Can NATO Intervention in Yugoslavia Be Justified by Existing International Legal Norms?

Can NATO Intervention in Yugoslavia Be Justified by Existing International Legal Norms?Author(s): Brendan HoweSource: Irish Studies in International Affairs, Vol. 11 (2000), pp. 41-54Published by: Royal Irish AcademyStable URL: http://www.jstor.org/stable/30001911 .

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Can NATO Intervention in Yugoslavia be Justified by Existing International Legal Norms?

Brendan Howe

Department of Political Science, Trinity College, Dublin

INTRODUCTION

The debate about NATO intervention in Yugoslavia has tended to polarise around the concepts of moral justification for intervention based on human rights and their abuse by Serbian authorities and justification (or lack of it) according to codified international law. The two sides fail to engage on common ground, and the debate is therefore somewhat disjointed. This paper assesses the extent to which a normative component exists in international law, thereby providing a shared forum for analysis of the intervention. The paper explicitly does not address the inter-paradigm debate in international relations focusing on such issues as whether international law offers any constraint upon the actions of states or whether states should be given such primary emphasis now that they are clearly such penetrated entities. This is not because I think such questions unimportant. Rather, I think that they are of such importance as to deserve separate analysis.

I begin this paper with an analysis of the current position of codified international law regarding intervention. Within this analysis there is support for and criticism of NATO intervention based upon different sources. However, perhaps more important is the discovery of a normative tradition in international law based upon the actions of states, the writings of the foremost proponents of the discipline and case histories, which together form customary international law. It is generally accepted that customary international law must be given equal weight as codified international law, but I contend that that the former element has been sadly neglected in the debate concerning thejustifiability of NATO intervention in Yugoslavia. Of vital importance, therefore, is some understanding of the debate within international law between positivists and those advocating a 'natural law' approach. Consequently, I include a brief overview of this debate. However, even if we conclude that there is a normative component to international law and that this forms an adequate battleground for the competing claims of sovereignty and human rights, we still need to look at how these competing claims may be evaluated. This is the crux of the argument, and the

Irish Studies in International Affairs, Vol. 11 (2000)

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42 Irish Studies in International Affairs

competing demands of liberals and communitarians form the central theme of my paper. Finally, I address the notion of a possible fusion of the two approaches in order to justify a limited norm of intervention.

BACKGROUND

The 1928 Briand-Kellog Pact essentially outlawed war as an instrument of national policy except (implicitly) when fought in self-defence or (explicitly) when authorised by the Council of the League of Nations. Article 2 (4) of the United Nations Charter reinforces this position and the doctrine of state sovereignty, requiring states to refrain from the threat or use of force against the territorial integrity or political independence of a state, or in any other manner inconsistent with the purposes of the United Nations. States may legally resort to force only in the interest of individual or collective self-defence (article 51) in anticipation of an action sanctioned by the UN Security Council.

Under article 39 the UN Security Council is responsible for determining threats to international peace, breaches of the peace or acts of aggression, and under article 42 it is empowered to authorise a response. To assist in its deliberations, the Security Council may draw upon the 1974 UN General Assembly definition of aggression as 'the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations' or article 6 of the 1946 Charter of the Nuremberg Tribunal, wherein states may be charged with the 'waging of a war of aggression or a war in violation of international treaties, agreements, or assurances'. Luban characterises the UN position as:

(1) a war is unjust if and only if it is aggressive; (2) a war is just if it is a war of self-defence (against aggression).

Or, alternatively:

(2') a war is just if and only if it is a war of self-defence (against aggression); (1') a war is unjust if and only if it is not just.'

Therefore, 'International law does not speak of just or unjust war as such, but rather of legal or illegal war...Each state, according to international law, has a duty of non- intervention into the affairs of other states: indeed, this includes not just military intervention, but, in Lauterpacht's widely accepted definition, any "dictatorial interference in the sense of action amounting to the denial of the independence of the State." At the basis of this duty lies the concept of state sovereignty, of which in fact the duty of non-intervention is considered a "corollary".'2

According to this interpretation, the NATO action in Yugoslavia appears to rest on shaky legal foundations. It is not an action of individual or collective self-defence. It has not been sanctioned by the UN Security Council. However distasteful we find the actions of the Belgrade regime, Serbian forces are not technically waging a war

'David Luban, 'Just war and human rights', in Charles R. Beitz et al. (eds), International ethics (Princeton, N.J., 1985), 195-216: 197-8.

2Luban, 'Just war and human rights', 195, 199.



