cosmopolitanism, ch5 (fine)

7/30/2019 Cosmopolitanism, Ch5 (Fine)

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Cosmopolitanism

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5Cosmopolitanism anDHumanitarian militarY

intErvEntion

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This chapter addresses an uneasy question: the relation betweencosmopolitanism and humanitarian military intervention.1 The re-emergence o cosmopolitanism as a fourishing intellectual project

has coincided with what Michael Ignatie describes as a new tideo interventionist internationalism, whereby Western nations havebecome embroiled in various eorts to put the world to rights(Ignatie, 1999: 3). Perhaps the most contentious element o thisinterventionism has been the willingness to use military orce orhumanitarian ends. Prominent examples o allegedly humanitarianmilitary interventions include US intervention, sanctioned by the

United Nations, in Somalia between 1992 and 1994 and NATOs aircampaign, not ocially sanctioned by the United Nations, in Kosovoand Serbia in 1999. Prior to the 1990s debate was provoked on thisissue by Indias intervention into Bangladesh in 1971, Vietnamsintervention into Cambodia in 19789 and Tanzanias interventioninto Uganda in 1979 (Wheeler 2000).In the rst hal o the 1990s theSecurity Council o the UN authorised peace-keeping interventions


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cosmopolitanism and humanitarian military intervention 7

in eight instances and military interventions in a urther ve. Today,there is extensive debate over the oibles and ollies o the US/UK

invasion o Iraq, the reusal o the UN to grant legitimacy to themilitary exercise and retrospective attempts to justiy the invasionin humanitarian terms (McGoldrick 2004).

The practice o humanitarian military intervention goes to theheart o cosmopolitan aims to deend human rights and it raisessearching questions about whether and how individuals can be sae-guarded against the murderous actions o their own governments.Support or humanitarian military intervention is premised on thewidespread eeling that the exercise o military orce has been bothpossible and urgently needed to stop grave humanitarian crimes. Itis also provoked by the consequences that have ensued rom theailure o the international community to act eectively in the aceo genocide in Rwanda in 1994 (Wheeler, 2000: 20841) and ethniccleansing in Bosnia throughout the 1990s (Bobbitt, 2002: 41467).Today some observers say that crimes against humanity and possibly

genocide are occurring among the Arican populations o Darurand Zimbabwe and yet there has be till now little evidence that theinternational community is prepared to intervene with any signi-cant show o military orce (Reeves 2005).

The chapter is also triggered by the serious criticisms comingrom both ends o the political spectrum on the damage humanitarianmilitary intervention has done to the whole cosmopolitan project.Consider, or example, the comments o mainly letist critics o cos-mopolitanism in an interesting collection Debating Cosmopolitics(Archibugi 2004b). The sociologist Georey Hawthorne re-armsthe continuing relevance o state ormation in parts o the worldwhere states are barely able to exercise control over their own ter-ritory or ensure the security o their own citizens. For Hawthorne,the key political question concerns how ailed and ailing states areto be re-ormed. His article o aith is that states cannot be repaired

through military interventions and he is particularly sceptical oliberals who claim the right to use orce in the name o humanity.David Chandler declares that the NATO bombing o Yugoslaviawas a clear breach o international law and more generally that cos-mopolitan arguments which endorse the limitation o sovereigntyor some states in eect grant the right to intervene at will to oth-ers. He maintains that the new interventionismis a throwback to a


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8 cosmopolitanism and humanitarian military intervention

time when state sovereignty was the privilege o the ew and pow-erul states granted themselves the right to use orce against the

less powerul. According to Chandler, cosmopolitanism should beread as an attack on the principle o sovereign equalityintroducedater 1945. Similarly, Tim Brennan identies cosmopolitanism withPax Americana dressed up in the cloth o international law. He isdismissive o cosmopolitan concerns over crimes against humanity,reerring to them as ear-mongering cameos o tribal blood-let-ting in barbaric backlands, and interprets the cosmopolitan attackon national sovereignty as an attack on the capacity o indigenouspeoples to draw a boundary between what is theirs and what liesbeyond (Archibugi 2004a: 46). Peter Gowan argues that the orma-tion o a supra-state authority, ar rom exercising jurisdiction overthe US, is destined to become its lightly disguised instrument. ForGowan, the cosmopolitan dream o uniting humanity on the basiso a global citizenry and universal human rights is a sel-deception,since no scheme or universal harmony can work which ails to con-

ront the social relations o actually existing capitalism.The gap between acts and norms leads some critics to conclude

that the cosmopolitan outlook is either hopelessly naive or wilullycynical (Zolo 2002; Chomsky 1999). Most o these writers reservetheir severest criticism or the doctrine that there can be a righto intervention even without the ormal authorisation o the UN.They see the appeal to global justice as an umbrella under which anattack on international law is being launched by big powers and seecosmopolitanism as, naively or wilully, justiying an imperial inter-national order. Jacques Rancire argues that under a cosmopolitanregister the rights o man have become the rights o victims: othose unable to enact any rights or even any claim in their name, sothat eventually their rights had to be upheld by others, at the costo shattering the edice o international law, in the name o a newright o humanitarian intererence (Rancire 2006). He concludes

that the rights o man or human rights (he equates the two) havebeen boiled down to a right o invasion, a right o war, which isin eect no right at all. He argues that since the invasion o Iraqthe idea o humanitarian military intervention has become so deeplyimbricated in a new imperialism as to drag the larger cosmopolitanproject down with it.

