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Published online by Cambridge University Press: 22 October 2021
In his impassioned No More War: How the West Violates International Law by Using ‘Humanitarian’ Intervention to Advance Economic and Strategic Interests, human rights lawyer Dan Kovalik makes the case that the recently considered responsibility to protect (R2P) doctrine, which allows for humanitarian intervention in narrowly defined circumstances, is legally and morally untenable. Humanitarian interventions of this kind, Kovalik argues, mask the true imperial interests of those who intervene and perpetuate a colonial legacy of northern domination of the global south. No More War bridges academic and popular discourse, making it an informative read for those involved in the theoretical and legal study of international relations and for policymakers in the field. Nevertheless, Kovalik's book would benefit from a sharper distinction between international norms and laws. Although the impact of the R2P documents on international law is debatable, there is little controversy that the norm surrounding humanitarian intervention has changed. Moreover, as we show, there are reasons to believe that the law has changed as well. Kovalik's book would also have benefited from omitting a number of polemical points, which may alienate readers who might otherwise agree with his core theses.
Boleslaw Z Kabala, Assistant Professor, Colorado Christian University School of Humanities and Social Sciences, Lakewood, Colorado (United States); [email protected]. Matthew Hallgarth, Associate Professor, Tarleton State University Department of Government, Legal Studies & Philosophy, Stephenville, Texas (United States).
1 Kovalik, Dan, No More War: How the West Violates International Law by Using ‘Humanitarian’ Intervention to Advance Economic and Strategic Interests (Skyhorse Publishing 2020)Google Scholar.
2 International Commission on Intervention and State Sovereignty, The Responsibility to Protect (2001), which contributed to the 2005 World Summit (see Alex J Bellamy, ‘Whither the Responsibility to Protect? Humanitarian Intervention and the 2005 World Summit’ (2006) 20 Ethics & International Affairs 143).
3 Unlike our elites, whom Kovalik characterises as pursuing empire while relying on a rhetoric of human rights and equality, the Victorians openly made claims of superiority over indigenous peoples; see Rudyard Kipling, ‘White Man's Burden’, The Times of London, 4 February 1899.
4 Kovalik (n 1) 37.
5 Charter of the United Nations (entered into force 24 October 1945) 1 UNTS XVI.
6 Kovalik (n 1) 49.
7 We refer to an international system predicated on the sovereignty of individual states, which has been traced back to the mid-seventeenth century Peace of Westphalia; see Henry Kissinger, Diplomacy (Simon & Schuster 1994) 21–27, 65–68, 76, 139, 290 and 806.
8 Universal Declaration of Human Rights, UNGA Res 217A (III) (10 December 1948).
9 UNGA Res 1514 (XV), Declaration on the Granting of Independence to Colonial Countries and Peoples (14 December 1960).
10 International Convention on the Elimination of All Forms of Racial Discrimination (entered into force 4 January 1969) 660 UNTS 195.
11 Kovalik (n 1) 101–02.
12 Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) Merits, Judgment [1986] ICJ Rep 14.
13 UN General Assembly, A More Secure World: Our Shared Responsibility: Report of the High-level Panel on Threats, Challenges, and Change (2 December 2004), UN Doc A/59/565; Kovalik (n 1) 143.
14 Kovalik (n 1) 139.
15 ibid 147–48.
16 ibid 148.
17 Convention on the Elimination of All Forms of Discrimination Against Women (entered into force 3 September 1981) UN Doc A/RES/34/180.
18 Peter Hilpold, ‘R2P and Humanitarian Intervention in a Historical Perspective’ in Peter Hilpold (ed), Responsibility to Protect (R2P): A New Paradigm of International Law? (Brill 2014) 1.
19 Bellamy (n 2) 153.
20 Hilpold (n 18) 60.
21 ibid. Hilpold cites UNSC Res 1973 of 17 March 2011 as well as UNSC/10200.
22 Garwood-Gowers, Andrew, ‘China's “Responsible Protection” Concept: Reinterpreting the Responsibility to Protect (R2P) and Military Intervention for Humanitarian Purposes’ (2016) 6 Asian Journal of International Law 89, 98CrossRefGoogle Scholar.
