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The Drama of Humanitarian Intervention

Natalie Joy Marrer

5. The unreliable narrator in a world of paradoxes and conflation

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5.1 The cognitive power of meta-narratives

The dream of the ‘ideal’…

1The preceding chapters have shown that the saviour narrator operates on fertile ground: a lack of consensus within the interpretative community has shaped the contours of the regulation of the use of force, and has created considerable uncertainty, making it difficult to identify clear criteria by which the reliability of the humanitarian intervention narrative may be judged (Bianchi 2016, 306).

2This is exacerbated by some of the meta-narratives at work within the field of international law, such as the those on ‘universality’ and ‘progress’, which are interrelated (Bianchi 2016, 294). Human rights rhetoric is clearly infused with both. The fact that human rights rhetoric takes centre stage in international affairs prompts triumphalist accounts of human rights that are said to have achieved a ‘worldwide normativeness’, leading us to believe that we now live in the Age of Human Rights (Slaughter 2009, 2). Humanitarian intervention is directly linked to the enforcement of human rights, which are ‘treated as universal ethical imperatives whose expansion means progress’ (Altwicker and Diggelmann 2014, 434). For this reason, invocations of progress and universality permeate the drama of humanitarian intervention as well. The meta-narrative of universality evokes a sense of one-ness and sameness across nationalities and borders. The victim of human rights abuses is turned into a representative of this universal rights-holder (Orford 2003, 212). The language of human rights is one of ‘simplicity and obviousness’, bordering on common sense, which presupposes the universality of its own claims and presents itself as rational (Slaughter 2009, 3). In this regard, the language of human rights might truly have become a ‘vocabulary for progressive elite solidarity’ (Kennedy 2005, 28).

3However, rationality and common sense are only part of the story. The other part relies on sub-rational or non-rational feelings of human solidarity and compassion (for a synthesis of those arguing for and against this position, see Teitel 2011, 2045). To properly understand the pull of the narrative of humanitarian intervention, I believe it is crucial to consider both aspects. Richard Rorty (2011, 130) has examined the manipulation of sentiment in international relations and found that when we hear ‘long, sad, sentimental stories’ and see news stories or programs about massive human rights abuses abroad, sympathy is stimulated. I write ‘we’ because I have witnessed this behaviour not only in myself, but also in many others. Through imaginative identification, we place ourselves in their shoes in an ‘act of self-substitution, a projection of the self into the grammatical position of the subject who suffers’ (Slaughter 2009, 93). Hence, the character of the victim is central to the narrative of humanitarian intervention: not only because every hero needs someone to save, but also because it ‘allows the reader to imagine himself or herself to be on the side of the good and the just, part of a state or international community actively able to shape the world in the image of the ideals of freedom, democracy and order’ (Orford 2003, 175). The ideal does not only relate to the dream of a better world, but also to the dream of a better version of ourselves.

4Others have already noted that the human rights movement has had a part to play in the belief that the ‘world’s political elites form a “community” that is benevolent, disconnected from economic actors and interests, and connected in some diffuse way through the media to the real aspiration of the world’s people’ (Kennedy 2002, 117). These mental frames quickly lead to expectations of neutral and innocent intervention, one that bears the promise of emancipation for the oppressed, and a universalist presence of human rights (Kennedy 2002, 117). George Lakoff provides crucial insights into how these frames work. Despite exposure to facts, the broader public often fails to reach the ‘rational conclusion’, because:

When the facts don’t fit the frames, the frames are kept and the facts ignored. It is a common folk theory of progressives that “The facts will set you free!” If only you can get all the facts out there in the public eye, then every rational person will reach the right conclusion. It is a vain hope. Human brains just don't work that way. Framing matters. Frames once entrenched are hard to dispel. (Lakoff 2003)

5Cognitive frames are thus capable of generating blind spots and a problematic tunnel vision, since ‘alternative ways of thinking are suppressed’ (Wählisch 2015, 33435). For this reason, the strategic framing of humanitarian interventions by the saviour-narrator can dull the capacity of the audience to evaluate the situation in a critical manner. If the legitimacy of an intervention is tied to the criterion of ‘acts which shock the conscience of humankind’, as Michael Walzer suggests (Walzer 2015, 107), a direct link can be established to the empathy of the audience, which seems dangerous. The risk of falling prey to an unreliable narrator is in no way limited to the wider public – the interpretive community of international lawyers also has a tendency to resort to ‘frame-consistent inferences’ according to the sub-disciplinary background they come from (Windsor 2015, 755). By casting characters in familiar roles, playing with emotions, relying on just war argumentation and by invoking ‘humanity’, the reflexivity of those hearing the story is stifled. We have seen how invoking ‘humanity’ is a powerful tool to make the speaker’s values seem universal and therefore unobjectionable. When humanitarian intervention is justified as a response to an urgent crisis, this ‘will imply that any kind of contestation, hesitation, or deliberation is somehow complicit in the suffering and therefore immoral’ (Leebaw 2014, 270). Ethical goals such as human rights protection are in a sense considered to be the moral responsibility of everyone (Kofi Annan quoted in Chandler 2003, 3056). This appeal to the conscience of the audience of the drama of humanitarian intervention is often overlooked in scholarly writing.