These arguments are compelling but to my mind they leave


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unanswered the question that gives rise to cosmopolitan think-ing in the rst place. I people are hunted out o their homes and

threatened with ethnic slaughter, should there not be humanitarianmilitary intervention i this is easible? Is there not a responsibilityattached to power not to remain inactive in the ace o gross inhu-manity? Why should our sense o responsibility stop at nationalboundaries? What does the slogan never again mean i it excludesin principle military interventions designed to stop genocides?Should we really be nostalgic about the classical system o interna-tional law whose core principle was that o non-intervention underall circumstances, including the murderous abuse by the state o itsown subjects, and whose practice allowed the US and the USSRto do as they willed in their own backyards? Is there not a senseo sel-serving cant in the claims o rulers that international actionover their mistreatment o minorities is unwarranted intererence intheir internal aairs? Critics o cosmopolitanism must engage withthe problem to which cosmopolitanism is a response: never again

to be indierent to the deliberate mass destruction o human livessimply because the perpetrators are ordained by a sovereign nation-state or because the victims are oreigners. In a world which now hasexperience o totalitarian terror and annihilation, the cosmopolitanimagination reuses to rule out the need or humanitarian militaryintervention. Instead, it seeks to establish a rm ethical and legalbasis on which to decide under what circumstances humanitarianmilitary intervention might be justied, through what institutionssuch interventions are to be authorised and by what means suchinterventions are to be conducted.

When people are subjected to ethnic cleansing, crimes againsthumanity or genocide at the hands o the authorities that rule them,the cosmopolitan intuition is that there must be a orm o ethical liebeyond that o their own state to which they have a right to appealand rom which they can have a realistic expectation o support.

From this perspective humanitarian military intervention appears asone element in the construction o a sense o universal responsibil-ity. While it does not address the big issues concerning the origins ototalitarian tendencies in our own world, the new cosmopolitanismenjoins us to think hard about the conditions o its legitimacy. Theresults are as interesting or what they reveal about the emerging


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cosmopolitan paradigm as or what they oer to ongoing debatesabout military intervention.

DEALINg WITH AMBIALENE

One o the main characteristics o cosmopolitanism in relation tohumanitarian military intervention is equivocation in the ace ocompeting pressures. On the one hand, cosmopolitan principleso human rights and global governance lend support to humanitar-ian military intervention i it is deemed necessary in order to pro-tect the basic human rights o the most vulnerable. Humanitarianmilitary intervention appears as an extension o the precedent setat Nuremberg: i evidence o crimes against humanity can serve asa basis or legal prosecution ater the event, then it can also serveas a basis or military intervention to prevent or stop the crimesthemselves. I universal responsibility is to mean anything, it isthe responsibility o those who have the power not to stand idly by

when crimes against humanity are being committed and it is withintheir capacities to end them. On the other hand, cosmopolitanism ishistorically associated with the critique o militarism, the search oralternatives to war and the ideal o perpetual peace. Not or nothingdid Kant call the contract he envisaged between nation-statesoeduspacifcum the peace-making pact. The normative philosophy oKantian cosmopolitanism endorses the categorical imperative to putan end to war. The new cosmopolitanism is suspicious o a humani-tarian rhetoric that conceals the exercise o dominance on the part opowerul states and there are many who ear that the legitimisationo violence in terms o human rights can only delay the construc-tion o a genuine universal human rights culture (Booth 2001: 314).Their credo is that the governance o international aairs throughcosmopolitan norms requires non-violent processes o communica-tive interaction (Young 2007). The ambivalence o cosmopolitan-

ism maniests itsel in the act that individuals who share similarcosmopolitan principles can and do come to opposite conclusionswith regard both to the principle o humanitarian military interven-tions and its application to particular situations. The question thenew cosmopolitanism aces is how to deal with ambivalence withoutdenying either side o it and without being paralysed by it.

I shall consider what I take to be the prevailing strategy o the


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new cosmopolitanism: it is to speciy in precise terms the criteria ojustication, authorisation and military conduct which humanitar-

ian military intervention must meet i it is to be deemed legitimate.I consider this to be a necessary and productive strategy but onethat can never do the work that is expected o it. The argument runsroughly as ollows.

First, military action becomes justiable only in the context osupreme humanitarian emergencies. We have to distinguish betweenthe ordinary routine abuse o human rights that tragically occurson a daily basis and those extraordinary acts o killing and brutalitythat belong to the category o crimes against humanity (Wheeler2000: 34). In the latter category Nicholas Wheeler includes state-sponsored mass murder and mass population expulsions by orceand genocide (Wheeler 2000: 34). Whilst no cosmopolitan writerclaims to provide an unambiguous distinction between acceptableand unacceptable humanitarian crimes, most trade on the idea ocrimes which shock the conscience o humanity (Walzer 2000:

107). Daniele Archibugi, or example, makes the dubious conten-tion that

w b b - w . . . w b . . . q w w w b- b .