HowE-Can NATO Intervention in Yugoslavia be Justified? 43

of aggression. President Clinton has claimed that 'We act to prevent a wider war; to diffuse a powder keg at the heart of Europe that has exploded twice before this century with catastrophic results',3 yet this is clearly an exaggeration of the threat posed to international security by the situation in Kosovo; besides, article 39 of the UN Charter clearly states that it is up to the Security Council to decide upon such definitions.

Part of the difficulty in determining the legitimacy of NATO actions concerns the identity of Kosovo and the nature of the conflict. Were Kosovo an independent state, Yugoslavia could easily have been charged with an act of aggression in violation of international law, and NATO would have been justified in collectively defending the Kosovans in anticipation of a Security Council ruling. Unfortunately, Kosovo is part of a sovereign state, against whose territorial integrity and political independence NATO acted, conceivably making NATO legally the aggressor.

International law does provide for intervention in civil conflicts, but again the indicators are not good for the legitimacy of NATO intervention. In the Nicaragua Case the International Court of Justice upheld what has become known as the neutral non-intervention rule, whereby states are prohibited from aiding either side in a civil war. However, here at last we have the beginning of a case for defending NATO intervention. Codified international law certainly recognises the right of self- determination of peoples, and some authorities have advocated a right to intervene on the side of people struggling to establish their own political identity in the face of oppressive and coercive actions from the dominant community to which they currently belong. This view is also widely reflected in state practice, as witnessed by the Reagan and Brezhnev doctrines.

The Paquete Habana Case established that international law can be created through the practice of states, and this is reflected in article 38 of the Statute of the International Court of Justice. Also cited by the Statute are 'the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law'. The 1974 Definition of Aggression (a General Assembly resolution) specifically recognised not only the right to self-determination but also the right to seek and receive support against alien domination, and it might be claimed that ethnic differences between the invading Orthodox Serbs and the majority indigenous Muslim Albanians in Kosovo fulfil this last criterion.

A more convincing case can be built if we delve below the positivist surface to the normative underpinnings of international law. We may have a duty not to intervene in the affairs of other states; however, as pointed out by Luban, the doctrine of non- intervention does not explain why this is a moral duty or tell us what to do when it comes into conflict with other acknowledged duties, moral or otherwise.4 International law has become increasingly concerned with human rights, especially where they come into conflict with state prerogatives-human rights are often seen as rights against states. The League of Nations Covenant established that states had duties to, as well as authority over, the citizens for which they claimed responsibility, when setting up the various mandated territories. The Nuremberg Trials established a limit to state sovereignty-states could not do as they wished with their citizens. The UN

3Statement by the president to the nation, 24 March 1999. 4Luban, 'Just war and human rights', 199.




Charter Preamble reaffirms faith in fundamental human rights without discrimination, and this is also reflected in the wording of articles 1 (3), 55 and 56. We have also seen the 1948 Universal Declaration of Human Rights and the 1966 Covenant on Civil and Political Rights and Covenant on Economic, Social and Cultural Rights. The previous secretary-general of the UN, Boutros Boutros-Ghali, made it clear in his Agenda for peace5 that he considered the age of the sovereign state to be at an end.

An end to the absolute concept of sovereignty holds important consequences for our debate. If sovereignty can be challenged, and there are certain things that states may not do to or with their citizens, then the normative value attached to non- intervention must be weighed against that attached to other commonly held principles that are being violated, in order to judge the legitimacy of intervention. This implies a crucial theoretical shift from positivist analysis to a more natural law approach.

POSITIVISM VERSUS NATURAL LAW

As indicated above, the positivist approach to international law looks only at what is actually written down. The reasoning behind this is that states are sovereign and as such are above the law, except where they have consented to be bound by it. Thus, 'The essential characteristic of the positivist approach to international rules is its insistence that such rules are binding only if they are grounded in state consent'.6 Hence, 'Legal Positivists seek fundamentally to ascertain what the law is, rather than what it ought to be. They are also united in rejecting the Naturalist premise that law can be rationally derived from some metaphysical source.'7 Therefore, for Hart:

the appraisal of states' conduct in terms of morality is recognisably different from the formulation of claims, demands, and the acknowledgement of rights and obligations under the rules of international law...what predominate in the arguments, often technical, which states address to each other over disputed matters of international law, are references to precedents, treaties, and juristic writings; often no mention is made of moral right or wrong, good or bad.8

However, we have seen that precedents, treaties and juristic writings themselves often have been concerned with moral right and wrong, good and bad, and that this is an increasing trend in international law. Furthermore, the very concept of a legalist paradigm (to use Walzer's nomenclature) contains inherent moral assumptions. Why do states (on the whole) obey international law? It is because they believe that to do so is morally right or because it is in the 'national interest' of states. What is the national interest of states? Economic wellbeing and security for their citizens. Why should we want such things? Because they are considered social goods.

