Humanitarian intervention, force and justice^*

By Director Dan Smith

Introduction

Humanitarian intervention is one of a group of issues, along with civil wars, con­flict resolution and prevention, that have together formed the central theme of dis­cussion about international security during the 1990s. In both the scholarly and policy debates, it has become clear that the issue raises ethical questions that did not have to be confronted in security debate during the Cold War era. While the sheer amount that has been printed and published on the issue of humanitarian intervention shows that the importance of the issue has been widely recognized, the literature also reveals a lack of experience and competence in discussion of the underlying ethical issues.¹ This essay argues that the traditional Western frame­work for discussing the ethics of using armed force, the Just War tradition, is the appropriate framework for discussing humanitarian intervention.

Like many other terms employed in international political discussions, the meaning and application of the term ‘humanitarian intervention’ are contested, inconsistent and therefore capable of causing confusion. For some commentators, action can only be described as humanitarian if it fits the Red Cross/Red Crescent tradition of a neutral agency offering care to whoever needs it, regardless of politics. From this perspective, moreover, armed forces can only undertake humanitarian action if they first put down their arms. For another group, military operations are a form of humanitarian intervention if they are in direct support of humanitarian activities, such as delivering emergency supplies, rescuing victims, organizing refugee camps. However, the use of the term ‘humanitarian inter­vention’ is normally much wider than that to cover intervention in armed conflicts for humanitarian purposes with a range of means including armed force. If it occurs without the consent of the government of the state whose territory is involved, it is forcible humanitarian intervention.

The implications of the different definitions are important. The first definition implies that the military can carry out humanitarian intervention because it consti­tutes a well-trained, well-organized and available labour force with certain highly relevant skills. Among the relevant skills, however, this first definition excludes what most people would regard as the defining characteristic of armed forces, the use of arms. By contrast, the second definition implies that the military can use arms for humanitarian intervention, as long as their activities are guided solely and directly by humanitarian objectives. Protecting aid convoys would thus be humanitarian intervention, but creating a secure environment for aid delivery by clearing the surrounding countryside of hostile forces that might attack convoys would fall outside the scope of this definition. By contrast the third definition, the most commonly used one, implies that so long as the motives are humanitarian, all-out war could fall under the heading of humanitarian intervention.

As the differences between the definitions make clear, the first and fundamen­tal question in this debate is whether it is in principle possible to use armed force for humanitarian purposes. This is not a question of operational feasibility, but of ethical principle: Can violence be used in a good cause? Answering that question with a negative means embracing a strict pacifism. A willingness to contemplate a positive answer to the question leads on to a discussion about the circumstances and the ways in which armed force can be used for humanitarian purposes.

There are at least two possible jumping off points for the discussion. One is constituted by the recognition that as long as the armed forces that carry out humanitarian intervention are the armed forces of states, it is inevitable that humanitarian intervention will also be in part political.² It is, therefore, possible to begin by considering the interests of intervening states in intervention. The alter­native is to take the term ‘humanitarian’ on trust, so to speak, and to begin by considering the urge to do good. Because this essay is directed at a discussion of the ethical issues, the starting point here will be the humanitarian impulse. How­ever, it should be regarded as axiomatic that the ethical framework that will be most helpful is one that will embrace both the humanitarian impulse and the context of political interests within which it will be acted upon.

Care for Strangers

This is the age of information and communication. The technologies of informa­tion and communications are the basis of globalization, integrating world markets to a degree that was inconceivable only a few decades ago. It is common to complain about the losses in quality of life that have been the downside of the gains in market efficiency. But there is at least one major human and moral gain as a direct consequence of globalization, for we now know much more about humanitarian tragedies in faraway countries than ever before. More importantly, not only do we know more, we care more. The growth in size and influence of the big humanitarian NGOs reflects not only increased public awareness of the prob­lems, but also a willingness to do something about them and to find ways to help total strangers.