(Ab 00: )

According to Richard Falk, the moral and legal requirements orintervention are satised only i the governing process has collapsedor is widely perceived as engaged in massive and gross violations ohuman rights amounting to crimes against humanity, especially i

there is a genocidal element present (Falk 1998: 96).The universal emphasis on human rights violations to be ound

in the literature may be misplaced in that the only grounds orhumanitarian military intervention actually given are not to dowith violation o human rights as such but with the commission oserious crimes under international criminal law. Even so, militaryaction is still only justied asa means o last resort, with much o the


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debate over the Kosovo intervention revolving around whether ornot the intervening powers were seriously committed to nding a

diplomatic solution (Chomsky 1999: 223; Falk, 1999: 855). Theremust be some sort oproportionality threshold in the sense thatmilitary action has a reasonable chance o not causing more harmthan it resolves (Wheeler 2000: 367; Archibugi 2004c: 1113). Andpre-emptive intervention is valid only i intervening parties are con-vinced that mass killings are imminent and that it makes no sense towait or them to start (Wheeler 2000: 345). In Rwanda it is arguedthat speedy actionbeore the genocide unolded was possible, giventhat there had been clear and urgent warnings to the internationalcommunity (Barnett 2003: 175).

Second, it is an important cosmopolitan principle that humani-tarian military interventions must be given legal authorisation atthe global level. States should not be able simply to appeal to theirown interpretation o cosmopolitan principles to justiy militaryinterventions without being constrained by legal procedures or

determining whether or not such an appeal is appropriate. This ideais central to the Habermasian rebuttal o the Schmittian complaintthat humanitarian military intervention constitutes a dangerousmoralisation o warare:

b w zw b - f w - moral, b w - .

(Hb 1999: 9)

Humanitarian military interventions are conceived not so muchas a species o war but rather as police actions designed to enorcecosmopolitan laws (Kaldor 2003: 134). One can even imagine with

Daniele Archibugi the establishment o a world court to act as adeliberative body or to determine publicly whether humanitariancrimes are serious enough to merit military intervention (Archibugi2004c: 10). In addition, members o global civil society and region-ally active civil society groups, aided by the world press, may have asignicant role in orming public opinion and infuencing the deci-sion to intervene and this can be taken to the point o their being


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granted some kind o ormal institutional representation at theglobal level (Archibugi 2004c: 12; Kaldor 2001: 11924). The aim in

all cases is to maximise the role that genuine humanitarian concernsplay in deliberation leading up to any decision over the use o orceand to minimise the possibility o humanitarian concerns acting as acover or other interests.

Third, cosmopolitan criteria must be established concerning theconduct o humanitarian military intervention. These include restric-tions on military conduct amiliar rom international law: interven-ing states must not put innocent persons at risk in order to protectthe lives o their own orces and the rights o enemy soldiers andnon-combatants must be respected. Restrictions should be placedon the bombing o dual-unction acilities that have both militaryand civilian unctions and are vital to the minimal unctioning othe society, such as the inrastructure guaranteeing the provisiono electricity, clean water, medical care and basic sanitation (Shue2003: 1089). In the ace o the threat o total war it is imperative

to preserve some minimal orm o human society to continue dur-ing the war (Shue 2003: 102). Rawls puts it simply: well-orderedpeoples must respect, so ar as possible, the human rights o themembers o the other side, both civilians and soldiers (Rawls 1999:96). The most distinctive contribution o cosmopolitanism lies inits account o changes in military strategy necessary i militariesare to respond to violations o humanitarian law in a humanitarianway. There is a commitment to training, equipping and motivatingmilitary orces to engage in civil rescue operations, humanitarianmissions and reconstruction. Cosmopolitan-minded militaries di-er rom conventional state-based militaries: unlike war-ghting, inwhich the aim is to maximise casualties on the other side and tominimise casualties on your own side . . . cosmopolitan law-enorce-ment has to minimise casualties on all sides (Kaldor 2001: 12930).The strategic imperative o cosmopolitan militaries is not primarily

to win wars or overpower an enemy, but to see military victory asa means o securing the end o state-organised atrocities: Whereasthe soldier, as the legitimate bearer o arms, had to be prepared todie or his country, the international soldier/policeman risks his orher lie or humanity (Kaldor 2001: 131). Military strategies mustbe designed to protect citizens and stabilise war situations so thatnon-extremist tolerant politics has space to develop (Kaldor 2003:


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134). The more optimistic cosmopolitan may look orward to a timewhen military orces may move . . . to the oreront o the move-

ment concerned with seeing in a more just, equitable and humaneworld, to become a kind o global social movement or peace andsecurity, or a true orce or good (Elliott and Cheeseman 2002:55). In all cases the central challenge is to carve out a orm o mili-tary intervention that can respond to the charge that any militaryresponse necessarily involves unacceptable destruction o humanlie and social inrastructure.

