THE ETHICS OF HUMANITARIAN INTERVENTION
THE CASE OF THE KURDISH REFUGEES
by
Howard Adelman
JULY 16, 1991.
       PART I
 POLITICAL INTRODUCTORY NOTES
The 1991 Gulf War was fought ostensibly to protect the principle
that sovereign nation states, who were members of the United
Nations, could not be invaded occupied and annexed by more
powerful neighbours. Following the defeat of the Iraqi army and
the withdrawal of Iraq from Kuwait, uprisings took place in the
north and south of Iraq to overthrow the Saddam Hussein regime.
Both rebellions were quickly put down and, in the north, the
suppression of the rebellion was accompanied by the harsh
repression of the local population. Reinforced by memories of
the use of chemical weapons on civilian populations, panic and
a mass exodus took place as up to two million Kurds fled into
the mountains towards the Turkish and Iranian borders.
The Turks, in contrast to the Iranians, would not let the
Kurdish refugees in. In response to formal requests from both
Turkey and France,1 and under its mandate to protect threats to
international peace and security, the United Nations Security
Council passed Resolution 688 by a vote of 10-3 condemning, "the
repression of the Iraqi civilian population in many parts of
Iraq, including most recently in Kurdish populated areas, the
consequences of which threaten international peace and security
in the region," and appealed to "all Member States and to all
humanitarian organizations to contribute to these humanitarian
relief efforts."2
President Bush of the United States had resisted the pressure of
President Turgut Ozal of Turkey and Prime Minister John Major of
Britain to become involved. He did not want to fuel Kurdish
separatism, dismember Iraq, set a dangerous precedent for
interference in the internal affairs of a sovereign state or
recommit American ground forces on Iraqi soil.3 The
ineffectiveness of the private relief operations, the refusal of
the Turkish authorities to open its borders to the fleeing
refugees, the inaccessibility of the sites in the mountains and
the urgency and massive nature of the problem impelled Bush to
act and reintroduce troops into Iraq to induce the Kurdish
refugees to return while the army provided for their relief and
protection. 
Resolution 688 was interpreted by Britain, France and the United
States as permitting, if not explicitly authorizing, the use of
military force by those countries to create safe havens within
Iraq to encourage the return of the refugees. 
"Consistent (my italics) with United Nations Security
Council Resolution 688, and working closely with the
United Nations and other international relief
organizations and our European partners, I have
directed the U.S. military to begin immediately to
establish several encampments in northern Iraq where
relief supplies for these refugees will be made
available in large quantities and distributed in an
orderly way."4 
A precedent had been set, with a widespread belief that it
was backed by some international authorization, for military
intervention in the domestic affairs of a state for purposes of
protecting a minority population from the repression of its own
government. Within several months, two unprecedented initiatives
had been taken in the post Cold War world, one to reinforce the
principle of state sovereignty and one which appeared to
undermine that principle. Both were said to be motivated, not
for "reasons of state". but ostensibly in the interests of
international peace and security and were perceived to be
actions sanctioned by the Security Council. A new option to the
traditional three solutions for refugees - repatriation,
settlement in countries of first asylum and resettlement abroad
- had been created, that is, preventing the refugees from
crossing an international border in the first place by
"humanitarian intervention", creating safe havens protected by
foreign military forces within the national homeland of the
refugees.
Humanitarian Intervention (HI) is to be distinguished from
Humanitarian Action. Though both humanitarian intervention and
humanitarian action are taken in response to clear abuses of
humanitarian law, the two differ most explicitly in the means
utilized. Humanitarian intervention employs military forces;
humanitarian action does not. Humanitarian intervention acts
without the consent of the host government; humanitarian action
proceeds only with that consent.5 Though the American-led plan
envisioned the troops being replaced by a protective force under
UN auspices and being folded into the other humanitarian action
initiated by the Secretary-General of the United Nations in the
rest of Iraq, this article is focussed exclusively on the ethics
of the humanitarian intervention defined herein as the use of
foreign military forces within the sovereign territory of a
state against the protests of that state for the humanitarian
purpose of protecting a minority population.
PART II
INTRODUCTORY ETHICAL NOTES
An ethical analysis needs to be differentiated from a
political-historical analysis, an analysis in terms of
international law or in terms of political theory. If one
compares the unilateral intervention of the Americans, Brits and
the French to the multilateral humanitarian action of the UN in
terms of the circumstances that led to the creation of two such
diverse approaches followed by a thorough political analysis of
the policies, motives, goals, norms and anticipated consequences
of the key agents, we would provide a political-historical
analysis which would help clarify why it was that two very
different policies were followed for the population in Iraq in
need of humanitarian assistance.
Further, the UN plan posed no challenge to international
law or current political theory. The humanitarian intervention
did. Was the humanitarian intervention sanctioned by
international law? How did the intervention fit in with the
tension between a concern for human rights of citizens and the
sanctity of the sovereignty, territorial integrity and autonomy
of states? Where does recognition of the legitimacy of a
government, the principle of non-intervention and self-
determination fit in?  These are questions for international law
and political theory. 
Many believe that, in the final analysis, disputes in
interpretations of international law and the theoretical basis
for adjudicating between rival principles should be settled by
ethics. One value system may require us to respect the rights of
self determination and the sovereign authority of a state within
its own territorial jurisdiction. Another value system demands
that we have a duty to protect the human rights of individuals
throughout the whole world. We may look to ethics to determine
which, if any, of the two principles should be given priority.
The issue is what weight to give to each and what action would
be appropriate given the weight assigned to the two sets of
principles. 
Ethics occupies the interstices between morality and
political and legal theory. It attempts to ensure that political
theory serves justice while attending, at the same time, to
issues of personal morality. There are two distinct approaches
to the use of ethics to resolve disputes in political theory and
international law. One can presume that ethics can and should
dictate the foundations of international law and political
theory, as well, presumably, as the political actions of any
players sensitive to such concerns. Some provide ethical
foundations for opposing humanitarian intervention. Others, for
example, Fernando R. Tesón, use ethics to argue for the
utilization of humanitarian intervention.
"Because the ultimate justification of the existence
of states is the protection and enforcement of the
natural rights of the citizens, a government that
engages in substantial violations of human rights
betrays the very purpose for which it exists and so
forfeits not only its domestic legitimacy, but its
i n t e r n a t i o n a l  l e g i t i m a c y  a s
well.Consequently...foreign armies are morally
entitled to help victims of oppression in overthrowing
dictators, provided that the intervention is
proportionate to the evil which it is designed to
suppress."6
Not only does Tesón suggest that morality should dictate
political theory, the foundations of international law and
practical political action, but that morality, with its priority
on the protection of individual human rights, should be the
ethical foundation for international affairs. Further, on this
conceptual basis, foreign armies are not only entitled to
intervene to protect the victims, the Kurds in this case, but
arrange the overthrow of Saddam Hussein himself.
There are others, myself included, who believe that the
function of ethics is not to provide categorical first
principles from which all norms of behaviour can be derived, in
imitation of the rules of international conduct, but that ethics
develops because concrete cases pose problems for international
law and political theory. Ethical reflection serves to mediate
the dilemma. We start with practice and work our way back to the
clarification of the ethical issues involved which, in turn, are
then used to help adjudicate the appropriate principles and the
actions based on them.