23 Ralph, Jason and Souter, James, ‘Is R2P a Fully-Fledged International Norm?’ (2015) 3(4) Politics and Governance 68, 68CrossRefGoogle Scholar.
24 Kersten, Mark, ‘A Fatal Attraction? The UN Security Council and the Relationship between R2P and the International Criminal Court’ in Handmaker, Jeff and Arts, Karin (eds), Mobilising International Law for ‘Global Justice’ (Cambridge University Press 2018) 142Google Scholar.
25 Jemirade, Dele, ‘Humanitarian Intervention (HI) and the Responsibility to Protect (R2P): The United Nations and International Security’ (2021) 30 African Security Review 48, 49–52CrossRefGoogle Scholar.
26 Weerdesteijn, Maartje and Holá, Barbora, ‘“Tool in the R2P Toolbox”? Analysing the Role of the International Criminal Court in the Three Pillars of the Responsibility to Protect’ (2020) 31 Criminal Law Forum 377, 403–07CrossRefGoogle Scholar.
27 Davies, Graeme AM and Johns, Robert, ‘R2P from Below: Does the British Public View Humanitarian Interventions as Ethical and Effective?’ (2016) 53 International Politics 118, 134CrossRefGoogle Scholar.
28 Todd Lindberg, ‘Protect the People’, Washington Times, 27 September 2005 (in Bellamy (n 2) fn 144).
29 Hilpold (n 18) 60.
30 Ipinyomi, Foluke, ‘Is Côte d'Ivoire a Test Case for R2P? Democratization as Fulfillment of the International Community's Responsibility to Prevent’ (2012) 56(2) Journal of African Law 151, 166–69CrossRefGoogle Scholar.
31 Thakur, Ramesh, ‘The Development and Evolution of R2P as International Policy’ (2015) 6(3) Global Policy 190CrossRefGoogle Scholar.
32 S Neil MacFarlane, Carolin J Thielking and Thomas G Weiss, ‘The Responsibility to Protect: Is Anyone Interested in Humanitarian Intervention?’ (2004) 25(5) Third World Quarterly 977, 989. They reference as highly relevant Lee Feinstein and Anne-Marie Slaughter, ‘A Duty to Prevent’ (2004) 83(1) Foreign Affairs 136; and Allen Buchanan and Robert O Keohane, ‘The Preventive Use of Force: A Cosmopolitan Institutional Proposal’ (2004) 18(1) Ethics & International Affairs 1.
33 For dissenting voices see Noele Crossley, ‘Is R2P Still Controversial? Continuity and Change in the Debate on “Humanitarian Intervention”’ (2018) 31(5) Cambridge Review of International Affairs 415; and Ralph and Souter (n 23) 68 (but Ralph and Souter admit that R2P as ‘a normative aspiration’ is ‘almost universally accepted’: ibid 68).
34 Bellamy (n 2) 166–67 (emphasis in original).
35 At least two scholars have also argued that although R2P did not create new legal requirements, it has had an impact on the interpretation of obligations in current international law; see Jennifer M Welsh and Maria Banda, ‘International Law and the Responsibility to Protect: Clarifying or Expanding States’ Responsibilities?’ (2010) 2(3) Global Responsibility to Protect 213.
36 Jack Goldsmith, ‘Is the U.N. Charter Law?’ LawFare Blog, 16 April 2018, https://www.lawfareblog.com/un-charter-law.
37 Universal Declaration of Human Rights (n 8).
38 Kovalik (n 1) 112.
39 Sonia Cordera, ‘India's Response to the 1971 East Pakistan Crisis: Hidden and Open Reasons for Intervention’ (2015) 17(1) Journal of Genocide Research 45.
40 UD Umozurike and UO Umozurike, ‘Tanzania's Intervention in Uganda’ (1982) 20 Archiv des Völkerrechts 301, 312.
41 Sondre Torp Helmersen, ‘Finding “the Most Highly Qualified Publicists”: Lessons from the International Court of Justice’ (2019) 30 European Journal of International Law 509, see 515 and 534 for references to Grotius.