The humanitarian impulse itself is not new in kind in the 1990s. Wars and famines in previous years led to comparable outpourings of emotion and practical aid: Biafra in the late 1960s, Bangladesh in the early 1970s, Cambodia in the late 1970s and Ethiopia in the early 1980s. It was perhaps with the Ethiopian war and famine, and with the launching of Band Aid and associated initiatives, that the globalization of humanitarianism reached a new threshold. The Kurdish crisis in northern Iraq in late 1991, in the immediate wake of the Gulf War, and then the tragedies in the Balkans and Rwanda took both knowledge of disaster and response to it to new levels.

While the basic humanitarian impulse was not new in the 1990s, there was an important contextual change. With the Cold War over, from 1989 the United Nations was able to act in a way that had not been possible for the previous four decades. Thus, it became possible to see the response to large-scale human trage­dies as creating not just a humanitarian but also a political responsibility. It was not just the voluntary aid agencies that had to act, but national governments, especially including the major Western powers, above all the United States. Most of the most appalling situations have arisen in the context of war and repression. It is hardly surprising that the feeling that something should be done encompassed not only humanitarian assistance to ameliorate the suffering, but also political action to address the symptoms, and, as part of that, military intervention.

Reacting to the tragic consequences of war, genocide and large-scale abuses of human rights with a desire to provide help and care for the victims is a morally proper response. The desire to care for strangers is to be welcomed, respected and cherished. It is, however, often arbitrarily selective, built on uncertain foundations and likely to answer far fewer ethical questions than it raises.³ None of this makes it less valuable, but it does mean that care for strangers is only the starting point. In 1999, NATO’s war against Yugoslavia was the occasion for the mass expulsion of Albanians from Kosovo, which the war was ostensibly intended to prevent. While it lasted and in its aftermath, the war also inflicted serious harm on ordinary Serbs, who had no direct responsibility for the crimes of the Serb and Yugoslav authori­ties in Kosovo. The war against Yugoslavia is clear warning that care for strangers is important but not enough.

Contradictory dangers

It is likely that for many ordinary citizens in Western Europe and North America, the war against Yugoslavia was a horrible and disillusioning experience. Obviously, what observers felt is considerably less important than the suffering experienced by those who were directly affected. It is nonetheless worth consider­ing the reactions of observers, if only because reactions this time may affect deci­sions next time.

Disillusion comes when good intentions go astray. There was widespread sup­port for the air offensive, despite the evident lack of a United Nations mandate for it. This was because armed action was expected to make things in Kosovo better. It was what the political leaders said and it was what they promised. In the event there were many reasons to feel the promises had been empty. Inevitably, errors occurred and civilians were killed during the bombing campaign. The Belgrade government pressed ahead with the massive ethnic cleansing NATO’s leaders said they were going to prevent. According to the NATO air commander, the air offen­sive was not designed to stop the expulsions.⁴ Instead, strategic targets were hit in Serbia outside Kosovo, including bridges and factories, and among the latter including chemical factories with the result that there has been serious chemical pollution. Even more repugnantly, NATO used anti-personnel munitions.

It was difficult for most ordinary people to feel that all this qualified the NATO war as a humanitarian action. What should have been clear and simple became even more complicated when NATO ground forces finally went into Kosovo. NATO’s Kosovo Force and the UN administration immediately entered open if ambiguous dispute with the Kosovo Liberation Army, to whom its offensive had given power. There were revenge killings and reverse ethnic cleansing. In the wake of the war, NATO member states have taken on a mammoth task of reconstruction of unknown cost, and political and strategic responsibilities whose full dimensions and scale can be glimpsed but not properly known at this stage. The war, in other words, was the first step on a journey whose destination is undefined and whose duration is unknown.

