Published online by Cambridge University Press: 14 June 2011
This article provides a critique of Louise Arbour's article ‘The responsibility to protect as a duty of care in international law and practice’. Proceeding through criticisms of Arbour's specific propositions, the thesis is advanced that the perverse effect of the ‘duty of care’ is to undermine political accountability and by extension, political responsibility. It is argued that this is an imperfect duty that no specific agent is obliged to fulfil. This poses insuperable problems of agency that are exposed in Arbour's efforts to actualise the doctrine. As there is no mechanism for enacting the ‘duty of care’, I argue that it will be powerful states that will determine the conditions under which the ‘responsibility to protect’ is discharged. This means that the ‘duty’ will remain tied to the prerogatives of states. In order to resolve this problem of agency, it will be shown how Arbour is forced to replace the idea of law with the principle of ‘might makes right’. The ‘duty of care’ is also shown to have regressive effects on the domestic sphere: the demand that states be made accountable to the international community ends up making states responsible for their people rather than to their people.
2 Arbour, ‘The responsibility to protect’, p. 448.
3 Ibid., p. 445.
5 Ibid., p. 448.
6 Arbour criticises the claim that we are powerless in humanitarian crises by arguing that ‘the global web of our interdependence’ makes any such claims redundant. The result is a fortuitous symmetry between the needs of security and the demands of morality: ‘indifference or inaction in the knowledge of violence, deprivation and abuse allow exclusion and resentment to fester […] conditions that will ultimately affect everybody's rights, security and welfare’ – Arbour, ‘The responsibility to protect’, p. 445. Here unspecified mechanisms of global integration function as a deus ex machina that obviates the need for argument. This allows Arbour to sidestep concrete analysis of actual conflicts. Yet the number of conflicts that have not seen intervention clearly demonstrates that intervention is not an automatic by-product of globalisation – a range of additional factors come into play before intervention actually occurs. In the second instance, Arbour contests the so-called ‘orthodoxy of non-interference’ by arguing later in her article that the ‘responsibility to protect’ is already embedded in the provisions of existing international law (Arbour, ibid., pp. 447–8). But this can only leave the reader wondering what precisely is ‘orthodox’ about the claims made by the ‘custodians of non-interference’. Arbour's suggestion that the ‘responsibility to protect’ is part of the natural growth and progress of existing international law puts her in the position of claiming the mantle of legal orthodoxy.
7 Walzer, Michael, Just and Unjust Wars: A moral argument with historical illustrations (New York: Basic Books, 2000), p. xiiiGoogle Scholar . Walzer is discussing humanitarian intervention rather than the ‘responsibility to protect’. Kok-chor Tan considers the same problem in relation to the ‘responsibility to protect’ doctrine outlined in the 2001 report The Responsibility to Protect. Tan questions whether humanitarian intervention meets the strict definition of ‘imperfect duty’ as understood by Kantian scholars. Cf. Tan, Kok-chor, ‘The Duty to Protect’, in Nardin, Terry and Williams, Melissa S. (eds), Humanitarian Intervention (New York and London: New York University Press, 2006), pp. 95–96Google Scholar . He nonetheless accepts the designation, and for the sake of consistency I will follow him in doing so.
8 Note that this point is not restricted to questions of military or coercive intervention: the basic issue is the same across the spectrum of possibilities that Arbour outlines as falling under the responsibility to protect, ranging from help, through compellance to coercion. Arbour, ‘The responsibility to protect’, p. 448.
10 Ibid. Arbour also welcomes the way in which the ‘responsibility to protect’ systematises ‘post-conflict engagement’ by the international community – an issue we shall return to below.
12 Ibid., p. 447.
13 ‘No longer holders of a discretionary right to intervene, all States are no burdened with the responsibility to take action under the doctrine of the ‘responsibility to protect.’ Ibid., p. 449.
