TWAIL and the Theory and Practice of Military Intervention

Note: One of my duties in the various places where I teach is to show students how to write essays – something most young people are not nowadays taught to do. What I like to do in class is to choose a question at random, discuss possible approaches, and then dictate an answer one paragraph at a time. Some of these answers are very short. Some amount to small dissertations. In this latter case, the students take turns at looking on-line for the information we decide is needed. It they cannot find it, I show them how to change the structure of what has already been written, or to strike out in a new direction.

It is a “writing masterclass” approach that makes use of my own strengths, and is often a welcome alternative to formal teaching. It fills up a long morning session. Everyone learns something, and the more attentive will improve their final grades by at least one step.

Here is an example of the finished product. Do not take it as a statement of personal opinion. It is an answer produced for a specific question, and it bears in mind what a possibly unknown examiner will appreciate, and what can be written to incorporate the sources found in class. SIG

PS – If anyone wants to engage my services as a teacher of these skills, please click on the image to the left. Though they are my niche subjects, Greek and Latin are not my exclusive focus as a teacher. I do much else besides.

PPS – If you are a student, and you have come across this in a frantic last minute search, I advise you not to copy and paste and submit. You will be found out in three clicks of a mouse. Examiners were not born yesterday.

Introduction

The purpose of this essay is to examine the critique posed by the Third World Approaches to International Law (TWAIL) in the light of Western military interventions since 1990. There have been many such interventions, but I will consider the lack of action in Rwanda in 1994 to prevent an actual genocide, and the present intervention in Syria to stop alleged atrocities by its government. I will rely on the work of Mutua, Anghie, Gathii and Fidler, among others.

Though I take a less critical position than these writers, I find it a persuasive argument that the Western Powers take the same approach to the morality they preach as the Italian philosopher Nicolo Macchiavelli proposed:

It is unnecessary for a ruler to have any good qualities, but it is very necessary to appear to have them. (Machiavelli, 2003, p.202)

These Powers talk about International Law as the upholder of peace and human rights and democracy. Their guiding principle can be summarised in the words of the Greek historian Thucydides:

The strong do what they can and the weak suffer what they must. (Thucydides, 2000, p.346)

What is TWAIL?

Though its roots can be traced to the decolonisation movement of the post-War age, TWAIL began as an identifiable movement in the spring of 1996, when a group of graduate students at Harvard University met to discuss whether there might be a feasible Third World alternative to the currently hegemonic status of the West in regard to International Law and its various institutions. From these informal meetings emerged the acronym TWAIL, and the first TWAIL conference was held at Harvard in March 1997. (Gathii, 2011, p.28)

Now, looking beyond the acronym, the first noun in the full wording is of critical importance: Third World Approaches to International Law. According to James Gathii, one of those original graduate students at Harvard, “there is no single TWAIL.” (Gathii, 2011, p.37) He adds:

TWAIL is a decentralized network of scholars with common commitments and concerns; it is not a collective with fixed and pre-set commitments under a central command. (Gathii, 2011, p.47)

It is not, and is not intended to be, a modern version of Orthodox Marxism-Leninism. Rather, it is a confluence of critical theory, feminism, post-colonial theory, critical race theory, Marxism, and many other movements critical of the present world order. Within this confluence, individual scholars are free to place their own emphases. For example, Makau Mutua tends mostly to see the present world order as a “racialized hierarchy.” (Mutua, 2000, p.31) Bhupinder Chimmi takes a more traditional Marxist view of class as the main driver. (Chimmi, 2004) There are feminist scholars, whose main emphasis is on the role of patriarchy in the present world order. (Gathii, 2011, p.44)

Central to this confluence, however, is the claim that the structure of International Law, as it presently exists, is a Western construct, and that it is used by the Western Powers to pursue their interests – mainly against the peoples of the Third World.