We do this by making clear the ethical norms implicit in a
precedent setting case in the international arena, such as the
humanitarian intervention on behalf of the Kurds, and compare
those ethical norms to those espoused by ethical theorists who
are proponents or opponents of humanitarian intervention. How do
the ethical arguments for and against humanitarian intervention
apply to the current case? The intention is not just an exercise
in descriptive ethics, but is an attempt to develop an ethical
set of norms which can be both rationally coherent and bear some
correspondence with the actual practices and dilemmas
encountered in the real world.
But what is the role of analyzing a single case in the
clarification of the ethical issues and in formulating general
principles and guidelines for the use of humanitarian
intervention? How do we know that the case was not just a rare
anomaly, an exception to the general conduct of international
affairs, rather than a precedent for future action? "A single
case of action every decade or two, in the face of literally
dozens of instances of inaction, in no way establishes
humanitarian intervention as state practice."7 
The answer is that we don't know whether it will become
state practice. But unless we analyze whether the case should
retain its exceptional status or whether it should be used as a
precedent, we have no basis for encouraging its replication or,
alternatively, relegation to an historical archive. Those who
want to see individual human rights made the priority in
international affairs will want it viewed as a precedent. Those
wary of such an innovation will want the humanitarian
intervention regarded as an exception. The point of an ethical
analysis is to encourage one or the other of these alternatives
through the analysis of the case in relationship to the ethical
arguments supporting and opposing humanitarian intervention.
When a case at least has the apearance of a precedent, when
some element of international authority seems to have been used
to back up the case, and when it is clearly and unequivocally a
genuine case of humanitarian intervention8, then it is clearly
a case that demands analysis in terms of ethics, for it has the
potential to serve as a precedent.
In the case, at least, of international norms of behaviour,
the precedent must result in universalizable norms. The
principle of universalizability applied to international ethical
norms need not be applicable to all ethical norms, for
communitarians believe that ethical norms are rooted in and
derived from the history and cultures of particular peoples. We
need not get into that debate. But an ethical norm applied to
international behaviour must be universalizable. 
The principle of universalizability is quite separate from
whether one endorses or opposes humanitarian intervention on a
priori ethical grounds. Tesón believes in universal ethical
norms and opposes any communitarian position which argues that
norms are relative to a particular community.9 He also promotes
a universal principle of humanitarian intervention. Gerard
Elfstrom opposes "intervention in the affairs of a nation-state
by individuals who are not members of the nation-state, have no
explicit authority or responsibility to oversee affairs within
the nation-state, and have not contributed in any material way
to the state of affairs which is the object of their moral
concern,"10 but upholds the position that "moral principles and
duties are universal in application."11 In fact, one of his
major reasons for opposing the position is that the universal
claims of the principle are, he believes, unenforcible. 
There is, however, a position which holds that such
universal priniples are not a priori, but are emergent
universals, principles which reveal themselves to be valid and
applicable when the historical circumstances are in place. There
are two variations on this theme. From one perspective, the
circumstances have emerged which allow for an exception to a
still dominant and overriding norm. They are contingent
conditions. The Economist of April 20th advocated a contingent
universalist ethical approach to the subject of humanitarian
intervention.
"The relief operation now undertaken by America,
Britain and France is, by any standards, intervention
in the internal affairs of a sovereign country. It
thus offends one of the canons by which some sort of
order is maintained in the modern world...(In) the
matter of intervention elsewhere...Often the
temptation to intervene was resisted for the good
reason that direct involvement would have risked world
war...The only reasons for coming to their (the
Kurds') aid, while rejecting the pleas of others, is
that the allies, having just fought a war against
Saddam Hussein, have a responsibility, however
limited, to those he has tyrannised for so long, and
have the popular support and the logistical ability to
give both aid and security to at least some of them."12
In this case, the conditions were such that they permitted
an exception to be exercised to the universal norm of non-
intervention. This conditional subsidiary universal principle
could be stated as follows: 
If you have some direct responsibility for the situation, if
your actions will not risk a larger conflict, if you have the
logistical basis for carrying out the action in the area and if
you have the political basis for support on the domestic front,
then humanitarian intervention, which contravenes the more
general norm not to intervene in the domestic affairs of another
state, is permissable.
There is also what I refer to as an evolutionary universal
position. This position holds that the norms become independent
and universal only when the institutions of the civilized world
evolved to support these ethical principles.13 Thus, Jack
Donnelly argues, from a position of evolutionary universalism
against humanitarian intervention. 
"'Advanced' values may suit a community that has
reached an appropriate level of political, emotional,
intellectual and institutional development. In
practice, however, the current 'corruption' of real
states and the absence of effective international
authorities to restrain them virtually guarantee
pervasive abuse of a principle of humanitarian
intervention."14
Whether he would now change his mind about the corruption
of states and the absence of effective international authorities
is doubtful from reading his article. But others have. For
example, The Washington Post, in an editorial headlined, "Human
Rights, 'Territorial Integrity'", argued that, "All these moves
are indications that the new world order may have higher
standards than the old and give greater priority to rights of
people as well as to rights of governemnt."15
Thomas Pogge adopts this position in this very volume. He
argues that the protection of human rights are universal but are
also conditional on the emergence of appropriate institutional
mechanisms which are global in reach. 
Now it should be clear from the depiction of the various
positions that an a priori universalist may be someone who
promotes (Tesón) or resists (Elfstrom) the introduction of
humanitarian intervention. Similarly, an evolutionary
universalist may promote (Pogge) or resist (Donnelly) the
introduction of the principle of humanitarian intervention. 
The four positions on humanitarian intervention are independent
of whether one is an a priori universalist or an emergent
evolutionist. 
One can be absolutely and unequivocally opposed to
humanitarian intervention and uphold the absoluteness of the
non-intervention principle. The NI position, as I refer to it,
can be defended by one of the most thoughtful and strongest
defenders of human rights. "A radical doctrine of
nonintervention is, despite its flaws, preferable to the
principle of humanitarian intervention; international law does
not recognize humanitarian intervention, and considerations of
policy strongly counsel against recognition in the future."16 
One can defend the general principle of non-intervention,
but allow exceptions. (NI with Exceptions) This appeared to be
the position of The Economist editorial writers quoted above.
Elfstrom holds this position. "The Samaritan is only justified
in intervention either when the harm which the dependent party
suffers is so great as to outweigh whatever benefit the guardian
relationship offers to him or when the harm is such that the
Samaritan may assume that it could not be in the interest of the
dependent party to suffer it."17 Elfstrom offers the following
special conditions to permit intervention as an exception:
"(1) The violation of rights of these citizens
must be extremely and obviously serious,
involving the systematic violations of the most
basic rights such as the right to life, to human
dignity, to freedom of expression, or to
political activity.
(2) The citizens being abused must be no longer
be capable of remedying the abuse by themselves.
(3) The abused individuals must be clearly
desirous of outside aid or may reasonably be
presumed to be desirous of assistance.
