Resolved: The United States is justified in intervening in the internal political processes of other countries to attempt to stop human rights abuses.
For part one of this analysis, click here.
Neg PositionIn this debate the Neg will be defending the idea that state sovereignty is an immutable ideal. Having already defined and discussed the background information (if you have not read it, start here) surrounding the necessity for this debate, let's focus on the key issues for the Negative side. First the resolution, states the US is justified to intervene to attempt to stop human rights abuses. The negative position would hold they are never "justified". There can be several arguments why they are never justified. First, recall the definition of justified strongly suggests the US must commit an illegal action in order to receive justification. After all, why does a legal action need justified? The mere fact that action is illegal is, in itself, a red flag. If a nation (or anyone for that matter) feels an act justifiable given the circumstances, there must be a very high-level of scrutiny applied to the examination. I think one of the things Neg must consider, if an act can be justified then why is there a prohibition against it and if there is no prohibition then why must it be justified?
The Legal IssueThe key issue which prohibits one nation from intervening in the internal politics of another is simple to understand. Each nation has a right to govern itself. Within the US, for example, there is a great deal of homogeneity from state to state, meaning people in Ohio pretty much have the same culture and values as people from Texas. On the other hand, in places like Europe, the individual nations are often very diverse, having completely unique languages, customs and cultures. The idea that one nation ought to impose its values or morals upon another is part of what is at stake in this debate. If Neg wants to take on the legal debate, one must give consideration to the fact that most laws require an enforcement component. In other words, as we have seen in the last debates on "rehabilitation vs. retribution" a law that does not punish violations is pretty much useless. International law therefore is based on treaties and in the modern world, actions sponsored by the United Nations as a collection of world opinions on how nations behave. Under this framework, the consequence for violating international laws would likely be some levels of reaction by other nations such as isolation, sanctions, or possibly war. Generally, in the spirit of cooperation, nations have agreed to defer to the opinions of the UN as a sort of check against taking actions which other nations may deem as abusive, aggressive, dangerous or otherwise not in the best interests of the world community. However, when dealing with a super-power such as the US, the UN ability to limit the actions of the US are decidedly limited.
The Republic of Nicaragua v. The United States of America was a 1984 case of the International Court of Justice (ICJ) in which the ICJ ruled in favor of Nicaragua and against the United States and awarded reparations to Nicaragua. The ICJ held that the U.S. had violated international law by supporting Contra guerrillas in their rebellion against the Nicaraguan government and by mining Nicaragua's harbors. The United States refused to participate in the proceedings after the Court rejected its argument that the ICJ lacked jurisdiction to hear the case. The U.S. later blocked enforcement of the judgment by the United Nations Security Council and thereby prevented Nicaragua from obtaining any actual compensation. The Nicaraguan government finally withdrew the complaint from the court in September 1991, following a repeal of the law requiring the country to seek compensation, thus settling the matter.
In the long run, the position by the United States will be of more significance than the opinion of the International Court of Justice. That opinion is likely to be an exercise in legal form without force: already the United States has indicated that it will ignore the ruling. The U.S. position, on the other hand, manifests itself daily in the policies that the government pursues, not just in Central America, but around the world. For this reason alone, the U.S. position requires careful analysis and critique. But analysis of the U.S. position is valuable not just from a practical point of view. Even more important, it reveals much about the current state of international law. The Nicrargua case throws into vivid relief the two-fold character of international law. On the one hand, there is authoritative text - treaties, judicial opinions, General Assembly resolutions; on the other hand, there is state practice. International law advances - or retreats - along both dimensions at once. Without any institution to work a convergence of authoritative, institutional decision-making and state practice, internation law is characterized by the possibility of divergence between the two. That gap, however, does not justify the measure of illegality of a controverted practice. Because international law has the curious institutional form of allowing deviant practice to create law, the gap equally signifies the variety of creatvie forces at work in international law. The Nicaragua case and the events it triggered suggest that the gap is very wide now and that the two sources of internation law are moving along radically different paths.
