Two Trajectories of Humanitarianism: Liberal vs State Humanitarism in Civil War (Paper 2)
The Politics of Humanitarianism in Syria's Civil War - Limited Paper Series
“…every concept of humanitarianism, like every concept of what it means to be fully human, has a history and, more important, a historical context that we ignore at our peril.” (David Rieff, 2002: 66).
Frances Deng’s Sovereignty as Responsibility, and the Responsibility to Protect (R2P) paint a hopeful picture of the historic trajectory of humanitarianism in the international order. Herein, the moral imperative of humanity—the basic rights of the individual and the protection of civilians—has been codified by the increasing agency of the international community, eroding the centuries-old Westphalian concept of nation-statism which endowed countries with sovereign legitimacy over their territory. This conceptualisation of humanitarianism identifies a historic liberal progression in which the international political system has moved “beyond Westphalia” by replacing the primacy of the nation-state with that of the individual. Simply, in this view, “people matter more than states” (Weller, 2009: 4). It brings together a vision of responsibility (on the part of the state) and accountability (on the part of the international community) to the realm of legitimacy and sovereignty by employing international law as the primary rubric and emphasising the centrality of human rights and civilian protection as the fundamental basis of state sovereignty. From this perspective, sovereignty is derived from a state’s responsibility. A sovereign state is obliged to protect and assist its citizens if it seeks to qualify for ‘international legitimacy’ and therefore reasonably participate in the international community. If the state cannot or will not ensure the welfare of its people, it is compelled by law to seek international assistance. If the sovereign power refuses its consent to international humanitarian assistance, then the international community has an obligation to intervene and deliver relief to disparaged populations, even if by force (Deng, 2010: 254-255). This obligation is derived from the international community’s “residual responsibility” to protect civilians. This responsibility is activated “...when a particular state is clearly either unwilling or unable to fulfil its responsibility to protect or is itself the actual perpetrator of crimes or atrocities” (ICISS, §2.31). In summary, this view asserts that the historic trajectory of humanitarianism has progressively emerged as a qualification to sovereignty, and then even eclipsing it instances of intervention. This prompted contemporaneous discussions over the legitimacy of humanitarian intervention, the limits of state consent, and international jurisdiction over civilian protection.
This raises a problem in how we approach the concept of humanitarianism from a historical perspective. We should not think about humanitarianism as an opposing force to the pre-eminence of state sovereignty in the international system because this view built on a somewhat limited, partial history of humanitarianism painted by scholars like Francis Deng and Gareth Evans. On the contrary, the broader history of humanitarianism, instead, reveals that humanitarianism was not seen as contesting state sovereignty, but rather as complementing it. It provided an alternative avenue of addressing critical issues without challenging state sovereignty. Humanitarianism’s trajectory as both an idea and institution is not a linear history which culminated in a glowing moment of moralistic altruism and the reformation of sovereignty through R2P and international consensus on the protection of civilians. Rather, this perspective is rooted in the post-Cold War era when an unreasonable ebullience surrounding the NATO intervention in Kosovo and R2P laid the foundation for a broader shift in political thinking about legitimacy, sovereignty, humanitarianism, and consent. Instead, on the contrary, the history of humanitarianism is a centuries-old story defined by interactions with the state, which has at times been subsidiary to the sovereignty and authority of a state and at other times instrumentalised by the state in pursuit of self-interest. The contemporary liberal humanitarian view of the post-1989 era is a deviation from this longer humanitarian tradition in which humanitarianism found itself firmly rooted within the state system. For such scholarship on the early histories of humanitarian, texts by David Rieff and Michael Barnett provide comprehensive histories on humanitarianism’s tumultuous journey from Westphalia to the modern period. This paper explores humanitarianism from the post-war period onward.
