Intervention in perspective: children displaced by the post-war chaos in Iraq, supported by the UN in Iraqi Kurdistan. Flickr / United Nations Photo. Some rights reserved.

Drones, controlled remotely from many miles away, routinely circle the skies above large swathes of Iraq. This is the latest iteration of intervention in the region—now targeting the self-proclaimed Islamic State (IS). Such operations have become the embodiment of US ‘counter-terrorism’ policy but the landscape of this intervention, like all others, is unique.

Over the last seven months IS has waged a war of brutality and repression across Syria and large parts of Iraq. The group also pursues a propaganda campaign unabashedly celebrating and promoting the war crimes it commits. The international response was slow from the start, remains limited and is decidedly tentative about troop deployments. Meanwhile, the atrocities continue.

The debate today about military intervention, humanitarian or otherwise, is at least as acute and urgent as at any time in recent decades. But this debate is highly complex and wrought with competing understandings of core concepts.

Legality

The legality of intervention is a crucial concern. It is typically understood as specified by chapters I (article 2) and VII (article 51) of the Charter of the United Nations, which firmly defend the sovereign equality of member states, while sanctioning war only in the respective cases of self-defence and threats to international peace and security. Additionally, intervention may be initiated by a regional organisation under chapter VIII, and can be considered legal so long as subsequent Security Council authorisation is obtained. Gareth Evans strongly argues that the UN Charter “is the only possible source of authority” for any and all interventions.

Yet broader interpretations of legal intervention, relying on customary law, have sometimes been proffered. Current actions against IS, as with Kosovo in 1999, may well fall into this category—humanitarian need is undeniable and crimes against humanity evident. Given the state of affairs in the Middle East and prevailing intervention strategies under the Obama administration, the customary-law justification appears to be the most common for action outside of the UN Charter framework. While this may avoid the pitfalls of a gridlocked Security Council, it runs the risk of creating more confusion in the realm of legality— particularly when the case for intervention is shrouded in controversy.

In 2001 the International Commission on Intervention and State Sovereignty (ICISS), chaired by Evans, developed the ‘responsibility to protect’ (R2P) doctrine, attempting to recast sovereignty as contingent upon a state’s willingness and ability to protect its citizens—to uphold their fundamental human rights. The doctrine posits that when states fail to meet this obligation the responsibility to protect individuals falls on the international community.

R2P has gradually transformed the discourse surrounding intervention and is seen by some as providing clear-cut guidance on when military force may be utilised in pressing humanitarian situations. R2P principles were adopted by the General Assembly in 2005 but the doctrine remains non-binding and does not confer legal rights; nor does it impose binding restrictions pertaining to intervention. Notably, R2P does not amend the criteria for intervention in the UN Charter—it supplements them by filling a hole and providing a further justification for intervention (still under the charter).

Thomas Weiss suggests that we ought to call the UN’s endorsement of the doctrine “R2P lite” because, unlike the original ICISS recommendations, the September 2005 summit made Security Council approval a sine qua non rather than merely highly desirable. Its invocation in Security Council resolutions has brought controversy and mounting criticism.

Charles Kupchan analyses this in relation to the NATO intervention in Libya, arguing that the operation “initially enjoyed legitimacy and legality” but, because of NATO’s over-stretching of the mandate and perceived mission overreach, it “ended up on contested ground”. As long as R2P intersects with the geopolitical interests of powerful states, the question of whether it can ever be applied systematically and impartially remains in doubt.

That R2P has been endorsed in the General Assembly, invoked by the Security Council and become ubiquitous in debates about intervention may signal a significant change in the understanding of legality and the legitimate grounds for mobilising military forces, so long as issues of impartiality can be resolved in the further articulation and entrenchment of the doctrine. This would require a more coherent and substantive account of who can and should take decisions to implement R2P, under what conditions, with what means and with what appropriate assurances of accountability. That remains some way off.

Legitimacy

A second dominant theme in debates about intervention is the issue of legitimacy. Whilst legal authorisation may create legitimacy in some instances, the two are not synonymous. Rather, legitimacy connotes whether an intervention is regarded as acceptable and/or ‘right’—be it morally or otherwise justified. Legitimacy is perhaps the most difficult concept to make sense of, yet it carries significant weight in the way one understands global order. This is a judgment that can be made by both those in positions of power and also by the many people who are affected by an intervention, ranging from the citizens of intervening states who fund intervention (in)directly to the citizens of states where interventions are made, affecting in profound ways their life chances.

Thomas Risse offers a very interesting contribution to the discussion by distinguishing between two forms of legitimacy: normative legitimacy, which addresses the “question of whether or not a particular political action can be considered legitimate according to some moral or ethical standard”; but also empirical legitimacy, which is the “factual belief by those being ruled (or being intervened in this case) that the ruling authorities (or the interveners) are justified to claim followership”. Pointedly, he argues that there is “a clear relationship between the support of external interveners by local rulers and/or populations, on the one hand, and the effectiveness of the intervention in terms of keeping or restoring the peace on the ground, on the other hand”.

This is a crucial contribution to the debate about both legitimacy and feasibility. Simply put, Risse contends that “successful” intervention requires empirical legitimacy. Yet, such arguments by no means command agreement. In this regard, Anne Orford makes an interesting point. She argues that the “turn to legitimacy” is part of an attack on legalism that can be used by powerful states to carve out space needed for interventions, whilst also maintaining a status quo in the international order. Thus, legitimacy can be hijacked by powerful interests to claim the rightful nature of an action, even if it is blatantly illegal under international law.