6The meta-narratives of progress and universality, as well as the sentimental affinity of readers of humanitarian intervention, are also reflected within Teitel’s humanity law, which introduces ‘a sovereignty not of the state but of the individual in relation to the (responsible and responsive) state’ by claiming that individual rights now lie at the centre of the international legal system (Denike 2008, 100; Teitel 2011). In addition, the meta-narrative or dream of systemic unity is introduced. This discipline of optimism would like to see the evolution of international law towards a more advanced system, which is ideally conceptualized as a coherent one (for a more detailed account, see Windsor 2015, 74851). In the international legal field, the discourse about the systemic unity of international law seems biased. While unity is seen as a positive value, the competing narrative of a fragmentary legal field with its self-contained branches of international law has negative connotations (Bianchi 2016, 293). Humanity law, as the amalgam of international human rights law, international humanitarian law and international criminal law, bridges the divide between these branches and places the protection of humanity at the apex of the international legal order, as a goal on which all characters naturally would have to agree.

…hiding the ‘real’

7This dream of harmony within the meta-narratives tries to hide the dynamics of power and hierarchy, as well as the value conflicts and paradoxes that actually permeate the discussion (Windsor 2015, 749). My hypothesis is that the paradoxes within the language of human rights give the unreliable narrator more space to develop his story. In addition, these meta-narratives and a propensity for empathy tend to overshadow the dark side of human rights rhetoric.

8As a brief introduction, I would like to point to the general malleability of human rights rhetoric. James Dawes sheds light on a series of paradoxes literary studies have unveiled in the human rights regime (he broadly defines five related paradoxes in the human rights language, namely the paradoxes of beauty, of truth, of description, of suffering and of witnessing, see Dawes 2009). The basis for this is the ‘paradox of description’, meaning that ‘language liberates us from coercion by creating protective boundaries, but these boundaries also imprison and constrain us’ (Dawes 2009, 396). In this context, literary critics have made efforts to make sense of meaning and language (Dawes 2009, 405). While the emancipatory model of language contends that democratic language practices emancipate us from the reign of force, the disciplinary model conceives of language as inherently unstable, capable of subjecting us to power (for a brief summary of the main positions and well-known proponents of these theories of language, see Dawes 2009, 406). Applied to the discourse of human rights, the former theory would consider human rights law as a vehicle for promoting the self-realization of humanity as a conglomerate of global citizens, while the latter would see it as a form of coercive subject interpellation (Dawes 2009, 407). The former corresponds to what I have called the ‘ideal’ in the preceding chapter, whereas I would contend that the ‘real’ necessarily needs to take the latter coercive dimension into account as well.

9In my opinion, it is true that human rights are ‘necessary but suspicious vehicles’ (Slaughter 2009, 33). Some of the legal literature on the topic has been permeated by the underlying problématique that discourses on human rights are considered to be imperfect expressions of the essence of these rights (Gaete 1993, 14–15). However, the existence of such an essence itself is disputed, so that there is arguably ‘no permanent core, no final, conclusive definition of human rights, anterior to the interpretive process’ (Gaete 1993, 55). An influential state or organization claiming to act on behalf of humanity can thus quite easily join the battle-cry for universal human rights, given the intrinsic malleability of the language of human rights.

  • 1 Using the example of ethnic cleansing in Kosovo, Rorty shows how the Serbs considered the Kosovar A (...)
  • 2 Dawes 1999, 223; referring Blanchot 1986.