Defining Humanitarianism in History
The tradition of humanitarianism is closely intertwined with the state interests of power, sovereignty, and (most prominently in the 19th century) religion. This relationship can be observed as early as the 17th century with the Peace of Westphalia, after which humanitarian action, non-military in nature, served as a corrective mechanism for how sovereignty should be exercised when a sovereign power failed to protect its civilians. Since the outset of the Thirty Years War, humanitarianism operated within the framework of a state-centric, sovereignty-oriented international system (Falk, 2002: 313). The Westphalia treaties of 1648 produced a system of territorial states who exercised sovereign power over a delineated territory. Humanitarianism emerged within this system through agreements and standards set by guarantor powers regarding the rights of religious minorities dispersed among the territories as well as those of their own subjects (Trim, 2013). At times, states undertook military and political actions against another in the name of “humanity” in order to protect one/each another’s subjects. In some cases, European ruling elites were deposed by other elites for directly violating the privileges, freedom, and rights of those under their power (ibid: 40). Whilst such actions were taken on the basis of rudimentary humanitarianism, the calculations behind instances of humanitarian action, while aiming to prevent inhuman treatment and murder, were vastly different than the modern motivations for humanitarian intervention. While modern interventions often result in changes in domestic political structures (e.g. regime change), early humanitarian action was rarely military in nature and, instead, functioned as a measure to “help states to exercise their sovereignty responsibly and appropriately” (Trim, 2013: 47). In the 18th century, we see the emergence of multilateral humanitarianism in the form of state reconstruction assistance and financial aid to states affected by crisis. In 1755, European states responded collectively to the aftermath of an earthquake in Lisbon by providing critical funds for relief and reconstruction (Mullin, 1992: 4). This was one of the earliest examples of Pan-European relief efforts in the decades following the Thirty Years War (Barnett, 2011: 50). The Marquis of Pombal, the leading state figure of Lisbon, played a leading role in relief efforts, issuing measures to prevent disease and starvation as well as facilitating the delivery of food and clean water (Pereira, 2009: 487).
In the 18th and 19th century, humanitarianism took on an increasingly imperial nature where humanitarian motives were exploited as a pretext to justify colonialism. In this way, European states employed humanitarian narratives and moral altruism in the pursuit of foreign interests. David Rieff, in his seminal history on humanitarianism, argues that, in this period, humanitarianism was a tool of state exploitation for a political agenda. He posits that religious-based charity (in reference to Christianity), which emerged in the 18th and 19th centuries, served as both an “accompaniment to” and the “handmaiden of” the nineteenth European colonialism project (Rieff, 2002: 57). In this way, early humanitarian actors, Christian missionaries, brought not only assistance to the far reaches of the globe, but also justification for European conquest, imperialism, and colonialism (Ibid: 57). Humanitarian activism which propagated the abolition of slavery in Europe provided the pretext for justifying European colonialism in Africa (ibid: 58). During this period, humanitarianism was employed to justify paternalistic trusteeship, in that, an imperial power had “sacred” duty to prepare colonised people for sovereignty, without the consent of the “ruled” (Barnett, 2011: 61). For example, employed in India as a component of a new ideology of humanitarianism, British paternalism, undergirded by a strong sense of moral superiority, failed to mitigate widespread crisis when famine devastated northern India in 1837. Barnett writes that due in part to this “humanitarian” ideology, “the early British colonial state was partly built on the skeletal remains of the Indians” (Barnett, 2011: 64). In these instances, the ideology of humanitarianism was employed by the state for imperialist motives outside of the European political order.
By late 19th century, humanitarianism was progressing toward institutionalisation. A defining moment in the history of humanitarianism and the beginning of the modern humanitarian system is attributed to Henry Dunant who established the International Committee of the Red Cross (ICRC) in 1863. A man driven by the atrocities he witnessed while volunteering at the Battle of Solferino in Italy in 1859, Dunant became a leading actor in the proliferation of humanitarianism and humanitarian relief. His efforts helped to establish an international institution dedicated to promoting assistance to victims of war. Perhaps more salient is his role building international support for the first Geneva Convention convened in 1863. As Michael Barnett wrote, Dunant and the episode at Solferino “become to modern humanitarianism” what the “Treaty of Westphalia was to modern politics” (Barnett, 2011:1). However, Dunant’s vision of international humanitarianism would not see holistic institutionalisation for nearly ninety years at the close of World War II. As Jean Pictet (1951: 462), former director of the ICRC, penned in 1951 “…law…always lags behind charity.”
The violence of World War I caused untold suffering not only to combatants but also to millions of civilians across the European continent. A new humanitarian crisis emerged in the interwar period which would test the emerging international order headed by the League of Nations. A primary organ of the modern humanitarian regime, the High Commissioner for Refugees (HCR) would emerge within the first years of the interwar period. While HCR was not the only humanitarian organisation at this time, its centrality as a League project makes it a salient case for analysis.
