By ASHLEY DEEKS
Review of The Conceit of Humanitarian Intervention, by Rajan Menon
Cambridge: Oxford University Press, 2016
The title of Rajan Menon’s latest book puts the reader on notice: this is a full-throated assault on the doctrine of humanitarian intervention. The form of humanitarian intervention with which Menon is concerned involves military action by one or more states to halt a mass atrocity inside another state. Menon marshals a wide variety of arguments against humanitarian intervention and its close cousin, the “responsibility to protect.” He takes particular aim at advocates of humanitarian intervention who insist that there is global support for the even-handed application of forcible interventions to defend against egregious violations of human rights. Menon believes that the calls of “never again” that followed the Rwanda genocide are naïve, hypocritical, and descriptively inaccurate, particularly given states’ tepid responses to events currently unfolding in Syria and elsewhere.
Menon’s arguments can be distilled into three main critiques, which reject the pro-interventionists’ idealistic approach to foreign relations and support his thesis that an overarching solution to mass atrocities will prove elusive.
First, Menon argues as a descriptive matter that there is no true consensus among states in support of humanitarian intervention or the responsibility to protect (R2P). R2P asserts that a state bears the primary responsibility for protecting its own population from genocide, war crimes, and crimes against humanity, but that other states have a responsibility to protect that population if the primary state does not fulfill that obligation. R2P envisions a variety of measures by which other states may protect the threatened populations; military force is the most drastic of those measures.
Menon notes that, notwithstanding the General Assembly’s adoption in 2005 of a document articulating the doctrine of R2P, the language did not mandate state action in the face of atrocities. To the contrary, the document made clear that, “should peaceful means be inadequate,” states could use military force only after obtaining Security Council authorization. The fact that a broad group of states have been unable to develop a robust international legal rule articulating when, absent Security Council authorization, states may undertake humanitarian intervention provides further evidence that international consensus about when intervention is permissible is lacking.
Menon argues that this lack of consensus flows from limited enthusiasm for the doctrine by both big and small states. Large states, and in particular powerful democracies, are the actors most likely to undertake humanitarian interventions. These states, though, will be loath to conduct interventions without the support of their populations. Their citizens will rarely be moved to support interventions that will require sending their own armed forces to protect strangers in a remote location where the state’s tangible interests are either limited or difficult to articulate. This is so notwithstanding pressure from what Menon has called elsewhere “the high priests of humanitarian intervention”: human rights advocates, international lawyers, journalists, and academics.
Small powers do not support humanitarian intervention either, though for a different reason. These states fear it because they are its likely subjects. The longstanding norm of sovereignty protects them from these types of interventions, at least notionally, and they are therefore loath to see sovereignty watered down in ways that will enable outside intervention.
Menon’s second critique takes on the claim by some advocates that humanitarian intervention should occur in every instance in which atrocities occur. For Menon, it is impossible to apply the doctrine consistently and evenhandedly. States will follow their national interests (and non-interests), which sometimes will lead them to undertake intervention, but more often will compel them not to, even in the face of incontrovertible crimes of genocide and war crimes. Menon points to the hypocrisy of democratic states on this front, which often speak the language of human rights but decline to intervene (or even support abusive states) when their national interests so counsel. Likewise, humanitarian intervention will never take place in the territory of a permanent member of the Security Council or in the territory of states such as Saudi Arabia, Bahrain, Belarus, or Israel, which are protected by their allies on the Council.
This critique, while compelling, embodies a tension within Menon’s book: if states’ national interests and the lack of a global consensus on humanitarian intervention will lead to a very small number of interventions, what is Menon really worried about? His answer presumably is two-fold: he objects to the theories and misplaced moral certainty of intervention’s advocates, regardless of their ability to persuade policymakers, and he worries about the outcomes of those few interventions that actually happen.
This leads to Menon’s third, more normative critique: past humanitarian interventions are poster children for the problem of unintended consequences. First, the looming prospect of an intervention can, in Menon’s view, exacerbate the very violence it is intended to halt because it can strip those who would benefit from the intervention of incentives to compromise. For instance, the Kosovo Liberation Army may have provoked the Serbs to resort to increased levels of violence because the KLA thought that would stimulate NATO to act. Second, most past interventions have ended badly, proving how hard it is to reshape another state, particularly one that likely functioned poorly even before the intervention.
