Just Intervention

Anthony F. Lang, Anthony F. LangJr.

• Publisher: Georgetown University Press
• Year: 2003
• Print ISBN: 9780878403417
• eBook ISBN: 9781589013544
• Topic: Politics & International Relations
• Subtopic: International Relations
• Index: Politics & International Relations

What obligations do nations have to protect citizens of other nations? As responsibility to our fellow human beings and to the stability of civilization over many years has ripened fully into a concept of a "just war," it follows naturally that the time has come to fill in the outlines of the realities and boundaries of what constitutes "just" humanitarian intervention.

Even before the world changed radically on September 11, policymakers, scholars, and activists were engaging in debates on this nettlesome issue—following that date, sovereignty, human rights, and intervention took on fine new distinctions, and questions arose: Should sovereignty prevent outside agents from interfering in the affairs of a state? What moral weight should we give to sovereignty and national borders? Do humanitarian "emergencies" justify the use of military force? Can the military be used for actions other than waging war? Can "national interest" justify intervention? Should we kill in order to save?

These are profound and troubling questions, and questions that the distinguished contributors of Just Intervention probe in all their complicated dimensions. Sohail Hashmi analyzes how Islamic tradition and Islamic states understand humanitarian intervention; Thomas Weiss strongly advocates the use of military force for humanitarian purposes in Yugoslavia; Martin Cook, Richard Caplan, and Julie Mertus query the use of force in Kosovo; Michael Barnett, drawing on his experience in the United Nations while it debated how best to respond to Rwandan genocide, discusses how international organizations may become hamstrung in the ability to use force due to bureaucratic inertia; and Anthony Lang ably envelopes these—and other complex issues—with a deft hand and contextual insight.

Highlighting some of the most significant issues in regard to humanitarian intervention, Just Intervention braves the treacherous moral landscape that now faces an increasingly unstable world. These contributions will help us make our way.

PART I

ISSUES

ONE

The Moral Basis for Humanitarian Intervention

Terry Nardin

If one person is able to save another and does not save him, he transgresses the commandment, Neither shalt thou stand idly by the blood of thy neighbor.

—Maimonides, Mishneh Torah, XI

To those for whom the greatest threat to the future of international order is the use of force in the absence of a Security Council mandate, one might say: leave Kosovo aside for a moment, and think about Rwanda. Imagine for one moment that, in those dark days and hours leading up to the genocide, there had been a coalition of states ready and willing to act in defense of the Tutsi population, but the Council had refused or delayed giving the green light. Should such a coalition then have stood idly by while the horror unfolded?

—UN secretary-general Kofi Annan, Annual Report to the General Assembly, September 20, 1999

Humanitarian intervention is usually discussed as an exception to the non-intervention principle. According to this principle, states are forbidden to exercise their authority, and certainly to use force, within the jurisdiction of other states. The principle finds firm support in the UN Charter, which permits a state to defend itself from attack but forbids the use of armed force against the territorial integrity or political independence of other states. Taken literally, these provisions prohibit armed intervention, including intervention to protect human rights. And in general, humanitarian intervention finds scant support in modern international law.

There is, however, a much older tradition in which the use of force is justified not only in self-defense but also to punish wrongs and protect the innocent. This tradition is in some tension with modern international law and especially with the UN Charter. It holds that armed intervention is permissible to enforce standards of civilized conduct when rulers violate those standards, and it finds expression today in the widely held opinion that states, acting unilaterally or collectively, are justified in enforcing respect for human rights. It is this enduring tradition, not current international law, that best explains the moral basis for humanitarian intervention.

My strategy in this chapter is to relocate discussion of humanitarian intervention, moving it out of the familiar discourse of sovereignty and self-defense and into the discourse of rectifying wrongs and protecting the innocent. I do this in two ways. First, I examine arguments made in early modern Europe for using armed force to uphold natural law. I want to understand how what we now call humanitarian intervention was conceived by moralists, theologians, and philosophers writing about international relations before the emergence of modern international law. My aim is not to read current concerns back into a period that might not have shared them but rather to see whether earlier ideas about the use of force to protect people from injuries inflicted or tolerated by their own governors might illuminate current debates.

Second, I consider how humanitarian intervention is justified within a powerful reformulation of natural law worked out by philosophers influenced by Immanuel Kant. This post-Kantian version of natural law, which I follow Alan Donagan in calling “common morality,” suggests why humanitarian intervention remains morally defensible despite modern efforts to make it illegal.¹

HUMANITARIAN INTERVENTION IN EARLY MODERN NATURAL LAW

In twentieth-century international law, a just war is above all a war of self-defense. But sixteenth- and seventeenth-century European moralists justified war as a way to uphold law and protect rights, of which self-defense was only one. Rulers, these moralists argued, have a right and sometimes a duty to enforce certain laws beyond their realms. Some of these belong to the “law of nations” (ius gentium), understood not as international law but as general principles of law recognized in many different communities. This law of nations is an inductively established body of norms common to all or most peoples.

But the most important class of universally enforceable laws is “natural law,” understood as comprising precepts that can be known by reason and are binding on all rational beings. What the law of nations and natural law have in common is that each identifies principles more general than the often-idiosyncratic norms of particular communities. And in many respects, their principles are similar, though there are glaring exceptions. Slavery, for example, was long regarded as permitted by the law of nations, simply because it was widely practiced. But slavery cannot be defended as permissible under natural law, though many have, mistakenly, so defended it. The right to enforce these laws was understood to justify rulers in punishing moral wrongdoing and defending the innocent, wherever such action was needed.