From 1917 to 1920, millions of refugees fled Russia to Europe during periods of violent conflict from the Russian Civil War and Russian Revolution. The League of Nations looked to Fridtjof Nansen, the first High Commissioner for Refugees to respond to the refugee crisis. HCR’s humanitarian efforts hinged on the cooperation of states. Nansen had to accommodate his humanitarian goals within a state-system, governed by the principle of national sovereignty (Metzger, 2001: 228). From the onset, the institutionaliation of humanitarian assistance to refugees under Nansen’s new regime was dominated by issues of state interest. States, already facing the overwhelming task of post-war reconstruction, had a limited capacity to individually manage the refugee crisis. Instead, HCR offered a promising mechanism by which states could hand over administrative authority to an internationally-recognised humanitarian organisation to manage the increasing humanitarian agenda. Because HCR operated under the League, it could address humanitarian crises more fluidly than states. That is, by providing aid to refugees dispersed transnationally across Europe, HCR could address rising humanitarian challenges without having to violate state sovereignty.
States also utilised HCR as a means of escaping responsibility. The League endowed HCR with a restricted mandate in order to limit their direct obligations to refugees, only accepting the political and legal obligations of specific classes of refugees and, at the same time, rejecting responsibility for the relief, maintenance, or resettlement of refugees (Walters, 1960: 187; Simpson, 1939: 192, in Orchard, 2014). These conditions set before Nansen a tenuous task of diplomatic negotiation with individual governments who perceived open immigration as a challenge to state sovereignty (Orchard, 2014). In pursuing an apolitical position, Nansen and HCR were dependent on the League for both their mandate and their funding. Metzger explains that Nansen did not publicly criticise refugee-producing states nor their “inhumane” practices so as not to infringe on state sovereignty or hinder the support or cooperation from League member states (Metzger, 2001: 228). The League’s interstate politics of interest and sovereignty forced neutrality and inhibited HCR’s capacity to provide humanitarian assistance where, when, and to whom it was needed. Instead, its responsibilities were delimited to specific regions, groups, and ethnicities.
By the 1930s, Adolf Hitler’s ascent to power in Germany prompted large scale refugee migrations out of Germany, a crisis that the League was not adequately prepared to address (Metzger, 2001, 247). Hitler, under the claim of national sovereignty and outside the sphere of foreign intervention, implemented the 1933 anti-Semitic laws passed under the Nazification of the country targeting Jewish communities in Germany and prompting many to flee (Ibid: 247). The League of Nation was paralyzed into neutrality over the question of German sovereignty. The growing humanitarian crisis had threatened to destabilise neighbouring states and required some form of international collective action.
The disputation of the German Jewish refugee crisis between Germany and opposing European states (seeking League action to mitigate the impact of the refugee crisis) materialised more clearly over what actions the League council might adopt. These can be categorised between League action to confront Germany over its anti-Semitic politics and actions to extend humanitarian assistance to Germany refugees seeking shelter by the tens of thousands in neighbouring states. Some saw it as the League’s responsibility to act (in the broad sense) to ensure the protection of human beings at the hands of Germany’s rising state aggression. The latter, more closely concerned with questions of state sovereignty and national interest, saw, at a minimum, an imperative to provide humanitarian assistance to increasing waves of displaced Germany citizens crossing into neighbouring states. But any such action taken by the League to provide humanitarian assistance to German refugees or condemn Germany’s domestic policies could be construed as interference into Germany’s domestic affairs (Metzger, 2001: 303). Germany’s role as a prominent and powerful member made it easy prevent any such humanitarian relief efforts (Ibid: 247). More specifically, by its veto power, Germany wielded significant structural power within the league, in that it could block any proposed plan it thought might interfere with its domestic priorities or simply not consent to any form of interference.