42 Goldsmith (n 36).
43 Commission on Unalienable Rights, ‘Report of the Commission on Unalienable Rights’, 6 August 2020, 11, https://www.state.gov/wp-content/uploads/2020/07/Draft-Report-of-the-Commission-on-Unalienable-Rights.pdf.
44 Augustine, The City of God (Henry Bettenson trans, Penguin Books 2003); Catherine Pickstock, ‘Ascending Numbers: Augustine's De Musica and the Western Tradition’ in Lewis Ayres and Gareth Jones (eds), Christian Origins: Theology, Rhetoric, and Community (Routledge 1998) 185.
45 Hilpold (n 18) 60–61.
46 Francisco de Vitoria, ‘First Section’ in ‘The Rights of the Indians’ from De Indiis et de Iure Belli Relectiones (JP Bate trans) in JB Scott (ed), Classics of International Law (1944) (as reproduced in Arthur F Holmes (ed), War and Christian Ethics (Baker Academic 1975) 119, 125).
47 James Muldoon, ‘Francisco De Vitoria and Humanitarian Intervention’ (2006) 5 Journal of Military Ethics 128, 135–36.
48 Anthony Coates, ‘Humanitarian Intervention: A Conflict of Traditions’ in T Nardin and MS Williams (eds), Humanitarian Intervention (New York University Press 2006) 58, 65.
49 Hugo Grotius, The Rights of War and Peace (AC Campbell trans, M Walter Dunne 1901), https://oll.libertyfund.org/title/grotius-the-rights-of-war-and-peace-1901-ed#lf0138_label_022; Jonathan Scott, ‘The Law of War: Grotius, Sidney, Locke, and the Political Theory of Rebellion’ (1992) 13 History of Political Thought 565.
50 Grotius, ibid II.1.3.
51 ibid II.1.2.
52 ibid II.1.7.
53 ibid II.25.6–8.
54 ibid; consider II.25.8: ‘Though it is a rule established by the laws of nature and of social order, and a rule confirmed by all the records of history, that every sovereign is supreme judge in his own kingdom and over his own subjects, in whose disputes no foreign power can justly interfere. Yet where a Busiris, a Phalaris or a Thracian Diomede provoke their people to despair and resistance by unheard of cruelties, having themselves abandoned all the laws of nature, they lose the rights of independent sovereigns, and can no longer claim the privilege of the law of nations. Thus Constantine took up arms against Maxentius and Licinius, and other Roman emperors either took, or threatened to take them against the Persians, if they did not desist from persecuting the Christians’.
55 Evan J Criddle, ‘Three Grotian Theories of Humanitarian Intervention’ (2015) 16 Theoretical Inquiries in Law 473.
56 ibid 473.
57 Samuel Pufendorf, Two Books of the Elements of Universal Jurisprudence, https://oll.libertyfund.org/title/behme-two-books-of-the-elements-of-universal-jurisprudence.
58 Samuel Pufendorf, The Whole Duty of Man According to the Law of Nature, https://oll.libertyfund.org/title/tooke-the-whole-duty-of-man-according-to-the-law-of-nature-1673-2003#lf0217_label_779.
59 ibid II.16.11: ‘A war may be made by a person, not only for himself, but for another … And where there is no other reason, the common Relation alone of Men to Men, may be sufficient, when the Party imploring our aid is unjustly oppressed, to engage our Endeavours, as far as with Convenience we are able, to promote his Defence’.
60 Terry Nardin, ‘The Moral Basis of Humanitarian Intervention’ (2002) 16(2) Ethics & International Affairs 57, 63, 64.
61 Michael Walzer, Just and Unjust Wars (Basic Books 1977) 91, 107.
62 Brian Orend, The Morality of War (Broadview Press 2006) 35, 35–37.
63 Correspondence between Mr Webster and Lord Ashburton, https://avalon.law.yale.edu/19th_century/br-1842d.asp.
64 Kovalik (n 1) 37.
65 Freda Harcourt, ‘Disraeli's Imperialism, 1866–1868: A Question of Timing’ (1980) 23 The Historical Journal 87.
66 Robert T Harrison, Gladstone's Imperialism in Egypt: Techniques of Domination (Greenwood Press 1995).
67 Mark Tunick, ‘Tolerant Imperialism: John Stuart Mill's Defense of British Rule in India’ (2006) 68 The Review of Politics 586.