When we consider the rigorous criteria o justication, authori-sation and military conduct that have to be met i a military inter-vention is to be legitimated in humanitarian terms, it becomes clearthat the new cosmopolitanism intends to strike a balance betweenits commitment to the protection o human rights, by orce i nec-essary, and its commitment to perpetual peace and the abolition owar. The concern that humanitarian military intervention enablesimperial powers to intervene in the internal aairs o less powerul

states is allayed by the high hurdles any intervention has to jump towarrant the label o humanitarian. This is as it should be. However,the very height o the hurdles creates its own problems. In the spirito Rawls, the new cosmopolitanism oers a set o principles whichprescribe how military action ought to be carried out in an idealworld in which states are motivated by cosmopolitan norms, inter-national bodies exist to render an authoritative judgement about theneed or intervention and military orces are trained and motivatedto enorce cosmopolitan laws. Idealisations are injected into everystage o this theory. It describes how military action should be car-ried out in a more or less cosmopolitan world but says little aboutwhat happens in the ace o the non-ideal complexities o a worldorder in which powerul states have interests that confict withcosmopolitan purposes, human rights law and international crimi-nal law lack reliable enorcement mechanisms, and military orces

are tied to the organising principle o the nation-state. When weactor in the non-ideal conditions o the actual world order, itsshiting hierarchy o powers and the passions, prejudices and par-ticular interests o political lie, the original sense o equivocation isdestined to return. For in any particular case an actual humanitarianmilitary intervention is bound to all short o the high ideals set outwithin the cosmopolitan ramework.


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Powerul states or groupings o states undoubtedly pursuegeo-strategic interests in confict with cosmopolitan norms. They

not only have the greater capacity to intervene militarily but moreinfuence than weaker states over the interpretation o internationallaw and over the determination o what is and is not a supremehumanitarian emergency. In the ace o these considerations, cos-mopolitans may ocus less on the motives o intervening actors thanon the consequences o their military actions. Nicholas Wheeler,or instance, is prepared to endorse distinctively non-humanitar-ian motivations on the part o intervening states i the interests othe victims are nonetheless met. The complaint that state actorsmight have ulterior motives or intervention is an objection tohumanitarian intervention only i the non-humanitarian motivesbehind an intervention undermine its stated humanitarian purposes(Wheeler 2000: 39). On the other hand, Richard Falk has arguedthat we cannot overlook the extent to which interventionary claimsare exclusively mounted by powerul states that have oten in the

past put orward sel-serving rationalizations or their questionableuses o orce to coerce weaker countries with what appears to be ananti-humanitarian net-eect (Falk 1998: 98). Faced with the coin-cidence o instrumental and ethical concerns among interveningpowers, cosmopolitans may be orced to choose between endorsinghumanitarian military intervention despite the motives o interven-ing powers (e.g. or geo-political advantage or or control o oilresources) or rejecting humanitarian military intervention despitethe urgent plight o the victims o terror or ear o the advantagesaccruing to the powers that intervene.

The principle that humanitarian military interventions shouldbe authorised by an appropriate international decision-making pro-cedure should also address the unsatisactory character o existinginstitutional arrangements. According to the Charter, the SecurityCouncil has the authority to determine whether or not a particular

emergency calls or the use o military intervention to restore inter-national peace and security. No mention is made o military inter-vention to enorce respect or undamental human rights, thoughduring the 1990s the Security Council has interpreted threats tointernational peace and security more widely to include humanitar-ian crimes under this register (Holzgree 2003: 413). The SecurityCouncil, however, retains the discretion to interpret its mandate as


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it sees t and the current arrangement, which allows humanitarianactions to be vetoed by one or more o the permanent members o

the Security Council, makes the decision to enorce humanitarianlaw responsive to the political interests o a minority o powerulstates (Archibugi 2004c). Faced with the absence o satisactoryinternational institutions, cosmopolitans may be orced to choosebetween endorsing illegal action by a particular state or coalition ostates to protect human rights by orce or staying loyal to an inter-national legal authority which is incapable o oering an eectiveregime o rights enorcement but at least contains powerul stateswithin the ramework o international law.

Cosmopolitans clearly divide and are divided over this issue. In hisdiscussion o NATOs unauthorised intervention in Kosovo, JrgenHabermas makes allowances or emergency situations that mightentitle democratic states or regional alliances o democratic statesto intervene without the ormal authority o the United Nations.He reaches this conclusion as a consequence o the tension between

legitimacy and eectiveness brought about by the low level o theinstitutionalisation o cosmopolitan law: the dilemma o having toact as though there were already a ully institutionalised global civilsociety . . . does not orce us to accept the maxim that victims areto be let at the mercy o thugs (Habermas 1999a: 271; see alsoWheeler 2000: 414). Against this, Daniele Archibugi is circumspectabout states or regional bodies acting outside existing rameworkso international law. He argues that the authority o the UnitedNations ought to be preerred to unilateral decisions taken by statesor state alliances and that discretion leads right back to a state onature where states decide on the basis o their own interests whenand how to carry out acts o military intervention (Archibugi 2004c:9). Chomsky puts the case bluntly. In the real world there are onlytwo options: on one side, some kind o ramework o world order,perhaps the UN Charter, the International Court o Justice, and

other existing institutions, or perhaps something better i it can bedevised and broadly accepted; on the other side, the powerul do asthey wish, expecting to receive the accolades that are the prerogativeo power (Chomsky 1999: 154).