(4) Normal authorities charged with dealing with
such cases must be either unable to respond or
unwilling to respond, assuming that authorities
who have responsibility to oversee the abuses in
qustion exist."18 
As Elfstrom summarizes his position, 
"First, moral intervention in the affairs of nation-
states by members of the larger world community is
normally not justified...because it would constitute
a violation of autonomy similar to that which occurs
when an individual interferes in the affairs of
another. Second, intervention is only warranted in
exceptional cases when serious lasting harm is apt to
befall the citizenry of a nation-state unless
immediate action is undertaken by some outside
party."19
There is then a position of Limited Humanitarian
Intervention (LHI), a position I myself uphold so I will be very
brief at this point. Essentially this position puts forth a
universal norm of humanitarian intervention, not as a
conditional qualifier to the overriding norm of non-
intervention, but as a universal principle in its own right, but
one subject to its own stringent qualifiers. It is possible, as
we shall see, that someone upholding LHI might resist the
utilization of humanitarian intervention in cases where someone
upholding NI with Exceptions would allow or even advocate its
employment. There is no direct correlation between the stance
taken on humanitarian intervention and the frequency of its
application except if one upholds NI or Broad HI. 
Tesón is a defender of the fourth stance, Broad HI. It is
the position that humanitarian intervention, in all cases of
gross human rights abuses, should override the principle of non-
intervention.
Nor is there any necessary correlation between the
political philosophical posture one adopts and the position on
Humanitarian Intervention. There are four such political
philosophical postures: transnational idealism, transnational
realism, national idealism and national realism. A position is
a realist one if it takes as its basis for the recognition of
norms the existence of dominant and recognized institutions. For
national realists, the dominant actor in the international arena
remains the state.20 For the transnational realist,
international institutions, with real function and clout, have
emerged in the twentieth century and are in the process of
redefining the norms and possibilities of international
transactions.
For the idealist, conceptualization precedes
institutionalization. This does not mean that conceptualization
precedes practice. Concrete actions and situations may give rise
to conceptual clarification. But there normally is not and need
not be any international institutions in place endorsing or
upholding the new concept, whether it be peace keeping,
confidence building measures or humanitarian intervention.
Transnational idealists argue that the conception, in this case
humanitarian intervention, should and ought to become the
dominant international norm of the international community in
dealing with gross violations of human rights. National
idealists agree with national realists that the state remains
the prime authority for action in the international sphere, but
that its actions are not and need not always be governed by
self-interest. Rather, it is in the state's interests in an
increasingly interdependent world to foster humanitarian norms
which make universal claims on all players in the international
arena, and to institutionalize those new norms in appropriate
international agencies and practices. 
Transnational idealists occupy the opposite corner to the
national realists. They want the priority to shift both from the
self-interest and self-preservation of states and the state as
the prime structural component of international action to the
protection of individual citizens as the prime object of
international affairs by authorized international agencies.21
For national realists and transnational idealists, there is
virtually a direct correlation with their opposition to or
defence of humanitarian intervention respectively.
The same cannot be said of transnational realists or
national idealists. They share the common ground that the issue
of humanitarian intervention is not an open (for transnational
idealists) or shut (for national realists) case. Rather it poses
a dilemma for thinkers contemplating the introduction and
expansion of humanitarian intervention as a norm of
international practice.
"Humanitarian intervention thus seems to present a
genuine moral dilemma in which important and well
established principles conflict so fundamentally that
reasonable men of good will may disagree on how that
conflict is to be resolved. Policy considerations,
however, clearly suggest that it should not be
sanctioned as a general norm. Furthermore, arguments
for humanitarian intervention seem to ignore the
political environment of international law and the
decisive interaction of law, morality and politics in
the operation of legal norms."22
Where a transnational realist such as Donnelly (above)
might oppose humanitarian intervention, Tom Pogge might defend
it. Similarly, a national idealist might oppose or defend
humanitarian intervention in a specific case. There tends to be
no correlation between the philosophical political postures of
transnational realism or national idealism and the defense or
opposition to humanitarian intervention. For these political
philosophical stances, the ethical arguments must be weighed and
considered rather than stacked up on one side or the other as if
one were in an adversarial court proceeding.
PART III 
The Ethical Arguments 
Normative Priorities
Most commentators on humanitarian intervention in general
and on the case of the Kurds in particular have viewed it as a
conflict between two norms - the respect for individual human
rights and the respect for the territorial integrity and
sovereign authority of states. They viewed the two norms as
requiring two different responses - intervention in the first
case and non-intervention in the second case. Some argue for the
priority of one over the other, though those arguing that
priority be granted to the sanctity of the sovereign state might
be willing to grant some exceptions to the general norm (see
non-intervention with exceptions dealt with above).
I want to make two points. First, the conflict is between
three norms, not two. Secondly, the issue is not one of ranking
or subsuming one norm under the other, either as a subordinate
or qualifier, but of reconciling the three normative positions.
The third norm is respect for the self-determination of
peoples. John Stuart Mill used the principle of self-
determination to argue against humanitarian intervention on the
grounds that the people themselves must resolve their own
differences without political interference by foreign states.23
Why? There are two complementary reasons. First, because the
first premise of freedom is that only the people themselves and
not others can establish their own institutions which can
continue to guarantee that freedom. Secondly, foreign
intervention on behalf of a people's freedom is, by definition,
the annulment of that freedom. 
In the twentieth century, self-determination has come to be
identified primarily with the second reason and self-
determination is equated with the freedom of a colony from
imperial rule. It is not the people who determine their own
institutions, but the institution of the colony already
institutionalized by the imperial power that seeks its freedom
from the domination and rule of that imperial power. The people
are equated in such situations with the members of the colony,
whether or not they constitute a single people or not and
whether or not the members of the colony may belong to a people
resident in several adjacent colonies.
Self-determination in an anti-colonial sense provides
arguments for non-intervention lest a new form of colonialism
become established. Self-determination, in the sense of a
national people creating their own self-governing institutions,
by contrast, may be the basis for instigating humanitarian
intervention. Whether it is the case of the Croats and the
Slovenes fighting for their collective rights to self-
determination against the dominant Serbs, whether it is the
Latvians, Estonians, Lithuanians, Armenians or Georgians
fighting for self-determination against the dominant Russians or
the imperial order of the Communist party, whether it is the
Tamils fighting for self-determination against the dominant
Sinhalese in Sri Lanka, national self-determination must be
distinguished from state self-determination.
Further, there is no necessary connection between
collective self-determination of a people or state self-
determination and the protection of the civil rights of
individuals. In the name of both a people's self-determination
and state self-determination, civil rights may be the first
thing sacrificed. Though the dominant Sinhalese have often used
ruthlees methods to crush the movement for self-determination of
the Tamils, the Tamil Tigers in Sri Lanka make the Sinhalese
look like innocent babes.
The freedom of a community to express itself collectively
is the principle that must be correlated with non-intervention,
whether that intervention comes from a foreign power or the
state to which that people or nation belongs. Non-intervention
is a principle more appropriately applied to the self-
determination of peoples and not the sanctity of states and
existing borders.
The state has the responsibility of preserving peace and
security for its own peoples and its neighbours. When it can no
longer do so and the internal conflicts threaten the peace and
security of its neighbours, then some kind of intervention may
be warranted. The issue is not non-intervention as an absolute
principle. Nor is it the primacy and legitimacy of the state
dependent on its actions to protect the civil rights of its
citizens. The issue is whether the state is fulfilling its
functions vis a vis its own citizens and that of its neighbours
- to preserve peace and guarantee the security of its own
subjects from outside threats.
