Westphalia From Below

Humanitarian Intervention and the Myth of 1648

Thomas Peak, Thomas Peak

• Publisher: Hurst Publishers
• Year: 2021
• Print ISBN: 9781787383920
• eBook ISBN: 9781787386341
• Topic: History
• Subtopic: Military & Maritime History
• Index: History

An original contribution to international ethics and humanitarian intervention, Westphalia From Below draws on history and IR theory to offer a fresh analysis of an insufficiently understood subject. This new history of the lead-up to 1648 exposes the mythical and problematic nature of the Peace of Westphalia and its implications for international politics, questioning the impoverished visions of this landmark treaty that influence IR theory and humanitarian protection to this day.

IR is infused with perspectives from the humanities based on reconstructions of the mentalities of the Thirty Years’ War. Scholars tell us that the Westphalia settlement instituted an absolutist understanding of sovereignty as a right and a strict principle of non-intervention, which was only later displaced by the ‘radical innovation’ of humanitarian intervention—but Thomas Peak exposes this myth as a fabrication that cannot sustainably be upheld as a normative precept. He shows from the ground up that, in fact, Westphalia established an order grounded in human dignity, in which sovereignty and intervention were not opposed. This true legacy of Westphalia has important and valuable connections with recent conceptions of international politics, particularly the legitimacy of intervention on humanitarian grounds. Peak’s study is as relevant as it is refreshing.

1

HUMANITARIAN INTERVENTION

I wish I were dead if any man will not affirm that humanity itself
was utterly extinguished in that bloody and brutish age.

Justus Lipsius (1547–1606)¹

Responding to atrocity

In the general sense, mass atrocities are crimes against humanity: ‘a crime so heinous that it is “against humanity” because the very fact that a fellow human being could conceive and commit it demeans every member of the human race, wherever they live and whatever their culture or creed’.² All persons are in some way wounded by these events. ‘Insofar as I identify with human-kind, damage that is done on it is also damage done on me … when a crime against humanity occurs … I am damaged.’³ And when atrocities occur, outside intervention, a violation of state sovereignty, will sometimes be the only feasible mechanism for ending them. Sierra Leone and Cambodia are just two examples of when this happened. The counter example of Rwanda is an unfortunate reminder, as if one is needed beyond the ‘World’ section of the daily newspaper, that sometimes those with the power to act will not. Of course, nobody knows what would have happened if a timely and genuine humanitarian intervention had been mounted in Rwanda. But those on the ground, who smelt the air rotten with death and encountered things unspeakable, believed that many lives could have been saved. Besides, it is beyond my imagination to envision how the situation could have been made at all worse.⁴ Politics, fear of unknown consequences, aversion to responsibility, and even indifference to the ‘other’ will condemn people to the most appalling deaths imaginable. And, as indicated by the Cambodian torture guide, the world will sometimes abandon people to unimaginable fates worse than death. Indeed, genocide itself might just be ‘the hardest [subject] for humans to conceive’.⁵

Humanitarian intervention is the highly contested project of last resort. Describing a response to these moments when politics has descended into the mire, when all else fails, the idea and practice of humanitarian intervention is fundamentally attached to two rather paradoxical assertions. Firstly, some crimes are beyond humanity. They are not justifiable in any way. The commission of such atrocious acts can only be criminal, evil, in all of the various dimensions of the word. War and killing may be justified, but mass atrocities never can be. Under any circumstance. Secondly, sometimes in the real world people—human beings who love, like, and feel—nonetheless do commit such crimes. The inhuman is human, all too human.

It is important to be clear about what is at stake when we talk about humanitarian intervention, as it is common knowledge how rhetorics of humanitarianism are present in the justification for virtually all contemporary wars, on both sides. Many aid and emergency assistance agencies reject the phrase itself. To them, the prospect of tarnishing ‘humanitarianism’ with any military associations, even those within the strictest of contingencies, is anathema,⁶ and although some agencies do condone such eventualities in principle, they jealously guard the term’s cachet.⁷ And the question of what exactly humanitarian intervention is, is highly contested. For Jennifer Welsh, ‘one of the greatest analytical challenges posed by humanitarian intervention is the variation in how it is defined’.⁸ This leads to a confusion of terms, one which has profound consequences for global efforts to address mass atrocities. Marking a clear differentiation from two related international practices—liberal intervention and R2P—a precise, new understanding clarifies the remit of humanitarian intervention.

