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The Drama of Humanitarian Intervention

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Natalie Joy Marrer

3. Exposition

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1The exposition in a drama provides the audience with important background information needed to understand the conflict, such as the setting, the atmosphere and the characters (Rush 2005, 64).

  • 1 Among others, this definition is followed by Donnelly (1984) and Buchanan (2018, 156–157).

2The definition of humanitarian intervention, adhered to in the upcoming chapters, broadly speaking refers to an ‘infringement of a state’s sovereignty by an external agent or agents for the sake of preventing human rights violations’.1 The choice of the more neutral term ‘infringement’ instead of ‘violation’ is not intended to lessen the fact that the intervention in the target state happens without its consent. A distinction should be made between forcible and non-forcible humanitarian intervention, and we will be focusing on the former. In the present storyline, the action goes beyond economic sanctions and implies the use of military force (Buchanan 2018, 157). In contrast, the provision of humanitarian aid falls under the notion of humanitarian assistance (Lowe and Tzanakopoulos 2011, paragr. 2). As autonomous grounds for justification, the conception of humanitarian intervention in the narrower sense adhered, and to in this paper, is defined as:

  • 2 The protection of nationals abroad, which some consider humanitarian intervention stricto sensu, an (...)

The use of force to protect people in another State from gross and systematic human rights violations committed against them, or more generally to avert a humanitarian catastrophe, when the target state is unwilling or unable to act […] The term is not one of art, however: it does not appear in any international treaties, and it cannot be said that its boundaries are yet clearly delineated.2

3The principal roadblocks on the path to humanitarian intervention are the principles of sovereignty, non-intervention and the prohibition of the use of force, discussed below (Gordon 1996, 46).

  • 3 For more information on the relatedness between humanitarian and human rights actors, see Comninos (...)

4Although humanitarian actors such as the International Committee of the Red Cross (ICRC) or Médecins Sans Frontières (MSF) can be considered the archetypical ‘humanitarian saviours’, their involvement, circumscribed by the principles of humanity, impartiality, neutrality and independence, does not fit the hero role cast in the play of humanitarian intervention.3 The same can be said for human rights organizations such as Amnesty International (AI) or Human Rights Watch (HRW) who have a significant influence on the discursive field, but do not intervene militarily to protect human rights. Still, ‘[if] gatekeepers like Human Rights Watch or Amnesty International or the ICRC do not adopt an issue, its chances of reaching a global audience are slim’ (Hopgood, 2013, 172). In the context of humanitarian intervention, they are thus important actors within the interpretative community constituting the audience, yet not our focus.

3.1 The roles cast

The saviour

5There are many names that could denote this role. We could call the character the hero, the knight in shining armour, the good Samaritan, ‘the saviour, or the redeemer, the good angel who protects, vindicates, civilizes, restrains and safeguards’ (Mutua 2001, 204).

6Determining who could potentially be cast in this role refers us to the question of agency (this is what has been called the “agent-justifiability question”, which pertains to the legitimacy of the actor, as elaborated by Pattison 2008, 397). The typical candidates identified in the literature are the United States as the dominant Western superpower, the North Atlantic Treaty Organization (NATO) or the UN. However, another state acting unilaterally or a ‘coalition of the willing’, as well as regional or even sub-regional organizations are other options (for more information, see Tan 2006, 84). At the outset, the choice appears as one between unilateralism or multilateralism, the latter comprising either a group of states or an international organization other than the United Nations (UN). Unilateral or multilateral humanitarian intervention refers to forcible action taken in a state, by another state acting alone or through a coalition of states, for stated humanitarian reasons, yet on their own authority (Lowe and Tzanakopoulos 2011, paragr. 8), The legally significant point is that the term ‘collective humanitarian intervention’ is reserved for action undertaken in accordance with the procedure established by the UN collective security system, which presupposes the acquiescence of the UN Security Council (UNSC) (Lowe and Tzanakopoulos 2011, paragr. 7-8).

