Rapes, Massacres and Humanitarian Intervention

The recent events in Guinea have, unsurprisingly, provoked revulsion. Massacre of a crowd demonstrating against the government culminated in mass rapes, some carried out by the insertion of bayonets into women. Bernard Kouchner, the foreign minister of France, stated that massacres were not matters of only internal importance and strongly hinted at a desire to intervene.

It is, however, sobering to remember that when Vietnam invaded Kampuchea in 1979 in order to remove Pol Pot's regime that the Vietnamese were almost universally condemned with the French delegate to the UN at that time describing the notion that "because a regime is detestable foreign intervention is justified" as "extremely dangerous". In fact, if it had not been for a veto from the Soviet Union, there would have been passed a resolution calling upon the Vietnamese troops to withdraw.

During the Rwandan genocide of the 1990's no one moved to intervene and it took the slaughter of Srebnica to move Western governments to act to stall and eventually turn back the Serbian tide in the Yugoslav wars. Even the intervention into Kosovo carried out by NATO later in the decade came without UN sanction and against a backdrop of disapproval from Russia.

Given this situation it appears far from settled that there is any kind of generally recognised humanitarian right to intervention despite the fact that there has, in recent years, been much talk of one. The problem often seems to be that explicit and general recognition of such a right is felt to be a two-edged sword. It is also blatantly evident that states continue to be moved by considerations that are only selectively moral.

None of this is an indication that the French (or someone else) should not intervene in Guinea. The regime there is clearly a danger to its own population on whom it has effectively declared war. However this was just as clearly true for the regime of Pol Pot despite the Western response at the time of the Vietnamese invasion. Perhaps further clarification of the grounds, bases and right of intervention could do with being undertaken?

Publicity and Permissive Laws

At the end of yesterday's posting I suggested that there might be some kind of argument at the close of Kant's treatment of the second definitive article of Perpetual Peace that was worth consideration and that would, if so considered, perhaps alter the view I have previously expressed concerning the division of the preliminary articles in Perpetual Peace. Now, without perhaps entirely delivering on this promise, I want to give an account of publicity that might lie at the back of the idea that there are permissive laws to do certain things that a full condition of right would not authorize.

In the course of one of the many splendid chapters of his book Justice and the Social Contract Samuel Freeman makes the following remark: "Publicity assumes that principles of justice will provide a shared public basis for political discussion, criticism, and justification. Principles that cannot gain knowing, widespread support from reasonable and rational members of a well-ordered society are to be passed over in favour of those that do." (91) I am now going to re-interpret this remark in relation to Kant's admission at the close of his discussion of the second definitive article that since nations reject the hypothesis of the world republic (despite its correctness as a thesis) then they should adopt instead the surrogate of the pacific league.

In making this claim Kant is, I want to suggest, formulating a kind of permissive law. When he formulated the notion of the permissive law earlier in Perpetual Peace he indicated that such laws permitted to continue in the present something that would be outlawed in the future. If we take the future here to refer to the condition under which right was fully and completely realized then the continuance of such separate states would not then be permitted but, under present conditions, it is allowed to remain. The ground for its being allowed to remain is only that the separate nations will not allow the abolition of themselves. Since they will not the surrogate is adopted instead.

Now if we re-formulate Freeman's account of public reason we can understand it to be saying that if a principle cannot reach agreement between all parties to discussion in a public forum then a different principle needs to be adopted instead with the intent of serving the same end as the first (rejected) principle. In this way the public opinion of those in the discussion has been respected whilst right has not been neglected. This is, I think, the consideration by which Kant proposes the pacific league. What brings this closer to Freeman's account than would otherwise be the case is that the pacific league is formed by republics uniting together. Since republics are moral persons (unlike despotisms) then their public agreement is akin to that between individual members of a state of nature.

Reverting to the division of the preliminary articles: the argument considered in the posting of two days ago assessed it in relation to principles of publicity. The point here was that principles 2-4 are all ones that can be assessed publicly and it is the fact that they can that enables an understanding of what is at issue in delaying their implementation since measures that lead towards full recognition of them can be commonly understood. By contrast, principles 1 and 6 are ones that cannot be assessed by public methods which is why they have to immediately cease. This argument works also by considering public opinion as a rightful force operative within the moral personalities of the international set of states. However, there remains a problem with understanding the fifth article (concerning non-intervention) as one that requires immediate implementation. It is unlike 1 and 6 in being available to public measurement. It is also not congruent with the first definitive article since one of the grounds for this article was that republics are more inclined to peace than despotisms. Since this is so, the existence of despotic constitutions is itself not merely something not in accord with right but also something that tends to constantly produce conditions of war. Given these points there are reasons for treating despotisms as little better than states torn by civil war and with regard to the latter there is permission to intervene. So shouldn't there also be a ground to intervene to overthrow despotic regimes? I will return to the topic of intervention in future postings.

Publicity, Peace and the Preliminary Articles

I previously argued that the division of the preliminary articles of Perpetual Peace that Kant gives is not well justified but, in an extended comment on this posting, Tim suggested a basis for this division that was grounded both on appeal to considerations of publicity and those of peace and Tim's arguments are worth extended treatment. But first it is necessary to reprise the preliminary articles and Kant's division of them.

The first article concerned secret reservations when making peace treaties, the second inheritance of states by exchange, purchase or donation and the third the abolition of standing armies. The fourth covered external debt with regard to the affairs of a state, the fifth was the controversial banning of intervention in the constitutions of other states and the sixth concerned dishonourable stratagems in war. Kant divides them in the following way: the first, the fifth and the sixth are to be stopped at once whilst the second, third and fourth can be postponed being put into effect. In my earlier posting I questioned whether Kant had provided clear and good reasons for this division suggesting that his account of it marked a low point in the exposition of Perpetual Peace.