Here Menon is at his most compelling, describing clearly the pitfalls that await states in the aftermath of forcible humanitarian intervention. For him, Libya highlights the immense difficulties in securing a post-conflict peace. The various militias that continue to fight each other, the difficulty in establishing a coalition government, NATO’s unwillingness to devote the time and resources necessary to produce a functioning polity, the opportunistic use of this ungoverned space by ISIS, and the spread of mayhem to neighboring states such as Mali all offer compelling reasons to hesitate before the next humanitarian intervention. Of course, assessing whether a state is better or worse in the aftermath of an intervention always requires working in counterfactuals. It is impossible to know whether the Libyan population is better off than it would have been absent NATO’s action, but the current situation there certainly highlights the perils of intervention and the need for careful and realistic planning for the day after.
Menon’s provocations raise a particular challenge for lawyers who work on humanitarian intervention. Some lawyers firmly believe that intervention without Security Council authorization is prohibited by the Charter, and until the Charter is amended, unilateral forcible humanitarian action will violate international law. Other legal scholars have proposed such amendments, including multi-factor tests that would erect stringent requirements before a state may use force in these circumstances. As I’ve recently written, these multi-factor tests aim to provide “constrained flexibility”: they would permit forcible action but set very high thresholds for resorting to force, to ensure that states will only intervene for the “right” reasons, in a disinterested and effective way. These scholars might explain their work as trying to remove a substantial justification on which policymakers currently can rely to resist action.
Menon presumably would view efforts to thread the needle between legal empowerment and legal constraint as misguided. On one hand, there is little need to develop a law that would empower (or at least remove existing limits on) powerful states to act, because states that view a particular intervention as in their national interests will act without regard to international limitations. On the other hand, importing a robust set of constraints into the rules regulating intervention will fail to persuade weak states of the advisability of such interventions, because they will view any set of constraints as subject to manipulation by powerful states. Thus Menon would regard lawyers who are devoted to crafting a new legal test for humanitarian intervention as spinning their wheels. And even if one could develop an agreed test that rendered intervention a lawful option, Menon would (almost) always reach a negative answer to the policy question of whether to intervene, leaving the antecedent legal question irrelevant.
One shortcoming to Menon’s book is that the author never fully articulates the scope of the humanitarian intervention “project” against which he is writing. Is he writing against a claim that states have a moral obligation to undertake humanitarian intervention whenever they are confronted with atrocities? Against the idea that states have responsibilities to foreign populations? Against a demand that interventions must be consistently and neutrally applied? Against the claim that humanitarian intervention has universal support? Menon seems to be taking on all of these claims, but to do so he must group into one monolithic category everyone working in support of R2P and humanitarian intervention. In addition, there is not just one form of humanitarian intervention. Menon is not interested in evaluating anything but full-blown force because he thinks there is usually little tolerance for pursuing the variety of non-military steps envisioned by R2P. But the book would have benefitted from a more nuanced discussion of whether activities short of full-scale interventions – including sanctions or more modest military steps such as no-fly or safety zones – implicate the same critiques that “all-in” interventions do.
As strongly as he objects to the “conceit” of those who advocate for intervention, Menon stops short of a blanket denunciation of the doctrine. Instead, his target is what he views as moral certainty and smugness about the propriety of humanitarian intervention. This is somewhat of a puzzle in light of the parade of horribles that Menon thinks flow from reliance on the doctrine. If he believes that the doctrine lacks support from many states, produces highly uncertain and often tragic outcomes, and will never be applied consistently, we might expect him to argue not just against the false certainty of intervention’s proponents but against the use of humanitarian intervention itself. But the book stops short of that conclusion. “I am not morally disinterested,” Menon notes, “when it comes to the slaughter of innocent people.” (3) This perhaps highlights the reason why the concept of humanitarian intervention persists, notwithstanding its flaws: few – including Menon himself – are willing to turn their backs entirely on the possibility of using force to stop grotesque violence and save innocents. Yet Menon fails to describe when he might advocate for intervention as a normative matter, presumably because he remains skeptical that any bright-line rule could get sufficient traction among states.
Though the evidence Menon presents does not always stack up as neatly as he portrays it and some of his arguments are familiar, his book serves as a sharp shot across the bow to those who urge the further entrenchment of – and who believe in the inevitability of – a deep, consistent policy of humanitarian intervention in all situations of mass atrocities. He surely would applaud President Obama’s candid statement in a recent Atlantic interview, where Obama observed, “[T]here are going to be times where the best that we can do is to shine a spotlight on something that’s terrible, but not believe that we can automatically solve it. There are going to be times where our security interests conflict with our concerns about human rights. There are going to be times where we can do something about innocent people being killed, but there are going to be times where we can’t.”
Posted on 27 April 2016
ASHLEY DEEKS is an Associate Professor at the University of Virginia Law School and a senior contributor to the Lawfare blog.