Finally, the obstacles to reorming military orces and strategiccultures to suit the imperatives o cosmopolitan law enorcementare stark. National military orces are oten unable and unwilling to


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conduct themselves in anything like a cosmopolitan ashion. Theyare trained and equipped or combat, not or rescue operations, and

intervening powers are oten unwilling to risk their own troops orthe sake o saving strangers. Humanitarian missions may be carriedout in circumstances where the distinction between combatants andnon-combatants is blurred, so that military orces trained to ghtclearly recognisable opponents struggle to adapt to demanding newconditions. Humanitarian missions require political skills such aswinning the respect o the local populations in targeted regions andworking with locally based civil society groups, and existing mili-tary orces are requently unable or unwilling to carry out the basicunctional requirements o this political purpose. In these circum-stances it is possible reluctantly to endorse military interventionon the grounds that some kind o response is better than none inthe ace o humanitarian crimes; it is equally possible reluctantly tocondemn military intervention because the proposed remedy doesnot live up to cosmopolitan criteria.

In all cases we are conronted with reluctance against reluctance:a reluctance to endorse a humanitarian military intervention thatdoes not live up to cosmopolitan criteria versus a reluctance toabsolve powerul states o their responsibility in the ace o humani-tarian catastrophes. Once the ideal character o this cosmopolitanapproach is brought down to earth, we discover that equivocationreturns. This is not a reason to dismiss it. Cosmopolitan theories omilitary intervention perorm important unctions: they clariy andsystematise our convictions, they provide a ramework or makingjudgements in particular situations; they act as a stimulus or legaland institutional reorms. However, specication o criteria doesnot resolve ambivalence; it lits it to another level. The downside othe specication o criteria is the radical indeterminacy present intheir application to concrete situations.

There have been various attempts to resolve the problem o radical

indeterminacy. Consider, or example, the concept o responsibilityto protect which was ormulated by the high-prole InternationalCommission on Intervention and State Sovereignty set up by theCanadian government in 2001. It called or a resh approach thatlooked at the problem rom the victims point o view and replacedwhat it saw as the atavistic terminology o sovereignty and humanrights with the new language o responsibility to protect (Bellamy


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cosmopolitanism and humanitarian military intervention

2005). It holds that the primary responsibility to protect lies withthe host state. I the host state proves unwilling or unable to ull

its responsibilities, then secondary responsibility lies with domesticauthorities working in partnership with outside agencies. I boththese levels ail, then a humanitarian emergency warrants outsideintervention. At this level it accepts the view that legal authorityor action is vested in the Security Council and that states shouldalways seek its authorisation beore using orce. I the SecurityCouncil is deadlocked, then the potential intervener or intervenersshould approach the General Assembly. I that ails to produce aresult, outside states should intervene i possible through regionalalliances. The Commission supported the principle that, should theSecurity Council ail to ull its responsibility to protect because oa veto by one o its permanent members, then other states may takeit upon themselves to act. It places on the Security Council two justcause thresholds or intervention (large scale loss o lie and ethniccleansing) and our precautionary principles (right intention, last

resort, proportional means and reasonable prospects o success).The report expressed a growing consensus in international law

or the desirability o intervention in supreme humanitarian emer-gencies when authorised by the Security Council and perhaps amore contested acceptance that unauthorised interventions maybe legitimate i the Security Council is deadlocked. This reormu-lation o the problem is illuminating in various ways but it doesnot and cannot resolve the initial ambivalence. As Alex Bellamydemonstrates in relation to Darur, the language o responsibilityto protect can be mobilised to legitimate opposition to interven-tion in humanitarian emergencies as well as to support it (Bellamy2005: 40). In Darur, the responsibility to protect has generally beenattached to the Sudanese host government, not with the SecurityCouncil, notwithstanding the charges o genocide laid against thehost government.

DEBASINg THE OINAgE

Equivocation cannot be resolved through the specication o evermore rigorous criteria or through its reormulation in terms o anew legal vocabulary. Its resolution always involves the exercise opolitical judgement (Ferrara 2007; Fine 2008 orthcoming). This can


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cosmopolitanism and humanitarian military intervention

be illustrated by considering the stance taken by Jrgen Habermasin relation to NATOs intervention in Kosovo and then the US-led

invasion o Iraq (Smith 2007a). In general, Habermas endorses theargument that conronted with crimes against humanity, the inter-national community must be able to act even with military orce, iall other options are exhausted (quoted in Postel 2002: 12). He isin no doubt that the legal doctrine o absolute sovereignty must berevised: since human rights would have to be implemented in manycases despite the opposition o national governments, internationallaws prohibition on intervention is in need o revision (Habermas1998: 182). With these principles in mind, he oers a cautious butnonetheless decided deence o NATOs intervention in Kosovo in1999 and openly condemns the war in Iraq in 2003 (Habermas 2003;Habermas and Derrida 2003a; Smith 2007a).

