HUMANITARIAN INTERVENTION

Transcription

1 HUMANITARIAN INTERVENTION Ethical, Legal, and Political Dilemmas The genocide in Rwanda showed us how terrible the consequences of inaction can be in the face of mass murder. But the conflict in Kosovo raised equally important questions about the consequences of action without international consensus and clear legal authority. On the one hand, is it legitimate for a regional organization to use force without a UN mandate? On the other, is it permissible to let gross and systematic violations of human rights, with grave humanitarian consequences, continue unchecked? (United Nations Secretary-General Kofi Annan, September 1999). This book is a comprehensive, integrated discussion of the dilemma of humanitarian intervention. Written by leading analysts of international politics, ethics, and law, it seeks, among other things, to identify strategies that may, if not resolve, at least reduce the current tension between human rights and state sovereignty. This volume is an invaluable contribution to the debate on this vital global issue. j. l. holzgrefe is a Visiting Research Scholar in the Department of Political Science, Duke University. He is a former Lecturer in International Relations at the University of St. Andrews, Scotland and visiting scholar at the Center of International Studies, Princeton University. robert o. keohane is James B. Duke Professor of Political Science, Duke University. His publications include the award-winning After Hegemony: Cooperation and Discord in the World Political Economy (1984), and Power and Governance in a Partially Globalized World (2002).

2 HUMANITARIAN INTERVENTION Ethical, Legal, and Political Dilemmas Edited by J. L. HOLZGREFE AND ROBERT O. KEOHANE

3 cambridge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, Sa ~ o Paulo Cambridge University Press The Edinburgh Building, Cambridge, CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York Information on this title: C Cambridge University Press 2003 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2003 Fifth printing 2007 Printed in the United Kingdom at the University Press, Cambridge A catalogue record for this publication is available from the British Library ISBN hardback ISBN paperback Cambridge University Press has no responsibility for the persisitence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

4 CONTENTS List of contributors Acknowledgments xi page vii Introduction 1 robert o. keohane part i The context for humanitarian intervention 13 1 The humanitarian intervention debate 15 j. l. holzgrefe 2 Humanitarian intervention before and after 9/11: legality and legitimacy 53 tom j. farer part ii The ethics of humanitarian intervention 91 3 The liberal case for humanitarian intervention 93 fernando r. tesón 4 Reforming the international law of humanitarian intervention 130 allen buchanan v

5 vi contents part iii Law and humanitarian intervention Changing the rules about rules? Unilateral humanitarian intervention and the future of international law 177 michael byers and simon chesterman 6 Interpretation and change in the law of humanitarian intervention 204 thomas m. franck 7 Rethinking humanitarian intervention: the case for incremental change 232 jane stromseth part iv The politics of humanitarian intervention Political authority after intervention: gradations in sovereignty 275 robert o. keohane 9 State failure and nation-building 299 michael ignatieff Select English language bibliography 322 Index 336

6 CONTRIBUTORS Allen Buchanan is Professor of Public Policy and of Philosophy at Duke University. He has authored numerous books and articles in the fields of ethics and bioethics as well as the following works on political philosophy: Marx and Justice (Rowman & Littlefield, 1982); Ethics, Efficiency, and the Market (Rowman & Allenheld, 1985); Secession: The Morality of Political Divorce (Westview Press, 1991); and Justice, Legitimacy, and Self-determination: Moral Foundations for International Law (forthcoming, 2003). Michael Byers is Associate Professor of Law at Duke University. He was recently the Peter North Visiting Fellow at Keble College and the Centre for Socio-Legal Studies, Oxford University. He is the author of Custom, Power and the Power of Rules (Cambridge University Press, 1999), editor of The Role of Law in International Politics (Oxford University Press, 2000) and translator of Wilhelm Grewe, The Epochs of International Law (Walter de Gruyter, 2000). He is a regular contributor to the London Review of Books. Simon Chesterman is a Research Associate at the International Peace Academy, where he directs the project on Transitional Administrations. He is the author of Just War or Just Peace? Humanitarian Intervention and International Law (Oxford University Press, 2001) and the editor of Civilians in War (Lynne Rienner, 2001). Before joining the International Peace Academy, he worked for the Office for the Coordination of Humanitarian Affairs in Belgrade, Yugoslavia, and at the International Criminal Tribunal for Rwanda. Tom Farer, a former president of the University of New Mexico and the Inter-American Human Rights Commission, is currently Dean of the Graduate School of International Studies at the University of Denver and vii

