The Politics of Anti-Legalism in the Intervention Debate

This column by Anne Orford is part of Global Policy’s e-book, ‘Lessons from Intervention in the 21st Century: Legality, Legitimacy and Feasibility', edited by David Held and Kyle McNally. Contributions from academics and practitioners will be serialised on Global Policy until the e-book’s release in the summer of 2014. Find out more here or join the debate on Twitter #GPintervention.

It has become conventional to structure debates about international intervention in terms of an opposition between legality and legitimacy. In such debates, ‘legality’ is often presented as involving a blind adherence to restrictive rules of limited relevance to contemporary security challenges and doubtful moral value in the face of pressing humanitarian crises. Legitimacy, on the other hand, is presented as everything that law ought to be – it results from decision-making that is principled yet pragmatic, taken by actors who are representatives of conscience yet guarantors of protection, concerned with means yet never at the expense of ends, and leads to interventions undertaken by politically effective operators who are nevertheless committed to humane values and able to balance the demands of security and justice. While legality is rigid, legitimacy is flexible. While legality is a manifestation of the suspect political machinations of powerful states, legitimacy is the manifestation of a meaningful commitment to ending human suffering and realising the rights of the individual. While legality involves a misplaced faith in the mechanical application of rules to determine whether or not intervention is justified, legitimacy involves the establishment of clear criteria that can guard against the political misuse of intervention for other than humanitarian ends. Of course, if this is what we understand the choice between legality and legitimacy to involve, then stopping to ask what actions are legally available in the face of humanitarian crisis or civil war can at best lead to irrelevance and at worst to complicity with evil. Yet things are not that straightforward.

The caricature of ‘legalism’ as a pedantic and overly scholastic concern with rules that make sense on paper but bear no relation to reality has been deployed in debates about intervention since at least the 1960s. This was the language in which many American officials and their realist advisers, perhaps the most famous being Henry Kissinger, couched their arguments rejecting legalist constraints on intervention in the Dominican Republic, Cuba, and Vietnam. Substantively, the realist attack was aimed at liberal legalism and the supposedly naïve faith that it was possible to ‘legislate an end to international conflict’. Perhaps more surprising was that idealists like Michael Walzer also began to take legalism as a target during this period. Walzer’s hugely influential book Just and Unjust Wars, first published in 1977, criticised the ‘posture of passivity’ adopted by those committed to international legal principles and to taking military action only through the UN. For Walzer, the UN had already failed in its promise to usher in a new world order, and in the shadow of that failure international law had become increasingly ‘uninteresting’. ‘To dwell at length upon the precise meaning of the Charter’, he argued, had become ‘a kind of utopian quibbling’. Positivist lawyers were the only people still to treat UN decrees as if they deserved intellectual and moral respect. In so doing, the lawyers had ‘constructed a paper world, which fails at crucial points to correspond to the world the rest of us still live in’. Just as for Kissinger legalism was a barrier to military action taken in the national interest, so for Walzer legalism was a barrier to military action taken in the interests of humanity.

Interestingly, the legalist approach that both Kissinger and Walzer rejected so vehemently bore little relation to what international lawyers were actually saying and doing during that period. Far from being dogmatically concerned with the rules of their ‘paper world’ to the exclusion of either reality or morality, international lawyers were extremely concerned with the difficulties of relating legal categories to ‘real world’ facts, very much aware of the competing interpretations about the justice and injustice of war and intervention that divided the Western, Eastern and Non-Aligned blocs, and attentive to the demands that the expansion of the international community to include newly independent states had placed upon traditional jurisprudential categories and sensibilities. Nonetheless, anti-legalism did represent a significant challenge to international legal approaches – not however because it was more engaged with social transformations that were reshaping the international world, but because it was less so.

