Chapter I

Just War Theory and Humanitarian Intervention

The main purpose of this chapter is to analyse and explain the critical assumption that

Just War Theory informs humanitarian intervention decisions. Methodologically, the

chapter will be constructed by an engagement with rival traditions of war that includes

realism, pacifism, and militarism. Against this backdrop, a detailed historical description

of the Just War Theory, combining patterns of thought and practice both within and

across time will be focused upon. This approach would help to analyse how a discourse

operates within and between those identifying with a particular ideology, and how the

goals and principles of a tradition of thought are developed. The chapter will also attempt

to establish the steadiness of the Just War Theory as a normative and explanatory

paradigm, and that, it has emerged dominant with regard to humanitarian interventions.

Keeping in mind the horrors of war, the exponents of the Just War tradition offer certain

criteria to maintain a c1itical and constant scrutiny on the activity of war. Before getting

into the contours of the Just War tradition as well as its intellectual history, a brief

analysis of the rival traditions of war is pertinent in order to understand each tradition's

strength and weaknesses and how the Just War Theory measures up in that context.

1.1. Realism:

Realism does not favour the application of morality to war. They oppose the idea that

man in a "state of war" would think twice about the Y.Jnd of conduct he adopts on the

front, since all acts of war are contextual. The limitations that the Just War theorists

impose on human activity in wartime conditions, the realist contend, are not only

abstractions with no connection to reality, but would have grave consequences in the

battlefield. The realist theoretician believes that if victory is the goal in war, then

anything goes in war to achieve that purpose. Gone are days of "acts of honour'' and

"aristocratic chivalry". In the real world, the thirst for victory and its successful

achievement is what war is all about. The attempt to impose moral restrictions can have

dangerous consequences, an army on the threshold of victory could be defeated, if the

rank and file of the army, suddenly feels remorse at the plight of the enemy (of the pain

and bloody wounds of the army in retreat).

32

E.H. Carr's "The Twenty Years' Crisis" (1981 first published in 1934) points out that the

main cause for disasters in conditions of war is primaril.y due to a certain "moral

utopianism" that influences military strategists in their mapping out of battlefield

behaviour. The neglect of the "power factor" ensures defeat when it could have been

victory. The main thrust of the realist argument is to combat the idea of a "moral culture"

of war. Emancipation from persistent utopianism that degenerates and corrupts the

understanding and practice of wartime conduct is an emergency that must not be taken

lightly.

"Interest defined in terms of power", as Hans Morgenthau insists should be of primary

importance.' War, no doubt, reveals human nakedness, but when that nakedness is in the

interest of victory, the need for adornments of civilised behaviour is absurd. Henry

Kissinger records his protest against the idealist rhetoric that was evident in Presidential

speeches during the Gulf crisis of 1991. In his opinion, US foreign policy has lost its

mettle because of the affiliation to idealism.

War strategy cannot be a bunch of ethical emulations. Realism strips war of the 'tag' of

exceptional or abnormal activity and suggests that war is a continuation of politics. This

is reaffirmed with the view of Clausewitz who states that "We know, certainly, that war

is only called forth through the political intercourse of Governments artd nations; but in

general it is supposed that such intercourse is broken off by war, and that a totally

different state of thing ensues, subject to no laws but its own. We maintain, on the

contrary, that war is nothing, but a continuation of political intercourse, with a mixture of

other means."2

For the realist, war is a natural causation, dependent on the permanent threat perception

that international relations gives birth to, that it is not a temporary trait. The moralist, to

the realist, is a man of self-defeating contradictions. He maintains a tendency to abhor

1 Hans J. Morgenthau, Politics Among Nations: The Struggle for Power and Peace (New York: Alfred A. Knopf, 1973 ), p. II.

2 C. Von Clausewitz, On War (London: Penguin, 1982), p. 402.

33

war or to tum it into a moral crusade. But, this "conception of reality'' is wanting.

Decisions regarding \Var and war conduct should not be informed nor dictated by moral

sentiments but pragmatic policies, wrapped up by notions of power and interest.

Kissinger laments that America ended up in a quagmire in Vietnam because of "a naive

idealism that wanted to set right the entire world's ills and believed A.'llerican goodwill

supplied its own efficacy."3

The realists are critical of the Just War criteria of jus ad bellum and jus in bello. In jus ad

bellum (justifiable recourse to war), the realist sets at naught the criteria of just cause,

force as last resort, proportionality of means and right intention. The 'moralisms' that

might influence a state's decision to go to war, if defined by the just cause criteria, which

include war, not only in self-defence, but also to save lives, not of its own citizens, but

that of another state against brutal repression by the Government machinery of the state

concerned, is destructive and against realist and pragmatic "values". A state should or

must go to war only in those cases in which the national interest of the state is at stake.

Clausewitz calls upon war strategists to answer that if "no war is commenced, or at least,

no war should be commenced, if people acted wisely, without first seeking to answer the

question, 'what is to be attained by and in the same?'4

The policy of appeasement that was adopted during the inter-war period towards German

aggression was a stance Winston Churchill critiqued. He felt that force as last resort went

against realist perceptions, that war was and is an essential instrument to maintain

balance of power, which mainly breeds and establishes classic peace. The 'helpless

abandonment to the compulsions' 5 of force as last resort is reminiscent of profound

counter factual truths, which are a situation when British and French appeasement during

the 1930s towards Germany gave rise to a situation like the Second World War and the

Holocaust.6 When it comes to the issue of right intention, the realist elucidates the

3 As quoted in A.J. Coates, The Ethics ul War (Manchester: Manchester University Press, 1997). p. 23. 4 Clausewitz, n. 2, p. 367. 5 George Kei!nan, American Diplomacy (Chicago: University of Chicago Press, 1984), p. 90. 6 Coates, n. 3, p. 27.

34

importance of considerations of power and interest, which are not rooted in "utopian

moralism", but interests that are vital to a state's own existence and power preferential.

The jus in bello (conduct of war) is a limitless arrangement. The pure rationale of war

calls for an engagement conduct, carried out by all available means. The attempt to

impose moral limits on war behaviour would not only be counterproductive in increasing

escalation, but also bring about an unnecessary prolongation of the war. 7 "The errors

which proceed from a spirit of benevolence are the worst."8

In Thucydides' 'Hist01y of the Peloponnesian War', the exhaustive description of the

Melian Dialogue between the Athenian Generals Cleomedes and Tisias and the

magistrates of the island state of Melos is about realist parlance in which the two generals

agree that fine words about justice are not essential in discourses about war. The thrust

should be more on necessity and what is feasible. The arguments centers on the strategic

significance of the Spartan colony of Melos to Athens stability as an empire. If Melos

was allowed to rebel for the cause of freedom, which was just and right, it would inspire

rebellion throughout the empire. It would, without doubt, establish the weakness of

Athens. The dialogue concludes that consanguinity and honour have nothing to do with

military necessity. 9 The magistrates of Melos refused to surrender, and the Athenians

occupied their city.

1.1.1. Just War Theorists' Response to Realism:

The realist's main assumption is that in war, anything can be excused, because war is an

activity involving human beings under duress. The language used to corroborate love and

war is rich with moralisms. "Faithfulness, devotion, chastity, sha.'Tie, sedition, betrayal,

7 Ibid, p.31. 8 Clausewitz, n. 2, p. 387. 9 Sec Michael Walzer, Just and Unjust Wars A Moral Argument with Historical Illustrations (New York:

Basic Books, 1992), pp. 5-13.

35

self defense, appeasement, cruelty, atrocity - all these words are judgments and

judgments are common to human nature." 10

Realists also have their own moralities. They do not advocate total war, but a war of

limited means and ends, which is guided by the pragmatic notion of national interest and

power. Moreover, the position held by realists that war strips man of all moral

demeanour, is an admission that in troop behaviour, logic and a balanced state of mind

are the first casualties. It is at moments such as these, when the criteria of Just War

Theory could provide the much needed balance and logical faculty to guide an activity,

which otherwise might tum out to be quite brutal. In fact, when war is seen as an activity

"which is the extension of politics by other means", moralities play an influencing role in

informing policies. Public perceptions of morality in war add to the total value of a

particular combat action.

The Just War thinker sees war not as an extension of the political or diplomatic process,

but a breakdown of normal and morally determinable international relations. Hence, they

stress on the necessity of carrying out diplomatic postures, which are not only morally

justifiable, but also a pragmatic necessity before the final decision to war. 11 Moreover,

according to Just War theorists, the realist understanding of war defies sophisticated

systematic analysis. States are treated as identical units and there exist no attempt at in­

depth study of a particular state's sociological influences, and cultural behaviour

patterns. 12 To locate all acts of war within the power-interest paradigm is to deny the

plurality of human cultures, that all cultures without fail define and refine moral codes,

and these codes set norms for the taking of human life. All cultures have some notion of

what counts as a violation of this norm. 13

10 Ibid, pp. 3-4. 11 R.L. Holmes, On War and Morality (Princeton: Princeton University Press, 1989), pp. 25-31. 12 Karma Nabulsi, Traditions ol War: Occupation Resistance and the Law (Oxford: Oxford University

Press, 1999), pp. 21-42. 13 Jean Bethke Elshtain, ''Just War and Humanitarian Intervention", Ideas (North Carolina), vol. 8, no. 2,

2001, pp. 1-21.

36

What adds rigour and substance to Just War theorists is that the political and military

strategist, responsible for laying down the policy, strategy and tactics of war, are to an

extent informed by Just War critieria and consciously make an effort to work within such

parameters. Michael Walzer stresses. on the importance of discourse, the ebb and flow of

debates on moralism, which precede any decision to go to war. Even the Melian Dialogue

is about passionate discourse on the just/unjust nature of Athens' siege of Melos. It must

be remembered that the '"Athens assembly" was sharply opposed to the "Melian

decree." 14

Realism is a denial of the very meaningfulness of argument. If only power and interests

guide human action, then there would have been the death of "trust and moralism"

centuries ago. Justice, even within societies would have been nothing more than mere

rhetoric. Every nation, every state would have been an island of humanity existing in a

constant state of fea:r. That civil society develops moralities, cultures dominate thought

process, moralities are primordial impulses of culture, and war having a cultural

existence, negates the realist argument that decisions on intervention are primarily

influenced by power and interest. It is true that policy makers do consider their own

state's interests in decisions to use force against another state, but the realist tendency to

completely deny the human faculty of compassion aroused by human suffering is not

based on rational analysis of human psychology.