10The word ‘human’ in human rights is not as inclusive as it initially appears to be. Anne Brown writes that the ‘category of the human is deeply paradoxical, appearing with the power of both innocent description and moral norm’, because it ‘frequently operates as an exclusionary mechanism patrolling the divisions between self and alien… while at the same time appearing to maintain reference to an unimpeded universality’ (Brown 2002, 15). The conception of human rights as universal and progressive has been challenged by relativist theorists, in the form of historical, cultural, feminist and cognitive critiques (for an overview of these critiques and counter-positions, see Kälin and Künzli 2011, 1930). Makau Mutua, who principally adopts a critical race theory approach, deplores the fact that the saviour metaphor is based on Eurocentric universalism as the premise for the whole edifice of international law, and on a ‘missionary zeal’ that assumes the West to be superior to the rest of the world (Mutua 2001, 233). His contention, that defenders of human rights universality claim the solution to illiberal and authoritarian societies to simply be constitutionalism and political democracy, finds exemplary support in the cases of humanitarian intervention analysed above, where this antidote often proved to be overly simplistic (Mutua 2001, 237). Rights talk often contains harsh judgment directed at the perpetrator.1 In the drama of humanitarian intervention, not all characters are ascribed ‘humanness’: the enemy forces seem to lie outside the purview of humanity, and the villain state cannot claim legitimate statehood (Brunnée and Toope 2004, 383). In this story, there seems to be an underlying moral certainty that the divide between ‘good’ and ‘evil’ is clear, and that the saviour is capable of narrating the story for the victim. Based on this fiction, the invocation of ‘evil’ carries significant resonance, yet it fails to provide concrete guidance for action (Brunnée and Toope 2004, 383). Maurice Blanchot once pointed out that writing or speaking of a disaster would always amount to a lie, since ‘it gives limits to the limitless, sense to the senseless’.2 James Dawes agrees that meaningful language is suspect, since it contributes to the consolidation of power relations, yet also because it attempts to ‘present as “real” an experience inaccessible to reality, insofar as reality consists of what we can understand through our socially programmed conceptual categories’ (Dawes 1999, 223). In this sense, reality grows successively more distorted the longer the chain of translation becomes, from the victims to the saviour who narrates their plight, to the audience who hears the story of suffering.

  • 3 The idea of inheritance can be found in McClennen and Slaughter (2009), 3.

11Dawes contends that ‘naming is violence’, and is a strategy that is commonly used in power relations. To be named is both a way of suffering violence and a source of dignity (Dawes 1999, 21516). Using the word violence to describe this phenomenon might carry pathos, yet it is worth contemplating that naming – and the cognitive framing that follows from it – capable of giving and taking away a voice. The problem of speaking on behalf of the victim is epitomized in Dawes’ ‘paradox of witnessing’ (‘that speaking for others is both a way of rescuing and usurping the other’s voice’) (Dawes 2009, 396). In my opinion, the saviour-narrator has an overpowering voice in the drama of humanitarian intervention. Recall the image of fiduciary representation or ‘inheritance’ invoked above (Chapter 3.2.B):3 they speak on behalf of the victims and claim their rights for them. Yet, to borrow from Anne Brown:

Metaphors of listening may assist more interactive, more open and less bordered ways of enacting knowing. Rights are traditionally associated with the activity of claiming, but they could be equally associated with listening. If notions of human rights… are a way of recognizing and taking part in the on-going interchange and negotiation among self and other, of requiring that one be properly heard, they demand not only the ability and ‘space’ to claim participation, but also the ability and willingness to accord others attention. (Brown 2002, 16-17)

12The capacity to listen is a characteristic that the hero often lacks. The innocent victims are paradoxically presented as placeholders for humanity, yet also objects without agency. In the same vein, Orford notes that the villain governments of target states are at the most recognized a deviant agency, whereas agency is completely lacking for the peoples of the states where the intervention is taking place (Orford 2003, 170).

13Additionally, as a consequence of human rights rhetoric becoming so commonplace and widespread, which any character on stage can use, there has been a ‘banalization’ of human rights (for an interesting account premised upon this idea, see Hannum 2019; McClennen and Slaughter 2009, 2). This all-pervasiveness needs to be analysed critically. I could not agree more with this statement by Joseph Slaughter:

The banalization of human rights means that violations are often committed in the Orwellian name of human rights themselves, cloaked in the palliative rhetoric of humanitarian intervention, chivalric defence of women and children… Thus the discursive victory of human rights means that ours is at once the Age of Human Rights and the Age of Human Rights Abuse. (Slaughter 2009, 2)

14Humanitarian and human rights law norms and institutions can be invoked as an alibi for violence and abuse of power (Leebaw 2014, 262). Although human rights were traditionally conceived as a defence of the individual against the state, this logic has now been turned on its head: they have become a standard justificatory tool to legitimize the external use of force by the saviour state against the supposed villain state (Kennedy 2005, 25). The unreliable narrator can thus use a prop originally meant to serve as a weapon of internal rebellion and dissent, as a device to bolster its own state’s legitimacy (Slaughter 2009, 88). However, the discourse of humanity and human rights tends to be used by both sides in a conflict; it can be invoked by different actors for various reasons (Leebaw 2014, 272). Teitel admits that the same can be said for humanity law, whose ‘comprehensive but indeterminate regime’ may lend itself to politicization (Teitel 2011, 113). The porousness of humanity-based rhetoric can thus serve as an alibi for the saviour-narrator who wishes to wage war and turns the empathy for common humanity into leverage for strategic aims planned and acted upon by external agents (Denike 2008, 101; Leebaw 2014, 272). Hence, the interventions this discourse legitimates ‘are more likely to track political interests than just own emancipatory goals’, such as corporate capitalization which can ensue from lucrative reconstruction projects, or the superposition of liberal values following the Western conception of their supposedly superior social, political or economic order (Denike 2008, 101).

