CYIL 2015

YOU CAN’T HAVE ONE WITHOUT THE OTHER, CAN YOU? … ‘overthrow a tyrannical government (at home or abroad )’ as being ‘morally right’. 61 At another occasion he argued even more straightforwardly and in explicit deviation from the threshold set in the ICISS report, which he deems as being too high, that humanitarian interventions may be applied in severe cases of tyranny, i.e. governments that perpetrate systematic, widespread and pervasive human rights violations. The factors he mentions as being relevant in this assessment clearly have the ideal of a liberal democracy in mind: representativeness of the government, the occurrence of arbitrary detention or torture, freedom of speech, the treatment of political opposition groups, or the guarantee of the most basic standards of a fair judiciary. 62 Hence, a regime such as the one of Saddam Hussein was an ‘easy candidate’ for military intervention, while even less-oppressive regimes are basically not protected by the sovereignty principle. 63 Allan Buchanan, another eminent voice in favour of using force to topple oppressive regimes absent gross human rights abuses as described by the ICISS report or other documents related to the responsibility to protect, is another example. Arguing from an explicitly cosmopolitan viewpoint, he makes his case as follows: first, he starts with the well-known assumption that sovereignty is conditional upon the protection of human rights, a requirement that is best-served by democracies. In addition, interventions in cases of actual mass atrocities generally fail to create a sustaining effect that lasts not only while the intervener takes action. Most importantly, then, he argues that liberals generally acknowledge the right of a people to wage a revolutionary war against its own illegitimate government and – in stark contrast to Michael Walzer and John Stuart Mill – he thus asks the following: ‘[…] if war is morally permissible for the sake of establishing democracy for ourselves, could not war to establish democracy in another country that is so thoroughly repressive as to make revolution virtually impossible also be a moral option?’ 64 Lastly, he adds that the norm to use force only in cases of imminent or actual attacks is ‘not a fundamental moral principle but at most a contingent moral rule, one whose validity may vary with institutional context.’ 65 Secondly, even if one wants to adhere to the artificial distinction between using force in cases of gross human rights violations and regime change, it needs to be asked whether there exists a distinct hierarchy between intervening on behalf of human rights and regime change. For the policy-maker, it seems that regime change will only be accepted by other states if it results from an intervention at least primarily undertaken to prevent fundamental human rights, a category that does not cover the right to vote or other rights related to democratic principles. However, preventive 61 Fernando Tesón, A Philosophy of International Law (Perseus Books, 1998) 56 (own emphasis). 62 Fernando Tesón, ‘Eight principles for humanitarian intervention’ (2006) 5/2 Journal of Military Ethics 93, 98-105. 63 Ibid . See also Fernando Tesón, ‘Ending Tyranny in Iraq’ (2005) 19/2 Ethics and International Affairs 1. 64 Allen Buchanan, Human Rights, Legitimacy, and the Use of Force (OUP, 2010), 266. 65 Ibid .

235