7The international community is presented as the guarantor of human rights, and related core progressive values – such as peace, justice and freedom – form the basis on which its identity is built, as an ‘active, humane saviour intervening to help people in trouble spots’ (Orford 2003, 165). At the intergovernmental level, the UN machinery functions as the guardian of the corpus of human rights, ‘and its location at the heart of UN activities and purposes gives it the imprimatur of objectivity and neutral internationalism’, so that the UN appears as the ‘grand neutral saviour’ (Mutua 2001, 23738). As is well known, however, calls for a standing international humanitarian defence force, sometimes portrayed as the ideal institutionalized solution, have been left unanswered (Tan 2015, 13536; UNEPS Backgrounder 2011). So, although the UN might appear to be the natural choice for the lead saviour role, this fact paired with the UN’s past performance, has cast doubt on the appropriateness of giving it this position. Consideration must hence be given to individual states or coalitions of states who claim to fit the role.

8The saviour acts as a heroic personification of the universal community of human beings (Moszkowicz 2007, 291). The audience reacting to the saviour is thus a very wide one, which goes beyond the interpretative community of international law. Specifically, intervention is said to be justified when acts ‘shock the moral conscience of mankind’ (Walzer 2015, 107). Atrocities are publicized, and as Michael Walzer correctly stresses, ‘there is very little which happens far away, out of sight, or behind the scenes’, turning this wide audience into ‘instant spectators of every atrocity’ (Walzer 2002, 29). The conscience of ordinary people is taken as the reference point, which is horrified by the fact that our shared social understandings based on universal moral norms are being brutally trampled on (Moszkowicz 2007, 295). Walzer describes the situation as follows:

Somebody ought to intervene, but no specific state or society is morally bound to do so. And in many of these cases, no one does. People are indeed capable of watching and listening and doing nothing. The massacres go on, and every country that is able to stop them decides that it has more urgent tasks and conflicting priorities; the likely costs of intervention are too high. (Walzer 2002, Ch. XIII.)

9Against this background, the canon of conscience is repeated by the hero – unlike others, they are not only capable but willing to act and not look away. In this sense, they place themselves on the moral high ground. This shows that the discursive environment is not only inhabited by arguments centring around a saviour having a legal right to intervene, but is also very much permeated by the idea of a moral obligation to intervene (Rudolf 2013). This moral dimension, with the spotlight on legitimacy rather than legality, is central to the perception of reliability of the narrator (for more on the distinction supported here between legality and legitimacy, see Pattison 2008, 39899). According to philosophy professor Kok-Chor Tan, the duty to protect rests upon the shoulders of the international community as a whole. Since there is no pre-determined single state agent who has the moral duty to act, he suggests solving the agency problem by conferring the responsibility to act on the ‘most capable’ among the potential candidates (Tan 2006, 86). Concerning the capability of the protector, ‘effectiveness’ in the sense of probability of success has been considered to be the primary determinant of legitimacy (Pattison 2008, 398402). The military strength of the actor is one factor to be taken into consideration (Tan 2006, 100). James Pattison has developed a schema with three types of effectiveness to determine the overall legitimacy of a humanitarian actor. In simple terms, these criteria serve as tools necessary for unmasking an illegitimate intervener. The first, ‘local external effectiveness’, is equated with a likely improvement, instead of a worsening, of the situation of the political community on whose behalf the intervention is undertaken. The second criterion is ‘global external effectiveness’, which determines whether the actor’s decision will benefit human rights in the world at large. The third, ‘internal effectiveness’, points to the consequences for the intervening state’s own citizens, evaluated in its negative aspect of not being excessively costly internally (more details to be found in Pattison 2008, 399402). In addition, Pattison states that ‘an intervener’s legitimacy will also depend on the degree to which it possesses other, non-consequentalist qualities, such as fidelity to the principles of jus in bello and internal or external support’ (Pattison 2008, 402). This list of criteria remains suggestive and tentative. The conditions for the casting of the role of the saviour are not clear-cut, which means that candidates are not required to pass a formalized vetting procedure before stepping up to the stage. To a certain degree, the actors can thus cast themselves. This helps explain why the principal actors that have assumed this role, i.e. the UN, NATO and the USA, are often conceived as ‘heroic agents of progress, democratic values, peace and security’ (Orford 2003, 166).