Habermas attributes his own guarded support or the interven-tion in Kosovo partly to learning rom the history o the UNsinability to protect Bosnian Muslims in the declared sae area o

Srebrenica in 1995. His basic case is that notwithstanding the absenceo legal authorisation the intervention in Kosovo was right becauseo the urgency o stopping the ethnic cleansing then taking place.He endorsed the ocial characterisation o the intervention as anarmed peace-keeping mission triggered by an emerging humanitar-ian catastrophe (Habermas 1999a: 269). While he recognised thatthe campaign o ethnic cleansing intensied during the bombing,he did not see this as a reason to withdraw support or NATOsactions: even though Milosevic is using the NATO air war to orcehis policy to a bitter conclusion, depressing scenes rom the reugeecamp do not reverse the relations o causality (Habermas 1999a:264). The Kosovo intervention seemed to Habermas to constitutea reasonable attempt to pursue the politics o human rights in thecontext o a drastically imperect global order.

Habermas qualied his support by maintaining that the Kosovo

intervention should not be treated as a precedent: NATOs sel-authorization should not be allowed to become the general rule(Habermas 1999a: 271). It should be seen rather as a stimulus toaccelerate the transition rom classical international law, based onstate sovereignty, to a cosmopolitan legal order. Habermas was con-cerned over the lack o an explicit UN Security Council resolutionto back the use o military orce but regarded the situation so grave


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that military intervention was justied as an exception. Whilst heplaced great weight on the act that the intervention was supported

by a majority o democratic nations, he acknowledged that in aworld in which human rights were more rmly embedded within aninternational legal ramework such atrocities would be prosecutedas criminal acts within a legal order. He argued that the realisationo this vision o a cosmopolitan legal order would require sweep-ing reorm o existing arrangements, including the reorm o theSecurity Council and the establishment o the binding jurispru-dence o the International Criminal Court and International Courto Justice (Habermas 1999a: 269; 2006: 1734). As William Smithobserves, the absence o these institutional arrangements places thepolitics o human rights in the invidious position o being a mereanticipation o the prospective legal order it simultaneously triesto promote (Smith 2007a).

In 2003 the war in Iraq conrmed Habermass worst ears thatthe state o exception was becoming the rule precisely in the way

that the ollowers o Carl Schmitt might predict (Agamben 2005).The apprehension he expressed during the Kosovo emergencyappeared to be actualised in the Bush-Blair doctrine: i the regimeo international law ails, then the hegemonic imposition o a globalliberal order is justied, even by means that are hostile to interna-tional law (Habermas 2003: 365). Habermas maintained that theUS, with the support o the UK government, acted as a unilateralhegemon outside o international law and international institutions.There was no convincing authorisation or the war, no immedi-ately pressing humanitarian emergency, no clear indication that themilitary intervention was a last resort and no eciency threshold interms o the harm the military action itsel might create. There weredeep divisions among democratic nations concerning the legitimacyo the invasion and rather than accelerate the transition rom state-based international law to cosmopolitan law the eect o the war

was to discredit the very idea o humanitarian military interventions(Roth 2004).

Habermas contrasts the Anglo-American approach to interna-tional law, based on an unhealthy mix o strategic instrumentalism,moralism and withdrawal, with the European orientation towardsthe establishment o a cosmopolitan legal order. A sense o disap-pointment inhabits the text: For hal a century the United States


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could count as the pacemaker or progress on this cosmopolitanpath. With the war in Iraq . . . the normative authority o the United

States o America lies in ruins (Habermas 2003a: 365). He viewsthese opposing perspectives on international law as seriouslydividing the West and making the development o a cosmopolitanapproach within the European Union all the more urgent.

LAW AND JUDgEMENT

There is an admirable boldness to the manner in which Habermasattempts to resolve the ambivalences o the cosmopolitan thinkingwithout losing sight o the cosmopolitan end.2 He shows an aware-ness o the need or political judgement rather than rely exclusivelyon the application o more or less precise legal criteria. For thecosmopolitan to ace up to the violence o the age, it is never justa question o mechanically applying pre-given principles to con-crete instances; there is always a moment o judgement that medi-

ates between the constitutional principles o international law andtheir application to particulars. Unlike Rawls, who seems to limitthe role o judgement to the application o established principlesto particular circumstances, Habermas leaves space or the refexiveelaboration o cosmopolitan principles in the light o our experienceo actual interventions. He views experience as a learning processin which we learn to deal with the dangers o slippage, or example,rom the making o an exception in international law to the treat-ment o the exception as the rule or rom the judgement o states asoutlaw states to the judgement o peoples as outlaw peoples.