  • 4 For a historical account of this punitive aspect, dating back to Grotious, see Geyer, 2016, 35ff, q (...)
  • 5 Quote referenced in Brunnée and Toope 2004, 366.

15What is striking about this is how the spotlight is invariably put on the saviour or hero character. The drama claims to be about the victim, yet it is more focused on the narrator who claims to act on humanity’s behalf. In consequence, the direction of the story changes: human rights language might be used, but there is arguably still no clear ‘understanding that the rights to be defended were those of the oppressed rather than the rights for intervention by hegemonic states’ (Geyer 2016, 49), despite the clear statement of Evans that R2P has laid this idea of a droit d’ingérence to rest (for more on the ‘droit d’ingérence’ or the right to intervene, see Klein 1993). I doubt that the attempt to change direction in the R2P debate has truly been successful, and that the powerful characters on stage got the message. The other change in direction I noticed in the narrative is that it is said to be about the protection of the victims, yet often degenerates into the goal of punishing the villain. The denunciation of abuses committed by the villain governments leads to a focus on condemnation and punishment rather than on an attempt at cooperation (Chandler 2003, 304). This links to the rationale of just war: ‘Punitive intercession is predicated on the inhumanity of rulers. Its goal is to punish and expurgate. This is the opposite of what might reasonably be considered a human rights intervention’.4 Such a focus on punishment serves as an apology for the use of force. A good example can be found in the words of a speech writer for President Bush: ‘In a world where there are evil governments, this is the real moral test. What do evil governments do? They kill. What do good governments do? They must also kill’.5

16The willingness to use force is thus presented as a moral challenge, one the saviour-narrator is ready to take on. What is left out is that this link between military force and humanitarianism is far from natural. The idea of a ‘humanitarian war’ has been called an oxymoron (Roberts 1993, 429), although scholars such as Benjamin Banta (2017) present a convincing case that humanitarianism and war are not necessarily antithetical to one another. However, this does not mean that it is always unproblematic. The paradox lies in the fact that the humanitarian idea can wittingly or unwittingly ‘simultaneously deplore, restrain, enable and embrace violence’ (Slim 2001, 326). Ambiguity thus surrounds the notion of humanitarianism, nested within the discourses of politics, morality and compassion. The confusion resulting from ‘humanitarian’ action being claimed by non-humanitarian actors is only compounded by the fact that complex operations such as the one in Libya often involve a protection and relief dimension, which makes it easier for the saviour-narrator to claim that his action, true to the humanitarian name, is actually impartial and politically neutral (Pommier 2011, 107577). Given that this elastic word, ‘humanitarian’, lacks clear conceptual limits and has not been defined in international law or claimed exclusively by any specific branch of international law, it can be used for a wide range of acts and can be subject to hegemonic manipulation (Slim 2001, 331). An intervention such as the one in Kosovo can be portrayed as restoring the values at the core of the international order, sidelining the fact that the means for this was a breach of the rules that form the basis of the same order (Orford 2003, 178). This new type of military humanitarianism promotes the idea that interventionism is a more effective way of guaranteeing human rights and a just world order, than the seemingly outdated non-interventionist logic based upon a literal reading of the UN Charter (Orford 2003, 178).

17By linking violence to humanitarianism, jus ad bellum reasoning has merged with jus in bello considerations, since ‘the humanitarian idea was now deployed as a brake on the means of violence and also as a just cause to describe the ends of violence’ (Slim 2001, 332). But this proposes false hope: sometimes, violence might need to be countered with force, yet experience has shown that an end to the brutalities is not guaranteed. Intervention will normally lead to more destruction and death, whether under the aegis of humanitarian intervention or R2P. Rhetorical tropes – using the word humanitarian ‘intervention’ rather than war, substituting the former for R2P, or using ‘violence’ to speak of illegitimate agents contrasted with ‘force’, implying a policing function, for the hero characters instead – cannot silence the voices asking whether war can truly be humanitarian (Coady 2002, 15).