Humanitarian intervention is the timely and decisive utilisation of proportional and cross-border military force with human protection intent; humanitarian interveners comply, as far as is feasible, with principles of impartiality and neutrality amongst parties within the target state and take extreme precautions against collateral damage; action is a last reasonable response to ongoing or imminent genocide, war crimes, ethnic cleansing, and crimes against humanity, occurring when the government of the target state is manifestly failing to exercise its Responsibility to Protect, and without meaningful consent or Security Council approval.

R2P was the international community’s ineffective response to the Annan Dilemma. And despite continued misunderstanding (even by some learned scholars),⁹,¹⁰ it is well-established that Responsibility to Protect is not humanitarian intervention repackaged.¹¹ The terms ‘humanitarian intervention’ and ‘liberal intervention’, however, are generally used interchangably. No theoretical distinction has yet been made between the two, giving rise to a conceptual difficulty. This failure allows for the confusion of very different positions. Because liberal intervention encompasses a far broader programme of democracy promotion and international social engineering. Paying attention to the logics underpinning these two modes of intervention goes beyond semantics; to peer inside in fact reveals the production of divergent conceptions of intervention.

R2P and the Annan Dilemma

Injustice often arises also through chicanery, that is, through an over-subtle and even fraudulent construction of the law … Through such interpretation also a great deal of wrong is committed in transactions between state and state.

Cicero, 44 BCE¹²

More than two decades ago, in the wake of the world’s inadequate response to the mass atrocities committed in Rwanda and Kosovo, then UN Secretary General Kofi Annan presented the General Assembly with his famous dilemma. It is worth stating at length:

The inability of the international community in the case of Kosovo to reconcile these two equally compelling interests—universal legitimacy and effectiveness in defence of human rights—can only be viewed as a tragedy. It has revealed the core challenge to the Security Council and to the United Nations as a whole in the next century: to forge unity behind the principle that massive and systematic violations of human rights—wherever they may take place—should not be allowed to stand. The Kosovo conflict and its outcome have prompted a wide debate of profound importance to the resolution of conflicts from the Balkans to Central Africa to East Asia. And to each side in this critical debate, difficult questions can be posed.

To those for whom the greatest threat to the future of international order is the use of force in the absence of a Security Council mandate, one might ask—not in the context of Kosovo—but in the context of Rwanda: If, in those dark days and hours leading up to the genocide, a coalition of States had been prepared to act in defence of the Tutsi population, but did not receive prompt Council authorization, should such a coalition have stood aside and allowed the horror to unfold?

To those for whom the Kosovo action heralded a new era when States and groups of States can take military action outside the established mechanisms for enforcing international law, one might ask: Is there not a danger of such interventions undermining the imperfect, yet resilient, security system created after the Second World War, and of setting dangerous precedents for future interventions without a clear criterion to decide who might invoke these precedents, and in what circumstances?¹³

A profound and moving challenge indeed.

Published weeks after 9/11, the report of the group of eminents convened to answer Annan, the International Commission on Intervention and State Sovereignty (ICISS), went to great lengths to placate a Global South jealous of the imagined form of sovereign authority handed down by the Myth of 1648. The term ‘humanitarian intervention’ was not used in the final report; it was claimed that sovereignty was being ‘reimagined’, and states were requested to willingly participate in this process of remaking sovereignty to include responsibilities towards the people over whom they hold authority. The Myth was taken as the basic starting point, and the idea that Westphalia had ‘institutionalised indifference’ to the mass slaughter of innocents has been put forward by several members of the Commission.^{14, 15, 16} Thus, sceptics are encouraged to believe that developing states are foregoing a privilege instrumental to European state development, and one which goes a long way to explaining the strength and wealth of contemporary Western societies.¹⁷ The report embedded military action within a wide continuum of measures, to firmly emphasise the element of last resort. In a short section, the issue of Security Council intractability was addressed.¹⁸ Three options were put on the table: to fall back onto the ‘Uniting for Peace’ procedure, whereby the General Assembly can convene an Emergency Special Session to assume a residual responsibility for peace and security when the Security Council fails to discharge its responsibility; action by a regional or sub-regional organisation within the sphere of its jurisdiction; and, finally, states acting outside of their regional organisation can request ex post facto authorisation from the Security Council.