International Law: A European Construct

According to Malcolm M. Shaw,

[t]he foundations of international law (or the law of nations) as it is understood today lie firmly in the development of Western culture and political organisation. (Shaw, 2008, p.37)

It is the expansion of a system of international relations that emerged during the seventeenth century, and is normally dated from the Treaty of Westphalia (1648). This ended more than a century of religious war in which the various parties had tried to impose their own conception of the Christian Faith on the whole of Western and Central Europe. The restoration of lasting peace and order rested on the general acceptance that each recognised state should be sovereign within its own territory. The municipal law of a state was the highest law within its recognised borders. Whether it chose to be Catholic or Protestant, or liberal or despotic, was not supposed to be the business of its neighbours.

At the same time, relations between the resulting “anarchy” of sovereign states were supposed to be governed by a “Law of Nations,” this being “a body of customary and conventional rules… considered legally binding by civilised states in their intercourse with each other.” (Oppenheim, 1920, p.1) Embassies were exchanged. Treaties were made and supposed to be obeyed. Wars were to be fought only for “just” causes. The ideal situation was for potentially hegemonic powers to be checked by defensive alliances of smaller powers. Every so often, the system collapsed in general war. It was then put back together by a conference in which victors and defeated all had their say, and to which all finally agreed – 1697, 1748, 1783, 1815, 1856, 1878, for example.

For obvious reasons, the “body of customary and conventional rules” that made up the Law of Nations was derived wholly from European experience. It was a systematisation of “the common geographical, historical, religious, legal, economic, and cultural heritage the European countries and peoples shared.” (Fidler, 2003, p.36) In its claim of a universal morality that governs interpersonal relations, it owes much to Greek and Roman philosophy. (Cicero, 1841, p.270) (Aristotle, 1893, p.163) Mostly, though, “international law is a creation of Christian Europe.” (Kunz, 1955, p.371)

The growth of European wealth and power after about 1700 spread this Law of Nations to the rest of the world. Because they were European colonies of settlement, or dominated by Europeans, the United States and the independent states of Central and South America adopted the system. The European colonies of conquest were drawn into the system – not as independent members, but as appendages of their sovereign European masters.

International Law: Legitimising Empire

Though accepting its European origin, Shaw believes that the past fifty years have “destroyed its European-based homogeneity” and “emphasised its universalist scope” of International Law. (Shaw, 2008, p.39) The TWAIL consensus disagrees with this view. TWAIL scholars see the conversion of this European Law of Nations into International Law as central to the colonial exploitation by Europe of the rest of the world. Its doctrines, “specifically that of sovereignty, arose from the attempt to justify relations between Europeans and their non-European subjects in the “colonial confrontation” (Anghie, 2005, p.1) The European Powers might not generally intervene in the internal affairs of each other. But non-Europeans were not to be left alone. There was to be one rule for the “civilised nations,” another rule for the others.

Mutua adds:

International Law developed in – and was instrumental in – the encounter between Europe and the rest of the world. The notion of sovereignty itself was the key to justifying, managing, and legitimizing colonialism, wherein a small number of European states fanned across the globe and took over more than three quarters of it for their own aggrandizement. (Mutua, 2000, p.33)

In other words, where the Spanish conquest of South America was concerned, or the British conquest of India and Africa, “[t]he strong do what they can and the weak suffer what they must.”

The collapse of the European empires after the Second World War seemed to bring an end to colonialism. The colonies were now independent, and they could claim equal “Westphalian” rights with their former masters. The truth was different. The European Powers – now joined by the United States and the Soviet Union – simply replaced direct rule by indirect. In theory, the United Nations was to be a neutral forum in which all the countries of the world settled their differences and made mutually-agreed rules. In fact, the “democracy” of the General Assembly, increasingly influenced by the growing number of Third World members, was checked by the supremacy of the Security Council – in which the white powers had a majority, and in which each had a veto.