14 Ibid., p. 449.
15 Ibid., p. 450. As we see below, Arbour's faith in these mechanisms is misplaced.
16 One-sided insofar as Arbour claims that ‘neither the advocates nor the detractors of humanitarian intervention gained a definitive upper hand’ in the debate (ibid., p. 447). If there is any truth to this claim, it is less to do with the fact that the legal arguments were equally robust on both sides as much as the fact that the doctrine of humanitarian intervention won the support of a minority of rich and powerful Western nations. To hold that a right of intervention has become an accepted part of international law is to discard a key principle of customary law: that it must be accepted evenly by a majority of its subjects, as pointed out by Jennifer Welsh: ‘non-Western legal opinion opposes this interpretation of the customary law on intervention, since it seems to suggest that certain types of practice count more than others – that is, the actions of Western states versus the stated opposition from those such as China, Russia, and India.’ Welsh, Jennifer, ‘Taking Consequences Seriously; Objections to Humanitarian Intervention’, in Welsh, Jennifer (ed.), Humanitarian Intervention and International Relations (Oxford: Oxford University Press, 2004), p. 55Google Scholar .
17 Arbour, ‘The responsibility to protect’, p. 447.
18 Bull, Hedley, ‘Introduction’, in Bull, Hedley (ed.), Intervention in World Politics (Oxford: Clarendon Press, 1986), p. 4Google Scholar .
19 Hegel, Georg Wilhelm Friedrich, Elements of the Philosophy of Right, ed. Wood, Allen W. (Cambridge: Cambridge University Press, 2000), p. 368Google Scholar . Emphasis in original.
21 For an example of this type of argument, cf. Chesterman, Simon, Just War or Just Peace? Humanitarian Intervention and International Law (Oxford: Oxford University Press, 2001) pp. 228–299Google Scholar .
23 Gowan, Peter, ‘The New Liberal Cosmopolitanism’, in Archibuigi, Daniele (ed.), Debating Cosmopolitics (London and New York: Verso, 2003), p. 52Google Scholar .
25 Arbour, ‘The responsibility to protect’, p. 454. Not least because, as we shall see, Arbour contradicts this claim later when she suggests that the doctrine exacts greater duties from powerful states.
26 Tan, ‘The Duty to Protect’, p. 86.
27 Ibid., p. 96.
28 This problem is linked to the impossibility of articulating in advance the criteria to judge when the ‘responsibility to protect’ has been breached. See Bellamy, Alex J., ‘The Responsibility to Protect and the problem of military intervention’, International Affairs, 84:4 (2008), p. 148CrossRefGoogle Scholar .
29 Arbour, ‘The responsibility to protect’, p. 450.
30 Ibid., p. 448.
31 This peculiarly cold and sterile phrase comes from the ICISS report. ICISS, The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Center, 2001), p. viiiGoogle Scholar .
32 In Kok-chor Tan's words, ‘if the duty to protect is to be a perfect duty, there must be the additional condition that an agent capable of performing the duty be identified and assigned the responsibility to act’ – Tan, ‘The Duty to Protect’, p. 86.
34 Cf. Dean, Mitchell, ‘Military Intervention as “Police” Action?’, in Dubber, Markus D. and Valverde, Mariana (eds), The New Police Science: The Police Power in Domestic and International Governance (Stanford: Stanford University Press, 2006), pp. 196–200Google Scholar and passim.
35 Former British Prime Minister Tony Blair, for example, famously described the 1999 war over Kosovo as ‘a battle between good and evil; between civilisation and barbarity; between democracy and dictatorship’. Blair, cited in Hammond, Philip, ‘The rise of the laptop bombardier’, Spiked Online (24 March 2009)Google Scholar .
36 The idea that the ‘responsibility to protect’ imposes costs in terms of duties of post-conflict engagement and reconstruction is dealt with below.
37 A danger that is even acknowledged in the ICISS report, though not by Arbour (cf. fn. 40 below). For the reality of this effect see Kuperman, Alan ‘Strategic Victimhood in Sudan’, The New York Times (31 May 2006)Google Scholar .
