Reflections On Intervention: Legality, Legitimacy And Feasibility

David Held

This afterword by David Held and Kyle McNally is the final chapter of Global Policy’s e-book, ‘Lessons from Intervention in the 21st Century: Legality, Legitimacy and Feasibility’, edited by David Held and Kyle McNally. This piece was originally featured on the Global Policy website on 19 November 2014 and the complete e-book will be released in the coming weeks. Find out more here or join the debate on Twitter #GPintervention.

Drones now routinely circle the skies above large swathes of Iraq controlled remotely from many miles away. This is the latest iteration of intervention in the region – now targeting ISIS. Such operations have become the flagship of US counter terrorism policy. Yet, the landscape of this intervention, like all others, is unique in its own right.

ISIS, the self-proclaimed Islamic State, has over the last six months waged a war of brutality and repression across Syria and large parts of Iraq. Their brutality is incontrovertible, as the group also wages a propaganda campaign in the media unabashedly claiming, celebrating, and promoting the war crimes it commits. The international response was slow from the start, remains limited in its success, and decidedly tentative on the question of more direct engagement in terms of troop deployments. Meanwhile, atrocities continue unabated.

Kyle McNally

It can be safely argued that the debates about intervention today are at least as acute and urgent as any other time in the preceding decades. This ebook has attempted to make a small contribution to this debate by bringing together leading experts, both scholars and practitioners, to discuss intervention in a three dimensional framework: legality, legitimacy and feasibility. What is the relationship between these three elements? How are they pursued? And what is the possibility of achieving all three?

This afterword will reflect on these issues but start with feasibility as it is, prima facie, the most straightforward category in the debate.

Feasibility

Feasibility can be measured in relation to the capacity to resolve breaches to the peace and/or restore stability in violently fractured communities. While feasibility may seem a straightforward concept it remains deeply problematic, and especially in the context of the complex patterns of conflict and intervention in the 21st century.

William Zartman furthers the analysis of feasibility by arguing that it ‘is clearly a function of purpose’. If the point of the use of force is to protect or prevent conflict, then the question becomes how much force and how clearly it can be deployed. There is a clear risk that the means can undermine the end if the problem of proportionality is ignored. All interventions cause some degree of harm, but there remain serious unanswered questions of how much harm is acceptable in an effort meant to “protect” or “prevent”? There is no set threshold, and certainly no consensus. Obama defends his drone programme as one of the least destructive forms of force, yet critics maintain that the numbers of civilian deaths are not acceptable. There is the additional question of unintended consequences. Obama has been urged by many, including this year’s Nobel Prize winner, Malala Yousafzai, to consider how drone warfare may be creating more terrorists than it is neutralising (killing, to be sure). This advice has only fallen on deaf ears as Obama drives the drone programme forward undeterred, neither by uncertainty nor collateral damage.

It is, moreover, essential to consider the effectiveness of intervention when considering questions of feasibility. Michael Doyle and Camille Strauss-Kahn disentangle this question identifying one of the many drivers of liberal interventionism as the push for democracy, and demonstrate that the results of such intervention have not been promising. Apart from the cases after the Second World War when interventions took place in very different circumstances, very few Western led interventions have led to stable democracies. Indeed, there is a strong case to be made that many of these interventions have made things worse, much worse. There are very strong reasons to think that this has been the case in the wars in Afghanistan, Iraq and Libya (see Held and Ulrichsen).

Having said this, feasibility should not be considered in isolation from the other factors in this debate. Steven Zyck demonstrates how legality and legitimacy may be directly related to feasibility – but in an inverse way. Exploring the case of Yemen, he argues that it is those ‘projects which operate in a legal grey zone [that] are also the most feasible’, as they face less obstacles to implementation and regulation. In other words, feasibility may increase with the weakness of states and ambiguity of legal context. This is of course not encouraging for a rule based global order. Zyck also reminds us that intervention can be understood beyond conventional military force, as his arguments focus on the administration and implementation of development aid.

Anne-Marie Slaughter adds to the argument about feasibility when she points out that while agreement on political and military feasibility may be difficult to reach within one national government, ‘it is magnified ten or a hundred fold’ when the only way to put together an intervention and legalize it involves, for example, 14 other governments, ‘each of which has their own political, military, and humanitarian calculations.’ In short, the more state and non-state actors involved in an intervention, the more it is likely to show strains generated by multipolarity and complex problems. The greater the number of actors involved, which bring to the table diverse views and interests, and the greater the complexity of the challenge, virtually ensures that the issues are extremely difficult to resolve (see Hale, Held and Young, 2013).

Legality

Legality, as it was introduced initially by Held and McNally, refers to an intervention being duly authorised under the existing framework of international law and the United Nations Charter. Gareth Evans articulates just how narrow the field of legality is in relation to intervention. He argues that it is now beyond all doubt that ‘the UN Charter is the only possible source of authority, which means that coercive military intervention has to be either justified as Article 51 self-defence … or specifically mandated by the Security Council by resolution under Chapter VII; or conducted by a regional organisation acting under Chapter VIII and authorised at least subsequently by the Security Council’. Other forms of authorisation, such as General Assembly resolutions (when the Security Council is gridlocked), may help to further legitimise an intervention, but it cannot bestow legality.

Yet, broader interpretations of legal intervention, relying on customary law, have sometimes been made. The current actions against ISIS, similar to previous interventions such as Kosovo in 1999, may well fall into this category as there is an undeniable humanitarian need and evident crimes against humanity. Whilst this justification has been deployed in certain circumstances, it can create more confusion than resolution in the realm of legality.