There is an international norm of non-aggression, by which is meant the unjustifiable resort to use of force (although what constitutes sufficient justification is still hotly debated on a normative level). There is also a norm of pacta sunt servanda rebus sic

5Boutros Boutros-Ghali, Agenda for peace (New York, 1992). 6R.J. Beck, A.C.A. Arend and R.D. Vander Lugt (eds), International rules: approaches from

international law and international relations (New York and Oxford, 1996), 56. 7Beck et al., International rules, 56. 8H.L.A. Hart, 'The concept of law' (2nd edn, Oxford, 1994), chap. 10, reprinted in Beck et al.,

international rules, 75-92: 86.




stantibus. Why? Partly for the amoral reasons of practical coexistence, b~tt also because there is a shared belief that one is under an obligation not to break treaties or one's word once given. In addition to the rules regardingjus ad bellum, there are a number of generally accepted laws ofjus im bello-they may all be summed up in the normative prohibition against egregious violence. Finally, we have the norm of non-intervention, based upon the moral value attached to the rights of states, particularly territorial integrity and political sovereignty. This last norm is gradually being eroded by a conflicting norm-a morally based belief in humanitarian intervention.

Having decided that there is a normative component to international law, we must turn to how it is determined and how it applies to a specific interpretation such as humanitarian intervention. The natural law approach views certain normative rules and values as transcending those agreed between persons or nations, being morally superior and logically prior-indeed, positive law is, or should be, the physical manifestation of shared norms and concepts of good. Thus, for Pufendorf, 'natural laws have to do with those matters which so harmonise with the social nature of rational man, that, unless they are observed, violence is done in a certain fashion to nature herself, and an ordered and tranquil society cannot be preserved among men'.9

Clearly Luban considers human rights to be just such a set of laws: 'Human rights are the demands of all humanity on all humanity. This distinguishes human rights from, for example, civil rights, where the beneficiaries and obligors are specified by law.'0o However, it is precisely such universalist aspirations that have drawn the most fire from critics. Prominent among these is Michael Walzer.

WALZER, COMMUNITY AND THE LEGALIST PARADIGM

Michael Walzer's 'legalist paradigm' has been roundly criticised for its supposed elevation of the rights of states above those of the individual. It is claimed that Walzer somehow sees the state as amounting to more than its component parts and thus possessing rights over and above those of the individuals who constitute it. The rights of the state include political sovereignty and territorial integrity, which amount to an (almost) absolute prohibition of intervention in a state's internal affairs by other political entities. Thus, Walzer' s critics claim, the state is free to abuse the rights of individuals with impunity, and 'somehow oppression of domestic vintage carries a prima facie claim to legitimacy which is not there in the case of foreign conquest'.l

However, this is an accusation better levelled at positivist and realist authors. Walzer correctly points out that the real subject of his argument is not the state but the political community that underlies it.12 In his earlier work Walzer clearly states that his stance against international aggression is based on the rights of individuals rather than those of states per se.

9Samuel Pufendorf, 'Elements of universal jurisprudence', in Craig L. Carr and Michael J. Seidler (eds), The political writings ofSamuel Pufendorf(Oxford, 1994), and, for further elaboration, 'On the law of nature and of nations' in the same volume.

'0Luban, 'Just war and human rights', 209. 11Luban, 'Just war and human rights', 214. 12Michael Walzer, 'The moral standing of states: a response to four critics', in Beitz et al.,

International ethics, 217-37: 218.




Aggression is a singular and undifferentiated crime because, in all its forms, it challenges rights that are worth dying for...The rights in question are summed up in the law books as territorial integrity and political sovereignty. The two belong to states, but they derive ultimately from the rights of individuals, and from them they take their force.13

The political community is based on shared experiences and cooperative activity, and it is this common life that has a right to be protected.14

For Walzer the legitimacy of a state depends on the closeness of its match to the community of shared values: 'If no common life exists, its own defence may have no moral justification. But most states do stand guard over the community of their citizens, at least to some degree: that is why we assume the justice of defensive wars.'15 In particular, it is this 'presumption of legitimacy' that precludes external intervention: 'Foreigners are in no position to deny the reality of that union [between state and community], or rather, they are in no position to attempt anything more than speculative denials'.16