Professor Kahn suggests, there are two principle drivers which constitute the basis of international law. One is the textual law, codified in treaties, rulings and declarations and the other is the traditional interaction of nations among themselves, which are not formalized. In fact, I would suggest the traditional behaviors which create a defacto set of laws finds its roots in international relations theory and in the attempts to understand why nations behave as they do with other nations. A very interesting and in depth analysis of International law and in particular, what are the forces which drive compliance can be found in the Koh article, "Why Do Nations Obey International Law?", cited below . Interestingly, much of the reason for state compliance to international law, according to many theorists, is driven by self-interest.
"almost all nations observe almost all principles of international law... almost all of the time."' When a nation deviates from that pattern of presumptive compliance, frictions are created? t To avoid such frictions in a nation's continuing interactions, national leaders may shift over time from a policy of violation to one of compliance. It is through this transnational legal process, this repeated cycle of interaction, interpretation, and internalization, that international law acquires its "stickiness," that nation-states acquire their identity, and that nations come to "obey" international law out of perceived self-interest. In tracing the move from the external to the internal, from one-time grudging compliance with an external norm to habitual internalized obedience, the key factor is repeated participation in the transnational legal-process. That participation helps to reconstitute national interests, to establish the identity of actors as ones who obey the law, and to develop the norms that become part of the fabric of emerging international society.
What does this mean for the Neg? Our traditional sense of law, as a set of enforceable rules has no real corollary in the international arena without a capable enforcement mechanism. As we can see in the Nicaragua case, the fact a country like the U.S. can pretty much do what it feels is right in protecting its self-interests and thumb its nose at the international justice system illustrates that international law, in and of itself is not a justification for Affirming or Negating the resolution. This means, in my opinion, Neg must take a position not on the law per se. I suggest two alternative ways to uphold the legal framework.
First No matter how international law is established (by code or tradition) any allowed violation undermines the legitimacy of law. The rule of law must be maintained.
The case for the illegality of humanitarian intervention rests on the plain language of existing treaties and emphasizes the clarity of the UN Charter, as well as its near constitutional status in international politics and its universal adoption. Together, these lead to the conclusion that the purpose behind the use of force (other than self-defense) is irrelevant in law, and the effort to respond to humanitarian emergencies in states that refuse to cooperate ends up confronting the same prohibition on interstate war that was meant to stop aggression. As Byers notes, “The UN Charter provides a clear answer to these questions: in the absence of an attack, the Security Council alone can act.” One might follow this tradition and yet still argue in favor of a specific act of humanitarian intervention. In so doing, however, one must confront the fact that the act is illegal. The now classic example of this is the post hoc explanation that the NATO intervention in Kosovo was “illegal but legitimate.” Brownlie considers this to grant “a waiver of the illegality” of the act, and he opposes the claim that it provides any evidence of a change in the law itself. Thomas Franck agrees on its illegality but maintains that international justice is better served by sometimes breaking the law rather than respecting it, and that Kosovo/NATO is one such case. This is a provocative position since it suggests that the idea of the rule of law is not as absolute as is usually maintained; other values might be more important than rule following.
Second, no matter how international law is expressed, we must look to the underlying moral and
ethical principles behind it. It is interesting how Americans in general are very defensive of their own national sovereignty. The idea another nation can intervene in their internal affairs is simply unimaginable. Yet, how many times has the US intervened in the internal affairs of other nations? The principles which Americans see as foundational for national security are the principles which establish why national sovereignty must be preserved without exception. While the Aff will argue that intervention to protect human rights is a moral high ground it is not that simple. We are talking about nations and when they intervene it potentially means, armies, bombs, weapons, death and destruction in the name of humanitarian intervention. The big question then, considering the potential cost of human intervention (war), how does a nation justify imposing its ideas of morality and justice on another people with different standards, customs and socio-economic conditions. Sovereignty is recognition that legitimate states have a right to be self-determining.
In the world of Lincoln-Douglas debate, legal debates can be over-ruled by philosophical justifications. Just because something is law does not mean it is a moral or just law (slavery for example). To be sure, even if Neg can make a very good case for the immutability of sovereignty based on legal principles, Aff can and will argue that humanitarian intervention preserves greater values which the judge must respect. But such arguments should not be insurmountable for the Neg. Often the choice to take the moral high-ground comes at a tremendous cost as we shall soon see in the next section.