1.2. Pacifism:

Pacifism condemns all killings and all wars. The loss of life in a war that pursues the ends

of a political community violates the moral values of the pacifist. In pacifist

understanding, war is an activity that is beyond morality. The confluence of just war and

pacifism seems apparent as both traditions upheld the supremacy of peace over war. The

ultimate goal of both traditions is to establish a world without war structures. However,

both these traditions follow separate paths with regard to the means in achieving the goal

of peace. Pacifists' critique of the Just War tradition is rooted on the acceptance by the

14 Walzer, n. 9, p. 10.

37

theory that certain wars are permissible. This in itself disqualifies the tradition's

adherence to any level of morality. Pacifists staunchly hold on to the idea that war can

never be moral nor restraints can be imposed on war. The prohibition is an absolute

one. 15 The pacifist idea of war is reflected in the writings of Leo Tolstoy. He states that

"They talk to us of the rules of war, of chivalry, of flags of truce, of mercy to the

unfortunate, and so on. It's all rubbish .... If there was none of this magnanimity in war,

we should go to war only when it is worthwhile going to a certain death, as now .... War

is not courtesy, but the most horrible thing in life; and we ought to understand that, and

not play at war." 16 To quote Tolstoy again, "after the burning of Smolensk, a war begun

which did not follow any previous tradition. The burning of towns ar1d villages, the

regrets after battle, the blows dealt at Borodino and the renewed retreat, the burning of

Moscow. The capture of marauders, the seizure of transports, and the guerilla war- were

all departures from the rules.'' 17

War, according to Tolstoy, has the ability to bring out an unknown spirit in man, a hunger

for victory, for national upliftment that may on occasion drive men to do the unthinkable.

In the name of nationalism, the French army was capable of defeating an army twice its

size, the Russians. At such frenzied moments, moral restraints might fail to limit an

army's desire for killing the enemy. 18

The Pacifists believe that war is a moral obscenity, especially in today's conditions of a

nuclear showdown among states that would undoubtedly lead the world to its own

annihilation. The "total wars" fought with nuclear or biological weapons increases the

pacifists' believe in the horrors that war brings in its fold. As such, they point out that

Just War theorists, by providing justifications and codes of conduct for war allow

loopholes for such a brutal act. That is not only morally degrading, but degenerates the

conviction of the tradition, that war can be just in certain conditions. Debunking St.

15 See for instance, Gregory G. Brunk, et.al., Understanding Attitudes about War Modeling Moral Judgements (Pittsburgh: University of Pittsburgh Press, 1996), pp. 36-37.

16 Leo Tolstoy, War and Peace, (Great Britain: Wordworth Editions, 1993), p. 23. 1•1 Ibid, p. 830.

18 Ibid, p. 831.

38

Augustine's belief that the public character of war is one of its greatest strength, the

pacifists argue that it is the impersonal or abstract nature of war that makes it an immoral

act, as it enables participants to forgo moral scruples. 19 The Pacifist believes in targeting

the "structures of violence," that eulogise violent behaviour, both at the subsystem and

system level. The "makers" of peace should work towards complete pacification of

society and the transformation of a militarist culture to a pacific one.

It must, however, be kept in mind that contemporary society is committed to war, both

politically and economically. The glorification of war runs deep in the veins of cultures

across the world. Moreover, the armament industry is one of the biggest industrial

capitals and the modern education system cultivates a disposition to war.20 The pacifist

believes that the fertilization of a culture of peace, non-violence and mass involvement in

an anti war movement could change the war like behaviours of men.

1.2.1. Limitations of Pacifism:

Neither research nor traditions of thought are about extremes. To say that war is obscene

is to deny an act that has significantly affected generations, be it politically, socially or

economically. The culture of war is rooted in a rich tradition that keeps in clear focus, the

right and wrong ways of doing things. The pacifist conviction that non-violence and a

mass participation in pacifist ideas could restructure society might not work in the real

world.21 According to Bertrand Russell, Gandhi's non-violent movement was successful,

but that success depended upon the existence of certain values of moral human behaviour

on the part of the British and their liberal ethos. As a counterfactual, Gandhi would not

have succeeded, had the struggle adopting non-violent means been waged against the

Nazis.

19 Coates, n. 3, p. 78. One wonders what Tolstoy would have thought of the First World War. He did not live to witness it. He died in 1910.

20 Holmes, n. 11, p. 268. 21 B. Haring, The Healing Power of Peace and Nonviolence (London: St. Paul Publications, I 986), p. 87.

39

In contrast to the extreme view that pacifist undertakes, the Just War Theory is a practical

thought process. The tradition maintains a constant critical vigil on acts of war, at the

same time; it allows certain wars especially in self-defence and interventions to save

human lives from human brutalities. In reconciling order with justice, the Just War

theorist allows a certain middle path that enables states to use force when necessary.

Rigid stands like that of the Pacifist that abhors wars is not feasible as the structure of

international relations is embodied by a system of anarchy where conflicts are an inherent

part of state behaviour. 22

1.3. Militarism:

Militarism believes that war is a natural conduct for the fulfillment of man's destiny. War

is a pure and natural force, which could not be codified or restrained. War is a positive

good, an intrinsic and unique value. The militarists feel that war is the road to man's

emancipation, an end in itself. War must always, be the first choice and not the last resort.

Behind every humanitarian facade is a warlike nature.23 The crusades are an important

empirical evidence to substantiate the point made above. The "altruist assumption" of the

crusades, the protection of fellow Christians, leads to systematic underpinning of every

limit placed upon war. 24 The higher the moral goal of war, the more intense is the front

conflict, the bloodier are the consequences. The Muslim militant identifies the good of

humanity with the universal triumph of the Islamic Caliphate, its Christian counterpart

believes in the supremacy of Christianity, politically and economically and the use of

force without limits to achieve that goal is commendable. The Nazis believed in the

historical and cultural significance of the Second World War - a war to establish the

supremacy of the Aryans a11d to sustain a civilisation. Hence, anything to achieve those

goals is acceptable. It symbolises that the "concept of war" is an expression of the core

spirit of humanity. "War is the creator of community, an ethical force" (Hitler, Mein

Kampf). Such wars cannot be weighed in proportionality terms, because any amount of

21 See Marion J. Levy Jr., "Does it Matter if He's Naked? Bawled the Child", in Klaus Knorr and James N. Rosenau, eds., Contending Approaches to international Politics (Princeton: Princeton University Press, 1972), pp. 99-100.

13 Nabulsi, n. 12, p. 56. 14 Raymond Aron, Peace and War (London: Weidenfeld and Nicolson, 1966), p. 609 and Coates, n. 3, p.

42.

40

sacrifice would be disproportionate to the purposes of the war. Compassion and restraints

are utopian notions. It is peace, not war that stands in the way of progress. Ruthlessness

and non-calculation of risk are essential towards making a successful military service for

any country.

1. 3 .1. Limits of Militarism:

Reckless behavioural traits are the picture of war that militarism portrays. It leads men to

self-destruction and to the lowest ebb of the human rationale. The impact of militarism on

the conduct of war (jus in bello) is as tragic as its impact on the recourse to war (jus ad

bellum). The enhanced value to death in battle, especially on the part of soldiers,

motivated against the relative indifference of their leaders to their sufferings, is exactly

the plausibility the Just War Theory points to.25 Communist militarism witnessed mass

deaths in the name of revolutionary ideas of leaders, an emancipation which never

happened for the masses except for the leaders. The militarists' focus on moral

particularism obscures the common humanity of belligerents. A war which is not

discriminate or proportionate, is unlikely to change the destiny of humankind. The "post­

bellum" scenario in such wars would consist of a ruthless suppression of occupied

territories. The Just War Theory abhors this sort of warfare. The belief in human

magnanimity and compassion is the theory's asset. 26

According to Martin Ceadel, placing wars in different categories have been influenced

mostly by defence policy thinkers, rather than by thinkers or the common man. Hence,

they tend to be ideological and idiosyncratic in nature. Given that, he categorizes wars

into five typologies, which include besides militarism:

1.4. Crusading:

Crusaders believe in aggressive war mainly to restore order. Yet they do not justify all

wars. The Just War theorist cannot justify the crusades because behind the humanitarian

facades they adopted, there existed a deliberate value of the state or community

25 Hannah Arendt, On Violence (London: Allen Lane, 1970), p. 55. 26 See Coates, n. 3, p. 44 and Walzer, n. 9, p. xvii.

41

concerned. The crusades, in their view, can never be justified, as it is not clear who

decides what's good for another community. Walzer terms the Spanish- American War of

1898, waged for the benefit of the Cubans, as beneficent imperialism on the part of the

US. Walter Lippman states that the Wilsonian ideology is a crusading doctrine: the liberal

goal of achieving self-determination reflects an assumed higher moral ground for the

state who espouses such values. This ideology might be good for Wilson's own personal

values, but so far as the community that is targeted for intervention in order to spread

liberal values is concerned, the intervention might prove counter productive as the

population there might not hold much interest for the liberal ethos. Rather, all that they

might desire is a state of affairs devoid of war, where they exist in peace.

1.5. Defencism:

War for defense against aggressive action is good. Due to the anarchical system-prevalent

on the world stage, defensive action against any future aggression is warranted.

1.6. Paci-ficism:

According to this typology, justice is paramount. War can be abolished by bringing about

a pattern in international society. Yet, Pacific-ism accepts the need of military force to

defend political achievements. 27

1.7. Intellectual Roots of the Just War Theory:

Just wars are limited wars. It is a tradition of thought that has been constructed, keeping

in mind the realities of wars. The blending of the philosophical and the real world of war

is nuanced with expressions of human valour and human notions of dignity. War cannot

strip human endeavour of human decency. 28 In setting forth this tradition on war, the

contributions of St. Augustine, St. Thomas Aquinas, Vatel, Hugo Grotius, Paul Ramsey

and Michael Walzer have been significant.

'7 See Martin Ceadel, Thinking about Peace and War (Oxford: Oxford University Press, 1989).

28 See James Turner Johnson, "Can Contemporary War Be Just? Elements in the Moral Debate", in Charles W. Kegley Jr and Kenneth L. Schwab, After the Cold War: Questioning the Morality of Nuclear Deterrence (Oxford: Boulder, 1991 ), p. 179.

