The argument over Iraq #3

This post continues the series introduced here and begun here. In what's gone before, I've set aside as being misdirected the anti-war argument that one could not consistently favour the overthrow of the Saddam Hussein dictatorship without recommending military interventions against (all) other dictatorships. The reason the argument was misdirected, I said, was because the key thing for (I would think) the great majority of those who supported the Iraq war on regime-change, humanitarian grounds - certainly for myself - was not that the regime in question was a dictatorship but that it lay beyond a much worse moral threshold. I go on now to speak about the nature of this threshold.

It was well captured earlier this month in an article in the New York Review of Books by Peter W. Galbraith (via Marc Cooper):

Iraq is free from Saddam Hussein and the Baath Party. Along with Cambodia's Pol Pot, Saddam Hussein's regime was one of the two most cruel and inhumane regimes in the second half of the twentieth century. Using the definition of genocide specified in the 1948 Genocide Convention, Iraq's Baath regime can be charged with planning and executing two genocides - one against the Kurdish population in the late 1980s and another against the Marsh Arabs in the 1990s. In the 1980s, the Iraqi armed forces and security services systematically destroyed more than four thousand Kurdish villages and several small cities, attacked over two hundred Kurdish villages and towns with chemical weapons in 1987 and 1988, and organized the deportation and execution of up to 182,000 Kurdish civilians.

In the 1990s the Saddam Hussein regime drained the marshes of southern Iraq, displacing 500,000 people, half of whom fled to Iran, and killing some 40,000. In addition to destroying the five-thousand-year-old Marsh Arab civilization, draining the marshes did vast ecological damage to one of the most important wetlands systems on the planet. Genocide is only part of Saddam Hussein's murderous legacy. Tens of thousands perished in purges from 1979 on, and as many as 300,000 Shiites were killed in the six months following the collapse of the March 1991 Shiite uprising. One mass grave near Hilla may contain as many as 30,000 bodies.

In a more lawful world, the United Nations, or a coalition of willing states, would have removed this regime from power long before 2003.

Mark the final sentence here. Note particularly: 'In a more lawful world...'; 'the United Nations'; 'a coalition of willing states'.

Even though there may be those who will want to expand Galbraith's pairing of Pol Pot's and Saddam's regimes by the addition of other extremely 'cruel and inhumane' candidate regimes, the moral substance of the point he makes in the above passage shouldn't need to be argued amongst serious-minded people. This was one of the very worst of regimes in recent decades.

Consequently, the overriding of the principle of national sovereignty was justified, if it was, not because Saddam Hussein was a dictator but because his regime fell the wrong side of a moral threshold of extreme inhumanity. That should have de-legitimized it as an acceptable member of the community of nations.

In a post I wrote in early March entitled Sovereignty and Humanity, I put this point as follows:

There is an established lineage of moral thinking about international affairs, including thinking specifically within the tradition of international law, that respect for national sovereignty, as important as it is, does have its limits. These limits are set high. They do not permit one state to invade another merely because the former disapproves of the latter's internal policies, or because 'we' don't share some of 'their' values or customs or practices, or because some of those strike us as, or indeed are, bad. However, beyond a certain threshold of what I will call, for short, basic humanity, where a state has begun to violate on a large scale some of the most basic rights and/or needs and/or requirements that go with any kind of tolerable existence, then that state is no longer to be seen as enjoying the protection of the principle of national sovereignty. [Italics here added.]

At the time I made this argument Chris Young - on his old site See Why? - although expressing a measure of agreement with what I was saying, took me to task. In appealing to 'an established lineage of moral thinking about international affairs', he said, I passed over the fact that...

the tradition sets the bar higher than he [i.e. NG] apparently wants it. The tradition has always insisted that sovereignty only be compromised by an ongoing and massive humanitarian crisis'.

Chris is wrong about this; I mean about my appeal to the tradition. From day two on this blog I have been quite explicit that, in invoking the lineage of international law discourse about humanitarian intervention, I was not claiming the backing either of the current state of international law itself or of some putatively authoritative, or universally consensual, strand within the literature more broadly - within 'opinio juris'. I'll come back to that shortly. Chris wasn't necessarily to know it: as goes for any blogger, he isn't obliged to read every post I've written in order to comment on any post I've written. But by change of positional perspective, I, equally, am not obliged to say everything relevant to a theme in every post I make about that theme. This applies especially to the Iraq war, which I think I can say without fear of contradiction has hitherto been the number one political preoccupation at normblog. I'm entitled to assume some continuity of argument here, by virtue of which I may take certain things for granted if I've already dealt with them, and a fortiori if I've dealt with them more than once.