Thus Walzer rejects attempts to come up with neutral, value-free or universal theories of justice as at best impossible and at worst counterproductive:

The greater problem is with the particularism of history, culture, and membership. Even if they are committed to impartiality, the question most likely to arise in the minds of the members of a political community is not, what would rational individuals choose under universalizing conditions of such-and-such a sort? But rather, What would individuals like us choose, who are situated as we are, who share a culture and are determined to go on sharing it? And this is a question that is readily transformed into, What choices have we already made in the course of our common life? What understandings do we (really) share?17

For Walzerjustice is only based on equality or participation if that is how a particular society has evolved a particular conception ofjustice with regard to a specific sphere. In this way different forms of distribution may be just whether equal or unequal, depending on circumstances, and there is no single, legitimate distributive criterion.'8

According to Walzer, 'the political community is probably the closest we can come to a world of common meanings. Language, history, and culture come together (come more closely together here than anywhere else) to produce a collective consciousness.'"9 He emphasises that:

The community itself is a good...membership cannot be handed out by some external agency; its value depends upon an internal decision...The only plausible alternative to the political community is humanity itself, the society of nations, the entire globe. But were we to take the globe as our setting, we would have to

13Michael Walzer, 'The rights of political communities' (extracted from Just and unjust wars, note 26) in Beitz et al., International ethics, 165-94: 167.

14Walzer, 'The rights of political communities', 168. t5Walzer, 'The rights of political communities', 168. 16Walzer, 'The moral standing of states', 220. '7Walzer, 'The moral standing of states', 5. 18Walzer, 'The moral standing of states', 3-5 19Walzer, 'The moral standing of states', 28.




imagine what does not yet exist: a community that included all men and women everywhere.20

Liberals, however, are deeply distrustful of the state, often seek to minimise it, at the very least want to make it neutral and impartial, and therefore always seek to differentiate state from society. Liberal concerns are highlighted by Kymlicka: 'Despite centuries of liberal insistence on the importance of the distinction between state and society, communitarians still seem to assume that whatever is properly social must become the province of the political. They have not confronted the liberal worry that the all-embracing authority and coercive means which characterise the state make it a particularly inappropriate forum for the sort of genuinely shared deliberation and commitment that they desire.'21

Walzer acknowledges that in reality 'countries are likely to take shape as closed territories dominated, perhaps, by particular nations (clubs of families), but always including aliens of one sort or another', but considers that the only right that such minorities have is not to be expelled. However, if the minority is large enough to constitute a separate political community, and it is irredeemably alienated from the political whole, then he also acknowledges the desirability of setting up a separate nation state for each community: 'self-determination in the sphere of membership is not absolute. It is a right exercised, most often, by national clubs or families, but it is held in principle by territorial states... If the community is so radically divided that a single citizenship is impossible, then its territory must be divided, too, before the rights of admission and exclusion can be exercised.'22

What Walzer does not acknowledge is the right of individuals who do not wish to leave the political whole, to deviate from the community norms. Indeed, he even seems to advocate coercion in the pursuit of conformity:

There has never been a political community that did not provide, or try to provide, or claim to provide, for the needs of its members as its members understood those needs. And there has never been a political community that did not engage its collective strength-its capacity to direct, regulate, pressure, and coerce-in this project... The state is a tool that cannot be made without iron. And coercion, in turn, requires agents of coercion.23

Furthermore, 'Coercion is only necessary in practice because some minority of actual people don't understand, or don't consistently understand, their real interests'.24

COMMUNITY AND INTERVENTION

It is from such communitarian principles that Walzer has drawn together his justification of the international norm of non-intervention and the concept of community/state rights such as territorial integrity and national sovereignty: 'All the groups that achieve statehood and all the practices that they permit... are tolerated by

20Michael Walzer, Spheres ofjustice: a defence ofpluralism and equality (Cambridge, Mass., 1983), 29.

