What is remedial intervention?

While the planned attack on Syria now seems to be deferred, the administration’s arguments supporting it will likely resurface. These arguments have admittedly been somewhat stuttering. Yet they will almost inevitably remain resources to be pulled up and reused, sooner or later. What can be said about the intervention’s purported justification from a human rights perspective? And perhaps more to the point, what would that perspective be?

When Barack Obama laid out his “red line” last year, he appealed to an absolute prohibition. The same red line later grounded the view that Security Council authorization is not required for military intervention in Syria. We were told that this would not be a war. Instead, the attack on Syria was conceived as a punitive remedy for a grave violation of human rights, quite an unusual proposition.

Some straightforwardly rejected the President’s theory, viewing the prospect of an attack on Syria without Security Council authorization as simply illegal. But with what might be called “remedial intervention,” Obama’s proposal was not entirely unprecedented. “The justifiable causes generally assigned for war are three,” wrote Hugo Grotius in his 1625 treatise The Rights of War and Peace: “defence, indemnity, and punishment.”

At question is an enormous conceptual gap between two incredibly influential conceptions of international law. For those who ultimately believe that only Security Council authorization can justify a non-defensive war, sovereignty remains at the foundation of international law. But Obama—and especially Samantha Power—spoke from an opposing view. According to this latter view, “human rights” are expected to provide international law’s most basic norm.

Framing the whole dilemma, as he did, in the vocabulary of an absolute prohibition, the President perhaps inadvertently raised the question: what is the proper place of a consequentialist understanding of the United States’ military plan? Absolute human rights prohibitions are often said to “brook no compromise.” A compromise of sorts is precisely what Putin has now proposed to broker.

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One perplexing aspect of the normative vocabulary of human rights is the simultaneous and sometimes alternating use of cosequentialism and absolute prohibitions: “proportionality analysis” and Obama’s “red line.”

Proportionality analysis is a kind of cognitive script, by which an adjudicator aims to ensure that the means a government employs to achieve policy do not excessively curtail rights. Though the process is often presented in slightly more elaborate terms, it boils down to a simple “balancing test”: an informal, qualitative mode of cost-benefit analysis.

Though proportionality is mostly familiar from the work of constitutional courts (generally outside of the United States), judicial branches are not alone in applying proportionality. Executive agencies too are often expected to balance policy goals against the potential violation of individual rights. U.S. courts have by and large not adopted proportionality. But cost-benefit analysis is an ordinary exercise within the administrative agencies of this country.

The diametrically opposed idea, that some human rights imperatives simply cannot be compromised, is arguably just as pervasive. It is invoked in the context of “grave” human rights violations: war crimes, crimes against humanity, or genocide. Within this orientation, it doesn’t matter what a state’s policy ends are. This class of violations can never be a legitimate means to achieve any policies at all.

Proportionality and absolute imperatives are supposed to peacefully coexist, each covering a different set of policies. But the division of labor between these seemingly separate forms of reasoning is actually quite uneasy.

As a matter of theory, they rest on completely different premises: while proportionality is consequentialist, absolute imperatives rest on a particular view of what it means to be human.

As a matter of practice, there is often a slippage between the two. Proportionality has a curious way of inserting itself through the back door. Look closely at a court’s jurisprudence or at an administrative agency’s procedures and you are likely to find it, even if in areas in which it is declared explicitly unwelcome. One such area is the regulation of torture.

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There are two completely different positions according to which proportionality, or consequentialist reasoning, should have had no room in the Syria debate.

One is centered on a concept of universal accountability, or a “responsibility to protect,” broadly conceived. According to this view, when a “red line” is crossed, a country aiming to uphold that line is obligated to take action. If diplomatic action proves ineffectual or slow, that country is obligated to take military action. During much of the debate on Syria, it seemed Obama was taking precisely this position.

This position’s strength is that it points to the way in which certain atrocities directly implicate their seemingly uninvolved spectator. Even if there is a good chance of military intervention failing, it is incumbent upon those who believe in certain absolute norms to try and do something against their violation. Thus this position lays the majority of its analytic weight on intentions. Cost-benefit analysis can only interfere with such good intentions. Ultimately, it will foster indifference towards the worst of human tragedies.