Added to the less than neutral United Nations were the other global institutions – the World Bank, the International Monetary Fund, the General Agreement on Tariffs and Trade. These worked with Western multinational corporations to ensure that the former colonies remained open to trade and investment on terms favourable to the West. Zulfikar Ali Bhutto wrote on this as early as 1967:

The aim of a Great Power is no longer to subjugate the world in the conventional sense, but to control the minds of men and gain the allegiance of the leaders of underdeveloped nations, through economic domination and other devices, without necessarily interfering directly. (Bhutto, 1967, p.14)

Until around 1990, some restraint on the Western Powers was maintained by their dispute with the Soviet Union. The power of the Security Council was checked by Cold War diplomacy. Between 1945 and 1990, the veto was used 279 times in the Security Council. (Orford, 2003, p.3) Since then, the world has seen the emergence of a unipolar order, focussed on the United States. The existing institutions of Western control have been joined by the International Criminal Court and a Word Trade Organisation that Mutua calls “an opaque undemocratic bureaucracy… perpetuating Western hegemony over the rest of the world.” (Mutua, 2000, p.35)

Taken together, International Law and its various organisations are said to have created an omnipresent structure of power that imposes Western norms on the Third World, and prevents the Third World, collectively or individually, from seeking their own path to development. (Mutua, 2000, p.33) These norms are typically the adoption of neo-liberal economic policies and Western notions of “good governance.” (Fidler, 2003, p.52)

Humanitarian Intervention: Legitimising Empire

As said, the Cold War imposed some restraint on the Western Powers. The Security Council was paralysed as an agent of Western interests. The Western Powers might seek to maintain their hegemony in the Third World by economic and diplomatic and cultural means. They might fund coups and insurgencies against anti-Western leaders – in Iran, for example, in 1953. They might support military dictatorships and other despotic governments. But direct military intervention was rare. The pattern of patter on Cold War alliances and spheres of influence made the risk too great of a nuclear escalation. The fall of the Soviet Union, between 1989 and 1991, allowed the Western Powers to return to something like the direct imperial interventions of the past.

Now, if the substance of these interventions could always be summarised by the words of Thucydides, their form was generally summarised by the words of Machiavelli: “It is unnecessary for a ruler to have any good qualities, but it is very necessary to appear to have them.” The reality was money and power. The excuse was humanitarian. When the Spanish and Portuguese conquered Central and South America, and grew rich from the gold and silver they found there, it was allegedly to bring the “light of Christianity” to the heathens. (Todorov, 1984) It was much the same with the expansion of British power. The conquered peoples were savages, who needed to be brought to civilisation. See, for example, Rudyard Kipling:

Take up the White Man’s burden—
  Send forth the best ye breed—
Go send your sons to exile
  To serve your captives’ need
To wait in heavy harness
  On fluttered folk and wild—
Your new-caught, sullen peoples,
Half devil and half child. (Kipling, 1941, p.136)

Equally, when the United States had grown in wealth and power, and sought to join the imperial scramble, President Theodore Roosevelt spoke of the “weak and chaotic government and people south of us,” and how it was “our duty, when it becomes absolutely inevitable, to police these countries in the interest of order and civilization.” (Quoted: Mutua, 2001, p. 214)

The Charter of the United Nations is supposed to prohibit this kind of intervention. See Article 2(4):

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. (United Nations, 1945)

This prohibition, however, is balanced by the incorporation into International Law of human rights. The Preamble to the Charter states its mission to “reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small. (United Nations, 1945) Mutua dismisses this wording as more Western hypocrisy: it “conceals more than it reveals.” (Mutua, 2001, p.206) Its object is to impose Western norms on the Third World, not to safeguard human dignity in the larger sense.

The [human rights movement] does not deeply resonate in the cultural fabrics of non-Western states, except among hypocritical elites steeped in Western ideas. (Mutua, 2001, p.208)

Or as Louise Sædén argues:

One of the most frequently asked questions when it comes to the UN declaration of Human Rights is, how universal are they really, are they compatible with the whole world or are they simply a manifestation of Liberal, Western, Christian ideas. (Sædén, 2010)

According to this critique, the ideology of human rights and its manifestations in International Law have “legitimised the intrusion of international law in the internal affairs of a state and [can] be used to justify further intervention by the West in the Third World.” (Angie, 2006, p.749)

The right and duty of “humanitarian intervention” is a largely British doctrine. The Charter of the United Nations says nothing about going to war to prevent atrocities in another country. But, in 1991, the British Government declared no-fly zones in parts of Iraq to stop the its government from committing atrocities against its people. (Wood, 2011, p.360) This happened during a war that had been sanctioned by the Security Council. But the British Government has since then expanded on the precedent.