Habermas conronts these diculties but in so doing encountersnew diculties. There is something unsettling about his repeatedargument that political judgement is necessary only because theconstitutionalisation o international law is not yet complete. Fromthis perspective, it might appear that when the transition rom clas-

sical international law to cosmopolitan law is complete, then therole o political judgement can be surpassed. I this is a vision onally overcoming political judgement through the procedures ointernational law, then it is not obviously desirable or plausible.The question is whether political judgement is a stop-gap measurenecessary in the absence o clear, concise and authoritative crite-ria o justication, or rather an irreducible aspect o justiying,


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authorising and monitoring military interventions. Habermas doesnot altogether neglect the role o global civil society in publicis-

ing the conditions which might make us wish to support or opposehumanitarian military interventions and in infuencing those whomake the decisions to intervene. The worldwide publicity over themassacre at Srebrenica and the worldwide demonstrations againstthe invasion o Iraq are cases in point. However, in his vision o thecosmopolitan order to come, deliberations conducted in the publicsphere are channelled strictly into avenues o international law, legaljudgement, law enorcement and police action.

One can understand the reasoning behind this move to re-posi-tion humanitarian military intervention within the connes o inter-national law. It stems rom a legitimate attempt to put an end tomerely moral justications o the use o orce and to conront thedanger o a political power using human rights talk as a spuriousjustication o military aggression or imperial conquest. The con-stitutionalisation o international law appears as the cosmopolitan

answer to the Schmittian complaint: He who invokes humanitywants to cheat. However, this deensive strategy transers respon-sibility or making dicult judgements, in which the values oupholding human rights, seeking peaceul resolution o disputes andrespecting national sovereignty are necessarily weighed against oneanother, rom political argument to the legal system. This transero responsibility may appear as an attractive strategy in the ace, orinstance, o unconvincing attempts by the US and UK governmentsto use justications o a humanitarian kind or military interventionin Iraq. The perception that this use o humanitarian justicationswas in act an abuse has not only discredited the capacity o the USand its allies to act as bearers o the humanitarian norm but has alsocast doubt on the validity o the norm itsel. In the ace o this dis-piriting conclusion the legalisation o the norm appears to have theadvantage o rescuing the norm rom its political critics by isolating

it rom the distortions o power.The dicult question is whether the turn to international law can

carry the weight the new cosmopolitanism puts on its shoulders andwhether humanitarian military intervention has to be juridied tobe justied. I do not wish to argue that Habermas and other cosmo-politans are wrong to deend juridical and procedural mechanismsor justiying, authorising and conducting interventions, only that


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a politics o intervention would not disappear in a regime o cos-mopolitan law enorcement. The image that cosmopolitan law can

substitute or cosmopolitan political argument orgets that one hasto be angry about atrocities being committed somewhere else in theworld to want to do something about them and to risk lives to stopthem. The unkindest image I sometimes have o legal cosmopolitan-ism is that we can have the same politicians in power in Westernstates but that we would go to war or humanitarian reasons becausea group o judges say we should.

There is also a residual state-centred quality to this kind olegal imagination. Cosmopolitanism does not have to be attachedto the notion that only states, individually or in concert, have theresponsibility to protect people against organised terror, expulsionand annihilation. The responsibility to protect has a more univer-sal application within cosmopolitan thought. It might include, orinstance, publicity and support or civil rights movements, reetrade unions, womens equality movements and democratic political

parties in atrocity-committing regimes, and sae havens or reugeesin search o asylum rom these regimes, rather than or in additionto state-based armed interventions. We should not orget that geno-cide in Rwanda was terminated neither by Western states nor by theUN but in this case by the Rwandese Patriotic Front and Army.

Finally, humanitarian military interventions are likely to give riseto reactive orms o resistance in the name o anti-imperialism. It isa matter o political judgement, however, whether such resistanceis justied. Today we see a resistance which increasingly gloriesviolence, demonises its enemies and loses touch with the values opolitical democracy and post-traditional civil society. In these cir-cumstances, cosmopolitanism involves not only an appeal to theconstitutional principles o international law but a political critiqueo the world view which eeds the sheer negativity o this orm oresistence.


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notes 47

4 I am thinking in part o the UNs interventions in Congo in the1960s, Somalia, Cambodia, Rwanda and Bosnia in the 1990s, many

o which ailed but nonetheless oer a sobering reminder o why weneed an international organisation. I am also thinking o the manyUN sub-groups UNESCO, UNICEF, WHO, UNRWA, UNHCR,UNCTAD, ICTY, ICC, etc. which tend to do the sot and routinetasks o international regulation and assistance.

5 It reveals, or instance, the one-sidedness o the American argumentthat there is something deeply problematic about international lawsimply because o its lack o democratic legitimacy; or this draws amisleading parallel between constitutionalism at national and inter-

national levels. It also reveals the one-sidedness o the Europeanclaim or the legitimacy o international law based exclusively on thesubstantive ground o its protection o human rights and the air out-comes this generates.

6 Reerence to the history o US commitment to an internationaliststrategy has an element o truth to it. We only have to think o theimpetus President Wilson gave to the ormation o the League oNations and the Kellogg-Briand Pact (proscribing wars o aggression)ater the First World War and the establishment o the Nuremberg

Charter and Tribunal, the UN and the Universal Declaration o HumanRights ater the Second World War. Eleanor Roosevelt amously wrotein 1948: Taken as a whole, the Delegation o the United States believesthat this a good document even a great document and we proposeto give it our ull support. [...] This Universal Declaration o HumanRights may well become the international Magna Carta o all meneverywhere. Even Ronald Reagan was moved to say in 1989 that Forpeople o good will around the world, that document is more than justwords: Its a global testament o humanity, a standard by which any

humble person on Earth can stand in judgement o any governmenton Earth (http://en.wikipedia.org/wiki/Universal_Declaration_o_Human_Rights). Talcott Parsons, observing that the US involvementin the Second World War was a break rom the isolationism that hadoten marked its history, pushed hard or more vigorous and interna-tional law-abiding US involvement in the world scene.

