990

1991

1992

1993

1994

1995

1996 Wars

1997

1999

2000

2001

2002

2003

UN peace operaons within five years*

1998

2004

2005

2006

2007

2008

2009

Figure 11.1 Wars and UN peace operations within 5 years after onset (Kosovo 1999). (*The peace operations have been categorised by the year of the war, not by the year of the operation. Source: Bellamy & Williams (2015: Appendix B))

0

1

2

3

4

5

6

7

8

9

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200

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The Coerced Great Power Concert: …

11.2.2 MHRVA Indices and UNSC Record The wide MHRVA index has been for 1990–1999 at an annual average of 15.18 percent, while the narrow MHRVA index has been at 8.84 percent. For the following ten years the annual average of the wide MHRVA index increased slightly to 16.67 percent, while the one of the narrow MHRVA index rose to 9.01 percent. This time, the increase between the two decades does not reach three digits as did the comparison in chapter 10. However, the wide index increased by 9.9 percent and the narrow index by 1.9 percent (see Table 11.2). Direct action by the UNSC in states violating human rights the most does improve slightly, while its consideration of those states in UNSCRs did improve notably.

Table 11.2 MHRVA indices for Kosovo (1999) MHRVAa indices Kosovo (1999), ten year averages Wide MHRVAa Narrow MHRVAa

Prior to the UHIa

After the UHIa Relative change

15.18 %

16.67 %

+10 %

8.84 %

9.01 %

+2 %

Source: Author’s own table The (wide and narrow) MHRVA indices are explained in subchapter 8.6. They measure the action frequency by UN Security Council Resolutions in states with the highest (meaning worst human rights compliance) rating of 5 in at least one of the two sources of the Political Terror Scale (Gibney et al. 2019a). For this research a ten year average has been taken for each object of study, resulting in index data for the ten year average prior to or after the UHI. a The abbreviations are as follows: MHRVA (massive human rights violations action), UHI (unauthorised humanitarian intervention)

Cockayne, Mikulaschek & Perry come to a similar assessment. They argue that the UNSC’s performance in dealing with active civil wars successively improved (see Figure 11.2), reaching a top in 2008 (one year before the end of the postUHI timeframe), as UNSCRs dealt with “40 percent of all active internal wars in the world” (Cockayne, Mikulaschek & Perry 2010: 1). Taking a closer look at their data, I quantify the total UNSC engagement in active civil wars as defined in their database with an annual average of 23.8 percent in the years of 1990– 1999 and 29.5 percent in the timespan of 2000–2009, which is an increase by 24.3 percent. With this database, it is possible to gain an understanding of the individual relation per year: In the 1990s the top was reached in 1993 with 36.0 percent and the following negative trend stopped in 1997 with 14.3 percent. In

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contrast, the 2000s saw four years under a 25 percent threshold only (2000, 2002, 2003 and 2005), yet besides the two former highest performance years 2004 and 2006 (36.8 percent each), the trend in the second half of this decade remains positive with every year above 30 percent and 2008 at the top with 40 percent (ibid.: 9). Another approach highlights the change in the UNSC in a different aspect. As for the case of Liberia, Strasheim, Haaß and Bethke show in their analysis of responsibility language in UNSCRs that the term increased in the 2000s compared to the previous ten years. However, the raise from the 90s to the 00s is less rapid then it has been from the 80s to the 90s (Strasheim, Haaß & Bethke 2017: 298–301).

11.2.3 Quantitative Analysis of the Impact on International Order (Subchapter Summary) These statistical findings show that the record of the UNSC in the ten years after 1999 is again positive; though this time in the case of peacekeeping operations on a lower scale. After a short interruption in the mid-1990s, the trend is again positive at the end of the 2000s. According to the statistics by Bellamy & Williams, UN-led missions have been established in new conflicts (within five years of onset) by almost 30 percent more frequently than in the 1990s. My own analysis showed that UNSC’s level of activity in human rights violating states—as measured by the wide MHRVA index—in the ten years after the Kosovo case is almost ten percent higher than in the 1990s, although the finding through the narrow MHRVA index show that robust action practically remained the same—though still being located on the positive side. Similar is the increasing consideration of active civil wars by UNSCRs and the progressive use of responsibility terminology in UNSCRs. So, from a mere quantitative point of view the performance of the UNSC in the 2000s is again positive compared to the 1990s—despite the UHI in Kosovo.

11.3

Impact on International Order: Assessment in Literature

While the quantitative data on the UNSC peacekeeping and resolution record for the 2000s is not as diversified as it is for the two previous decades, the qualitativeinterpretative literature certainly is. I will start again with presenting those studies

1990

1991

1992

1993

1994

1996

1997

Acve civil wars

1995

1998

1999

2000

2001

2002

2003

2004

2005

Acve civil wars that were considered by at least one UNSCR

2006

2007

2008

2009

Figure 11.2 Active civil wars & their consideration by UNSCRs per year, 1990–2009. (Source: Cockayne, Mikulaschek & Perry (2010: 9))

0

11

5

10

15

20

25

30

35

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assessing the UNSC’s general performance. Differently to the last chapter, I then go on by elaborating on the two incidents and their consideration in and around the Council chamber that have been focussed on in literature: the Kosovo intervention by NATO in 1999 and the Iraq invasion by the US-led forces in 2003. This will be followed by a study on the change of the UNSC policies of Russia and China, before I come to the normative change in the UNSC by focussing on its adaptation of the R2P (see also Subchapter 3.2) and the UNSC’s consideration of norms in general. Besides the friction in the wake of the invasion in Iraq between US, UK and the vast majority in the Council and beyond, Weiss stated in 2004 that generally the conduct of international peace and security received a “humanitarian impulse” (Weiss 2004: 51). If this impulse coincided with a strategic consideration in a conflict, international civil society could press on a robust action (ibid.). This notion is not rare, yet I want to emphasise that it has been made just one year after the major disturbance in the UNSC by the invasion in Iraq. Bellamy and Williams point out in more detail that the UNSC has become the main peacekeeping actor in the world. We sometimes see other actors as well, when the UNSC is not willing to act or unable to implement an action and then instead authorises a coalition of the willing. Yet, UN peace operations are longer and larger than others (Bellamy & Williams 2015: 31)—which might indicate that they have not only a higher input performance, but perhaps also a higher outcome performance than other peacekeeping operations. Further, almost all states willing to interfere in a crisis are seeking “the Council’s approval in one form or another” (ibid.). Similarly, it has been noted that by 2006 the Council had been adopting increasingly complex resolutions compared to the early 1990s (Cockayne, Mikulaschek & Perry 2010: 12–4). For the year 2000 (the year after Kosovo) Malone points out that the UNSC included HR language in about a third of its resolutions. The two incidents (besides Kosovo and Iraq), where the Council was visibly unable to agree on a common position, were Darfur and Myanmar in the second half of the 2000s (Weiss et al. 2017: 189; Welsh & Zaum 2013: 69). So, the general appreciation of the UNSC’s work in the 2000s is still a positive one: The UNSC is still be seen as the most important body for the maintenance of international order. The reaction of the UNSC and especially the two great powers criticising NATO’s infringement on the principle of non-intervention, Russia and China, are of central interest. Intuition would lead to the suggestion that the critical stance is solely connected to the incident in early 1999. However, Malone foresaw in the year before the events a deadlock between the great powers, which he traces back to the interferences of the US and UK in Iraq in 1998 (Malone 2006: 11f). Yet, this estimation remains singular. What argues against the notion that

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Kosovo might have been the continuation of the ‘small’ overstep of the US and UK in Iraq, is the more common observation that for both opposing great powers the event of March 24th had been a “real shock” (Stähle 2008: 646) (concerning China) and a miscalculation of NATO’s willingness to act on the side of Russia (Voeten 2001: 855f). Both great powers (especially Russia) felt marginalised by NATO’s action and willingness to use force without the UNSC’s authorisation and a P5-consensus (Bosco 2009: 210). While China remained overall passive in the conflict (Wuthnow 2013: 24), it learned that it had to participate even stronger in the UNSC and had to find a flexible approach on dealing with the ‘humanitarian impulse’ while upholding the principles of sovereignty and non-intervention in general (Stähle 2008: 646). More severe was the challenge Russia faced. Moscow felt the marginalisation; and this feeling did not remain within the Kremlin walls. Frederking cites a survey of April 1999 in which only 14 percent of the Russians stated that they were acknowledging a humanitarian motivation in NATO’s action (2007: 147). The Russian government had to react in a distinct manner. The Russian political elite (including the opposition) felt that the Kosovo intervention by NATO was a challenge for the Russian status as great power, an infringement on its sphere of interest and a threat to its national interests (Bosco 2009: 210; Frederking 2007: 144, 147; Malone 2006: 272f; Voeten 2001: 855f). There was even some concern that NATO would, in the next step, directly or indirectly interfere in the intra-Russian conflict in Chechnya (Malone 2006: 272; Mankoff 2012: 156f). Russian nerves had been stretched to the limits. The knowledge about this unusual and dangerous situation did not only rest with China and Russia. The West was cautious about balancing the line between protecting human lives and the numerous difficulties that its willingness to act produced: the (subjective) threat it posed for Russia, the problems it might raise for international law, the expectations it may produce for the public (e.g. the emergence and integration of the R2P norm afterwards), and not at last the internal costs (monetary as well as political), which NATO states had to bear (Krisch 2008: 146). Officials of NATO member states, hence, were frequently labelling the intervention as an exception; e.g. US foreign minister Albright called it a “unique situation sui generis” (Albright 1999). Keeping the threat for international law in mind, it was justified on many grounds (including complex legal arguments), but almost never a doctrine of humanitarian intervention (Chesterman 2002: 293f; Johnstone 2003: 468, 474–6). Interestingly enough, besides the great power club and within NATO itself, the intervention was accepted (Heinbecker 2004: 542). Voeten saw several reasons for this acceptance by the vast majority of states: by channelling the intervention through NATO, US power had been checked (to some degree); NATO at least based its intervention on two existing resolutions with a

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strong, condemning language; NATO sought a UNSC framework for the time after the intervention and got it with UNSCR 1244; and, NATO was willing to transfer authority to the UN (2005: 550). While besides the great powers the intervention was accepted, the West itself remained cautious on the potential fallout. Symbolic for the general acceptance was the defeat of the Russian draft resolution sought to condemn the NATO intervention by 12:3 votes (Johnstone 2003: 478); “the Security Council thereby effectively condoning the NATO action by not condemning it when invited to do so” (Heinbecker 2004: 542). UNSCR 1244 was, indeed, a relief for Russia and the UNSC in general (Johnstone 2003: 472); within Russia the resolutions after the end of NATO’s intervention “were heralded […] as a sign that Russia still mattered” (Voeten 2001: 855). The Kosovo intervention was not an encapsulated event without any impact after its end and the adoption of UNSCR 1244. On the contrary, its international impact is far more complex than can be seen at first sight. What seems to be clear is that it was most difficult not only for NATO, but especially for Russia. The Russian government had to figure out if NATO’s action was a threat for its own national interests, and how to draw a red line to NATO without escalating the friction, while at the same time reassuring its own political elite and public— while grieving for the former global status—that Russia still mattered (Bosco 2009: 210; Frederking 2007: 33). It was also not a total success by the West to order international society in a way that would enshrine the supremacy of the protection of human life above the principles of sovereignty and non-intervention, which the upcoming advocates for R2P sought for. To achieve this, it would have been necessary for NATO to reason with a doctrine of humanitarian intervention. Yet, had NATO member states argued with a doctrine of humanitarian intervention, the opposition would have been far greater; perhaps even too great. NATO, instead, used the “outside option” (Krisch 2008: 145) in order to nourish the nucleus of another humanitarian impulse on the UNSC agenda towards more progressive Western ideas. Having achieved this, NATO was fine with the toleration of its intervention; a further direct, more undiplomatic norm entrepreneurship was not necessary at this time. This circumstance has in the direct consequence led many in the academic community (outside the diplomatic sphere) to the erroneous belief that a doctrine of humanitarian intervention was emerging or even had already emerged; it took six more years until a significant step towards this goal had been taken by the UNGA’s adoption of R2P, while adapting it. Paradoxically, besides some improvement, the Kosovo intervention might even have resulted in the strengthening of the status quo: reforming a pluralist international society into a more solidarist one, without endangering it by a revolutionist

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drive. As said, it was not a complete success: The West tested its internal and external limits with the Kosovo intervention. It learnt that a further test could jeopardise the cooperation established in the 1990s; Russia was unnerved by its fear of marginalisation and focussed on the maintenance of the existing order in the UN framework (although with means of classical Realpolitik); China was ascertained to play a more active and responsible role in maintaining the status quo of multilateralism based on the principles of non-intervention and sovereignty. For the UN and international society, the Kosovo case certainly was a challenge, but an affirmative one. The desire for a second challenge was reduced at least for four years and besides R2P found its spot on the international agenda, UNSC’s sole authority on the use of force had been strengthened (Johnstone 2003: 477f). The new challenge came with Iraq. Interestingly, Frederking argues that the Kosovo intervention had an influence on the decision of the US and UK to calculate the outside option distinctively, if the UNSC should be unwilling to agree with their more resolute Iraq agenda (2007: 149); an assessment that has some value to it. Although the US and UK focussed on a fresh UNSC approval for an intervention in Iraq (Thompson 2009: 2), the costs for this approval have seemed to be higher than the costs of the outside option in the end (Malone 2006: 210f; Thompson 2009: 205). As shown above in subchapter 7.9, UNSCR 678 authorised under defined conditions the use of force without time limit, thus from a legal point of view the US/UK legal reasoning had some substance to it (Roberts 2004: 140). Following this argumentation, they could have perhaps conducted their invasion legally without a fresh authorisation. Yet, as the USA and UK witnessed afterwards, the political costs were significant, thus the preference for a UNSC’s approval in 2003 might have been more a political decision than a legal necessity. Drawing on an implication I will elaborate on later in subchapter 14.2, I argue that UNSCR 678 in 2003 was a case of legality without legitimacy, leading to the decay of its normative power. This political cost as materialised in the world’s majority opposition to their action had been “a surprising relief” (Malone 2004b: 644) from a multilateralist point of view. Although some states might have an outside option, which means the financial and military capability to take recourse on the use of force without the UNSC, this outside option is not always the most effective way—perhaps even quite rarely so. What was working in Kosovo, did not work in Iraq; the interveners bore more costs than they calculated. Many feared that this incident and the much criticised overstep in Iraq would lead once more to a deadlock in the UNSC; the Iraq being the milestone of the ‘new Council’ as well as its gravestone. However, as seen in the last subchapter, the Iraq incident in 2003 was—besides all the intense public attention and critique

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it attracted—a mere hiccup in the UNSC’s work in the 2000s. The UNSC quickly gained back its original agenda of maintaining peace and established even more complex missions including the UN Assistance Mission for Iraq by UNSCR 1500 in the same year (Berdal 2008: 201f). Coming to the Russian UNSC policy in the 1990s and 2000s: In my perception of the Russian-West cold conflict in the last two decades, the two biggest mistakes made by the West in a singular moment are connected to speeches by the two former US Presidents Bush and Obama. The first made by President George. W. Bush in 2008 in a way of diplomatic flattery, offering Georgia NATO membership (Spetalnick 2008), the second by President Barack H. Obama, disdaining Russia without any necessity on the Group of Seven (G7) summit of 2014 and calling the fellow great power a “regional power” (Obama 2014). For the 2000s, Wohlforth called Russia (together with China) a “second-tier great power” (2009: 54), only a few degrees more ‘respectful’ is Tsygankow arguing that Russia “is interested in becoming a normal great power” (2005: 153). The findings are correct, but one should not mention this in the streets of Moscow. Russia still mourns for the status as the US equal rival in the Cold War; the wish to be re-acknowledged as this former ‘first-tier great power’ is embedded in Russian identity since the 1990s and can best be seen by President Putin (regularly) repeating the phrase that the breakup of the Soviet Union was “the greatest geopolitical catastrophe of the century”1 (Putin 2005). Although, the rationalist way to interpret international politics is usually a good starting point, this time social identity theory can give some insights to this Russian foreign policy imperative: to maintain (Russian perspective) or better to regain (Western perspective) its full great power status (Larson & Shevchenko 2010: 66). Russia’s policy in the UNSC is led by its desire to maintain its current power and regain its former power (Voeten 2001: 847). It understands and realises that besides of its large nuclear abilities and its external perception as an aggressive power willing to use force outside of the accepted ways, it is no longer the great power the Soviet Union has been. In this perspective, realising as part of the “elite pact” (ibid. 2005) of the P5 that the concert of the great powers can change the politics of the world, if they corporate together, Russia is determined to keep its P5 position and at the same time to preserve the P5 and the UNSC in their current status quo (Mankoff 2012: 20f). Attempts by the West to play outside of the UNSC and great power concert are answered with strong retaliation. When Bush offered NATO membership to Georgia and the West accepted Kosovo’s independence, the Russian answer has 1 In

the original: “kpypnexe geopolitiqecko katactpofo veka”.