More specifically, the anti-legalist position adopted by figures like Kissinger and Walzer quarantined the normative and institutional effects of a major shift in international relations that took place during the late 1960s and 1970s. For the first time, representatives of newly independent states had become formal players in public debates about international affairs. At the General Assembly and the International Court of Justice (ICJ), jurists and government officials from states outside Western Europe and North America were involved in shaping international law, whether through judicial opinions, state practice, or drafting treaties and resolutions. One of the most heated debates taking place during that period was precisely about the meaning and limits of the commitment to non-use of force and more broadly to non-intervention. The constraints on the use of force in international affairs in the UN Charter had been given teeth by the international response to unauthorised interventions by former colonial powers in the Suez and Congo crises. Gaining control over territory through warfare or occupation suddenly seemed no longer to be a viable policy option. Yet it was becoming clear that the UN would have a more difficult task restraining the new superpowers from engaging in less overt forms of intervention through proxy and civil wars designed to ensure regional security and economic expansion. For people and states in Eastern Europe, Southeast Asia, the Middle East and Latin America, preventing those new forms of intervention was a major condition of achieving meaningful decolonisation.

The principle of non-intervention received its clearest legal interpretation in the 1986 decision of the ICJ in the Case Concerning Military and Paramilitary Measures in and Against Nicaragua. The Nicaragua case concerned the legality of US military and paramilitary activities in and against Nicaragua, including inter alia the ‘recruiting, training, arming, equipping, financing, supplying and otherwise encouraging, supporting, aiding, and directing military and paramilitary actions in and against Nicaragua’. It represents the culmination of attempts to think about what non-intervention might mean in the age of decolonisation. The case is interesting to reflect upon not only because of what it said about the principle of non-intervention, but also because of its historical and geographical relevance to contemporary forms of involvement in proxy wars throughout the Middle East. US foreign policy under the former administration of George W Bush was strongly informed by US policy in El Salvador and Nicaragua during the 1980s – both in terms of strategy and in terms of personnel. Many Bush administration officials and advisers involved in the war against Iraq, including Elliott Abrams, John Negroponte Otto Reich, Robert Kagan, John Poindexter, and John Bolton, were veterans of the Reagan administration’s Central American policy that was the subject of the Nicaragua case.

Thus in the Nicaragua judgment, we see a legal response to the foreign policy of intervention through proxy wars that has shaped both the Central American and the Middle East landscapes. The ICJ there famously held that the provision of financial and other assistance by the US to the armed opposition in Nicaragua (the contra force) was a breach of the principle of non-intervention, which involved ‘the right of every sovereign State to conduct its affairs without outside interference’. For the Court, the principle of non-intervention was a corollary of the principle of sovereign equality, enshrined as the basis of UN membership in Article 2(1) of the Charter. The Court affirmed that an ‘alleged right of intervention’ cannot ‘find a place in international law’, and that this was so ‘whatever be the present defects in international organization’. The Court could find no change in practice ‘illustrative of a belief in a kind of general right for States to intervene … in support of an internal opposition in another State, whose cause appeared particularly worthy by reason of the political and moral values with which it was identified’. The Court also addressed the question of humanitarian assistance, holding that such assistance is not unlawful intervention, provided that it is non-discriminatory and has as its purpose ‘to protect life and health and to ensure respect for the human being’. However if humanitarian assistance is directed just to one side in a civil war, it is in breach of the principle of non-intervention.

In the context of those legal and institutional developments affirming the principle of non-intervention as central to a just world order, we can see how radical anti-legalist approaches were – and are. The problem for international law in the UN era was precisely the content that should be given to principles such as non-intervention, aggression and self-determination in the unstable and often revolutionary situations thrown up by decolonisation and Cold War expansionism. While international lawyers sought to take factual and interpretative disagreements seriously as the markers of a commitment to pluralism, anti-legalists treated any such disagreements as illegitimate. Ignoring international legal debates allowed proponents of intervention to avoid engaging with conflicts over the purpose of the international legal order or the meaning to be made of particular uses of force. Instead, they could present their own criteria and interpretations as universally valid without having to engage in any real political dispute over facts or values that might test those claims to universality. Yet in the ‘real world’ of institutional debates over these questions, it was no longer possible simply to argue in the abstract about what was in the best interests of subject peoples, or to ignore the deep-seated historical, philosophical, and political differences that underpinned differing visions of a just world order.