While the passions that animate this position are commendable, it is ultimately irresponsible, and even somewhat solipsistic: the only thing the intervening power really cares about is itself.

Another way of rejecting proportionality is proposing a higher bar for intervention. The question is not whether the intervention will ultimately make a given situation better or worse. As Asli Bali and Ziad Abu-Rish argued in the context of the intervention in Libya, foreign military intervention is required to realize the imperative “do no harm.”

While eliminating the requirement of Security Council authorization for war seemed to do away with any deference towards sovereignty, this position revitalizes sovereignty. It signals a preference that domestic problems be solved domestically, even if the “problem” is mass extermination of a civilian population. It reflects an awareness that intervention is never only about protecting mere survival: it is about who gets to choose the identity and structure of the next regime. Foreign military intervention would have inevitably intruded in citizens’ potential of shaping their own future—through democratic processes, or by other means. Introducing a condition under which intervention must “do no harm” resolves an inherent tension between remedial intervention and self-determination. It reestablishes the latter as the default option.

The emphasis this position introduces on domestic politics instead of consequentialist reason is a healthy measure against opportunistic or imperialistic interventionism. By restricting the number of cases in which remedial intervention would be allowed, it discourages interventions that aim to promote the interests of the intervening power. But this bar may be set too high. Military intervention is harmful by definition. The requirement to “do no harm” would disallow even interventions that aim to alleviate the conditions of civilians under attack, and actually have a chance of achieving that goal.

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On the other hand, there are two alternative answers to the question about the role of proportionality or consequentialism that do introduce it into the decisionmaking process surrounding remedial intervention.

One suggests that drawing a “red line” inevitably is the product of proportionality analysis. According to this account, a “red line” can remain binding only inasmuch as it promises more benefits than costs. This is the most radical orientation against sovereignty. It allows intervening in another country every time it is better to intervene than not to do so. Military intervention could theoretically be authorized to give Damascus streets a facelift.

This position is objectionable for precisely the same reasons that the rule of “do no harm” is somewhat compelling (though ultimately it should be rejected). It simply brushes away any preferable status that citizens may have for deciding their own future.

The last option, which seems to me the soundest, requires of a government considering remedial intervention a two-pronged test: first, the imperative violated must be perceived as an absolute one for foreign military intervention even to be considered. Second, if the absolute imperative was indeed violated, proportionality analysis is applied. In order to decide whether military intervention is indeed warranted, it is necessary to determine in a consequentialist manner whether the intervention’s benefits are expected to exceed its costs.

This is far from being easy, and may in fact be impossible. In the particular context of Syria, it poses the question: whose harm counts as harm for the purpose of this analysis? Is it the harm to the citizens of the world as a whole? Is it harm to the population of the region? Or is it only harm to Syrian citizens?

Remedial intervention can only be normatively justifiable if the answer is the latter. The only question that can make any analytical sense is the question of benefits to Syrians. In reality, Syrians are of course far from being unanimous on the right answer to this question. And one cannot simply ask for their opinion. The judgment is incumbent on the intervening power.

The benefits and costs to citizens of other countries in the region simply cannot be taken into account. Only when an imminent attack on these countries is initiated will these countries’ interests be able to justify military retaliation. In the context of Syria, it is so far simply a misplaced consideration. The interests of “our allies” invites an infinite regress, according to which the United States’ narrowest interests will in the final analysis play the main role in any decision. We would be back to the danger of an opportunistic or imperialist attack.

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The yet unclear deal developing between the United States, Russia, and Syria in fact reflects this double commitment both to an absolute imperative and consequentialist consideration. Whether it succeeds or not, it now seems like the whole trajectory of the crisis marked the administration’s movement from the first, solipsistic, position described above, to the last one, reflected in last night’s plea for time. Even if John Kerry ad-libbed the country out of war, Obama’s decision to allow Congress to decide on Syrian intervention promoted this corrective process. The lesson should be held on to, as long as possible.

 

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About Itamar Mann

Itamar Mann is the National Security Law Fellow at Georgetown Law Center. He holds an LLB from Tel Aviv University and LLM and JSD degrees from Yale Law School. His work focuses on international law and political theory. His book, Humanity at Sea: Unauthorized Migration and the Foundations of International Law, is forthcoming with Cambridge University Press in 2016.


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