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been the intervention in the intra-Georgian conflict in South Ossetia and Abkhazia, which escalated due to the Georgian President Saakashvili recklessly taking action (Mankoff 2012: 238; Wishnick 2009: 38). The same goes for Kosovo, which “unravelled a significant mismatch between this [Russian] self-concept on the one hand and the real course of events” (Heller 2014: 341). The same could have developed in the Iraq case. Yet, while Russia lost the actual contest of preventing the US/UK-led invasion in this case, it remained on the majority side concerning the moral and political appreciation of this event (Mankoff 2012: 107f): the US/UK-position has been regarded as illegitimate, while the side Russia belonged to was deemed legitimate. This ‘success’ of Russian politics in the Iraq case, might have led to a less drastic reaction than Russia would have conducted otherwise. Dealing with Russia successfully means paying (at least in public) Russia the respect it seeks for. As long as this is denied, might it be by a humanitarian intervention or a neo-conservative invasion, Russia feels challenged and the necessity to react. The bottom line is that Kosovo’s impact on the Russian-Western relation is a ‘mildly negative’ one only. Its conduct by NATO and the—again—cooperative approach after the end of the UHI, cannot sufficiently explain the severe stress in the relation has nowadays. If one needs another proof, one may take a look on President Putin’s speech in the German Bundestag more than two years later. It was anything but a speech of anger about the Kosovo intervention (Putin 2001). The impact the UHI in Kosovo had on Russia may seem as the beginning of a trend of the deteriorating relations between the Eastern great power and its Western counter parts; yet, in my view the trend is not matched with a causal necessity. For China, the picture that can explain its change resp. raise in the 2000s as well as its altered position in the UNSC is one of a focussed and calm ‘secondtier’ great power, not driven by short-term realpolitikal advantage. Instead, China was interested in a long-term ascent to power; becoming a ‘first-tier’ great power next to the USA and next to a perhaps evolving and deeper integrating European Union. Its foreign policy is trimmed to this goal: establishing the perception of China becoming a responsible (great) power among the states of the world. China understood that the current UN multilateralism, the status quo of the 1990s served this interest best. It sought to balance especially the USA in order to maintain the system of collective security with the UNSC at its centre. Since Kosovo, it limited the rationale for the use of the ‘outside option’ by Western states, when those had been willing to enforce human rights with all necessary means (Deng & Moore 2004: 126 & 134; He 2007: 13f; Stähle 2008: 653f; Wuthnow 2013: 133f). To achieve this goal, China had to balance two perceptions of international society:

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the pluralist one that it had internalised through the decades of the Cold War, and the solidarist one that made it necessary to deal more flexibly with the demand for peacekeeping and the maintenance of human rights. Moreover, being the sole socialist country after the end of the Cold War, China soon saw the status quo in the multilateralism of the UN system as a balancing framework against the progressive-optimistic attempt by the US and the West to reorder international society to democratic ideals—foremost the maintenance of the most basic human rights, even when the principle of sovereignty could erode collaterally (He 2007: 50f; Legro 2005: 173f; Zhongying 2005: 90). It is an ironic circumstance that in the progressive times of the 1990s, the legal framework of the UN, with the strong legitimacy of the principles of sovereignty and nonintervention, was foremost defended by China. It maintained those principles. Besides becoming more flexible with peace operations, it e.g. upheld until the 2000s the peacekeeping principle of consensus with the target state. Yet still, China reacted with a containment strategy when it considered a development as pushing the limits too far. The emerging norm of R2P has been such a push, which China contested to some point, as can be seen in the case of Darfur (Contessi 2010: 340; Gill & Huang 2013: 155; He 2007: 70; Stähle 2008: 655; Wuthnow 2013: 30). At the same time, some flexibility was necessary to reduce setbacks on the way to becoming the responsible great power (Hirono & Lanteigne 2011: 244; Zhongying 2005: 97 & 101f). NATO tested the practicability of the ‘outside option’ successfully with the Kosovo intervention. If China had wanted to preserve its path, it had to strengthen and maintain the work within the UNSC, which meant it had to get familiar with accepting and even contributing to peacekeeping operations. When China learns, it is often faster than democracies are. Under this assumption, Stähle explains why the new Chinese UNSC policy appeared in the same year of NATO’s intervention in Kosovo, with the INTERFET mission in East Timor (2008: 647). The Chinese policy on peacekeeping operations had been fundamentally changed at the end of the decade. Had it foremost tried to remain critical and neutral in the 1990s, it was not only accepting it in the 2000s (Gill & Huang 2013: 142; He 2007: 69; Hirono & Lanteigne 2011: 243f & 250; Stähle 2008: 631f & 653f), but also became the largest contributor of all five great powers (Hirono & Lanteigne 2011: 243). There are further, complementing explanations for this change: Hirono & Lanteigne mention the benefit of training for the Chinese military and police personnel (2011: 243) and Gill & Huang are pointing out that even a norm internalisation on the R2P might have occurred (2013: 142–4). However, it seems most likely that the change originated in the Chinese wish to keep the

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‘elite pact’ in the UNSC, and, therewith, its own power perspective, alive. This rationale explains how China reacted as flexibly as it did on the demands for the maintenance of peace and human rights in most parts of the world. The second aspect can be observed when China acknowledges the perceptions of the regions and neighbouring states where an operation is planned, as e.g. for the African states in the case of Darfur (Gill & Huang 2013: 155). The most striking change on the normative level of the UNSC has been its integration of the R2P. It is striking because just six years before its adaptation by the UNGA, states engaged in a de facto humanitarian intervention were reluctant and concerned using the normative base of the later R2P as justification for their actions. Six years in which the UNSC could have been deadlocked either by NATO’s use of the ‘outside option’ in Kosovo or the US/UK-attempt to get away unchallenged with a unilateral invasion in Iraq, though, neither had the ability to hinder the emergence of this new norm. As Weiss et al. (2017: 117) observed: “With the possible exception of the prevention of genocide after World War II, no idea has moved faster or further in the international normative arena than the responsibility to protect.” Besides Darfur being a setback with a norm contestation by China, and the difficulty convincing China to a commonly used R2P language (Bellamy & Williams 2015: 156; Gifkins 2016: 155), UNSC sanctioned use of force in order to stop or prevent massive humanitarian emergencies is now widely accepted (Welsh & Zaum 2013: 85). Gifkins has scrutinised this R2P norm implementation and argues that after its altered adoption it has been contested in 2006 (as just mentioned), followed by an integration phase containing a few and difficult to reach R2P references in UNSC work from 2007 to 2010. However, afterwards (although behind our timeframe for the Kosovo case) R2P language became standardised. Nowadays, R2P language is so familiar and agreed on that its integration in resolution texts takes a small amount of time in contrast to the effort it took shortly after its adaptation (Gifkins 2016: 149–51). This specific finding regarding R2P is a pattern that can be found in the more general work of the Council in the last two decades as well: The UNSC—not only in context of R2P—has become a ‘norm sensitive body’, which is shaped by discussions with normative references, providing “new possibilities for norm entrepreneurs” (True-Frost 2007: 195) and is “relying on a normative” (Niemann 2019: 4) resp. “normative and procedural framework” (Johnstone 2003: 464). Based on the study of the academic debate on the UNSC in the 2000s and the elaboration of the UNSC in the 1990s of the previous chapter, I argue that the impact of Kosovo on the UNSC has been mild. It led to an immediate harsh reaction on the Russian side that has on-going repercussions, which is quite surely

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the most negative of its impacts. Yet, considering the Chinese reaction, it becomes clear that the UNSC is much more stable than commonly anticipated. Concerning its main external responsibility, the UNSC has been preserving its position as the most important peacekeeping actor in international society. Its operations were longer and larger than other operations. So, besides the fact that decision-making is sometimes more difficult in the UNSC than in regional bodies, it is still the big player in peacekeeping business. That it is quite resistant to challenges, cannot be seen in the Kosovo case alone, but in context of the Iraq war as well. Again, in Iraq the international publicity focussed on the friction in the ‘elite pact’, yet the ability to act remained unchanged. At the end of the first millennial decade the UNSC even has begun to integrate the R2P norm in its processes.

11.4

Impact on Human Rights: Statistical Findings

Now I will consider the statistical data on HRCm and HRCp of those states regionally connected to the Kosovo intervention: the states of the former Socialist Federal Republic of Yugoslavia (Bosnia-Herzegovina, Croatia, [North] Macedonia, Slovenia, the Federal Republic of Yugoslavia resp. Serbia, and the later Montenegro) as well as Albania. The HR4 in the world between 1990 and 1999 had been 49.6 percent (6.442 treaties ratified at annual average per state to 13 international treaties existing at annual average). For the Balkan states the HR4 at the same time had been at 66.9 percent (8.695 treaties ratified at annual average per state in the region). The regional average HR4 had been as result 135.0 percent of the world average. In the time period of 2000 to 2009 this value almost remained the same (see Table 11.3) with a regional average HR4 compared to the world average HR4 of 134.6 percent. 13.679 treaties had been ratified at average per year and state, while the world average had been 10.163 treaties ratified and 19.1 treaties existing in average per year. This is a marginal decrease in the HR4, and therewith HRCm. However, several exceptional factors must be considered for the HRCm change on the Balkans, which make an interpretation more difficult: firstly, we are dealing with new states that separated from the former SFRY. For example, the average HR4 in 1990 (5) is based on two states only (Albania 2 and SFRY 8), while the average HR4 in 2009 (16.43) is based on seven states. Secondly, in two cases we have a ratification gap directly after the international recognition of a state. Bosnia-Herzegovina is listed since May 22nd 1992, but was able to ratify a single treaty in 1992 only (the Genocide Convention). The same appears for North Macedonia, which is listed since April 8th 1993 but ratified the CRC

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Table 11.3 Unadjusted HR4 index for Kosovo 1999 Indicial change prior to and after the UHIa Prior to the

UHIa

Human rights regime ratification ratios (HR4) for Kosovo (1999), ten year averages, unadjustedc Regionb

Worldb

8.695

6.442

135.0 %

Relation region to world

After the UHIa

13.679

10.163

134.6 %

Relative change

+57 %

+58 %

−0.3 %

Source: Author’s own table The HR4 index is explained in subchapter 8.6. It measures the human rights ratification ratio (human right commitment) of an object of study. For this research a ten year average has been taken for each object, resulting in index data for the ten year average prior to or after the UHI a The abbreviation is as follows: UHI (unauthorised humanitarian intervention) b The data of the ‘world’ contains all data available for states of the world in the particular year. The definition of ‘region’ is given in subchapter 8.4; in short, a region is defined as member states of a regional community involved in the current case or the states neighbouring the intervener c Unadjusted in this case means that methodological discrepancies (esp. the circumstance that the region to be scrutinised experienced a state disintegration) are not adjusted. For the adjusted version see Table 11.4

in this first year only. FRY, however, is listed since November 1st 2000 (until February 4th 2003), yet without any ratification in 2000, while twelve treaties are listed in the UN treaty database for the year 2001. Furthermore, a gap exists for the legal succession of the SFRY in the dataset for the years 1992 to 1999. Under these circumstances, it is advisable to adjust the data and erase the ones for Bosnia-Herzegovina in 1992, North Macedonia in 1993 and for the FRY in 2000. However, this leads to almost the same results compared to the unadjusted results (see Table 11.4): 139.6 percent HR4 prior to the UHI compared to the world to 136.3 percent after the UHI. It can be said that the HR4 on the Balkans kept on developing as fast as it did in the world at large. Coming to the HR compliance: For those states in the Balkan the regional acPTS has been 137.6 percent higher than the average in the world for the timeframe 1990 to 1999 (see Table 11.4). Here the average acPTS is 3.4009, while the world’s acPTS is 2.4721. Contrary to ECOWAS member states, the acPTS relation decreases in the timeframe 2000 to 2009 to a yearly average of 86.9 percent in relation to all states, based on acPTS in the Balkan of 2.1946 and the world’s acPTS of 2.5252. This time the decrease of 36.8 percent is substantial.

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Table 11.4 HR4 and acPTS indices for Kosovo (1999) Indicial Kosovo (1999), ten year averages change prior Human rights regime ratification to and after ratio (HR4), adjustedc the UHIa Regionb Worldb Relation region to world Prior to the UHIa

Average combined Political Terror Scale (acPTS) Regionb

Worldb

Relation region to world

8.998

6.447

139.6 %

3.401

2.472

137.6 %

After the UHIa

13.859

10.168

136.3 %

2.195

2.525

86.9 %

Relative change

+54 %

+58 %

−2.36 %

−35 %

+2.14 %

−36.8 %

Source: Author’s own table The HR4 and acPTS indices are explained in subchapter 8.6. The HR4 index measures the human rights ratification ratio (human right commitment) of an object of study. The acPTS index states the average combined Political Terror Scale (human rights compliance) of an object of study. For this research a ten year average has been taken for each object, resulting in index data for the ten year average prior to or after the UHI a The abbreviation is as follows: UHI (unauthorised humanitarian intervention) b The data of the ‘world’ contains all data available for states of the world in the particular year. The definition of ‘region’ is given in subchapter 8.4; in short, a region is defined as member states of a regional community involved in the current case or the states neighbouring the intervener c Adjusted in this case means that methodological discrepancies (esp. the circumstance that the region to be scrutinised experienced a state disintegration) have been adjusted. For the unadjusted version see Table 11.3

Due to the necessary, careful treatment of the HR4 results, I focus on the acPTS score in order to select states for a more detailed qualitative study. The most significant drop in acPTS appeared in Croatia. Being on an average of 3.625 for the years 1990 to 1999, it dropped to an average of 1.6 for the following ten years. The highest increase witnessed North Macedonia having an average of 1.75 in the 1990s and raising to one of 2.4 in the 2000s. While Croatia had a normal HR4 change ratio (90s to 00s), the one for North Macedonia is the lowest. Having erased the data for the year of independence in 1993, the change of HR4 in North Macedonia saw an increase of merely 122.6 percent. Human rights commitment (compared to the world average) in the seven Balkan states almost remained the same for the 2000s compared to 1999s: 139.6 percent HR4 at average in the first ten years to 136.3 percent in the next

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ten years. Without the adjustments in the data, the HR4 results even see a slight increase: from 133.0 percent to 133.9 percent. In contrast to this, the human rights compliance substantially improved, as can be seen by the clear decrease in the acPTS from 3.4009 to 2.1946 that is not only a decrease in the region itself by 35.5 percent, but also when levelling to the world’s average a decrease by slightly above 36.8 percent. The states identified for a closer examination of these findings are Croatia and North Macedonia.

11.5

Impact on Human Rights: Assessment in Literature

The main explanation for the Croatian improvement in human rights derived from literature is its willingness to become a member of the EU and to implement the necessary conditions laid out by the Copenhagen criteria. Looking at the internal dynamics, two phases must be distinguished in Croatia: in the 1990s the policy towards European integration was already existing, yet, substantial progress was limited. The HDZ government made some progress towards the proclaimed goal: joining the Council of Europe (CoE) in 1996, establishing a European integration ministry in 1998 and developing an Action Plan in 1999, which made EU membership a strategic priority. Yet, the main progress within Croatia began with the change of government in 2000. The conditions for the start of the negotiations on a Stabilisation and Association Agreement (SAA) improved and the CoE ended its mission in Croatia with a positive report. In late 2002 Croatia and the EU signed the SAA (Bartlett 2003: 74 & 83f; Zakošek & Marši´c 2010: 828f). The development on side of the EU shed some light on this increased second phase of Croatian willingness to enter the EU. After the end of the Kosovo war, the EU increased its focus on the former SFRY states and offered the prospect of the SAAs instead of the former cooperation regime. This SAA increased the Croatian prospect of EU membership, and the pull towards a stronger HR commitment (Bartlett 2003: 75f; Zanotti 2008: 235). The European influence on the improvement of human rights in Croatia, in sum, determined Croatia’s human rights policy. A second explanation for the change in the Croatian human rights politics is given by Subotic. From identity theory-based perspective, she argues that the wish to be seen as tolerant and democratic, hence, committing to the HR regime and complying, is also based on Croatian identity politics. The Croatian political elite attempted to create a distinguished Croatian identity by contrasting it with a derogatory view of the Balkans. According to this, Croatia had a European tradition and was not part of the Balkan. In the field of human rights this means that Croatia is modern and progressive, while the previous “[m]ass atrocity and

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war crimes were the purview of the uncivilized, the barbaric, the non-European ‘Balkans’” (Suboti´c 2013: 322). To study the human rights progress resp. its remaining low level in North Macedonia is more difficult as it has been for Croatia. Koinova, on whose findings I draw for this study, explains this missing evaluation of the North-Macedonian case, with the general research focus on the democratisation process in Eastern Europe; North Macedonia missing democratic process in many fields means that research is focussing on state-building and conflict management rather than the reasons for its low internal democratisation and liberalisation (Koinova 2011: 807). Besides the lack of diversity in literature concerning the HR development in North Macedonia, the explanations given by Koinova match many of the assumptions in HR theory, which will be discussed in chapter 13. The pattern that is most convincing for the low HR progress in North Macedonia is its focus on internal stability rather than internal democratisation and advancing to a more liberal civil society. Koinova explains that the North-Macedonian political elite focussed on stability rather than the ‘costly’ integration of human rights, as the EU was focussing on security issues—especially since North Macedonia experienced the instability that arose from the Kosovo conflict—rather than adding actual pressure to its rhetorical demand for more progress in democratisation and civil liberties. North Macedonia was quite open to increase its commitment to human rights, yet did not add a significant compliance to it (ibid.: 808–14 & 827f). This deflection of external pressure to human rights on commitment alone without delivering compliance is a pattern consistent with HR theory and supports the finding in North Macedonia’s HR4 and acPTS. A stronger pull to HR commitment arose when EU and NATO offered membership in reaction to the internal conflict of 2001 (ibid.: 817f), which then led to “major institutional changes and socialisation with liberal values” (ibid.: 822). This explains the rise in HR treaties ratified from twelve in 2002 to 15 in 2005 as well as the decrease in the PTS rating from a combined rating of 4 in 2001, to one of 2 to 2.5 in 2003 onwards. After reviewing the cases of Croatia and North Macedonia, an indirect impact of the UHI in Kosovo on the HR compliance and commitment cannot be seen. Both improvements are, moreover, connected with the EU (and NATO) membership and the resulting necessity for an improvement in human rights. In North Macedonia, however, a direct impact of the Kosovo conflict has been mentioned in subchapter 7.15. This can be explained by classical regional instabilities that arose with the neighbouring Kosovo conflict, rather than the complex theorem of UHIs’ impact on human rights.

