How the Gulf War shows that Just War Principles are a Necessary Part in our Thinking about International Affairs

Av Kaptein Henning-A. Frantzen

1. Introduction^*

The Iraqi invasion of Kuwait in 1990 seemed to provide the world with what it needed after the Cold war: a just cause to demonstrate the effectiveness of the post-Cold war international community.¹ The Coalition's campaign turned into the largest military coalition since World War Two.

The importance of just war principles in the decision to use force and to the United States (US) led Coalition's objectives and strategy can be blurred by the extensive criticism against both the decision to wage war against Iraq, as well as the Coalition strategy, the hidden agenda of the war and the political effort it ta­kes to forge a coalition, suggesting that justice had a minor role. ²

The statement being used as a title for this paper can be divided into two parts. Firstly, it addresses the question of the utility of the just war principles in general. Secondly, it raises the question whether the Gulf war can be used as evi­dence for their usefulness.

Just war thinking has made an impact on the theories of international rela­tions, influencing the United Nation's Charter³ and balancing the view that war is a means of power politics- a means to protect the blurred term 'national interests'.⁴ Also, just war principles place some restrictions on warfare and strategy which are necessary if war is to be used as an instrument of justice. This essay will try to

• explore the extent to which the Gulf war, on the part of the coalition, meets the criteria set out in the just war principles and what role they had in the decision to wage war

• explore to what extent the Gulf war, its conduct, achievements and consequen­ces set any precedents for use of military means, with regards to just war prin­ciples.

Not all aspects of just war tradition and the Gulf war can be covered but the most important and controversial aspects are dealt with.

Just War Principles

According to Walzer, the moral dimension of war has two elements.⁵ The first is concerned with the objectives of the fighting (jus ad bellum), the second with how the war is being fought, what are the means that are being used (jus in bello). These two elements are 'logically independent'. Accordingly a decision to fight an unjust war can not be made just by adhering to rules for warfare. Neither can the use of unjust means make the decision to wage war in itself unjust.

Plato, St Augustine and Thomas Aquinas are some of the sources of modern just war theory, letting justice under some circumstances, take priority over peace and thus allowing war under certain conditions. Justice was defined as 'avenge some wrong'.⁶ But, the content of these principles is not particularly Christian or 'Western'. Most religious/cultural communities have similar restraints concerning warfare and it seems that few will have any problem in subscribing to them.⁷

Just war principles and the interpretation and use of them are not a constant, but are influenced by personal and collective belief/value systems, which again vary with time and place.

'The waging of war is just only if there is a just cause, all peaceful channels have been tried and have failed and there is a reasonable chance of success'.⁸ The US Catholic Bishops in their letter of 1983 used seven criteria for a decision to wage war: (1)' Just cause'; (2) War declared by 'competent authority'; (3) 'Compa­rative justice' - do the risks or values at stake justify killing?; (4) 'Right Intenti­ons'- with regards to the ends of the war; (5) 'Last resort'; (6) 'Probability of success' and (7) 'Proportionality' - costs of war must be justified by what is being achieved.⁹ The Bishops` Letter was written in a Cold War context with the dan­gers of nuclear war especially in mind, but it is valid also in a more general fra­mework. With regards to the jus in bello, non-combatant immunity and mini­mum use of force are the most important ones.

These principles are interpreted in different ways. Any state that declares war will claim to have justice on its side. One dispute is between the realist and the absolutist and their differing interpretation of the just war principles and the at­tention they are given.¹⁰

3. Did the Gulf War have a just Cause?

'The Theory of Aggression'.

This theory outlines that in the system of sovereign states, aggression is a crimi­nal act which gives the victim the right to self defence, unilaterally or with sup­port from allies and that an aggressor can be punished.¹¹ This does not mean that ag­gression justifies any actions under the excuse of being defensive or reactive. The jus in bello criteria still apply.

Here, three questions can be asked; 1) how is aggression recognised and 2) are we obliged to contain aggression anywhere and whenever it occurs or is it only so that aggression provides us with a legitimate cause and thus, gives other states the right to intervene? and 3) must the motive to contain aggression be the one absolute and pure motive alone, or is it acceptable for states to act out of other calculations as well, as long as the basic principles are not endangered?