The victim

10We have examined the role of the saviour, but there will also naturally be someone who is considered to be in need of saving. Although its title refers solely to the victim, this subchapter also will touch upon the question of whom the victim ought to be protected from. Given the limited scope of the paper, the ability of non-state actors to fit the role of the villain is herewith acknowledged, but not developed further.

  • 4 Cultural critics have pointed out that, problematically, those designated as savages and victims ar (...)

11The relationship between the three roles of saviour, victim and villain has been examined within the framework of the ‘savages-victims-saviours’ paradigm.4 The assumptive backdrop before which this paradigm unfolds is a world in which the universal enjoyment of human rights is not a given, and where victims are portrayed as in need of assistance in order to be brought into the folds of a law-abiding normality (Slaughter 2014, 60). Despite my choice to substitute ‘savages’ with the notion of ‘villains’, the commonality between the two can be found in the common characteristics of cruelty and disrespect for the victim’s humanity that are attributed to both. The operational instrument then, would be the ‘evil’, illiberal, anti-democratic or broadly authoritarian state, who denies the victim-citizens the worth and dignity inherent to their humanness (Mutua 2001, 2023). George Lakoff (1991) has described this as the ‘A Nation is a Person’ metaphor. The state is conceptually equated with a person, who enters into social relations within a world community. It has neighbours, friends and enemies; it has specific characteristics such as aggressiveness, immorality or cruelness (Lakoff 1991, 26). These traits endanger the human dignity of the innocent people exposed to the villain state, thus establishing a clear link with the core of the human rights edifice.

12What does the role typically depicted by the victim in the play look like? To quote the powerful words of Makau Mutua, describing the quintessential victim:

A basic characteristic of the victim is powerlessness, an inability for self-defence against the state or the culture in question. The usual human rights narrative generally describes victims as hordes of nameless, despairing, and dispirited masses. To the extent they have a face, it is desolate and pitiful… The language of the human rights reports suggests the need for help – most likely outside intervention – to overcome the conditions of victimization. (Mutua 2001, 229)

  • 5 See Massaro (1988, 2101), who thus summarized the findings of Henderson (1987, 1579–1582).

13In contrast with the potent saviour, the victim is presented as a passive character. Postcolonial and feminist critiques have underlined that the victim tends to be structurally non-white, infantile and/or female (Mutua 2001; Orford 2003, 17175). Broadly, children and women are believed to be more credible victims than men (Wilson and Brown 2008, 22). Humanitarian action is typically framed as a problem of empathy or sympathy (Slaughter 2014, 49). Three aspects of empathy relevant for our purposes have been identified in the literature: (1) the capacity to perceive others as sharing one’s own goals, interests and affects, (2) imaginative identification with the other’s experiences, and (3) the emotional response that accompanies experiencing this, which might spur action to ease the pain of another.5 Theories of subjectivity have shown, through the construct of interpellation, how an individual can become a subject of ideology, and this is linked to cognitive frames (for a useful quick overview of the concept of interpellation, see Orford 2003, 160–162). Interpellation explains the influence of ideology and cultural representation on the ongoing process of reconstituting a person’s sense of self, which is continuously being shaped by and through discourse (Orford 2003, 160). James Dawes (2009, 402) writes that the ‘audiences of human rights narratives are deeply conditioned by this ur-narrative of innocent victims’. Consequently, they will probably react more favourably towards a narrator who claims to act on behalf of such victims. Faced with the flood of reporting on human crises, the saviour can portray themselves as fighting against ‘compassion fatigue’ (the risk of making these so visible victims invisible again; for more on the phenomenon of ‘compassion fatigue’ and the influence of the media in this respect, see Moeller 2002). Hence, the saviour’s decision to act is portrayed as inevitable, since ‘they come into a situation where the moral stakes are clear: the oppressors or, better, the state agents of oppression are readily identifiable; their victims are plain to see’ (Walzer 2002, 31). This creates a difference between ‘us’ (protectionist states and their inhabitants on the side of good) and ‘them’ (or the ‘others’, as rogue and illegitimate states subjecting their citizens to suffering) (Denike 2008, 101).