Nonetheless with the ending of the Cold War, the tendency to oppose (our) well-intentioned legitimacy to (their) cynical legality intensified, coming to a head with the 1999 NATO intervention in Kosovo without Security Council authorisation. That intervention formed the immediate trigger for the development of the responsibility to protect concept, and has been invoked repeatedly over the past year as a desirable precedent for international intervention in Syria. For those who saw military intervention as justified, while the illegality of the NATO intervention was unarguable, its legitimacy (and the corresponding illegitimacy of the UN Charter constraints on use of force) was a given. Yet the legitimacy of NATO’s intervention remained questionable for many states outside the NATO alliance. According to the report of the Independent International Commission on Kosovo, many states considered the NATO intervention to be illegitimate precisely because it violated the UN Charter. As India’s representative put this in a Security Council debate concerning NATO’s actions:

Those who take the law into their hands have never improved civic peace within nations; neither will they help in international relations … The international community can hardly be said to have endorsed their actions when already representatives of half of humanity have said that they do not agree with what they have done.

The responsibility to protect concept was developed as an attempt to bridge the gap between competing visions of legitimacy that was revealed in the debate over Kosovo. As enshrined in the World Summit Outcome, the concept does so by offering something to both sides of the debate. On the one hand, the responsibility to protect concept accepts the vision of authority that was central to the arguments of those who championed the NATO intervention in Kosovo. According to this view, the capacity to protect the population is the foundation of authority. If a state manifestly fails in that task of protecting its population from genocide, war crimes, ethnic cleansing, or crimes against humanity, the responsibility to do so vests with the international community. On the other hand, many states were concerned at the potential effects of such a broad delegation of authority to external actors and the resulting militarisation of international relations that could result from it. In negotiating the paragraphs in the World Summit Outcome on the responsibility to protect, it was essential for many states, including the members of the Non-Aligned Movement, that this broad responsibility to protect was entrusted to the international community only when acting through the UN, and in the case of the use of force, acting through the Security Council. At subsequent General Assembly meetings to discuss the concept, states have made clear their willingness to endorse the use of the responsibility to protect concept through the UN provided it is not misused by powerful states to justify intervention outside the Charter framework. As those negotiating the World Summit Outcome recognised, it matters who decides whether a situation is one in which populations are at risk of mass atrocity, whether particular conduct is a legitimate attempt to secure a territory or an illegitimate attack on civilians, how protection can best be realised in a particular time and place, and which claimant to authority is best able to provide effective protection.

Despite their success in establishing the responsibility to protect concept as central to the normative framework informing debates about intervention today, pro-interventionists continue to attack those who attend to questions of jurisdiction and process as legalistic and pedantic. Those attacks have sought to side-line UN oversight of international responses to humanitarian crises, in ways that have had profound implications. Here the lessons learnt in attempting to gain ongoing support for the responsibility to protect concept, and to authorise its implementation in Libya and Syria, are instructive.

In the context of Libya, for example, it was largely NATO – acting under a Security Council mandate, but nonetheless an alliance representing the security interests of Western Europe and North America – that exercised the power to make decisions during 2011 about how protection could best be realised in North Africa, and by whom. Many UN member states have since expressed strong concern about the conduct of that operation by NATO and its interpretation of the mandate given under Security Council Resolution 1973. It is clear from the arguments made in the Security Council by states including not only China and Russia, but also Brazil, India, and South Africa, that this shaped the willingness of many states to consider protection mandates in Syria. Brazil had begun to express its concern about the conduct of the Libyan intervention as early as May 2011 in a Security Council thematic debate about civilian protection, directing its comments to what it described as ‘the transformation of the civilian protection landscape over the past few months’ as a result of the Libyan intervention:

We must avoid excessively broad interpretations of the protection of civilians, which could link it to the exacerbation of conflict, compromise the impartiality of the United Nations or create the perception that it is being used as a smokescreen for … regime change … We must take the greatest care to ensure that our actions douse the flames of conflict instead of stoking them ...