The League arrived at a compromise: a new humanitarian agency would be tasked to care for German refugees in order to circumvent any breaches of Germany sovereignty. The organisation would be funded not by the League but privately. This initiative, led by James MacDonald, only lasted two years. In his damning retirement letter issued to the League of Nations in 1935, MacDonald penned a woeful plea to the League to intervene on behalf of German refugees (the majority of whom were Jewish) targeted by the new German powers. In MacDonald’s view, the task of humanitarian assistance fell on two bodies: the philanthropic private sector and the League of Nations. In this sense, the philanthropy of private Jewish and Christian organisations could financially sustain the survival of these German refugees, but it could not remove or mitigate the underlying causes of the German refugee crisis which continued to fuel the refugee crisis. He argued, “This could not have been any part of the work of the High Commissioner's Office; nor, presumably, can it be the function of the body to which the League may decide to entrust future administrative activities on behalf of refugees” (MacDonald, 1935). Instead, solving the underlying factors driving the humanitarian crisis—German aggression and oppression of German Jews—would require a legal function, and thus the responsibility would fall on the League of Nations. But, the League would not take any such action until war broke out six years later.
Enshrining Humanitarianism in the State-System
The devastating consequences of World War II on civilians—most importantly, the holocaust—motivated a search for a new normative legal framework for the protection of civilians in conflict became a primary goal of the budding international order. By the post-war period, humanitarian principles and the skeletons of a new international humanitarian regime were firmly codified within the UN Charter in 1945 to ensure the violent consequences of the war on civilians would not be repeated. The global acceptance of three new Geneva Conventions (II-IV) in 1949 brought hope that a newly codified minimum standard of protection for civilians in conflict would set the tone for a new humanitarian norm. More broadly, the Geneva Conventions (GC) concern the protection of victims of armed conflicts: wounded combatants, prisoners of war, and civilians. Geneva IV, more specifically, laid the groundwork for the international humanitarian law, outlining the rules for humanitarian access and assistance in times of war. Prior to World War II, the ICRC submitted a draft Convention for the Protection of Civilians as early as 1934, but the tension mounting in advance of war in 1939 delayed the signing of the convention. Without an agreed-upon civilian protection framework at the onset of the war, there was no universal application of civilian protection in World War II. Instead, humanitarian activities were organised by individual actors, resulting in an inconsistent standard of protection (Pictet, 1951: 473). The proliferation of blockades as a weapon of war also produced consequences to civilians because, though employed to induce defeat, blockades targeted combatants and civilians indiscriminately. At the close of the war, however, the view from the international community began to shift. Pictet points out “After the bitter experiences of the last conflict and the horrors of the concentration camps, there was no need to stress the urgency and capital importance of international rules in this particular field [civilian protection]” (Pictet, 1951: 473). The need for a universal standard for the protection of civilians, not just prisoners of war as outlined in Geneva I, emerged as a post-war legal imperative within the new international order. On this point, Huber argued in an address to the 1946 Red Cross Conference in Geneva:
“In practice, the distinction between combatants and non-combatants cannot be upheld in the face of human distress. War, as it becomes more and more total, practically annuls the difference as to injury and exposure to danger which formerly existed between armed forces and non-combatants.” (Huber, 1941 in Pictet, 1951: 474)
Through Geneva IV, the ICRC aimed to save certain groups of civilians from the consequences of blockades—the “most vulnerable” and “most worthy of protection and assistance” (ICRC Commentary, 1958: 179). The convention outlined obligatory requirements for two principal actors engaged in international conflict. First, under Article 23, convention signatories are obliged to permit the “the free passage of all consignments of medical and hospital store” for civilians, as well as “all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases” (Geneva IV, Article 23). The second, in Article 55, obliges the Occupying Power to ensure civilian access to food and medical supplies. If such resources are not unavailable or inadequate, the Occupying Power “should bring in the necessary foodstuffs, medical stores and other articles…” (Geneva IV, Article 55). More broadly, Article 3, represented in all four of the Geneva Conventions, provides that an impartial humanitarian body (the ICRC) may offer its services to parties of the conflict, in both the context of an international conflict and a non-international conflict (Geneva I-IV, Common Article 3).
