Harvard legal scholar David Kennedy discusses his recent book, The Dark Sides of Virtue: Reassessing International Humanitarianism.
Have humanitarians, by lobbying governments to protect human rights and set limits on the tools of war, mainly succeeded in teaching the military how to cloak its actions in a humanistic vocabulary? Harvard law professor David Kennedy thinks so.
In an April 8 talk for a class at the UCLA Law School, sponsored in part by the UCLA International Institute, Kennedy discussed his recent book, The Dark Sides of Virtue: Reassessing International Humanitarianism.
Kennedy offered a scathing critique of international humanitarian organizations. While conceding they have done some good in trying to raise public consciousness of the treatment of political prisoners and the conduct of armies in the many local wars of our time, nevertheless "we have to take responsibility for the kind of vocabularies we have put into circulation over fifty years and how easily they were to misappropriate."
At the core of the liberal failure, Kennedy argued, has been a stance as commentators that reveals an unwillingness to take direct responsibility: "Humanitarians," he complained, "have trouble seeing themselves as part of the international governing class. They see themselves as off to the side giving advice to the doers." This leaves the doers largely free to do what they want, but to discuss it in a terminology that sounds more and more like that of the humanitarians. This verbal convergence, Kennedy said, has far more served the agenda of the military and of repressive states than the goals of the human rights activists.
"Humanitarians provide the vocabulary of those who exercise governance and warfare," Kennedy maintained. "To be responsible partners in global rulership, humanitarians need to take more responsibility for the outcomes of the projects they unleash on the world."
As an example, David Kennedy cited the International Red Cross. Since the nineteenth century the Red Cross has striven to establish humanitarian rules of law in war. In doing so, "The Red Cross prides itself on a pragmatic relationship with military professionals." They lobby against certain weapons of war, such as poison gas. These demands, Kennedy said, are sometimes accommodated by military leaders without really changing anything: "Conscious of the limits necessary for their projects, military leaders outlaw weapons when they no longer need them. The International Red Cross restrain themselves to a traditional positivism, keep tight to the rules negotiated by military people and agreed to by states. Stick to the rules and you won't get into things that won't work. But it may not be very useful to limit yourself to what the military will accept."
A major accomplishment of the Red Cross and other humanitarian agencies has been the adoption by most states of the principle that the use of force must be proportional to the objective and the opposition encountered. "This turn to principles is associated with the rise of courts, of judicial review of battlefield justice, of war criminals." While appearing to be a genuine limitation of the evils of war, David Kennedy suggested that this achievement has mainly given field commanders a set of guidelines on how to describe afterward what they would have done anyway, or to raise objections to perceived excesses of the enemy.
"No professional commander says, I want you to go and commit disproportionate violence. We don’t need international law for that. The real work begins when the militaries disagree, when the tactics of the other side seem disproportional. When this happens you get the professional military leaders using the vocabulary of international law to express their disagreement with the tactics of the other side."
When it comes to their own side, the standard of military men on how many civilian casualties are permissible, Kennedy suggested, is "Not one more than is necessary, but as many as are necessary." That is better than no standard, but "The difficulty is that it legitimates a great deal: all the violence that is necessary." The humanists have accepted the premises of the military here. "A military strategist asks: How many civilians can you kill? 40 for a bridge, 1000 for a city? They wont say. Humanitarians want to say you can't target civilians, but that is not what their vocabulary has agreed to. The military in law claims that every target was evaluated, including by a lawyer. But if you ask by what standard, there is nothing inside the box, no revealed rules by which you can judge what has been done, was it too much. Here the pragmatic system grinds to a halt. It does not include any specification by which to judge costs. The main attitude of the humanitarians since the League of Nations has been, not to outlaw war but to civilize it."