42

i) St. Augustine:

St Augustine, the founder of the intellectual tradition of Just War points out that "the wise

man, they say, will wage just wars. Surely, if he remembers that he is a human being, he

will 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. For it is the injustice of the opposing side that lays on the wise man

the duty of waging wars"29 He was among the first of the Christian thinkers to consider

just war (justum bellum) systematically. 30 Augustine, though highly apprehensive about

the notion of "personal virtues" which he felt amounted to "splendid vices" as well as

socially construed justice, formulated the theory of justum bellum, directing western

Christian thought towards the problem of war. Augustine was sceptical about man's

understanding of love as well as personal virtues (prudence, justice, courage and

temperance). A man according to him always hungers for more than he can realistically

achieve in this world. Augustine wrote that 'he has the soundest perception who

recognizes that even love of praise is a vice.' 31 Men, who seek virtue for its own sake,

and for no reward, have inflated pride in the altruism of their selfless acts. Augustine

questioned the Roman idea of morality as more vicious than others in its pursuance of the

end that is morality especially after witnessing the sack of Rome in 410 A.D. For

Augustine, the "heart of the matter of virtue or of justice consists in a matter of the

heart.''32 The right inner intention or direction of the will is of prime signiticance.

He explicitly covered the issue of right intention, which means legitimate goals. Right

intention must be what it seems to be. There should not be substantial hidden motives,

that which is not discernible. Augustine wrote, "for the true followers of God even wars

are peaceful, not being made for greed or out of cruelty, but from the desire of peace, to

29 See Brunk, et.al., n. 15, p. 36. 30 Holmes, n. 11, p. 15. 31 Saint Augustine, City of God, v.l3, in Paul Ramsey, The Just War (New York: University Press of

America, 1983), pp. 22-31. 32 Paul Ramsey, "The Just War According to St. Augustine", in Jean Bethke Elshtain, ed., The Just War

(Oxford: Blackwell, 1992), p. I 0.

43

restrain the evil and assist the good." The legitimate goals are confined to self-defence

and the protection of human lives.33

Augustine advocated the necessity to keep the kingdoms of this world firmly in mind

when the question ofjustum bellum arose.34 The belief that personal virtue was dubious

and not beyond suspicions, inspired Augustine to stress on wars declared by the rationale

of public authority. He emphasised on the need for a legitimate auth01ity, allowing only

those responsible for public order to declare war in his jus ad bellum. Wars were to be

waged only for public good. Drawing from the Ten Commandants in general and the

principle of 'love thy neighbour' in particular, Augustine felt that sovereign states have a

moral obligation to defend and punish aggressive and unjustifiable violence. Any kind of

warfare has to establish peace and order, by which he meant concord, and a set of

commonly held values and morals that prevent further conflict. Just wars must be waged

strictly for the restoration of peace and must be the last resort. It was to be undertaken,

not to kill, but to prevent further loss of life. A state's duty is, not only to protect its own

citizens, but also protection of innocent citizens in a neighbouring state, if the authority of

the state concerned is violating basic human rights. To right the wrong was the duty of a

good Christian. Augustine did not call for regime change. Once the wrong to citizens is

undone by the intervening state, it must restore the status quo. What was startling in

Augustine's analysis of pax-ordo-formal justicia is that he believed that if Christians

believe in a war, they are the ones who are on the just side; this does not allow them to

commit acts that are without limits.

Augustine wrote that "Justice is the form of men's loves; in the state it is the form of that

love or agreement to pursue in common the objects which a 'people' desire."35 Social

justice is the child of common understanding about the objects of people's love (will).

Accepted schemes of justice serve to strengthen the common will or love, which

constitutes re:,publica. This bonding cuts across boundaries and extends to citizens of

33 St. Augustine, City of God, Book xix. ~Ramse~n.3l,p. 10. 35 Ibid, p.l7.

44

neighbouring states and the duty of the res publica to protect them if they suffer injustice.

(Humanitarian Intervention arose from this notion of war). A Christian 'will' in his life

must be dominated by such common agreement among men, he seeks to preserve and

enlarge such ideas, which appeal must then be made to the rationale of war that seeks

peace. This is what limited war is all about. Total war is inversely proportionate to

justice. Based on Christian ethics, his analysis of wartime conduct was a consequentialist

system of ethics in which men gauged the moral significance of limit.

ii) Gratium:

It was only in the twelfth century that Augustine's theory received publicity and acquired

significance in warfare mainly due to the writings of the Bolognian monk, Gratium, who

wrote the classic Decretum. Drawing upon the just war writings of Augustine, as well as

other Roman and Greek scholars, Gratium added a significant aspect to the theory-· that a

just war must avoid non-combatants, innocent civilian who did not bear arms. There was

also a lot of thinking about the concept of "double effect": in aggressive battle conditions,

especially when the battle raged near civilian lines, in targeting soldiers, civilians may get

killed. Such unintentional killing is justified, and in today' s strategic vocabulary is

termed as "collateral damage." The problem, as Walzer argues, is that this provides a

'blanket- justification' for civilian deaths that are 'unintended' but foreseeable. 36 What

is important at this point is that "constructs" may be an ideal type when in the process of

being bred. As Max Weber puts it, ideal types are always a reflection of reality, or some

part of it. 37

Hi) St. Thomas Aquinas:

Going further from Gratium, St. Thomas Aquinas in Summa...[heologica developed and

strengthened some of the various sub-divisions of jus ad bellum, most notably legitimate

authority, just cause and right and moral intention. He laid down that competent authority

must not wage war out of their own thirst for political hegemony, but only to avenge evil

36 Walzer, n. 9, p. 153. 37 Max Weber, "Ideal Types and Theory Construction", in May Brodbeck ed., Readings in the Philosophy

of the Social Sciences (US: Macmillan, 1968), p. 497.

45

done to them.38 The importance of "self-defence" or "preventive wars" arose from this

particular concept laid by Aquinas. Legitimate authority was a prince, who derives his

power from God. He is capable of "right intention" as he is the "minister of God". Right

intention (recta intentio) always stands for promotion of good over evil. Moreover, the

prince must have a just cause (justa cause), a reason for waging war against an opponent

who is guilty of injustice, or nursing some form of guilt (propter aliquam culpam). Guilt

may consist of not only aggressive behaviour, but also heresy or the failure to pay a just

debt. 39

iv) Hugo Grotius and Emmerich de Vattel:

With the Protestant Reformation, the classic Just War doctrine experienced a gradual

decline and in its place, there arose the doctrine of holy war and Just War, couched in

secular terminology. The holy war version set aside all limitations of the classic just war

doctrine and lay down that wars to propagate one's own religion were just. This fuelled

the vicious religious warfare among Europeans in the period 1560-1660, German civil

wars between Catholic and Protestant leagues, the French wars of religion, the Puritan

Revolution in England, and the Thirty Years War. Stoic philosophy was in the zenith of

its power.40 The ruthless accesses in those wars and the usage of brutal force awakened

European thinking on the need to secularise the natural law base that dominated war

thinking.

The Treaty of Westphalia in 1648 ended the religious wars of Europe, giving way to the

doctrine of sovereignty. The principle of sovereignty established the responsibility of the

sovereign (the prince) to administer internal affairs as was required in the interest of the

state. Any means could be adopted to achieve this end, and with complete disregard for

political morality. 41 Yet proper authori.ty came to signify a secular sovereign prince, who

38 Fernando R. Teson, Humanitarian Intervention: An Inquiry into Law and Morality (New York: Transnational Publishers, 1988), p. 43.

39 Sean D. Murphy, Humanitarian Intervention: The United Nations in an Evolving World Order (Philadelphia: University of Pennsylvania Press, 1996), pp. 40-41.

40 Ibid, p. 41 and James Turner Johnson, Can Modern War Be Just? (New York: Macmillan, 1984), p. I 5. 41 Niccol6 Machiavelli, The Prince (England: Penguin, 1999), pp. xiii-xxvii.

46

derived his authority from the community. The realization for secular laws of war, not

based on religious ideas, dawned in the writings of Francisco Victoria, Francisco Suarez

and Alberti Gentili.

Hugo Grotius (1583-1645) and Emmerich de Vattel (1714-1767) were instrumental in the

development of a secular just war doctrine. Both pointed out that rumed intervention to

assist people suffering under an unjust sovereign was just, yet the tension between order

and justice was noticeable. In On the Law of War and Peace, Grotius cited three causes

that are just: to defend against an injury, to recover what is legally due, and to inflict

punishment on a wrong doing state for excessive crimes. In other words, Grotius cited

punishment of excessive crimes (punitio) on its citizens by a state as a just cause for war.

He wrote: "the fact must also be recognised that Kings, and those who possess rights

equal to those Kings, have the right of demanding punishments not only on account of

injuries committed against themselves or their subjects, but also on account of injuries

which do not directly affect them but excessively violate the law of nature or of nations in

regard to any person whatsoever."42 Grotius, however, warned that interventions of this

type might hide other runbitious design.

Emmerich de Vattel, writing 130 years after Grotius, supported the duty of a "nation" to

sustain all its members. For certain secular laws always dominated conduct in war and

these laws were mainly guided by the Just War principles, especially jus ad bellum.

Though a believer in sovereignty, he contradicted his own belief when he categorically

stated, "but if a prince, by violating the fundamental laws, gives his subjects a lawful

cause for resisting him; if, by his insupportable tyranny, he brings on a national revolt

against him, any foreign power may rightfully give assistance to an oppressed people

who ask for its aid."43

42 Hugo Grotius, De jure Belli Ac Pacis Libri Tres (On the Law of War and Peace) Carnegie Classics on International Law (1925) Kelsey translated, Book. 2, Chapter.!, Para. 2.2 in Murphy, n. 39, p. 44.

43 Emerich Vattel, The Law of Nations, quoted in Murphy, n. 39, p. 45.

47

v) Paul Ramsey and Michael Walzer:

The contemporary writers on the Just War Theory are Paul Ramsey and Michael Walzer.

The reconsideration of the theory has much to do with the writings of Ramsey, and

especially Walzer. Michael Walzer in Just and Unjust Wars is instrumental in restating

the theory in today's context He ensured that this tradition of thought remains an

important discourse, not only in liberal art colleges, but also in the US military

academies.

Paul Ramsey's War and Christian Conscience has a profound impact on just war

thinking. He draws inspiration for his work from the New Testament, St. Augustine,

Immanuel Kant and Reinhold Neibuhr. Augustine's understanding of agape (love thy

neighbour) influenced Ramsey's principles. According to Ramsey, agape established a

set of principles, which all Christians should follow. Use of force to protect oneself

denies neighbourly love (Sermon on the Mount). The aggressor must never be denied the

love Christ taught. The enemy, however, wicked or deceitful remains one's neighbour.

Ramsey uses this reason in his philosophy for the jus in bello principles of discrimination

and proportionality.

Ramsey also made an explicit connection between the idea of non-combatant immunity

and the requirements of Christian love for neighbour. This turned out to be a powerful

argument in connection to religious ethical reflection during the 1950s and 1960s.

Ramsey's argument of "love thy neighbour" also refuted the Christian pacifists who

argues for Jesus' non violence to a rejection of all things military in American thinking.