Despite its success in codifying a general right to free access and civilian protection, Geneva IV did not detangle humanitarianism from the politics of sovereignty and interest. The notion of humanitarian access in Geneva IV faced severe restrictions imposed by the interests of the states involved in the design process. Pictet argues that the convention’s primary restrictions resulted “from the desire of governments to retain what to them appears the lowest possible measure of freedom required to face the exigencies of war” (Pictet, 1951: 475). This position is particularly salient when the application of humanitarian access is applied to a non-international conflict context where such restrictions could impede a state’s ability to defeat a domestic opponent in an internal conflict. But, within both contexts—international and non-international conflicts—this convention is bound to the interests of participating states, both in its framework and in the design process” (Ibid. 475). In Article 23, paragraph 2, the obligation to allow free passage is subject to the condition of the Parties “satisfaction” on the grounds of three identified fears: (1) that goods will could be diverted from their destination, (2) the control may not be effective or (3) that goods would give an opposing enemy a definite advantage (Geneva IV, Article 23). Such provisions extend a substantial degree of authority and discretion to accept or reject the obligation of free passage, weakening any substantive legal authority from Article 23 to make the right to free passage mandatory. In place of a legitimate legal principle, it basis the merit of the concept of humanitarian access on the state’s exercise of power. The ICRC argues that the inclusion of the “safeguards” set out in paragraph 2 might seriously jeopardise the right to free passage by “leaving to much discretion to the blockading powers” (ICRC Commentary, 1958, 182). At the Diplomatic Conference of 1949, a political compromise cemented the inclusion of paragraph two in exchange for the general right of free passage of humanitarian assistance (Ibid: 183). But, instead of an enforceable legal obligation, the principal of right to free passage (of food, medicine, etc.) would effectively be subject to state volition rather than obligation.
Another primary challenge of Geneva IV was the limitations of its context and scope. In the decades following the adoption of the Geneva conventions, the nature of war transformed as intrastate wars decreased in frequency and non-international conflicts proliferated. This became increasingly problematic as atrocities occurred across the globe, in Kenya, Algeria, Nigeria, Laos, and beyond. The humanitarian need arising from internal conflicts far outpaced the legal development of civilian protection necessary to meet the demand. The language and application of Geneva IV largely applied to international conflicts with the exception of the shared Article 3 (which did provide some legal grounding for humanitarian access) (Mantilla, 2017: 45). Humanitarian access suffered a significant blow. Finally codified within Geneva IV, the foundations of humanitarian access were paved, but the legal language on which it could be ensured was ambiguous as best given its limited application in internal conflicts. Humanitarian access remained subject to the consent of the state.
The convention’s limited scope, on the other hand, was the result of a tenuous political process between states who saw international humanitarian law (IHL) as a necessary function of the international system and those who saw it as a potential erosion of state authority. Opposing views on extending IHL to internal conflicts prompted significant debate at the Diplomatic Conference in 1949. Interestingly, sceptics (principally the United States, United Kingdom, France, China, and Greece) of the extension of IHL to non-international conflicts argued that the lack of safeguards in place to assure opposition compliance with the rules of war made any extension of IHL to internal conflict an unsteady way forward (Mantilla, 2017: 44). Furthermore, others feared that the extension of IHL to internal conflicts could risk legitimising or inspiring opposition forces waging internal conflicts against signatory states (Mantilla, 2017: 44). In compromise, states agreed to Common Article 3, which offered a modicum of protection for civilians and non-combatants in internal conflicts from states and codified the right of impartial humanitarian assistance to parties of the conflict. In practice, Common Article 3 was also semantically weak, negatively impacting its implementation. States embroiled in internal armed conflict invoked state sovereignty to prevent international scrutiny over defecting from the humanitarian standards they just signed (Ibid: 50). The gaps within the Geneva Conventions were increasingly evident. Limited, non-binding tools to ensure states abide by a minimum of humanitarian standards in internal conflicts were not substantive enough to prevent atrocities in the 1950s and 1960s (Ibid: 51). The provisions for humanitarian access under Articles 23 and 55 under Geneva IV did not extend to internal conflicts. States remained the central responsible actors for the domestic protection of civilians, which Article 3 did not ensure.