In 1998, a Government Minister said:

There is no general doctrine of humanitarian intervention in international law. Cases have nevertheless arisen…when, in the light of all the circumstances, a limited use of force was justifiable in support of purposes laid down by the Security Council but without the Council’s express authorisation when that was the only means to avert an immediate and overwhelming humanitarian catastrophe. (Cited in Wood, 2011, p. 360)

Geoffrey Robertson, a lawyer close to Tony Blair, went further:

The most significant change in the human rights movement as it goes into the twenty-first century is that it will go on the offensive. The past has been a matter of pleading with tyrants, writing letters and sending missions to beg them not to act cruelly. That will not be necessary if there is a possibility that they can be deterred, by threats of humanitarian or UN intervention or with nemesis in the form of the International Criminal Court. (Robertson, 1999, p.453)

In 2004, Tony Blair agreed with Robertson, saying:

It may well be that under international law as presently constituted, a regime can systematically brutalise and oppress its people and there is nothing anyone can do about it, when dialogue, diplomacy and even sanctions fail, unless it comes within the definition of a humanitarian catastrophe…. This may be the law, but should it be? (Cited in Wood, 2011, p. 354)

By 2013, the position had moved again. By now, Russia had returned to its Cold War policy of blocking action via the Security Council. So, speaking about Syria, a statement from the Prime Minister’s Office said:

If action in the Security Council is blocked, the UK would still be permitted under international law to take exceptional measures in order to alleviate the scale of the overwhelming humanitarian catastrophe in Syria by deterring and disrupting the further use of chemical weapons by the Syrian regime. (Cited in Wood, 2011, p. 361)

In just two decades, the British Government moved from asserting a limited principle, in the context of a war sanctioned by the Security Council, to a general principle that is independent of the United Nations and without any claim of self-defence. The United States has not disagreed with the general principle, and may agree with it in practice. (Wood, 2011, pp.361-62). There are academic arguments that a doctrine of “collective humanitarian intervention” has emerged in customary International Law. (Teson, 1996, p.323)

Applications of the Doctrine

Whether or not it has a good basis in International Law, the doctrine of humanitarian intervention has been put to apparently questionable uses. Its application seems to show an adherence less to principle than to the pursuit of whatever promotes the interests of the Western Powers. Much of this can be summed up as “regime change” to advance commercial or strategic interests. To see this, let us take two cases, of non-intervention and of intervention.

Rwanda

Rwanda is a former Belgian colony in Africa. Between its independence in 1962 and about 1991, it enjoyed reasonable political stability and good economic development. (Meredith, 2005, p.486) However, it was divided between two ethnic groups, the Hutu and Tutsi peoples, with no historic ties of affection. Tensions rose in the early 1990s, exploding early in 1994. According to Philip Gourevitch,

…in the spring and early summer of 1994 a program of massacres decimated the Republic of Rwanda. Although the killing was low-tech – performed largely by machete – it was carried out at dazzling speed: of an original population of about seven and a half million, at least eight hundred thousand people were killed in just a hundred days. Rwandans often speak of a million deaths, and they may be right. The dead of Rwanda accumulated at nearly three times the rate of Jewish dead during the Holocaust. It was the most efficient mass killing since the atomic bombings of Hiroshima and Nagasaki. (Quoted: Mutua, 2001, p. 226)

Here was surely a classic humanitarian crisis. Yet the Western Powers stood by and did nothing. According to Meredith,

[a] CIA analysis in January 1994 predicting that the Arusha Accords would fail, leading to hostilities in which half a million people would die, was not passed on until after the genocide was over. (Meredith, 2005, p.503)