But while all this shows the dangers that attend action, the path towards war in Kosovo from 1996 to 1998 shows the dangers of inaction. In the lead up to the Dayton negotiations that produced the November 1995 agreement to end the war in Bosnia-Herzegovina, western diplomats challenged Milosevic about Kosovo but accepted his insistence that he would not allow outside interference there. He offered them a trade-off between peace in Bosnia-Herzegovina and doing nothing about Kosovo. Western diplomats accepted the implicit deal, and it is easy to understand why. What remains a mystery and a puzzle is why they honoured the agreement. Nobody signed anything. As soon as the Implementation Force was established in Bosnia-Herzegovina, western diplomats could and should have brought up the question again. Instead there was silence. In mid-1996 the Kosovo Liberation Army carried out its first armed action. Still nearly two years passed before the decade’s most predicted war began at the end of February 1998.

It is also worth recalling the experience of intervention in Bosnia-Herzegovina, which began in 1992 and was always under UN authority. By summer 1995, when Bosniak refugees gathered in the UN-designated ‘safe haven’ of Srebrenica were massacred by Republika Srpska forces, it was an open question whether the inter­vention had achieved anything worthwhile. Supplies had been delivered, some areas had been temporarily stabilized, but there was no real security for Bosniaks and Croats anywhere in Bosnia-Herzegovina, and it seemed as if the republic and its people were being subjected to slow torture.

There have been, then, a series of contradictory experiences of the dangers of weak action (Bosnia-Herzegovina from 1992 to 1995), inaction (Kosovo 1996 to 1998) and strong action (Kosovo 1999). Of course, some argued for even stronger action. Virtually every critic and many advocates of the NATO campaign agreed that the chosen instrument of air power was ill-suited for the task of averting the expected humanitarian disaster. There were those who supported the British government’s preference for sending in ground forces. However, this would have meant full-scale war and Serb/Yugoslav forces could have been expected to push Albanian civilians into the combat areas as a spoiling tactic. Most NATO govern­ments were not prepared to accept that, nor the risks to their own forces entailed in a ground war.

In short, humanitarian intervention raises a host of problems to which there are no easy solutions. If the intervention is restricted to purely humanitarian assistance, it risks being merely palliative at best, and at worst may even prolong the suffer­ing. But if an effort is made to impose a solution to the underlying problem, that will meet opposition from those forces that benefit from the situation that is creat­ing the tragedy.

Ethics, politics and Just War

Finding an ethical path through this maze is no easy task. What is needed, as indi­cated above, is an ethical framework that can also address political realities. It is always unfortunate when ethics and politics are put into completely different com­partments. While there are distinctions between the two fields of enquiry and the different modes of argument, each is more productive when it is kept in contact with the other.

There is, in fact, a ready made set of concepts and a body of scholarship that does unify thinking about what is right with thinking about what is effective. It addresses the issue of when and how is it right to fight. It is known as the Just War tradition, although that common name may be misleading, tempting the unwary into believing that this is a framework that will tell you which war is just. That is not really the central issue in this philosophical tradition. A better label for it would probably be the Justice in War tradition, the point being that it is primarily concerned with how it is possible to behave justly when confronted with the awful prospect of warfare. The tradition is normally traced back to Augustine of Hippo and the arguments he put forward in City of God written in the wake of the sack of Rome. He expressed the core of his attitude to war as follows:

“But the wise man, they say, will wage just wars. Surely if he remembers that he is a human being, he will rather lament the fact that he is faced with the necessity of waging just wars; for if they were not just, he would not have to engage in them, and consequently there would be no wars for a wise man.” ⁵

The tradition was revived in medieval theology, and between the mid-13^th and the early 17th century, developed into a sophisticated framework for thinking about war. James Turner Johnson rightly points out that these concepts and writings constitute a tradition or a framework rather than a unified theory; there is no single doctrine of Just War in either religious or political sense.⁶ As a result, different writers using the Just War framework arrive at con­trary conclusions on key issues. Indeed, the pluralism of the tradition goes further. From one writer to another, the conceptual structure they us is recognizably similar but not exactly the same, even in the 13^th century.⁷

Thus, the literature on justice in war is not a guide to action with clear instruc­tions on when and how to fight. It is, rather, a guide to thought and discussion. It does not offer answers, but good questions, and not only the answers are varied, but also the questions. This flexibility in the framework of thinking makes it ideal for application to a range of difficult issues, and it is in particular well suited to considering the ethical issues that arise when armed force is used for humanitarian ends.

