By Kirthi Jayakumar*
Humanitarian intervention refers to a means to prevent or stop a gross violation of human rights in a state, where the state in question is either incapable or unwilling to protect its own people, or is actively persecuting them. It is facilitated on the basis that no state has a prerogative to allow the large-scale violation of human rights, and therefore, if such violations do occur, another state, or other states may intervene to put an end to them.
While a feminist philosophy of supporting the marginalized and taking on structural and overt violence underlines the idea of humanitarian interventions, they are seldom carried out through feminist means. Where military force is treated as the last resort, most instances involve military force as the first resort. Where interventions are implemented, they are carried out without the consent of, on the request of, and in response to the communities for whom they are carried out. In sum, both the use of force and absence of consent come together to cause greater harm than that it is intended to avert. The “humanitarian” component then becomes questionable.
By employing a feminist lens, this paper makes the case for dispensing with the use of force altogether and engaging in active community-level consent-seeking processes while carrying out an intervention to address large-scale human rights violations in another state. I start by presenting a brief outline of what humanitarian intervention is. In the second part of this paper, I explore the feminist principles underlying humanitarian intervention and make the case for a feminist implementation of it.
In this section, I argue that intervention to restore peace or to bring human rights violations to an end is not humanitarian if it does not factor into account the needs of the people in the community in which such an intervention made. I also argue that intervention undertaken without consulting or taking the consent of those facing such violations creates room for more human rights violations. Third, I make the case for the need for an approach that responds to structural factors in the site of intervention that led up to the occurrence of mass atrocities in order to ensure that there are no repeat incidents. Finally, I conclude the paper with a vision for what humanitarian intervention should strive to achieve if it follows a feminist path in implementation.
A Feminist Idea: Humanitarian Intervention and the Responsibility to Protect
Unilateral military action on humanitarian grounds have been justified in several contexts globally, oftentimes drawing legitimacy from customary international law (Omaar and DeWaal, 1994). There is no codified legislative framework offering a process, approach, or system governing the actual conduct of humanitarian intervention operations – but at its base, that there should be “coherent humanitarian justification coupled with a proper procedural and substantive legal regime to underwrite it” (Jayakumar, 2012). State practice indicates the need to identify a humanitarian concern that needs addressing through intervention: be that a case of gross human rights violations in a state, or state-sponsored violence targeting a community, or a case of violence that the state is unable to or unwilling to draw to an end (Cudd, 2013).
The conduct of sovereign states is circumscribed by the rules provided under the UN Charter. To this end, Article 2(4) prohibits the use of force in any form, offering an exception only in the case of necessary and proportional self-defence under Article 51. Any conduct that deviates from the explicit framework of the law requires to be legitimated suitably, and standard international practice has suggested that this legitimacy flows from the Security Council of the United Nations, through its Resolutions. However, the 1990s, known as the decade of humanitarian intervention, witnessed several instances of intervention both authorised and not authorised by the United Nations (Kaldor, 2007). The United States and its allies engaged in military action on at least three instances without prior authorization by the Security Council – such as the establishment of no-fly zones in Northern and Southern Iraq in 1991 and 1992, the bombing of the Bosnian Serbs by the NATO in 1995, and the NATO’s Kosovo campaign against Yugoslavia in 1999 (Jayakumar 2012). Some were declared legitimate belatedly, such as the NATO intervention in Kosovo in 1999 and the US intervention in Libya during the Arab Spring that was authorized under Security Council Resolution 1973 (Jayakumar 1999).
There is no legally “binding” instrument that regulates or governs humanitarian intervention, and this has also led to tricky terrain. According to supporters of humanitarian intervention, if it were legal, the very cost of the potential abuse of pretextual interventions would outweigh any benefit from altruistic interventions (Brownlie, 1963). There are two kinds of intervention: A pretextual intervention is essentially a case of a state’s use of military force in another state in pursuit of its own gain and not for the protection of human rights; and an altruistic intervention is one that is rooted in the core value of protecting human rights (Schachter 1984).
In 2005, for the first time ever, the global community endorsed the notion that the world at large has an obligation to protect a community that is facing mass atrocity. This came about through the doctrine of the Responsibility to Protect, which makes the approach to humanitarian intervention from a different angle – one that endorses that sovereignty is a responsibility – and that a state has a duty to take care of its people (Orford, 2009). When a state fails to do so, the responsibility to take over devolves to the international community. The Responsibility to Protect is aimed at protecting global populations in different communities from mass atrocities and large-scale human rights violations. In all the occasions of intervention in international relations and history, the basis has been genocide or mass atrocity/human rights violations of any kind.
In the words of Noam Chomsky, “For one thing, there’s a history of humanitarian intervention. You can look at it. And when you do, you discover that virtually every use of military force is described as humanitarian intervention.” This summarizes everything that is wrong with how humanitarian intervention is used, executed, and justified. States use military force as the first, rather than last, resort. Interventions take place unilaterally in violation of territorial sovereignty and are not always authorized by the force of law. Furthermore, in the course of intervening, the use of force automatically negates any value for the humanitarian basis that motivated – if only on paper – the intervention in the first place.