Other Western diplomats stationed in the country were aware of rising tensions. They reported this to their governments. Again, the information was not passed to the Security Council. (Meredith, 2005, p.503) Though the Security Council authorised attempts at negotiation, these were largely unsuccessful. The British and American Governments actively worked to prevent armed intervention. The British Prime Minister said it was “simply not practicable” for the Security Council to become the “policeman of every part of the world.” (Williams, 2014)

It was the Rwandan Patriotic Front, mainly composed of exiled Rwandans, that did most to stop the genocide. that closed in on the killers and worked to bring the crisis to an end (Meredith, 2005, pp.517-22) For the Western Powers, Rwanda was a small country with no minerals worth extracting and no strategic importance. (Carroll, 2004)

Syria

The Syrian situation continues to unfold as I write. The civil war there began as an uprising against the undeniably oppressive government for Bashar al Assad. Unlike Rwanda, it has some oil, and is strategically critical to all its neighbours and their allies among the Great Powers.

Beyond this, there are few verified facts, but a mass of claims and assumptions which it is too early to sort through, and trying would require an essay of its own. But here is a brief account of an extraordinarily complex situation, summarised from an article by Krishnadev Calamur, published in The Atlantic.

The Turks want to bring the country within their own sphere of influence. The Israelis do not want it to fall into the Iranian sphere of influence. The Iranians do not want a Sunni government there. The Saudis do want a Sunni government there. The Russians have two Mediterranean naval bases there, and do not want to lose them. The so-called Islamic State (IS), largely expelled from Iraq, appears to be working with the Saudis and the Israelis. The Americans appear to be supporting the Israelis and the Turks simultaneously, which means supporting IS, which it is fighting in Iraq, and claims it is fighting in Syria. They would also like the Russians to leave the country. (Calamur, 2018) Everyone is scared that a general war will break out, but no one is willing to walk away and lose face.

With Russian help, the Assad regime appears to have won the civil war. Even so, the Western Powers would like to intervene, and are claiming the right to do on humanitarian grounds. The British position has already been mentioned above. The Prime Minister at the time failed to gain parliamentary approval for air strikes. In the past few weeks, the current Prime Minister has authorised air strikes without prior reference to Parliament. These were in cooperation with the Americans and the French. Justifying the strikes on the grounds of an alleged gas attack by the Syrian Government on its own civilians, she said:

And based on this advice we agreed that it was both right and legal to take military action, together with our closest allies, to alleviate further humanitarian suffering by degrading the Syrian regime’s chemical weapons capability and deterring their use…. This was not about interfering in a civil war…. And it was not about regime change. (BBC, 2018)

The Syrian Government may be using gas, but denies this. Robert Fisk, who has been to the site of the latest alleged attack, is doubtful that gas was used. (Fisk, 2018) Bearing in mind the geo-strategic issues at stake, and bearing in mind the probably terrible acts of all sides in the civil war, it is hard to believe that whatever the Syrian Government may have done is the driving concern behind this intervention.

 Counter-Arguments

One argument against the charge of double standards is that the Rwanda genocide took place at the beginning of the debates over humanitarian intervention, and may have influenced the later development of the doctrine. If it were to happen now, there might be intervention. On the other hand, there were calls for humanitarian intervention in Sri Lanka in 2009, in a civil war that may have killed 70,000 people and displaced hundreds of thousands. The Western Powers chose not to hear these calls. The Security Council is said to have become “an irrelevant actor at best and complicit one at worst during a crucial time…” (Doucet, 2012) Like Rwanda, Sri Lanka has no strategic importance to the Western Powers, and its tea exports are hardly critical.

On the other hand again, it arguable that the Israeli Government is behaving badly in its occupied territories. Also, the belief that it has acquired nuclear weapons in defiance of International Law is common knowledge that needs no referencing. No chance there of humanitarian intervention.

Conclusion

The TWAIL case seems a good one, that International Law is a legitimising ideology for the Western Powers to continue behaving as they have since about 1700. My own view, however, is that some TWAIL scholars go too far in their critique. For Mutua, “TWAIL… assumes the moral equivalency of cultures and peoples….” (Mutua, 2000, p.36) But torture is torture; murder is murder; genocide is genocide. However it emerged, whoever is in charge of it, is the International Community really to stand aside in the face of what any reasonable person regards as evil acts – acts that could be prevented? Perhaps his claim, if true, that “The [human rights movement] does not deeply resonate in the cultural fabrics of non-Western states,” (see above) just says little in favour of these cultural fabrics.