7 viii list of contributors Director of its Center for China United States Cooperation. He is an honorary professor at Peking University and a member of the editorial boards of the American Journal of International Law and the Human Rights Quarterly. A former fellow of the Carnegie Endowment for International Peace, the Council on Foreign Relations, and the Smithsonian s Wilson Center, he has served as special assistant to the General Counsel of the Department of Defense and to the Assistant Secretary of State for Inter- American Affairs. His most recent book is Transnational Crime in the Americas (Routledge, 1999). Thomas M. Franck is Murry and Ida Becker Professor of Law and Director of the Center for International Studies at New York University Law School. He is the author of numerous books and articles on international and comparative law, and teaches in both fields. His most recent work, Recourse to Force: State Action Against Threats and Armed Attacks, will be published by Cambridge University Press in He has also acted as legal adviser or counsel to many governments, including Kenya, El Salvador, Guatemala, Greece, and Cyprus. As an advocate before the International Court of Justice, he has successfully represented Chad and recently represented Bosnia in a suit brought against Yugoslavia under the Genocide Convention. Professor Franck currently serves as a judge ad hoc at the International Court of Justice. J. L. Holzgrefe is a Visiting Research Scholar in the Department of Political Science, Duke University. He is a former Lecturer in International Relations at the University of St. Andrews, Scotland and visiting scholar at the Center of International Studies, Princeton University, the Center for International Affairs, Harvard University, and elsewhere. He was educated at Monash University, Melbourne, Australia and Balliol College, Oxford University, England. He has published on the history of international relations thought. Michael Ignatieff is Carr Professor of the Practice of Human Rights at the Kennedy School of Government, Harvard University. He served as a member of the Independent International Commission on Kosovo and the International Commission on Sovereignty and Intervention and is the author of a trilogy of books on ethnic war and intervention, as well as a biography of Isaiah Berlin. His most recent book is Human Rights as Politics and Idolatry (Princeton University Press, 2001).

8 list of contributors ix Robert O. Keohane is James B. Duke Professor of Political Science, Duke University. He is the author of After Hegemony: Cooperation and Discord in the World Political Economy (Princeton University Press, 1984), for which he was awarded the second annual Grawemeyer Award in 1989 for Ideas Improving World Order. He is also co-author (with Joseph S. Nye, Jr.) of Power and Interdependence (Addison-Wesley, third edition 2001), and co-author (with Gary King and Sidney Verba) of Designing Social Inquiry: Scientific Inference in Qualitative Research (Princeton University Press, 1994). He was president of the International Studies Association, , and the American Political Science Association, He is a fellow of the American Academy of Arts and Sciences and has been the recipient of a Guggenheim fellowship. JaneE.Stromseth is Professor of Law at Georgetown University Law Center. She teaches in the fields of international law and constitutional law. She is the author of The Origins of Flexible Response: NATO s Debate Over Strategy in the 1960s (Macmillan, 1988), and she has written widely on constitutional war powers and on various topics in international law. She has served in government as Director for Multilateral and Humanitarian Affairs at the National Security Council, and as an Attorney-Adviser in the Office of the Legal Adviser in the Department of State. She is editing a book on accountability for atrocities (forthcoming, Transnational Publishers, 2003). Fernando R. Tesón is the Tobias Simon Eminent Scholar Professor of Law at Florida State University, and Permanent Visiting Professor, Universidad Torcuato Di Tella School of Law, Buenos Aires, Argentina. He is the author of Humanitarian Intervention: An Inquiry into Law and Morality (Transnational Publishers, second edition 1997) and A Philosophy of International Law (Westview Press, 1998), as well as numerous articles including, most recently, Self-Defeating Symbolism in Politics (with Guido Pincione) which appears in the Journal of Philosophy, December Before entering academia, he was a diplomat for the Argentine Foreign Ministry in Buenos Aires for four years, and Second Secretary at the Argentine Embassy in Brussels for two years.