38 This danger is recognised by the ICISS report (ICISS, Responsibility to Protect, p. 25Google Scholar ).
39 Arbour, ‘The responsibility to protect’, p. 450.
40 Ibid. Arbour weakens her claim by expanding it to include the statutes of the international criminal tribunals for the former Yugoslavia and Rwanda – institutions notorious for their disastrous legal credentials and breach of ‘every norm of impartiality’. Toscano, Alberto, ‘Sovereign Impunity’, New Left Review, 50 (March–April 2008), p. 132Google Scholar . See more generally Laughland, John, Travesty: The Trial of Slobodan Milošević and the Corruption of International Justice (London: Pluto Press, 2006)Google Scholar . Unfortunately the problems with international criminal law are beyond the scope of this article.
41 We have no prima facie reason to join Arbour in accepting the Court's ruling as just, but the justice or otherwise of the Court's ruling is not directly relevant to the argument that I want to pursue here.
42 Arbour, ‘The responsibility to protect’, p. 453.
43 As David Chandler observes of such arguments in a different context: ‘Armed with the ability to “to identify the early stages of genocide” […] to judge “murderers before they kill”, it would seem highly likely that the demand for military-led […] interventions will rely more on prejudice than objective “justice”.’ Chandler, David, From Kosovo to Kabul and Beyond: Human Rights and International Intervention (London and Ann Arbor: Pluto Press, 2006), p. 189Google Scholar .
44 Arbour, ‘The responsibility to protect’, p. 453.
45 Ibid., p. 454.
46 Ibid., p. 455.
47 On the erosion of international equality in recent years throughout international law, cf. Kingsbury, Benedict, ‘Sovereignty and Inequality’, in Hurrell, Andrew and Woods, Ngaire (eds), Inequality, Globalisation and World Politics (Oxford: Oxford University Press, 1999)Google Scholar .
48 Kingsbury, ‘Sovereignty and Inequality’, p. 91.
49 Arbour, ‘The responsibility to protect’, p. 455.
50 Ibid. Whether this means that we have more unassailable evidence due to global telecommunications, or that we should relax our demand for firm evidence due to an overwhelming proliferation (of potentially contradictory) reports, is unclear.
52 Arbour, ‘The responsibility to protect’, p. 448.
54 Ignatieff, Michael, Empire Lite: Nation-Building in Bosnia, Kosovo and Afghanistan (London; Vintage, 2003), p. 17Google Scholar .
55 Hardt, Michael and Negri, Antonio, Empire (Cambridge, MA and London: Harvard University Press, 2000), pp. xii–xiiiGoogle Scholar . Hardt and Negri's description is evocative even if their explanatory power is limited. Cf. McLemee, Scott, ‘Empire Burlesque’, Book Forum (Dec/Jan 2009)Google Scholar .
57 One frequently mooted solution to the ‘agency condition’ is a standing cosmopolitan or humanitarian defence force independent of state interests. While such proposals are beyond the scope of the article, one observation can be made, apart from questions of their improbability. It is far from clear that proposals for standing cosmopolitan forces of whatever variety would go much further in resolving the ‘ageny condition’. On the contrary, such a force could exacerbate the agency problem, as is suggested by John T. O'Neill and Nicholas Rees:
A [standing] force of this kind would very likely be regarded as a mercenary body willing to, and capable of, performing any kind of military task. Since no […] state would bear direct political responsibility for it, everyone would opt out of obligations and frivolously call for its deployment in any small conflict around the world. Far from the answer to global concerns, a UN Foreign Legion would be another excuse for […] states to do nothing. (UN Peacekeeping in the Post-Cold War Era, (London: Routledge, 2005), p. 205).
Although O'Neill and Rees are surveying proposals for a standing UN peacekeeping force, the issue would be the same for a standing humanitarian defence force (in any case, there are now significant humanitarian expectations placed upon UN peacekeepers – cf. Bellamy, Alex J., Responsibility to Protect: The Global Effort to End Mass Atrocities (Cambridge: Polity, 2009), pp. 159–160)Google Scholar .
58 Arbour, ‘The responsibility to protect’, p. 448.
60 Another variant on this theme is ‘traditional’ or ‘Westphalian’ sovereignty. Though the epithets may vary, they function in essentially the same way.
61 Loughlin, Martin, ‘Ten Tenets of Sovereignty’, in Hart, Neil (ed.), Sovereignty in Transition (Oxford: Hart Publishing, 2003), p. 73Google Scholar . Emphasis added.