5.2 Issues of reliability and transparency

Indices of unreliability

18One obvious objection to linking violence to humanitarianism is that humanitarian intervention remains selective. There are limits to empathy, and not all suffering provokes a forcible reaction. Whereas Kosovo prompted NATO to defy the Security Council, both states and the UN evidently failed in Rwanda (Slaughter 2014, 49). Wheeler notes that ‘governments are notoriously unreliable as rescuers’ (Wheeler 2010, 310). It may be true that selectivity is unavoidable, since injustice is everywhere. Slaughter claims that it makes no difference for humanitarian workers whether they act or not, since ‘turning right rather than left at the fork in the road has no epic or heroic implications for the protagonist’s personality’ (Slaughter 2014, 56). The opposite is true for those characters on stage based on state entities. While certain commentators claim that selectivity in humanitarian interventions is desirable because it reduces the risk of over-commitment, fosters cooperation among powerful nations and prevents states or the UN from intervening in ill-planned operations, this positive account is overshadowed by the counterargument that selectiveness has a negative impact on actors’ legitimacy and success, unmasking the discriminatory narrator as obviously motivated by concerns which are not purely humanitarian in nature (these contrasting opinions and explanatory factors for this selectivity are developed in Binder 2017).

19On the one hand, ethical foreign policy clearly has its appeal. As Chandler notes, to the unreliable narrator there are three advantages attached to the advancement of an ethical foreign policy: (1) the object of criticism is clearly identified as the foreign government, (2) there is an assumption that the hero role will not be held very accountable for ‘matching rhetoric to international actions’, (3) credit can be taken for a positive outcome, but blame for a negative outcome can be cast on the villain state (Chandler 2003, 303). On the other hand, the existence of domestic support and the link to national interests are crucial factors for leaders. In the Syrian debacle, President Obama was denounced as an unreliable saviour-narrator. At the same time, he openly admitted that ‘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’ (quoted in Hannum 2019, 150). There is thus an inherent unreliability in any specific story of humanitarian intervention.

20Indeed, this becomes even more apparent when we examine more closely the ghost of just war haunting humanitarian intervention narratives. Given the similarity of the ICISS principles with the traditional just war criteria, these considerations apply broadly to humanitarian intervention in its original and new guise of R2P (Brunnée and Toope 2004, 383–384). It has been shown that the ‘just cause’ of intervention has been given centre-stage in the drama of humanitarian intervention. Yet, ‘just cause’ is not the primus inter pares, although the discourse reflects that there tends to be a relative neglect of the other just war principles; namely, legitimate authority, right intention, last resort, proportionality, and reasonable prospect of success (for a reminder of the criteria mentioned above, see Coady 2002, 19). As some authors point out, finding a semi-convincing just cause reflecting an apparent right intention might be the least challenging task for the unreliable narrator, whereas proper authority as well as an argument that it was the last resort can often be drawn from Security Council authorization, UN endorsement or from a regional organization (Brunnée and Toope 2004, 379). Political rhetoric emanating from governments often mixes various cases which on their own would have been insufficient to justify war in legal terms (for example security with humanitarian concerns), yet the totality is accepted as reaching the threshold necessary for public approval (Brunnée and Toope 2004, 389). Right intention aiming for justice is notoriously difficult to ascertain, although I have already mentioned that the purpose of punishment is problematic given its proximity to revenge (revenge is explicitly excluded as right intention, see Coady 2002, 19). The element of legitimate authority has been discussed above. The most doubtful are the elements of proportionality and likelihood of success. This simple statement goes to the core of the problem: ‘If just war is evoked, those evoking it should stay within the framework they have endorsed’ (Elshtain 2001, 13).

21We have discussed how avoiding the terminology of ‘humanitarian war’ can already be an attempt to sway the audience in favour of intervention. This cannot distract from the fact that any use of force, regardless of its purported justness, needs to comply with international humanitarian law. As Hugo Slim writes, war is judged twice by the audience: once in relation to the justness of the cause, a second time in terms of whether it has been ‘fought justly’ (Slim 2001, 327). Even though there should be no confusion between the justice of the resort to war (jus ad bellum) and the just conduct of the war (jus in bello), humanitarian intervention seems to blur this separation in dangerous ways.

22The intervention in Kosovo is a case in point. There is an argument to be made that the exaggerated rhetoric partially constructed the just cause for intervention (Hannum 2019, 121). The International Commission even admitted that the rationale for military intervention by NATO did not rely directly on the ‘immediate scale of humanitarian catastrophe, but rather on a weaving together of past experiences and future concerns’ (Independent International Commission on Kosovo 2000, 159). Although Phelan’s taxonomy of unreliability does not foresee such a category (a reminder of the taxonomy: 2005, 3165), I would suggest that such ‘overevaluating’ or ‘overreading’ could provide additional grounds for unreliability.

  • 6 The definition of military objectives can be found in art. 52 (2) of AP I. Dual-use objects are obj (...)