3.2 The props

The ghost that was not dead: just war

14The ghost that haunts the play is one which has been claimed by many authors to have been dead since at least the aftermath of the horrific Second World War: the doctrine of the just war (Brunnée and Toope 2004, 364). Originally couched in theological and ethical terms rather than in legal ones, just war theory predates the emergence of international law (for more on the emergence of the theory of just war, see Sloane 2009, 56; Robert Kolb 1997, 553). In this doctrine of bellum justum, legal analysis focused on the act of resorting to war, and the subjective causes put forward by the specific belligerent (Kolb 1997, 554).

  • 6 Which is also explained by reference to the fact that the formerly recognized organs who determined (...)

15While the just war theory was alive and well during medieval times, the ‘dawn of the modern era’ in the eighteenth century and the rise of the sovereign state has been claimed to have brought about the concomitant demise of the just war doctrine.6 In the nineteenth century, where every sovereign had the right to wage war, the causes of war were no longer considered a primary concern (Kolb and Hyde 2008, 22). For a long time then, international law did not distinguish between legal and illegal war, since there was no general prohibition on resorting to war in interstate relations (Clapham 2012, 451).

  • 7 Charter of the United Nations (signed 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI (...)

16The law governing when a state should resort to force in international relations is subsumed under the heading of jus ad bellum, which delineates when and by whom such —force may be used (Kolb and Hyde 2008, 21). The later nascence of jus in bello in the nineteenth and twentieth centuries further stipulated appropriate conduct for belligerents and regulated their use of force during an armed conflict (Kolb and Hyde 2008, 21; Sloane 2009, 56). The historical conception of a just war meant that there could be no general and independent jus in bello, as it is now generally understood, given that ‘the rights and obligations of belligerents were unequal and depended exclusively on the causes which they claimed to be pursuing and on the material justness of those causes’ (Kolb 1997, 555). However, the equal right of every state to declare war led to a necessary principle of equality, in relation to the belligerents during armed conflict (Kolb and Hyde 2008, 2223). With the effort to reduce the recourse to force after the two World Wars, an increasing number of voices called the doctrine of just war to be strongly curtailed (Brunnée and Toope 2004, 364). The former ‘freedom to go to war’ under the jus ad bellum regime changed fundamentally with the advent of the United Nations (UN) system, and was replaced with a law generally prohibiting the use of force (jus contra bellum) (Kolb and Hyde 2008, 23). Today, article 2 (4) of the Charter of the United Nations Charter7 – which prohibits the use of force – is considered to be the cornerstone of the Charter system and customary law (Clapham 2012, 451). The exceptions recognized hereto, namely self-defence (UN Charter, art. 51) and collective law enforcement action authorized by the Security Council under Chapter VII, were said to be the last remnants of the just war doctrine. Still, it has been claimed that there have been modern efforts to ‘resurrect a far more expansive doctrine of just war, one that gives pride and place to moral, rather than more restrictive legal assessments’, in an attempt to break free from the inhibiting Charter framework (Brunnée and Toope 2004, 365).

17Although the accounts of just war theorists differ, there seems to be a general consensus on these six principles: just cause, legitimate authority, right intention, last resort, reasonable prospect of success, and proportionality (Luban 2013). Some authors add the principle of noncombatant immunity or the goal of the war as separate ground (Lango 2014, 23; Johnson 2014, 644:27), even though these can be subsumed under the aforementioned principles. We shall encounter most of these elements further on in the analysis, but at this point I would like to highlight an argument put forward by David Luban (2013), that academic and political debates seem to focus primarily on the topic of ‘just cause’. This has led to a shrunken field of debate, with the concurrent effect of narrowing the spoken and heard arguments within the relevant discourse, and shifting attention to legitimacy rather than legality. Disputes also arise regarding the question of legitimate authority, which translates to the issue of who may decide on the use of force in pursuit of a humanitarian goal (Matheson 2001, 28).