The Cost of InterventionAs I have emphasized many times we are talking about nations and when one nation intervenes in the internal affairs of another, the result is often destructive. Of course one such justification lays in the claim that no cost is too high to save human lives. In LD we have seen these kinds of notions of human behavior and morality often extended to non-human entities such as corporations and nation-states and we have often argued that governments do not experience guilt or shame and are organized for specific purposes aimed toward preserving themselves and their citizens. When external circumstances, such as potential genocide in another place, challenge the collective conscious of people what are the obligations of a country such as the US? First of all, to claim we ought to intervene suggests we can intervene since ought implies can. Whereas, the US may have the financial or military strength to intervene, it is constrained by the will of the people and the government in most cases can not act apart from the consent of the governed (yeah, I know that sometimes even that is controversial in light of recent executive orders). When challenged by the potential genocide of Albanian Kosovars in Serbia and the relentless slaughter of innocents in Bosnia, the US decided to intervene through NATO. Not long afterwards, when faced with the mass annihilation of Tutsis in Rwanda, the US chose to not intervene. Both situations were equally horrifying in their consequences yet for some reason the US felt intervention in Rwanda carried a "cost" it was not willing to pay.
Proponents of such interventions usually make their case in terms of the United States’ moral responsibilities. Yet perhaps the most important costs incurred by military interventions have been moral ones. On the ground, the ethical clarity that advocates of human rights have associated with such actions—saving innocent lives—has almost always been blurred by a much more complicated reality.
To begin with, aiding defenseless civilians has usually meant empowering armed factions claiming to represent these victims, groups that are frequently responsible for major human rights abuses of their own. Although advocates of humanitarian intervention in the 1990s frequently compared the atrocities of that period to the Holocaust, the moral calculus of intervening in these conflicts was inevitably more problematic. The Tutsi victims of Hutu génocidaires in Rwanda and the Bosnian Muslim and Kosovar Albanian victims of Serbian paramilitaries in the former Yugoslavia were just as innocent as the Jewish victims of the Nazis during World War II. But the choice to aid these groups also entailed supporting the less than upstanding armed factions on their side...
Another set of moral costs stems not from the unsavory behavior of the groups being protected but from the unavoidable consequences of military intervention. Even if the ends of such actions could be unambiguously humanitarian, the means never are. Using force to save lives usually involves taking lives, including innocent ones. The most advanced precision-guided weapons still have not eliminated collateral damage altogether. Many Americans remember the 18 U.S. soldiers who died in Somalia in 1993 in the “Black Hawk down” incident. Far fewer know that U.S. and un troops killed at least 500 Somalis on that day and as many as 1,500 during the rest of the mission—more than half of them women and children.
In his article on the subject, Valentino explains how intervention often produces what is commonly referred to in other studies as a "rally around the flag" response, in which the citizens of the country being attacked by the US will harden their resolve and rally behind their government, even if that government is committing atrocities against a minority.
The Basis for ViolationAs I have mentioned, the idea of a state or government possessing moral duties can be difficult to defend and even more so, if the basis for the moral obligation arises from the duty to follow international law.
In a provocative recent essay, Eric A. Posner has called into question whether international law, as such, is ever morally binding, and thus whether breaches of existing legal norms should be evaluated entirely on the basis of prudential considerations. He concludes as follows:
It can be useful for international-law scholars to point out that an act of the United States or some other country “violates international law” as long as we understand what this phrase means. It means that the United States is not acting consistently with a treaty or a customary international-law norm, and as a result the expectations of other states might be disappointed (or not), and these states might retaliate (or not), or adjust their expectations in ways that may not be to the advantage of the United States. These are all reasons not to violate international law, but they are prudential reasons, and they are reasons to be taken into account even when international law is not at issue. The phrase does not mean that the United States has a moral obligation to bring its behavior within the requirements of the treaty or customary international-law norm, or that its citizens or leaders have a moral obligation to cause the United States to do this.