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Using the Outside Option, Once-in-a-Lifetime: UHI by NATO (Chapter Summary)

For the UHI in Kosovo the findings and assessment in literature lead to the conclusion that there was a ‘mildly negative’ impact of this UHI on international order in the particular case of the Russian-Western relations, yet a much more positive one for the establishment of a responsibility norm and, hence, the maintenance and enforcement of human rights in international society. The harsh negative assumptions of a value decay and a great power disturbance could not be proven; as said with the slight partial exception regarding disturbance just mentioned. On the contrary the solidarist theorem of a re-empowerment of the UNSC has found support. I argue that this can be especially seen by China’s policy change towards a more human right friendly UNSC policy. My conclusion for Kosovo 1999 is based on several findings. Firstly, the peacekeeping record in the 2000s further improved compared to the (already progressive) situation in the 1990s. By every perspective on this record (the sheer number in relation to conflicts, the increasing complex quality, as well as both the wide and the narrow MHRVA indices) a positive trend can be identified. Secondly, the great power cooperation appears to be stable comparing both timeframes, thus (contrary to many assumptions) Kosovo had no severe enduring disturbing effect. This is especially valid for the Western great powers and China. Russia, however, felt challenged regarding its status as great power. This is a negative finding that, indeed, can be traced back to the NATO intervention. However, the deterioration of the Russian-Western relationship is originating in Kosovo to a minor proportion only and was also not inevitable. The vast majority of this development came to a significant part in the latter years, by the Iraq invasion and several irritating actions of Western government from a Russian perspective. Thirdly, while I assess that the Kosovo intervention had only a mildly negative impact on this particular aspect of international order, I argue that it had a positive impact on human rights in general. The Kosovo intervention demonstrated China and Russia that Western states were willing to use the ‘outside option’. It is in this perspective a strong indication for the re-empowering theorem of chapter 5 (see Table 11.5). Finally, the consequence of this finding is that the UNSC and therewith international order have become more norm sensitive, as can be seen in the integration of R2P in the politics of the UNSC. Concerning the impact on human rights, I argue once more that the UHI of Kosovo had no direct impact on the region. The positive findings in the region regarding commitment and compliance had more to do with the prospect of EU membership for the states neighbouring the FRY, than with the UHI in Kosovo. This process was shown for Croatia and more limited for North Macedonia as

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Table 11.5 Results of the case study for Kosovo (1999) Theorem

SRQa

Kosovo (1999)

Deterrence from viol. human rights

HRa commitment

Slight commitment decrease

HRa compliance

Substantial compliance increase, although qualitative no causation assessed

Value decay

Input-focussed

Notable value strengthening, causation estimated (re-empowerment of the UNSC)

Outcome-focussed Great power disturbance

Slight disturbance increase assessed, but limited UHIa causation estimated only: partial (Russia-West) mild disturbance

Re-empowering the UNSC

Empowering assessed and causation estimated

Source: Author’s own table The table states the results of the case studies in this chapter and relates those to the theorems selected and SRQs formulated in chapter 8 a The abbreviations are as follows: HR (human rights), SRQ (subsidiary research questions), UHI (unauthorised humanitarian intervention)

well. Although the UHI had no direct impact, it had an indirect influence as just mentioned: The re-empowerment of the UNSC affects international order and led to strengthened human rights as well. The use of the ‘outside option’ by NATO did not improve human rights outside of Kosovo in the short run but did so indeed in the perspective of the last twenty years.

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The purpose of this chapter is to compare the assessments made in the previous case studies for the impact of UHIs on international order, identify common patterns and explain these. I will start with the comparison. The following explanatory part is divided in four sections. First, in order to understand how the UNSC and the concert of great powers are conditioning and limiting the impacts of UHIs, I will describe their functions in two subsequent subchapters. Afterwards, I will exemplify how the UNSC and the practices within it are conditioning action and non-action in the two current conflicts frequently discussed in the HI and R2P debates: Libya and Syria. This will be followed by an analysis on the impact of UHIs on regional communities. At the end of this chapter, I will summarise the elaborations and review the assumptions made about the impact of UHI’s on international order.

12.1

Comparing the Impact of UHIs on International and Regional Order

The analyses of the impact of six different unauthorised humanitarian interventions on international order in the previous three chapters have shown that for the most part this type of intervention does not lead to an eroding impact on global international order. The sole part that I have assessed partial different is the Russian-Western relationship after the UHI in Kosovo—an important part for the functioning of a stable international order, however. Yet, eroding impacts in the cases of East Pakistan, Lebanon, Cambodia, Uganda or Liberia could not be found. My explanation is that those five UHIs were too small and too exceptional: without the active involvement of a great power they were not disturbing great © The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2021 C. Pohlmann, Unauthorised Humanitarian Interventions in World Politics, Globale Gesellschaft und internationale Beziehungen, https://doi.org/10.1007/978-3-658-32179-6_12

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power politics. On the contrary, the findings have shown some parallelism with a positive development of international order, but assessing a probable causation, I argue that there is none. This is most obvious for the intervention in Liberia, which is coinciding with the most positive and progressive development in international society in the 1990s; yet, this positive development is not originating in ECOWAS’ action. Reviewing the selected theorems, I conclude that the two pluralist leaning ones (value decay and great power disturbance) have not found any overwhelmingly supporting substance in the case studies. This conclusion cannot be refuted by the single instance of Kosovo’s impact on the Russian-Western relations. On the contrary, I argue that this particular case even seconds the solidarist view that a UHI can be conducted without leading to an unavoidable great power disturbance. Of course, as seen in subchapter 11.3, NATO’s trespassing caused a stark reaction by Russia. However, this did not hinder the following progress for human rights norms made in international society. I have shown that the detailed course of action in NATO’s intervention and its behaviour after the victory against the FRY have reduced the negative impact to (perhaps) the lowest level possible of an UHI conducted by a great power in the colliding sphere of interest of a fellow great power. This great power relationship did not have to develop just because of the UHI in Kosovo as it did. There were several following turning points in this relationship (Iraq, Georgia, Libya, Ukraine etc.) that led to the disturbance we can witness nowadays. The focussed view on Kosovo shows that a conduct of the UHI does not necessarily lead to a great power disturbance or a value decay. What is necessary for the former is an unwillingness of both sides to seek for compromise, to maintain great power balance, and to respect each other’s spheres of influence. De facto, Kosovo is in my view an example for an UHI under great power participation that is illegal, but conducted in such a way to be clearly regarded by the vast majority of the international society as legitim. Such illegal, yet, legitim UHIs can at most result in a ‘mildly negative’ impact, which is of a rather short timely duration. Beyond the great power level this assessment holds even more truth: The remaining five cases show that without the participation of a great power and the infringement on the sphere of interest of a fellow great power, no value decay or great power disturbance can emerge. Besides the ‘mildly negative’ impact, Kosovo seemed to have a striking positive impact as it supports the re-empowerment theorem. Interestingly, this can be seen in the second great power relationship: the Chinese-Western one. The willingness of NATO states to act in an unprecedented way outside of the normal structures and procedures so much valued and practiced throughout the 1990s,

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forced China to reposition itself. China saw its own interests best preserved in the current multilateral framework, especially with a functioning and respected United Nations Security Council. A disturbance of this framework was not in its interest. China had to acknowledge Western wishes for a stronger protection of human rights within the UNSC. This is indeed a positive impact that the Kosovo intervention had on international order and especially human rights. It led to the adoption of the R2P as norm, although it had been adapted, by the world summit in 2005 as I have argued earlier while reviewing the HI and R2P debate in subchapter 3.2. The UHI of 1999 helped to reorder international society to a re-empowered humanitarian international society, which was more of a solidarist conception than before. Although, I theorised about such a re-empowerment on the level of the UNSC, I find some comparable developments in the case of Liberia (1990), also. Again, a major power in this regional community, was determined to act outside of the existing norms. This power has been Nigeria. As shown in subchapter 10.3, ECOWAS had undergone a fundamental change in the aftermath of this UHI. The intervention of ECOWAS in Liberia was set up basically ad hoc without standing structures and procedures. Yet, although ECOWAS had no legal base prior to its intervention, it created exactly this for upcoming and comparable events. It had not witnessed a successful contestation of the norm leading to this action, but rather implemented it. Although, the impact of the UHI in Liberia has been sub-global, it is an important finding that I will elaborate in more detail in subchapter 12.5. This sub-global re-empowerment impact could not have happened in the same way in the other five cases. The Cold War UHIs were mostly conducted outside the context of a regional community, and in the Kosovo case a military alliance intervened in a non-member state. The only UHI that had the same context as Liberia is Lebanon ‘76. Yet, a norm development has been missing here. Most likely, since this region has been and still is not only confronted by conflicts of a regional level, but one of the most enduring international conflicts since the end of the last world war. Therefore, based on my study I argue that neither UHIs by non-great powers in other non-great powers as seen in the Cold War nor the UHI in Liberia had resulted in the dystopian scenario pluralism has sometimes painted. The same is mostly valid for NATO’s intervention, although this had a temporary impact on the Russian-Western relations. Yet, I argue that this UHI had not been the nucleus for the problematic relationship in our current days. Although I do not discard the pluralist scenario altogether, convinced by the facts seen and drawing upon the assessments made, I second the solidarist belief that even for great powers the

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conduct of an UHI without an eroding impact on international order is possible. Further and contrary to the pluralist fear, the UHI of 1999 had a surprising positive impact in a distinguished part of order. An impact that is not acknowledged in the humanitarian intervention debate until now: The intervention in Kosovo was the use of the outside option by NATO that coerced foremost China to appreciate the will of Western states to include humanitarian norms in a future international order. Finally, regarding the order in regional communities, ECOWAS’ intervention of 1990 showed a (positive) impact, as it led to a progressive norm implementation and codification within ECOWAS itself. The bottom line is, that UHIs do not automatically lead to eroding impact on international order, when conducted within the boundaries of legitimacy.

12.2

The Legitimate Body: UNSC and International Security

In literature, two notions of the central body of international society for the maintenance of order, the UN Security Council, exists. The first view (leaning towards institutionalism) conceptualises the UNSC as the legitimate body of the society of states for matters of security, while the latter (leaning towards realism) views it as an instrument of the great powers; the formal version of the informal concert of great powers (Cronin & Hurd 2008: 5). I want to elaborate this first notion in this subchapter, before doing so with the latter in the next one, and explain how this perspective of the UNSC can be useful to understand why UHIs of the past had no severe influence on this secondary institution of international society resp. international order and in the case of Kosovo even a progressive, humanitarian norms integrating impulse. Luck wrote in 2006 that “few institutions have generated so much commentary yet so little systematic analysis” (Luck 2006: xv) criticising the lack of research on the UNSC; a critique that I share not completely, after having reviewed the studies available more than ten years later. Yet, I take this critique as advice to conceptualise the function of the UNSC in a structured manner. For the notion of the UNSC as legitimate body it is possible to approach on three paths to this understanding: legitimacy by political practice, legitimacy through performance, and legitimacy via deliberative action.

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12.2.1 Legitimacy by Political Practice The validity of the claim that the UNSC is the legitimate body of international society to authorise the use of force, is best seen in challenging times, e.g. when the most powerful actor is still seeking its approval besides having the ability to act without it. Such evidence has been the US attempt to gain UNSC approval for its invasion in Iraq in 2003. In the most important episode of foreign politics of the Bush administration, it tried to acquire the authorisation of the Council. The same can be said likewise for the Europeans and the Kosovo intervention (Roberts 2004: 150; Thompson 2006: 2; Thompson 2009: 205; Voeten 2005: 533). Great powers are seeking its approval regularly before conducting interventions. They are so determined that they accept “costs of constraint” (Thompson 2006: 11) by acquiring UNSC’s approval. Such costs are time delay, political costs, and financial costs, to name just some of them. They are doing so, since they are benefiting from the ‘legitimacy certificate’ given by the Council. Such an authorisation means not only that they can publicly claim to have a just cause, it also means that they are able to convince other states more easily to follow their lead. For several states (e.g. Australia, Canada, Germany, India and Japan) the approval is even necessary by domestic conventions or legal requirements in order to participate in a multilateral intervention. However, the same is valid the other way around: the UNSC can be an instrument for action for such middle powers, which they are not able to perform themselves. Thompson calls this the “force multiplier” (2009: 208f) function. Even when it is not a necessity of convention or legality, the approval is a powerful tool to coerce other states to participate or at least accept an action. Moreover, targeted states are more willing to cooperate with demands (Chapman & Reiter 2004; Krisch 2008: 143–6; Lowe et al. 2008: 29; Malone 2004b: 617; Thompson 2006: 2 & 9; Voeten 2001: 848; ibid. 2005: 528 & 532; Welsh & Zaum 2013: 66 & 70f). This argument is also seconded by the increasing amount of considerations made in and resolutions passed by the UNSC. The UNSC of the Cold War is not the UNSC of our times. States are much more willing to present their foreign policy issues to the Council. They would not do so, if the UNSC had no or significantly less legitimacy (Lowe et al. 2008: 26). A third aspect of political practice maintaining UNSC’s legitimacy can be seen in the effort that non-great powers undertake in becoming a two-year club member (Bosco 2009: 6f).

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12.2.2 Legitimacy by Performance Three variations of legitimacy by performance are frequently acknowledged in literature. The first is an alteration of the notion of political practice just shown: legitimacy by cost performance. When states invest some resources in obtaining its approval, they do so under the assumption that in the end the costs will be lesser than when acting without UNSC approval. Seeking UNSC approval is an investment that promises profit. Consequently, they value the performance of the UNSC for their own foreign policy. When the way through the UNSC results as the best way to proceed, after having calculated the costs of all alternatives, this speaks for its legitimacy as cumulated by its previous (and calculated future) performance (Thompson 2006: 3; Voeten 2001: 848). The second variation is legitimacy by international stability performance. The Council is not only the sole body in international society to legally authorise the use of force, it is also the body that effectively limits the use of force without its approval. Without the UNSC, international anarchy would be far more dangerous for non-great powers. Not because legality is stripped its rank, but because a body where all great powers are wielded together does not exist. Non-great powers value the Council’s success in mitigating the desire of powerful states to act unilaterally. The Council might be “a tool of the Great Powers, but it is also an instrument for constraining them” (Krisch 2008: 152). This is what I call the international stability performance by maintaining (rather than enforcing) the principles of sovereignty and non-intervention and therewith international order (Lowe et al. 2008: 29; Welsh & Zaum 2013: 70). Having established a stable (inter-)great power peace is the third way by the UNSC to gain legitimacy by performance. As just mentioned, the way the UNSC works maintains the concert of great powers. Herewith, not only are non-great powers secured by the balance between great powers. What is often ignored but of similar importance is the peace between great powers themselves, which is established by continuously communication and balancing practices. The UNSC is the central tool of international society for the maintenance of inter-great power peace (Bosco 2009: 5). Exactly the weakening of this function is the nucleus of the pluralist fear of unauthorised humanitarian intervention. Besides those three variations of legitimacy by performance that exist in literature, I value its record in mitigating conflict as a fourth way of performance legitimacy. Especially since the end of the Cold War, the UNSC has dealt with an increasing amount of conflicts and is often able to relieve the suffering or

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solve the crises altogether. This might not be a performance for states, but it certainly is for global civil society resp. world society. It is at the same time the one performance aspect that attracts the most critique. Boulden argues that the negative side of the UNSC’s importance for the great power concert is the power the UNSC is giving to this selected group of states. With the UNSC great powers have the ability to hinder action in specific cases, might those be directed towards maintaining order or human rights (Boulden 2006: 419f). Although, I deem this critique to be correct, it does apply better to the UNSC of the Cold War era. The UNSC (at least) since 1990 but especially after Kosovo and the adaptation and integration of R2P has departed in its daily politics from such a Council that is strongly restricted by the great power concert and instead increasingly served the protection of human rights. A second and broadly shared critique to the notion of legitimacy through performance is that UNSC’s action is conditioned by media coverage of certain conflicts. It hereby results in a double standard or rather a selectivity of its actions. This can be best seen by comparing the ratio of UNSC’s actions in conflicts in different regions of the world, which shows that it acted in Europe and Africa much more often than e.g. in Asia (Adebajo 2011: 16; Bellamy & Williams 2015: 14 & 16; Cockayne, Mikulaschek & Perry 2010: 2; Forsythe 2018: 80 & 87; Wallensteen & Johansson 2004: 22–5; Weiss et al. 2017: 116). This of course is correct in some cases. Particularly, democratic states with free press are subject to medial pressure that led governments to act. Commonly, this has been called the ‘CNN effect’. This effect might even be used or amplified in order to coerce an adversary state (Falk 2000: 40). Yet, this is all but surprising. One could even go as far as to bring the blame game to the next level: Is it not the media, which decides which tragedy they cover? Although, I find the critique valid, it is to some extent an inherent, sad feature of every society: Conflicts that are closer to a society are deemed more tragic than conflicts with similar violence far away. Moreover, as brutal as it sounds, it is also a question of capabilities and resources. Not possessing godlike powers, which lives shall a foreign state safe first? Especially with the former world police, USA, under a Trump government, there is no state in the world left that could deal with all conflicts at the same time. I even argue that there has never been such a state; a reason why I deem the term ‘superpower’ highly misplaced and misleading. States have to be selective, when they want to act at all (Hehir 2013b: 156). Moreover, states have to make calculations to determine which conflict they can save the most lives of civilians by endangering the least lives of soldiers.

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12.2.3 Legitimacy Through Deliberative Action The third notion of UNSC’s legitimacy common in literature is the one referring to its deliberative action. The UNSC is the ‘normal forum’ of states to deal with matters of international order. There is no similar institution. E.g. the G7 consists nowadays of the old Western economic great powers only, which have deliberately excluded Russia in the context of the conflict in the Ukraine. It is, therefore, the UNSC that “deepen[s] high level diplomatic contacts between its permanent members” (Bosco 2014: 557f). Whatever great powers have to discuss or to decide in ordering international society, they do so in the ‘standing’ forum of international society. Still, this forum is not ruled by great powers alone. They may be the main engine, but are not unchecked. It is not even the case that great powers are seeking just the minimum requirement of nine votes without veto by one of its peers. The fifteen members seek consensus regularly, which increases the legitimacy pull of a decision reached in consensus and is more valuable than a decision by minimum requirement (Fenton 2004: 206; Rubinstein 2008: 129). The deliberative proceedings leading to such a consensus have a further positive effect. This way of scrutinising an individual case by the selected body of international society enhances the reasoning in favour of the action made later on. Deliberations and reasoning within the UNSC are, therefore, adding to its legitimacy (Johnstone 2003: 464; Johnstone 2008: 299). The speeches given in its chambers are arguments that can be checked and evaluated by the larger international society and in addition the international public. The Council, being aware of its control by non-members and the public, continuously checks and proofs if their decisions in the past or the one they are going to make, have been and will be accepted by those actors outside the Council chambers. Weren’t they to do that, they would lose acceptance and in consequence legitimacy (Hurd 2002: 47f; Lowe et al. 2008: 30). Would the council members not care for this outside evaluation, they would not invest time in lengthy deliberations and reasoning and “instead, simply mov[e] to vote on a resolution” (Niemann 2019: 3). Finally, the international public itself seeks for clearance on claims of intervention and benefits thereby from UNSC’s deliberative action. When a state considers action in a fellow state and threatens to intervene, it is most common for media to direct its attention to the Council in order assess the legitimacy of this claim. Media and public are seeking “informational shortcuts” (Thompson 2006: 11). Regional organisations can give such informational shortcuts as well, but most

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attention will be directed to the opinion of the UNSC on this matter. Its “approval informs domestic publics abroad that the coercive policy has desirable consequences” (ibid.: 12).