21Will Kymlicka, Contemporary political philosophy: an introduction (Oxford, 1990), 222-3. 22Walzer, Spheres of justice, 62. 23Walzer, Spheres of justice, 68 (my italics). 24Walzer, Spheres of justice, 81.




the society of states. Toleration is an essential feature of sovereignty and an important reason for its desirability.'25 Basically, it is not for us to judge other societies, but rather, if by their own norms and values they are unjust, it is up to the members of those societies to reform themselves. Thus diplomats and politicians deal with 'intolerable' states, and 'For the sake of peace or because they believe that cultural or religious reform must come from within, must be local work, they recognize the other country as a sovereign member of international society'.26 For Walzer aggression, or forcibly intervening in another state's affairs without its consent, is the only crime in international relations; 'everything else is, as it were, a misdemeanour'.27 Thus, it is the only justification for war. From this central hypothesis Walzer postulates six principles:

(1) There exists an international society of independent states...(2) This international society has a law that establishes the rights of its members-above all, the rights of territorial integrity and political sovereignty...(3) Any use of force or imminent threat of force by one state against the political sovereignty or territorial integrity of another constitutes aggression and is a criminal act...(4) Aggression justifies two kinds of violent response: a war of self-defence by the victim and a war of law enforcement by the victim and any other member of international society...(5) Nothing but aggression can justify war...(6) Once the aggressor state has been militarily repulsed, it can also be punished.28

The communitarian basis of Walzer's work means that he is unable to accept intervention for any reason other than to counter aggression (i.e. to reverse an earlier intervention). Walzer starts from a concept of justice, morality and rights being culturally specific and embodied in historically distinct political communities. Therefore the citizens of these communities are the only ones with the right to change the regime under which they live and may insist upon conformity within their geographical borders for all those who wish to be full members of the community. In terms of international relations this translates as a norm of non-intervention, and the protection of political sovereignty and territorial integrity.

THE LIBERAL CRITIQUE OF COMMUNITARIANISM

Walzer talks of pluralistic principles of justice and distribution based on historically and culturally generated divergent understandings of social goods. What he fails to acknowledge is that these understandings of social goods may historically and culturally have been generated in the interests of only a small and distinct section of the community. Kymlicka identifies this as a general failing of communitarian theory. He notes that communitarians claim that 'shared ends are to be found in our historical practices, but they do not mention that those practices were defined by a small section of society-propertied white men [in the case of 'Western' society]- to serve the interests of propertied white men'.29

25Michael Walzer, On toleration (New Haven, Conn., 1997), 19. 26Walzer, On toleration, 20. 27Michael Walzer, Just and unjust wars: a moral argument with historical illustrations (2nd edn,

Cambridge, Mass., 1992), 51. 28Walzer, Just and unjust wars, 61-2. 29Kymlicka, Contemporary political philosophy, 227.



HowE--Can NATO Intervention in Yugoslavia be Justified? 49

Walzer might counter this accusation by pointing out that society and its structures are always subject to revision should the existing distribution of social goods not find favour with the majority of citizens. However, this merely opens him up to a number of other criticisms. Firstly, he explicitly assumes that the disadvantaged have the means to conduct social revision. Secondly, he implicitly assumes that what the majority want is correct for that community and that the rights of minorities may be sacrificed on the altar of conformity through the instrument of state coercion. Thirdly, he assumes that a majority will be able to form a revisionist ideology and movement if the distribution of social goods is contrary to its interest. This may not happen for a number of reasons. A person or group of individuals may lack the physical and/or political resources to overthrow the unjustified monopolies that Walzer refers to. In addition, as identified by Bachrach and Baratz,30 there is the question of invisible power. Even if there is access to political resources, some groups may be so handicapped in their ability to use those resources that not only are they ultimately ineffective but they never even get to the stage of making their demands heard.

Finally, Cohen has launched a scathing attack on the very notion of community values. For Walzer, 'The subjects of values are in the first instance political communities, and not the individual members of those communities'. However, Cohen points out that 'Consent to a political order can reflect a commitment to preserving and advancing a way of life of that order. But it can also result from combinations of fear, disinterest, narrow self-interest, a restricted sense of alternatives, or a strategic judgement about how to advance values not now embodied in the political community.'31

In addition Cohen identifies what he calls the 'communitarian dilemma'. What are the 'shared understandings' upon which communitarian justice is based? If these are taken to be the existing social practices, then the process is inherently conservative and resistant to revision. If we identify values apart from practices, with a view to assessing the conformity of practices to those values, what evidence will there be that we have the values right? If a consensus is sought by asking everyone's views, then there exist no shared understandings and the problem still exists of working out how justly to weigh one view against another.32

LIBERAL CRITIQUES OF THE LEGALIST PARADIGM

Walzer assumes homogeneity and a normative consensus within the political communities he describes. Although he acknowledges that more than one community may live within the geographical boundaries of the nation state, he assumes that there must be either conformity or separation of the distinct socio-ethnic components. In other words, he claims that if there is irresolvable conflict concerning substantial

30Peter Bachrach and Morton S. Baratz, 'The two faces of power', American Political Science Review 56 (4) (1962), 947-52, and Poverty and power: theory and practice (Oxford, 1970), both of which are cited and summarised in James L. Hyland, Democratic theory: the philosophicalfoundations (Manchester, 1995), 199-201.

