Book Review Humanitarian Intervention: Ethical, Legal, and Political Dilemmas Jeff L. Holzgrefe and Robert O. Keohane (eds.) Cambridge University Press, Cambridge, 2003, 350pp. ISBN 0 521 52928 X. Journal of International Relations and Development (2004) 7, 345–348. doi:10.1057/palgrave.jird.1800017
‘Saying ‘‘humanitarian intervention’’ in a room full of philosophers, legal scholars, and political scientists is a little bit like crying ‘‘fire’’ in a crowded theatre: it can create a clear and present danger to everyone within earshot’ (p. 1). This is how Keohane, one of the editors of the reviewed book, introduces the complex and complicated issue of humanitarian intervention. His words are immediately confirmed in a multilevel and interdisciplinary debate involving ten leading scholars of international relations, political science, ethics and international law, mainly from the United States and the United Kingdom.1 The book is formally divided into four parts dealing with the context, ethics, legality and politics of humanitarian intervention. However, since all these questions are interconnected, the contributions from various parts communicate and often implicitly controvert each other. The key precondition of any meaningful debate is a uniform understanding of its object. As in the case of humanitarian intervention, whose generally agreed definition is still unavailable, such an understanding is not automatic, the book (or more exactly one of its editors, Holzgrefe) sets up a working definition serving as common ground for all the authors. According to it, humanitarian intervention designates ‘the threat or use of force across state borders by a state (or group of states) aimed at preventing or ending widespread and grave violations of the fundamental human rights of individuals other than its own citizens, without the permission of the state within whose territory force is applied’ (p. 18). This formula excludes from the scope of interest non-forcible interventions (economic sanctions) and forcible interventions aimed at rescuing the intervening state’s own nationals. It does not address the position of the United Nations (UN) Security Council and thus accords the authors the space to deal with both authorized and unauthorized humanitarian interventions (with the second one attracting more attention). The first dilemmas discussed in the book are ethical. The topic is introduced by Holzgrefe, who presents as key schema four ethical divides based on the source of moral concern (naturalist vs consensualist theories), the object of moral concern (individualist vs collectivist theories), the weight of moral Journal of International Relations and Development, 2004, 7, (345–348) r 2004 Palgrave Macmillan Ltd 1408-6980/04 $30.00
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concern (egalitarian vs inegalitarian theories) and the breadth of moral concern (universalist vs particularist theories). By virtue of these divides, he distinguishes five ethical theories (utilitarianism, natural law, social contractarianism, communitarianism and legal positivism) and shows — in an interesting yet sometimes not well exemplified text — that each of them can serve to justify or reject the conception of humanitarian intervention. Holzgrefe’s doubts about a clear ethical base for humanitarian intervention are not shared by Teso´n who, leaning on liberal assumptions, seeks to prove that ‘humanitarian intervention is morally justified in appropriate cases’ (p. 93). Teso´n interprets state sovereignty as an instrumental value and deems that once the state betrays its major function of protecting human rights (which have an intrinsic value), it loses international protection and can be freely attacked by other states trying to redress the situation. Teso´n rejects the relativist objections of the plurality of moral concepts, refuses the relevance of national borders for the considerations of justice, and criticizes attempts to justify non-action by the interest in global stability. In so doing, he opts for a position close to ‘liberal imperialism’ as he does not truly react to the substantive arguments of other currents (communitarianism, libertarianism), but merely a priori disapproves their positions for their lack of liberalism. The contribution shows how difficult it is to have real debate between different ethical paradigms. Buchanan closes the ethical section by discussing not only the justifiability of humanitarian intervention but also — in a more general way — the justifiability of an ‘illegal legal reform’ (p. 132) of international law in which ‘existing international law is violated to initiate a moral improvement in the international legal system’ (p. 132). He deprecates what he calls ‘legal absolutism’, i.e. blanket condemnation of illegal, even if morally justified acts, and shows that neither the argument of fidelity to law nor the imputation for moral imperialism can effectively inhibit the reform. Although Buchanan’s concrete conclusions (preference of reform through a treaty that bypasses the UN over reform through the emergence of a new custom) seem ethically and legally disputable, his general reflection has an incontestable value in the situation where a ‘legal legal reform’ of some norms (ius cogens) is difficult to realize. The second dilemmas of humanitarian intervention, the legal ones, are at least partly dealt with by most of the authors. The debate focuses on both the de lege lata (the current state of international law) and de lege ferenda (the desirable state of international law) aspects and mainly concerns unauthorized humanitarian intervention. Farer explains the differences of two possible doctrinal approaches: legal classicism, which stresses the importance of the original law creators’ will; and legal realism, which favours the changing circumstances and their influence on the international legal system. Since a