12.2.4 The UNSC as Legitimate Body for the Maintenance of International Order In sum, the UNSC can be seen as the legitimate body for the maintenance of international order. States invest in UNSC’s procedures in order to get the approval for their desired action by a resolution. Other states frequently participate in this action when this resolution is given. Both are undergoing a cost calculation that leads to the finding that the political, financial and reputational costs for an action without UNSC approval are higher. This practice in everyday UNSC politics is the first notion of its legitimacy. The second is the legitimacy gained by performance. Rising to the more abstract level of international society, the world at large sees the Council as the most efficient tool for the maintenance of international order. It is doing so in three perspectives. First, it is the primary tool to settle an individual conflict. Secondly, its strong legitimacy pull concerning the use of force, protects states from being otherwise exposed to inter-state violence. Thirdly, its integrative pull on great powers results in a regular and intensive exchange between those great powers as well as the continuous balancing of their common concert. This wielding effect on great powers results in perhaps the most important performance of the UNSC: peace among great powers. The final notion of legitimacy is its deliberative action. Due to the workflow an agenda item has to undergo in the UNSC, the speeches and discussions that are held during its consideration and the justifications given by member states by voting on a resolution, the UNSC gives the society of states and the international public the ability to check the claims made for an action. I am still convinced that even in the 21st century, the first victim of war is the truth. Yet, the road to war nowadays does not lead merely through secret war rooms or backroom diplomacy as in earlier times, but far more through the centre of international public attention, which is in this occasion directed to the East River chamber. Other states can assess the claims that are made for taking action with all necessary means in fellow states, as can the international public. These three positive functions of the UNSC in matters of international order are in my opinion a significant reason for its stability. The UNSC is so legitimate

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that UHIs are not endangering the UNSC and international society as pluralists have thought they are.1

12.3

World’s Elite Pact: UNSC as Great Power Instrument?

Besides the common understanding of the UNSC as the legitimate body for the maintenance of international order, in most assessments the paramount rank of the five permanent members, the great powers, in the UNSC have been (at least) emphasised. Sometimes it is even argued that the UNSC is solely an instrument of those great powers (Adebajo 2011: 2). I think the last statement goes too far and narrows the correct assessment to a point where the function of the UNSC as elaborated in the previous subchapter is not recognisable anymore. What I deem is a correct conceptualisation is the view Voeten puts forward by taking recourse to a more general article of Weingast from 1997. Voeten describes the P5 in the UNSC as an “elite pact: an agreement among a select set of actors that seeks to neutralize threats to stability by institutionalizing non-majoritarian mechanisms for conflict resolution” (2005: 529). Such a way of understanding acknowledges the supreme role of great powers, without losing sight of UNSC’s role in international society in general. It is very close to the function of great powers as elaborated by Bull: the elite pact in the UNSC are those great powers that understand themselves as having greater capabilities and responsibilities, which they have to use to maintain international order in an anarchical society (Bull 2002: 196f). Bosco likewise compares his own understanding with Voeten’s description and refers to the P5 as concert of major powers (Bosco 2014: 545 & 549); a description that comes close to Voeten’s view. I cannot extend at this point to the in-depth elaboration by Voeten and Bosco, but I want to take a look at one notion, as I am ascertained that the (almost) null-finding on the UHI’s impact on international order rests foremost in this core of the UNSC: the elite pact. The understanding as elite pact means that permanent members are able to dominate the agenda and politics of the UNSC (Malone 2004a: 7). It is commonly acknowledged in literature that they are virtually controlling which topics shall be put on the agenda of the Security Council and what will not be subject to consideration. This, of course, does not fit with the actual procedures, but several studies have shown that it is a consistent (informal) pattern in the UNSC (Bosco 2014: 550; Boulden 2006: 412f; Krisch 2008: 140f; Wallensteen & Johansson 2004: 23). The much closer diplomatic work of the elite pact’s members in the 1 See

subchapter 3.4.

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UNSC also means that they have several advantages to the rotating non-permanent members. They have a better access to information in the UN system, at least by having knowledge on where to find which information. The inter-pact politics are so complex and trade-offs as regular that it makes sense for great powers to seek the consultation of their peers first, before dealing with non-permanent members (Adebajo 2011: 2; Bosco 2014: 550). The one exception in my view is the connection of the EU and NATO member states with their ‘own’ three great powers. So, being a member of the elite pact comes with special privileges; privileges that are highly treasured (Krisch 2008: 136). This is already a convincing account for the durability of the elite pact the UNSC has seen at its nucleus since the end of the Cold War. However, this does not explain in my perspective why Russia and China have not quit the pact or at least reduced its importance as the Western great powers decided to conduct an unauthorised humanitarian intervention in Kosovo without their fellows consent. Why playing the old game by the old rules, when peers refuse to play by the rules in a so fundamental way? In the same context, it is not obvious why the Western great powers still adhered to the elite pact after Kosovo. If they could have established a humanitarian intervention doctrine on their own, why then remain in the classical, consensus-orientated pact?

12.3.1 The West in the UNSC: Playing the Outside Option Starting with the West, the first argument for the continuation of the elite pact is the above explained cost efficiency that comes with the UNSC and hereby the pact as its informal main committee. Why conducting interventions on your own that will increasingly be opposed by non-Western members of international society? The UNSC’s way is still the most efficient way to order society in the understanding of Western great powers (Krisch 2008: 152f; Malone 2004b: 617; Voeten 2005: 527f). Yet, in my view of higher important, is the understanding that neither the elite pact, nor the UNSC at large are inflexible bodies. To introduce new norms, the UNSC is often the fastest way to do so, circumventing large international summits. The UNSC includes fifteen member states only, which are used to the diplomatic proceedings and share in varying degrees the understanding that they have special responsibilities; a finding even more valid for the five-member elite pact. To implement a new norm not by resolution, but by international treaties, means having to deal with perhaps almost all of the 193 states of the world; including serious spoilers that have no interest whatsoever in the norm implementation that progressive states seek for. Setting new international

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law by resolutions is not the way the UN system established the UNSC for, but nevertheless it is a way that quite often worked and has not been seriously challenged. For the progressive West, the UNSC is an easy way to implement norms it wishes for. This has also been the case for the USA. As is sometimes overlooked, international norms on counterterrorism have been pushed by the US and were foremost implemented by UNSC action instead of undergoing the normal way for international law (Welsh & Zaum 2013: 84f). Additionally and perhaps more importantly, the West has used another instrument, in order to direct the elite pact and UNSC in the course it sought for. This instrument is called the “outside option” (Voeten 2001). In his article, Voeten showed by using a game-theoretic framework that great powers are able to coerce the UNSC in general and other great powers in specific by showing that they are able to act outside of the UNSC. In controversial cases, progressive states are able to coerce non-progressive states to follow their lead, when they can convincingly show that they would be willing to use an option outside of the conventional order. Would they indeed use this option, the non-progressive states are left behind. Under this consideration, non-progressive states have a reason to cooperate and seek consensus with the progressive ones, instead of letting them use an outside option without them (Hafner-Burton, Victor & Lupu 2012: 83; Krisch 2008: 141f; Voeten 2001: 856). The outside option, as explained by Voeten and others, is, therewith, comparable to the re-empowering theorem presented in chapter 5. In this former thesis part, I argued that human rights friendly states ‘leaving’ the UNSC does not mean that no one is left behind. The more reluctant states will ‘stay behind’, isolated and excluded from the decision-making process in one of the most important fields of international politics. Although dealing with human rights, it is a realpolitikal poker game. The isolated and excluded states will be determined to revive the club. What I just now explained for the actual use of an outside option, is also valid for the threat of using it. The outside option as explained by Voeten coincide with the empowering theorem I elaborated in chapter 5. The appearance of this re-empowering theorem, I argue, we have seen in the aftermath of the Kosovo UHI. It explains why the West has remained in the UNSC afterwards: It was not necessary to leave since especially China and also Russia changed (or at least started to change) their sceptical position regarding an increasing responsibility for the maintenance of human rights beyond mere international stability. The West won in three aspects: Not only was the actual intervention a success, NATO member states including the three Western great powers also kept the efficient UNSC alive, while dragging it to implement an even more progressive humanitarian normative principle (Heinbecker 2004: 537f).

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The Kosovo was not the end of the humanitarian impulse, but its transfer from a more fluid kind in the 1990s to a fundamental norm. A norm first introduced as a concept by the ICISS in 2001 and four years later adopted, while adapted, at the UN world summit. This new humanitarian norm is the R2P. Kosovo has been in so far established a positive paradigm change for the enforcement of human rights.

12.3.2 Russia in the UNSC: Respect Me, for I was a Great Power Like the West, Russia is also familiar with playing the outside option. Since it is doing so without the same normative considerations as the West, it can play this game surprisingly well, at times even shocking those states claiming to adhere to international norms. The latest example of such an episode has been the Russian involvement in the intra-Ukrainian conflict. The same is valid for its intervention in Georgia. Based on Mankoff’s and Wishnick’s study I argue that Russia’s intervention in Georgia was motivated by considerations comparable to an outside option play. After Kosovo declared its independence and Western states began recognising the newly formed state, Russia was determined to use such an option at the next available opportunity, in order to deter Western states from infringing further in its sphere of interest (Mankoff 2012: 238 & 264; Wishnick 2009: 38). In the case of South Ossetia it had the same humanitarian claim that NATO used in Kosovo nine years earlier. A difference that can be seen between those two utilisations of the outside option is the circumstance that Russia had to bear higher costs than NATO member states had in Kosovo (Larson & Shevchenko 2010: 94). What distinguishes it from Western states is that Russia’s outside options are used in a counter-progressive way to enforce the status quo, rather than ordering towards a new status. This status quo-orientated policy is far more at the core of the Russian UNSC policy than its interventions in its neighbouring states let suggest or fear. With such an assessment, Tsygankow attests Russia the desire to “becom[e] a normal great power” (2005: 153). Russia’s goal is to maintain the status it has, being one of the P5 and within the elite pact. For this primary goal in the great power concert, Russia is willing to subordinate its position in individual cases (Voeten 2001: 847). It is far more important for Russia to maintain its great power status. This is a hard power, it otherwise only remained by its nuclear arsenal and its anachronistic willingness to use force for political ends (Welsh & Zaum 2013: 70). Russia paradoxically is aggressive and fearful at the same time: When a power is acting outside the UNSC it fears for its status. It remains unclear if NATO has

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understood this Russian paradox in the early months of 1999. However, it had triggered this fear by its intervention. The result was the coercion of its fellow great power, Russia. Russia deemed it more important to keep the West within the UNSC and therewith maintain its current status than to uphold its position in the individual case (Krisch 2008: 141f). Heller advances this analysis and argues that the Kosovo incident had burned into the memory of politicians, letting them regard NATO action “through the prism of Kosovo” (Heller 2014: 342) ever since. The one thing Russia wants to prevent is to lose power; a decreasing importance of the UNSC or elite pact is such a power loose for Russia. This fear of loss of status shall not be confused with the fear of a military threat. Even at the end of the last decade it has been argued that the driver behind Russia’s policy towards NATO and the West is based in security concerns (Frederking 2007: 33). My observation today is quite contrary. Such a security concern is currently not more than a secondary consideration for Russia. Russia is still a nuclear power. It is ascertained that especially the West is considering Russia as a state willing to use military measures, when it serves its purpose; it fears this Russian willingness to act military. The West is self-aware that NATO is weakened by populist governments unwilling to engage in traditional and costly great power balancing. Russia knows about the Western shortcomings and can correctly anticipate a decreased Western threat. Interestingly, when Russia identifies a possibility to strengthen its status by cooperating with the West, without investing more than it would get for its status approval, it is relatively easy convinced to do so. This has been the case in the war on terror and it is still the case (with certain limits) when coming to the conflict in Syria and the fight against the Islamic State (Allison 2013a: 818; Larson & Shevchenko 2010: 93f). Although, NATO was able to use the outside option in Kosovo in order to coerce Russia of the progressive, humanitarian agenda, I have severe doubts that the West would be able to do so again in the current international setting. I have mentioned several short-comings regarding the current Western community. Additionally, as long as Russia can bear the costs, the leverage it currently has in Ukraine and Syria (or better the Middle East from Turkey to Iran), is a strong deterrence repertoire against Western progressivism.

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12.3.3 China in the UNSC: The Soft Way to a Responsible Great Power NATO’s intervention in Kosovo is viewed as having a similar impact on China as on Russia. While the Asian great power had already familiarised itself with a more progressive UNSC and peacekeeping operations in the 1990s, the adjustment process for China had been “accelerated by the events of the Kosovo crisis of 1999, which came as a real shock” (Stähle 2008: 646). Yet, the Chinese reaction could not have been any more contrasting to the Russian reaction. Instead of a defensive reaction and focussing on concerns for their own security, China chose an alternate path and played a constructive part in the East Timorese crisis in the same year of the Kosovo intervention. Kosovo, therewith, had in a similar way an impact on China. It empowered those states willing to implement a more progressive, humanitarian norm in their negotiations with China towards a change in the UNSC (Krisch 2008: 141f; Stähle 2008: 646f). The reasons for a (in the end) positive reaction on NATO’s action by China were two-fold: China’s wish to be perceived as responsible great power and, directly linked to this, its view that for this goal and its national interests in general, the current status quo of international order was the best environment. To obtain this status as responsible great power, China understood that full-scale opposition to demands for a more humanitarian international order is anything but helpful (Hirono & Lanteigne 2011: 244; Larson & Shevchenko 2010: 93f; Stähle 2008: 653f). China’s advocacy for the status quo of multilateral international order is based on two factors. One, its assessment that for becoming the responsible great power the current UN system, including itself being a member of the elite pact, serves best; second, its pluralist appreciation of international order as best maintained with the preservation of the principles of sovereignty and non-intervention. Both factors are enshrined in the status quo of international society (Deng & Moore 2004: 133f; He 2007: 50f; Legro 2005: 173f; Stähle 2008: 653f; Wuthnow 2013: 133f; Zhongying 2005: 94f). While valuing and being satisfied with the status quo of international order, China accepted that it had to reform some of its policies in order to reach its goal and be seen as the responsible great power. Those reforms meant that it had to cooperate in implementing new progressive, humanitarian norms and to be more supportive of specific demands for action, when a massive humanitarian emergency appeared. The problem with the first reform pressure is that it had to re-evaluate its understanding of the principles of sovereignty and non-intervention. China had to evaluate whether it was willing to adopt a more flexible understanding of those

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principles and deviate from its strict pluralist view to be able to address the rising solidarist claims (He 2007: 69; Zhongying 2005: 97). The tension becomes clear when taking a look at the analyses made on this aspect of Chinese foreign policy. While He emphasised that China is still a strong advocate of these fundamental principles and Stähle later pointed out that for China, the consent with the target state remained a sine qua non-like condition for peacekeeping operations, more recently Hirono & Lanteigne assessed a beginning flexibility and Gill & Huang argued that even a process of norm internalisation could have started in Chinese international relations studies and foreign policy circles (Gill & Huang 2013: 143; He 2007: 70; Hirono & Lanteigne 2011: 243f; Stähle 2008: 655). Interestingly, Wuthnow might explain these contradicting academic assessments by arguing that China is still upholding a pluralist view in its rhetoric and official statements, but at the same time has become flexible towards demands for non-traditional peacekeeping and human protection in practice (Wuthnow 2013: 30 & 134). Besides the change in Chinese foreign policy, most visible is its positive reaction to demands for new, progressive humanitarian norms in practice. At the end of the first decade in the new millennium, China supported almost every peacekeeping operation and even robust mandates (Stähle 2008: 631f & 649). Moreover, it is not only involved in many of those missions but also the largest contributor among the great powers (Hirono & Lanteigne 2011: 243; Zhongying 2005: 90). Further, an interesting notion now comes from Hirono & Lanteigne, who assess that nowadays it does not see any longer the necessity to reason in the Council why it has voted for a mission (2011: 251). I find this the most convincing evidence of an internalisation that took place in China, and for which NATO’s use of the outside option was at least an important milestone. The UNSC is for the great powers an important instrument of their foreign policy. As shown, it serves their interests in the current international politics. Great powers can act more cost efficient. They, however, pay a price for this ability. This price is the necessity to maintain the great power concert. Consequently, they have to adjust their own policy to a certain degree; they need to compromise with one another. This is a blessing and a curse at the same time. As seen in Kosovo, the Western states can coerce their Eastern concert partners, to a more humanitarian direction for international order. But this ability to coerce and necessity for compromise is not a one-way street. A great power concert without gains for China and Russia will in the end be no longer in their interest. So, each part of the great power has an interest in maintaining the ‘elite pact’ as nucleus of the UNSC.