23International humanitarian law, mainly through AP I, protects civilian objects and civilians against the effects of active hostilities (Kolb and Hyde 2008, 126ff). Noncombatant immunity is part of the proportionality element of just war and is sometimes even considered a separate just war condition. Even if the initial resort to force in Kosovo could be justified, the same cannot be said for the conduct of the operation, due to the bombing of dual-use objects6, the use of cluster bombs and the strategy of high-altitude bombing (Heinze 2006, 29). There was not a single NATO casualty, yet approximately 500 civilians were directly killed by the allied bombing campaign (Hannum 2019, 122). The media might have deplored the effect of bombing on noncombatants, but the just war framework requires that attention be given to the long-term effects of these actions as well. Most problematically, the self-interest exposed by shielding the saviour state’s soldiers shows intranarrational unreliability. As one critical American commentator rightly notes, there was an insufficient attempt:

to meet the strenuous demand of proportionality; rather, we violated the norm of discrimination in a strange upended kind of way, namely, by devising a new criterion: combatant immunity, as our combatants ranked higher in consideration than did non-combatant immunity for Serbian – or Albanian Kosovar – civilians. (Elshtain 2001, 16‑17)

  • 7 Art. 51 (5)(b) AP I; for more on these issues see Kolb and Hyde 2008, 136–137.

24NATO denied this, calling the civilian deaths acceptable ‘collateral damage’ not violating the principles of proportionality and precaution in attack.7 On the other hand, Amnesty International condemned the acts as unlawful killings and clear violations of IHL (Amnesty International 2000). The idea of ‘riskless warfare’, expressed in President Clinton’s wish to conduct a ‘no casualty’ or ‘no cost’ war (Elshtain 2001, 18), sacrifices coherency and what James Pattison calls local and global external effectiveness in order to preserve internal effectiveness (for a reminder of what these notions entail, see 2008, 13-14). According to this logic of effectiveness, which relates to the probability of success, NATO not only violated international law, but also the moral criterion by which legitimacy is judged (the fidelity to jus in bello is also part of the legitimacy test, according to Pattison 2008, 398). There is an internal contradiction in the narrator’s own language if it is claimed that the campaign aims to defend the equal value of each human being, yet there is asymmetrical value is given to human life – there is an ‘incompatibility between the morality of the ends, which are universal, and the morality of the means, which seem to privilege a particular community’ (Kahn 1999, 4). And somehow, this seems to have been accepted by those institutions which ought to judge all actors according to the same legal standards:

Despite nominal consensus on the dualistic axiom, international law tends to tolerate more incidental civilian harm (“collateral damage”) if the alleged causus belli is… formally illegal but still perceived as legitimate, meaning that it furthers broadly shared international values: preserving minimum order, halting human rights atrocities, and so forth. (Sloane 2009, 55)

25It seems that jus ad bellum considerations crept into the realm of jus in bello, resulting in the impression that humanitarian war places the hero nations beyond the equal application of law and endowing them with impunity (Banta 2017, 432). Taken to the extreme, this might mean that civilian casualties will be more, not less, permissible, in that it ‘allows for their portrayal as accidents rather than violations of humanitarian norms’ (Banta 2017, 433). For example, despite convincing evidence to the contrary, the Prosecutor’s report of the International Criminal Tribunal for the Former Yugoslavia concluded that there was no basis to open a criminal investigation into any aspect of the NATO bombing campaign against the FRY (Amnesty International 2009).

26These aspects heighten the risk that the victims will be re-victimized, while the saviour-narrator will be allowed to continue to speak humanity-infused rhetoric with internal contradictions. In effect, the actual essence of just war theory – meaning its restrictiveness, its warning to be cautious – is misconstrued and abused as a permissive license for the use of force (Coady 2002, 18). At the same time, the saviour regularly does not accept that the consequences of a potential negative outcome are his to remedy. In cases of intervention for ethical ends, there is not enough moral or legal pressure to account for final policy outcomes (Chandler 2003, 309). Chandler (2003, 309) correctly stresses that the ‘belief that it would have been even worse without international action provides a hypothetical post facto justification that is difficult to disprove’. Although rhetoric had elevated the Kosovar refugees to symbols of humanity – an image which should as a matter of consistency apply to all refugees stemming from all crises – governments are notoriously reluctant to admit refugees to their own countries after intervening, as the Syrian case powerfully shows (Orford 2003, 203).

27Another example of a privileged treatment for the saviour-narrator’s own state, and of asymmetry, is the fact that the crumbling of the non-intervention principle and the institution of a conditional sovereignty is considered laudable in comparison with the villain state, but not admissible for the hero state itself. In the humanitarian intervention narrative, ‘Western imperialism operates to sustain and reinforce itself and its powerful states as sovereign, and legitimate, still bounded and impermeable behind their fortresses, while applauding the permeability and dissolution of others’ (Denike 2008, 101).

