The decision of the U.N. Security Council to authorize military intervention in Libya in 2011 was greeted as a triumph of the power of shame in international law. At last, it seemed, the usually clashing members of the Council came together, recognizing the embarrassment they would suffer if they stood by in the face of an imminent slaughter of civilians, and atoning for their sins of inaction in Rwanda, Bosnia, and Darfur. The accuracy of this redemption narrative, however, is open to question. Shaming--an expression of moral criticism intended to induce a change in some state practice--is assumed by scholars and practitioners to be a powerful force in international law generally and in the context of humanitarian intervention specifically. In the first study of the operation of shame in humanitarian intervention, this Article tests that assumption.
Grounded both in the promise of sociological approaches to international law and in the reality that states cling dearly to the power to use military force, this Article offers insights on Security Council members' responses to the dire situations that most demand their action. After providing a definition of shame as it applies in international law, a crucial piece of analysis that has been missing from this area of undertheorized assertions and unexplored assumptions, this Article argues that shaming efforts vary according to four dynamics: the influence of the agent of shame, the subject of the shame, the attention of audiences other than the agent of shame, and the repeated interactions of the Council's members. Based on this analysis, the Article suggests how states, international organizations, and civil society groups can best deploy the unexpectedly fragile tool of shame in the context of humanitarian intervention. In place of blind reliance on shaming sanctions, efforts should focus on generating the conditions that foster more effective use of shame as one of the vanishingly few--and thus critically important--means of encouraging effective responses to humanitarian crises.
TABLE OF CONTENTS INTRODUCTION I. SHAMING IN INTERNATIONAL LAW A. Defining Shame 1. The Agents and Targets of Shame 2. The Mechanism of Shame B. The Effectiveness and Ascendance of Shame 1. Mixed Results 2. Heavy Reliance II. EFFORTS TO SHAME WITHIN THE SECURITY COUNCIL A. The Origins and Implications of the Permanent-Member Veto B. Exposure and Censure in the Council's Early Years C. Transparency and Accountability in Security Council Reform 1. Informal Consultations 2. Indicative Voting 3. Security Council Reform and the Facilitation of Shaming D. Responsibility and Criticism in Humanitarian Intervention. E. The Unique Nature of Shame in the Security Council III. THE DYNAMICS OF SHAME IN THE SECURITY COUNCIL A. A Note on the Use of Shaming in Humanitarian Crises B. The Dynamics of Shame 1. Influence of the Agent of Shame 2. Subject of the Shame a. Norms of Responsibility and Intervention b. Alternative Norms as the Basis for Shaming 3. Attention of Alternative Audiences 4. Repeated Interactions Within the Security Council C. Implications CONCLUSION INTRODUCTION
In the last two decades, humanitarian intervention--the use of military force for the purpose of protecting nationals of a foreign state from large-scale human rights abuses--has become one of the greatest sources of both hope and skepticism in international law. The optimists argue that states are internalizing norms of responsibility and the universality of human rights such that it is now widely agreed that no government will be allowed to violently oppress its own people. (1) The skeptics take the position that even if states agree that mass atrocity is a bad thing, convincing them to act on that belief when they have no direct interest in doing so is another matter. (2) At the heart of these debates is a puzzle: how can otherwise-uninterested states be convinced to take notice and take action in the face of massive human rights abuses?