12.4 From Kosovo via Libya to Syria: The State of the R2P

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From Kosovo via Libya to Syria: The State of the R2P

Two current cases of UNSC politics are of interest to understand the space the progressive impulse has made and the limits it still faces. The first, at the time of the adopted resolution with the potential to become another milestone of a perhaps Kosovo-like magnitude, is Libya. The latter, showing that R2P is not omnipotent and has its limits, especially when it confronts with the sphere of interests of great powers, is Syria. Referring to the UNSC policy towards Libya and Côte d’Ivoire in the same year, UNSG Ban Ki-moon, said in September 2011 that “[b]y now it should be clear to all that the Responsibility to Protect has arrived” (Ban 2011). What might be at this particular day a correct, but still a rash assessment of the state of this new humanitarian norm in the everyday politics of the UNSC, soon became seriously challenged. Thirty days after Ban’s statement Libyan civilians had not only be protected from the counter-revolutionary violence of its government, but overthrown it and established a new government. The external forces coordinated by NATO helped in this and had used their authorisation for a humanitarian intervention to conduct a second agenda: regime change. At the time UNSCR 1973 had been adopted, it was another proof of the progress the norm of R2P had made in international society. Libya was a special case, since it was the first still functioning state that had to witness external inference with UNSC authorisation, yet, without its consent (Hehir 2013b: 144). However, this exceptional case of a pariah both to international society and to its own regional community, the Arab League, that had to face external intervention (Bellamy 2011b: 3f; Bellamy & Williams 2011: 825), could have become a major milestone for the practice of R2P, as the UHI in Kosovo had been one for its development earlier.2 In order to achieve this it would have been necessary for NATO member states to cautiously implement its provisions without overreaching. Russia was on board, apart from its abstention, because it trusted NATO and its claim for a primary humanitarian motivation under leadership not of the US, but France. Would NATO have been open to the desire of many of its member states to overthrow the Ghaddafi government, Russia would not have abstained but blocked the mandate (Mankoff 2012: 126). Kosovo was as successful due to NATO using the outside option cautiously, returning very soon to the UNSC framework, and integrating 2 Bellamy

& Williams argue that the intervention had only been possible after the Arab League and major Arab states signalled their approval for intervention (Bellamy & Williams 2011: 843). Interestingly is the circumstance that the African Union at the same time criticised the UNSC for not including its perception on the conflict in the same way (Dembinski 2017: 826).

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Russia in the following process. Libya had been different. Here, NATO’s action had originated in the UNSC framework, but left it during the conduct of the campaign. In my view, R2P gained track in the UNSC not because of Libya, but despite of Libya (Gifkins 2016: 157). It is most commonly argued in the R2P debate that this experience in the Libyan case, especially for Russia and China, had led to the quagmire happening in Syria and international society’s inability to find a common ground on how to solve this conflict. The two non-Western great powers have been cautious in Syria since they wanted to prevent another regime change by handing over a mandate to the West (Allison 2013a: 796–8; Gifkins 2016: 149). However, in a focussed study on this claim, Bellamy argues that Syria is an exceptional case and can neither lead to the argument that R2P is ineffective, nor to the result that the case of Libya was an overreach. While I consent with him on the first point, I argue for the contrary in the latter one: the overextension in Libya had a clear negative impact on the Syria case. Bellamy argues for his non-impact idea by raising two arguments, which are focussing on Russia. First, he interprets the original Russian reservation as limited, since it was directed only against a holistic resolution, but not against a limited resolution. Secondly, he argues that Russia has not uphold its reservations and later dropped the connection to Libya in its statements in the UNSC on Syria. However, I have just shown above that China’s official rhetoric and hidden motivation does not necessarily correspond with this. To argue that China did not link Syria to Libya, just because it has not admitted ton it, is fallacy. The same goes for the argument that Russia has dropped the linkage between Libya and Syria; if in politics an argument needs to be repeated over and over again to be still valid for someone’s motivation, speeches would get endless. This means that the impact of Libya on Syria is far from being zero (Bellamy 2014). Coming to the current state of the R2P in general, I argue that it is now a well-established norm besides NATO’s overreach in Libya and Russian (as well as Chinese) blockade in Syria. Syria is the exception of the R2P norm, rather than the evidence for its failure. However, it is at the same time an indication that spheres of contested great power influence still matter. Further, the West in 2019 has in my view less leverage for pro-humanitarian politics than it had in 1999. What Syria proofs is the survival of geopolitics in the age of the R2P.

12.5 Regional Communities and Great Powers: A Shortcut …

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Regional Communities and Great Powers: A Shortcut to Humanitarian Interventions?

UHIs conducted by regional communities pose an important challenge for the current structure of international order. I have drawn attention on this challenge while assessing ECOWAS’ intervention in Liberia in subchapter 10.3. Some authors, including myself, have argued that the implementation of regional procedures to authorise the use of force in member states could be a supplement to the competence of the UNSC. At best such procedures are enhancing the capability of the UNSC to maintain international order and protect human lives; at worst they are a contest for it (Adebajo 2011: 140; Bah 2013: 89; Hehir 2012: 51f; Pohlmann 2008; Williams 2016: 196f). The intervention of ECOWAS is such a challenge in two aspects. UHIs conducted by and within regional communities significantly contest existing international law and question the legitimacy of the UNSC. To elaborate on the first challenge: the UNC is restricting the use of force in an absolute manner. There is no way to the use of force beyond self-defence and Chapter VII. Each member state has committed to this prohibition of the use of force. To enter a new treaty that offers a third way to the use of force, would be a violation of the obligations under the UNC. However, whether a frequent practice of this third way could lead to customary international law that is challenging and actually revising the codified law of the UNC is at least a subject for legal discussion. Adebajo e.g. argues that ECOWAS’ protocol of 1999 could lead to a “system of subsidiarity” (2011: 140) or “subsystem of international law” (ibid.). Yet, Dinstein categorical denies such a possibility since the prohibition of the use of force is jus cogens, which (in this case) can be changed through an amendment of the UNC only (2005: 99–104 & 116). Hence, a door to HI via regional international law is challenging the existing legal framework. Secondly, when regional communities act on their own, being confronted with a massive humanitarian intervention, this challenges the legitimacy of the UNSC. In subchapter 12.2 I explained the process of UNSC’s legitimacy. The mere introduction of an intra-regional way to intervene, is already a political process that questions the legitimacy of the UNSC. If this way is then frequently used without the incorporation of the Council, those actions will weaken the performance of the UNSC and, in consequence, its legitimacy (Adebajo 2011: 234). Such a weakened UNSC is a difficile development for great powers. It would mean a relative power loss. So, a regional community invites a reaction by the UNSC and the great power concert likewise, if it claims a right to intervene. Both effects (contesting international law as well as questioning the legitimacy of the UNSC and

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great powers) might be one reason, why Williams underlines the fact that the relating provisions of the AU have not been exercised so far (2016: 197). Besides these challenges, I see the perspective of a right to humanitarian intervention quite positive. The integration of a right for regional organisations to conduct humanitarian intervention within their own member states, is indeed a way for a subsequent norm development. The regional communities in Africa are here the best point to start. Africa has been (with all good and bad consequences) in the past often beyond the great power perspective. To accept such a right to HI for African regional communities is, in my view, possible for the P5. In sum, besides some legal and political challenges, the shortest way to a right to humanitarian interventions, would be by its integration in regional legal systems and coinciding amendment of the UNC. Since the first step is already done in ECOWAS and other African communities, international society should alter its codified norms and cure the existing legal defect.

12.6

The Impact of Previous UHIs on the UNSC and International Order (Chapter Summary)

In subchapter 2.2 I elaborated on the two contradicting assumptions by solidarism and pluralism on unauthorised humanitarian interventions. After having examined six cases of UHIs I want to return to those and review their theoretical positions. Pluralism saw no sufficient degree of acceptance for unauthorised humanitarian interventions. On the contrary, the pluralist fear had been an eroded international order by the recourse to UHIs. In particular, as shown in subchapter 3.4, it estimated a danger originating from the abuse of humanitarian motivations. Solidarism, on the other side, interpreted a sufficient degree for such UHIs in international society and hence no such eroding impacts. Although, I have been seconding the pluralist fear previously, after having examined the first five UHIs I have to conclude that this pluralist fear had not been verified. The four UHIs in the Cold War have not led to any serious negative impact that originated in their unauthorised feature; might this be based in the positive relief effect or the motivation for the intervention. My explanation is that those conflicts were on the one side too small and too exceptional to have a severe impact and on the other have not involved a great power with the potential of a disturbance of their concert. Yet, it shall be emphasised that no state had claimed a new emerging right to HI outside of the international legal framework. Further, I argue that the interventions in Cambodia and Uganda could not have impacted on order, as they were neither

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humanitarian motivated nor justified. Their identification as HIs based on their outcome remained within the academic debate. Hence, I advise for the future that the debate should not include cases without a humanitarian motivation. The pluralist fear has also not been validated for the ECOWAS intervention in Liberia. This one had a humanitarian motivation, but it was not deemed dangerous at all by international society. I am convinced that the reason for this is the unique circumstance that it has been an UHI conducted by a regional community within one of its members. Such an intervention is by international law still illegal, but the great powers did not fear an eroding impact on the supraregional level. As much as can be predicted by the insights gained by studying the UNSC, I think that even future UHIs by regional communities within their own member states, will be accepted by international society. Since this case in Liberia, which now happened almost thirty years ago, the legal fundaments for such intra-regional HIs have been laid in several African regional organisations. It would be all but surprising, if the implementation of such a right to intra-regional HI will be incorporated in international law in the future. The one case for which I had been sure that pluralism is right, was NATO’s intervention in Kosovo. Having examined this case and its impact on the UNSC, I had to come to the conclusion that the drastic dystopian picture pluralist painted did not come true. The floodgates are closed and intact. It has been shown that not only the eroding impacts are mostly missing (besides the mildly negative effect on the Russian-Western relation), but moreover NATO member states pushed international society onto a more solidarist-leaning path with their intervention. NATO trespassed the border between legality and illegality, but it was cautious enough to remain its distance to the frontier to illegitimacy. By using an outside option, it was able to coerce the fellow great powers Russia and China on a path that in the end, led (via Kofi Annan and the ICISS) not only to the adaptation of the R2P by the UNGA, but also to its implementation in everyday politics of the UNSC and perhaps even its internalisation by the fellow great powers of international society. The remaining truth of the pluralist warnings can be seen in Libya and Syria. Actors willing to use such an outside option and conduct an UHI, have to keep in mind that they do not lose contact with what is deemed legitimate in international society. Libya even had been an AHI, not an UHI, but the overreach by NATO in focussing soon on regime change, rather than humanitarian protection as was mandated by UNSCR 1973, led to a setback for international society’s dealing with the conflict erupting in Syria at the same time. In complete contrast to Kosovo, NATO acted legally, but illegitimate. Bellamy has argued that there

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is no connection between Libya and Syria (2014). Yet, I am anything but convinced by his argument. The aversion Libya produced especially in Russia is too obvious, the geopolitical and timely parallelism is too high, to argue that what is (not) happening in Syria is not caused to a significant part by the conduct of the AHI in Libya. Where Bellamy and others are right, is the fact that outside of Syria, the R2P is alive and well. The take-away for IR theory (esp. in the English School) is that the UNSC, international society’s secondary institution for the maintenance of international order, is much more stable than pluralists had assumed. This is especially originating in UNSC’s legitimacy in the current international order. Being valued for its cost efficiency from a state-centric perspective, for its peacekeeping performance from an international perspective and for its deliberative feature from a world society’s perspective, it has become the legitimate body for all questions of international order. Moreover, even the most capable actors in international society, great powers, benefit from the privileges they obtain in the UNSC. What pluralism (but likewise solidarism) has been missing so far, is the importance and power of the perhaps most important secondary institution of international society: the UNSC. The bottom line is that after examining the existing UHIs and despite being a scholar sharing in many aspects pluralist assumptions, I have to confirm that the solidarist view on unauthorised humanitarian interventions is much more valid than its pluralist counterview: As long as an actor conducting an UHI is very cautious not to overstep the accepted border of legitimacy, an UHI can be conducted without eroding effects to international society; solidarism is correct in the assumption that (at least the current) international society has a sufficient degree of solidarity to tolerate illegal interventions for the sake of protecting human lives without endangering international order. As long as UHIs (and AHIs) are accepted as legitimate by international society, the great power concert remains balanced, and their perpetrators cautiously conduct the intervention in order to not leave this space of legitimacy, the floodgates are locked and closed.

Human Rights are an Inelastic Regime: Comparing and Explaining the Impact of UHIs on Human Rights

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As pluralists and solidarists are focussing on two different perspectives on international society (order & justice), this thesis is likewise scrutinising the impact of UHIs in two different aspects. The former—as has been discussed in the last chapter—being the pluralist perspective on international order, the latter, which is going to be discussed in this chapter, being the solidarist perspective on human rights. I will start by comparing the findings made for the impact of UHIs on human rights, for which analyses were possible. In two following steps, I will set those findings in the context of the current research for HR commitment and HR compliance. Through this step, it is possible to interpret the findings and gain an understanding of the general impact of UHIs on human rights, while summarising this chapter.

13.1

Findings for Human Rights Commitment and Compliance

The study on human rights impact in this thesis has been directed on the regional level. Most obvious the first question coming to human rights and humanitarian interventions, is the question whether it had resulted in a positive relief effect on a massive humanitarian emergency. Yet, this question has been answered in several individual studies, and summarily dealt with for each possible UHI in the case identification process (see chapter 7). My question in this work has been instead, whether UHIs had an impact on human rights beyond the borders of the intervenee. The theorem established in chapter 5 and selected for the case studies has been that states of the region, wherein an UHI had been conducted, resp. states © The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2021 C. Pohlmann, Unauthorised Humanitarian Interventions in World Politics, Globale Gesellschaft und internationale Beziehungen, https://doi.org/10.1007/978-3-658-32179-6_13

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neighbouring the intervener might be deterred from human rights violations in the future by this UHI. In the case of the UHI in Liberia (1990) I quantitatively determined a slight increase in human rights commitment of ECOWAS member states in the subsequence of the intervention: The regional ten-year average HR4 index rose from 95.6 percent to 100.3 percent in relation to the world’s commitment ratio. Further, I assessed a notable decrease in human rights compliance: The relating acPTS index (measuring a better compliance by an index decrease) in the region increased from 92.2 percent to 107.9 percent in relation to the world at a ten-year average. The two states selected for a qualitative sample study, Benin and Côte d’Ivoire, however had not been impacted by the UHI. On the contrary, based on the qualitative assessment, I determined a null-finding. The increasing compliance in Benin and decreasing compliance in Côte d’Ivoire had internal origins and were not caused by an UHI deterrence effect. The same goes for Kosovo (1999). Here, I determined a slight decrease in commitment (139.6 percent to 136.3 percent, by the same measurement as just explained for Liberia ‘90) and a substantial increase in compliance (the acPTS index decreased from 137.6 percent to 86.9 percent). Again, the qualitative sample studies (Croatia and North Macedonia) showed no connection to the UHI. I determined that a deterrence impact did not appeared. The compliance increase had been caused by a changing national policy that led both states to raise their efforts for a better internal human rights situation: the wish to become EU member resp. a candidate for this membership. Thus, the compliance increase on the Balkans was caused by the prospect for an economical and socio-political integration in the leading regional community: the EU. In the case of the Balkans after Kosovo the positive prospect of integration was the driving force behind the progress in human rights, rather than the negative fear of interference. For two of the Cold War UHIs it was possible to at least derive quantitative findings for an altered human rights commitment and (in one case) compliance. Those cases were Lebanon (1976) and Uganda (1979). While a compliance analysis had not been possible, the Lebanon case showed a decreasing commitment in the member states of the intervening Arab League. By the same comparison as used above, the commitment as measured in the HR4 index decreased notably from 109.4 percent in relation to the world to 89.0 percent. In the case of Uganda (1979) I could determine a substantial increase for the same index: it rose from 63.4 percent to 92.3 percent in relation to the world. Yet here, it was possible to analyse the compliance. This slightly increased from 116.7 percent to 121.6 percent, compared to the world’s ten-year average. Since I was not able to conduct sample studies, I have been cautious on the interpretation. However, although I

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dispense with the findings for Lebanon (in my view the impact on the regional and global conflicts in this context have been to severe, to trace the quantitative findings back on the impact of the UHI), I find the commitment increase in Uganda interesting enough, to deem a focussed follow-up study in this case possible. What the quantitative result in the case of Uganda ‘79 might show is a window-dressing effect of Tanzania’s UHI. I will elaborate on this in the following subchapter. Comparing my interpretation of the findings and assessments in the cases, I conclude that UHIs very likely have no impact beyond the relief effect on the ground. In the two cases where sample studies following the quantitative analysis were possible, Liberia and Kosovo, I had to acknowledge that there was no relation between a regional human rights development and the UHI; at least no direct. What I had stated in the previous chapter is the circumstance that UHIs can lead to an indirect positive human rights development via the rail shot over international order. Both can be seen in Liberia and Kosovo. ‘No direct impact on human rights’ is also correct for the case of Lebanon ‘76. The mere case that could have experienced an impact was Uganda ‘79. Here, a window dressing effect might have appeared, which resulted in commitment without compliance. On the reasons for these findings in general and the Ugandan finding in specific, I will elaborate in the two following subchapters.