This means that, on the one hand, humanitarian intervention
is not ruled out a priori. On the other hand, it is not invoked
just because human rights have been violated, even in a massive
way. The state may exist to protect the rights of its citizens,
but its failure does not provide the grounds for intervention,
whether that is a failure to protect the individual rights of
its citizens or it is a failure to permit the self-expression of
the national entities that constitute the state. A state loses
its legitmate right to be respected only when it threatens the
peace and security of its neighbours, even if the only real
threat comes from the failures of the state in exercising its
domestic responsibilities.
The freedom of national communities to self-expression,
self-realization and self-determination is not a subordinate
principle to the integrity and the sovereignty of states. Nor do
the political and civil rights of individuals occupy subordinate
positions. Outsiders, through such actions as the Helsinki
accords or extensive economic sanctions, may challenge the
abuses of human rights or the repression of a national group,
but can only engage in humanitarian intervention using military
forces when the repression of civil and political rights and/or
the suppression of a national group seeking self-determination
poses a threat to international peace and security.
The principle of non-intervention in the domestic affairs
of a state was erected not as an end in itself, but as a
normative principle to serve the ethical value of peace and
security. An issue, such as civil rights abuses or the
suppression of the national self-determination of a people, no
longer remain domestic issues when those repressive actions
threaten the peace and security pf neighbouring states, as is
the case with mass flights of humans across borders.
Analogical Arguments - The State and the Individual
One common argument to defend or oppose humanitarian
intervention is based on the analogy of the state to the
individual. States are regarded as equal citizens before the law
just as individuals are. According to John Rawls, the treatment
of nations in the international field "is analogous to the equal
rights of citizens in a constitutional regime."24 Just as
citizens have the civil rights, the right to express his or her
views in any way as long as there is no harm to other
individuals, so the state is entitled to be secure from the
scourge of intervention as long as that state poses no threat to
another state.
But the same analogy can be turned on its head to justify
intervention whenever the individual state is not fulfilling its
function - the protection of individuals. If the first and
primary function of an individual is preserve and care for his
or her own life, and if the individual is not doing so but is
starving his or herself to death, then forced feeding may indeed
be permitted. 
"The purpose of the state organization is to protect
the right of individuals. Because the parties in the
original (contract) position agree to terms of
cooperation that are mutually acceptable and fair, the
aim of the international community thus created - that
is, divided into states - should be to protect the
rights of individuals, not the perogatives of princes.
Therefore, it is doubtful if the parties in the
original position would agree to an unqualified rule
of nonintervention that would jeopardize the very
rights the original position is primarily supposed to
secure - those that form the content of Rawls's first
principle of justice."25
There is a second analogical argument used to both oppose
and defend humanitarian intervention. The state is conceived of
as a parent and its citizens are its children so that the state
has a guardian relationship to its children. Elfstrom, after
postulating that "the government of a nation-state stands in a
special relationship somewhat similar to the special
relationship between parent and offspring,"26 uses the analogy
to argue against intervention.
"The individual whose rights are being violated is
only one member of a larger citizenry whose rights, in
the great majority of cases, are not being violated
and who will be harmed (i.e., their autonomy will be
impinged) if action is taken on behalf of the injured
individual. It is as if the Samaritan in attacking a
parent beating his child were at the same time
injuring the source of support of other children in
the family."27
Elfstrom claims that the explains the "hesitancy of the
courts to remove children from the custody of their parents even
in cases of abuse or neglect."28 Evidence might suggest that the
courts are not, in fact, that reluctant, but, in any case, this
would merely reverse the use of the analogy to argue for
humanitarian intervention. This is precisely what Tesón does
when he challenges the view that only governments are authorized
to interpret the interests of its citizens on the basis that,
"it is widely accepted today that society may and must intervene
to protect children against parental mistreatment."29 Tesón
turns the analogy around to attack those who believe
intervention would be an abuse of the autonomy of citizens who
alone have the absolute right to determine and overthrow an
abuser, as if the child's autonomy would be abused if an
outseider came to his or her aid when a parent was abusing that
child. Quite the reverse, Tesón argues. The interventionist is
protecting the autonomy of the child. 
But Tesón surprisingly misses the key argument of
Elfstrom's thesis. Tesón concedes that, "intervention is wrong
where some of the oppressed individuals, perhaps a majority,
oppose foreign humanitarian intervention (maybe their
nationalist feelings are stronger than their dislike for the
government)," and then continues to state that, "Elfstrom's
thesis is nevertheless indifferent to that issue."30 In fact, as
my initial quote from Elfstrom indicates, this is his main
argument. Intervention may be appropriate for the children being
abused but it deprives the majority who are not being abused,
and who may even support the government, of their parental
guardian. And this was the situation in Iraq where the Sunni
majority at least, and perhaps the majority of Iraqis, according
to April Glaspie, the U.S. Ambassador to Iraq at the time the
Gulf War broke out. "Although in the West Saddam was not
generally recognized as a legitimate leader, a great many Iraqis
supported him. They may not like him, but they like his program.
'It is an illusion to think he is not supported.'"31
In any case, Tesón slips arround the issue by misleadinly
claiming that the argument is only about the obligation to
intervene, whereas he wishes to use the analogy to argue for the
right to intervene. 
"We regard children as having some fundamental rights
that not even parental authority may override, and so
we consider ourselves entitles to intervene in cases
of serious abuse. Similarly, citizens have certain
rights that governments may not ignore, and
consequently foreigners are entitled to provide help
to individuals whose rights are being violated by
their government."32
Professor Przetacznick is quoted as a source to back up
this right of intervention. 
"When freedom is lost a man has the duty to fight for
his own freedom, for freedom of his own country and
for the freedom of other men. A man has a moral duty
to help all other men who fight for their freedom
against foreign and domestic oppressors. In the
defense of freedom...and in the fight for the recovery
of freedom, men, people or nations should use all
legitimate means to achieve the sacred task to
liberate everywhere men from a domestic and foreign
deprivation of freedom."33
Thus an obligation which became only a right is now turned back
into a duty again. And the parent-child analogy becomes the
basis for a crusading moral and militant defence of freedom
everywhere at anytime and any place, the precise formula which
frightens all the critics of humanitarian intervention.
The analogy misses the point. A governement sending in
military forces to assist those whose rights are being abused is
not an individual helping another, thereby taking a risk on his
or her own part. A governement is ordering its own young men and
women to take that risk where it may be unclear whether more
harm will be produced by the intervention than by the original
abuse. If the guardianship analogy applies to the abuser, it
also applies to the intervenor, and then the question is whether
the intervenor is abusing his or her own children when he asks
them to risks their lives to prevent the abuse of other
children. This argument alone should indicate the fallacy of the
analogy altogether.
Other analogies are used which seem more apt, even if not
exact, in catching the connection between humanitarian
intervention and questions of autonomy, though they clearly are
lacking in comparative relavance if one does not want to suggest
that a state involved in massive abuse of the rights of its own
citizens has lost the ability to make decisions for itself. One
of these is intervention when an individual is mentally or
physically ill. Professor Brownlie uses the extreme case of
euthenasia.34 I'll look at the same issue from the angle of the
right of a state in its death-throws, not to argue that the
analogy provides a direction for resolving the dilemma, but
because the analogy indicates the inadequacy of this type of
analogical argument.