As India’s Representative put its concerns during the same debate:

I cannot but ask the question: Quis custodiet ipsos custodies? Who watches the guardians? There is a considerable sense of unease about the manner in which the humanitarian imperative of protecting civilians has been interpreted for actual action on the ground.

In the context of Syria, the commitment to taking collective military action through the Security Council has been undermined by the approach that has been taken to supporting and arming rebels. In quite subtle ways, the invocation of the responsibility to protect concept appears to have legitimised forms of intervention just short of direct resort to force, such as the provision of ‘non-lethal’ (to quote the New York Times) and increasingly ‘lethal’ aid to rebels or indeed to government forces.

From the perspective of protecting the Syrian population, it seems increasingly apparent that this has been a negative development. The transfer of arms and involvement of external actors has contributed to the militarisation of the civil life of that country, the escalation of conflict, and ‘the possibility of violence consuming the region’. Statistics on killings in Syria suggest the implications of that military escalation. While approximately 7,500 people were killed in Syria during the first year of the civil war to the beginning of 2012, with the increased involvement of foreign actors and weapons that number had jumped to well over 100,000 people by April 2013. The escalation of the civil war in Syria also produced an alarming number of internally displaced people and refugees, with close to one-third of the country’s population displaced by late 2013. The UN High Commissioner for Refugees, António Guterres described this as the effect of ‘a conflict in constant escalation’.

Given the involvement of (amongst others) the EU, Al-Qaeda in Iraq, Israel, Jordan, Lebanese Hezbollah, Qatar, Russia, Saudi Arabia, and the US in providing support to forces in Syria, there has been surprisingly little attention paid to the rights and responsibilities of external actors in situations of civil or proxy war. Images of civilians at risk combined with the rhetoric of protection appear to have shifted the way that external involvement in the Syrian civil war has been understood. It appears to have been implicitly accepted that the principle of non-intervention has been redefined as a result of the endorsement of the responsibility to protect concept. Yet if intervention is now permitted on behalf of all those claiming unilaterally to act in the interests of the people of Syria, it is permitted for Russia, Iran, and Lebanese Hezbollah as much as for Jordan, Saudi Arabia, the EU, and the US. It is arguably the continued militarisation of the situation in Syria that presents the most serious threat to the civilian population, as recognised by the Independent International Commission of Inquiry on the Syrian Arab Republic:

The desperation of the parties to the conflict has resulted in new levels of cruelty and brutality, bolstered by an increase in the availability of weapons. Increased arms transfers hurt the prospect of a political settlement to the conflict, fuel the multiplication of armed actors at the national and regional levels and have devastating consequences for civilians.

As the examples of Libya and Syria, as well as Kosovo and Nicaragua, make clear, the turn to legitimacy and the attack on legalism are attempts to manage ambiguous and contradictory goals – the goal of persuading states and peoples to accept the basic legitimacy of the existing international order, while at the same time carving out space for continued forms of intervention where perceived necessary by powerful states. For those states seeking an expanded capacity to intervene in civil wars, international law is an ally to the extent that it preserves the equilibrium and stability of the existing order from which those states benefit, and it is an enemy to the extent that it constrains the policy space for intervention. The language of legitimacy is an attempt to overcome those contradictions. Treating legal debates about intervention as ‘utopian quibbling’ allows those championing international action to ignore disagreements over the meaning of the principles they espouse and their applicability to concrete situations. And rejecting as morally suspect the public justifications that other governments give for their actions and the subsequent analysis of those justifications by international lawyers means that anti-legalists can present their interpretation of moral principles as universally valid and the practices they seek to champion as uncontroversial. Whether the resulting expansion of the scope for foreign intervention in civil wars is a good thing from the perspective of protecting civilian life remains to be seen.

Anne Orford is Michael D Kirby Chair of International Law and an Australian Research Council Future Fellow at Melbourne Law School. Her publications include International Authority and the Responsibility to Protect (CUP 2011), Reading Humanitarian Intervention (CUP 2003), and the edited collection International Law and its Others (CUP 2006). Anne is the President of the Australian and New Zealand Society of International Law, and was the founding Director of the Institute for International Law and the Humanities at Melbourne Law School (2005-2012).