The reason for the first question is that Iraq tried to justify the attack by an historical argument, that Kuwait was an artificial state, a result of the times of British colonial occupation and that Iraq had an historic claim to this area.¹² There has been and still are a lot of similar situations world wide and to give in to such arguments in this setting could have had quite severe consequences. What is im­portant is that Kuwait was a state recognised by the United Nations (UN). It is obvious that Iraq by attacking Kuwait, was the aggressor. The opposite question, the right to national self-determination and to secede from a state (like former Yugoslavia, the former Soviet Union) seems to be more problematic with refe­rence to just war principles than the Gulf case, because they constitute an attack on the status quo, but still adhere to a principle held high: national self-determi­nation.

Secondly, it is often said that there are several similar situations around the world but they have not been met by the same clear response from a united world. There are several reasons for this. Many of these conflicts involve in­terests of the 'Great Powers' (the five permanent menbers of the Security Council) and a vio­lent response could have severe consequences. The chance of success is far from obvious and a military involvement could endanger world peace as well as the fact that the nature of these conflicts is more complicated, the risks are hig­her and chances of success are lower. Just war principles include such considera­tions. The war in the Former Yugoslavia, which is often used to illustrate the in­justice of the actions in the Gulf, is not a clear cut case and due to demo­graphy/ethnicity and topography military action without the consent of the parties would have been very risky and complicated. The Gulf war and Yugoslavia are not easily comparable.

Surely, it can seem unfair and morally questionable that the world reacts only in some cases. This calls for equal treatment of states and conflicts. Equality be­fore the law is a basic democratic principle when it comes to handling individuals. In international affairs, however, it seems more difficult and even dangerous to apply this interpretation. Firstly, we have to consider if it is desirable to have more frequent violent interventions and less concern of their consequences. Se­condly, if the fact that a state or a coalition of states in some cases choose to use force in order to fight for justice, should lead to demands for the same actions anywhere and anytime this would become too expensive and restrain states from acting at all.

The Western world would probably not have intervened in the Gulf if it had not been for the fact that political and economic interests were at stake. This le­ads to the third question, with regards to the purity of the motives. In fact, the main criti­cism against the involvement of the world community in the Gulf was that it was fought by the coalition in order to protect their national interest; oil.¹³ The 'right intentions' are being questioned. It seems that today, economic reasons are not considered to be sufficient justification to wage war, at least not in the 'Western' part of the world. But, just because Kuwait is a rich country, supplying the world with oil, does not mean that it is morally wrong to assist its defence of indepen­dence and sovereignty. Kuwait's economic status does not alter the fact that Iraq attacked Kuwait. This was the basis for the legitimacy of the war. To say that the world reacted only out of economic reasons is just as incorrect as to say that it reacted only out of just war principles. If Kuwait or the Arab world had decided by themselves, to do what Saddam was believed to have wanted to do after he had conquered Kuwait, namely to increase the oil prices, it is not likely that the world would have started a war to solve this problem. Accordingly, the principles at stake were crucial to the decision to wage war.¹⁴

As far as the right intentions are understood in this paper, this principle is only violated if the underlying objectives are allowed to change the character of the war and cause unnecessary violence.

Restoration of status quo argument and the degree of punishment

A war which aims to restore things the way they were before aggression was applied, the status quo, meets some of the essential demands of just war theory. ¹⁵ The status quo argument does not apply as clearly to all situations, but in this case it is hardly controversial when it comes to defending Kuwait.¹⁶ The Coalition officially aimed to repulse Iraq's forces from the soil of Kuwait and then inflict sufficient damage to Iraq's military capacity and infrastructure, that his ability to pose a immediate threat was crushed.¹⁷ The question whether or not the Coalition was to remove Saddam Hussein as the ruler of Iraq was raised and ruled out.¹⁸ This had political motives, for example the wish not to undermine stability in the region or get entangled in a long internal power struggle and the belief that the people of Iraq should topple Saddam themselves. The important point is that this decision in itself, although debatable and questionable, does not violate the just war principles. Nor does it violate international law in any way. In the end the coalition did intervene in internal affairs, but only to protect a particular group – a protective/defensive measure – not to change the political leadership of Iraq.