A neighbour has to be protected from unjust assaults, even at the price of using force

against the oppressor. The jus ad bellum thrusts a benign responsibility on the political

community. However, force must always be limited. Ramsey states that the unjust

oppressor is also a neighbour who must be loved.

Ramsey is against intentional attack on non-combatants. The jus in bello criteria states

that discrimination must be given a prior normative position. If it cannot be met, no

48

amount of reasoning for proportionality can supplement it. He opmes that nuclear

deterrence is immoral to Christians if it rests on counter population targeting that would

violate the criterion of discrimination and proportionality.44

Michael Walzer reminds political theorists dominated by the realist paradigm, that any

talk or communique on war, peace and use of force is undermined and without depth, if

categories lodged within or emerging from the Just War tradition are not taken into

consideration.45 The prejudice towards a normative blend and the realist calculation of

force changed after the Vietnam War. The massacres at My Lai brought back the Just

War Theory into policy debates.46 Walzer contends that jus ad bellum and jus in bello,

the principles of the Just War Theory are crucial in both the recourse to war and the

conduct of war. Just wars are limited wars and their conduct is governed by a set of rules

designed to restrict untoward behaviour. It is easier now than ever before, to imagine a

General saying ''no, we can't do that; it would cause too many civilian deaths; we have to

find another way."47 Walzer lays down certain criteria for a humanitarian intervention to

take place:

i) Just cause-supreme humanitarian emergency.

ii) Use of force must be last resort.

iii) It must meet the requirement of proportionality.

iv) There must be a high probability that the use of force will achieve a positive

humanitarian outcome.

For a humanitarian intervention to be justified, he states that the violation of human rights

must be such that they shock the "conscience of mankind"48 Walzer staunchly advocates

the necessity of turning the non-combatant immunity principle into a stronger rule, until it

44 Johnson, n. 28, pp. 181-82. 45 Michael Walzer, "The Triumph of Just War Theory (and the Dangers of its Success)", speech on 20

December 2002 at Shankar La! Hall, Delhi University, New Delhi. (See Appendix 3.1.3). 46 Ibid. 47 Ibid. 48 As quoted in Nicholas Wheeler, Saving Strangers Humanitarian Intervention in International Society

(Oxford: Oxford University Press, 2000), p. 34.

49

is something of an absolute dictum.49 Significant in Walzer's analysis is the thrust

towards policy influence that his theorising has acquired. He draws attention to the

prescriptive richness of the theory. Its explanatory and predictive powers have helped

wars become more humane and less mechanical. Michael Walzer's application of the Just

War Theory is based on the assumption that debate and criticism play an important

though not a determinative role, in fixing the context of both political and moral culture

of war. He stresses on the importance of mixed motives that are an overlap ofboth values

and interest. Cases like the Rwandan Genocide (1994) are identified which question the

moral standing of the community of nations. He points out that thatjus ad bellum andjus

in bello could have justified any intervention in Rwanda. Walzer laments that this policy

blunder on the part of the US and the UN must be highlighted to ensure that such

mistakes are not repeated. 50

1.8. Principles of Just War Theory:

The Just War Theory has two aspects, jus ad bellum (recourse to war) and jus in bello

(conduct in war). This tradition of thought has been a major feature of the moral base

over defence policy since World War II, particularly that which focuses on nuclear

weapons and strategic deterrence. The relative importances given to jus ad bellum andjus

in bello reasoning have varied in different time periods, especially among the sources and

carriers of the tradition: The jus ad bellum, which is right recourse to war has six sub

sects. A study of these is pertinent before advocating the prescriptive depth of these

principles in carrying out humanitarian intervention.

1. 8 .l.jus ad bellum (Right Recourse to War):

(1) Just Cause:

Traditionally, just cause was cited ac;; the most important moral criteria for waging war.

Just cause includes:

"19 .Interview with Michael Walzer, Centre for the Study of Developing Societies, New Delhi, 23 December

2002. (See Appendix, 2.1.1 ). 50Michael Walzer, "The Argument about Humanitarian Intervention", in "The New Killing Fields:

Yugoslavia, Rwanda, East Timor", Dissent (New York), Winter 2002, pp. 29-37.

50

i) Self defence: an eminent threat or an act of defence by a state against another state's

active use of force against the concerned state's sovereignty and territorial integrity.

ii) Protection of innocent lives: when massacre of human beings are carried out by a state

within its borders, it is the responsibility of its immediate neighbouring states or any

other concerned state, to intervene and put an end to the killing.

iii) Violation of human rights: Wars or interventions are sacrosanct when they are

undertaken to avert violation of human rights.

The Just Cause criterion might lead to certain misuse of the theory. For instance, a war

justified in terms of a '1ust cause" may lead to one-sided moral triumphalism on the part

of the intervening state. Conviction of their cause being just may motivate combatants to

override the moral limits of war. 51 Moreover, interventions only in cases of "supreme

humanitarian emergency" or "acts that shock the conscience of mankind" create a moral

vexation. If one waits until an emergency, intervention might prove late to save those

who have been killed or forcibly displaced. 52 "Intervening nation or nations need not wait

for the killing to start, if there is clear evidence of an impending massacre."53 One must,

however, guard against the unilateral interpretation of just cause, which may amount to

the destructive monopoly ofthe moral arguments about war. 54

Pre-emptive strikes do not constitute a part of just cause criteria of self-defence.

Pre-emption is a response by a state with the use of force, not against a completed act of

aggression by the target state, but to an anticipated one. Article 51 of the UN Charter

allows "the inherent right of individual or collective self defense if an armed attack

occurs."55 This may amount to "no first use of force," but the prohibition is not to an

absolute degree. However, the "abuse" of this concept of pre-emption, which attempts to

justify recourse to war by strong nations, in the absence of an immediate or direct threat,

51 Coates, n. 3, p. 100. 52 M. Bazyler, "Re-examining the Doctrine of Humanitarian Intervention in the light of the atrocities in

Kampuchea and Ethiopia". Standford Journal of International Law (Stanford, California), vol. 23, ·no.4, 1987, p. 600.

53 Ibid. 54 Michael Ignatieff, The Warrior's Honour: Ethnic War and the Moral Conscience (London: Chatto and

Windus, 1998), p. 94. 55 UN Charter, Chapter VII.

51

IS too permissive. It is based on speculations and not existential circumstances. The

contours of a pre-emptive war must be narrowly defined. 56

(2) War is declared by a Competent Authority:

The person or body authorising the war must be a responsible representative of a

sovereign political body. A public body, not a private individual, can only declare war.

Unilateral humanitarian interventions by a state or a regional organization that end in a

positive humanitarian outcome are justified. 57

(3) Right Intention:

The intent must be in accord to the cause and not with hidden motives of hegemony and

territorial aggrandizement. Some times, due to the complex mix that motives display, it

may not be possible to gauge the actual intent of a state's motivations to war. Insofar as

the outcome is directly proportionate to the cause, the justifications and intentions are on

a strong footing.

(4) Force must be the Last Resort:

Any decision to wage war must always be the last resort. There must be a process of

peacemaking before any final decision to stop diplomatic negotiations. Sanctions, threats,

dialogue must be exhausted. If all other steps do not persuade the defiant state to give up

aggression or abuse of human rights, force is used.

However, accommodations do not always serve the purpose of peace. Moral judgements

must be informed by the realities of a given situation: the need to reconcile the moral

imperative of speedy action with the requirement that force always be the last resort.

Nigel Rodley accentuates the realistic necessity that "nothing short of the application of

56 Robert S. Litwak, "The New Calculus of Pre-emption", Survival (London), vol. 44, no. 4, Winter 2002-03, pp. 54-80.

57 Walzer, n. 9, pp. I 02-8.

52

armed force would be sufficient to stop the human rights violations in question."58 During

the time that policy makers are trying to halt abuses through diplomatic moves and

sanctions, massacres and expulsions might be continuing on the ground.

Michael Walzer agrees that force as last resort is context specific because one can never

reach lastness. There will always be something more to do, "another diplomatic note,

another UN resolution, another meeting once a blockade or sanction is in place, it's

always hopeful to wait a little longer and wish for the success of non-violence."59 The

Kosovo crisis is a glaring example of the negative consequence of force as last resort.

Between Security Council Resolution 1160, 31 March 1998 which imposed arms

embargo on Yugoslavia, to Security Council Resolution 1199, 23 September 1998

(economic blockade of Yugoslavia to stop ethnic cleansing by applying diplomatic

pressure on Milosevic), the killing on the ground increased. By the time, war was

declared on 24th March 1999, 10,000 Kosovar Albanians have been killed and 800,000

were displaced. It would have been prudent to apply force after 23 September 1998, when

Milosevic showed no signs of complying with UNSC Resolution 1199. The problem

with most analysis on intervention is that it takes the intervening state as the referent

point of analysis rather than the victims, who are rescued as a consequence of the use of

force. 60 Walzer indicates the need to take a decision on the use of force based on

circumstantial evidence. To understand "force as last resort" literally might prove

disastrous for policy making on the ground. 61

(5) Proportionality of Ends:

The overall good achieved by war must not be outweighed by the harm it produces. The

gravity and extent of the violations must be on a level commensurable "with the

reasonably calculable loss of life, destruction of property and expenditure of resources. "62

58 N.S. Rodley, "Collective Intervention to Protect Human Rights", in N.S. Rodley ed., To Loosen the Bands of Wickedness (London: Brassey's, 1992), p. 37.

59 Walzer, n. 9, pp. xiv-v. 60 Wheeler, n. 48, p. 38. 61 Interview with Michael Walzer, n. 49. (See Appendix, 2.1.1). 62 Rodley, n. 58, pp. 34-35.

53

The post conflict situation must reflect a situation that is better than the state of affairs

that existed before the intervention took place.

(6) Probability of Success:

In the ostensible use of force either in a war or a humanitarian intervention, there must

exist a reasonable hope of success.

Knowing the differences in military strength between the intervening state and the target

state, the probability of success can be determined.

There are two existing models, which help in determining the success rate of military

engagement in interventions. They are

i) Kugler- Posen "attrition" - FEBA (forward edge of the battle area) expansion model.