In 2001 the International Commission on Intervention and State Sovereignty developed the Responsibility to Protect doctrine (R2P), attempting to recast state sovereignty as contingent upon a state’s willingness and ability to protect its citizens; that is to say, uphold their fundamental human rights. The doctrine further posits that when states fail to meet this obligation, responsibility to protect individuals falls on the international community. R2P has gradually transformed the discourse surrounding intervention, and is seen by some as providing new clear-cut guidance on when military force may be utilised in pressing humanitarian situations. R2P principles were adopted by the General Assembly in 2005, but the doctrine remains unbinding and does not confer legal rights nor restrictions pertaining to intervention.

Thomas Weiss suggests that we ought to call the UN’s endorsement of the doctrine ‘“R2P lite” because unlike the original ICISS recommendations, the September 2005 summit made Security Council approval a sine qua non rather than merely highly desirable’. Moreover, its invocation in Security Council resolutions has been met with controversy and mounting criticism. Charles Kupchan analyses this in relation to the NATO intervention in Libya, arguing that the operation ‘initially enjoyed legitimacy and legality’, but because of NATO’s over-stretching of the mandate and perceived mission overreach, it ‘ended up on contested ground’. As long as R2P intersects with the geopolitical interests of powerful states the question of whether it can ever be applied systematically and impartially remains in doubt.

David Held and Tom McNally reflect on the feasibility, legality and legitimacy of intervention (photo: CC BY 2.0 DVIDSHUB)

Legitimacy

As evident in our opening piece, as well as throughout a number of the contributions to the series, legality does not and should not be taken to equate legitimacy. Rather, legitimacy connotes whether an intervention is regarded as acceptable and/or “right” – be it morally, or otherwise justified. Legitimacy is perhaps the most difficult concept to make sense of, yet it carries significant weight in the way one understands global order. This ebook introduced legitimacy, in the first instance, as a post hoc judgement. This is a judgement that can be made by both those in positions of power and also by the many peoples who are affected by an intervention, ranging from the citizens of intervening States who fund intervention indirectly, to the citizens of states where interventions are made, affecting in profound ways their life chances.

The complexities of legitimacy beyond this conception were brought forth by many contributors. For example, Anne Orford argues that the ‘turn to legitimacy’ is part of an attack on legalism that can be used by powerful states to carve out space needed for interventions, whilst also maintaining a status quo in the international order.’ Legitimacy can be hijacked by powerful interests to claim the rightful nature of an action even if it is blatantly illegal under international law.

Thomas Risse offers a very interesting contribution to the discussion by distinguishing between two forms of legitimacy: normative legitimacy which addresses the ‘question of whether or not a particular political action can be considered legitimate according to some moral or ethical standard’; but also empirical legitimacy which is the ‘factual belief by those being ruled (or being intervened in this case) that the ruling authorities (or the interveners) are justified to claim followership’. Pointedly, he argues that there is ‘a clear relationship between the support of external interveners by local rulers and/or populations, on the one hand, and the effectiveness of the intervention in terms of keeping or restoring the peace on the ground, on the other hand.’ This is a crucial contribution to the debate about both legitimacy and feasibility. Simply put, Risse contends that “successful” intervention requires empirical legitimacy.

Conclusion

Implicit in the contributions of this ebook is the centrality of governance and rules for different kinds of intervention concerning when and how it is both right and possible to intervene. The rise of non-state actors in this arena, such as ISIS, complicate this terrain further. How is the world to govern conflict when some agents and coalitions explicitly eschew the rules of war and basic human rights? Yet, groups such as ISIS are not the only agents to abrogate these critical legal and normative structures. Powerful states that go to war without the authorisation of the UN Security Council and outside of the framework of international law weaken and erode the scope and reach of a rule based international system.

Considerations such as these engender debates about the justification and the normative standing of the prevailing structures and institutional arrangements, and the place of interventions in them. Andrew Linklater provides a powerful account of an underlying tension in this debate between the ostensibly benevolent motives that can drive decisions to intervene and the moral and practical complexities of interventions themselves. He likens the drive toward intervention as a process that can reflect diverse and, at times, contradictory motives. On one hand, intervention can be shaped by a quest for realistic understandings of war-torn societies and what is required to establish a pragmatic approach. On the other hand, discourses of intervention can be found to be interpolated with ‘colonial imaginaries’, with racist assumptions often constituting a hierarchy of societies. He contends that the future of intervention is likely to reflect these complex forces.

There remain many issues unresolved about how to proceed in matters such as ISIS, Boko Haram, despotic and repressive States, as well as a multitude of militias that reign in whatever capacity they can, with civilians frequently caught in the crossfire. These uncertainties are clearly manifest in Obama’s struggles to address ISIS. In the first instance, there appears a clear legal mandate under article VIII for intervention if the UNSC were to give backing beyond the limited sanctions and condemnations set out this year. ISIS is clearly committing crimes against humanity of a diverse kind: rape, pillage, slaughter, torture, and so on. On the issue of legitimacy, the terrain is more complex. Straightforward, perhaps, for Western advocates of intervention or for affected Shia populations; but certainly not for certain Sunni communities throughout Syria and Iraq.

As for feasibility, the issue is fraught with even greater complexity. Blair and Bush, and later Sarkozy and Cameron, assumed that feasibility was a straightforward matter. It is not. Obama has sought a two-pronged strategy of drone warfare combined with arming local resistance. This is a long way from the tank columns of the coalition of the willing landing in Bazra and pushing up towards Baghdad. So far the results, however, seem unfortunately similar, and fraught with complexity and uncertainty. The stark reality is that finding answers to these questions is as difficult as it is necessary. The ebook has produced clear thinking on many of these questions, but the decision to intervene or not to, and how the manage the consequences, remain questions of very difficult judgement.