The question of humanitarian access would emerge in the ratification of the Additional Protocols 1 and II in 1977. Recognising the weakness of the Geneva conventions, the ICRC set about modernising the Geneva Conventions through the Additional Protocols to reflect the modern challenges both to civilians and to the humanitarian regime: questions of humanitarian access and the protection of civilians in internal conflicts. Under the reformed system as outlined in Additional Protocol II, states are obliged to offer consent for international access for impartial humanitarian actors offering their services for populations-in-need as well as protecting civilian populations from violence in military operations. An earlier draft submitted by the ICRC outlined more specifically how humanitarian access and civilian protection should be implemented, but, states’ expressed concerns during deliberations over Article 33 on potential violations of state sovereignty, the legitimisation of non-state actors, and issues of interference which could emerge from the specificity of the language. Instead, the language of the contentious sections was simplified, watering down the legal strength of the original proposed draft and creating an ambiguous outcome document like Geneva IV before it.[1]
Certainly, the legal codification of obliged consent for humanitarian access posed a threat to the sovereignty of an afflicted state in which case, the state cannot arbitrarily deny humanitarian access. But, as with the Geneva Conventions, the Additional Protocols could not effectively address the question of enforcement. In this way, its weakness stems from its view of humanitarianism as an obligation under international law where the demand for compliance without sanction assures reduced risk of repercussions for non-compliance. The humanitarian regime comprised of its numerous organs, partners, and actors was still subsidiary to the state. UN operations inside of conflicted countries could operate as long as they were permitted by the state. If humanitarian actors tried to push back against the mechanistic manifestations of state sovereignty (e.g. administrative and bureaucratic constraints imposed on humanitarian organisations) or raised the “human rights” banner accusing the state of crimes against humanity (violating the principle of impartiality and neutrality) the state could simply withdraw consent and force humanitarian actors to close up shop.
Post-Cold War Exuberance and the Emergence of Liberal Humanitarianism
Over the next three decades, states, again capitalising on the discourse of humanity and impartiality, inserted themselves into the centre of humanitarian action, to which humanitarian organisations were dependent on for their funding (Barnett, 2011: 31). States utilised the humanitarian regime under the auspices of the United Nations to address international issues humanitarian-in-nature as a means of preserving the inviolability of state sovereignty. Those implementing humanitarian relief operations—ICRC, UN agencies, and humanitarian organisations—found themselves in challenging positions as subsidiary to the state. Seeking to distance themselves from their donors, humanitarian organisations turned to their principles, namely neutrality, to distance themselves from the interests of their donors (Barnett, 2011: 31). But, such efforts were often ineffective. Barnett writes:
“In places like Biafra, Vietnam, Cambodia, and Ethiopia, aid agencies discovered that they were part of the war and pawns for combatants, struggling to figure out how close to get to politics without getting burned and how to deliver aid without unwittingly prolonging conflict or suffering”. (Barnett, 2011: 31)
This became increasingly problematic for humanitarian actors who were responding to a transformation of warfare from interstate war to violent internal wars at the end of the Cold War. With interstate conflict in the post-war period waning, the threat of violence against civilians emerged increasingly from the state as the perpetrator in the mid to late 20th century. As wars of self-determination, revolutions, civil wars, and great power proxy wars proliferated across the globe, states exercised military power to subdue domestic threats their claims to authority, often resulting in atrocities against civilians. In Syria, the Ba’athist regime under Hafez al-Assad killed thousands in the 1982 Hama massacre against Muslim brotherhood members who long contested Ba’athist legitimacy, creating wounds which would reopen during the Syrian civil war in 2011. In Sudan, the Arab-led government under Omar al-Bashir utilised brutal force (including genocide, crimes against humanity, and war crimes) to crush separatist fighters in Darfur. In 1992, the Serbian government (former Republic of Yugoslavia) led by Slobodan Milošević supported Bosnian Serbs in a brutal internationalised civil war following the Bosnia-Herzegovina independence referendum in 1991. In Iraq, Saddam Hussein inflicted heavy casualties against civilians during violent operations against Shi’a Iraqis (thought to be separatists with Iranian connections) in the south and the Kurds in the north. Within this complex political landscape, humanitarian actors faced significant restrictions in conflict zones. In the Yugoslav wars, Sudan, and Iraq, governments actively hindered humanitarian operations providing for civilians in opposition-controlled areas. More broadly, the issue of humanitarian access to civilians-in-need became a primary challenge in violent conflicts around the world. No fewer than 74 UN Security Council resolutions from 1991 to 2008 (collected and analysed by this author) raised the issue of humanitarian access arising most commonly from intense violence and instability, and, to a lesser degree, state obstruction of humanitarian assistance.