R2P was endorsed by the monumental World Summit of 2005, the largest ever gathering of heads of state and government. But, for the ICISS co-chair, former Australian foreign minister Gareth Evans, ‘the final outcome was hugely disappointing. World leaders failed to grasp the historic opportunity before them, and both the UN and the world are worse off for it’.¹⁹ The reason for his dismay is the fracturing which occurred in the process of the project’s passage to adoption at the Summit. Two versions of R2P exist, the ICISS report and the form accepted in 2005. This second version, ‘R2P Lite’, differed fundamentally from the original proposal. This R2P is extolled in three paragraphs from the Summit’s Outcome Document:

138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.

139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.

140. We fully support the mission of the Special Adviser of the Secretary–General on the Prevention of Genocide.

This careful, lawyerly wording represents nothing less than a drastic departure from the ICISS document, and one of grave consequence. In the first instance, the product of the World Summit omitted any criteria to guide decision-making on the use of force; the threshold at which responsibility is transferred from the state to the international community was raised from ‘unable and unwilling’ to ‘manifestly failing’ to protect. The broader definition of threshold conditions envisioned by the ICISS, ‘large scale loss of life’, which explicitly could arise from ‘state neglect’ and ‘large scale ethnic cleansing’ was narrowed to incorporate only the four specific crimes of genocide, war crimes, ethnic cleansing, and crimes against humanity. In particular, this has had serious consequences in the ensuing, yet still unfinished, contestations over practical implementation.²⁰

Chiefly, however, the (albeit weak) engagement with the issue of Security Council veto power found in the ICISS report was utterly evaded at the World Summit. No space was fashioned for action outside of Security Council authorisation, and all talk of agreeing on conduct to restrain use of the veto was dropped. Ultimately, the Responsibility to Protect was squeezed by the more general failure of Security Council reform. Thus, in the eyes of many, Responsibility to Protect was removed of its teeth. It became a kind of hollow statement to which everybody can pay lip service without incurring any political cost whatsoever.²¹ As Bellamy has made clear, the outcome document meant, in essence, nobody was actually committed to doing anything. The Security Council declares itself prepared only to ‘stand ready to act’, in stark contrast to the hopes of the post-Cold War period, and the language of consideration on a ‘case-by-case’ basis reflects a ‘deliberate attempt to water down the Security Council’s responsibility to protect’.²²

This was grist to the mill of the sceptics. In the splintering away of the Responsibility to Protect, particularly in the face of such concerted global engagement, they see validation of their claims that it was all hocus-pocus to begin with.²³ And, as it is this second Responsibility to Protect²⁴ which international society has moved forward with, the initiative has been seen as hindering rather than advancing the aspirations of a ‘more humane humanity’.²⁵

Ultimately, the Responsibility to Protect, for all its merits, did fail in its basic task of resolving the Annan Dilemma. However, the reverse of this coin is an evolving and hig...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Dedication
• Contents
• Westphalia From Below Photos
• Acknowledgements
• List of Illustrations
• A Prelude: Facing Hell
• Introduction
• 1. Humanitarian Intervention
• 2. Dignity
• 3. The Westphalian Epoch
• 4. The Westphalian Mentalities
• 5. Imagining Order
• 6. Justifying Humanitarian Intervention
• Once More
• Notes
• Bibliography
• Index
• Back Cover