This model has been developed by Richard Kugler (now at National Defense University

in Washington) and Barry Posen, Massachusetts Institute of Technology. (MIT). It is

based on the assumption that a military of sufficient size can hold a front of a given

length against all out enemy assault. The defender must be reinforced, and there must

exist a sufficient force-to-space ratio. 63

ii) The second model developed by Joshua Epstein at the Brookings Institution disagrees

with force-to-space ratios. It allows troops to withdraw to buy time, improve position,

and slow expansion keeping in mind the logistics of the other side. Movement of troops

decreases casualty rates, especially the geographic disposition of forces. Both models

also incorporate ground attack aircraft. The prediction of daily loss for the attacker is 1-5

percent for engaged troops. Armoured divisions on both sides are reflected upon, not just

the quantity, but also the quality of armoured formations. 64 Exchange rate +

proportionality factor between attacker and defender are analysed and from such facilities

as the benefits of American forces-intelligence, communications, equipment maintenance

and logistic suppm1, one can predict precisely the success rate in the battlefield.

63 Michael 0' Hanlon, "Estimating Casualties in a War to Overthrow Saddam", Orbis (Philadelphia), vol. 24, no.4, Winter 2003, pp. 21-40.

64 Ibid.

54

1. 8. 2.jus in bello (Conduct in War)

Two principles dominate the right conduct in war. They are as follows:

(1) Proportionality of Means:

Means used in combat must not outdo or overweigh the good achieved. The criterion of

proportionality requires potential combatants to consider whether or not war is a fitting or

proportionate response to the injury that has been threatened or received. This calls for

certain symmetry between the probable course of action and the end that it serves.

There has to be a relative calculation of cost benefit analysis. Michael 0' Hanlon, a

senior fellow at the Brookings Institution has come up with mathematical calculations of

estimated loss of life, especially for the ongoing Iraq war that commenced on 20 March

2003. Employing the method developed by Trevor N. Dupuy, O'Hanlon estimates the

casualty rate in Iraq. Dupuy begins by translating the number of troops fielded by each

side into a total power figure P (size of the fielded force x quality = P). It is modified to

account for degree of surprise and the vagaries of weather. According to Dupuy's

equation, U.S. will have to defeat about 100,000 Iraqi forces. US forces assumed at

250,000 = Dupuy power value of 800,000 (that is 250,000 time their quality advantage of

about 3 times a benefit from surprise of 20 percent) Iraq force = power value of 200,000

( 100,000 troops times a factor of 2 advantage due to benefits of being on the defensive

and fighting within a city). In Dupuy's casualty equation, assuming a one percent

maximum daily casualty rate for the weather and urban combat conditions and US power

advantage of about 4 (inverse of 4=0.25), then US losses would be roughly (250,000 x

0.01 x 0.25) = 600 casualties per day and Iraq casualties (100,000 x 0.01 x 4) = 4,000 per

day.65 The formulae are as follows:-

Casualtiesu.s. =Troops x casualty rate x 1/Power advantage of US.

Casualties1raq =Troops x Casualty rate x Power advantage of U.S.

65 Ibid.

55

Walzer does not agree that mathematical calculation of proportionality is possible, for

values at stake are not commensurate - as the idea of proportion may suggest. How can

one measure the value of a country's independence against the value of lives lost in

defending it?66 It is neither feasible nor morally correct to put in mathematical terms the

number of lives that should be lost in acquiring freedom or self-determination for a

community.

(2) Discrimination/Non-combatant Immunity:

The laws of war firmly lay down that civilians or non-·combatants should never be

targeted. Certain categories of the population seem classifiable as non-combatants: the

very young, the very old, infirm and all those who lack capacity to engage in war or to

contribute to the running of machinery of war. Direct targeting of civilians as well as

ci viii an infrastructure runs into rough weather where laws of conduct in war are

concerned.

According to D.P Lackey,

"There is an objective and a subjective version of the principle of non

combatant immunity. The objective version holds that if civilians are

killed as a result of military operations, the principle is violated. The

subjective version holds that if civilians are intentionally killed as a

result of military operations, the principle is violated. It follows on the

subjective versions that if civilians are killed in the course of a military

operation directed at a military target, the principle of discrimination

has not been violated."67

Military necessity can be used as a shield in justifying the killing of innocents and

"collateral damage" is an inadvertent consequence of attacks against legitimate military

targets. This amount to the doctrine of 'double effect' developed by Catholic theologians

in the middle ages, which liberalises soldiers from guilt, when in the line of fire, non

combatants get killed. That this killing was not an intention of the act. Walzer argues that

this concept of "double effect" provides blanket justification" for civilian deaths that are

66 Walzer, n. 9, pp. xv-vi. 67 D.P. Lackey, The Ethics of War and Peace (New Jersey: Prentice Hall & Eaglewood cliffs, 1989), p. 60.

56

"unintended but foreseeable," Guenter Levy points out that given the terrible

imponderables attached to each calculation, 'even a good cause is not worth any price. ' 68

The reconciliation of absolute prohibition against attacking non-combatants with the

legitimate conduct of military action comes too easily, too soon. 69

Advanced military technology, the "state of the art" smart bombs, precision-guided-air-to

ground munitions (PGMS) including Maverick and Walleye air-to-surface missiles and

laser guided bombs, tactics of "tank-piling" (following the Kugler-Posen and Epstein

frameworks), Joint Direct Ammunition Missile (JDAM), helps discriminate between

combatants and non-combatants, more so in contemporary warfare or interventions.70 Just

war does not allow targeting of economic infrastructure, communication and

transportation systems, electric power grids and water pumping systems. This may help

the adversary's army but it is a necessity for civilians too. If such infrastructures are

targeted, the costs to human lives (spread of disease in epidemic levels) are

disproportionate to the threat posed.

1.9. Strengths of the Theory:

In World Politics, Ken Organski wrote" We are all bound by our own culture and our

own experience, social scientists no less than other men. We frame our theories to explain

the past and blithely project them into the future as "universal laws" assuming that the

assumptions on which our theories are based will continue to be true. Social theories may

be adequate for their day, but as time passes, they require revision."71

The Just War Theory emerged during the dark ages, to provide a moral pathway for men

at war. It is an attempt to humanise a brutal act. That war is inevitable is accepted by the

theory. But certain criteria ought to be followed in war. Amidst the ebb and flow of

thought pattern and contradictions within the theory, there is a noticeable steadiness,

68 For a more detailed analysis of"double effect". see for instance Walzer, n. 9, pp. 151-59, Wheeler, n. 48, p. 36 and Coates, n. 3, pp. 239-40.

69 Walzer, n. 9, p. 153 and Eishtain, n. 13, pp. 4-5. 70 O'Hanlon, n. 63, p. 29. 71 A.F.K. Organski, World Politics (New York: Alfred A. Knopf, 1958), p. 307.

57

which has helped the theory to survive to this day. "Political theories are tested by events

in the political world". 72 They are not put to test in the same way as a scientific theory

can be, in a laboratory. Theories are not just about how falsifiable they are, as Karl

Popper would have us believe. 73 It is hard to analyse how a theory of distributive justice

or political obligation could ever be falsified. But political theories can be devalued,

revised and they can help explaining, shaping, justifying moral judgments and thoughts. 74

Michael Walzer revised the Just War Theory and in the process enlarged the theory's

explanatory capacity. Though he a$fees that there was never a golden age of warfare

when Just War categories were regularly applied, yet such normative paradigms are

necessary, primarily because war needs them to register checks and balances. Most Just

War theorists categorically state that "moral theory" helps debate and criticism. They

inform policies. They are not policies. They help fix the content of policies, juxtaposed

between moral and pragmatic criteria.75 By reconciling order with justice, the theory

enables moral reasoning on the concept of humanitarian intervention.

1. 10. The Concept of Humanitarian Intervention:

Intervention tends to have two meanings. On the one hand, intervention is undertaken to

establish international peace and security, which involves a plethora of activities, the

services of mediators, monitors, peace keepers to ensure that agreements are honoured,

add support to those offering humanitarian aid to victims of war, to the extreme cases of

the use of force when there exists a widespread violation of human rights within a state.

On the other hand, intervention means interference in another country's internal affairs,

which goes against the UN Charter and international law. 76 Territorial integrity and

sovereignty are the twin principles that sustain international order of states in an anarchic

world.

72 Walzer, n. 9, p. xi. 73 Bryan Magee, Popper (Great Britain: Fontana Press, 1973), pp. 9-65. 74 Walzer, n. 9, p. xi. 75 Gary King, et.al., Designing Social Inquiry Scientific Inference in Qualitative Research (Princeton:

Princeton University Press, 1994 ), pp. 3-33. 76 Lawrence Freedman, ed., Military Intervention in European Conflicts (Oxford: Blackwell, 1994), pp. 1-

13 and Adam Roberts, "Humanitarian War: Military Intervention and Human Rights", International Affairs (London), vol. 69, no. 3, July 1993, pp. 425-49.

58

John Vincent defines intervention "as an activity undertaken by a state, a group within a

state, a group of states or an international organisation, which interferes coercively in the

domestic affairs of another state."77 It is a discrete event having a beginning and an end,

and it is aimed at the authority structure of the target state. It is not necessarily lawful or

unlawful, but it does break a conventional pattern of International Relations.

Anthony Clark Arend and Robert J. Beck in International Law and the Use of Force

define humanitarian intervention as a forcible action without the prior invitation or the

consent of the target state's government for the specific purpose of protecting

fundamental human rights. 78

1. 10.1. History of Intervention:

The idea of resorting to war to support individuals suffering from unjust rule was

expressed in the writings of Hugo Grotius, Vattel, Mill and Kant. The.views of Grotius

and Vattel have already been touched upon in the section with regard to Just War. Kant in

Perpetual Peace states "No state shall by force interfere with either the constitution or

government of another state."79 Yet, he emphasises intervention by a republican form of

government to bring down non-republican regimes and this is analogous to unilateral

interventions of today.