62 On the relational character of political power, Loughlin notes ‘The relational aspect of the political conception of sovereignty is mainly concerned with elaborating the ways in which constitutional arrangements serve state-building purposes. This feature of political sovereignty is the product of the peculiarly communal character of political power, which requires that individuals act in concert.’ Ibid., p. 71.
64 On the autonomy of the political, see Loughlin, ‘Ten Tenets of Sovereignty’, p. 56.
66 Arbour, ‘The responsibility to protect’, p. 448.
67 The phrase is taken from Žižek, Slavoj, ‘NATO: the Left Hand of God?’, Nettime (29 June 1999)Google Scholar .
68 Marx, Karl, The Eighteenth Brumaire of Louis Bonaparte (London: Lawrence and Wishart, 1934), p. 109Google Scholar . Marx is here relating the form of Louis Napoleon's mid-nineteenth century dictatorship to the socio-political fragmentation and weakness of the French peasantry that supported him.
69 Even today, nominally independent Kosovo is an international protectorate. Cf. Cunliffe, Philip, ‘Kosovo: the obedient child of Europe’, Spiked Online (18 February 2008)Google Scholar .
70 Arbour, ‘The responsibility to protect’, p. 450.
71 Webster, Philip, ‘Tony Blair: “I wanted war – it was the right thing to do”’, The Times (17 November 2007)Google Scholar .
72 Indeed, the formation of institutions and policy around the precautionary principles of preparing for extreme scenarios is a problem in itself – the problem of political exceptionalism that vitiates the whole debate around intervention and the responsibility to protect. It is incumbent on us to think through not only how we should respond to exceptional scenarios, but also in the words of Jef Huysmans, reflect on how ‘claims of exceptionality’ function politically. How do such claims ‘structure [the] stakes and positions in international struggles for legitimacy and authority?’ – Huysmans, Jef, ‘International Politics of Insecurity: Normativity, Inwardness and the Exception’, Security Dialogue, 37:1, (2006), p. 12CrossRefGoogle Scholar . Alas, for reasons of space, this is a problem that I tackle elsewhere: Philip Cunliffe, ‘The Responsibility to Protect as a Practice of Political Exceptionalism’. Paper presented to LSE Forum in Legal and Political Theory (17 March 2010).
74 For example, see Joshua Kurlantzick's account of the vagaries of the international criminal tribunals in contemporary Cambodia, and of the legacy of political authoritarianism inherited from the Vietnamese occupation of that country. Kurlantzick, Joshua, ‘In Pol Pot Time’, London Review of Books (6 August 2009)Google Scholar .
76 For a critique of this reflexive depiction of a conflict in Manichean terms, cf. Mamdani, Mahmood, ‘The Politics of Naming: Genocide, Civil War, Insurgency’, London Review of Books (8 March 2007)Google Scholar .
77 The way in which one proposition segues into the other is usually through claims for political exceptionalism. Cf. fn. 66 above.
78 This is the argument advocated by Simon Chesterman. Cf. f n. 21 above.
79 The question of whether or not we accept a particular claim made for political exceptionalism is not necessarily the same as providing an account of why claims are systematically advanced in the form of political exceptionalism. The latter is beyond the scope of this article. Cf. fn. 66 above.
81 Arbour, ‘The responsibility to protect’, p. 446.
82 See Chapter 5 in Duffield, Mark, Global Governance and the New Wars: The Merging of Development and Security (London and New York: Zed Books, 2001)Google Scholar .
83 Žižek, Slavoj, Violence: Six Sideways Reflections (London: Profile Books, 2008), p. 3Google Scholar .
85 Holbrook, Jon, ‘Humanitarian Intervention and the Recasting of International Law’, in Chandler, David (ed.), Rethinking Human Rights: Critical Approaches to International Politics (Basingstoke: Palgrave Macmillan, 2002), p. 139Google Scholar .
87 For example, cf. Väyrynen, Raimo, The Waning of Major War: Theories and Debates (Oxford, New York: Routledge, 2006)Google Scholar .
88 See the ‘Foreword’ in the ICISS' Responsibility to Protect.