In the post The War in Iraq (July 29, old site), which marks my first written public entry into the debate about the war, I made it plain that, because the legal right of humanitarian intervention was disputed, my own argument would not rely on it, but would be based on a moral right of humanitarian intervention (which I am happy to defend against all comers). A couple of weeks later, in a post directly on the topic of humanitarian intervention (August 12, old site) and in which I discussed an article by David Clark in the Guardian, I directly addressed the issue which Chris remonstrates with me for not mentioning on the later occasion.

They [Clark's specified requirements for humanitarian intervention] would mean that so long as a regime wasn't committing genocide at the moment, but had finished doing so, or just finished doing so; and that any regime which could massacre large numbers of people quickly enough; and that regimes with a perfectly regular flow of victims going into torture chambers and not coming out of them alive, and of people with their tongues, or their ears, or their hands cut out or off, and of people raped, beaten, starved, or bereaved by the foregoing – that such regimes would be invulnerable to humanitarian intervention from outside powers because of the absence of an 'immediate crisis'. Clark's criteria – 'what the Canadian-sponsored international commission on intervention and state sovereignty (ICISS) has called "threshold and precautionary criteria" to impose limits on the right to intervene' – aren't acceptable. The international system and international law need to move forward from that.

So the ideal-critical character of the norms and threshold which I invoke - 'ideal-critical' in the sense of referring, not to any already-established or indisputably authoritative set of criteria, but to a set I would advocate as morally defensible - is not something I've ever sought to make a secret of or evade. At the same time, however, nor did I just suck them out of my thumb. They make up a well-known strand within the tradition of discussion and of doctrine to which I appeal. In an early post in the series I did on the concept of crimes against humanity (see CAH 1 - August 18, old site) - and my work on this concept has significantly shaped my thinking about the Iraq war - I allude to that strand, and the circumstances licensing humanitarian intervention, thus:

'[i]f a tyrant... practises atrocities towards his subjects, which no just man can approve' (Grotius); 'if tyranny becomes so unbearable as to cause the Nation to rise' (Vattel); in pursuit of a 'higher policy of justice and humanity' (Harcourt); 'in behalf of a grievously oppressed people, which has never amalgamated with its oppressors as one nation' (Creasy); 'when a state… becomes guilty of a "gross violation" of the rights of humanity' (Engelhardt); 'where the general interests of humanity are infringed by the excesses of a barbarous and despotic government' (Wheaton). [Source: Jean-Pierre L. Fonteyne, 'The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity Under the U. N. Charter', California Western International Law Journal 4 (1974), 203-70, at pp. 214-22.]

Now, of course, the key problem is to translate the kind of broad and sweeping phrases just quoted into a more concrete list of empirically specifiable criteria that would enable us to distinguish situations which do, from situations which don't, justify intervening on humanitarian grounds. This is a demanding task and I don't pretend to be able to accomplish it just like that for the purposes of a blog post. But I will offer two criteria as arguably justifying humanitarian intervention by external powers in the affairs of a sovereign nation.

(1) Where a state is on the point of committing (or permitting), or is actually committing (or permitting), or has recently committed (or permitted) massacres and other atrocities against its own population of genocidal, or tendentially genocidal, scope.

(2) Where, even short of this, a state commits, supports or overlooks murders, tortures and other extreme brutalities such as to result in a regular flow of thousands upon thousands of victims.

It should be obvious from the way I led up to this proposal that it is provisional. The formulation of (1) and (2) could doubtless be improved; and the two criteria would certainly need to be supplemented. Also, they don't justify humanitarian intervention (in every relevant case) regardless of all other considerations. Those qualifications made, I would say that (1) here - all by itself - certainly provides adequate prima facie grounds for a humanitarian intervention; and I think (2) - all by itself - is also strong enough to do this; though, because not as strong as (1), it will obviously have to meet a greater volume of counter-argument. The regime of Saddam Hussein fell foul of both (1) and (2).

In the next post in this series, I'll say why I think the criteria I've proposed are better than the requirement of immediate and massive humanitarian crisis referred to by Chris Young, argued for by David Clark, and embraced early this year by Kenneth Roth - for Human Rights Watch - amongst others of similar mind.