Although Posner’s is a realist perspective, many moralists display a parallel resistance to regarding
international law as a source of moral obligation; the latter selectively regard particular positive
norms (especially human rights norms) as a reflection of moral duties binding on independent
grounds (just as Posner regards particular positive norms as supported by prudential considerations), but do not ascribe moral significance to positive norms that impede, rather than further, their moralistic designs...
Posner’s contention rests essentially on two points. The first is that the supposed consensual basis of international legal norms is illusory. Posner has chosen to emphasize in this regard the difficulty of establishing a moral obligation on the part of individual citizens – the sole bearers, he believes, of moral personality – to shoulder the burden of a past government’s commitment. He might equally have focused on the methodological finesses by which consent is imputed to states, on the power imbalances that mark international negotiation processes, or on the problematic relationship between a government’s consent and the collective will of the underlying political community – all of which constitute facially plausible objections.
Second, Posner argues, the international legal order is inefficacious. Although admitting that state behavior most frequently conforms to the standards of international law, Posner concludes that it does so principally for reasons of convenience and confluence of interests, not because the standards have the authority of law. International law does not, according to his empirical assessment, prevail upon states to do what they are disinclined to do.
Assigning BlameI think it is interesting to turn the problem of external intervention around and look at the issues from an internal point of view. Suppose, within the US, a distinct group of individuals, bound by a common ideology exists within the confines of the US which is deemed antagonistic or otherwise undesirable to the interests of the US majority. There would undoubtedly be some period of time early in the evolution of events which lead to rights violations in which the leaders of the group and the US government authorities can settle their differences. Failure to settle differences can expand into violent confrontations and there is a possibility the government may decide massive retaliation is the most cost-effective way of settling the dispute. At any stage of the process, the idea that an outside nation would intervene apart from criticising the US would be completely unacceptable to most of the citizens in the US not directly involved in the conflict. Still, one must recognize the obligations not only of the government but also of the repressed group and the ordinary citizens whom the government represents. One can assume each at various points had opportunity and obligation to intervene on the behalf of best interests of the US to avoid conflict. Does the fact they failed constitute a bonafide justification for an outside force to intervene?
In looking at the situation from the inside it may be possible to realize that most often situations which arise in a nation leading to mass violation of rights, evolve from a process in which actors (government, opposition group, and citizens) all play roles. Each makes practical and rational evaluations about the cost and benefits of their actions and in some cases it may even be argued the victim group welcomed intervention, not out of humanitarian interests but rather political interests.
This Article illustrates the perverse logic of humanitarian interventions and prosecutions by exploring two contemporary cases: Sudan (Darfur) and Kosovo. While these case studies are by no means exhaustive, they are highly representative of the kinds of civil wars in which mass atrocities are likely to take place. Together, these case studies reveal a consistent pattern: rebel or victim leaders engage in provocative actions against a dominant group largely (or partly) because they hope to attract humanitarian intervention or prosecution against the dominant group, the dominant group responds by aggressively committing even more atrocities against the victim group, but humanitarian intervention either does not come or comes too late to prevent the bulk of the atrocities. Traditionally, the question of how humanitarian interventions affect atrocities has been answered by reference to both the motivation of the intervening party and the sovereignty costs imposed on the target of intervention. Thus, much of the legal and philosophical scholarship on humanitarian intervention is devoted to institutional design mechanisms for screening out pre-textual humanitarian interventions from well-motivated ones.6 At bottom, however, much of this literature assumes that well-motivated humanitarian interventions will have benign effects. Recently, a number of political scientists have begun to question this conventional wisdom regarding the interaction between humanitarian interventions and mass atrocities. In this picture, since outside intervention during a humanitarian crisis is likely to bias the outcome of dispute in favor of the rebel group that is the target of atrocities, some political scientists have argued that rebel groups might rationally gamble on humanitarian intervention by provoking the dominant group to commit atrocities.8 Such accounts often stress the fact that humanitarian interventions suffer the same pathologies as insurance schemes because they create moral hazard by encouraging risk-taking among the intended beneficiaries.
The Nzelibe paper is particularly interesting for the Neg debater in that it illustrates the view that the kinds of rights violations which trigger external interventions arise from evaluations by the respective parties (oppressor and victim alike) which are often designed to trigger the intervention which ultimately results. The idea for example, that the victims, or more properly, their leaders are to blame for atrocities is controversial to say the least, but backed by empirical evidence.