The medieval literature on just war, like that of modern times, is concerned with wrongs done by one community to another. When Aquinas suggests that a “just cause” is required for resorting to war, he is thinking of situations in which one community acts to punish another. “Those who are attacked,” he says, “should be attacked because they deserve it on account of some fault.”² And he goes on to quote Augustine, for whom a just war is one that “avenges wrongs”—for example, when a state “has to be punished for refusing to make amends for the wrongs inflicted by its subjects or to restore what it has unjustly seized.”³

To get to the idea of humanitarian intervention, we must shift our attention from wrongs done by one community to another to those done by a government to its own subjects, either directly or by permitting mistreatment. And if the justification of war is to prevent or punish wrongdoing, it is not hard to make this shift. Thomas More accomplishes it effortlessly when he reports that the Utopians go to war only “to protect their own land, to drive invading armies from the territories of their friends, or to liberate an oppressed people, in the name of humanity, from tyranny and servitude.”⁴ In the absence of a norm of nonintervention, no special justification for humanitarian intervention is needed. Even those who treat “the liberation of an oppressed people” as needing further justification will have an easier time making their case if the core justification for war is to “avenge wrongs.”

One kind of oppression that medieval moralists saw as justifying intervention was the mistreatment of Christians in non-Christian (“infidel”) kingdoms. Some realized that this one-sided concern could be generalized to include situations in which infidels injure one another, and even situations in which Christians injure infidels. In medieval discourse, the question of whether a Christian ruler might properly use force to protect the victims in these situations was eventually framed as a question of whether the pope, as the recognized universal authority, should intervene. Because the pope was responsible for seeing that all human beings obey God’s laws, he could punish violations by anyone, infidel or Christian. Papal intervention, here, meant that the pope would authorize princes to intervene, just as UN intervention means that states are authorized to use armed force under its mandate.

A key figure in this discussion, on whom many sixteenth- and seventeenth-century moralists relied, is the thirteenth-century canon lawyer Sinibaldo Fieschi, who wrote authoritatively as Pope Innocent IV on relations between the papacy and non-Christian societies. The immediate context of Innocent’s discussion was the Crusades, which raised the issue of whether it is morally justifiable for Christians to invade lands ruled by non-Christian princes. He argued that infidels, being rational creatures, are capable of making their own decisions, including forming civil societies and choosing rulers. Furthermore, infidels cannot be forcibly converted. But because the gospel is addressed to everyone, the pope must be concerned with infidel as well as Christian souls. And all people are under the jurisdiction of natural law.

Putting these arguments together, Innocent concludes that the pope has authority to act when infidels violate natural law. This might happen if infidel rulers violate this law, or if infidel subjects violate it and their rulers do not prevent or punish them. So, for example, if infidels practice idolatry or sodomy, which Innocent thinks are forbidden by natural law, Christians are justified in punishing them. Christians can also seek to promote the spiritual good of infidels by preaching the gospel among them. And should infidels interfere with Christian missionaries, their right to preach can be defended by armed force. Finally, force can be used to prevent persecution of Christians in infidel kingdoms. In short, the pope can intervene in any community to enforce natural law. Innocent IV, no naïf in these matters, knew that Christian rulers would twist these principles to justify the conquest of infidel societies. He therefore insisted that Christians could wage war against infidels to enforce natural law only with papal authorization.⁵

These principles were applied three centuries later by Francisco de Vitoria to the Spanish conquest of America. This brutal conquest was the subject of a long-running debate concerning the rights and conduct of the conquerors. But there was a new element in this debate, for Europeans saw the indigenous inhabitants not only as infidels but also as barbarians, that is, as uncivilized, even subhuman. These barbarians were distinguished from civilized peoples by their cannibalism and rituals of human sacrifice, practices that Europeans often invoked to justify subjecting them to Spanish rule.

Drawing explicitly upon Innocent IV, Vitoria considers whether cannibalism and human sacrifice provide grounds for the conquest. He argues that although natural law prohibits these acts, this does not necessarily justify war against those who practice them. Other crimes—adultery, sodomy, and theft, for example—also contravene natural law, but one cannot justly wage war against countries in which these crimes occur. “Surely,” he writes, “it would be strange that fornication should be winked at in Christian society, but used as an excuse for conquering the lands of unbelievers!”⁶ If armed intervention is a permissible response to cannibalism and human sacrifice, it must be because these crimes are especially evil. In such cases, outsiders are justified in defending the victims, even if they have not invited such assistance.

Like modern defenders of humanitarian intervention, Vitoria insists that a war to protect the innocent must be strictly limited. If the Spaniards wage war to suppress crimes against natural law, they cannot lawfully continue the war once it has achieved its goal, nor can they seize the property of the Indians or overthrow their governments. In other words, a lawful intervention cannot, without additional justification, become a lawful conquest. Moreover, if Europeans do, for whatever reason, come to rule the Indians, they must govern them for their own good.⁷

Some defenders of the conquest held that because the Indians were subhuman “brutes,” it was lawful to hunt and kill them at will. Others argued that the barbarians, though human, were intellectually deficient and culturally primitive. These “brutish men” were what Aristotle had called “natural slaves”—human beings possessing enough reason to follow commands but not enough to assume responsibility for their own affairs. They were, moreover, slaves without masters, an anomaly for which the Spanish conquest seemed an obvious remedy. Vitoria rejects these claims. The Indians are not natural slaves. Even though their beliefs and conduct are strange and offensive, they have cities, laws, governments, and property, and...

Table of contents

• Cover
• Half title
• Title
• Copyright
• Contents
• Acknowledgments
• Introduction: Humanitarian Intervention—Definitions and Debates
• Part I: Issues
• Part II: Challenges
• Contributors
• Index