John Stuart Mill advocated non-intervention as he felt that liberal ideas couldn't be

achieved by a foreign hand, but from the population of the state itself. Mill, however,

advocated that in cases where there have been extreme violations of human rights, a

powerful neighbour with the acquiescence of the rest is "warranted" in intervening. Mill

believed firmly in the concept of "self-determination", that is the right of the people to

become free by their own efforts. Yet he admonished the lack of British support towards

the Hungarians in their struggle against Austria, especially when the Russian despot

77 John Vincent, Non Intervention and International Order (Princeton: Princeton University Press, 1974 ), p. 8.

78 Anthony Clark Arend and Robert J. Beck, International Law and the Use of force (London: Routledge, 1993), p. 113.

79 Immanuel Kant, Perpet11al Peace (New York: Columbia University Press, 1939).

59

joined on behalf of the Austrians. For England, to help the Hungarians would have been a

virtuous and honourable act. 80

1.10.1.1. The Era ofthe Concert of Europe:

After the abdication of Franz II, 1806 (the last emperor of the Holy Roman Empire),

Europe entered into a "diplomatic buoyancy", led by the Congress of Vienna of 1815 and

the Concert of Europe, 1816. This concert was termed as "an exclusive club for Great

Powers, whose members were self-appointed guardians of the European Community."81

The concert was a system of joint consultation that led to collective diplomatic action for

the peaceful resolution of disputes. Authorisation of military action was also relevant

when peace did not succeed. Most interventions took place mainly for the protection of

Christians from the Ottoman Turks. Interestingly, three of the major powers of the

Concert of Europe, Austria, Prussia, and Russia, united in a holy alliance that sought to

maintain absolutists' regimes, suppressed democratic uprisings through interventions. For

example, the Holy Alliance sanctioned Bourbon France's intervention in Spain in 1823 to

crush the Spanish revolution and restore Ferdinand VII to power. Despite that,

humanitarian reasons also motivated certain interventions by the Holy Alliance,

especially, to stop persecution of Christians by the Ottoman Turks. Among the first

instances of intervention during the Concert of Europe were the British, French and

Russian interventions in Greece to protect Greek Christians from being massacred by the

Turks (1827-30). Most interventions, including the French in Syria (1860-61), the

Russians in Bosnia-Herzegovina and Bulgaria (1877-78) were mainly targeted to protect

Christians from Turkish persecution. Harsh Spanish rule in Cuba motivated the U.S to

intervene in 1898 in favour of Cuban guerillas seeking greater autonomy, after Spanish

authorities massacred about 100,000 Cubans. The intervention was, however, partly

influenced by sensational journalism, following which the US registered its protests

80 Walzer, n. 9, pp. 87·-91. Also Murphy, n. 39, pp. 59-63. 81 I. Claude Jr., "Swords into Ploughshares: The Problems and Progress of International Organizations",

(I 97 I) as quoted in Murphy, n. 39, p. 50.

60

against the Spanish authorities. What ultimately triggered the intervention was the

blowing up of the USS Maine in the Havana Harbour. 82

1.10. 1. 2. Interventions under the League of Nations:

The First World War that lasted for five years witnessed human deaths and sufferings on

an unprecedented scale. Given that, statesmen of those years sought to establish an

international organisation that would provide collective security and protect nationalities

and minorities from unfair treatment. The League ofNations was primarily envisioned by

then US President Woodrow Wilson. For Wilson, such an institution would prevent

future wars and address human rights concerns. 83 The Covenant of the League ( 1919)

was a testament of the aspiration of man to govern his affairs by reason, to assert the

concept of justice into the settlement of international disputes, and to enshrine the

collective interest of all nations as supreme above the interest of any group of nations or

any individual nations. It represented the magnificent endeavour of man to make a fresh

start after five years of devastating wa..rfare. 84 The Kellogg-Briand Pact of 27 August,

1928, also codified within international law, the idea that the "resort to force" concept

was no longer permissible, especially in the realm of foreign policy. It set the mood for a

strong post war condemnation of any use of force. However, this principle and the

League Covenant were violated by three interventions that took place during the league

years. The first abuse occurred when Japan invaded Manchuria in 1931, stating the

rationale that it was necessary in order to protect Japanese nationals in Manchuria from

the Chinese military. Japan went on to declare a new state of Manchuria in 1932.

The second intervention that violated the League Covenant was Italy's invasion of

Ethiopia in 1935. The League condemned Italy's action and imposed sanctions under

Article 12 of the Covenant. Italy, however, argued that its troops were successful in

abolishing slavery in Ethiopia, but the League rejected this line of argumentation. The

last was Germany's invasion of the regions of Bohemia and Moravia in Czechoslovakia

82 Murphy, n. 39, pp. 52-64. 83 George Scott, The Rise and Fall of the League of Nations (London: Hutchinson, 1973), pp. 38-51. 84 Ibid.

61

m 1939. Adolph Hitler stated that the purpose of the intervention was to establish a

protectorate of Bohemia and Moravia for the Sudetan Germans in Czechoslovakia, but it

is a fact of history that the German invasion of Czechoslovakia led to World War II.

As far as the idea of humanitarian intervention is concerned, the "League Covenant" was

not helpful, nor did it establish any clause that would warrant any such action by the

League or by States.

i) Nothing in the language of the Covenant prohibited humanitarian intervention. But the

Covenant did not specify when force is to be used and when it is not permissible.

ii) If a state failed to accept responsibility for human rights violations within its border,

the League Covenant could do nothing since it was debarred by international law to deal

with matters that fell within the jurisdiction of a member state.

iii) There was nothing to show during this period that the practice of humanitarian

intervention was embodied. On the other hand, there was a growing consensus that war

was wrong and it should be avoided entirely.

1.10. 1. 3. The UN and Humanitarian Intervention:

The World War II constitutes one of the worst periods of human right violations,

dominated by acts of violent repression against the German Jews by Hitler and their

torture in the concentration camps. The World War II was basically a war of self-defence,

though the US did express concern about the human rights abuses of the Jews by

Germany. However, only after Germany declared war against the US, did the US declare

war against the Germans. Though, in the immediate aftermath of the War, human rights

were included in the UN Charter, it did not carry any provisions that enabled the use of

force for the sake of human rights. In the Dumbarton Oaks meeting of 1944, the allied

powers consisting of the US, USSR, UK and China set forth the 'Dumbarton Oaks

proposals' that provided the basic framework for the UN Charter. However, under these

proposals, the prime focus was on international security set forth by the provision that

States would refrain from the use or threat of force in their international relations. At the

62

San Francisco conference in June 1945, states and non-governmental organizations

insisted that "human rights provisions" must be included in the Charter of the U.N.

Therefore, the preamble of the Charter affirms,

"Faith in fundamental human rights, in the dignity and worth of the human person, in the

equal rights of men and women and of nation large and small."85

Among the purposes of the UN are the development of "friendly relations among nations

based on respect for the principle of equal rights and self determination of peoples" and

the achievement of international cooperation in "promoting and encouraging respect for

human rights and for fundamental freedom for all without distinction as to race,

language, or religion."86 Chapter IV directs the General Assembly by laying down "shall

initiate studies and make recommendations for the purpose of ... (b) ... assisting in the

realisation of human rights and fundamental freedoms for all without distinction as to

race, sex, language, or religion."87 Chapter IX adds "universal respect for, and

observance of, human rights and fundamental freedoms," and members take joint and

separate action with the United Nations to this end.88 Under chapter X, Economic and

Social Council (ECOSOC) is allowed to make recommendations and establish

commissions for the promotion of human rights. 89

Due to the influence of Cold War politics dominated by the two rival blocs, the US and

the USSR, the UN's involvement in humanitarian interventions was sporadic and limited.

The intent and credibility ofthe motivating factors were also looked upon with suspicion,

as it was not clear why a particular bloc of states would want to intervene in another's

affairs, if not for extending its own sphere of influence. Almost all activities in world

politics came to be viewed through the prism of Great Power rivalry. In some cases, the

intervening state justified its action primarily on the basis of self-defence, such as the

Rs Preamble of the UN Charter. 86 UN Charter, Article I, Para 2-3. ~ 7 UN Charter, Article 13, Para I. HK UN Charter, Article 55-56. 89 UN Charter, Article 62-68.

63

interventions by India in East Pakistan (1971), Tanzania in Uganda (1979) and Vietnam

in Cambodia ( 1979.90

1.10. 2. The Cold War Period (1945- 1991) and Interventions:

Some of the most controversial interventions in the Cold War period were:

1.10. 2.1. The USSR's Intervention in Hungary (1956):

After World War II, in which, Hungary was an ally of the Axis powers, the Hungarian

Republic was proclaimed in 194 7. The first government installed was from the

communist parties, whose Moscow initiated policies led to unrest that resulted in

demonstrations by students and workers for better working conditions and pay. Despite

public pressure, the Presidential Council of Ministers elected a new Prime Minister on 24

October 1949. The former Prime Minister, Imre Nagy had demanded that Soviet troops

leave Hungary. In October 1949, the USSR announced its intention of entering into

negotiations with Nagy on troop's presence. The later gave notice of Hungary's

withdrawal from the WARSAW Pact and also declared Hungary's neutrality. The USSR,

in retaliation, attacked and occupied Budapest in November 1949 and deposed the Nagy

regime. The USSR justified its use of force under its WARSAW pact obligation, though

the pact does not allow interventions to suppress internal unrest. It also violated Article 2

(4) of the UN Charter. The UN General Assembly in its report stated that the Nagy

regime was lawful and the regime that expressed the will of the Hungarians desired that

the Soviet troops be withdrawn from its soil. The Soviet action was an act of blatant . 91 aggresswn.

1.10.2.2. USSR in Czechoslovakia:

Unrest in Czechoslovakia also started after many intellectuals and officials in Prague

challenged the Czechoslovakian Communist Party's domestic and foreign policy in 1968.

Due to the lack of domestic support for his policies, the Czech President, Antonin

Novotny resigned as first secretary of the Communist Party on 5 January 1968. His place,

90 Hedley Bull, ed., Intervention in World Politics, (Oxford: Clarendon Press, 1984), pp. 134-56. 91 UN Doc.A/3355 (1956), U.N. GAOR, 2"d emergency special session, 1956 and General Assembly

Resolution, 1127, 1956.

64

was given to Alexander Dubcek, who was loyal to Moscow. Giving in to pressures of the

moderate voices in the country, Dubcek included greater social and political reform

within his party. The changes in the Czech power structure indicated that the country was

gearing towards a liberal progressive policy, oriented away from the Soviet Union and

towards Western Europe. The resignation of the Czech President Novotny due to adverse

public opinion in March 1968 without Soviet consent was looked upon with concern by

the USSR. In reaction, the USSR along with Poland, the German Democratic Republic

(GDR) started amassing troops on the border of the Czech Republic and on 20 and 21

August 1968, crossed over into Czechoslovakia with 600,000 troops. The Czechoslovakia

government offered no resistance and as such, the Soviet led army was successful in

occupying the whole of Czechoslovakia. The Czech Republic, however, offered a non­

violent protest to the Soviet occupation. After a week of occupation, both the Czech and

Soviet representatives met at Moscow. It was decided that the USSR, henceforth, would

not interfere in the internal affairs of Czechoslovakia and Czechoslovakia accepted the

stationing of foreign troops in its soil as well as agreed to implement measures that would

serve Soviet powers.

In justifying the intervention, the USSR stated in the beginning that the Czech

communist party had requested it to intervene in order to safeguard socialism, which was

the duty of the world socialist community, of which the USSR was an integral part. 92 The

international community criticized the intervention. In August 1968, the UN Security

Council in a draft resolution condemned the intervention and called for the withdrawal of

foreign troops. The resolution, however, failed to pass due to the Soviet veto.