In response Tim suggested a number of considerations that make it worth revisiting my verdict. The first article concerns secret reservations and, in a sense, it is less than clear when these are at work though the general indictment of them is evident in terms of peace (but difficult to relate to questions of publicity). With five and six (non-intervention and dishonourable stratagems) these practices are, Tim suggests, ones that would, if allowed, make everyone insecure. Due to that it is a good idea to end them immediately. The aim is to increase general security in doing so though, it needs to be pointed out, that six, involving as it does secretive conduct, is, like the first article, intrinsically difficult to evaluate in practice. Only the ban on intervention in the constitution and affairs of other states is one that can be clearly measured though there are good reasons for viewing it as controversial.

If we turn to the three articles that Kant gives a right to postponement of, then, in these cases, Tim suggests, we have always got something intrinsically public in view. The purchase of a state occurred publicly and in accordance with norms held by those engaged in the practice. Invalidating the present status of the state in question now would add to insecurity. Standing armies and public debt are also intrinsically public and the point of that would be that progress with regard to these matters would be itself public. So other states can tell what you are doing here and whether you are moving towards the desired end but, in the interim, immediate implementation would create more problems than postponement.

Tim's account is better than the explicit one provided in the text where Kant appeals only to a kind of possession in "good faith" that held with regard to the articles that can be given postponement referring to a kind of public opinion holding (although Tim's account does, at one point, refer to this). The problem here is why this reference to public opinion should be thought to have normative standing? The only rationale appears to be the one Tim makes explicit: security/stability of the general system of states. Since public undermining in an immediate sense of articles 2-4 would increase instability there is a case in public reason for delay.

The substantial problem with this reconstruction is that the description of the need for immediate implementation of the fifth article concerning non-intervention doesn't really fit. Whilst the presumption that allowing intervention into the affairs of other states would create instability is not, prima facie, unreasonable, there is a problem with it. This is that certain kinds of states may possess constitutions that make them more likely to be troublesome to their neighbours. Indeed, something like this claim is made in the argument for the first definitive article. Due to this claim being made there it is not evident that stability/security in a general sense is up-held by immediate implementation of the fifth preliminary article. It might be generally better to delay implementation of it until after the aspiration of the first definitive article has been met. This creates a problem with viewing the fifth article as kin to the first and the sixth, as the first and the sixth involved actions intrinsically secret in nature as opposed to the public ones of 2-4. Hence the fifth article is an anomaly and doesn't fit the rationale of Tim's reconstruction (although his original note making his case for this reconstruction does admit this).

On these grounds, I would have to say I am still not convinced that the division of the preliminary articles is well articulated by Kant.

Non-Intervention in Other States

The 5th preliminary article of Perpetual Peace is one of the most controversial elements of it. It has been subjected to repeated correction, re-interpretation and "defence" of a sort that is not necessarily helpful. The question about the basis, role and limits of intervention in the affairs of other states has taken on new life in IR theory since at least the Balkan Wars of the 1990s. The NATO campaign in Kosovo, the two Gulf Wars, the war in Afghanistan, the UK intervention in Sierra Leone, the US interventions in Somalia,the Russo-Georgian war last summer, all involved claims concerning the rightful basis of intervention. Nor has the question of it only been invoked in cases where intervention has taken place but also in ones where it hasn't but perhaps should have. The most recent situation of this kind was in Rwanda though the key historical example was the Spanish Civil War. There is also some argument to this effect running at present in the wake of the coup in Honduras.

Given the weight of the question it clearly cannot be settled merely in a posting concerning the fifth preliminary article of Perpetual Peace but will require considerable attention, both in relation to the working out of general principles and also in attending to the numerous complexities of given particular examples. The fifth article of Perpetual Peace is controversial in its interpretation precisely due to its connection with such larger issues.

In looking at this fifth preliminary article it is useful also to look at the context of Kant's writing of the whole work. Perpetual Peace was published in 1795, the same year in which Prussia withdrew from a coalition against revolutionary France and concluded a separate peace with the republic. It is against the backdrop of the revolutionary wars that Kant frames his fifth preliminary article. The article states that: "No state shall forcibly interfere in the constitution and government of another state" (Ak. 8: 346). The principle simply as stated thus indicates that there is no ground for alteration of the political affairs of another state. However, despite the fact that the 5th article seems to assert something fairly authoritative, whatever one's view of the principle in question, reading Kant's discussion of the article suggests instantly that in fact things are complicated.

Kant goes on to specify that things are different if the state in question has already split into two with two separate elements laying claim to the whole. It is different, that is, in cases where a civil war has sundered the pre-existent state. Since this was clearly the case with the Spanish Civil War (and is one way in which the break-up of Yugoslavia could be described) it follows that in such a case Kant's preliminary article does not apply. The situation in which such civil war is taking place is, Kant declares, "anarchy" and so it is not interference for a foreign state to give assistance to one of the warring parties.

Having introduced this mitigation of the original principle Kant proceeds to mitigate the mitigation. The next point is that for the foreign state to be able to intervene in a way that is not interference requires that the internal conflict be "critical" as otherwise such intervention would make the autonomy of all states insecure. The judgment in question might well be thought to have been the basis of the coalition formed against Saddam Hussein's Iraq in the 1st Gulf War since Kuwait was here forcibly incorporated into a neighbouring state despite not itself being internally disrupted. However whilst this mitigation of the mitigation might initially appear helpful it clearly introduces an important problem in its wake. When the foreign state is making a decision concerning such intervention without wishing to be accused of "interference" how is it to decide whether or not the situation is "critical" enough to justify it? No criteria are given in Kant's discussion of the 5th preliminary article. As we will see subsequently the basic principle of the 5th preliminary article is also not evidently in harmony with other elements of Kant's discussion.