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Just War Principles and Recent Wars.
By Hugh Beach
The question is under what circumstances is it proper to intervene militarily in another country, against the wishes of the government of that country, assuming that it has one. It is an old question, given a new edge by the ending of the Cold War and the emergence of terrorism as a pervasive threat. So I shall be working from contemporary examples. The frame of reference is the existing body of International Law on resort to force – jus ad bellum – but I shall discuss it under the headings of the Just War tradition[i]. I make no apology for adopting an overtly Christian approach since the originators of Just War theory, Augustine of Hippo and Thomas Aquinas, were philosophers of the first rank and took their stance not on revelation but on natural Law.
We start with a basic presumption against military action of this kind, as set out in Article 4(2) of the Charter of the United Nations:
All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations. There are two key principles here: state sovereignty and non-intervention. The question is under what circumstances can these properly be over-ridden?
1. Just Cause: Force may be used only to correct a grave, public evil, i.e. aggression or massive violation of the basic rights of whole populations.
Take aggression first. Going back to the roots of Just War doctrine we find Aquinas saying (Summa Theologiae 2a2ae 40,1): ‘a just cause is required namely that those who are attacked are attacked because they deserve it for some wrong they have done. So Augustine: “We usually describe a just war as one that avenges wrongs, that is, when a nation or state has to be punished either for refusing to make amends for outrages done by its subjects, or to restore what it has seized injuriously”’.
In modern terms this emerges as another key principle: the right of self-defence. Article 51 of the Charter says:
Nothing in the present charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security.
When Iraq invaded Kuwait in August 1990 it was under this rubric that the UN Security Council, by resolution 678 of 28th November, authorised member states to use force not only to secure Iraqi withdrawal from Kuwait but also to restore international peace and security in the area. Note that this was already stretching the notion of self-defence. Arguably it would have justified the allies in overthrowing the regime of Saddam Hussein there and then. We shall come back to this.
The events of 11th September 2001 caused this concept to be stretched a bit further. Next day the UNSC, by resolution 1368, recognising the right of self defence, regarded the acts of the previous day ‘like any act of international terrorism as a threat to international peace and security’ and expressed ‘its readiness to take all necessary steps to respond’. ‘All necessary steps’ is, of course, UN-speak for military action. This resolution was seen, quite reasonably, as justifying an attack on terrorist bases in another country or indeed on the government of that country if it failed to prevent and punish terrorist attacks. This was taken to justify overthrowing the Taleban regime in Afghanistan (which was effectively funded and controlled by al’Qaeda) and the Security Council gave post facto endorsement by establishing the International Security Assistance Force (ISAF) around Kabul with powers to use force if necessary.
This year has seen the principle stretched still further. According to Geoff Hoon the reason we joined the American invasion of Iraq was ‘the threat, if not to the United Kingdom in the short term, then to our friends and allies in the Gulf region as well as to the wider stability of the world if we had not intervened to deal with weapons of mass destruction in the hands of a regime like Saddam Hussein. To that extent it was just’. (Christian Socialist Summer 2003, p. 4). Since, as Hoon says, there was no immediate threat to ourselves, we are talking here of a doctrine of preventive military action to nip in the bud a future threat to international peace and security. The Americans have been quite explicit about this. Their National Security Strategy of September 2002 says ‘To forestall … hostile acts by our adversaries, the United States will, if necessary, act pre-emptively.’ One cannot blame America for confronting this new reality head-on, since states do now face dangers that cannot be deterred in any conventional sense and may need to be tackled before they develop into actual armed attack. (Adam Roberts. ‘Law and the use of armed force after Iraq’ in Survival, Summer 2003, p. 46) What causes problems are the peremptory way this doctrine was announced, without discussion, and its blatant assumption of unique authority, ignoring the problems that would arise if other countries claimed a similar right. It seeks to make general doctrine out of the need to confront a few hard cases. In Iraq neither imminence nor necessity were convincingly demonstrated before the attack nor have been since. The question remains open whether Saddam did possess chemical or biological weapons, or merely a vestigial programme that could be revived at another time. And the suggestion of a close link between Saddam and al’Qaeda has now been dropped as unsustainable. Hence the case for pre-emption was weak at best and simply not needed. The argument for going against North Korea and Iran was much stronger, because nuclear weapons were at issue there, and remain so.
We come now to the second issue under the heading of Just Cause, namely ‘massive violation of the basic rights of whole populations’. In the past dozen years this has been held to justify at least nine cases of what is now called humanitarian intervention. In five of them, all led by the US, there was no consent by the government of the country against which action was taken. Three of these were authorised by the Security Council more or less explicitly– Somalia (1992), Haiti (1994), and Bosnia (1995). Two were not – Northern Iraq (1991) and Kosovo (1999). In the four remaining cases there was both a greater degree of consent and a Security Council mandate - Rwanda (French-led, 1994), Albania (Italian-led, 1997), East Timor (Australian-led 1999) and Sierra Leone (UNAMSIL, 1999,2000) - so these were relatively uncontroversial, indeed barely count as interventions in the strict sense at all.