The USSR's intervention in Czechoslovakia like its Hungarian intervention in 1956 was

an intervention, which thwarted the wishes of the Czech people for a liberal

establishment. The intervention also had elements of the "Brezhnev doctrine" which

expressed the view that states could collectively intervene in the affairs of another state

due to ideological reasons. In its intervention in Czechoslovakia, the USSR had utilized a

multinational force. The intervention was an example of the blatant use of force by a

92 See Murphy, n. 39, pp. 90-93.

65

power bloc of the cold war when states that adhered to its ideology showed signs of

dissent. The Soviet's use of force violated international law and also Article 2 (4) of the

UN Charter.

1.10.2.3. Vietnam in Cambodia (1979):

After the death of Prince Norodom Sihanouk in 1970 after a reign of 29 years, 1941-70,

his successor, General Lon Nol openly sided with the South Vietnamese forces and the

US during the Vietnam War. As such, North Vietnam and China supported a communist

insurgency, the Khmer Rouge. In 1975, the Khmer Rouge overthrew President Nol and

assumed power. Within a year of assuming power, the Khmer Rouge, between 1975-79,

led by Pol Pot engaged in widespread killing throughout Cambodia of all those

Cambodians who were associated with the Nol regime. Nearly a million Cambodians lost

their lives. The Khmer Rouge also started destroying Vietnamese villages and its

inhabitants along the Vietnam-Cambodia border. In such circumstances, Vietnamese

forces crossed the Cambodian border on 25 December 1978 and in a matter oftwo weeks

defeated the Khmer Rouge. On 8 January 1979, a new People's Republic of Kampuchea

was established. Vietnam's primary justification for its intervention was self-defence.

Vietnamese Foreign Minister claimed that the Khmer Rouge had waged a 'large scale

aggressive war' against Vietnam, which it was entitled to respond. Despite that, the

international community, except the USSR condemned the intervention. The UN General

Assembly censored the intervention. States most probably, after the withdrawal of US

forces from Vietnam were concerned by Vietnam's own human rights record. It was also

felt that Vietnam's intervention might have hidden motives of regional ambitions.93

1.10.2.4. Tanzania in Uganda (1979):

During the reign of Idi Amin, which started in 1971, extensive atrocities against the

Ugandan people left nearly 30,000 people dead. In reaction, Tanzania's President, Julius

Nyerere considered Idi Amin a murderer of his own people and refused to sit with him on

the Authority of the East African community. In October 1978; Amin ordered Ugandan

93 General Assembly Resolution, 34/22, UN GAOR, at 16 UN .Doc, A/34/ 46, 1980. It called for an

immediate withdrawal of forces from Kampuchea.

66

troops across the border into Tanzania to occupy Kagera Salient. Lacking internationa

support for his action, Amin agreed to withdraw, given Tanzania agreed to cease it:

support to Ugandan dissidents in the region, to which Tanzania refused. Tanzanian troop!

attacked the Uganda army in November 1978. By January 1979, 20, 000 Tanzaniar

forces were in Uganda. 94 By late April, Tanzanian forces occupied the Ugandan capita

of Kampala and Amin fled Uganda. In the beginning, President Nyerere justified the

intervention as a reaction to Uganda's attack against Tanzania, clubbing it as self.

defence. Surprisingly, the intervention was not even discussed in the General Assembl)

or the Security Council. The Organisation of African Unity (OAU) also did not condemn

the intervention, despite its non-intervention principles. It is not clear why there wru;

lackluster international response, but it can be hypothesized that an affair in the heart o1

Africa did not raise much interest as it had little geo strategic significance.

1.10.2.5. United States in Panama (1989):

Despite being a strong ally of the US, General Manuel Noreiga of Panama faced its

wrath when drug trafficking through Panama increased into the US. Noriega managed to

remove Panama's President; Eric Arturo Delvalle after the later attempted to remove him.

He called in a special session of the Panama National Assembly, which impeached

Delvalle and installed a new President. 95 The US refused to recognise the new

government and two juries in Florida indicted Noriega on the ground of drug trafficking.

Meanwhile, Noriega emerged victorious in the 1989 election, the results of which were

manipulated by his supporters. The US called upon the Panamanian Defence Forces

(PDF) to overthrow Noriega, but the coup attempt failed in October 1989. The

deteriorating relations between Panama and the US led the Panama Legislative body to

declare on 15 December 1989 that it was in a state of war with the US. On 20 December

1989, 12, 000 US military forces landed in Panama and along with other US forces

already stationed there, it routed the PDF and took Noriega into custody on 3 January

1990.

94 See Murphy, n. 39, pp. 105-107. 95 See M. Leich, "Contemporary Practice of the United States Relating to International Law", American

Journal of International Law (Washington D.C.), vol.23, no. 82, 1988, pp. 558-71.

67

In defending the US intervention in Panama, Jean Kirkpatrick, US Permanent

Representative to the UN stated that the US had acted under Article 51 of the UN

Charter, which directed them to exercise their inherent right to self-defence under

international law. 96 US public opinion also strongly supported the intervention. In the

Security Council, the USSR declared the intervention as flagrant violations of the UN

Charter. China also condemned the intervention. The UN General Assembly adopted a

resolution on 29 December 1989, which condemned the intervention.97 The US cited

democracy as one of its motivations behind the intervention but it did not convince the

international community.

In sum, it might be said that during the Cold War, the UN Security Council rarely used its

powers under Chapter VII of the UN Charter to authorize an intervention. Interventions

by the US or the USSR occurred within their spheres of influence and were driven

primarily by self-aggrandizement motives. Even though humanitarian motives were cited

in some cases, this was overshadowed by the significance of geo strategy. The

international community was also very critical of most of the interventions. There was

also the overpowering belief that states were not capable of being altruistic in the Cold

War period, given the context of superpower rivalry and nuclear weapons.

1. 10.3. Post-Cold War Period and Intervention:

The post-cold war period witnessed a normative shift in international relations. The

period ushered in intense economic and diplomatic relationship. Globalisation and the

rapid spread of information technology changed the age old adherence to inviolability of

borders. Images of the world spread in seconds. "Distances no longer are a hindrance for

cultural assimilation and cultural hybridisation."98 An "irresistible shift in public attitude

occurred toward a belief that the defence ofthe oppressed in the name of morality should

probably prevail over frontiers and legal documents."99 This change in attitude is also

reflected in the contemporary developments in Human Rights law and International

96 UN SCOR meeting, 44th session, 2899th meeting, at 31 UN Doc. S/PV.2899 (1989). 97 General Assembly Resolution, 44/ 240, UN GAOR, 44th session, UN Doc, A/44/49 (1989). YH Interview with Aijaz Ahmad, 22 February 2002. 99 Statement by UN Secretary General, Javier Perez de Cuellar, March 1989.

68

Humanitarian Law, which establishes obligations for states and international

organisations to collaborate in the international protection of basic human rights, the

prevention of human rights violations and war crimes and the punishment of the

perpetrators. Accordingly, states intervened into the territorial space of other states on the

ground that violation of human rights existed in that space. Instances of humanitarian

intervention in the post cold war period cou,ld be:

1.10.3.1. Operation Provide Comfort in Iraq (1991-93):

On 2 April 1992, the Government of Turkey urgently sought a UN Security Council

Resolution as Iraqi action was forcing nearly 220,000 Iraqi nationals to flee to Turkey

across the border. Iran also notified the Council that 500, 000 Iraqi nationals were

crossing into Iran and it threatened the peace of the region. After the Gulf War of 1990,

the UN had been monitoring the nature of the Iraqi state in the post war period. Given

that, the UN Security Council passed Resolution 688 on 5 April 1991 noting that the Iraqi

action had led to massive flow of refugees towards and across international borders,

which threatened international peace. 100 The Security Council demanded that Iraq end of

repression of its nationals. On 6 April 1991, the US declared a 'no-fly zone' in Northern

Iraq prohibiting all Iraqi flights north of the 36th parallel. With the help of Britain,

Turkey, France, the US airdropped food, water, coats, tents and medicines in Iraq. 101 The

US also provided certain 'safe havens' for the Kurds, naming the action 'Operation

Provide Comfort'. The UN was also willing to be a part of the venture, provided Iraq

gave its consent. A Memorandum of Understanding (MoU) was signed between the UN

and Iraq that allowed UN to have a humanitarian presence throughout Iraq. By mid July,

1991, the Kurds who had fled to Turkey returned to Iraq. Iraq by mid 1992 sought to end

the operation in Northern Iraq, but then the UN Security Council instructed the Secretary

General to continue with the program. 102 Since 1992, the Kurdish region of Iraq has

operated as an autonomous region.

100 UN Security Coun.:il Resolution, 688, U.N. SCOR, 46th session, at UN. Doc. S/INF/47 (1991). 101 C. Kauss, "US Wil! Airdrop Food and Clothes to Kurds in Iraq", The New York Times (New York), 6

Apri11991, p.6. 102 P. Lewis, "UN Agencies Ordered to Continue Efforts in Iraq", The New York Times (New York), 3

September 1992, p. A6.

69

1.10.3.2. US Intervention in Somalia (1992):

Civil War broke out in Somalia in 1988 with clans seeking the ouster of President

Mohammad Siad Barre. However, after he was removed, these clans turned on each other

and in the process, thousands of people lost their lives and the country was destroyed

beyond recognition. By December 1992, the UN estimated that more than 300, 000 must

have lost their lives and 900, 000 Somalis fled to neighbouring countries of Kenya,

Ethiopia, and Djibouti. In view of growing concerns of human deaths and sufferings, the

UN Security Council passed Resolution 733 on 23 January 1992, stating that it was

'concerned' that the continuation of the situation in Somalia constituted a threat to

international peace and security. Invoking Chapter VII, the Security Council decided that

all states must embargo the delivery of weapons and military equipment to Somalia. 103

On 3 March 1992, the two warring factions in Mogadishu, which set up a UN observer

mission, signed a ceasefire agreement under UN auspices. Given that, on 24 April 1992,

the UN Security Council established a UN Operation in Somalia (UNOSOM) and asked

the Secretary General to deploy 50 UN observers to monitor the ceasefire in Mogadishu.