18How does this focus on just cause fit into the narrative of humanitarian intervention? As George Lakoff (2003) states, in fitting terms for our purposes, the ‘basic idea of a just war uses the Nation as Person metaphor plus two narratives that have the structure of classic fairy tales: The Self Defense Story and The Rescue Story’. Although ‘the primary just cause in an era of nations and states is a nation’s response to direct aggression’ (Elshtain 2001, 7), the drama of humanitarian intervention discussed here does not focus on self-defence. This implies that the argument which accepts a right to humanitarian intervention based on the collective self-defence of threatened individuals is deemed unconvincing (in line with Krisch 2002, 326). Consequently, the spotlight is on what Lakoff calls ‘the rescue story’ and the contemporary use of the doctrine of just war, where ‘saving the innocent from certain harm’ is recognized as a just cause (Elshtain 2001, 8). Nevertheless, the ghost of just war enters the scene in a different guise, at least nominally. States do not rhetorically claim to be waging a ‘just war’ or a ‘humanitarian war’ in the name of protecting humanity (Jahn 2012, 38). The word ‘intervention’ is preferred by the saviour over the word ‘war’, even if humanitarian intervention ‘frequently has all or most of the behavioural features of war’ (Coady 2002, 16).

19What positions are then adopted, in order to resolve the contentious issue of legitimate authority, and how are these positions broadly linked to the concept of sovereignty? Those opposed to unilateral or multilateral humanitarian intervention, regardless of a stated humanitarian just cause or not, stress that international law does not permit such action without Security Council authorization, given that the latter device serves the purpose of safeguarding the ‘peace and integrity of the legal structure’ (Matheson 2001, 29). The potential of just war theory to destabilize state sovereignty, arguably still at the heart of that structure, is apparent. The debate draws attention to the issue of whether – and if so, to which extent – sovereignty and non-intervention as traditional concepts are changed or confined by human rights (Brunnée and Toope 2004, 380). Article 2 (1) of the UN Charter proclaims the sovereign equality of all member states, article 2 (4) prohibits the threat or use of force against the territorial integrity or political independence of another state and article 2 (7) contains the non-intervention principle. However, this seemingly stable edifice based on state sovereignty is rattled when the villain state violates the human rights of its own citizens on a large scale and the saviour state or states invoke the just cause of intervening to protect the humans behind those human rights violated (Luban 2013). The traditional interpretation of sovereignty, stipulating that neither a state alone nor a group of states (within an international organization or otherwise) has a responsibility to prevent or face the ‘evil acts of others’ occurring exclusively within their borders, no longer remains unquestioned (Brunnée and Toope 2004, 381). In simple terms, this reconfiguration of the relationship of state sovereignty and human rights can be distilled into the following statement: ‘[drawing] on one strand of the just war tradition, force would be authorized… to bolster a moral claim that people are more important than state sovereignty’ (Brunnée and Toope 2004, 382). This shows how the rescue story linked to just war thinking can open the door to reflections and justifications that do not properly separate legal, political and ethical considerations (Elshtain 2001, 3). I would even contend that this conflation is the discursive characteristic of such stories. The ‘just cause’ argument is an embodiment of this enmeshment: it might be used in the context of legal argumentation, yet it is not a law-based argument per se. Indeed, ‘for the just war thinker, moral appeals are at the heart of the matter’ (Elshtain 2001, 6).

20The just war doctrine, especially the issues concerning just cause and legitimate authority, are tied up with the main positions adopted in the legal argumentation on humanitarian intervention. Clearly, its ghost still haunts arguments in the literature that attempt to situate humanitarian intervention within the existing legal framework, and that claim that such forcible action does not fall within the scope of the prohibition of the use of force (Lowe and Tzanakopoulos 2011, 12). Simply put, this school of thought advances the position that international law does not prohibit military intervention in these cases, and acknowledges that such a decision may well be politically and morally justifiable (Matheson 2001, 4). The assertion that military intervention actually advances the purposes of the UN, among which is the promotion of human rights (UN Charter, art. 1 (3), 55 (c), 56), seems to use just cause thinking in order to claim that humanitarian intervention is ipso facto not prohibited by article 2 (4) of the Charter. The latter article is construed in a narrow sense, by maintaining that intervention offends neither the territorial integrity nor the political independence of the target state (Lowe and Tzanakopoulos 2011, paragr. 12).