31Joshua Cohen, 'Review of Spheres of justice', in Will Kymlicka (ed.), Justice in political philosophy. Volume II: critiques and alternatives, Elgar Reference Collection: Schools of Thought in Politics 4 (Aldershot, Hants, 1992), 323-34: 325-8.

32Cohen, 'Review of Spheres ofjustice', 329-33.




conceptions of the good and questions of justice and distribution, then what we actually have is more than one community masquerading as a single political entity. Thus, he would contend, his premise remains true, and the anomaly can be removed by the simple expedient of geographical separation.

This is a false assumption on two levels. Firstly, internal plurality is the norm for modem societies, rather than a consensus concerning principles of justice or conceptions of just distribution of social goods. However, this does not necessarily weaken the sense of communal identity. Secondly, it is often impossible to separate conflictual groups within a community. It may be that minorities who 'want out' (or whom the majority want expelled) do not live in a geographically distinct region, do not exist in large enough numbers to survive as an independent political community or do not have sufficient resources to strive for their independence against the wishes of the dominant group.

These points lead us to a critique of the final manifestation of Walzer's communitarian outlook, the legalist paradigm (or just war theory). The central question is 'when is it justifiable to wage war?'. Leaving aside the extreme realist answer ('always') and the extreme pacifist answer ('never'), there remains a broad spectrum of opinion. One response has been that war may only be resorted to once all other avenues have been attempted and have failed. However, as Walzer points out, this is simply to revert to pacifism, as 'last resort' would make war morally impossible, for we can never reach 'lastness', or we can never know that we have reached it.33 In addition, if we assume that our objective is to minimise human suffering through our actions, then it may be that war achieves our aims in a less harmful way than, say, blockade, sanctions or sabotage. Thus Walzer's solution to these problems is to lay down rules for when it is just, or even when it is our moral duty, to go to war and also to stipulate when it is illegal, unjust or morally repugnant to do so. In doing so, he draws heavily upon his communitarian background, and, as we have already seen, his six principles extensively reflect his defence of the rights of those political communities called states.

However, all of Walzer's points are contentious to a greater or lesser degree. Perhaps surprisingly, the morality of Walzer' s justification for violence in the face of aggression has largely escaped censure by contemporary commentators (despite the rather ironic notion of morally taking life). Where the morality of Walzer's argument has been extensively criticised is on whether it goes far enough in sanctioning war. Some commentators disagree with the notion that there exists a society of independent states, others on whether the rights of these states are worth protecting. In general, however, there is consensus among critics against Walzer's fifth principle, that nothing but aggression can justify war.

For David Luban, 'if the rights of states are derived from the rights of humans, and are thus in a sense one kind of human rights, it will be important to consider their possible conflict with other human rights'.34 He agrees wholeheartedly with Gerald Doppelt that an illegitimate and tyrannical state cannot derive sovereign rights against aggression from the rights of its own oppressed citizens when it is itself denying them those same rights.35 In his opinion the majority of states have therefore

33Walzer, Just and unjust wars, xiv. 34Luban, 'Just war and human rights', 201. 35Luban, 'Just war and human rights', 204.




forfeited their rights, which in truth are only privileges granted them in trust, whereas human beings really do have rights. Thus, although not every infringement is a casus belli (the doctrine of proportionality still applies), he implies not only that any state can but also that every state has a duty to intervene in any other as long as it has a better human rights record.

Unless we say that morality is conditional upon the nationality of the aggressor, we have a duty to defend the victims of internal as well as external aggression. Thus Luban's new 'definition' is:

A just war is (i) a war in defence of socially basic human rights (subject to proportionality); or (ii) a war of self-defence against an unjust war. An unjust war is (i) a war subversive of human rights, whether socially basic or not, which is also (ii) not a war in defence of socially basic human rights.36

This leaves us in a position where 'the legitimacy of the state is conferred in two forms: externally by other members of the society of states, and internally by its own citizens'.37 Walzer's position is that we must always act internationally 'as if' the states we are dealing with are legitimate. Or, as Robert Jackson has put it, 'Justice between states as between individuals involves mutual respect and forbearance'.38 If a state does not embody the interests of its citizens, then it is up to them to rebel. In the absence of a rebellion commanding the support of the majority of the populace, Walzer falls back on the theories of John Stuart Mill-that people cannot be set free by external force but must rely on 'self-help'.39 Thus to a certain extent societies get the governments they deserve, as they reflect something within the society that threw them up. Luban's response is that governments can 'fit the people the way the sole of a boot fits a human face: after a while the patterns of indentation match with uncanny precision'. Thus, 'In this way the politics of as if, in which we acknowledge rights but turn our backs on their enforcement, fails to take our values seriously. It raises politics above moral theory.'40

A RULE-UTILITARIAN DEFENCE OF THE LEGALIST PARADIGM?