The two main categories of Justice in War are ius ad bellum (the justice of resort to war), and ius in bello (the justice of the conduct of war). We shall con­sider seven criteria under the ad bellum category, and four under in bello, summarized in Table 1.⁸

Table 1 Just War criteria

Ius ad Bellum (the justice of resort to war)

Ius in Bello (the justice of the conduct of war)

The resort to war

The first criterion for judging whether it is proper to resort to war is right authority, meaning the authority to initiate war. In the classical tradition, this be­longs to legitimate government, not to individuals, however powerful they might be. In the context of intervention, states are bound by the United Nations Charter, which restricts them to operating with a UN mandate in support of international law.

The second criterion is just cause. In the classical tradition, this is normally taken to rule out conquest and to include four conditions: self-defence, defence of allies, taking back (or helping allies take back) what was lost in a previous war, or to punish some transgression. They can be summarized as meaning that, “the sole and only just cause for waging war is when harm has been inflicted,”⁹ as long as we recognize that, “not every or any injury gives sufficient grounds for waging war.”¹⁰ It is particularly important for the discussion on intervention that the clas­sical tradition stresses defence of the innocent as a just cause. Killing in self-defence is not always accepted as reasonable; Augustine argues that “the law is not just which allows a traveler to kill a robber in order to avoid being killed by him.”¹¹ Helping one’s neighbour, however, is a repeatedly stated and easily under­stood duty.

The third ad bellum criterion is right intention. The point here is that not only must the cause be just, but also the motive must be virtuous. It is not acceptable to exploit a just cause for other purposes, such as self-glorification, pursuit of power, looting, control of oil, or anything else. The just cause criterion deals with the objective situation and how it is ethically evaluated, while the criterion of right in­tention addresses the actors’ motives and their state of mind. It is an argument against hidden agendas.

The fourth criterion is the issue of last resort, which means that there have to be no viable alternatives to war as a means of achieving the just cause. When NATO leaders argued that they had exhausted every other means of getting Presi­dent Milosevic of Yugoslavia to agree to a just and humane settlement in Kosovo, they were essentially using the argument of last resort. It is not clear, however, that other alternatives have to be tested in practice before they are rejected as not viable. In the discussion of humanitarian intervention, Jane Sharp summarizes the views of many writers when she concludes that, “if intervention is called for, and is just, it had better come early rather than late.”¹² If this argument is accepted, the conclusion is that armed intervention can be legitimate whether or not other options have been tried.

The fifth criterion is that war should commence with an open declaration. The reason for this was not fair play, but rather that it signaled the shift from one moral zone in which killing is wrong, to another moral zone in which killing may be morally acceptable. Everybody had to know that the shift had been made, not least the soldiers who then had to obey orders to go into battle. In the intervention con­text, the case for open declaration is to do with transparency and accountability of international actions.

The sixth criterion is proportionality. This can be summarized as the require­ment that the resort to war must do more good than harm, and the point is equally important in the case of humanitarian intervention. It is, of course, an extremely difficult criterion, because it implies quantification, yet the good and the harm of a military action are only partially quantifiable. Even to the extent that quantification is possible, moreover, this criterion also requires an assessment of future conse­quences. Disputes over, for example, whether the interventions in Haiti and Somalia during the 1990s were worthwhile indicate that even after the fact it is dif­ficult to calculate consequences.¹³ Nonetheless, that an effort must be made to foresee good and harmful consequences seems undeniable. The only alternative is wishful thinking.