21Alternatively, the lines of reasoning favourable to humanitarian intervention seek to subsume it under the two established exceptions to the prohibition, or point to the emergence of a new, additional and customary exception from article 2 (4) of the UN Charter (Lowe and Tzanakopoulos 2011, paragr. 11). As noted above, the first self-defence exception based on article 51 of the UN Charter can be quite easily discarded if there is no threat to the saviour-state itself. The second option of a collective humanitarian intervention, flowing from an authorization by the Security Council under Chapter VII of the UN Charter, is at first glance legally unproblematic. Security Council practice has established that egregious and widespread human rights violations within the boundaries of a state, encompassing internal armed conflicts, may constitute a threat to the peace (Lowe and Tzanakopoulos 2011, paragr. 15). Hence, the use of the just cause argument is not really necessary, given that ‘“just war” comes within the purview of the Security Council as an action of law enforcement’, and a decision by the Security Council in this domain draws legitimacy from the collective process which led to it (Brunnée and Toope 2004, 37778). It rather gains importance when the saviour or saviours act unilaterally or multilaterally, in the sense of deciding to intervene without clear Security Council authorization. We will delve into the matter later, but it suffices to state here that the question of whether evidence exists to support a potentially new customary law rule is contentious, notwithstanding that intervening states typically do not argue that their action is justified due to a right allowing intervention for humanitarian reasons (Lowe and Tzanakopoulos 2011, paragr. 29). Even if the existence of such a customary rule is denied, this does not mean that the just cause argumentation cannot bolster those voices which call for a change de lege ferenda, or in future law (Matheson 2001, 29). More importantly, it can be used to endorse the position that unilateral recourse to force might be unlawful, yet could or should be ‘tolerated’, ‘mitigated’ or ‘excused’ by the international community because it was legitimate and morally justified (Lowe and Tzanakopoulos 2011, paragr. 44).

Human rights rhetoric and humanity’s law

  • 8 ‘Law of humanity’, ‘humanity’s law’ and ‘humanity law’ are treated as synonyms, the latter two as u (...)

22The props of human rights rhetoric and of ‘law of humanity’ or ‘humanity’s law’8 are central to the legitimization discourse of humanitarian intervention. Both aim at protecting humankind, while the latter rests upon the premise of the ‘universal laws of humanity’, which exhibit an amorphous nature (Gozzi 2017, 186). When action is founded on the law of humanity it is given a disinterested, apolitical appearance – or better, the pretence of an action merely interested in the protection of the innocent victims (Gozzi 2017, 189). In the words of Ruti Teitel, ‘humanity posits the core defining line; in law as in morals, it circumscribes the legitimate exercise of force in the international realm’ (Teitel 2004, 225). Before turning to the idea of a law of humanity, an introduction to human rights rhetoric aims to underline the importance of this discursive tool to justify actions undertaken to protect others abroad.

  • 9 Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR).
  • 10 ILC, ‘Third Report on State Responsibility by Special Rapporteur James Crawford’ (2000) UN Doc A/CN (...)

23As Fernando Tesón (1995, 330) summarizes, the ‘proposition that human rights are no longer a matter of exclusive domestic jurisdiction is indisputable, independently of the legal grounds for the obligation of states to respect human rights’. Given that stories of progress are endemic to the discourse of human rights, triumph is considered to reside in the weakening of the bulwarks of sovereignty, with the consequence that villain states can no longer find refuge behind those walls, despite the violations they commit against individuals (Denike 2008, 100). A striking feature of the literature on humanitarian intervention is how it is permeated by the notion of human rights, but often fails to clearly identify the abstract threshold of violation deemed necessary for intervention in a cogent and unchanging manner. Should it be set at systematic human rights violations (e.g. systematic discrimination), or higher at egregious crimes (i.e. ethnic cleansing, war crimes, crimes against humanity) or even mass extermination and genocide (compare references in the relevant footnote mentioned in Heraclides and Dialla 2016, 5)? This issue is blended out by the acceptance of the broad argument that the saviour is following an ethical mandate to support the advancement of human rights. The invocation, directly or indirectly, of the Universal Declaration of Human Rights (UDHR)9 seems to be the main source of authority and unity that allows certain statements to claim a ‘human rights identity’ (Gaete 1993, 41). The entitlements are formulated as rights that belong to human beings as such, rather than to states.10 Still, some scholars claim that, attached to the universal character of international human rights as obligations erga omnes, is the conferral of authority on all other states to enforce these, since customary international law has arguably acknowledged that all states have a vested interest in ensuring the respect of human rights abroad (Criddle 2015, 299301). In line with the saviour-victim narrative, this is sometimes explained due to the lack of effective remedies that individuals could realistically invoke at the international level. One author paints the picture as one of fiduciary representation: ‘Just as children and incompetents who lack legal capacity depend on others to assert claims on their behalf, human rights holders depend upon states to bring countermeasures to enforce their human rights’ (Criddle 2015, 301).