9 ACKNOWLEDGMENTS This volume would not have been possible without the involvement of many institutions and individuals whose names do not appear in the list of contributors. First, we thank the institutions that provided financial support for our conferences: the Kenan Institute for Ethics at Duke University, the Carr Center for Human Rights Policy at Harvard University, and the Minda de Gunzberg Center for European Studies at Harvard University. We are particularly grateful to the leaders of these institutions: Elizabeth Kiss of the Kenan Institute, Michael Ignatieff of the Carr Center, and Peter A. Hall of the Center for European Studies. We are equally grateful to their supporting staff members, who organized our meetings. Lisa Eschenbach, Laurie Calhoun, and Abigail Collins of the Center for European Studies deserve particular thanks for organizing the large conference that was held at Harvard University in January We also particularly thank Camille Catenza of the Carr Center staff, who organized the conference at the Carr Center in September 2001, and Jill Clarke and Sarah B. Sewell of the Carr Center staff. Equally important were those scholars who wrote memos or papers for our conferences, or who served formally or informally as commentators, but who did not write chapters for this volume. Their ideas and insights had an impact on many of the chapters, and on the organization of the volume as a whole; indeed, we may not even be aware of the extent to which our thinking has been influenced by them. These scholars include Charles R. Beitz, Antonia Handler Chayes, Lori Fisler Damrosch, Jack Donnelly, Peter A. Hall, J. Bryan Hehir, Bruce Jentleson, Elizabeth Kiss, Stephen D. Krasner, Dino Kritsiotis, Julie Mertus, Sean D. Murphy, Terry Nardin, Joseph S. Nye Jr., Louise Richardson, John Gerard Ruggie, Jerome Slater, Anne-Marie Slaughter, Thomas G. Weiss, and Nicholas J. Wheeler. This is truly a who s who of international law and institutions, and we are grateful to these individuals for generously offering their time and thought xi

10 xii acknowledgments to this project. We also appreciate the presence and participation at the January conference of Karen Alter, Ina Breuer, Ioannis Evrigenis, Helen Fein, Samuel Houshower, Nancy Kokaz, Jens Meierhenrich, Andrew Moravcsik, Samantha Power, Zachary Shore, and Michael Werz. We appreciate the efforts of Finola O Sullivan, our wonderfully efficient and supportive commissioning editor at Cambridge University Press. We also wish to thank Treena Hall, Ms O Sullivan s assistant, and Diane Ilott, our copy-editor. In his capacity as co-editor Robert Keohane thanks Jeff Holzgrefe for providing the basic design for the cover. One of the pleasures of working together on a project is developing a friendship. The two of us have intervened in each others lives over the past two years interventions that we have found enriching. We have played equal but complementary roles in defining the scope of the enterprise; selecting and coaxing authors, editing draft chapters, sometimes quite intrusively; and making final judgments on the quality of potential contributions. Our contributors, and some of the other participants in our conferences, may sometimes have regarded us as the Corinthians portrayed the Athenians: they were born into the world to take no rest themselves and give none to others. 1 We, however, have learned from the process and have taken pleasure in it, and we hope that our readers will benefit as well. J. L. Holzgrefe and Robert O. Keohane Durham, North Carolina 5 March Thucydides, The Peloponnesian War, Book I, ch. III (Modern Library, New York, 1951), p. 40.