The last of the seven criteria is reasonable hope. This is also a warning against wishful thinking, for it insists that there must be reasonable grounds for believing that the cause can be achieved. On the one hand, the commander is not allowed to waste his troops’ lives in a lost cause. On the other, wanton destruction to no pur­pose is not to be condoned. In the context of humanitarian intervention, this cri­terion demands that we tackle the feasibility issue in its fullest sense. It asks us to check that the mandate is reasonable, that necessary forces are allocated, that the rules of engagement are appropriate, that there is a clear political aim,¹⁴ that the intervening states agree with each other and have the necessary political support at home,¹⁵ and that the political leaders have the will to see the operation through to the end.¹⁶ All of these issues were central in the debate on intervention in Bosnia-Herzegovina from 1992 to 1995 and again in 1998 and 1999 in the discussion about intervening in Kosovo.

The conduct of war

The first criterion concerning the conduct of war (ius in bello) is proportionality, repeating in the conduct of war what is already asserted for resort to war: military actions must be necessary and do more good than harm.

The second is the principle of discrimination, which insists on immunity and protection to non-combatants. It is important that immunity and protection are different: “Immunity” means it is wrong to attack non-combatants; “protection” means that, in addition, there is an obligation to protect non-combatants. This is, however, balanced by the principle of double effect. This is a principle that is treated very differently by different writers. In some hands, it almost obliterates the immunity element of discrimination, for according to this principle, military actions may be ethical even if the innocent are hurt and even killed, and even if that result was foreseen or foreseeable. However, to maintain consistency with the discrimination criterion itself, it seems essential that three limiting conditions are met. First, hurting and killing non-combatants must not be one of the aims of the action; it must be only a side effect. Secondly, this side effect must be an unavoid­able consequence of carrying out the main intention, which must itself be ethically justified. Third, the action as a whole, side effects included, must still conform to the proportionality rule of ius in bello.

Few writers refer to the criterion of relative justice.¹⁷ Miller (1991) makes a strong argument. It essentially consists of the recognition that there is no monopoly on good or evil. It is not clear that this belongs to either ad bellum or in bello ex­clusively. It could perhaps most fruitfully be treated as an admonition on the proper manner of discourse. It is an argument against propaganda in war, and per­haps against naiveté in debate on humanitarian intervention.

The criterion of mournful mood is similar in tone and intent,¹⁸ and as with relative justice, it is ultimately unclear whether it belongs under the ad bellum or the in bello category. The use of armed force can always go wrong, killing the innocent, producing other undesirable side effects. There should, therefore, be no glorification, no triumphalism. The mood should throughout be mournful, or at least restrained; there should be no joy, only an acceptance of the necessity to use force. This requirement can be connected to an important argument about whether there is a right or a duty to intervene when there is a humanitarian disaster. The argument that there is a right of intervention is popular but misguided, for when the use of armed force is at stake, right is too close to might and exercising a right is too close to exercising power. It is far more productive to think about intervention as a duty, that must be thought about carefully first, and undertaken, if at all, because it is a duty and a necessity.¹⁹

The relationship between the criteria

The discussion above has already indicated some fairly straightforward ways in which the Just War tradition is relevant to the contemporary debate on humanitar­ian intervention. However, real-life problems are rarely neat. One of the most diffi­cult issues in the Just War tradition is how the argument shapes up when a war or proposed military intervention is just by some criteria and not by others.²⁰ For example, in the war against Yugoslavia it might be argued that NATO had just cause and right intention, but lacked right authority, had little reasonable hope, was proportionate neither in the overall war nor each and every military action, and did not maintain adequate discrimination even if double effect was permitted. Does this mean overall that the war against Yugoslavia was just or unjust?

It bears emphasizing that in this, the war against Yugoslavia is by no means unique. For the Allies, World War II had many of the hallmarks of a just war, but the relentless attack on civilian targets, including not least the firebombing of Dresden and Tokyo and the nuclear bombing of Hiroshima and Nagasaki are not thereby made morally acceptable actions. Equally, however, the moral unaccept­ability of specific military actions does not necessarily make other military actions immoral, nor does it necessarily taint the whole war effort. Likewise in the war against Yugoslavia, if the cause was just, it was just whatever the means that were used. If it was unjust, it was unjust however proportionate and discriminating the means.