On one level, as Charlesworth (2010, 239) explains, the concept of the responsibility to protect appears “hospitable to feminist agendas.” It fundamentally transcends the traditional paradigm of sovereignty as an equivalent of autonomy and impermeability, notions that feminist scholars have linked to the male body (Charlesworth, 1997; Sylvester, 1992). The language of responsibility as well (Charlesworth, 2010, 239) also resonates with “research on female reasoning.”
Humanitarian intervention is also a feminist viewpoint in that it seeks to end mass atrocities and violence through, emphatically, non-military modes of intervention (Evans, 2008). in principle – but not in implementation. The motive is to take on overt and structural violence and to support the marginalized, oppressed, and the victimized represents a feminist standpoint that strives to engage with structural violence and the protection of the oppressed. The Responsibility to Protect also aligns with this – in that it recognizes the failings, violence, and complicity of the state as a structure, and aims to respond to it. However, in their execution, neither is humanitarian intervention nor the responsibility to protect feminist.
A Feminist Approach: Outlawing Military Force and Taking Consent
A feminist approach to international law in practice is generally marginalized and is entirely absent from the discourse around humanitarian intervention and the responsibility to protect (Charlesworth, 2010). However, such an approach is necessary. That military force is often prioritized over other means of action (Charlesworth, 2010), and that there is a constant disregard of the agency of those in whose support an intervention is carried out, represents a deviation from the feminist ideals in itself (see, for example, Engle, 2007). I argue that there are two key components that can ensure a feminist implementation of humanitarian intervention: acknowledgment of the agency of those for whom the intervention is carried out by taking consent and outlawing military force altogether.
Consent of the Governed
The social contract tradition offers a basis to understand the legitimacy of state authority over individuals. Within this, states are also responsible to their citizens and to protect their interests. Drawing from this principle and state sovereignty under international law, Hathaway et al. (2013) made the case for consent-based intervention and argue that a state must either invite or legitimize intervention by another for it to be tenable in law. However, only those cases where a state is unable to perform its duties towards its citizens, would be open to potentially considering intervention by another state. They go on to suggest that if not the state, only those who legally represent the government can invest or legitimize intervention.
However, where the state itself is the chief cause of the humanitarian issue, the idea of the state taking the initiative to invite or legitimize intervention is unimaginable. Given that humanitarian intervention fundamentally does not occur at the request or with the consent of the government (McMahan 2010), unsolicited intervention can be seen as a violation of state sovereignty, and because such interventions are fundamentally coercive in nature, they involve military force or threats of such force. Regardless of whether an intervening state follows a strategy of prevention or reaction, most approaches involve the use of force, are top down, and do not empower those for whom such interventions are carried out (Evans, 2008).
I argue in favor of a consent-based intervention of a different kind: one where the consent of the victims of the humanitarian crisis for whom such intervention is sought, is vital before an intervention. Those against whom an intervention is directed are almost always the government and its supporters (McMahan 2010). The social contract tradition in the context of international law has been seen as binding individuals as parties to the contract (Cudd, 2013). The assumption of a social contract approach is that the parties to the “contract” are equal and have equal bargaining power (Cudd, 2013). The point of the social construct, as Cudd (2013) argues, is to construct principles that can secure peace.
Drawing from this, if individuals are given this equal bargaining power, they can legitimize or invite interventions from third states and prescribe the scope of such an intervention. The ostensible beneficiaries of humanitarian intervention should have a veto authority with respect to intervention on their behalf (McMahan 2010). The basis of intervention on humanitarian grounds is that no state has the prerogative to allow the violation of human rights, and therefore, if it does take place with no action from the state in question to put an end to it, another state, or other states may intervene to put an end to them (Teson, 1988). All aspects of human rights are a concern of international law (Cudd, 2013), and therefore, interventions furthering an agenda of protecting human rights are legally permissible.
A community consent-based approach to intervention would also pave the way for peaceful engagement, defined and perhaps led by the community seeking such intervention. Military force would not be a natural first choice, and there would be other means for intervention. It may arguably come across as impracticable or potentially difficult to execute – with a very real possibility that there may be posturing and the pursuit of vested interests, it would be an interesting avenue to pursue through the reliance of civil society networks across borders.
Outlawing military force
The use of force in international law is fundamentally outlawed, the most commonly cited provision endorsing this is Article 2(4) of the UN Charter. In both customary law/state practice and treaty law as interpreted by judicial engagement, the common understanding is that the exceptional use of force must be both reasonable and proportionate to what it is used for (Koskenniemi, 2011).
Most instances of humanitarian intervention have involved the use of force, thus creating what Orford (2003) called as “muscular humanitarianism.” There is an assumption that an intervention prompted by just forces is assumed to be a positive force (Charlesworth, 2010). International practice and scholarship have accommodated such use of force if it is “legitimate,” wherein there is a consideration of the balance of consequences of military action. However, there is a narrow frame accorded to inquiries into consequences, wherein the threshold is whether the atrocities or sufferings that warranted the intervention are ended or not (Evans, 2008). There is, in practice, a “fusion” of military and humanitarian goals that “pushes questions of social justice off the agenda” (Charlesworth, 2010).