13.2

UHIs’ Impact on Human Rights Commitment

In the last years a theory had gained track in human rights research that is at first sight paradox, but nonetheless able to explain why in the case of the intervention in Uganda, an improvement of human rights commitment has been visible but none to compliance. This is the theory of “window dressing” (Hafner-Burton & Tsutsui 2005: 1378). It describes a practice by which states commit to human rights and ratify treaties of this regime in order to avoid pressure that leads to compliance. I have argued above that such a case appeared in North Macedonia, yet has not been caused by NATO’s UHI, as it was less costly for the government to commit to human rights treaties, but more costly to actually change internal policies and practices in order to comply with existing, ratified treaties or the just ratified ones (Koinova 2011: 813). Under this theory of window dressing, external pressure to contribute to human rights would lead most likely to human rights commitment in states with weak internal legal structures; foremost non-democracies. States with a strong legal system bear higher costs when they commit to new treaties, since their citizens are

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more likely to demand compliance (Hafner-Burton & Tsutsui 2005: 1380f; Hathaway 2002: 2014 & 2019f; ibid. 2003: 1836–9; ibid. 2007: 612f). Goodliffe & Hawkins called this rational calculation the “logic of consequences” (2006: 361) by which states analyse “the rewards for commitment and the penalties for norm violation” (ibid.). They argue that only at times ‘appropriateness’ would kick in, a notion shared quite frequently in HR research. This, however, would mean that recognisable compliance would trail commitment with time distance (ibid.; Hathaway 2002: 2010; Moravcsik 1995: 184; ibid. 2000: 217f; Neumayer 2005: 931f); resulting in methodological difficulties to detect them. The problem of this theory for human rights practice is that by window dressing, states can deflect external pressure. Human rights are no part of international relations, for which third parties are frequently willing to bear costs of enforcement—unless violations are culminating at least close to genocidal dimensions. Thus, especially democracies might be satisfied to recognise commitment and refuse to scrutinise coinciding compliance. Considering this aspect, commitment “can serve to offset, rather than enhance, pressure for real change in practice” (Hathaway 2002: 2020). A similar but less problematic aspect is the fact that several regional organisations make the commitment to specific human rights treaties mandatory for their members. If this requirement is not matched by compliance procedures, it gives an additional incentive to window dress (Hathaway 2002: 2003; Ignatieff 2003: 6f). The theory of using human rights commitment as window dressing in order to deflect from an external pressure can explain the finding of an increase in the HR4 (human rights commitment) in the states neighbouring Tanzania after the UHI.

13.3

UHIs’ Impact on Human Rights Compliance

The statistical findings on human rights compliance proved to be unrelated to UHIs having reviewed two states each for the cases of Liberia and Kosovo. I have found that in the cases of Benin and Côte d’Ivoire (Liberia 1990) the diverging compliance directions had been originating in domestic causes and not in pressure felt through the UHI. In the cases of Croatia and North Macedonia (Kosovo 1999) I concluded that it indeed had been external pressure, but not by the Kosovo intervention. Those states were rather drawn closer to the European Union and had to adapt their human rights politics in consequence. In sum, for UHIs’ impact on human rights in the region affected by an UHI I had to determine a null-finding.

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Taking a look at HR research, this null-finding can be explained by three different paths leading to compliance, military coercion as a by-product of an UHI being not among them. Firstly, research has identified in several empirical studies the correlation between strong civil society resp. active nongovernmental actors that force domestic institutions to comply with human rights standards. In this view, commitment is not the necessary origin on which human rights actions are based, but rather might be a step on the road. Commitment here, however, can be the base on which such actors not only politically advocate for compliance with HR standards, but also legally challenge short-comings (Goodman & Jinks 2003: 176; Hafner-Burton & Tsutsui 2005; ibid. 2007: 422f; Hathaway 2002: 2022f; Hill Jr. 2010: 1163f; Neumayer 2005: 926, 930 & 950; Risse & Sikkink 1999: 3f). Secondly, as said before, compliance trails commitment by quite some time since the latter needs a process of internalisation and structural changes. States complying previously less with HR norms are facing costs for improvement. Those costs are reduced, when the change is not enforced overnight, but implemented over time. This would also mean that the larger the gap between actual and supposed-to-be compliance, the longer it takes for reaching higher compliance (Hafner-Burton & Tsuisui 2007: 408f; Hathaway 2002: 2003f & 2010; Lebovic & Voeten 2009: 81; Moravcsik 1995: 159; Neumayer 2005: 931f; Risse & Sikkink 1999: 3f). Finally, there remains one path to improve compliance, which is close to the theorem posed in chapter 5: improvement by international pressure. Yet, in HR research this pressure does not equal military coercion. Beitz, who elaborated on a full process of international pressures leading to HR compliance, remained with his argument completely in the softer parts of pressure. He started with accountability, meaning that the first step of international pressure is the measurement of HR compliance and its transparency for international society, and ended in a step of external adaptation, which included cost incentives and cost penalties resp. sanctions (Beitz 2009: 33–40). Other notions of international pressure are less differentiated and focus on pressure by naming and shaming as well as using sanctions to coerce (Hafner-Burton & Tsutsui 2005: 1385; Moravcsik 1995: 160f; Nielsen 2013: 800). In sum, in HR research military coercion is not seen as a way to increase HR compliance in other states.

13.4

The Impact of Previous UHIs on Human Rights (Chapter Summary)

The study of the human rights impact of the four UHIs, for which a quantitative analysis was possible, in Lebanon, Uganda, Liberia and Kosovo has resulted

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most of all in a null-finding. While a parallelism with a change in human rights commitment or compliance could be detected, the sample studies in Liberia ‘90 and Kosovo ‘99 for two exemplifying states each have shown that no causation existed. Moreover, in the remaining two cases such sample studies have not been possible. However, I have to acknowledge and emphasise that in the case of Uganda ‘79 the positive quantitative result for the development in HR commitment without relating progress in compliance might be caused by a possible window dressing effect. This could have been originated in Tanzania’s intervention that had led some neighbouring states to increased treaty ratification without a parallel improvement in human rights compliance. However, this is not more than an indication. Overall, an UHI impact leading to deterrence from human rights violations could not be verified and has to be anticipated as very unlikely. To explain those findings, I have taken recourse in this chapter on generally accepted theories in human rights research. The most important one for the study of UHI’s impact on HR was the above mentioned window dressing paradox. This paradox argues that states try to relieve themselves from external pressure, which requests human rights improvement, by ratifying HR treaties, yet without letting an improvement in actual HR compliance follow. This corresponds with the general understanding that compliance in HR does not happen overnight, but is a long-term development. Thus, while it is quite easy and cost efficient for states to commit by treaty ratification, it is much more difficult and cost intensive to change the actual HR conduct of state agencies, state officials and even national law in order to reach a better HR compliance. Beyond the situation in the intervenee, the best direct impact an UHI can have by this understanding is an increased commitment in neighbouring states; yet this possibility remains on a weak empirical fundament so far.

UHI-Impact Theory and Implications for the Understanding of International Society

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In the final chapter of this thesis, prior to the conclusion, I will transfer the results of the empirical-analytical assessments to UHI-impact theory and discuss the deduced implications for international society theory and norm research. The original main contribution of this thesis has been the assessment made for the solidarist and pluralist assumptions on the impact of humanitarian interventions that were conducted illegally. In the first subchapter I will now develop a theory on UHIs’ impact on international order and human rights based on the study just conducted. For this five aspects and elements will be considered: a) the impact UHIs can have on the different levels of international society, b) the difference between (at least) input-defined UHIs that had been conducted by motivation (integrous UHIs) and (solely) outcome-defined UHIs that were conducted without a humanitarian motivation, but with a positive relief effect on a massive humanitarian emergency (para-UHIs), c) in connection with this the missing resp. negative impact of para-UHIs and illegitimate AHIs (abusing AHIs), d) further, the importance great power participation or great power confrontation will have for the impact of UHIs, and e) the conditioning effect of the conduct of UHIs on their potential impact. In result, this subchapter will state an UHI impact theory with four distinctive and important variations (legitimacy claim, deliberative action, conduct, and great power involvement) at the beginning, while additionally offering a transfer of the UHI-focussed theory to humanitarian interventions in general. Besides this original main contribution of the thesis, I have directed two chapters (2 & 3) to the larger HI and R2P debate and the (in my view) most important, relating IR theory: the English School or international society theory. I explained at the end of subchapter 8.4 that I will attempt to make deductions on international society theory by the findings, assessments and comparisons made in the previous © The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2021 C. Pohlmann, Unauthorised Humanitarian Interventions in World Politics, Globale Gesellschaft und internationale Beziehungen, https://doi.org/10.1007/978-3-658-32179-6_14

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five chapters. Therefore, in a second subchapter, I will do so by a) reviewing the solidarist and pluralist views on our current international society in the light of this thesis, b) explaining which lessons can be drawn for the understanding of norm evolution and therewith the institution of international law, c) advancing on the R2P and HI debate by interpreting the current status of the R2P and arguing for a reflected academic handling of this norm, d) transferring the theory of UHIs’ impact to the more abstract level of the legality-legitimacy nexus, and finally e) drawing conclusions for the institution of great powers as well as the interaction between secondary and fundamental institutions. I will, in sum, connect my studies and theoretical elaboration to the two strains of the broader academic discourse: the R2P resp. HI debate as well as English School’s work. This chapter, in result, will leave the empirical and interpretative focus of the previous chapters. It will offer a theory of UHIs’ impact. Moreover, it will also submit to a modern understanding of international society after the emergence of the R2P norm and the conditionality between legality and legitimacy.

14.1

Theorising the Impact of Unauthorised Humanitarian Interventions on International Order and Human Rights

The common way of researching the impact of humanitarian interventions is the perspective on the micro-level: states, or better the state being target of the HI, the intervenee. The impact on this micro-level is the same for unauthorised as for authorised humanitarian interventions: when the legitimate objective is accomplished, it will mitigate an existing massive humanitarian emergency. The impact on the micro-level is a direct one and cannot be indirectly achieved, otherwise the intervention would be non-humanitarian. The directness-humanitarian conditionality is a constructed, yet in the academic and political discourse accepted one. As democrat I believe, of course, that democracies are over time more peaceful than non-democracies. So, an intervention with the purpose of regime change can (besides the difficulties of transition), in my view, lead indirectly and overtime to a better human rights situation. Yet, such an intervention without the humanitarian motivation or the near-time positive relief effect on a massive humanitarian emergency, would not be seen as humanitarian. An indirect humanitarian impact on the micro-level with a time lag is possible by non-humanitarian interventions, but in the broad discourse these are not categorised as humanitarian. The condition for the criterion ‘humanitarian’ on

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the micro-level is, therefore, that it has to be direct. The impact of humanitarian interventions on the micro-level is in this sense tautologically direct. The intended surplus of this thesis has been to understand which impact unauthorised humanitarian interventions have for international order and human rights on the supra-micro levels. Would I have conducted another study for the microlevel, I would have chosen another research focus. As it happened, the study of the impact of the UHI in Liberia led me to an additional differentiation between the impact on the regional and the international level resp. order: a differentiation between the meso- and the macro-level. These impacts are, contrary to the microlevel direct for international order and indirect for human rights at these levels (see Table 14.1). Drawing on my study, I argue that unauthorised humanitarian interventions can have an impact on regional and international order. The unauthorised feature means that they are conducted illegally. This illegal conduct challenges the existing order, may it be the regional or the international one. What is necessary, however, is that this progressivism is made explicit or at least the UHI is conducted with integrity. I argue that the former has a larger impact probability, since it actively leads to deliberative action. Supporting or opposing states will likely come forward and express their position explicitly or implicitly. To alter international society in a more solidarist direction, an intervener has not only to deliver a positive relief effect but must step out of the shadow and argue its case. An intervener not merely determined in stopping a massive humanitarian emergency right here and now, but also to push international society in the direction of a better human rights enforcement in the future, has to deliver his arguments and be subject to deliberations and critique. The mere academic debate of para-humanitarian interventions does not change international society to a more solidarist form. By such a discourse the intervention can impact and perhaps lead to an alteration of the existing international order. Both have been seen with Liberia (1990) in ECOWAS leading to a regional norm evolution and with Kosovo (1999) in the UN (esp. the UNSC) leading to an international norm evolution. An implicit and integrous UHI (as seen in East Pakistan ‘71) obviously has a significant reduced impact chance, since the necessity of reaction for opposing actors is lower in comparison. However, such an impact is still possible, as can be seen in UNGA’s 2003rd plenary meeting (UN-Doc. A/PV.2003). Thus, the impact of an UHI depends, foremost, on the explicitness and normative quality of the justifications given for its conduct. To alter regional or international order by an UHI needs the willingness to communicate this desired alteration.

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Table 14.1 UHI-impact on the three levels of international society Level

HRa -impact

Primary impact

Secondary impact

Micro (state)

direct

Human rights

Domestic order

Meso (region)

indirect

Regional order

Human Rights

Macro (global)

indirect

Global order

Human Rights

Source: Author’s own table a The abbreviation is as follows: HR (human rights)

Contrary to the micro-level, on the meso- and macro-level the impact on human rights comes second, the one on order first. My analyses and assessments showed no direct impact on human rights on the regional level. The improvement on human rights can be witnessed indirectly by a more humanitarian international order; by a society willing to enforce human rights, when massive violations appears. International human rights are not maintained by an invisible hand. They need states willing to enforce them, and for this it is necessary that such an improved enforcement is accepted as legitimate. That is what has been seen in Liberia and Kosovo: A regional community and an international society are first coerced and subsequently convinced by a progressive actor or group of actors to move forward towards a more humanitarian society resp. community. Sure, in both cases there was a direct impact on Liberia and Kosovo (more in the latter and significantly less in the former), yet the impact on human rights beyond the sphere of the intervenees just came over the years. In the case of ECOWAS it was following after the adaptation of the regional legal framework (and with some international capability support); in the case of the United Nations it was following after the introduction of the R2P concept by the ICISS, its adaptation and adoption as a norm by the UNGA and its implementation and practical integration in everyday politics by the UNSC. These instances of norm entrepreneurship are sometimes neglected in norm research (Wunderlich 2019: 26f). Hence, an impact of UHIs on human rights is conditioned by a successful change in international order, which has to come first. Above, I argued that interveners have to express their motivation and justification at least implicitly. Otherwise, an intervention with a positive relief effect on a MHE cannot deliver any impact. I have already been sceptical on such outcome-defined humanitarian interventions at the beginning of this thesis. In my view, such HIs remain para-HIs without an integrous motivation determinable or explicitly expressed. While I second Tesón and Wheeler, in the argument that para-UHIs should be legally excused, although violating international law, I do

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not see them as challenging for international order. I highly doubt that the way to a right to humanitarian interventions beyond UNSC authorisation would be opened up by such para-UHIs. They logically will not and cannot have any enduring impact on international order. Hence, I re-emphasise that (esp. the academic) debate should discard the idea of para-UHIs having anything to serve for the normative desire of a more progressive, humanitarian international order. Academic adventurism on a right to humanitarian intervention without motivation, does not serve the evolution of the responsibility norm. Para-UHIs, being seen as excusable at best, are in a normative defensive position from the beginning that hinders any norm evolution impact. Similar, but even worse, are in my view actions that I describe as abusing AHIs: interventions that are legal and authorised by an UNSCR for the purpose of dealing with a MHE, but are then not conducted by the intervener primarily for this purpose. Those abusing AHIs are causing severe damage to the humanitarian parts of international order. An example of this has been, in my view, NATO’s AHI in Libya. I have called it the opposite of Kosovo. While Kosovo has been illegal, but legitimate, Libya has been legal, but illegitimate. The effect of such abusing AHIs is dangerous. They bring those states, which were sceptical about a more humanitarian, perhaps post-Westphalian international order, to take again a suspicious position. Abusing the mandate for a HI, will lead to more difficulties in coming situations where the international society should act in order to save lives. This is a process that can be witnessed in the development from the AHI in Libya to the missing AHI in Syria. Abusing AHIs have in my view a far more dangerous potential than conducting UHIs, esp. integrous ones, have. Two other differences of the impact of UHIs comes with the participation of at least one great power or the confrontation between great powers. Impact here goes in both directions: a progressive impact, being positive for human rights, and a perhaps negative impact, being eroding for international order. While the participation of a great power functions as an amplifier, the confrontation of great powers in the wake of an UHI opens up the potential for a negative UHI. I even argue that this negative potential does not exist without great power confrontation. Starting with the first difference: participation means that the weight the developing debate about a normative change would take, is far more enduring and has a higher chance of resulting in an actual norm evolution, than without the participation of a great power. Great powers are not only delegated with higher responsibilities than normal powers, their opinions and normative actions are also more valued (Bull 2002: 196f). If a great power claims that in the case of a MHE there is a legitimate cause for humanitarian intervention, this will have a higher impact than a claim by a regional or ‘normal’ power.

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Coming to the second difference: great power confrontation. Confronted with an UHI-conducting fellow great power, other GPs have to consider whether this constitutes as an alteration of balance and an encroaching in its own sphere of influence. Interventions in ‘neutral regions’ or intra-hegemonical interventions are here less problematic. For example, an UHI of the United States in the nonRussian leaning parts of Latin America should be less problematic. Interestingly, the opposite would not be the case, what supports the estimation that Russia is a quasi-great power without an unchallenged hegemonical sphere, as can be seen with the international outcry following its intervention in South Ossetia. An UHI by a great power in the rivalling sphere of another GP, therewith, brings with it a potential negative impact on international order. While the positive impact focussed on in this theoretical consideration, derives its evolutionary force out of norms and beliefs about legitimacy, the negative impact would derive its force out of fear and the classical security dilemma. Thus, while the great power participation without their confrontation serves as a bidirectional amplifier for the impact of UHIs, great power confrontation opens a path to a potential negative impact. Having stated this, the best way to minimise the potential for such a negative impact is to adhere to the rationalist wisdom of security politics. The actors should conduct their UHIs as transparent and open as possible for a military operation. The rules of engagement must be in accordance to the humanitarian goal. The post-relief phase has again to observe the rules of international law and should be based on an UNSCR as well as integrate forces of the GP in which (claimed) sphere the UHI had taken place. Almost all of these advises had been observed in the case of Kosovo. This has led me to the argument that it had a ‘mildly negative’ impact on the Western-Russian relations only. Compared to the negative impact of the Iraq invasion, Kosovo has brought anything but a paradigm change in the Western-Russian relationship. Hence, to reduce the negative impact of an UHI conducted by a GP in the sphere of interest of a fellow GP, the intervening side has to forsake every desire to increase its unbalancing influence in the state being targeted and put the humanitarian purpose first at any time. By an UHI with such a high integrous conduct (similar to the guidelines in the original R2P concept [ICISS 2001]), a minimally negative impact on international order can be assumed. In contrast, in my perspective an unrestricted UHI, conducted by a GP in the sphere of a fellow GP shares many negative potentials of the above-mentioned abusing AHIs. Whether an HI has been abused for other purposes or a UHI has been regarded as significant danger for another great power, in both cases there is the potential of a decreasing ability of international society to maintain and

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enforce human rights. HIs have to be conducted with integrity and, esp. when leading to great power confrontation, with caution and transparency in order to have the negative potential being outweighed by the potential for a positive impact. In sum, what matters for the positive impact of humanitarian interventions beyond its legitimacy and the deliberative action is the way they are being conducted. An integrous conduct with transparency and minimal infringements on international law can strengthen the solidarist international society, esp. when conducted by a GP. Abusing humanitarian interventions for non-humanitarian purposes, on the contrary, support those that advocate for the classical pluralist international society, and misuse humanitarian interventions for an alteration of the balance of power even endangers international order altogether.