Lack of transparency

28Transparency is a crucial dimension of a narrator’s reliability. Still, transparency is difficult to find in the narrative of humanitarian intervention. For example, heroic tales tend to place blame squarely on the villain state, evading any suggestion that the intervening states or the international community might have had a role to play in constituting or contributing to the crisis (Orford 2003, 176). This ‘erasure of the violence of the international community’ is also embodied in the refusal to provide official body counts of the killed and injured in the humanitarian campaign, which borders on censorship (for examples of this in Iraq and Kosovo, see Orford 2003, 19091). NATO often invokes the image of a clean war conducted with high-tech weapons, implying that ‘our violence is clean and surgical, while their violence is cruel and destructive’ (Orford 2003, 191). If the story were truly to be told from the victim’s perspective, it is highly doubtful whether they would agree with this.

29Another example of unreliability in terms of transparency and consistency is how the US framed the Kosovo intervention as an exceptional situation sui generis, in a clear attempt to deny the intervention the value of precedence (Chesterman 2011, 281). But how exceptional was the situation in the Balkans really, compared to other situations of massive abuse of human rights? How different can they be in the eyes of the suffering victims around the world, on whom the focus is claimed to be? It seems more that it is about the saviour who wants to be selectively heroic and wishes to preserve rhetorical and legal flexibility. The result is that there are thus ‘states willing to engage in, or tolerate, a one-off (or two-off) exceptional breach of Article 2 (4) of the Charter for some other political or moral considerations, but unwilling to modify the law for the future as a general matter’ (Milanovic 2018). Following Ian Johnstone’s (2011, 4145) concentric model described above, demands for legal justifications regarding humanitarian intervention have been voiced by the outer circle of the wider audience. However, these have only rarely been met by the government officials forming part of the inner circle, impacting their perceived reliability (for a more successful example of such advocacy, see Windsor 2015, 762). To borrow from Windsor, ‘The interplay between secrecy and transparency has a significant bearing on the identification of unreliable narration, whether cast in terms of underreporting, or internarrational or extratextual unreliability (Windsor 2015, 762). Disclosure is a means for the audience to check the political neutrality, factual correctness and comprehensiveness of the legal position put forward by the executive branch. This is linked to a ‘duty to explain’, which Koh considers an important transparency norm that places an obligation on governments to explain to the public the international legal basis for their actions – a duty that the Clinton administration in Kosovo and the Obama administration in Syria clearly failed to fulfil when they did not articulate a clear legal rationale (Koh 2015, 980).

30In practice, the duty to explain appears to be a myth, because ‘actual practice appears to favour a “secret life of international law”, where the legal advice that informs decision-making is seldom visible outside government’, apart from the UK, which expressly relied on humanitarian intervention from Northern Iraq to Syria (Windsor 2015, 764). The British government’s position proposes three general conditions for a humanitarian intervention: (1) convincing evidence of extreme humanitarian distress on a large scale, (2) no practicable alternative to the use of force must be available and (3) force must be strictly proportionate and necessary (a summary of the UK government’s legal positions in 2013 and 2018 as regards Syria can be found here: Foreign Affairs Committee 2017, 3-4). Despite this transparency, the conditions are quite flexible, and although they attempt to infuse the test with an appearance of objectivity, the subjective element in their determination seems clear (for a critique of these UK criteria, see Milanovic 2018). Unreliable narration can also be a product of a consistent clash between the views of other characters and the narrator, such as the unconvincing proposition of the UK that humanitarian intervention is an established principle of customary law. However, as we have seen, there is a strong case to be made that international law does not permit states to use force on the territory of other states for humanitarian ends, which remained unchanged by the R2P doctrine (for more on this, see Akande 2018). Indeed, given the proximity of R2P to the six just war principles, it seems like the UK left out three of them in their legal justification on Syrian airstrikes: right intention (since the primary goal was not the purpose of protecting civilians, but enforcing the chemical weapons norm), reasonable prospects of success (which the proposed mandate seemed to lack) and right authority (R2P does not foresee a right to act unilaterally, only collectively) (Carpenter 2013). This bolsters the claim of those who argue that R2P continues to function as an excuse for violence when need be, and exposes those who claim that the R2P-enabled overreaction in Libya should merely be seen as the ‘invitable toothing troubles’ of any ‘new’ international norm (Banta 2017, 432). In addition, the UK assumed the role of active hero and falsely seems to present the choice as one between action and complete inaction – a choice which need not be made, because there are other options. However, the failure in Rwanda is a powerful memory of what can happen if nobody intervenes, fuelling this false dichotomy between presence and absence and making it appear as if it were better for states to take action, even if it might do ‘some harm’, rather than to do nothing (Tesón 1995, 342).