24There is thus a clear link between human rights and humanitarianism: relieving human suffering is the humanitarian dimension, whereas human rights violations serve as the basis for legitimising the use of military force (Geyer 2016, 31). Geoffrey Robertson (2000, 446ff) believes that the world is entering the stage of human rights enforcement, part and parcel of which is the readiness of states to help create and secure this new era. This ‘muscular… new breed of humanitarianism’ (Orford 2003, 7) reflects a shift in the human rights movement, one that replaces pleading with going on the offensive to counter the villain (Robertson 2000, 453). So if the goal is to ensure the effectiveness of human rights norms, they in a sense pre-fill the gap which many still claim to exist when it comes to the question of whether humanitarian interventions are lawful or not. The test whether such action is justified then turns less on legality, and more on the ‘dimension of evil’ that ought to be countered by the intervention (Robertson 2000, 444). Humanitarian intervention is seen as a means to ensure the ideals of freedom from oppression, respect of human dignity and the value of human life, thus drawing ‘its powerful appeal from the revolutionary discourse of human rights, which promises liberation from tyranny and a future built on something other than militarized and technocratic state interests’ (Orford 2003, 34).

25At the same time, human rights constitute a building block for what Ruti Teitel (2011, 206) calls ‘humanity’s law’: ‘Humanity law – as a basis for a universal, global rule of law – depends on a discourse and a structure of claims-making that has become the lingua franca, surpassing while also encompassing human rights law and norms’. Teitel (2011, 22527) introduces the emergence of a new, budding transnational legal order, reflecting a shift away from the system of sovereign states towards a ‘more fragmented global politics, constrained only by the threshold of preserving ‘humanity’ as a normative limit. Humanity is thus placed at the epicentre of this system, and functions as both a subject and object of action. As a vision of the international legal order, it proposes a way of speaking, reading and interpreting international law from a particular perspective. In the language of humanity law, a bridge is built between ‘the discourse of state power and that of transpolitical moralism’ (Teitel 2008, 35). The law of humanity impacts perceptions of legitimacy and operates at the core of foreign affairs, as a structuring element of the normative discourse surrounding foreign policy-making (Teitel 2008, 137; Callejon-Sereni, 2014). While the saviours might not explicitly reference this conception of humanity’s law, the spirit of it can be discerned in the narration of the tale of humanitarian intervention. The thrust of the legal argumentation justifying the action is inspired by its vocabulary as well.

26But what is the content of this law of humanity, which Teitel (2008, 668) boldly calls the ‘dynamic unwritten constitution’ of the contemporary legal order? The humanity law framework encompasses international human rights law, international humanitarian law, as well as international criminal law (for an overview of these main building blocks, see Teitel 2011, 36). Although criminal justice is a crucial tool for the enforcement of humanity rights, this strand will have to be left aside due to space constraints. In the current debates on the expansion of international human rights and IHL, the main argument is that these two branches of law have merged into a distinctive set of norms (Teitel 2008, 667; Leebaw 2014, 262). This fusion has resulted in a ‘bounded minimalist morality’ which includes the core prohibitions as well as standards in human rights and humanitarian law (Teitel 2011, 36). These ‘humanity rights’ stem from and revolve around the ‘right of preservation’ (Teitel 2011, 136).