14.2

Towards a More Solidarist International Society: A Transfer to International Society Theory and Norm Research

The study of the impact of UHIs shows the stability international society has today. The pluralist picture of floodgates that would open (Linklater & Suganami 2006: 140; Wheeler 2000: 47) is a nice visualisation, but not much more. Kosovo has shown that an UHI either does not open the floodgates or those gates are quite antique and lost their purpose with a sea beyond the gates that is significantly less rough than it had been in previous times. Moreover, to stay in this picture: The floodgates protecting the principles of non-intervention and state sovereignty have been supplemented by a sluice, harmonising the humanitarian norm of the R2P with the two fundamental principles of international society. R2P has become an accepted exception in the general prohibition of the use of force. It is most of the time conducted under Chapter VII regulations and with the legal authorisation of an UNSCR mandate, yet its use shortcutting the legal procedure does not let the waves of war re-enter the dry land of the global international society we have established since the end of the last world war. The global international society of the twenties in the 21st century is still in its core a pluralist international society. A core that is built on states and the principles of non-intervention and sovereignty. Yet, since Kosovo and the evolution from the concept of R2P to the humanitarian R2P norm, this pluralist international society has not only witnessed the potential for solidarist supplements but incorporated some of its elements. The progressivism responsible for this change in society came in the 1990s with the increasing humanitarian UNSC and gained a push by Kosovo in 1999 as well as ICISS’ concept in 2001. Besides the still

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existing moments of contestation by some remaining sceptic actors, it has become a stable norm that has an everyday impact on world politics. In this society, the outside option in violation of international law has been used for a norm entrepreneurship. Yet, the option had remained legitimate, consensually accepted, and therewith successfully pushed the R2P norm emergence forward to a decisive extent. Besides the Western weaknesses in times of populist-isolationist governments on both sides of the Atlantic, the pluralist international society of the 21st century is one with still enlarging solidarist potentials. This pluralist international society with solidarist potentials is no longer built solely on common interests. The R2P is a norm of common values. It has changed the institutions of international society. International law has not only witnessed a norm innovation and integration, it has also witnessed a change in the way it usually changes. The classic way to alter law is, esp. in the UN era, by new treaties and amendments to existing treaties. Of course, the change by customary international law is not new. Yet, it has come in almost any case over time. Kosovo has been different in this way. Since the R2P has been adopted, while adapting, by the UNGA and subsequently established in practice by the UNSC, it for sure is new international law. A law by codification and practice as is the common way of a norm implementation. Yet, its introduction did not come through diplomacy alone, but to a significant part by war and the prospect for conservative states that a new norm could be established by customary international law beyond their reach. Kosovo opened up the possibility for a ‘fast-track norm evolution’. What remains, however, and this can be seen in Libya, is society’s unwillingness to jeopardise institutions based on common interests, in order to integrate value-based rules. Offering a way of harmonisation, those values can be incorporated in the existing order. This is good news for norm entrepreneurs that are willing to establish new (solidarist) norms and more value-based rules by using an illegal, but legitimate shortcut. Kosovo offered the prospect for norms established to a significant part by coercion rather than diplomacy alone. R2P and Kosovo showed that norm evolution can happen by entrepreneurial legitimacy claims, which are introduced by action rather than negotiation. Let me shortly make two notions on the current state of the R2P and the academic debate about it, before transferring the norm evolution argument to the legality-legitimacy nexus. R2P currently is an established norm, however contested it may be seen in parts of the academic debate. Yet, this does not equal a universally enforced norm. Almost no norm is respected always, by all actors

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of international society.1 Syria in this sense is not the rebuttal of R2P, but its exception in a situation where the Western unity is weakened, and a local conflict erupted on the fault lines of regional as well as global spheres of interests. As I argued in chapter 12, we live today in a more stable great power elite pact than can be assumed when focussing too much on international media. It will most regrettably happen in the future again that we witness most severe humanitarian emergencies, while international society will not be able to act as immediately as necessary. However, I am convinced that in perspective we will be able to realise that most parts of the world, esp. those within the West, Latin America, Africa and Oceania will enforce the norm of R2P; and even other parts of the world will not abstain, but merely need more time to adapt and internalise the R2P norm in the sense of a norm life cycle (Finnemore & Sikkini 1998: 904f). This circumstance is anything but sufficient. For sure, the critique about failures to enforce the R2P and the demands for a right to HI beyond UNSC authorisation will continue; not at least also in the academic debate. Yet, I cautiously advise that our academic field should stay in the tradition as the ICISS set an example of. To offer a way to implement a challenged resp. altered and revised principle, as the ICISS has done for the principle of state sovereignty, is helpful for progressive actors that wish to advance to a more solidarist international society with a stronger ability to enforce human rights. To demand revolutionary actions that leave the broad consensus of legitimacy, is all but helpful. It leads to a more restrict opposition of those actors of international society preferring the status quo. To rationally calculate how to save the most human lives in the longterm is scarcely inhuman; it is the calm and prudent way I identify with academic work.

14.2.1 The Legality-Legitimacy Nexus: Implications for Norm Research I now come back to the implications for norm research, which can be deduced by the study of the impact of UHIs. This study may offer a new insight in the relation between legitimacy and legality. The reason we are focussing on legality more than legitimacy is the source of legality and the functions it plays. International law, and hence legality, is derived from what is deemed legitimate. The first 1 This

notion is coinciding with Henkin’s famous tenet of international law: “almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time” (Henkin 1979: 47).

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source of international law has been the customary conduct of international entities, nowadays states. What was legitimate became legal. Legality in this sense will reproduce legitimacy. Hence, one could, from a progressivist point of view, argue that legitimacy is far more important than legality. Legality, however, offers a function that legitimacy cannot. Legality came in earlier times with juridical works as Grotius’ De Jure Belli ac Pacis, and nowadays with codified international law. One can far better determine for sure what is legal, than what is legitimate. For claims of legitimacy it is normal to face challenge, for claims of legality it is the exception. Non-progressive actors, which are interested in a cost-efficient pursue of their national interests, can rely on international law. Progressive actors have to bear costs to convince based on a legitimacy claim that is contrary to existing international law. Legitimacy without legality is anticipatory and uncertain. Yet, the opposite is likewise problematic. Legality without legitimacy can lead ultimately to its decay. I argue that at this point it does not matter whether being authorised or unauthorised: HIs leaving the fundament of legitimacy are a threat for human rights. The former might be formally legal, but, when conducted outside of international consent, results in a more restricted enforcement of human rights in the future. An intervention, being illegal and illegitimate is a lesser danger for human rights and international order; an outlaw cannot change society’s perspective on what is appropriate. In contrast, a democratically elected tyrant could. Hence, a legal but illegitimate AHI has the potential of being the source of a legal decay. Thus, the study of the impact of UHIs, supplemented by the insight in the Libyan and Syrian cases in subchapter 12.4, led me to conclude that there is an important aspect for norm evolution this study can offer. Specifically, it can offer a new perspective on the relation between legality and legitimacy. While a norm will be stable, if both sides of what is right match, the norm will be subject to change, if they do not (see Table 14.2). Legality without legitimacy leads to revisionist contestation and perhaps norm decay. Legitimacy without legality, however, has the potential for a norm evolution or progressive contestation. The higher the discrepancy between legality and legitimacy the higher its pull in a new direction.

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Table 14.2 The legality-legitimacy nexus Legality-legitimacy nexus

Legality

No legality

Legitimacy

Norm stability

Norm evolution

No legitimacy

Norm decay

– /–

Source: Author’s own table

14.2.2 Interdependent Institutions: Implications for International Society Theory Finally, I want to draw two lessons for our understanding of the institution of great powers and the connection between the fundamental and secondary institutions of international society. As I have esp. argued based on my interpretation of the Kosovo impact on international order and explained in chapter 12, I estimate the institution of great powers to be more stable than commonly expected. Its ability to address the demand for a humanitarian norm and incorporate it in an altered, more solidarist international order is hardly normal in the history of great power relations. I have argued that today the great powers derive more power by their elite pact than is the sum of their individual power. Perhaps this is a circumstance originating from the highly interdependent global society that is quite the opposite of the former bipolar system of the Cold War. What I observe by scrutinising the impact of the most important UHI in Kosovo, is a paradox: the result of this severe challenge of the existing international order has not weakened this elite pact and the institution of great powers, but made it even stronger in their mutual politics. This understanding of the impact of the UHI in Kosovo on the UNSC and the great power concert has two further interesting implications for international society theory. First, the norm originated to a significant part in the concept of an extra-international expert group, an actor of world society, but not international society in the classic sense. Secondly, arguing that the UNSC has been the important driver behind the manifestation of this norm leads to a new understanding of the conditionality between the fundamental institutions and secondary institutions of international society. It means that secondary institutions are not simply subordinate to fundamental institutions. Instead, their actions and policies can change the meaning of fundamental institutions as well; the relation between both is bidirectional. In the present case, the UNSC actively altered elements of the institution of international law and as a matter of fact, as argued above, the

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way this institution can be altered. In so far, Knudsen has been correct in my perspective: considering the importance of the UNSC for the R2P norm evolution, secondary institutions, indeed are “drivers of fundamental institutional change” (Knudsen 2019: 24).

14.3

Four Conditionalities for the Impact of UHIs and Their Implications (Chapter Summary)

The existing pluralist fear about the negative-eroding impact of UHIs on international order has been based on their illegality. The argument is one of over-simplicity: UHIs violate international law and are hence opening the floodgates to all kind of illegal conduct by force as well as eroding the fragile trust between great powers. It is over-simplified due to four short-comings: a) it ignores the importance of legitimacy and the legality-legitimacy nexus, b) it negates in a classic realist sense the influence of deliberative action for the assessment of practical action in international politics, which is an important factor for the impact a practical action has, c) it underestimates, similarly, the effect the (abusing or integrous) conduct of the actual UHI can have, and d) although it included the fear of especially the GP confrontation in the wake of an UHI, it ignored the potential an UHI gains by GP participation. As is argued in this thesis, the impact of UHIs is not based in its illegal feature alone. My theory of the impact of unauthorised humanitarian interventions argues, first, that the illegality is only one of four impact conditions. In fact, the illegality of an UHI is not eroding international law. An AHI conducted legally, but illegitimately is far more a source of erosion than an illegal but legitimate UHI is. That is what the comparison between the UHIs, esp. the one in Kosovo, and the AHI in Libya has shown. I argued that legitimacy without legality can lead to positive-progressive norm evolution, while legality without legitimacy might lead to negative-eroding norm decay (see Table 14.2). The second impact conditionality comes with deliberative action. The most a para-UHI (one without motivation, but the positive relief effect on a massive humanitarian emergency) can deliver is a new round in the academic debate. Para-UHIs that will save human lives but are not justified in international society on humanitarian grounds, will miss the opportunity to challenge the existing normative convictions in international politics. That is what has made Kosovo and Liberia exceptional: The willingness to save human lives met the willingness to challenge the principle of state sovereignty, which had led in its rigidity to the development on the ground in the first place. This second condition is a challenge

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for every adherer to strict realists’ beliefs: Power without argument cannot alter the (normative) fundaments of a society. Thirdly, the at times harsh critique on NATO’s conduct in Kosovo constrains the impact assessment on the micro-level and ignores the importance the right conduct of an UHI will have on the meso- or (in this case) the macro-level. The conduct of an UHI is most of all aimed on saving human lives, but it cannot ignore the implications it will have beyond the situation on the ground. A good conduct of an UHI aims primarily on saving as many civilians as possible, yet it has secondarily also to aim at minimising the frictions the violation of international law will have in the long run. Under great power confrontation a good conduct has to include the opposing powers and make the own actions as transparent as from a military point of view possible. The right and good conduct of an UHI can minimise its negative-eroding potentials. Related to this is the conditionality that comes with great power participation or confrontation. This is the sole point where the pluralist fear remains vivid in the perspective of my research. A great power confrontation has the potential of a norm weakening, erosion or even decay. It can be minimised by a strong and explicit legitimacy claim and the right and good conduct, yet, it remains an important factor that inhibits the potential of a negative eroding impact. Somewhat different is the mere great power participation, without GP confrontation. Here the potential goes in both directions: negative-eroding or positive-progressive. I have emphasised to view this potential less as a variable in itself, and more as an amplifying effect that GP participation will have. Thus, in my theory on the impact of unauthorised humanitarian interventions, I argue that such interventions have a more positive-progressive potential than previously estimated (see Table 14.3). Their danger for international order comes with an abused motivation, and especially an unmanaged GP confrontation. For the positive-progressive impact the explicit norm challenge and integrous conduct are necessary and (at best) a GP participation without GP confrontation is helpful. Coinciding with this, I argue that abusing AHIs are far more dangerous than previously estimated. This UHI-impact theory is focussing on the regional and global level. The aim of this thesis has not been to deal with the micro-level impact. The impact on these two levels of international society is directed on international order; the case studies have shown that the impact on human rights is an indirect one that is caused by the change in the regional or international order. The research on this UHI-impact has led to two implications for international society theory and one for norm research. First, I argue that international society is still at its core a pluralist one, but its solidarist potentials are rising. This can be

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Table 14.3 Impact conditionality of humanitarian interventions Negativeeroding

Neutralaffirmative

Positiveprogressive

AHI

Abusing (conduct)

Integrous (conduct)

–

UHI

–

GP involvement

Confrontation

–

Participation

–

Abusing (conduct)

Implicit/para

Legitimate, explicit (justification) & integrous (conduct) Participation

Source: Author’s own table

best seen by the way the ICISS’ R2P concept has been implemented. The core of this concept is still vivid in the R2P norm, while at the same time the UNSC and especially the great power ‘elite pact’ has taken control of the maintenance and enforcement of this norm. It is the classical state-driven society that is in control of how this norm will be practised. Secondly, for English School’s theory as such, this research has much to offer. I have argued that the UNSC has altered the way the institutions of international law and great powers work. Secondary institutions as the UNSC are not simply subordinate to fundamental institutions. This understanding would be a unidirectional one. Reviewing the process the R2P has undergone, it seems obvious that such a traditional understanding of the role of fundamental and secondary institutions does not meet with their bidirectional relation in reality. Concerning norm research, I have emphasised that it is important to understand not only how a norm can emerge, but also that it can face decay when a legal norm can no longer been seen as legitimate. Due to my understanding of a legality-legitimacy nexus, I argue that legality without legitimacy can lead to revisionist contestation and perhaps norm decay (see Table 14.2). Legitimacy without legality, on the other hand, has the potential of becoming a norm evolution or progressive contestation. In this transfer chapter I have laid out a theory on the impact of unauthorised humanitarian interventions beyond the actual situation in the state intervened in. Comparing this theory with the assumptions of the solidarism-pluralism debate it includes a differentiated view with positive and negative potentials. The implications this theory has for international society theory and norm research are interesting: the empirical assessments of the UHIs and their impact in the UNSC let me to assume that international society is indeed proceeding in a solidarist

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direction, although with a broad and stable pluralist fundament. In this sense, the fundamental institutions of Hedley Bull are a slight degree less fundamental than often stated. The R2P evolution has shown that both international law and the great power concert can be affected and (at least to some point) altered by international practice and norm integration.

Conclusion

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The present thesis scrutinised which impact unauthorised humanitarian interventions have on international order and human rights in six individual cases that have been empirically-analytically assessed and compared for their findings, while transferring the results to a theory of unauthorised humanitarian interventions impact on international order. For this research purpose the HI and R2P debates have been reviewed, a definition of UHIs with general HI criteria established, and based on a combined data set all UHIs from 1946 to 2005 identified. On the way through this research several theoretical aspects have been elaborated on, all having a connection with the function the UNSC is playing in norm evolution and international order. Connecting to the impact theory established in the previous chapter, I have outlined an understanding of the conditionality between legality and legitimacy, the legality-legitimacy nexus. Connecting with the study of the UHI in Liberia (1990), I argued for a sub-UNSC, a regional approach to a right to humanitarian interventions and, hence, deepening R2P norm. In this conclusion, I will first direct the attention to the main contribution of this thesis. The generation of an UHI impact theory based on the findings made and their interpretations. Secondly, I will transfer this theory to norm research by explaining the conditionalities that I deduced on the legality-legitimacy nexus. In three following sub-conclusions I will review the R2P debate, argue for a sub-UNSC approach in this context and review the definition used in this thesis. Finally, approaches for follow-up studies will be outlined.