  • 8 ‘To be credible, the legal analysis of any particular situation would need to substantiate each of (...)

31The failure to provide a clear legal rationale for American actions can probably be partially explained by a fear of providing a framework which other states could evoke to justify humanitarian intervention as well. However, the argument can be turned on its head: threatening or engaging military action for humanitarian purposes without providing a detailed legal basis might set an equally dangerous precedent, so that ‘less-humanitarian-minded states can cite President Obama’s 2013 threat to put their own broad spin on the legal interpretation, using the murky concepts of humanitarian intervention and R2P for their own self-interested purposes’ (Koh 2015, 1003). In this sense, clear legal criteria – see for example the list suggested by Koh8 – might constrain the use of force, because it would place a justificatory burden on the government according to the established criteria, while at the same time giving other actors on stage and the audience a more precise benchmark against which their supposedly humanitarian actions might be judged (Wheeler 2005, 100101). Critics of the R2P doctrine continue to underline how malleable the notion still is, since it arguably fails to establish clear boundaries and can be instrumentalized (Rudolf 2013, 8). Hence, R2P is not a more perfect ‘rules based’ frame for humanitarian war, able to constrain the unreliable narrator, and neither is humanity law.

32Humanity law holds the promise of protecting the innocent and giving victims a legal tool to articulate their claims. Teitel suggests that the minimalism inherent to humanity law allows all actors to agree on it, but she admits that the minimalist and depoliticizing value of protection is also used to justify interventions (Leebaw 2014, 271). Still, although humanity law can serve as an alibi, Teitel stresses that humanity rights simultaneously ‘insist on jus in bello limitations and evaluate the justness of war in relation to its claims to protect civilians’, thus creating limits on its own inherent risk of manipulation (Leebaw 2014, 272). It seems like two souls live in the same body of humanity law: one operating to justify intervention for humanitarian reasons, the other dedicated to limiting intervention ‘through the same humanitarian logic’ (Teitel 2011, 83). There is some truth to the assertion that humanitarian wars are now also judged by their outcome, notably their impact on the civilian population (Teitel 2011, 101). Yet the preceding arguments hopefully show that one tendency will overshadow the other, that the same logic sways more forcefully in the direction of one of these poles in most situations, and that these spirits cannot cohabit without problems. As one commentator of Teitel’s work puts it:

Although humanity rights are defined in relation to the goal of preserving human life, then, the protections found in the convergence of human rights and humanitarian law are not only minimalist but also fragile or tenuous, as compared with those found in the broader human rights framework. For this reason… the merging of international humanitarian law and international human rights law will function to decrease basic protections by moving away from the stronger protections outlined in the human rights framework. (Leebaw 2014, 273)

33If the human rights framework is already capable of being manipulated for the purposes of the unreliable narrator, then the quote above would suggest that humanity law is even more prone to such abuse. Even worse, the discourse based on this conflation inherent in humanity law could be designated ‘“folk international law”, a law-like discourse that relies on a confusing and soft admixture of IHL, jus ad bellum, and IHRL to frame operations that do not, ultimately, seem bound by international law’ (Modirzadeh 2014, 22526). The concept of protection might arguably be found in IHL, just war and international human rights law, yet it can be used by numerous actors for diverse strategies – among them unreliable narrators.


1 Using the example of ethnic cleansing in Kosovo, Rorty shows how the Serbs considered the Kosovar Albanians to be pseudo-humans whereas the democracies intervening in turn tended to view the Serbs as ‘animals’: Rorty 2011, 112–113.

2 Dawes 1999, 223; referring Blanchot 1986.

3 The idea of inheritance can be found in McClennen and Slaughter (2009), 3.

4 For a historical account of this punitive aspect, dating back to Grotious, see Geyer, 2016, 35ff, quote at page 40.

5 Quote referenced in Brunnée and Toope 2004, 366.

6 The definition of military objectives can be found in art. 52 (2) of AP I. Dual-use objects are objects which serve both civilian and military purposes, see Kolb and Hyde 2008, 132.

7 Art. 51 (5)(b) AP I; for more on these issues see Kolb and Hyde 2008, 136–137.

8 ‘To be credible, the legal analysis of any particular situation would need to substantiate each of these factors with persuasive factual evidence of: (1) Disruptive Consequences likely to lead to Imminent Threat; (2) Exhaustion; (3) Limited, Necessary, Proportionate, and Humanitarian Use of Force; (4) Collective Action; (5) Illegal Means; and (6) Avoidance of Illegal Ends’, see Koh 2015, 1011.


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