Luban's position raises serious questions of its own-namely, if we are to give the right of intervention to those states that are morally superior, who decides which states qualify and on what criteria? Furthermore, what constitutes a human right, and when do we decide that it is being infringed? Or, as Walzer himself responds to his critics:

To whom is this far-reaching license granted? Who is to make the crucial calculations? In principle, I suppose, the license is extended to any and all foreigners; in practice, today, the officials of foreign states; tomorrow, perhaps,

36Luban, 'Just war and human rights', 210. 37Mark Hoffman, 'States, cosmopolitanism and normative international theory', Paradigms 2 (1)

(1988), 60-75. 38R.H. Jackson, 'Dialectical justice in the Gulf War', Review of International Studies 18 (4) (1992),

335-54: 337. 39Walzer, Just and unjust wars, 90. 40David Luban, 'The romance of the nation-state', in Beitz et al., International ethics, 238-43: 243.




to some set of global bureaucrats acting by themselves or as advisors to and agents of a Universal Assembly.41 Chris Brown is equally concerned about the generalisations being bandied about

by Walzer's critics: 'Shue may put security and subsistence above all other rights...But what of those who would put the right to worship God in their own way above either? Or the right to honour their ancestors?'.42 A common concern is that those values purported to be universal are, in fact, merely an extension of the world dominance of Western culture. Thus Walzer might claim that a truly just international society would in fact follow George Bernard Shaw' s maxim: 'Do not unto others as you would that they should do unto you. Their tastes may not be the same.'

Therefore, a more convincing reason for Walzer' s firm stance on non-intervention is his belief that international society is unlike domestic society 'in that every conflict threatens the structure as a whole with collapse. Aggression challenges it directly and is much more dangerous than domestic crime, because there are no policemen.'43 Walzer champions the rights of states because he believes that without them there would be no international society, merely permanent war or universal tyranny.

However, this is where we uncover a major contradiction in Walzer's work. He claims that it is perfectly reasonable to talk of 'shared values' for a community of a certain size but not for smaller (sub-state) communities or for the larger, international community. In Spheres of justice he categorically states that there are no shared global values."44 The question is, 'does anyone have a taste for genocide etc.?'. If so, then the plurality of cultures is probably not worth preserving if some of these cultures are so inhumane. In fact, it could be argued that there is something approaching a global normative consensus with regard to some of the more extreme abuses of human rights and that the 'Western' world merely constitutes those societies that were the first to abandon unacceptable practices in the face of impartial norms of 'civilised' social interaction.

Even Walzer, in his more recent work, concedes something along these lines, stating that 'sovereignty also has its limits, which are fixed most clearly by the legal doctrine of humanitarian intervention. Acts or practices that "shock the conscience of humankind" are, in principle, not tolerated.'45 What is the 'conscience of humankind' if not a case of shared global values? Walzer still attempts to differentiate between domestic and international regimes; however:

Given the weak regime of international society, all that this means in practice is that any member state is entitled to use force to stop what is going on if what is going on is awful enough...But no one is obligated to use force; the regime has no agents whose function it is to repress intolerable practices. Even in the face of obvious and extensive brutality, humanitarian intervention is entirely voluntary.46

41Walzer, 'The moral standing of states', 232. 42Chris Brown, 'Cosmopolitan confusions: a reply to Hoffman', Paradigms 2 (2) (1988-9), 102-

11: 106. 43Walzer, Just and unjust wars, 59. 44Walzer, Spheres ofjustice, 30. 45Walzer, On toleration; 21. 46Walzer, On toleration, 21.




However, this concession further weakens his argument. Firstly, it is somewhat dubious to distinguish between these two forms of political community purely on the basis of voluntary or compulsory defence of norms (and on what grounds does he make this distinction?). Secondly, his critics would claim that this is precisely what is wrong with Walzer's argument, that he doesn't acknowledge a moral imperative to defend human rights in all their forms. Thirdly, by acknowledging that in certain cases any member state is entitled to use force to stop what is going on if what is going on is bad enough, he is unceremoniously hoist by his own petard-who decides what 'is bad enough'? What degree of force is appropriate? And so on. He ends up in the same position as his critics but without the support of a value-neutral set of criteria for just intervention.