In law there is a basic problem with any claim of a general right of humanitarian intervention. It fails the test of widespread acceptance because China, India, Russia and many post-colonial states in Africa and Asia are strongly opposed. There can be less doubt however of the moral justification. Where a country is inflicting gross, flagrant and continuing abuses of human rights on its own people, other countries in a position to do so may well have a right to intervene. Such was the conclusion of the Canadian sponsored International Commission on Intervention and State Sovereignty, in their report at the end of 2001 called ‘The Responsibility to Protect’. (They phrased their principles exactly in terms of Just War criteria though without actually saying so!) Some would say that those who are able to intervene have a duty to do so - though Augustine does not go so far.
The case for intervention in Iraq on humanitarian grounds is well known, and has been strengthened, if anything, by what we have since learned about torture, mass graves and the all the horrors of a police state. But the awkward fact is that we were broadly supportive of Saddam while he was committing some of his worst atrocities - the war against Iran and his gassing of the Kurds. And other regimes, equally abusive, have been simply left to stew - Zimbabwe, Sudan, Liberia, Congo - not to mention Chechnya and Tibet. Above all there is the question why now?
2. Legitimate authority: Only duly constituted public authorities may use deadly force or wage war.
By this Aquinas meant that only the sovereign has the right to wage war, not barons or private warlords. Augustine goes further when he says, “The natural order conducive to human peace demands that the power to counsel and declare war belongs to those who hold the supreme authority”. Arguably, if one is intervening for the sake of international peace and good order, then only an international authority has the right to ‘counsel and declare’. This could be a regional grouping, such as the Economic Community of West African States (ECOWAS) or NATO. But these come ultimately under the United Nations, both in principle and as a matter of practical politics. It is clear that the United Nations is the supreme source of legitimacy where action in support of international peace and security is concerned, and Article 24 of the Charter gives primary responsibility for this to the Security Council.
I have already mentioned a number of interventions authorised by the Security Council in the past dozen years, and one (Kosovo) where the Security Council declined to act until afterwards. The strongest case for the legality of military action against Iraq this spring rested on the authority to use force given by the Security Council in 1990, which was never rescinded, and the continual flouting by Iraq of the terms of the 1991 cease-fire relating to inspections of their weapons programme - summed up in the unanimous UNSCR 1441 of 8th November 2002 proclaiming Iraq to be in material breach of its obligations. This resolution gave Iraq ‘a final opportunity to comply with its disarmament obligations’. If Iraq failed it promised ‘serious consequences’ and required the Security Council to convene immediately. Over the next five months Iraq did fail to satisfy the examiners. But at the meeting on 17th March the US and UK could not get a ‘second resolution’ authorising force. The question then was, did this failure trump the previous authorisation? The simple guiding principle must be that a resolution, once passed, remains in effect until there is a new resolution reversing it. This is the strongest case that can be made for the recent conquest of Iraq. (Adam Roberts, ibid.) But it is not a happy one because the military campaign, to bring to an end the flouting of Security Council resolutions over many years, had to go ahead without specific endorsement at the point of action, because no majority for that action existed, and in the teeth of a promised veto. Ouch!
This episode raises a deeper question. It is clearly too much to hope that the power of veto in the Security Council will never be used for self-serving reasons. Does it then make sense to rest such a veto, on matters relating to humanitarian intervention, in the hands of countries such as Russia or China whose human rights record is so tainted? After Kosovo many wise heads concluded that endorsement by the Security Council is a sufficient but not always a necessary condition of legitimate intervention. Over Iraq the self-serving motives of those opposing war were less obvious.
3. Right Intention: Force may be used only in a truly just cause and only for that purpose.
At first sight this looks like a simple restatement of the Just Cause criterion. In fact it goes much further. Aquinas quotes Augustine as saying ‘Among the true worshippers of God those wars are looked on as peacemaking which are waged neither from aggrandisement nor cruelty but with the object of securing peace, of repressing the evil and supporting the good’.[ii] This emphasis on peacemaking (pacis studio) and supporting the good (boni subleventur) opens up the much wider issues of peace building and reconstruction, which are crucial wherever interventions take place.
Aquinas makes another important point when he quotes Augustine as saying: ‘The craving to hurt people, the cruel thirst for revenge, the unappeased and unrelenting spirit, savageness of fighting on, the lust to dominate and suchlike - all these are rightly condemned in wars’.[iii] This should warn us against several misleading motives. It should lead us to be wary of the surge of righteous anger when a city like Dubrovnik is shelled just because it is old and beautiful - and within range of guns: when a family is burned alive for belonging to the wrong religion. It should lead us to be cautious in applying Augustine’s earlier remarks about avenging wrongs and punishing. The Allies in the Gulf War set as their aim to evict Iraqi forces from Kuwait, acting under a Security Council Resolution (678 of 29 November 1990) which authorised the use of 'all necessary means' in securing withdrawal of Iraqi forces to positions held before the invasion and the restoration of ‘international peace and security in the area.’ They did not aim to break the power of the Republican Guards, still less topple Saddam Hussein. When they had succeeded in their limited aim they stopped, the ‘savageness of fighting on’ was eschewed. Many have since argued that this was a mistake. The Security Council Resolution could have allowed further allied action preventing the use of Iraqi tanks and armed helicopters to suppress the Kurdish and Shia uprisings (which the allies had incited) and secured Saddam's removal while still stopping well short of Baghdad. This may well be true, but the point can never be proved.