68 Calvin L Troup, ‘Augustine the African: Critic of Roman Colonialist Discourse’ (1995) 25 Rhetoric Society Quarterly 91, 101.
69 ibid 102.
70 ibid.
71 Gerald Schlabach, ‘Augustine's Hermeneutic of Humility: An Alternative to Moral Imperialism and Moral Relativism’ (1994) 22 The Journal of Religious Ethics 299, 302.
72 Charles T Mathewes, ‘An Augustinian Look at Empire’ (2006) 63 Theology Today 292, 300.
73 Kovalik (n 1) 41.
74 Hans J Morgenthau, The Struggle for Power and Peace: Politics among Nations (Alfred Knopf Inc 1978).
75 Reinhold Niebuhr, Moral Man and Immoral Society: A Study in Ethics and Politics (Westminster/John Knox Press 2013).
76 ibid especially 257–78.
77 Plato, Gorgias (Donald J Zeyl trans, Hackett 1987) 55, 483a–484c.
78 Plato, Republic (Allan Bloom trans, Basic Books 2016) 13–29, 336b–350d.
79 Thucydides, History of the Peloponnesian War, Book V Ch 17, https://www.gutenberg.org/files/7142/7142-h/7142-h.htm#link2HCH0017.
80 Warren L Holleman, ‘Reinhold Niebuhr on the United Nations and Human Rights’ (1987) 70 Soundings: An Interdisciplinary Journal 329.
81 Niebuhr argues that arrogance, selfishness and hypocrisy are systemic hallmarks of relationships between nation-states and classes. Limiting nation-states, by empowering groups of nation-states working through the administrative architecture of the UN based on professed fealty to international jurisprudence, does not necessarily lead to better human rights outcomes: Niebuhr (n 75) especially 257–78. See also Gregory J Moore, Niebuhrian International Relations: The Ethics of Foreign Policymaking (Oxford University Press 2020) 72, 105, 109–11.
82 Matthew Hallgarth, ‘Augustine's Principled Realism’ in Boleslaw Z Kabala, Ashleen Menchaca-Bagnulo and Nathan Pinkoski (eds), Augustine in a Time of Crisis: Politics and Religion Contested (Palgrave Macmillan 2021) 323.
83 Augustine (n 44) Book XIX Ch 26 890. On Augustine as a Roman patriot see Burke, John J, ‘Historical Attitude of the Church Towards Nationalism’ (1928) 14 The Catholic Historical Review 69, 71Google Scholar. The recent surge of interest in a republican Augustine also suggests interpretive proximity to patriotism; see Cornish, Paul J, ‘Augustine's Contribution to the Republican Tradition’ (2010) 9 European Journal of Political Theory 133, 145CrossRefGoogle Scholar; Lamb, Michael, ‘Augustine and Republican Liberty: Contextualizing Coercion’ (2017) 48 Augustinian Studies 119, 140–59CrossRefGoogle Scholar (particularly related to Augustine's support of the publicity of reason-giving as part of a shared political project).
84 Augustine (n 44) Book XV Ch 4; see also Book XIX Ch 12.
85 Augustine, On the Free Choice of the Will (Cambridge University Press 2010) Book I Chs 5, 9–11.
86 Augustine, Contra Faustum, Chs 74, 75 and 78, https://www.newadvent.org/fathers/140622.htm; see also Nico Vorster, ‘Just War and Virtue: Revisiting Augustine and Thomas Aquinas’ (2015) 34(1) South African Journal of Philosophy 55, 59.
87 Augustine (n 85) Book XIX.7 and 13; John Langan, ‘The Elements of St. Augustine's Just War Theory’ (1984) 12(1) The Journal of Religious Ethics 19, 24–27.
88 Douglas Kries, ‘Augustine and the Flexibility of True Justice’ in Kabala, Menchaca-Bagnulo and Pinkoski (n 82) 343–58.