David Kennedy developed two criticisms of liberal humanitarianism in regard to the ongoing war in Iraq. On the conduct of war on the battlefield he suggested that efforts to get nations to use restrained sets of weapons or levels of violence have only succeeded in training commanders to employ the right terminology to justify what they would have done anyway. On the broader issue of the goals of war, he argued that humanitarians in the Iraq case had become bogged down in procedural issues such as whether the United States or the United Nations should be the one to invade Iraq or whether it was reasonable to conclude from the prewar intelligence reports that there was a good case that weapons of mass destruction existed in Iraq. This approach, he said, put procedure above substance. It avoided taking a stand on whether invading Iraq was simply a bad idea no matter who approved it.
"If Bush drops bombs in the name of human rights, something is wrong or being misused, but do we then have to take responsibility for the kind of vocabularies we have put into circulation over fifty years and how easy they were to misappropriate?"
In place of procedural hedges, Kennedy proposed that humanitarians should take responsibility to formulate or demand from policymakers serious studies of overall costs compared to expected results, at least comparable to the studies routinely presented when highway networks or new housing complexes are under consideration.
Not having demanded such a comprehensive statement of expected costs versus benefits, the liberals were easy to manipulate. "So we don't see how difficult and expensive it would be to accomplish Wolfowitz's objectives. What will be the development policy for Iraq? . . . Suppose you did want to redo the Middle East. It is not clear that we would begin that process with Iraq."
In response to questions David Kennedy summed up his position in these words: "We in the academy have for a long time pursued the illusion that there is one group of realists and one group of idealists. I think that is not accurate. There is a common vocabulary. Military spokespeople say they are enforcing law and order, or they are fighting for human rights. It is astonishing how much the so-called realist vocabulary of interest is put in the terms of the humanitarian side. They don't just say that they are doing it for oil or just to take over."
On the other side, "the humanitarians really like to use force for humanitarian aims. You do need to go to war to prevent genocide. So you have the participation in a common vocabulary. Sometimes you can't distinguish by listening between a human rights person and a State Department spokesperson. The military speaks a humanitarian language, while the humanitarians have a strategy of imposing limits but not opposing outright. . . . I think it is totally irresponsible to spend money to kill people without figuring out what the costs are. That is what humanitarians do when they advocate things but don't take responsibility for the outcomes and the costs. I want to be governed by people who take things into account."
Generals, Kennedy suggested, "never do something that they don't have an ex post justification for as proportional." He gave the example of the bombing of Iraq's electricity plants in 1991. "In the first Gulf War they took out the generator hulls of all the plants in Iraq. This took down the electricity much longer than necessary. This led to degradation of the water supply and thousands of deaths by cholera. You say, Well, that was a war crime. They reply, No, it was just a mistake. We feel really badly about it. But the one thing they won't say it is that it was not proportional and necessary as we saw it. They hang on to this humanitarian framework as justification for whatever they do. They go over backflips to say it was proportional even when admitting it was a terrible mistake and they won't do it again. Is international humanitarianism's one accomplishment to give them a sure fire rationale for whatever they do? No military will ever fire a shot that they can't legitimate. Is that an accomplishment? This is convergence rather than a restraint on the military."
Kennedy concluded by saying that taking action without considering its consequences can do more harm than good. "A lot of people do things because they have the mistaken idea that they understand the trajectory of history and they can help out. That is part of what disorients many of the humanitarian pragmatists: some idea that is hooked up with some opening up of society." That creating a more open society will in itself solve problems and make things better. "You open up Iraq and suddenly nationalism is back and a thousand bad ideas from the past have suddenly flooded onto the stage. The left should have been focusing on the liberation of the Middle East and that is not the way to do it."
* * *
David Kennedy is the Manley O. Hudson Professor of Law at Harvard Law School, and director of the Harvard European Law Research Center. He teaches international law, international economic policy, European law, American legal theory, and law and development. Kennedy holds a Ph.D. in international affairs from the Fletcher School at Tufts University and a J.D. from Harvard. He has practiced law with various international institutions, including the United Nations High Commissioner for Refugees and the Commission of the European Union, and with the private firm of Cleary, Gottlieb, Steen and Hamilton in Brussels.
Published: Wednesday, April 14, 2004
© 2014. The Regents of the University of California. All rights reserved.