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confrontation of the two groups could be stimulating it is regrettable that practically all authors contributing to the debate belong, as Farer himself says, to the classicist group while realist voices are either absent from the volume (Reisman) or only concentrated in the ethical section (Teso´n). At the de lege lata level, most scholars characterize — explicitly (Buchanan) or implicitly (Stromseth) — unauthorized humanitarian intervention as being incompatible with current international law. The only one to dispute that opinion is Farer, who tries to justify legally unilateral humanitarian intervention by a set of classicist and realist arguments, which unfortunately remain relatively less developed and do not see any substantive response from other contributors. The de lege ferenda level attracts more attention and invokes a real discussion that oscillates around four possible solutions suggested by Stromseth: a status quo approach, an excusable breach approach, a customary law evolution approach and a codification approach. Byers and Chesterman, who fear in light of the Kosovo precedent that ‘what we are seeing [y] is not so much an effort to change all of international law as an effort to create new, exceptional rights for the United States [y]’ (p. 195), opt for a combination of the status quo and excusable breach approaches. In its framework, transgressors having violated the rule in the name of high ethical values would have to admit their fault and assume responsibility. Franck adopts a different perspective and argues that ‘it is in the law’s interest to narrow the gap between itself and the common sense of what is right in a specific situation’ (p. 211). Aware of the danger of abuse, he nevertheless does not support a direct change of law and sees the best solution in the excusable breach approach.2 Stromseth goes still further, declares the current legal situation unsustainable and calls for a radical change. She expresses her preference for the customary law evolution approach and warns against any premature codification that would not only be hardly possible because of the lack of consensus among states, but also contra-productive by blocking the process of spontaneous evolution. The last dilemmas presented in the book are political and mainly concern the post-intervention reconstruction of a country. Keohane reflects on the impacts of humanitarian intervention on state sovereignty. Taking on Krasner’s (1999) typology, he distinguishes several forms of sovereignty (domestic, interdependence, international legal and Westphalian) and shows the possibility of transition between them in the so-called ‘gradation of sovereignty’ (p. 277). He then advances his vision of a gradual reconstruction of sovereignty and calls attention to the importance of the neighbourhood for the results of this process. Ignatieff focuses on the problematic of failed states, that is, states missing one of their constitutive elements, the government. He explains the difficulties of humanitarian intervention in such conditions and discusses the assets and weaknesses of transitional UN trusteeships (East Timor, Kosovo).
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The reviewed book is one of a long series of publications on humanitarian intervention that have been published since the end of the Cold War (see e.g. Murphy 1996; Teso´n 1997; Moore 1998; Abiew 1999; Wheeler, 2000; Chesterman 2001a, 2000b). Its special feature distinguishing it from most other titles is that it gathers in the one volume a set of papers written by authors of various backgrounds, fields of interest and orientations of thought. Hence, the book manages to demonstrate in a telling way the breadth and depth of the problematic and covers the different perspectives that can be adopted in relation to it. This strength is counterbalanced by certain deficiencies such as the lack of coherence of the debate taking place at different levels of analysis (ethical, legal, political), or the high degree of abstraction of some contributions that makes them difficult to read by those lacking a good knowledge of modern legal and moral philosophy. Despite that, the book is an interesting and stimulating contribution to the ongoing discussion of the legality and legitimacy of humanitarian intervention and can without any doubt theoretically enrich its readers. Veronika Bı´ lkova´ Institute of International Relations Prague Notes 1 Allen Buchanan, Michael Byers, Simon Chesterman, Tom J. Farer, Thomas M. Franck, J.L. Holzgrefe, Michael Ignatieff, Robert O. Keohane, Jane Stromseth, Fernando R. Teso´n. 2 ‘[...] an unlawful act should not be penalized when it can be demonstrated that obeying the law, in the instance, would have led to a far worse result’ (p. 231).
References Abiew, Francis K. (1999) The Evolution of the Doctrine and Practice of Humanitarian Intervention, The Hague, Boston: Kluwer Law International. Chesterman, Simon (2001a) Just War or Just Peace? Humanitarian Intervention and International Law, Oxford: Oxford University Press. Chesterman, Simon (2001b) The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty, Ottawa: The International Development Research Center. Krasner, Stephen D. (1999) Sovereignty: Organized Hypocrisy, Princeton: Princeton University Press. Moore, Jonathan, ed. (1998) Hard Choices: Moral Dilemmas in Humanitarian Intervention, Oxford: Rowman & Littlefield. Murphy, Sean D. (1996) Humanitarian Intervention: The United Nations in an Evolving World Order, Philadelphia: University of Pennsylvania Press. Teso´n, Fernando R. (1997) Humanitarian Intervention: An Inquiry into Law and Morality, 2nd edn, Dobbs Ferry: Transnational Publishers. Wheeler Nicholas, J (2000) Saving Strangers: Humanitarian Intervention in International Society, Oxford: Oxford University Press.