The Motivation for InterventionA very reasonable argument can be put forth that states only intervene when it serves their interests to do so. In fact, proponents of the realist school of international relations theory believe that states will never act out of purely humanitarian motivations since the decision to risk the lives of one's own citizens and resources is only taken when national interests are preserved.
Bellamy & Wheeler:
States almost always have mixed motives for intervening and are rarely prepared to sacrifice their own soldiers overseas unless they have self-interested reasons for doing so. For Realists this means that genuine humanitarian intervention is imprudent because it does not serve the national interest. For other critics, it points to the idea that the powerful only intervene when it suits them to do so and that strategies of intervention are more likely to be guided by calculations of national interest than by what is best for the victims in whose name the intervention is ostensibly being carried out. Realists not only argue that states do not intervene for humanitarian purposes; their statist paradigm also asserts that states should not behave in this way. Political leaders do not have the moral right to shed the blood of their own citizens on behalf of suffering foreigners. Bhikhu Parekh (1997: 56) encapsulates this position: „citizens are the exclusive responsibility of their state, and their state is entirely their own business‟. Thus, if a civil authority has broken down or is behaving in an appalling way towards its citizens, this is the responsibility of that state‟s citizens, and crucially its political leaders.
Putting it TogetherAdmittedly I have thrown a lot into this position and I urge you to take my advice and read the sources I link below. You find much, much more that I did not include in the interests of keeping this article from exploding in length. Neg must disarm the Aff framework and I think one of the key ways to do so will be to question the rationale behind the Aff position that intervention can be justifiable. The idea of personifying states and governments and assigning moral responsibilities to them is problematic. The legal framework of international law does not constitute a good basis in and of itself for moral duty and in fact the whole principle of laws which are obeyed by mutual consent without an enforcement mechanism is also difficult to defend. Neg can leverage these facts to turn the Aff case. Additionally, Neg must advocate the importance of maintaining national sovereignty as check against abuse in which states use protection of human rights as a pretext to war.
Generally speaking, the idea that one nation can impose its own standards of right and wrong upon another is rife with difficulties. In some cases, an authoritative or religious government may behave in ways which the Western democratic peoples consider abusive to the rights of individuals such as women or ethnic minorities and yet within the context of their lives such actions are completely within the scope of normalcy and even expected.
I may include more approaches for the Aff and Neg later as I discover new information or decide to clarify more completely but for now I will call it a day.
Humanitarian Intervention, Evolution of a Dangerous Doctrine
by Walden Bello
Focus on the Global South, January 25, 2006
HUMANITARIAN INTERVENTION AND PRETEXTS FOR WAR
Ryan Goodman, Harvard University
Zia Modabber, Collective Self-Defense: Nicaragua v. United States, 10 Loy. L.A. Int'l & Comp. L. Rev. 449 (1988).
Available at: http://digitalcommons.lmu.edu/ilr/vol10/iss2/5
Kahn, Paul W., "From Nuremberg to the Hague: The United States Position in Nicaragua v. United States and the Development of International Law" (1987). Faculty Scholarship Series. Paper 339.
Koh, Harold Hongju, "Why Do Nations Obey International Law?" (1997). Faculty Scholarship Series. Paper 2101.
Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent World,Ethics & International Affairs, 25, no. 3 (2011), pp. 293–313. ©2011 Carnegie Council for Ethics in International Affairs
The True Costs of Humanitarian Intervention, The Hard Truth About a Noble Notion
©2o11 Council on Foreign Relations, Inc
Benjamin A. Valentino
State Sovereignty, International Legality, and Moral Disagreement
Brad R. Roth
Updated Version of Paper Presented at the Panel on “Questioning the Aspiration to Global Justice”
Annual Meeting of the American Political Science Association, September 2, 2005
Nzelibe, Jide, "Courting Genocide: The Unintended Effects of Humanitarian Intervention" (2008). Faculty Working Papers. Paper 168.
Humanitarian Intervention in World Politics
Alex J. Bellamy and Nicholas J. Wheeler