The puzzle is further complicated by the legal regime governing humanitarian intervention. The U.N. Charter and customary international law provide that a state may not use armed force against another state, except in cases of self-defense or when authorized by the U.N. Security Council. (3) The decisions of the Council, in turn, vary according to the policies and interests of the five permanent members--China, France, Russia, the United Kingdom, and the United States--each with the power to veto any substantive decision by the Council. (4) Because of this legal context, the question that persistently troubles thinkers in this area is how to convince the five permanent members of the Security Council that they have a responsibility to stop carnage in far-off places. (5)
In a system of few coercive, formal means of enforcing international law, scholars and practitioners alike have turned to the informal tool of shaming--the expression of moral criticism intended to induce a change in some state practice. (6) Shaming efforts seek to convince permanent members that they should support humanitarian intervention because of the embarrassment that they will suffer if they idly stand by or block action by willing states. This emphasis on shaming has formed part of a larger movement by constructivist scholars to understand states as social entities, and to investigate how states' interactions with other actors--whether states, domestic publics, or nongovernmental organizations ("NGOs")--affect compliance with international norms and the formation and modification of state preferences, among other things. (7)
For those who advocate reliance on shaming, the power of embarrassment in impelling humanitarian intervention has become something of an article of faith. This Article unsettles these assumptions about shaming by undertaking the first investigation of the dynamics of shame in humanitarian intervention. Examining efforts to influence the Security Council and the consequences thereof, I argue that shaming efforts affect the intervention policies of permanent members only in limited circumstances. By probing the contexts in which shaming successfully influences those policies, I offer an examination of four factors that affect the success of shaming--an analysis that ultimately can lead to a more realistic, and more effective, approach to influencing Council members to take action in the face of massive humanitarian crises.
The thrust of the problem addressed in this Article can be understood by situating it within the history of intervention over the last two decades. Consider the first battles of the Libyan revolution. Loyalist forces were advancing on the city of Benghazi, and Colonel Muammar el-Qaddafi avowed that they would show "no mercy or compassion" to the opposition. (8) Policymakers warned that without outside intervention to stop the impending assault, Benghazi would face a massacre, and the world would have the blood of Libya on its hands--the stain of another Rwanda, another Srebrenica. (9) The U.N. Security Council acted quickly to authorize the use of military action to enforce a no-fly zone in Libya. (10) China and Russia, widely perceived as opponents of humanitarian intervention, did not exercise or even threaten a veto to force the United States and others into the awkward--and illegal--position of acting without Council authorization. (11) Instead, Russia and China chose to abstain on the resolution, voicing some reservations about the decision but not blocking it altogether. (12)
Compare this to the events in the Security Council in 1999, when Serb security forces were escalating a campaign of violence against ethnic Albanians in the Kosovo region of the Federal Republic of Yugoslavia. The Council imposed an arms embargo against the ruling Milosevic regime and demanded an end to the violence, (13) but beyond these preliminary measures, the permanent members were deadlocked. The United States, United Kingdom, and France pushed for the Security Council to authorize military action; Russia and China, however, refused to yield to their pressure and threatened to veto any resolution approving the use of armed force. (14) As a result, NATO sidestepped the Council and launched a seventy-eight-day bombing campaign on its own. (15) Two days into the operation, Russia tabled a resolution condemning and demanding an end to the bombing, but the measure failed to gather enough votes to pass, even despite the illegality of the NATO action. (16)
Or consider the Security Council's conduct five years before that: over the course of one hundred days, some 800,000 Tutsis and politically moderate Hutus in Rwanda were slaughtered by militiamen, soldiers, shopkeepers, teachers, and farmers wielding guns, machetes, garden tools, and kitchen knives. (17) Soon after the massacre began, the Council voted to slash the U.N. peacekeeping force stationed in Rwanda from 2,558 troops to a meager 270. (18) For the next several weeks, while thousands of people were being killed, raped, and mutilated each day, the members of the Security Council debated from the other side of the world whether to restore the U.N. presence in Rwanda. Even as they watched the events unfold, nearly two months passed and an estimated 500,000 people died (19) before the Council finally voted to authorize the deployment of a weak French military force. (20)
What changed in the years between the crises in Rwanda, Kosovo, and Libya? It seems clear that Russia and China had not embraced a commitment to humanitarian intervention, which appears by the time of the violence in Libya to have become more accepted in the United States--at least in some circumstances. (21) Nonetheless, some argued that the response to the Libyan revolution showed an understanding by Russia and China that in the face of such unjustifiable violence, to block a Security Council resolution authorizing military intervention would be an...