The use of military force in the course of humanitarian intervention can also result in the doctrine of double effect, wherein innocent people are targeted deliberately (Quinn, 1989, Spector, 1992, Woodward, 2001). The doctrine legitimizes the killing of innocents only if the act itself has good consequences such as the end of a tyrannical regime, that the intention of the actor is good and not one to harm innocent people, and that the good consequences of the act outweigh the bad ones (Teson, 2006). However, the preponderance of good over bad is a subjective assessment to make, and can easily lead to the condonation of several instances of “collateral” harm to innocent people in the name of the “bigger” aim.
On paper, the use of force is treated as a last resort, one that is neither encouraged nor intentionally normalized. However, in practice, the use of force appears to be the first course of action in any of the instances of intervention. As Engle (2007) noted, it warrants the presentation of problems as crises “that only military intervention can solve.” There are dangerous consequences of this of which one is that the overt use of military force has its obvious devastating consequences, and another is that such interventions do not question structures and systems that led up to the immediate conflict in the first place.
Lu (2005: 190) cautioned against conflating the idea of intervention with the use of military force, arguing that “The conflation of these two issues in international theory and practice has meant that governments have been able to claim a much stronger social convention against all types of intervention than is supported even in international law…. Many situations may justify some kind of interventionary international response that violates or restricts some aspect of a state’s sovereign authority while ruling out a full-scale military assault.”
Non-military interventions exist, and can produce tangible change. Cudd (2013) recommended that interventions should be preceded by adherence to five key parameters: a just cause, a right intention, attempts at all strategies in order, minimal use of force to an extent that is both necessary and proportionate to the threat or prevailing violence, and an expectation of good consequences. She goes on to recommend a spectrum of options that start from least to most coercive, namely from diplomatic persuasion and support for non-violent internal resistance groups to military intervention aimed at preventing killing and military intervention aimed at removing governmental authority.
Seeking or calling for judicial support and investigation is perhaps one of the most sustainable ways of calling for an and to human rights abuses. For instance, in 2019, The Gambia initiated legal proceedings against Myanmar before the International Court of Justice with the support of 57 other countries, calling for an end to the genocidal campaign against the Rohingya people in the region. In amplifying the call for justice, The Gambia not only averted greater disaster and protracted war through armed conflict, but also spoke up to present a socio-political reality that comprised structural violence in the run up to the genocide, and called for a judicial solution that holds the promise to pave the way for sustainable peace.
Responding to structural violence
The focus on addressing overt violence without, or in some instances, instead of responding to the structural and systemic violence underlying it is no less than responding to the symptom than the root cause of the illness (Buss 2011). No mass atrocities take place without a certain formulaic build up that culminates in the overt violence. If these structures are not dismantled, they may remain dormant to be restored to full power at a later date, allowing for the community to slide back into the state where overt violence prevailed in full force. Papamichaile (2018) made the case for how any humanitarian intervention should strive to not only stop direct violence, but should also consider and address violent structures that allow for such violence, and called it a moral imperative. Humanitarian intervention should strive to be more than a band-aid policy, and should attempt to address structural violence through institutional reform. In a military intervention, the use of overt violence guarantees that there is no engagement with structural violence in any way as to alter its propensity to recur or continue post-intervention.
Non-violent approaches to intervention have a greater likelihood of achieving this. For instance, approaching the International Court of Justice on the lines of The Gambian strategy also offers the ICJ room for judicial activism in a way that require errant states to comply with its decision. Admittedly, practice does inform that institutional reform has been “the most opaque and nebulous” among all sites of transitional justice (O’Rourke 2016: 518) and that most prosecutorial approaches have taken a human rights-based approach to justice, focusing more on human conduct as the cause for human rights violation rather than state failure and complicity, as well as structural violence (Aroussi 2018). However, that the prohibition against mass atrocities amount to jus cogens norms in international law warrants that there is no room for derogation and the demand for compliance can also call for the dismantling of structures that permit such violations to continue.
A feminist idea of humanitarian intervention is both conceivable and practicable. The basic premise builds on the idea of the consent of the governed – wherein the support for those intervened for is inspired by the social contract theory, or that governments are the mere agents of the people (Teson, 2006). Human rights are obligations for governments to implement and sovereignty is a responsibility, not an inviolable property that is weaponized against human rights. As a principally feminist approach in that it strives to respond to large-scale human rights violations in situations where the state is unable or unwilling to protect its affected population, the responsibility to protect encourages the devolution of this responsibility on the international community.
“International law informed by a feminist perspective requires that new means of social intervention, which disrupt traditional roles and gender hierarchies, must be considered to replace military intervention which tends to maintain the global dominance of military power over the freedom of autonomous individuals and of men over women” (Cudd, 2013: 369). By prioritizing the agency of those for whom intervention is carried out, and by acknowledging that the use of force is both detrimental and antagonistic to the aim of humanitarian intervention and acting on such knowledge, we can potentially look at restoring the humanitarian component to such policies.
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*Crossposted from ISPP-PR