Hegemonic logics and forms of neocolonialism
The complex paradigm that has been built around the concept of RtoP reflects the transformation that sovereignty has undergone in recent history, and it answers to the need to set a foundation on which to legitimize the placing of limits on sovereignty. But what arc these limits?
In the international landscape marked by globalization, unilateral action by the great powers, and the shaky ground on which stands international human rights law, it is difficult to accommodate a foundation on which to compcl-lingly legitimize efforts to impose limits on the sovereignty of another state. The International Commission’s 2001 report claims that RtoP is “supported by a wide variety of legal sources” (ICISS 2001, § 2.26), among which it lists “fundamental natural law principles” (ibid.). But the report makes no argument for these principles, nor does it clarify what they are (one may speculate that the drafters are referring to the principles of seventeenth- and eighteenth-century natural law theory), and by that fact alone we can appreciate how difficult it is to set this new paradigm on any solid foundation. Even the reference the report makes to just cause as a necessary condition for an intervention to be legitimate anchors the RtoP doctrine to the “just war” paradigm of the sixteenth and seventeenth centuries (Focarelli 2008, 234). Contrary to that paradigm of the modern age, however, the report neither clarifies how “just causes” relate to their natural law foundation nor defines the criteria of justice that ought to justify recourse to force.
Just causes are essentially those that involve extreme human rights violations, as in mass killing and ethnic cleansing. These are unspeakable crimes, of course, betokening a contempt for humanity so alarming that the threat it poses to peace triggers Chapter VII of the UN Charter (“Action with respect to Threats to the Peace”), authorizing the Security Council to “take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security” (Art. 42).
That much is true. However, the legal construction of humanitarian intervention once a decision is made to act on RtoP inevitably lends itself to instru-mentalization. In the debate that took place in the UN General Assembly on the secretary general’s “In Larger Freedom” report (UNGA 2005a), many states expressed concern that the new basis for legitimizing humanitarian intervention—its basis under the RtoP doctrine—was no more than a device the great powers could use to further their own interests and impose their own values on the weaker states (Focarelli 2008, 331). As has been argued by many Third World or developing countries, including Algeria, Egypt, Colombia, Vietnam, Venezuela, Iran, Cuba, Syria, and Tanzania, the RtoP doctrine
1
From the “World Summit Outcome” document (UNGA 2005b) it clearly emerges that the RtoP doctrine was endorsed by the UN general Assembly and that a consensus had formed among the states on what counts as grounds for an RtoP intervention (genocide, war crimes, ethnic cleansing, and crimes against humanity). Ct'. Focarelli 2008, 337.
essentially serves the purpose of placing the stronger states in a position where they do not have to take the interests of the weaker states into account,5 all the while legitimizing neocolonial policies.6 This is what happened, for example, with the military intervention in Libya under Security Council Resolution 1973 (2011) 25, which on the premise that the Libyan authorities’ “attacks [...] against the civilian population may amount to crimes against humanity” (UNSC 2011, 1; italics added), provided the basis on which to justify the West’s neocolonial response—the basis on which the Security Council, “reiterating the responsibility of the Libyan authorities to protect the Libyan population” (ibid.; italics added), “authorizes Member States [...] to take all necessary measures [...] to protect civilians and civilian populated areas under threat of attack” (ibid., § 4).7
Other countries, like the Russian Federation, ruled out that RtoP could amount to a new principle of international law, for if it did, it would have had to gain broad consensus within the international community, but that was not the
- 5 See UN General Assembly, 59th session, 86th plenary meeting (6 April 2005), UN doc A/59/PV.86; 87th plenary meeting (7 April 2005), UN doc A/59/PV.87; 89th plenary meeting (8 April 2005), UN doc A/59/PV.89; and 90th plenary meeting (8 April 2005), UN doc A/59/PV.90. As an example of these positions, consider the speech delivered by the Syrian representative, Mr. Mekdad, who spoke thus (in translation): “In earlier statements on the report of the High Level Panel, Arab States have emphasized their rejection of the right to resort to humanitarian or other intervention which has no basis in the Charter or in the international law. [...] In accordance with the principle of non-interference in the internal affairs of States, and in order not to undermine the peace, stability or sovereignty of States, which are safeguarded by the Charter, we believe that we should not use the pretext of the needs of the twenty-first century to restrict the concept of state sovereignty so as to allow intervention. Neither should the concept of sovereignty revert to its nineteenth-century definition so as to relax restrictions on the use of force and allow so-called preventive action” (UN doc A/59/PV.90, p. 19).
- 6 Anne Orford highlights the colonial stereotypes and ambivalence embedded in the discourse of humanitarian intervention. Colonial discourse at once underscored racial difference and disavowed that difference by constructing the conceit of the “reformable native,” in such a way as to mask the same difference (Orford 2003, 182, quoting Bhabha 1994, 74). Likewise, the narrative of humanitarian intervention deploys colonial stereotypes that “include the representation of Yugoslavs, Rwandans, Somalis and East Timorese as childlike, unable to govern themselves, barbaric and unruly” (Orford 2003, 182), ami at the same time it advocates the use of force to stop human rights violations and make the same people governable, just as it seeks to legitimize the presence of intervening powers (for broader context see Orford 2003, 182-85).
- 7 In commenting on UNSC Resolution 1973 (2011), Karim Mezran observes that military intervention “quickly morphed from a targeted action aimed at protecting the civilian population into a regime-change action aimed at overthrowing Muammar Gaddafi. The legitimacy of the intervention therefore remains, to this day, doubtful,” especially in view of the hegemonic and neocolonial aims it sought to achieve under the guise of a “humanitarian war” (Mezran 2012, 172; my translation).
case.[1] Here, then, is an example illustrating how international law shows itself to be a construction that lends itself to instrumentalizations of power within the complex international relations system.
