The responsibility to protect, humanitarian intervention, and neocolonial policies

In this chapter we take up the question of the responsibility to protect (RtoP). This means (a) inquiring into the changes that have transformed the sovereignty of states in the contemporary age, (b) seeing if we can understand the new makeup of international relations, and (c) attempting to draw the ambivalently shifting line that threads its way through the avowed aims of “humanitarian” intervention, the reality of the superpowers’ new policies of hegemonic advance, and the new forms of neocolonialism.

The international community and sovereignty:

An irreversible crisis?

The transformations that have taken place in international relations have been analysed from different vantage points. Particularly significant among these is the one that traces these transformations to the crisis of national sovereignty. It is in the context of this crisis that I propose to assess the modern upshot of humanitarian interventions, and in particular of the doctrine that goes by the name of RtoP.

In a pathbreaking work, Anne-Marie Slaughter describes the present-day world order as “an intricate three-dimensional web of links between disaggregated state institutions” (Slaughter 2004, 15). This new order is a system made up of horizontal and vertical networks that make it possible to gather and share information, coordinate policies, cooperate, deliver aid, and even enact new legal frameworks.

On this new interpretation of international relations, the state is not disappearing but is rather breaking apart into the institutions that make it up and increasingly interact with the their counterparts beyond state borders. From this breaking up of the state there emerge horizontal and vertical transgovernmental networks (Cohen 2004, 5).

This chapter was first published in 2012 under the title “Responsibility to Protect e crisi della sovranita” (Gozzi 2012). It has since gone through substantive revisions with several additions, and in that updated version it now appears in translation.

Examples of horizontal regulatory governmental networks include the G-7, the G-8, and the G-20. These networks operate by way of government officials who act without claiming to represent the state as a whole. Examples of vertical networks “the relationship between the European Court of Justice (ECJ), the International Criminal Court (ICC), and the courts of their respective member states” (ibid., 6). To be sure, Slaughter (2004, 9) is

not arguing that a new world order of government networks will replace the existing infrastructure of international institutions, but rather complement and strengthen it. States can be disaggregated for many purposes and in many contexts and still be completely unitary actors when necessary, such as in decisions to go to war.

It can be objected, however, that this unitary configuration of states can hold together only in virtue of the stronger states, and that it cannot be held up as a model for the weaker ones. This raises the problem of how humanitarian intervention and RtoP fits into the disaggregated picture that seems to describe the new reality of relations among states. In the post-WWII period a conception of the international community took hold under which states could join this community so long as they subscribed to the broad principles of the equal sovereignty of states and the protection of human rights (as happened with the states that joined the United Nations), and on this basis it was understood that the states in the community would commit to mutual recognition and nonintervention.

Membership in the international community entailed what Cohen (2004, 20) refers to as the “‘democratization’ of external sovereignty,” through which we arrive at the sovereign equality of states, and from which follows the states’ commitment to refrain from making war, as well as the criminalization of wars of aggression (ibid., 19).

It is on this basis that states have in principle accepted limitations on their sovereignty in international relations. It thus appears evident that the concept of sovereignty does not refer to any single, uniquely specified reality. For while in the domestic sphere the states’ sovereignty is limited by principles of constitutional law, in the international sphere sovereignty is disaggregated, being spread out across myriad networks of intergovernmental relations, and being limited as well by the principles of international law.

It is in this context that there arises “the problem of what to do in the case of dictatorial authoritarian regimes that overthrow democratic institutions or block their emergence” (ibid., 21). A case in point is the “decision taken in 1997 by the Organization of American States (OAS) to amend its charter to permit suspension of a member whose democratic government is overthrown”—an “example of a set of rules agreed upon by sovereign states aimed at linking recognition of state sovereignty to the protection of internal popular sovereignty” (ibid.).1 This

1

The OAS Charter can be found at www.oas.org/juridico/english/charter.html.

is also an example of how a regional union can be made up of states agreeing that no democracy can be overthrown by force and recognizing the necessary link between popular sovereignty and external sovereignty.

In the world of international relations, however, there are no powers capable of putting a check on a superpower that should unilaterally decide to militarily intervene in the affairs of another state on “humanitarian” grounds (so as to prevent genocide, ethnic cleansing, or crimes against humanity). In this sense, there is certainly some truth to the “‘political realist’ stance” (ibid., 4) taken by Carl Schmitt, arguing that “cosmopolitan” law is utopian and ideological.

There is no “right to humanitarian intervention” in international law (ibid., 22). We are therefore left with only the vague moral “cosmopolitan” discourse of human rights (to life, security, and so on), which lends itself to the worst kinds of instrumental uses designed to unilaterally advance power interests. The principles of international law, and in particular the recognition of sovereign equality, are constantly being violated under a “political instrumentalization of‘law’ (cosmopolitan right)” (ibid., 3). In short, “cosmopolitan” law can be used to legitimize violations of international law.2

2 Compare the discussion in “‘The Lady Doth Protest Too Much,’” where Martti Koskenniemi (2002) introduces in the analysis of law the Schmittian “distinction between the normal and the exceptional” (ibid., 159) and the view that “legal normality” depends “on the power of the one who could decide on the exceptional” (ibid., 171).

On the topic of NATO’s 1999 bombing campaign in Serbia, Koskenniemi underscores that the bombing “was the exception that revealed, for a moment, the nature of the international order which lay not in the Charter of the United Nations nor in principles of humanitarianism but in the will and power of a handful of Western civilians and military leaders. The sacrifice of 500 civilians would then appear as a violent reaffirmation of the vitality of a concrete international order created sometime after the second world war and in which what counts as law, or humanitarianism, or morality, is decided with conclusive authority by the sensibilities of the Western Prince” (ibid.). Koskenniemi is here trying to isolate international law from the ability of superpowers to instrumentally use it to advance their own ends: “Even as law now arrogates to itself the right to speak the language of universal humanitarianism, it is spoken only by a handful of experts fascinated about matters military and technological, the targeting of missiles and press conferences with uniformed men who speak clearly. Should their moral sensibilities now be the lawyers’ greatest concern?” (ibid., 173; Koskenniemi’s italics).

In this article, Koskenniemi is unequivocal in his point that recourse to morality as a basis on which to legitimize humanitarian intervention in Serbia was an essentially political act, “a politics by those who have the means to strengthen control on everyone else” (ibid.). Against this practice Koskenniemi sets the “culture of formalism” (ibid., 174), which is “about setting limits to the impulses—‘moral’ or not—of those in decision-making positions in order to fulfil general, instead of particular, interests; because it casts decision-makers as responsible to the political community; and because it recognises the claims made by other members of that community and creates the expectation that they will be taken account of”’ (ibid.). While conceding that this is a tenuous solution that may well succumb to the steamroller of hegemonic power, it does nonetheless express a “strategy of resistance, and of democratic hope” (ibid.; italics mine).

 
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