Legitimacy is a concept we cannot do without, yet it remains contested at its core. If one considers legitimacy in isolation from questions of legality and feasibility, an approach such as Risse’s might draw the debate closer to a common understanding. In particular, the benefit of employing an ‘empirical’ account of legitimacy is that it comes close to introducing some kind of objective measure that interventions can be considered against. However, as Orford points out, the matter is more complex when considered in relation to legality and global power structures. In this instance, legitimacy, and its pursuit, may sometimes serve to undermine the international legal code.

Feasibility

A third dimension is feasibility. While this may seem a straightforward concept it remains deeply problematic, especially in the context of the complex patterns of conflict and intervention in the 21st century.

Feasibility is, at its core, about judging the means required to achieve a particular end: the protection of civilians, the eradication of a despotic regime, providing relief to populations under severe threat. Is the use of force effective? Does it generate ‘collateral damage’ which undermines the core mission? Does it leave a legacy of violence as the norm of managing conflictual relationships? Does it undermine human-rights standards and the capacity for self-determination? Do the means destroy the end?

Michael Doyle and Camille Strauss-Kahn identify one of the many drivers of liberal interventionism as the push for democracy—and argue that the results have not been promising. Apart from the very different circumstances of the aftermath of the second world war, few Western-led interventions have issued in stable democracies.

Indeed, a strong case can be made that many have made things worse—much worse—in Afghanistan, Iraq and Libya (see Held and Ulrichsen). The reach of the Afghanistan government has been virtually reduced to Kabul plus a few metres on either side of major highways. Iraq is in further turmoil, creating a vacuum in which armed groups can expand. And Libya has become a failed state in practically every sense.

Feasibility is not only about the effectiveness of an action. Will it be implemented at all? And, if so, how, by whom and for how long? Strong UN mandates are increasingly sparse and rarely associated with the capacity to deliver successful intervention. Action can be blocked by permanent members of the Security Council, as when China has vetoed resolutions aimed at putting more pressure on Sudan on Darfur or, more recently, Russia and China have vetoed intervention in the Syrian civil war amid acute human suffering.

Anne-Marie Slaughter argues that while agreement on political and military feasibility may be difficult to reach within government, “it is magnified ten or a hundred fold” when the only way to put together a legal intervention is to involve 14 other governments, “each of which has their own political, military, and humanitarian calculations”. In short, the more state and non-state actors involved in an intervention, the more it is likely to show strains generated by multipolarity and complexity (see Hale, Held and Young, 2013).

Feasibility should not be considered in isolation from the other factors in this debate. Legality and legitimacy may be directly related to it—but in an inverse way. Exploring Yemen, Steven Zyck argues that it is those “projects which operate in a legal grey zone” that are the most feasible, as they face fewer obstacles to implementation and regulation. So feasibility may increase with the weakness of states and the ambiguity of legal context—which is not encouraging, of course, for a rule-based global order.

Conclusion

The diversity of views on these three core aspects of intervention suggests that scholars, politicians and practitioners may be talking past one another—each bringing their own idea of what legality, legitimacy or feasibility may mean. This may be inevitable to some degree but it does make coherent debate difficult to achieve. And how to proceed remains in many cases unresolved: vis-à-vis IS, Boko Haram, despotic and repressive states, as well as a multitude of militias which reign in whatever capacity they can, with civilians frequently caught in the crossfire.

These uncertainties are clearly manifest in the struggles by the US president, Barack Obama, to address IS. There appears a clear legal mandate under chapter VIII for intervention, if the UNSC were to give backing beyond the limited sanctions and condemnations set out this year. IS is clearly committing crimes against humanity: rape, pillage, slaughter, torture and so on.

On legitimacy, the terrain is complex—straightforward, perhaps, for Western advocates of intervention or affected Shia populations but certainly not for certain Sunni communities throughout Syria and Iraq. Feasibility is wrought with even greater complexity. Obama has sought a two-pronged strategy of drone warfare and arming local resistance. This is a long way from the tank columns of the ‘coalition of the willing’ landing in Basra and pushing up towards Baghdad.

So far the results, however, seem unfortunately similar. Finding answers to these questions is as difficult as it is necessary.

Andrew Linklater highlights the underlying tension between the ostensibly benevolent motives driving decisions to intervene and the moral and practical complexities of interventions themselves. On one hand, intervention can be shaped by a quest for realistic understandings of war-torn societies and pragmatic approaches. On the other, discourses of intervention can be found to be interpolated with “colonial imaginaries”, a hierarchy of societies constituted on racist assumptions.

The future of intervention is likely to reflect these complex forces, all too often evoking positions on legality, legitimacy and feasibility to suit the geopolitical interests of the time. Yet these concepts are not infinitely malleable, and they carry clear institutional and philosophical content which needs to be understood.

The weight of failure in many recent cases of intervention, with overwhelming death and destruction, makes this debate of paramount significance. Without clarity on these core issues politicians are likely to continue launching violent interventions which cause more harm than good, while undermining a rule-based global order.

This essay is based on the most recent Global Policy e-book, Lessons from Intervention in the 21st Century: Legality, Legitimacy and Feasibility, edited by the authors, to be released in the coming weeks. Join the debate on Twitter #GPintervention.