  • 11 Article 3 common to Geneva Convention for the amelioration of the condition of the wounded and sick (...)
  • 12 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of (...)

27Firstly, humanity rights include common article 3 of the Geneva Conventions,11 which stipulates the basic norms of humane treatment and therefore establishes ‘a minimum code of conduct’ for all parties involved in any armed conflict (for more on common article 3, also in the context of the war on terror, see Teitel 2011, 136ff; Kolb and Hyde 2008, 78). Secondly, they encompass the non-derogable provisions of human rights (Teitel 2011, 47). The ICRC Commentary to the Additional Protocols12 states that ‘this irreducible core of human rights, also known as “non-derogable rights” corresponds to the lowest level of protection which can be claimed by anyone at any time’ (ICRC 1987, paragr. 4430). Teitel (2011, 59) then goes on to present recognition for the ‘crime against humanity’ as a value of the global rule of law, predicated on these core human rights, which ensures that there are no gaps left in the protection of humanity law. Thirdly, the international security concept is defined broadly and reconfigured in the sense that it becomes ‘part and parcel of human security’ (Teitel 2011, 10910). In turn, human security is entangled with the notion of global justice, which gives ample ground for sweeping claims justifying action on behalf of humanity. In Teitel’s words:

The coherence of a theory of human security as global justice depends on its capacity to prioritize human impacts – a notion of the most vulnerable, and the most affected – that results in a case for intervention… when effects attain a certain gravity or intensity, gauged in terms of the human or humanitarian sensibility. (Teitel 2011, 158)

28This triggers a duty to assist in a humanitarian crisis, which might primarily be placed upon the home state itself, yet shifts to other actors when the former fails to discharge this duty (Teitel 2011, 15862). This goes hand in hand with the ‘duty of protection’ inherent in humanity law (Teitel 2011, 12). Human security thus becomes the charge of the international community, or a saviour state within this community willing to act. Humanity law is thus a way of framing political conflict, with the argument for the ‘key neutrality’ of this regime in close reach (Teitel 2011, 112). And because these minimal humanity rights are not as extensive as a rhetoric calling for the protection of human rights generally, they ‘differ from human rights in that they enjoy a broader, more universal appeal as a result of their inherent minimalism and pragmatism’ (Leebaw 2014, 273).

Notes

1 Among others, this definition is followed by Donnelly (1984) and Buchanan (2018, 156–157).

2 The protection of nationals abroad, which some consider humanitarian intervention stricto sensu, and the stated humanitarian intent, are not considered to fall under or count as elements of the definition, see Lowe and Tzanakopoulos (2011, 3-9).

3 For more information on the relatedness between humanitarian and human rights actors, see Comninos (2016, 3–5).

4 Cultural critics have pointed out that, problematically, those designated as savages and victims are often non-white and non-Western, whereas the saviours are often the opposite. For more information on this paradigm, see Mutua (2013).

5 See Massaro (1988, 2101), who thus summarized the findings of Henderson (1987, 1579–1582).

6 Which is also explained by reference to the fact that the formerly recognized organs who determined whether such a war was just, specifically the Pope and the Holy Roman Emperor, were no longer unquestionably recognized as having such an authority, see Kolb and Hyde (2008, 22).

7 Charter of the United Nations (signed 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI (UN Charter).

8 ‘Law of humanity’, ‘humanity’s law’ and ‘humanity law’ are treated as synonyms, the latter two as used interchangeably by Teitel, 2011.

9 Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR).

10 ILC, ‘Third Report on State Responsibility by Special Rapporteur James Crawford’ (2000) UN Doc A/CN.4/507 and Add. 1-4, 30 para 89.

11 Article 3 common to Geneva Convention for the amelioration of the condition of the wounded and sick in armed forces in the field (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 31 (Convention I); Geneva Convention for the amelioration of the condition of the wounded, sick and shipwrecked members of the armed forces at sea (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 85 (Convention II); Geneva Convention relative to the treatment of prisoners of war (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 135 (Convention III); Geneva Convention relative to the protection of civilian persons in time of war (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287 (Convention IV).

12 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3 (Protocol I); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of non-international armed conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609 (Protocol II).

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