4. Probability of success: Arms must not be used in a futile cause or in a case where disproportionate measures are required to achieve success.
Leaving on one side the question of proportion, since this rates as a separate criterion in its own right, this clause introduces a crucial point: that the practicability of what is proposed is a key element in formulating the ethical judgement. It is not a moral act to set the military off on a given course if they are likely to fail, however just the cause. To say this is not to set pragmatism over against morality but to recognise an essential ingredient in the moral judgement itself. If what is proposed will not work then, however lofty the motive, the proposal must be rejected. One cannot, of course, claim that military forecasts of the likely outcome are necessarily infallible, quite the reverse. The military are often wrong, even on strictly military matters; how else can one account for the fact that, in all the wars of history, roughly 50 percent of the generals have been losers? One is saying only that they must be asked and their answers heeded. The campaign in Iraq triumphantly met this criterion so far as the war was concerned. But there is every sign that the number of troops needed after the war was seriously underestimated by the Pentagon, against the better judgement of their own generals, and this is making the job of peace building very much more difficult.
5. Last resort: Force may be used only after all peaceful alternatives have been seriously tried and exhausted.
In other words, if measures short of armed force would suffice then armed force should not be used. Articles 33 to 42 of the UN Charter describe a wide spectrum of measures, starting with enquiry, mediation, conciliation and so forth, via diplomatic and economic measures up to demonstrations, blockade and ‘other operations’ by land, sea and air forces. In many cases it may be appropriate to use these various measures in chronological sequence, only moving up the ladder as and when lower approaches have been tried and failed. But in other instances it may be that to go in early and hard, albeit on a limited scale, might avert much bloodshed. For example many believe that had the UN, led by the United States, committed ground troops with air support in former Yugoslavia at a much earlier stage (e.g. to prevent the destruction of Vukovar by the Serbs in 1992) it could have nipped that war in the bud. This implies a judgement at the outset that gentler methods are bound to fail and that recourse to the methods of last resort (albeit under the general rubric of minimum force) were better taken earlier than later. It is also relevant that economic sanctions, especially when sustained over a long period, can cause just as much suffering to the poorest and weakest in society as a war. The term ‘last resort’ need not, on this reading, be understood chronologically.
As to the war in Iraq I have already raised the question ‘why now?’ There is a real dilemma here. Only by putting troops into the area was it possible to get the Iraqi government to readmit the weapons inspectors. If the troops then came home with the weapons question unresolved it would have meant a disastrous loss of face not only for the US and the UK but most importantly for the UN itself. The coming of the hot weather only compounded the problem.
The two last criteria will be considered together.
6. Proportionality: The overall destruction expected from the use of force must be outweighed by the good to be achieved.
This is the crucial point that in effect subsumes all others. It is also probably the most difficult because it involves weighing in the balance things that are incommensurable. How many Dutch lives was it worth to protect Srebreniça? Can one put a price on a principle? Yes, one does it every day so there is no dodging, though certainly there are no easy answers. One of the most notable features of recent years has been the way in which the issue of proportion has dominated at least the vocabulary of debate. Only very rarely have disproportionate interventions been explicitly threatened: for example by the Americans against Serbian Bosnians in summer 1995 and against Saddam Hussein a year later. After the event it is always claimed that the actions have been proportionate.
7. Discrimination: Civilians may not be the object of direct attack, and military personnel must take due care to avoid and minimise indirect harm to civilians.
It is again notable the way in which everyone pays at least lip service to this principle. The allies took it with all seriousness in the Gulf War, in Bosnia and in Kosovo. In Iraq, apart from some uses of cluster munitions, I think the US and UK did as well as they could on this score.
There is a final important point , well made by the US Roman Catholic Bishops in their 1993 Report The Harvest of Justice is Sown in Peace:
‘We also recognise that the application of these principles requires the exercise of the virtue of prudence; people of good will may differ on specific conclusions. The just-war tradition is not a weapon to be used to justify a political conclusion or a set of mechanical criteria that automatically yields a simple answer, but a way of moral reasoning to discern the ethical limits of action. Policy makers, advocates and opponents of the use of force need to be careful not to apply the tradition selectively simply to justify their own positions. Likewise any application of just-war principles depends on the availability of accurate information not easily obtained in the pressured political context in which such choices must be made’.
It is hoped that this essay lives up to the high standards of objectivity rightly demanded by the bishops – but not to the point of obscuring the writer’s prejudices beyond recall.
20 July 2003
[i] The numbered sentences in Italics below are taken from the Report issued by the US Roman Catholic Bishops in 1993 entitled ‘The Harvest of Justice is Sown in Peace’.
[ii] In fact this quotation comes not from Augustine but from the Decretals of Gratian, but this fact hardly detracts from their force.
[iii] This is an accurate quotation from Augustine Contra Faustum.