The failure to effectively act to prevent genocides (most notably in Rwanda and Kosovo) promulgated discourse over the validity and legality of humanitarian intervention and the effectiveness of humanitarian assistance by Kouchner, Evans, Deng, and others. Humanitarian intervention became increasingly viewed by leading humanitarian actors as a moral imperative to ensure the protection of civilians and access of humanitarian assistance to populations in need. Kouchner (1999, 4) argued that, under the emerging world order (the post-Cold War era order), a “new morality” could be systematised in the “right to intervention” against states abuse their sovereignty. Two predominant humanitarian perspectives emerged. First, those like Kouchner—the co-founder of Médecins Sans Frontières—assert a “right to intervene,” which did not gain traction until the 2001 International Commission on Intervention and State Sovereignty (Evans, 2008: 30). This view is contrasted to that of the ICRC whose principled neutral position required avoiding political controversies which might undermine the organisation’s work in politically-sensitive contexts (Minear, 1999). While this commitment has led some to criticise ICRC “of cowardice in the face of crimes against humanity,” one cannot deny that the organisation has maintained humanitarian operations with states, even those engaged in violent civil wars as observed in Syria, in the legal framework of state consent and respect for sovereignty (Barnett, 2011: 31). An important point to extract from these competing views is the importance of the distinction between humanitarian intervention (namely military action against state violence employed against one’s own people) and humanitarian assistance (the process of providing humanitarian consignment and services to populations-in-need). While humanitarian assistance can be provided outside of state consent in violation of state sovereignty, separate from military action, international humanitarian assistance traditionally is provided in coordination with or under the permission of a sovereign state. While, on the other hand, humanitarian intervention bases the justification for violating state sovereignty on humanitarian need. Concurrent to this discourse, western interventions in Iraqi Kurdistan and Kosovo paved the way toward reconceptualising sovereignty and humanitarianism in international politics and the increasingly complex political order.
The exuberance over “successful” interventions, most notably in Kosovo, prompted a wider debate on the prevailing view of sovereignty in the international community of states comprising the United Nations. Kofi Annan, in his September 2009 speech to the UN, argued that the traditional (Westphalian) view of state sovereignty was being redefined by individual sovereignty—the fundamental rights and freedoms of individuals and peoples. That is, states serve their people, not the other way around. Annan concluded his speech saying, “Any such evolution in our understanding of state sovereignty and individual sovereignty…is an evolution that we should welcome” (Annan, 1999). Annan’s human-centric interpretation of sovereignty, best summarised in Deng’s Sovereignty as Responsibility, was endorsed by all member states as the Responsibility to Protect doctrine in 2005. Where, before, humanitarianism fell subject to the sovereignty of the state, that is, humanitarian activity within an afflicted state required the submission of the sovereign power, now R2P aimed to enforce compliance to international humanitarian law and oblige state consent for humanitarian assistance as outlined under the Geneva Conventions and the Additional Protocols (among other legal sources) as a legal norm. In this way, humanitarianism—a state’s responsibility to the humane treatment and protection of its people—was viewed as a fundamental principle of state legitimacy. Humanitarianism, as it had been in the 19th century, was deployed in the post-Cold War period for acquisitive motives by powerful states seeking justification for intervention. The primary difference, however, is that under 19th century colonialism, many victims of European humanitarian imperialism lacked the recognition of statehood and sovereignty from their European colonisers. Humanitarian intervention in the late 20th and early 21st century is carried out by sovereign states recognised by the UN against sovereign states recognised by the United Nations. That is, intervention was exercised in the name of humanitarianism toward the violation of another state’s sovereignty, exemplified by interventions in Iraqi Kurdistan and Kosovo. On Kosovo, intervention was ruled by the Independent International Commission on Kosovo as “legitimate, but illegal” because while NATO did not receive UN authorisation, all options short of force were exhausted.[2] Without UN authorisation for intervention, the use of force could be viewed as an infringement of Yugoslavia’s national sovereignty. Certainly, proponents of R2P might offer that, in such instances, the state who does not protect its populations forfeits sovereignty, and the international community has the duty to protect those civilians in the absence of state protection or (in some cases) in direct conflict with the state.
Westphalian Humanitarianism or Liberal Humanitarianism?