To restore the status quo also meant to reinstate the dynastic, undemocratic government of Kuwait. To 'crusade' for this kind of regime is far beyond the va­lues the UN and, at least the democratic world like to think of itself representing. But, the fact that the people of Kuwait lived in an undemocratic society does not provide a legitimate reason for not intervening. In the case of the Gulf war, it se­ems that the Coalition decided to follow the principle leaving internal affairs in both Kuwait and Iraq mainly to the citizens of the two countries. ¹⁹

General Swartzkopf himself stated several times during the operation that '...this is not a war against the Iraqi people...', underlining the limitations of the war. ²⁰ But, even though the aims were limited, the air campaign and the land war, it could be argued, went too far and inflicted unnecessary suffering on the part of the Iraqi people and also in destroying the army and that the coalition used maxi­mum force instead of minimum force.²¹ The principle of punishment which, it can be argued, could provide a basis for this maximum use of force also raises questi­ons about who should be punished and to what extent. The way the Coali­tion de­stroyed the infrastructure of Iraq and the embargo following the war, cau­sing enormous suffering on to the population, suggests that the people of Iraq were and still are being punished. Non-combatant immunity was adhered to as there were no direct attacks on civilians.²² Even though the air campaign and some in­cidents were controversial, this seems to have been correct. The more in­teresting point, is the effect of the war on society in general.

These were not deliberate direct attacks on civilians, but the effect on society is still there. Of course, one can argue that the suffering is caused by the Iraqi le­adership not complying with UN resolutions, but the question is more problematic than that. At this point the Gulf war failed, because it did not provide a solution to the problem of the Iraqi regime. The degree of destruction was less a matter of punishment, and more a matter of removing a future threat. Saddam Hussein was perceived as a threat to stability in the region as long as he possessed a strong, well-equipped army. Strong evidence of nuclear, chemical and biological capacity combined with his aggressive tendencies made him a threat which one had to make sure was reduced. Also, this fear of Saddam can explain the coalition's stra­tegy. If the enemy is perceived as dangerous, the need to strike hard is as stron­ger.²³ Before the war, an easily won victory was not a foregone conclusion. Accordingly, the destruction must be seen more as a result of perceived military and political necessity than a desire to punish the aggressor. If the aim had been pure punishment, it should have aimed more directly at the regime and less on society. With hindsight it can be questioned if the maximum use of force was ne­cessary.

The principle of war being declared by 'competent authority' needs further comments. The competent authority has changed together with the alterations and the political developments within the system of states and rulers over the centu­ries. Since the state system was recognised with Westphalia and the termination of the Thirty Years War in 1648, the state with its sovereign has been the legiti­mate authority in the international system. In the 'western world ' of today, only democratic states are regarded as legitimate, but even authoritarian regimes have rights according to international law. The label 'state' carries a set of rights. One fundamental characteristic of the state has been the monopoly of use of violence or coercion both internally and externally lay with the state. This principle has been held high, and the sovereignty of states is fundamental in the League of Na­ti­ons and in the UN Charter. To protect the system of sovereign states has been a fun­damental task for the both organisations.

After the end of the Cold War, this principle has been in a crisis. With the break up of the Former Soviet Union and Yugoslavia the focused has moved from inter-state to intra-state conflicts, often labelled inaccurately 'ethnic conflict'. These scenarios have challenged the international order based on sovereign states and the question has moved to focus on criterion for legitimate break-up of the state as an entity. The issue of 'competent authority' is clearly complicated by this.

The Iraq-Kuwait conflict, was however a traditional inter-state conflict. And in many ways, the Security Council of the UN has adopted a role as 'competent authority' in issues of inter-state conflict. Additionally, multi-national forces are also a way of enhancing the principle of legitimacy; the more states which take part, the greater is the signal from the 'international community'.

4. The Role of the Just War Principles

The criticism of the Gulf war ranges over a wide spectrum. The most extreme is the conspiracy theory, suggesting that the war was never about liberating Kuwait but that US deliberately set Saddam up, giving the green light for an invasion just to buy off the international community in order to obtain support for crushing him after he had done so in order to promote US interests in the region.²⁴ There are also criticism pointing in the same direction, though not that extreme. This con­spiracy thinking reveals a belief in politicians, in this case the US President as the leader of the Coalition, being in control of the situation and the international sy­stem to an extent which makes such theories loose credibility. The risks involved were and are in general too great for this kind of adventure. In the Gulf it was more a case of clumsy diplomacy and lack of a clear policy rather than the pre­sence of one.²⁵

A just cause is not necessarily enough for decision-makers nor the public to use force. Here the question of how to interpret the just war principles can be ad­dressed; as restrictions that limit 'freedom of action', prevent the outbreak of un­just wars and allow the just, or as a motivating force, a force that makes states act out of altruism. If the latter is the case, an interpretation like this will make inter­vention extremely difficult. If we demand that states should apply military forces purely out of a strong wish to crusade for world justice and contain aggression or fight for human rights, probably no war will ever be considered as just. Other considerations must be permitted. These political and economic motives do not necessarily contradict justice. To fight an aggressive state is not wrong just be­cause oil is involved.