7 Consider Hannah Arendts citation o Montesquieus insight in OnRevolution: only power arrests power.

C d h y ee

1 This paper arises out o joint research with William Smith. I amextremely grateul or his generous and wise collaboration. Ourresearch was unded by the ESRC New Securities Programme, directedby Stuart Crot, and I am grateul to the ESRC or its support.

2 The virtue o Habermass approach lies in the concreteness o hisjudgement and his own readiness to make a decision in the ace o


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48 notes

ambivalence. We may or may not agree with his judgements but hedoes not shy away rom making them. We may question, or example,the legitimacy o the contrast he draws between Anglo-American uni-lateralism and European multilateralism, but we know where he stands.There is an interesting contrast in this respect between Habermas andDerrida. In his dialogue with Habermas on Philosophy in Terror Derridaalso looks on the violence o the world through a cosmopolitan gaze.He at once expresses support or the establishment o a UN army as aneective intervening orce and articulates his own equivocation overthis proposal:

I w z Ik , w j w w . . . w b . . . w w b w . . . , b w w f .

(Hb D 00: 111)

Ambivalence punctuates every dot and comma o Derridas text:

T P , . . . B . . . , k w . . . T . . . .

(Hb D 00: 1)

I am less convinced than Derrida that we should pin our aith on thebuilding o a UN army or that we can simply declare our ambivalencein general philosophical terms. Cosmopolitanism must be able to drawupon the resource o political actors capable o making complex andinormed judgements on urgent questions o public deliberation. It hastograpple with ambivalence.

We seem to be increasingly haunted by the spectre o terrorism:images o 9/11 and 7/7, images o the beheading o hostages, imageso the suicide bombing o many innocent civilians by the resistancein Iraq. On the surace, much o this terrorism appears to have lost allrational connection with political instrumentality and appears distinctrom the traditional terrorism that has marked national movements in,say, Algeria or Ireland, or even in Israel/Palestine. On the other side, itmay well be the case that under current American leadership much owhat is called the war on terror works to regenerate the causes o theevil they claim to eradicate (Habermas and Derrida 2003a: 100). Thecosmopolitan outlook is a reusal to lose our sense o astonishment inthe ace o either orm o violence and an understanding that we are not


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notes 4

deenceless. In seeking an alternative to the ill-dened war on terror,it declares that international law must be respected and made eective.In resisting terrorism, it reminds us that those called terrorists arenot in this context others whom we as Westerners can no longerunderstand. We must not orget that they were oten recruited, trained,and even armed, and or a long time, in various Western ways by aWestern world that itsel . . . invented the word, the techniques and thepolitics o terrorism (Habermas and Derrida 2003a: 115).

Law and politics are the two sides o the cosmopolitan coin: theybring together institution and outlook, judgement and understanding.Were judgement split rom understanding, law might revert todemonisation o the perpetrators. Conversely, were understandingsplit rom judgement, politics might revert to mere justication o theperpetrators. The unction o international law is not to demonise thosewho commit crimes but to hold them responsible or their actions andthereby to humanise them. The unction o political understanding is notto justiy the crimes such perpetrators commit whether in the name oother crimes committed by the West or o higher motives projected ontothe perpetrators themselves but to conront the politics o subjectivitythat celebrates terrorism as the method o choice.

6 C d he

1 I am thinking o intellectuals such as Albert Camus, Raymond Aron,Arthur Koestler and Hannah Arendt hersel, and civil society group-ings like the Bertrand Russell Tribunal. This tribunal was designed toinvestigate and publicise war crimes by American orces and its alliesduring the Vietnam War. It was constituted in November 1966 andconducted two sessions in 1967. Representatives o eighteen coun-tries participated in the tribunal, which called itsel the InternationalWar Crimes Tribunal. More than thirty individuals testied orprovided inormation, among whom were military personnel romthe United States and both sides in Vietnam (http://en.wikipedia.org/wiki/Russell_Tribunal).

2 In the 1963 Auschwitz trials in Frankurt the West German authoritiesdecided to use domestic rather than international law to handle theprosecution o personnel rom the extermination camp. The leadingprosecutor, Fritz Bauer, urged Germans to understand their innerresponsibility and not take the easy way out. The deendants wereaccused o murder and to secure conviction the prosecution had toprove not that they were merely carrying out orders but that theywere sadists who killed at whim and on their own individual initia-tive. The resulting press coverage turned into what Wittman called apornography o the Holocaust and allowed ordinary Germans todistance themselves rom the crimes on display. Arendt points out inher account o the trial that the deence was based on the little-mantheory that the deendants had been orced to do what they did and

cosmopolitanism, ch5 (fine)

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