The argument for the coercive provision of humanitarian aid and protection is a new and contentious development, emerging in the post-Cold War period. The employment of Responsibility to Protect and mechanisms for international accountability (e.g. the International Criminal Court) were initially major developments and normative steps toward a new liberal humanitarian regime. But, the rapid deterioration of conditions in Libya after the 2011 “humanitarian” intervention slowed the emphatic enthusiasm over R2P and produced wider criticisms of humanitarian intervention within the UN, notably from China and Russia.[3] This has further contributed to the UNSC’s failure to agree to any collective action to mitigate the rapidly deteriorating humanitarian situations in Syria and Yemen, despite the flagrant violation of human rights and violence against civilians. This signals that traditional view of humanitarianism—humanitarianism as subsidiary to state sovereignty—still plays a primary role the international community. While the West has championed a new vision of humanitarianism, other states have taken an approach to valuing state sovereignty over the demand for universal humanitarianism by the sword. The system of sovereign states is still perceived as a hard-fought, durable underpinning for a peaceful international order. Such a view is not only held by authoritarian regimes, but by a broader range of countries as we observed in the debates over codifying of international humanitarian law. Even Western states resisted early efforts to bind states to humanitarian responsibilities in both the Geneva Conventions and the Additional Protocols. The principal assertion is that the United Nations founded an order of international law, protecting the sovereignty of states to ensure global peace and security. Within this order, humanitarianism played an important function by which states could multilaterally address humanitarian challenges without stepping on the sovereignty of others, rather than as a justification for violating state sovereignty. This is not to say that the relationship humanitarianism under state sovereignty always functioned effectively. As witnessed with the League of Nations handling of both the humanitarian emergencies accompanying the Russian and German refugee crises, moralistic altruism from a few actors does not always garnish the recognition of the entire collective, particularly those emphasise the state as the fundamental key to global peace, security, and (hopefully) justice.
The 2011 war in Libya and the following decade of continuing violence brought the legitimacy of intervention and the effectiveness of R2P to the forefront of international debate and political discourse. Even beyond the effectiveness of intervention and R2P, Libya raises fundamental questions over the nature of humanitarianism and its relationship to the political. One such question was raised by former European Commission for Humanitarian Affairs, Emma Bonino, a year prior to NATO’s intervention into Kosovo. She asks:
“…when access is denied, when discrimination is clear under our eyes, when civilians are targeted in a disproportionate way as in Kosovo today, should we wait for diplomatic or military intervention or should we call for diplomatic, military, political intervention)?” (Bonino, 1998)
In the vision of humanitarianism painted by Kouchner, Deng, and Annan, a fundamental component of humanitarianism—neutrality—is traded for a more political view of humanitarianism. In that, the role of the humanitarian extends beyond the duty of succouring the sick and strict provision of relief to civilians-in-need to include “watcher” and “monitor”, reporting on the violations of human rights carried out by parties to conflict, particularly. In such a case, they might answer Bonino that humanitarian actors should call for intervention when such actions occur or, at least, provide evidence of violations to justify some form of intervention to prevent such violations from continuing.
In either sense, humanitarians adopt an inherently political role which contributes to the final decision to intervene. To remain silent, in their view, might result in continuance of violence against civilians and, ultimately, a worse crisis. On the other side, is the view of the impartiality. In this, humanitarianism and the humanitarian are neutral. That is, in practice, they take a neutral stance “in word and in deed” to the politics surrounding the conflicts wherein they operate. To do otherwise would violate their impartiality with is legally bound under both Common Article 3 and the Additional Protocols I and II. The condition of impartiality legitimises ICRC operations in war zones and conflict zones under international law. Under these terms, ICRC is permitted by sovereign states to operate in contentious political and military conflicts. But, humanitarian actors committed to neutrality are apolitical. Any action on the contrary would result in the withdrawal of state permission for operations, leaving civilians-in-need further out of reach. Where, then, does the international community stand in terms of sovereignty and humanitarianism? Will humanitarianism persist as a function of an international system of sovereign states? Or, will humanitarianism be necessary to violate state sovereignty through intervention in order to protect civilians from state violence? This answer to this question will have considerable implications for the future of the global humanitarian regime and its legitimacy as a reliable source of humanitarian assistance in future crises.
[1] For a detailed account of the deliberation over the Additional Protocols, see Howard S. Levie, The Law of Non-International Armed Conflict, Protocol II to the 1949 Geneva Convention, Boston: Martinus Nihoff Publisher. 1987.
[2] For the full report, see Independent International Commission on Kosovo, Kosovo Report, Oxford: Oxford University Press, 2000.
[3] See Dag Henriksen and Ann Karin Larssen, Political Rationale and International Consequences of the War in Libya, 2016.