The analogy is this. In the modern nation-state system,
protecting the absolute sanctity and autonomy of a sovereign
state and its territorial integrity is akin to protecting the
absolute sanctity of the life of the individual even when that
nation-state has become dependent on an external supply line of
life support systems for its continued maintenance. Outside
nations are not entitled to intervene, except to supply relief
and emergency treatment to sustain that life. Some would go
further and argue that humanitarian intervention, without the
consent of the individual state, would amount to the provision
of unwanted medical treatment and would violate the integrity
and rights of the individual state.
In other words, humanitarian intervention, as defined above
in terms of the use of military forces to protect the rights of
a minority population being subjected to abuse, goes beyond the
legitimate bounds of the moral debate about intervention in
cases of a terminally ill patient. In that case, the debate is
between those who would give others the right to deny medical
treatment and those who insist that it is their responsibility
to provide such treatment even though the patient may even be
comatose.
For example, "the right to interfere", that is the right to
send humanitarian aid (not, note, military forces to protect the
Kurds) into the hitherto sacrosanct internal affairs of a member
state of the United Nations without the consent of that state,
was evidently first publicly broached at a conference in 1987 at
the Law School of the University de Paris-Sud, a conference
appropriately co-sponsored by a medical group, Medecins du Monde
and attended by philosophers as well as famous individuals such
as the actor Yves Montand and the French President's wife,
Daniele Mitterand. The result was a government initiative in
December of 1988 in the United Nations General Assembly which
gave formal recognition to the right of NGO's to provide such
aid
on their own initiative and, implicitly, without the consent of
the host state. The General Assembly Resolution 45-100 of 1990
reinforced Resolution 43-131 of 1988 by providing the mechanisms
for NGOs to reach the victims in need of aid. The Security
Council Resolution 688 of April of 1991 was seen by the backers
of the earlier resolutions as translating the soft law with only
moral force of the General Assembly into the hard law of the
Security Council, where there was a right of enforcement,35 but
no clear stipulation that this would directly involve the use of
foreign military forces.
In other words, in the domestic debate over an individual's
autonomy when facing death, the issue was whether other
individuals have the right to interfere to stop feeding an
individual who was comatose when the traditional norms had been
that intervention was only allowed to sustain life. In the
international arena the bebate was reversed. The issue was
whether outside parties had the right to intervene to provide
food and medical assistance against the traditional norm which
prohibited such intervention.
Not only does the analogy seem to break down because the
sides of the debate seem to have reversed position -
traditionalists in the case of individual morality holding that
one can only intervene to provide aid but not deny it, except
with the explicit consent of the individual to which the aid is
to be given (as in the form of a living will), while
traditionalists in the international arena holding that one can
only actively provide aid with the explicit consent of the
individual state. In the one case, aid is provided, unless it is
explicitly refused. In the other case, aid is not provided
unless it is explicitly requested or, at the very least, consent
is given to its provision.
What is the moral issue in each case. In the case of
medical treatment for an individual, medical personnel face a
dilemma. On the one hand, they must respect the autonomy of the
the individual and his or her right to decide what medical
assistance is acceptable. On the other hand, they also have the
obligation to act in the patient's best interests.36 In the
international case, states have the obligation to respect the
autonomy of other states but there is a question whether any
authority has been assigned the responsibility of caring for the
"best interests" of the state or its citizens. Assume for the
moment that, through the two international covenants on human
rights, the United Nations has been given this assignation, then
the United Nations is akin to the medical profession in being
faced with the dilemma of being required to respect the autonomy
of its member states and, at the same time, its responsibility
for taking care of the human rights of the members of the states
which constitute its own membership.
In the case of individual moral issues of intervention for
the health of the patient, the general principle is that the
autonomy of the patient, rather than his best interests, will be
decisive in all such cases. In the United States, in accordance
with the so-called Missouri rule of the Supreme Court,
intervention is endorsed in the case of incompetent individuals
unless there is decisive evidence that the individual decided to
the contrary. In other words, one cannot unilaterally decide to
stop giving aid unless one has explicit authority from the
individual to which the aid is being given, to stop such
assistance. In the case of aid to states, tradition ruled that
one could not start giving aid unless one had the explict
consent of the state receiving the aid. In the case of
humanitarian intervention for comatose patients, the Missouri
rule is being challenged in favour of a rule where evidence need
only be given that, were the patient competent, he or she would
decide to have the technical support equipment cut off. In the
case of humanitarian assistance for states, the traditional rule
of non-intervention is being challenged to insist that aid be
given even if the consent of the state is absent.
There is another angle at which to look at the issue, not
from the analogy of the autonomy of the individual to the
autonomy of the state, but from the responsibilities of
authoritative institutions. In the case of the state and the
individual, the state has been given the positive right,
traditionally, to intervene with the autonomy of the individual
to prevent abortion even if in most liberal western states that
right of intervention is restricted to the third trimester of
pregnancy. This has presumably be done on the basis that the
state bears a special responsibility to protect life, and the
only debate is when the foetus is considered to be a living
being. 
In the case of the relationship of the international
community to a member state, the international institutions
traditionally were not given any right to intervene even when
individual states terminate the lives of its members for
whatever reasons that state decides to do so. Though
international institutions may have been given a right in the
protection of the human rights of those members, it could not
intervene to prevent the state's decision to 'abort' the lives
of its individual members. Again, the same traditionalists who
demand the right of the state to intervene to prevent abortions
in the case of individuals tend to be the same people who resist
the right of intervention when another state is aborting the
lives of its own people. 
The point of using these analogies is not to indicate that
conservatives and liberals are both hypocritical in arguing for
very opposite positions in the case of intervention in cases of
individual morality and in international behaviour, but to
suggest that analogous arguments from the requirements of moral
relations between individuals and between states just do not
seem to work. The autonomy of the individual and the autonomy of
the state are two very different kinds of autonomy. They seem to
be akin in that the negative right denying others the right to
intervene in a decision which belongs to the individual person
or state alone seems similar, but the real debate is over what
decisions remain the exclusive property of the individual to
make. The direction of history seems to be on the side of
increasing the rights of the individual to enhance his or her
autonomy while, partly in response to the recognition of those
increased rights, to reduce the areas of autonomous action of
states, particularly where those actions infringe on the rights
of individuls. This alone suggests that the classical
parallelism between moral codes covering the realtionship of
individuals and the states to which they are members and the
relationship between states and the organizations of which they
are members just does not work.
This means that the underlying conception of consent and
self-determination as applied to both individuals and states
needs to be explored further.
Non-Intervention and Consent
The issue of consent has been raised both to argue against
and for humanitarian intervention. As John Rawls depicts the
theory of consent, pluralism depends on the normative
committment to noncoercion and to the achievement of "free and
willing agreement".37 Thus, Donnelly argues that, the "moral
foundation of nonintervention is self-determination,"38 whereas,
"Humanitarian intervention rests on the presumption that a
genocidal regime does not have the consent of the people, so
that the general rule of nonintervention does not apply." In
rebuttal, Donnelly claims that, "Such an argument confuses the
injustice of a regime with the right of others to remedy the
injustice."39 This follows Walzer's dictum that outside
intervention cannot make the majority population of a state
better than they want to or can become. 