5. The Gulf War and Its Precedents

The Gulf war was just, even though just war principles were not the sole basis for action. There were indeed other factors, out of which Iraq's possession of we­apons of mass-destruction and oil were important. The fact that it was possible for the UN to agree on action in this case was also due to fortunate political cir­cumstances. The questions raised in connection with the war reflect the proble­matic issues related to the use of military force in the international system. These problems seem to revolve around

• when to intervene in internal affairs²⁶

• how to make sure there is a plan for returning to 'normal life' after the war

• how to spare civilian society, even though the Gulf war was in many ways successful in this

• maximum or minimum use of forces; how to strike a balance

Much of the criticism of the Gulf war does not seem to be founded on moral considerations of any higher a standard than the decision to go to war was. The criticism seems also to express general frustration over the international system and the failure to intervene elsewhere rather than against the Gulf war in itself. As the just war principle is understood in this article, a decision to wage an unjust war will be wrong and should not take place. As this article argues 'national in­terest' alone is not a sufficient reason for waging war. The problem with drawing lessons from the Gulf war as a just cause is also that it is simply a too obvious a case and that most cases are more complicated.

Also, it seems that if technological developments, if used rightly, have made it possible to wage a war more discriminatory and reduce civilian suffering.²⁷

6. Conclusion

Criticising the Gulf war is of course easy when the outcome of it is known. Seven years later Saddam Hussein is still in power, he has resisted compliance with UN resolutions and the people of Iraq are still suffering.²⁸ Out of the post-Cold war interventions approved by the UN, the Gulf war was one of the more successful; the state of Kuwait was saved.

According to the understanding of the just war principles presented in this ar­ticle, the Gulf war was the kind of war these principles permit. It was fought to contain aggression and to reinstate the status quo. The strategy took the restraints of the principles into consideration. That some mistakes or bad judgements were made, the fact that Saddam is still in power and still dangerous and that the Iraqi people have suffered and still are, does not alter the fact that the war was just. To topple Saddam's regime in itself did not and does not provide a guarantee that the outcome would have been less suffering or increased justice. Neither does this criticism offer an alternative course of action which would have contributed to an Iraqi withdrawal from Kuwait.

Just war principles can play an important role in restricting states both when it comes to the decision to wage war and in developing their strategy and thus add some humanity to warfare. As society has become and still is becoming more transparent due to openness and the role of the media the importance of just war principles will probably increase, because their content seems to appeal to pe­ople's (conscious or unconscious) sense of justice. Just war principles will alone not necessarily provide sufficient motivation for military action, but compliance with them can prevent unjust wars from breaking out and thus reduce the numbers of wars. Thus, just war principles are not to be considered only as a motivating force, rather as a boundary which restrict states' freedom of action and as a fra­mework for action. It could be argued that just war principles are important in preventing the unjust, rather than promoting the just. Also, they take risk and be­nefit calculations into consideration. To contain aggression is thus only legitimate if there is a reasonable chance of success and the costs are not to be too high. Accordingly, even an absolutist interpretation of the principles will include consi­derations of political realities concerning what is possible, and not only desi­rable.

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Henning-A. Frantzen, f. 1968. Adr. Krigsskolen, p.b. 42, 0517 Oslo. Instruktør i taktikk på Krigsskolen. Tilhører Hærens sanitet. Krigsskole II, 1992. Statsviten­skap grunnfag og russisk/øst-europeisk historie. I tillegg Master of Arts, War Studies, Department of War Studies, King’s College, London 1996-97 med spe­sialisering i europeisk sikkerhetspolitikk; hovedoppgave om Norden og Batikum. Tjeneste fra Brigaden i Nord-Norge 1992-1996, med unntak av perioden 1993-94 da han tjenestegjorde i det norske sanitetskompaniet i Bosnia- Hercegovina.