In short, as concerns the RtoP doctrine, it does not have the backing of any shared opinio juris, nor does it clearly identify the authority entrusted with the decision to intervene. One commentator (Strauss 2011) has observed that, while the UN General Assembly resolution of 2005 (UNGA 2005b) did gain broad consensus around the concept of RtoP, it was nonetheless no more than a recommendation: it did not introduce a new legal principle. This is because UN Assembly General resolutions can gain the status of international customary law only if they are backed by an opinio juris in their favour—which, as just noted, is precisely what did not happen here.
But, as mentioned, RtoP also envisions regional solutions. This is what we see in the 2005 “World Summit Outcome” document, which at Paragraph 139 provides for precisely that option, in accordance with Chapter VII of the UN Charter. An example of such regional initiatives is what we saw in Liberia in 1990—nine years before the NATO intervention in Kosovo—when the Economic Community of West African States (ECOWAS, established in 1975) received a request for help and agreed to intervene. Also, four years before the RtoP doctrine was adopted, some of the states in the African Union recognized a right of intervention in response to grave humanitarian emergencies (see Williams 2007).
However, absent a clear legal framework for this doctrine (cf. Focarelli 2008, 342), we still face the risk of humanitarian interventions serving only to advance the interests of the great powers sitting at the UN Security Council. In this regard, the movement of nonaligned states has underscored that RtoP may be exploited to legitimize coercive unilateral interference in the internal affairs of other states (Bellamy, Davies, and Glanvillc 2011, 11). Indeed, and here I am borrowing an expression from Martti Koskenniemi, RtoP reveals itself to be a hegemonic technique, giving the great powers a tool with which to make a case for their hegemonic designs by pointing to grave human rights violations, and hence to grave attacks on human dignity. In other words, as Emmanuelle Jouannct (2007, 386) has pointed out, human rights are an expression of “modern legal humanism” (referring to the values informing the “human rights proclaimed in the ‘Universal’ Declaration of 1948”), and they can accordingly provide a basis that can be instrumentally invoked when territorial sovereignty is violated.
In these transformations we can appreciate the full ambivalence of international law. In fact, as Koskenniemi has rightly pointed out, when exceptional situations arise, as in the case of serious human rights violations, the purpose or point of the rule of international law, namely, to prevent human rights violations, upstages and outweighs its formal validity. What this means, in other words, is that the form of law ceases to act as a check on the use of force to avert or prevent mass killing, genocide, or ethnic cleansing. As Koskenniemi expresses this point, “the need to uphold the formal validity of the law cannot be compared to the weight of the impulse to act now. If the rule does not allow this, so much worse for the rule” (Koskenniemi 2002, 169; italics mine)—even if the violation of the rule is entirely instrumental.
In these transformations Koskenniemi sees a “deformalization” of law “accompanied by a turn to ethics” (ibid., 160).11 But the appeal to ethics clearly amounts to a political choice: behind it are the decisions the hegemonic powers make in a state of exception (ibid., 171). As a counterweight to the potential for this discretionary decision-making, Koskenniemi points to the constraints of formalism: “In such a situation, insistence on rules, processes, and the whole culture of formalism now turn into a strategy of resistance, and of democratic hope” (ibid., 174). In fact formalism, in his assessment, can place limits on decision-makers, making them accountable to the political community. The formalist approach would at the same time make it possible to take into account the claims advanced by the other members of the community, so that their voice may be heard.
But can formalism actually work as a counterpoise to the hegemonic tendencies of the great powers? Can formalism prevent violations of sovereignty, like the one that took place with the 1999 NATO bombing of Serbia?
In reality, I submit, the formalist approach cannot prevent the RtoP doctrine from being used as a hegemonic technique—one that, as the movement of nonaligned states has stressed, can be deployed to legitimize coercive unilateral interference in the internal affairs of states (Bellamy, Davies, and Glanville 2011, 11). Because this risk has in fact materialized on plenty of occasions,[2] it
Protection and neocolonial policies 63 becomes incumbent on us to reconsider the import and limitations of a concept whose role in political history and in the history of international law has been decisive, and that is the concept of sovereignty. A brief historical overview will thus enable us to see how this concept has been a mere formal construction, constantly changing under the shaping hand of the dominant powers.
- [1] This is how the point was made (in translation) by the representative of the Russian Federation, Mr. Denisov: “The Secretary-General and the High-Level Panel define the concept of‘responsibility to protect’ as an ‘emerging norm.’ Strictly speaking, the establishment of an international norm presupposes that there is wide support within the international community for such a norm. However, that is not the case here.” UN General Assembly, 59th session, 87th plenary meeting (7 April 2005), UN doc A/59/PV.87, p. 6. 2 Here is the specific language of the “World Summit Outcome” document (under the heading “Responsibility to Protect Populations from Genocide, War Crimes, Ethnic Cleansing and Crimes Against Humanity”): “we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity” (UNGA 2005b, § 139; cf. Bellamy, Davies, and Glanville 2011, 10). 3 In 1990, in response to the military coups attempted by Charles Taylor’s National Patriotic Front of Liberia, the Liberian president, Samuel Doe, appealed to ECOWAS requesting a military intervention to protect the government.
- [2] Jouannct (2007, 389), for her part, sees the rise of a “substantive universalism.” 2 RtoP was in point of fact made a legitimate basis for humanitarian intervention in 2006 with UN Security Council Resolution 1674 (2006), on the protection of civilians in armed conflict, under which the Security Council “reaffirms the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document [UNGA 2005b] regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity” (UNSC 2006, § 4).