But those who argue for humanitarian intervention claim
that the very restriction on intervention depends on a principle
of recognizing the legitimacy of a regime, and that legitimacy
is in turn dependent on whether the regime acts to protect the
rights of its citizens. The prescription against intervention is
restricted only to those states, "which conduct themselves in
compliance with the principle of equal rights and self-
determination of peoples"...and this is only "possessed of a
government representing the whole people belonging to the
territory without distinctions as to race, creed or colour."40
In contrast to this view of legitimacy as depending on how
the state respects the human rights of its citizens is the
Walzer
communal integrity thesis where, "the rights of contemporary men
and women to live as members of a historic community and to
express their inherited culture through political forms worked
out among themselves"41 is primary. As Walzer depicts what has
become known as the 'fit thesis', "unless a government grossly
mistreats its people, foreigners are to presume that the
government is legitimate and therefore, refrain from
intervening."42 In contrast, for Tesón, "Agovernment is
legitimate in internal and international relations when it
observes a certain human rights standard determined by
objectively valid (although not self-evident) principles of
political justice."43 Legitimacy would seem to be defined in a
way simply to support or oppose humanitarian intervention.
Behind the issue of the correspondence of the requisite
condition of the consent of the people to prevent any
intervention, international humanitarian law is cited44, in
particular, Article 1,2 of the UN Charter, the friendly
relations clause, which is based "on respect for the principle
of equal rights and self-determination of peoples" and the
General Assembly Resolution 1514 that, "all peoples have the
right to self-determination."
But the Universal Declaration of Human Rights makes no
reference to the self-determination, and only deals with
individual and social rights, not the rights of peoples or
community rights. Although Article 21, paragraph 3 states that
the will of the people shall be at the basis of the authority of
government, Article 2, paragraph 7 of the UN Charter is
unequivocal. "Nothing contained in the present Charter shall
authorize the UN to intervene in matters which are essentially
within the domestic jurisdiction of any state."
Thus, although consent is a principle of self-government
that the UN recognizes, the absence of such consent does not
legitimate intervention. And the reason is clear. The peace and
security of states is a higher norm than the existence of states
based on the consent of its citizens.
Now it is clear that for individual rights theorists in the
tradition of John Locke, what makes government legitimate is the
consent of the individual. Similarly, for writers in the
communitarian tradition of Rousseau, "the duty of obedience is
owed only to legitimate powers"45 and unless a ruler transforms
force into right and obedience into the accepted duty of the
citizens, there is no legitimacy. But a number of writers have
challenged the very basic thesis that there is a connection
between legitimacy and the corresponding obligation to obey the
government, and the issue of consent. For, they argue, merely
being a 'member' entails obligations qua member. The issue is
not one of consent, but membership and belonging. Thus, for even
a civil society to exist where an individual is permitted to
persue private ends, there must bea system of universal ethical
rules, a system of rights and obligations binding on all members
of the system. Membership in the state, for Hegel, provides this
ethical framework of rights and obligations.46
"Why should I (a member) accept the rules of the club?
is an absurd question. Accepting the rules is part of
what it means to be a member. Similarly, 'Why should
I obey the government?' is an absurd question. We have
not understood what it means to be a member of a
political society if we suppose that political
obligation is something that we might not have had and
that therefore needs to be justified."47
Obligations cannot be raised about duties to governments in
general, but only in reference to specific laws or duties. But,
as Carol Pateman points out48, it may raise questions about our
obligations to specific forms of government. "Any argument that
moves straight from the conceptual connection between 'being a
member of a political society' and 'political obligation' to
conclusions about our obligation to specific political
institutions is stretching purely conceptual analysis beyond its
proper limit."49
While I believe Carol Pateman's point is well taken, it
does not challenge the major issue of a Rechtsphilosophie, that
we may not be obliged to this or that type of state, that is, a
liberal-
democratic type of state based on consent or a dictatorship, but
we must belong to some state to have rights and obligations. The
real question is whether and under what conditions those
obligations have limits such that I refuse to accept specific
obligations that the state imposes and, at the extreme end of
that spectrum, my sense of obligation to the state itself and
everything it stands for ends and I declare myself, in effect,
stateless. Further, when I declare myself as such, what
obligations does the international community have towards me if
that state begins to persecute me and others like me? In sum,
why should the state lose its international legitimacy if large
numbers of citizens in effect say they no longer accept any
obligations to the existing regime and the state, in turn,
persucutes those deefectors?
James Fishkin proposed two general kinds of legitimacy
criteria, procedural criteria entailing conformity to some
procedure or decision-rule which define the necessary and
sufficient conditions for legitimate actions by the regime
(consent, unanimity, majority rule or, one he himself proposes,
the absence of intensity of opposition), and structural criteria
whereby the political-economic arrangements are ethically
acceptable if they achieve the prescribed distribution
(equality, utilitarianism, Rawlsian maximin justice).50 The
point he makes is that any procedural or structural criterion
will, in certain circumstances, legitimate a policy which will
impose severe deprivations when an alternative policy would not
- his definition of tyranny. Thus, consent is an inadequate
criterion for legitimation of a regime
There is a separate objection to the use of consent or
self-determination as a criterion of legitimacy. A government
has legitimate authority if its citizens comply with its
decisions without coercion.51 A citizen is morally obliged to
comply with the decisions of such a government. But a government
may exercise authority over most but not all of its citizens or
all of its territory. Is it a legitimate government? Legitimacy
entails not only procedural and structural criteria, which other
governments may use, but there exists a separate and different
external criterion - the recognition of such a government as
having de facto power by other governments, that is, exercises
authority over most of its population and most of its territory.
Thus, a government may have the consent of the population - the
government of Slovenia in July of 1991 - but not be recognized
as legitimate, or, as in the case of the government in Zagreb,
it may be recognized as legitimate but exercise virtually no
authority.52
In sum, consent or self-determination is neither a
sufficient nor a necessary conditon of legitimacy even when it
is argued that consent is a necessary basis of both political
obligation and authority. Nor are other states morally obliged
to use consent as a necessary criterion for granting legitimacy
to the state and its government.
Conditions for Intervention or Non-intervention:
A number of arguments both supporting and opposing
humanitarian intervention use as a key consideration the
evolution or non-evolution of international instruments which
could legitimate intervention as a humanitarian rather than an
action of a self-interested state. My own point, which can be
made quite succinctly, is that the international agencies who
should be the disinterested parties - the International Red
Cross, the United Nations - are not the supporters and advocates
of humanitarian intervention, but the ex-political and economic
imperial powers are. Further, since the humanitarian
intervention in Iraq was not initiated as a multilateral but as
a unilateral action, it provides no evidence for the evolution
of such international institutions.
There is another conditional argument that has been used to
argue against humanitarian intervention - the absence of
adequate knowledge on which to base any intervention. Michael
Walzer makes this point when he claims that foreigners, "don't
know enough about its (a people and a government's) history, and
they have no direct experience, and can form no concrete
judgements, of the conflict and harmonies, the historical
choices and cultural affinities, the loyalties and resentments,
that underlie it."53 Without such knowledge, foreign states lack
the knowledge to make the appropriate judgements to guide their
conduct. Jack Donnelly makes the same essential point in a more
modest way. "While there have been major advances in recent
years in human rights fact-finding, even the facts are subject
to considerable uncertainty and partisan abuse."54 For virtually
all agree that if there is to be humanitarian intervention, it
can only be done in cases of gross human rights abuses. But that
poses problems with establishing evidence for the number of
cases, the proportion per capita, the numbers of those that were
jilled or injures who were non-combatants and the proportion of
those who were killed simply as a result of "collateral damage".