There are three points here. The first is that the criteria are not absolute. It is not the case that, in order to be judged just, a war or an intervention must ‘pass’ on all counts. The second point is that, just as the individual criteria are not absolute, the philosophical approach in this tradition is not mathematical. We are not expecting to tally up the score (three just, four unjust, two uncertains and a couple of inapplicables) to arrive at a ‘pass’ or ‘fail’. We are not subjecting humanitarian intervention to a driving test. The third point, consequently, is that it may not be possible to arrive at an overall judgement about a war or an intervention, and there­fore it may not be sensible to aim for one. The point of the just war framework, and the reason why it might be better to call it ‘justice in war’, is that the use of armed force is always to be regretted, but once the moral bar against killing has been lifted, that is not the end of ethics and morality. Even in the midst of war, even when the bombs are falling, it is still worth discussing and identifying right and wrong.

The value of the Just War framework does not lie in providing an ethical checklist. Rather, it lies in the light that it can cast into some dark and tricky cor­ners of a complex and crucial debate. It can help organize the debate, because it asks the right questions and offers a vocabulary that is equally relevant to both advocates and opponents of particular interventionist policies. If this seems frustratingly indeterminate, we should heed Thomas Nagel’s warning that, “Given the limitations on human action, it is naïve to suppose that there is a solution to every moral problem with which the world can face us.”²¹

Just cause, peace and justice

Protecting the weak and powerless, the innocent, those against whom wrongs are committed: this aim of humanitarian intervention falls easily within the scope of the just cause criterion. However, one element not explored above is how the cause should be expressed as a goal. If a great wrong is done, there is reason to put it right, but how does one recognize the ‘right’. Just cause is one thing; legitimate objective is another. This can be understood in terms of the need to give content to the concept of peace.

Most writers in the Just War tradition have followed Augustine in arguing that peace is the natural aim of humankind, even monsters, robbers and tyrants, but that the peace that they seek is not the peace that the virtuous should seek.²² Indeed, so clear was the distinction between what the virtuous and the evil sought under the name of peace, that Augustine concluded as follows:

“It comes to this, then: a man who has learned to prefer right to wrong and the rightly ordered to the perverted, sees that the peace of the unjust, compared to the peace of the just, is not worthy even of the name of peace.”²³

In other words, to fulfil a just cause, it is appropriate to aim for a peace that is to be defined in terms of both security and justice.

Yet justice is a relative concept, as another part of the Just War framework itself reminds us. In the abstract, it is possible to devise arrangements in Kosovo that would be just for both Serbs and Albanians; it is a lot more difficult to get both Serbs and Albanians to agree that any set of arrangements is equally just and wholly acceptable. Yet there is surely no alternative to attempting to find the political arrangement that can express the justice that is a necessary component of any peace settlement. Not to do so would vitiate the very idea of justice in humanitarian intervention.

References

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Sharp, Jane M. O. 1994. Appeasement, Intervention and the Future of Europe. In Military Intervention in European Conflicts, edited by L. Freedman. Oxford: Blackwell Publishers.

Smith, Dan. 1997. Interventionist Dilemmas and Justice. In Humanitarian Force, edited by A. McDermott. Oslo: International Peace Research Institute.

Sweeney, John. 1996. Stuck in Haiti. Foreign Policy (102):143-151.

Tirpak, John A. 1999. Short's View of the Air Campaign. Air Force Magazine, September.

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Dan Smith. Direktør ved Institutt for fredsforskning (PRIO), Fuglehauggt 11, 0260 Oslo. F: 1951. Dan Smith har utgitt The State of War and Peace Atlas (Penguin 1997), The State of the World Atlas (Penguin 1999) samt flere bøker og artikler om fred og sikkerhet. Han har også skrevet tre kriminalromaner. De siste årene har han ledet et forskningsprogrammet om international etikk/humanitær intervensjon.