Perhaps, rather than seeking to tear it down and replace it with something new and untested, the real focus of the TWAIL critique should be to insist on a fair application of International Law as it exists. As Angie asks, it should protect people everywhere “against the excesses of the authoritarian and sometimes genocidal state,” and advance “their interests in the international sphere.”

Bibliography

Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press, Cambridge, 2005)
Antony Angie, “The Evolution of International Law: Colonial and Postcolonial Realities” (2006) Third World Quarterly, 27, 5
Aristotle, Nicomachean Ethics (c.350 BC, Kegan Paul, Trench, Truebner & Co., London, 1893)
BBC, “Syria air strikes: Theresa May statement in full” BBC News (London, April 14, 2018)
Zulfikar Ali Bhutto, The Myth of Independence (Sani H. Panhwar, Karachi, 1967)
Krishnadev Calamur, “The Syrian War Is Actually Many Wars” The Atlantic (Washington, April 13, 2018)
Rory Carroll, “US chose to ignore Rwandan genocide” The Guardian (London, March 31, 2004)
Bhupinder Chimmi, “An Outline of Marxist Course on Public International Law” (2004) Leiden Journal of International Law, 17
Marcus Tullius Cicero, The Political Works of Marcus Tullius Cicero: Comprising his Treatise on the Commonwealth; and his Treatise on the Laws (London, 1841)
Lyse Doucet, “UN ‘failed Sri Lanka civilians’, says internal probe” BBC News (London, November 13, 2012)
David P. Fidler, “Revolt Against or From Within the West?: TWAIL, the Developing World, and the Future Direction of International Law” (2003) Chinese Journal of International Law, 2, 1
Robert Fisk, “The search for truth in the rubble of Douma – and one doctor’s doubts over the chemical attack” The Independent (London, April 17, 2018)
James T. Gathii, “TWAIL: A Brief History of Its Origins, Its Decentralized Network, and a Tentative Bibliography” (2011) Trade, Law and Development, III, 1
Rudyard Kipling, A Choice of Kipling’s Verse (Faber & Faber, London, 1941)
Josef L. Kunz, “Pluralism of Legal and Value Systems and International Law” (1955) American Journal of International Law, 49
Nicolo Machiavelli, The Prince (first published in 1513, Penguin Books, London, 2003)
Martin Meredith, The Fate of Africa: From the Hopes of Freedom to the Heart of Despair: A History of Fifty Years of Independence (Public Affairs, New York, 2005)
Makau Mutua, “Savages, Victims, and Saviors: The Metaphor of Human Rights” (2001) Harvard international Law Journal, 42, 1
Makau Mutua, “What is TWAIL?” In International Law in Ferment: A New Vision for Theory and Practice – Proceedings of the 94th Annual Meeting (Washington DC 2000), The American Society of International Law
Lassa Francis Lawrence Oppenheim, International Law: A Treatise (Longmans, Green & Co., London, 1920)
Anne Orford, Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law (Cambridge University Press, Cambridge, 2003)
Geoffrey Robertson, Crimes against Humanity: The Struggle for Global Justice (Ringwood, London, 1999)
Louise Sædén, Alternative Islamic Human Rights. 2010
Malcolm Shaw, International Law (Cambridge University Press, Cambridge, 2008)
Fernando R. Teson, “Collective Humanitarian Intervention” (1996) Michigan Journal of International Law, 17
Thucydides, History of the Peloponnesian War (c.400 BC, Penguin Books, London, 2000
Tzvetan Todorov, The Conquest of America (HarperPerennial, New York, 1984)
Oscar Williams, “Britain ignored genocide threat in Rwanda” The Independent (London, March 09, 2014)
Michael Wood, “International Law and the Use of Force: What Happens in Practice?” (2011) Indian Journal of International Law, 53

 

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