And even then, given all these factors, there has to emerge an
institutional procedure and substantive agreement for
establishing a threshold, above which the human rights
violations are deemed to be "gross". Even then, and this does
not exclude international bodies as Israel would contend, one
has to take into account ideology and interests that may distort
such judgements.
Yet the Kurdish case seems to belie this argument. Though
there are and will be disputatious cases where the warrant for
action in terms of adequate knowledge and the basis for making
an unbiased assessment is lacking, there would seem to be cases
that
where the evidence is clear and overwhelming. But if we examine
this case, what is the evidence - a historical record of
systematic human rights abuses, a harsh repression of a
rebellion, but most of all a mass exodus and the clear and
unequivocal suffering of those trapped in the mountains and
prevented from crossing the border into Turkey. 
Walzer and Donnelly are right in that the absolute number
and proportion of human rights violations were not documented,
nor was there time to document them. Further, in the
international definition of a refugee, one need not produce
evidence that one's human rights have been violated but only
that one has a "well-founded fear". The advocates for
humanitarian intervention, in focussing on wide-spread human
rights violations as the key epistemological factor, would seem
to be barking up the wrong tree. One needs only to document
subjetive factors - fear and suffering, ironically easier to do
than the objective evidence needed to establish systematic and
wide-spread human rights violations. For the act of flight and
the suffering endured is sufficient.
There is a third conditional argument which has nothing to
do with knowledge or with institutional mechanisms being in
place to make authoritative disinterested judgements and
everything to do with capability and the willingness to act.
There might have been 1,000,000 Tibetans killed, a very high
proportion of its population, since the Chinese occupied that
country. Does anyone envisage the international community acting
against the member of the Security Council with 20% of the
world's population? Put cynically, for humanitarian intervention
to occur, the "necessary conditions seem to include very low
prospects of successful retaliation or loss of benefits, the
absence of Cold War concerns..., and an unusally high level of
popular interest. In practice, this implies restricting
humanitarian intervention to acting against weak, notorious and
particularly peripheral countries, especially pariah regimes in
relatively insignificant countries."55 
Donnelly's own examples of Rwanda, Burundi and Guatemala,
though not the Indonesian action in East Timor, which were weak,
notorious and particularly peripheral, did not invite
interventions, whereas Iraq, which was a central power in the
Gulf region, did. Pakistan was not weak and peripheral when
India intervened. The kernel of truth in Donnelly's claim is
that humanitarian intervention would be administered unevenly
and probably not against the most powerful states. 
But since when do emergent new international institutions
and practices have to come into existence in their most pristine
form. In fact, one can cite numerous instances in which
international humanitarian practices emerged for the most
cynical of motives. Let me cite but two eamples. The Nansen
paasports which provided refugees with travel documents so they
could seek a safe haven were widely accepted, not because
governments were so interested at the time in refugee
protection, but because they wanted to get rid of the refugees.
Secondly, when at the Evian Conference in 1938, the
international community accepted for the first time an
obligation to help refugees, but at that time it was but a
cynical public relations exercise on the part of the Roosevelt
government to give the impression of action on behalf of the
Jews fleeing Nazi Germany, who knew at that time that the very
same acceptance of an international obligation would become the
foundation stone for creating an international regime to provide
relief and protection for refugees. Cynicism in the historic
emergence of humanitarianism can become a virtue.
There is a fourth relevant condition which is cited as a
reason not to introduce humanitarian intervention in the form of
foreign military forces on the territory of a sovereign power to
protect endangered minorities - the existence of alternative
extra-territorial instruments, such as economic sanctions, what
Donnelly calls "positive non-intervention".56 The Kurdish case,
as well, I believe, as the more disputatious case of the Iraqi
invasion of Kuwait for international military action to counter
aggression, made clear that time was not available to save the
Kurds using economic sanctions. Humanitarian intervention should
be an instrument of final resort. But the arguments suppoting
its use as a final resort cannot then be used to deny its utlity
altogether.
Consequentialism
The most telling argument, in my mind, against the
introduction of humanitarian intervention as an instrument of
protection for persecuted peoples has been the negative
consequences of such actions - the prospect that more suffering
will be wrought by the intervention than lives saved and the
precedent set for abuse.
Beitz makes the first point succinctly. "I have not
advocated the use of military force to move national societies
toward conformity with any particular moral principles...For me,
it is that the prospects of reform intervention in unjust states
are normally uncertain whereas the costs in blood and treasure
are certainly extreme."57 Further, the suffering which would
result from adopting alternative choices, such as the use of
economic sanctions, must be weighed against the prospect of the
suffering that may be wrought if humanitarian intervention is
utilized. 
But this is an argument, not for ruling out humanitarian
intervention altogether, but for ensuring that the way in which
one intervenes is both effective while minimizing the chances
for confrontation and conflict. It is an argument for taking
great care about its employment, just as one is urged to be very
cautious about the situations and the conditions in which one
utilizes a newly invented radically invasive technique in
medicine. Contemporary military strategies and tactics must be
employed to ensure sufficient force is employed to intimidate
the enemy while providing adequate protection, without, at the
same time, threatening the territorial integrity of the state.
Further, the prospective suffering of alternative choices will
have to be weighed.
The real concern is that the precedent will be used and
abused in situations in which humanitarian intervention is
either unwarranted or is merely a cover for a power play by a
state where self-interest is employed in the guise of
humanitarianism against "weak neighbours whose civilizations are
held in contempt and under circumstances that have more to do
with self-interest of the 'liberators' than the 'liberated'."58
"Behind this concern is the rule utilitarian argument that,
regardless of the consequences of the particular case, the
implicit norm of the particular act implies a general rule; we
ought not to adopt a rule in which, in its observance, the
overall consequences have a (high, reasonable) probability of
producing more harm than if the norm were not adopted."59 As
Jack Donnelly succinctly puts it, "Intervention is a serious
enough problem without offering great powers a fine-sounding
cover for self-interested schemes...priority ought to be given
to minimizing opportunities for intervention, rather than
creating doctrines certain to be abused to justify self-
interested actions."60 He puts his case even more strongly as
follows: "The noble aims of such legal idealism, however, are
subverted by precisely the moral 'defects' they attempt to
reform. 'Advanced values may suit a community that has reached
an appropriate level of political, emotional, intellectual and
institutional development. In practice, however, the current
1..  Letters sent by representatives of Turkey and France to the United Nations
dated 2 April 1991 and 4 April 1991, respectively. (S/22435 and S/22447)
2..  Resolution 688 (1991) UNSC/Res/688 (1991), April 5, 1991.
3..  cf. Elaine Sciolino, The New York Times, April 18, 1991, A6.
4..  The New York Times, April 17, 1991, A7.
5..  cf. IRRC 280 Jan/Feb 91. p. 12.
'corruption' of real states and the absence of effective
international authorities to restrain them virtually guarantee
pervasive abuse of a principle of humanitarian intervention.