© The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2021 C. Pohlmann, Unauthorised Humanitarian Interventions in World Politics, Globale Gesellschaft und internationale Beziehungen, https://doi.org/10.1007/978-3-658-32179-6_15

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Conclusion

Elaborating on the Empirical-Analytical Assessments: A Theory on UHIs’ Impact on International Society

The thesis has shown that besides the direct impact of an intervention on the humanitarian situation in the state intervened in, those instances that are conducted unauthorised can have a significant positive-progressive impact on international order as well. This impact beyond the micro-level is conditioned on a) the legitimacy the UHI received, b) the explicit reasoning of the intervention with such a legitimate motivation, c) the conduct of the UHI, and d) the status of the intervening actors. Based on the Kosovo case assessed in chapter 11, but similar as well the intra-regional case of Liberia in chapter 10, the argument developed in the case comparison in chapter 12 is that an UHI that is deemed legitimate, can be a driving force for norm evolution. The impact varies by the explicitness by which the actors are challenging the existing international order, the UHI’s conduct, and their status resp. the power international society is identifying with and projecting on those intervening actors. The more legitimacy the intervention has, the more explicit the challenge of the existing international order is, the higher the integrity of its conduct is, and the more power is associated with the intervener, the higher the positive-progressive impact of an UHI on international order will be. Positive-progressive impact in the case of a humanitarian ambition means that international order is pushed towards a more humanitarian international order. The contrary to this type of impact is a negative-eroding impact on international order. This impact type is the one assumed by pluralists in the consequence of UHIs and has been the research interest, which led to this thesis. Negative-eroding impacts are at best avoidable, or manageable and containable. Without a powerful force, esp. great powers, as the intervening part of an intervention and without great power confrontation, a negative-eroding impact has not been observable in the existing UHIs. This is the conclusion deriving from assessments of the UHIs in East Pakistan ‘71, Lebanon ‘76 and Liberia ‘90. Even more convincing has this observation been for UHIs that had merely met the humanitarian outcome criterion, the positive relief effect on a massive humanitarian emergency, but not the input criterion, the humanitarian motivation. Cambodia ‘78 and Uganda ‘79 have been such cases, which I call para-UHIs. I assume that due to the circumstance that these interventions have been conducted while neither actively challenging the existing principles of non-intervention and sovereignty in general nor aiming at least secondary at a norm evolutionary process, they cannot alter the institution of international law, and hence not endanger international order. In consequence, the pluralist dystopian picture of

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floodgates opened by the emergence of UHIs is unsubstantiated from an empirical perspective. The mere negative-eroding impact, which could be witnessed, was limited in time and on a particular great power relationship. Hence, I have called it a mildly negative impact. This case has been Kosovo. The timely negative impact was most likely restricted to the year of the intervention itself and the relationship affected was the one between the Western great powers and Russia. For sure, this relationship in general has been deteriorating since Kosovo, but Kosovo did not inevitably lead to this progress. Assessing the Kosovo case, I argue that it could have resulted in a readjusting relationship within short time. The important factor for this limited, mildly negative impact has been the conduct of the intervention itself and its transition to a multilateral accepted mission in its subsequence. NATO had conducted the intervention in a manner that reduced the negative-eroding impact as good as possible. The deteriorating relationship in the following years runs parallel to this UHI, but, I argue, has neither been inevitably nor mainly caused by it. It is interesting to see that the empirical-analytical assessment in sum showed the opposite of what has been anticipated previously in the theoretical debate on UHIs. As shown in subchapter 2.2, pluralist have drawn a disturbing picture for international society, while solidarist were mainly untroubled by any impact on international order at all. The latter were primarily interested in what can be achieved for human rights by the actual conduct of humanitarian interventions (authorised or unauthorised) on the ground, the micro-level, not the global macroor the regional meso-level. The assessment of this study showed quite the opposite. Pluralism should be far more untroubled than anticipated since UHIs can be executed without eroding negative impacts, when conducted with integrity and a broad legitimate fundament. Contrary, solidarism could have been more optimistic on the positive-progressive impact (explicitly humanitarian justified) UHIs can have on international order, and as Liberia has shown on regional order as well. In sum and as argued in chapter 14, UHIs can lead to a positive-progressive change in international order with norm evolution in the sphere of human rights, when conducted with a) broad legitimacy, b) an explicit justification and c) integrity, as well as at best d) the active support or participation of great powers. Its negative impact can be contained, when it is integrating those (great) powers that have been opposing to the intervention previously, besides staying firmly on a legitimate base.

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The Legality-Legitimacy Nexus: Transferring the Impact Assessment on Norm Research

Legitimacy has been the one conditionality for the impact theory that led me to derive implications for normative theory. In subchapter 14.2 this implication had been unfolded. Based on the insights of the AHI in Libya and the missing HI in Syria (see subchapter 12.4), I concluded that there is an important aspect for norm research in the interaction between legality and legitimacy. Most AHIs do not change the state the norm of R2P is in. Mostly such instances stabilise the norm and make it easier to adopt a resolution with R2P language in the future; practice here, brings efficiency (Gifkins 2016: 149–51). Yet, the opposite can be the case when legality and legitimacy mismatch. In Libya this was the case. The HI was legal but overreached its agreed purpose; it left the legitimate ground. The result was a more restricted application of the R2P in Syria: basically, an irresponsibility. I called this a moment of norm decay. When, however, as in Kosovo an action has legitimacy, yet no legality, this can lead to a norm evolution. This is what has been seen with the emergence of the R2P. The higher the gap between legality and legitimacy the higher the pull towards norm decay or norm evolution. In my perception of current norm research, the focus is directed on how a norm is developing, establishing (perhaps with contesting phases or actors) and internalising in the society of nations and larger global civil society. The explanation of contestation is often done by referring and focussing on the contesting actors. What I could rarely witness in literature is a more abstract perspective on the reasons why a new norm, a claim that something is legitimate, faces resistance. With reference to the conditionality between legality and legitimacy, I argue that such a more structural approach could add much to the understanding of why new norms are developing, what hinders their emergence and most of all why previous norms decay.

15.3

R2P Debate Gone Rogue

The HI debate as it is today is most of all a debate about the R2P. Chapter 3 has shown that the R2P report of the ICISS was agenda setting. Besides the circumstance that the ICISS published its report just as the world became challenged by international terrorism with 9/11, it came still at the right time. International politics had been disrupted by NATO’s intervention in Kosovo at a crucial point. It could have resettled on the old status quo, but it had the potential to advance to more humanitarian politics. The R2P report of the ICISS used this

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disrupting phase. Besides international society refocussing on terrorism and the invasion in Iraq, it accepted this agenda setting attempt in general, although discarding several aspects of ICISS’ R2P concept on the way. The adoption of the R2P norm in 2005, while adapting it, could not have been possible without the structuring and focussing input of the ICISS. Of course, the former HI debate included many elements of the R2P concept, but there had been no collectively developed document or magnum opus that could be used as singular reference. What ICISS has done for the HI debate was similar to what Grotius had done for international law. Thus, international society benefited from this academic input. The R2P norm would not have been possible without the R2P concept of the commission. Yet, I identify two problems in the HI debate after the invention of the R2P concept. First, the academic debate narrowed to this aspect of the original broad HI debate. When something narrows, then something else is left behind. The aspects of the HI debate left behind was especially much of the rich critique existing about a possible right to HI. Might it be from an international lawyers’ perspective, a global Southern one or a pluralist one. I have elaborated those in subchapters 3.2 and 3.3. While the HI debate has been a debate about the pro and cons of HI, the R2P debate was mainly a debate about how far the norm progressed and why the original R2P concept has not been totally integrated in the R2P norm. A second problem is the mostly undifferentiated use of the R2P: Many scholars are not clear whether they research on the R2P norm after 2005 or the original R2P concept of 2001. The main task of the R2P debate had been to analyse the state of the norm or ontologically argue for the full integration of the original R2P concept. A more general discourse on the impact the R2P had had, the process it has to undergo for this, and its repercussion on norm evolution, politics and research in general, would be a more sophisticated future agenda for the debate. This critique is connecting to the previous one. I argue that sticking too much to the former R2P concept has led in instances to defects in the scrutinization of the actual R2P norm integrated today in international society. The problem about this blurred focus in the R2P debate is the circumstance that it leads to misinterpretations. In perspective, the gap between the interpretation of UNSC’s function in the literature on R2P and the literature on diplomacy as well as great power politics is significant. In the reviews of literature conducted for this thesis, I had to determine that often a contribution to the R2P debate did not connect to the assessment of the work in the UNSC. Two contributions bridging this gap are Bellamy’s ‘Responsibility to Protect: The global effort to end mass atrocities’ (2009) and Hehir’s ‘The Responsibility to Protect: Rhetoric, reality and

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the future of humanitarian intervention’ (2012). By pursuing the missing parts of the original concept of the ICISS, the R2P debate (to a substantial proportion) overlooks the actual progress that had been made in the UNSC. This is true for the pluralist side as well. Several overstatements of previous HIs (and UHIs) as well as the academic discourse itself, led to an ignorance about the progress humanitarian norms have made in the last two decades. To start one’s research with ‘The Conceit of Humanitarian Intervention’ (Menon 2016) will most likely not end in an impartial appreciation of the potentials fulfilled since Kosovo. I myself started this thesis with the assumption that the pluralist fear is correct, it just has not been empirical proven yet. The re-empowerment theorem was a theorem developed in order to balance my pluralist assumptions, with a solidarist possibility; it is the sole theorem that survived the empirical-analytical assessment. Thus, the R2P debate has in some proportions gone rogue. Often, contributions pursued the idea of the original ICISS concept by the R2P and missed the bigger picture of both the entire HI debate and the place the R2P had in a world still dominated by states and especially great powers. The R2P was based to a significant part on a revolutionist approach of international society theory. I argue that it serves even the integration of the missing parts of the original concept in an actual R2P norm better, if one dedicates its own approach to the rationalist way and appreciates the concern in the society of states against a deeper R2P norm than currently existing.

15.4

Appreciating the UNSC and a Deeper Sub-Global R2P

In the empirical analyses and assessments, I showed in the chapters 10 and 11 that the UNSC is much more stable than commonly anticipated. I explained in subchapter 12.2 that this stability comes especially from the legitimacy the UNSC developed over the previous three decades. I argued that by the political practice, by its performance and by the deliberative action taking place in its chamber, the UNSC has gained this supreme position among the bodies resp. secondary institutions of international society. The UNSC is clearly not perfect. Especially when it comes to the core of the great power tragedy, the collision of spheres of interests, the UNSC is in important cases unable to act. Yet, the quantitative findings of the subchapters 10.2 and 11.2 are a strong indication that its common appreciation does not fit with its actual performance.

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Most important in connection with the UNSC is its function for the great powers themselves (see section 12.3). Through the functions and procedures of the Council the P5 gain more power than they would have alone. The elite pact that they form in its inner core has more power than the sum of its parts. The great powers benefit from the legitimacy (and legality) the UNSC can give. They are able to perform international politics with lesser costs than without the UNSC. This is the central argument why UHIs are not rushing through opened floodgates after Kosovo. To stay in the traditional international order is the best way to act for great powers (and also non-great powers). It is more cost-efficient to play most of the time the inside options, and use an outside option only very rarely. In Kosovo it had been successful for NATO, in Iraq it was not for the US and UK. To great (and other) powers and international politics in general, the UNSC is a valued tool. The interesting development is not happening against the UNSC, but outside of it. The process that started with ECOWAS’ intervention in Liberia. ECOWAS itself established an UHI without standing procedures, mandated by an ad hoc committee, against a significant part of its member states. ECOMOG in Liberia had every reason to fail, not only in Liberia, but also in ECOWAS. Yet, in perspective it had been the nucleus for a deeper regional security integration. This process has been copied since. The African Union and the SADC each integrated similar procedures and rules in their legal framework. This development in African regional communities happened not against the UNSC and the great powers, but outside of them. What is missing so far, is the application of these new regional norms (beyond ECOWAS) and without relying on a mandate of the Security Council. I have explained that such an integration of a sub-global, intra-regional right to HI is anything but simple. Since the prohibition of the use of force is jus cogens, it cannot be changed by customary international law. What, hence, is necessary is an amendment of the UNC, and this is the problematic part, since it means that the P5 have to accept such an amendment. It will be interestingly to watch how and when the sub-global way to a deeper R2P will be integrated in the UNC and systematically used.

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Conclusion

Redirecting the HI Definition to ‘Humanitarian Motivation’

To identify the universe of UHIs, in chapter 4, a HI definition and differentiation between authorised and unauthorised humanitarian interventions has been established. The definition is: ‘Humanitarian intervention is an armed interference in the sovereignty of a state conducted with the motivation to relieve or prevent a massive humanitarian emergency. Leading to a positive relief effect on such a crisis, an intervention might be seen as humanitarian likewise.’ Unauthorised HIs are then conducted without the mandate of a competent body of international society, what is in the UN era solely the UNSC. Yet (as just outlined), regional communities could become for internal HIs in the future a secondary level of competent bodies. The most criteria are generally accepted and do not need to be repeated here: for the humanitarian criterion I seconded the opinion of a primary motivation, for the massive humanitarian emergency I kept on the narrow criterion of the ICISS. However, I strongly argued that also a government under attack shall be able to issue an invitation to assist (not intervene). Otherwise, under the strict effectiveness doctrine of international law, no assistance could be provided in a coup d’état. This is a perspective that I argue firmly against, this cannot be a serious idea in international politics. A legitimate government in a state of emergency has to be able to ask for international support legally. A peculiarity of this thesis has been to elaborate the identification of UHIs based on the universe of possible cases. In chapter 6, I have combined two existing data sets for interventions and major episodes of political violence to identify these. The resulting 50 cases were scrutinised in detail in chapter 7 by the criteria established. In result, several previously discussed UHIs have been discarded, e.g. the case of ECOWAS in Sierra Leone. On the other side, I have identified the (until now) unacknowledged case of Lebanon (1976). In total, six UHIs between 1946 and 2005 have been identified. Besides Lebanon (1976), those have been East Pakistan (1971), Cambodia (1978), Uganda (1979), Liberia (1990) and Kosovo (1999). Taking a look back on this thesis and the definition as well as the case studies, I argue against a continuing inclusion of cases that ‘merely’ meet the outcome criterion for UHIs, so-called para-UHIs. From a point of international law, I advocate that those shall be excused by the mitigating effect they have for a massive

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humanitarian emergency. Yet, from an IR point of view, those para-UHIs as Cambodia and Uganda are very unlikely to have any impact on international society. To build a case of an emerging right to HI on such a case, is an argument without substance. The implicit motivation in East Pakistan and Lebanon is, likewise, limiting their impact. The explicit justification of ones actions by a humanitarian motivation, is what challenges international order. Hence, those cases with an explicit humanitarian motivation are the ones that should be the focus of a future HI debate.

15.6

Approaches for Following Research

I want to identify six paths and notions of this thesis for possible follow-up studies. The first three are directly connected to the research agenda of this thesis: a) the advancing on the studies of UHIs in specific and legitimate-illegal action as driving force for norm evolution in general, b) the study of the coinciding AHIs and the impact of illegitimate-legal actions for norm decay, and c) more generally the study of the legality-legitimacy nexus and its importance for normative theory. The other three are connected in English School’s study of fundamental institutions and (as embedded in the modern English School) the fundamental and secondary institutions. Coming to the institution of international law, I deem it worthful to d) scrutinise the possibilities for a sub-global right to HI, and e) to conduct a critical review on the effectiveness doctrine in state sovereignty. Finally, the central entity and institution of my study, can be the agenda of another follow-up study: the question would be f) how great powers operate and their concert functions in times of normative challenges (e.g. not only by facing UHIs, but also by mitigating climate change). Let me briefly explain each of those six connections for a follow-up study. Although this study has assessed the universe of UHIs, it has done so only for the time up to 2005. Later UHIs had not been scrutinised. Besides, the four conditions stated for a non-negative, positive-progressive impact of UHIs are transferable to other issues of international politics as well. An illegal action that, yet, is widely accepted as legitimate, has been explicitly justified as such, and is conducted with integrity, at best with great power support, should have a comparable impact. A follow-up study, then, could empirical-analytical assess this aspect of normative theory: How legitimate-illegal action can lead to norm evolution. The opposite direction is also possible. However, at this point I would advise to stick with AHIs in specific, before taking on other issues. I have argued (by referring to Libya) that abusing AHIs, with legality and illegitimacy, can have a

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negative-eroding impact. In a follow-up study this argument could be assessed in more detail, uncovering additional processes for which there was not enough room in this thesis. Both previous studies are connected to the general study of the legalitylegitimacy nexus. The idea of such a nexus should be connected more compatibly to the general normative theoretical discourse. This could be the task for a third follow-up study. Further, this study has criticised one sub-doctrine of international law and worked out one up-coming issue of international law. The sub-doctrine under critique is the effectiveness of a government necessary to validate state sovereignty. I have argued that it cannot be a serious idea to deny a government under siege the right to issue an invitation for assistance. Highlighting the case of Somalia, I even assume that current customary international law recognises the right of international society to install or identify a government, which could have the best possibility for domestic legitimacy, in order to have a domestic body on which sovereign governance can be projected on, and to avoid the chaos of intrastate anarchy. Hence, a follow-up study connecting the disciplines of international law and international relations could review the effectiveness doctrine. The up-coming issue of international law, which has been a prominent side aspect in the previous three chapters, is the emerging sub-global, regional right to HI. Although it would violate jus cogens it can hardly be denied that it is possibly emerging; foremost on the African continent. A more progressive approach should tackle the question of how such a second way to authorised humanitarian interventions could be implemented and harmonised with international law. Again, this would be an inter-disciplinary task, making it necessary to consider aspects of international law as well as international relations. Finally, the stability of great powers esp. within the UNSC had been in my research a surprising turn, previously not anticipated. A following, connecting research could advance at this point and work out the processes and interdependencies in this great power concert more detailed. Since realism is still the common theoretical perspective on great power politics, a more neutral or rationalist approach to identify the current determinants of the great power concert would be highly enriching for the understanding of current international politics. This thesis has brought the surplus of reviewing the diverging assumptions on the impact of unauthorised humanitarian interventions not only by the perspective of pluralism and solidarism, but by empirical-analytical assessments, interpretations based on UNSC and great power research as well as normative theory, and transferring this on the one hand to an UHI impact theory and on the other hand

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to implications for normative theory in general. By this broader perspective, I argued that UHIs are in general not endangering international society. Merely, accompanied with great power confrontation they could have a negative-eroding impact. Yet, on the contrary, legitimate, explicit and integrous UHIs (at best with GP participation) can have a positive-progressive impact. This understanding can be transferred to normative theory in general and has interesting implications for our understanding of great power politics within the Security Council. The metaargument of this thesis is that international society is much more stable and able for a progressive advancement than often assumed.

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bibliography has been separated in two parts. Official documents (esp. UNdocuments) and legal sources can be found in the second section. Books, articles, reports and every other source are listed in the first section. © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2021 C. Pohlmann, Unauthorised Humanitarian Interventions in World Politics, Globale Gesellschaft und internationale Beziehungen, https://doi.org/10.1007/978-3-658-32179-6

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