CONCLUSION

Although Luban and Walzer reach their final positions from opposing theoretical starting points, in the end their practical differences are little more than a matter of degree. For every case that occurs there will be a debate on the morality of each side's position. The rules of both theories are likely to be applied, and the verdicts may in many cases turn out to be similar. One point that Luban makes is indisputable: 'No definition of just war is likely to address all of the difficult cases adequately-and there is no realm of human affairs in which difficult cases are more common. Seat- of-the-pants practical judgement is a necessary supplement to one's principles in such matters.'47

We have reached a point where we accept that there are individual human rights, shared values within communities that constitute state rights, and a certain degree of global consensus or shared norms. What is needed is a way to reflect these three competing demands upon our evaluation ofjustice. Perhaps Rawls has come closest to synthesising these competing theories. Starting with his value-neutral liberal approach to the rights of individuals, he has actually taken on board much of Walzer's criticism. He accepts that we are historically situated but believes that we have become historically situated in liberal individualism! Thus most contemporary societies (that are not rejected by international society as rogue or pariah regimes) give a high priority to the freedom to choose. His theory of 'overlapping consensus' in political societies is as applicable to the international community of nation states as it is to multicultural pluralistic domestic communities (although he himself does not go as far as to state this).

The 'new' Rawlsian hypothesis appears to place less emphasis on the supposed value-free universalism that Walzer et al. found so objectionable. However, he is still extremely resistant to the notion of values embedded in the political community, for precisely the reasons mentioned above-namely, that no political community reflects an absolute consensus view of its citizens regarding conceptions of the good, and any attempt to create such conformity will rely on massive and unjust coercion. According to Rawls, 'justice as fairness does indeed abandon the idea of political community if by that ideal is meant a political society united on one (partially or fully) comprehensive religious, philosophical or moral doctrine. That conception of

47Luban, 'Just war and human rights', 216.




social unity is excluded by the fact of pluralism; it is no longer a political possibility for those who accept the constraints of liberty and toleration embodied in democratic institutions.'48

Rawls does not rule out community-embedded values in the realm of the non- political. Indeed, he acknowledges that communitarian concerns may be entirely appropriate in spheres other than the political: 'Note that what is impractical is not all values of community...but only political community and its values' .49 With regard to the political, Rawls identifies his overlapping consensus as the only community- shared value likely to endure without coercion-an institutionalised guarantee of tolerance of diversity within communities as opposed to mere toleration of diversity between communities as advocated by Walzer. Like Walzer he is concerned with majoritarian popular support for regimes, but unlike Walzer he is convinced that in order to get a substantial majority of citizens freely to give their support a political doctrine is needed 'that a diversity of comprehensive religious, philosophical, and moral doctrines can endorse, each from its own point of view'.50

Any state that does not practise this degree of toleration of diversity leaves itself open to condemnation from the international community. Any state that does not practise this degree of toleration and conducts itself in a manner towards its own citizens that any rational being would find abhorrent is guilty under international law according to the shared norms of international society, the works of eminent publicists, the practice of states and the intents and purposes of the United Nations. Therefore, if the abuses are sufficient (according to the doctrine of proportionality) to outweigh the possible harm that would be done by external intervention, then every state of superior moral standing has not only the right but also the duty to intervene.

Returning to our case study, we can see that there is something of an international legal justification for NATO intervention in Yugoslavia. It would certainly have been preferable for NATO to have obtained UN endorsement, as this would (presumably) have satisfied even the positivists. This not being the case, we need to consider whether the human rights abuses were severe enough to warrant intervention. I think that now it is clear that they were, but whether they were sufficient (or at least appeared to be so) to provide justification at the time of the initial NATO action will need more analysis. One justification that has been mooted is that it was known that the human rights abuses would be bad enough, but such pre-emptive strikejustifications are always of dubious legality.

48Stephen Mulhall and Adam Swift, Liberals and communitarians (Oxford, 1992), 198. 49Mulhall and Swift, Liberals and communitarians, 199-200. 5sJohn Rawls, 'The domain of the political and overlapping consensus', in David Copp, Jean

Hampton and J.E. Roemer (eds), The idea of democracy (Cambridge, 1993), 245-69: 250.



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Can NATO Intervention in Yugoslavia Be Justified by Existing International Legal Norms?