Therefore, establishing such a principle is likely to produce a
worse situation, as defined by the values being promoted. These
values may even be corroded through pervasuve cynical abuse."61
The result could be "a new normative basis for recourse to war
that would give powerful states an almost unlimited right to
overthrow governments alleged to be unresponsive to the popular
will."62 
Schachter, in the last quote, however, was not arguing
against an absolute ban on the use of military force for
humanitarian purposes, but for the evolution of international
rules and agreements on the employment of such force to prevent
abuse. The benign effects can be greater than any bad precedent
if the innovation is accompanied by very strict and limited
rules for its application so that humanitarian intervention does
not become "simply a cloak of legality for the use of force."63
Though Donnelly is cynical about the corruption of states and
the possibility of the emergence of such rules, paricularly
enforceable ones, as to be wary about the introduction of
humanitarian intervention, the arguments made count only against
the timing and the conditions under which this new international
institutional device is introduced and not against its
introduction per se. 
Conclusion
6..  FernandoR. Tesón, Humanitarian Intervention: An Inquiry into Law and
Morality. Dobbs Ferry, New York: transnational Publishers, 1988, p. 15.
7..  Donnelly (1983) p. 317.
8..  cf. Brownlie, 1974.
9..  Tesón (1988) pp. 31-50.
10..  Gerard Elfstrom "On Dilemmas of Intervention" Ethics 93 (1983), p. 709. 
11..  ibid, p. 723.
12..  The Economist 319:7703, April 20, 1991, p. 12.
13..  There are those who argue that the basic principles of ethics, such as
fairness, can never be influenced or determined by contingent circumstances.
cf. John Rawls, A Theory of Justice, Cambridge, Mass.: Belknap Press, 1971, pp.
337-338. However, Thomas Pogge (Realizing Rawls. Ithaca, N.Y.: Cornell
University Press, p. 138 text and fn. 35) argues that the serially ordering of
basic rights and liberties in Rawls is dependent on whether the social
conditions allow the establishment of such rights (Rawls (1971) pp. 152 and
542), though he does admit that Rawls "cannot mean what he says, because it
would make completely obsolete the first priority rule attached to the special
conception." (p. 139, fn.)
14..  Donnelly (1983) p. 323.
15..  The Washington Post, April 15, 1991, A9.
16..  Donnelly (1983) p. 312.
17..  Elfstrom (1983) pp. 721-722.
18..  Ibid, p. 723.
19..  Ibid, p. 725.
20..  cf. Hans.. Morgenthau, Politics Among Nations (1978) where he provides a
critique of the limited humanitarian interventionism advocated by Walzer (1977)
and Cohen (1984).
21..  For a more sophisticated case than Fernando Tesón makes, cf. Mark Gibney 
22..  Donnelly (1983), p. 323.
23..  John Stuart Mill, "A Few Words on Non-Intervention," in Dissertations and
Discussions. London: , 1983, pp. 171-176.
cf. Tesón (1988) for a discussion of Mill's and Walzer's position in this
regard. (pp. 26-31)
24..  John Rawls, A Theory of Justice. Cambridge, Mass.: Belknap Press, 1971, p.
378.
25..  Tesón (1988) pp. 63-64.
26..  Elfstrom, "On Dilemmas of Intervention," 93 Ethics (1982-83), p. 714.
27..  Elfstrom (1983) p. 721.
28..  Ibid, p. 723.
29..  Tesón (1988) p. 84. Tesón uses his teacher, A. D'Amato, International Law:
Process and Prospect (1987) p. 226 as his support and authority for this
conclusion.
30..  Tesón (1988) p. 84.
31..  Bob Woodward, The Commanders. New York: Simon and Schuster (1991), p.359.
32..  Tesón (1988) p. 85.
33..  Przetacznick, "The Philosophical Concept of Freedom as a Basic Human Right,"
63 Revue de droit international, de sciences diplomatiques et politiques 93,
157 (1985) as quoted in Tesón (1988) p. 85, fn. 33.
34..  Ian Brownlie, "Humanitarian Intervention," in J.N.Moore ed., Law and Civil
War in the Modern World, 1974.
35..  cf. the account of Mario Bettati, who is a Professor of International Law
and former Dean of the Law School of the Université de Paris-Sud and who
sponsored the original conference, in The Washington Post, Sunday, April 14,
1991, entitled, "The Right to Interfere".
36..  cf. Richard Dworkin, "The Right to Death", in The New York Review of Books,
XXXVIII:3, January 31, 1991, p. 14.
37..  John Rawls, "The Idea of an Overlapping Consensus," Oxford Journal of Legal
Studies 7 (1987): 4.
38..  Donnelly (1983) p. 328.
39..  Donnelly (1983) p. 319.
40..  cf. Khairallah (1973).
41..  Michael Walzer, "The Moral Standing of States," 9 Philosophy and Public
Affairs (1978-79), p. 211.
42..  Walzer, p. 386.
43..  Tesón (1988) p. 93.
44..  cf. Umozurike (1973).
45..  John Jacques Rousseau, The Social Contract. London; Penguin, 1968, Bk. I,
Ch. 3.
46..  cf. G.W.F. Hegel, Philosophy of Right
47..  T. McPherson, Political Obligation. London:      , 1967, p. 64. See also
Margaret Macdonald, "The Language of Political Theory" in Anthony Flew ed.,
Logic and Language, Oxford: Oxford University Press, 1960, and Hanna Pitkin,
"Obligation and Consent," in Peter Laslett and James Fishkin, eds., Philosophy,
Politics and Society, Fourth Series, Oxford: Basil Blackwell, 1972 for
arguments on the same theme. Carole Pateman, "Political Obligation and
Conceptual Analysis" in the Fifth Seues of the Laslett/Fishkin series provides
an incisive analysis of this position.
48..  Carole Pateman, "Political Obligation and Conceptual Analysis," in Petr
laslett and James Fishkin, Philosophy, Politics & Society. Fifth Series. New
Haven: Yale University Press, 1979, pp. 227-256.
49..  Ibid, p. 233.
50..  James Fishkin, "Tyranny and Democratic Theory," in Peter Laslett and James
Fishkin, eds., Philosophy, Politics & Society. New Haven: Yale University
Press, 1979, pp. 197-226.
51..  cf. Leslie Greene, 
52..  cf. Harry Beran, The Consent Theory of Political Obligation. London: Croom
Helm, 1987 who concludes his book precisely on this point.
53..  Michael Walzer, "The Moral Standing of States," 9 Philosophy and Public
Affairs (1978-79), p. 212.
54..  Donnelly (1983), p. 322.
55..  Donnelly (1983) p. 321.
56..  Donnelly (1983) pp. 325-28.
57..  Beitz (1980) pp. 390-91.
58..  Franck and Rodley, "After Bangladesh: The Law of Humanitarian Intervention
by Militaru Force," American journal of International Law (1973), p.
59..  cf. Ian Brownlie, "Humanitarian Intervention" in Moore (1974), p. 226. cf.
also Ewing "What Would Happen If Everyone Acted Like Me" 28 Philosophy 16
(1953).
60..  Donnelly (1983), p. 321-22.
61..  Donnelly (1983) 323.
62..   Schachter, "The Legality of Pro-Democratic Invasion," in the American
Journal of International Law. 78:1984, p. 649. See also his articles, "in
Defense of International Rules on the Use of Force" in The University of
Chicago Law Review 53:1985, and"The Lawful Resort to Unilateral Use of Force,"
in the Yale Journal of International Law 10:1985.
63..  Hassan "Realpolitik in International Law: After Tanzanian-Ugandan Conflict,
'Humanitarian Intervention' Reexamined," Wilamette law Journal (1980-81), p.
862.