Meanwhile, the UN also organized a joint World Food Programme (WFP) and United

Nations Children's Fund (UNICEF) airlift that transported food. However, as the

situation within Somalia did not improve, the Security Council authorized the

deployment of armed forces to Mogadishu in August 1992. These forces, however,

remained confined within Mogadishu and did not go out to the countryside. Violence in

the city claimed the lives of one of the UN soldiers. One clan leader based in Mogadishu

warned the UN that the Pakistani contingent of the UN would not be tolerated in

Mogadishu and any more UNOSOM deployment would be met with violence. There also

occurred widespread looting of aid supplies, robbery, armed banditry and general

lawlessness was pervasive. Taking note of the deteriorating situation, the US offered to

provide some 20, 000 troops to help ensure distribution of food and aid in Somalia as part

of a multinational force authorized by the UN. On 3 December 1992, the UN Security

Council passed Resolution 794 authorizing a US led force to enter Somalia to safeguard

103 UN Security Council Resolution, 733, UN SCOR, 4ih session, 3039'h meeting, at UN Doc. S/INF/48, 1992.

70

relief work. 104 The US Marines arrived in Mogadishu on 8 December 1992 and

immediately seized control of the airport, seaport, and surrounding areas. This force came

to be known as the United Task Force (UNITAF). By January 1993, nearly 24, 000 US

marines were deployed throughout southern Somalia. However, despite the stated

purpose of overseeing distribution of food, the marines got involved in creating dialogue

among local civic leaders. The US forces started helping Somalis to organize a

Mogadishu police force of 3, 500 men for ensuring law and order. 105

In March, 1993, the Secretary General proposed that by 1 May 1993, UNITAF should

transfer command to a UN force that would consist of 28, 000 troops under a UN

commander, authorized by UN Security Council Resolution, 814. UNOSOM II was given

extensive authority to control heavy weaponry of the Somali factions, to seize small

arms, to de-mine various areas, to protect relief workers, and to aid in the resettlement of

refugees and displaced persons. UNOSOM II operated throughout Somalia and focused

primarily on increasing the disarmament of the factions. At the core of the UNOSOM II,

were around 4, 000 Pakistani forces, all operating under the expanded rules of

engagement. However, the UN intervention could not generate good feelings among the

Somalis. In March 1993, Somali faction leader, Mohammad Farah Aideed accused the

UN of interfering in Somalia's internal affairs. On 5 June 1993, violence broke out in

Mogadishu leaving 24 Pakistani soldiers dead and 56 wounded. The UN responded by

passing a resolution that authorized the Secretary General to take action under Resolution

814 against all those responsible for the attacks. Throughout the summer of 1993, UN

forces remained confined to their compound in UN headquarters. However, things took a

tum for the worse when on 4 August, a landmine killed US soldiers. In September 1993,

7 Nigerian soldiers of UNOSOM II were killed. 106 In August, the US had sent 400

members of the elite infantry force whose mission was to capture Aideed. However,

things turned out different. The rangers got caught in a 16-hour battle that left 12 US

104 United Nations Security Council, 794, UN SCOR, 47th session, 3145th meeting, at 63 UN Doc. S/INF/ 48/ ( 1993).

105 K. Richburg, "Broader US Role Developing in Somalia", The Washington Post (Washington D.C.), 31 December 1992, p. A7.

106 K. Richburg, "7 Peacekeepers Killed in Somalia", The Washington Post (Washington D.C.), 6 September 1993, p. AIS.

71

soldiers dead in Mogadishu, and 80 wounded. 107 Worst of all, CNN crewmembers caught

on camera, one US soldier being dragged through the streets of Mogadishu, while Somali

onlookers cheered. Soon after this incident, the rangers left Mogadishu and the violence

dampened support by states for UNISOM II. 108 On 4 February 1994, the UN Security

Council altered UNOSOM's mandate and reduced the force from 30, 000 to 22,000. 109

On 24 March 1994, Aideed and his primary rival, Ali Hahdi Mohammad who led an

alliance of 12 anti-Aideed Somali factions signed a peace pact in Nairobi that established

a peace pact. On 4 November 1994, the UN Security Council decided to withdraw all

UNOSOM forces from Somalia. In February 1995, 14,000 UNOSOM troops withdrew

from Somalia.

The Somalia intervention, though serving as a precedent for the UN Security Council to

authorize states to intervene for humanitarian purposes, also indicated that the UN neither

had the logistic potential nor the expertise to intervene in a situation of heightened

internal rivalry. More groundwork and better co-ordination still had to be worked upon.

1.10.3.3. Bosnia-Herzegovina: 1992-1995:

After Marshal Tito's death in 1980, who sing1e-handedly maintained control over the

Yugoslav federation, various Republics tended to break away from the Federation. On 25

June 1991, following the collapse of the USSR, the Yugoslav Republics of Slovenia and

Croatia broke away from the Yugoslav state and declared independence. The Yugoslav

People's Army (JNA) started a fight with groups in Slovenia and Croatia and took control

of one third of Croatia. Following this, the UN Security Council passed Resolution 713

that declared the Yugoslav crisis as a threat to international peace and security and

imposed a general embargo on Yugoslavia. 110 On 17 December 1991, the European

Commission decided to recognize both Slovenia and Croatia as sovereign independent

107 K. Richburg, "Deliverance from Warlord's Fury: Rangers Pinned Down in Mogadishu Recall Harrowing Rescue", The Washington Post (Washington D.C.), 7 October 1993, p. A14.

108 J. Lancaster, "Mission Incomplete, Rangers Pack Up", The Washington Post (Washington D.C.), 21 October 1993, p. A 1.

109 UN Security Council Resolution, 897, UN, SCOR. 49'h session, 33341h meeting, UN Doc. S/RES/987 (1994).

110 UN Security Council Resolution, 713, UN SCOR, 461h meeting, 3009'h meeting at 42, UN Doc. S/INF/ 47, 1993.

72

states. The war then shifted to Bosnia-Herzegovina that consisted of a majority Muslim

community. The Serbian army started providing help to the Serb minority in Bosnia. In

April 1992, the US and NATO countries recognized Bosnia Herzegovina as an

independent state. But the Serb minority continued its clashes with the Muslims and the

fighting turned brutal, involving indiscriminate attack and torture of civilians. 111 In

February 1992, the UN Security Council established a UN Protection Force

(UNPROFOR), which was headquartered in Bosnia's Sarajevo, but later relocated to

Belgrade and ultimately to Zagreb. In May 1992, Bosnia and Herzegovina was admitted

to the UN along with Croatia and Slovenia. The UN demanded that all JNA forces

withdraw from Bosnia, but Serbia did not follow up the request. Due to the ongoing

fighting, millions of people were rendered homeless without food and water. In August

1992, the UN Security Council called upon states to take 'all measures necessary to

facilitate the delivery of humanitarian assistance to Bosnia-Herzegovina". 112

In October 1992, the UN Security Council established a ban on all military flights in the

air space over Bosnia Herzegovina to ensure the safety of humanita..'i.an flights in order to

assist the cessation of hostilities. 113 In the first quarter of 1993, the UN and the European

Union tried to gain adherence to a peace plan that would divide Bosnia into ten semi

autonomous provinces dominated by different ethnic groups. The plan was, however,

rejected by Bosnian Serbs. In March 1993, the US along with the UN started dropping

food and medicine to Muslim enclaves in Bosnia Herzegovina and the Security Council

also craved out 6 'safe areas' for the protection of Bosnian civilians. 114 The

UNPROFOR's mandate included the responsibility to deter attacks against those area.;;.

Violence, however, continued on the ground and the Bosnian Serb attacks on the UN

protectorates increased. On 5 February 1994, a bomb attack on a market place in Sarajevo

111 R. Cohen, "CIA Report on Bosnia blames Serbs for 90% of the War Crimes", The New York Times (New York), 9 March 1995, p. Al.

112 UN Security Council Resolution, 770, UN SCOR, 47th session, 31 06th meeting, at 24 UN Doc. S/INF/48, 1993.

113 UN Security Council Resolution, 781, UN SCOR, 471h session, 3122"ct meeting, at 27 UN Doc.S/INF/48, 1993.

114 UN Security Council Resolution, 819, UN SCOR, 48th session, 3199111 meeting, at 6 UN Doc.S/INF/49, 1994.

73

killed 66 people and wounded 200. 115 The UN Secretary General, Butros Butros Ghali

called upon NATO to use air power against Bosnian Serbs. On 13 March 1994, NATO

authorized air strikes and in April 1994, saved the Muslim enclave of Goradze with 65,

000 people from falling into Serbian hands. 116 Meanwhile, Croatian President Franjo

Tudjman grew impatient with UNPROFOR's inability to find a solution in Croatia and

threatened to withdraw support for it. In reply, the UN Security Council passed a series of

resolutions that divided the existing UNPROFOR into three separately named units for

Croatia, Bosnia- Herzegovina, and Macedonia. 117 The situation continued to detoriate and

the worse case of killing occurred on 11 July 1995 when UNPROFOR failed to stop

Bosnian Serb attack on the UN designated safe area of Srebrenica, forcing nearly 30, 000

civilians to flee. 7, 000 Bosnian Muslims J.ost their lives. 118 Meanwhile, on 4 August

1995, Croatian Government forces invaded Krajina, a Serb stronghold and carried out

mass killing, forcing many to flee to Serbia and Montenegro. Given the precarious

situation in Bosnia, NATO started air strikes against Serbian rebels and forces,

threatening to continue if Serbian forces did not return to Serbian territory. Amidst the

NATO air strikes, Milosevic agreed to surrender and peace talks commenced in Geneva

that enabled Bosnia- Herzegovina to consist of two federations, the Muslim-Croatian

Federation, and a Serbian Republic. It was also decided that the two entities would hold

elections under international supervision and would also observe human rights

standards. 119 On 6 October 1995, a ceasefire was enforced and in November, at Dayton,

an agreement was reached which established a NATO troop presence of 60, 000 in

Bosnia-Herzegovina.

The international community was very slack in its response to the Bosnian crisis and

delays and diplomatic haggling led to a situation that got from bad to worse on the

115 J. Kifner, "66 Die As Shell Wrecks Sarajevo Market", The New York Times (New York), 6 February 1994,p.l.

116 J. Randal, "US Jets Strike Serb Forces Near Bosnian Town", The Washington Post (Washington D.C.), 11 April 1994, p. Al.

117 UN Security Council, 981, UN SCOR, 501h session, 35121

h meeting, UN Doc, S/RES/981, 1995. 118 J. Promfret, "Witnesses Allege Abuses by Serbs", The Washington Post (Washington D.C.), 16 July

1995. p. Al. 119 "Agreement forged on Principles for Settling Bosnia War", International Herald Tribune (Paris), 27

September 1995, p.l.

74

ground. It took three years of endless sufferings for the Bosnian Muslims to ultimately

galvanize the international community to respond. The Bosnian crisis also revealed that

traditional methods of peacekeeping could sometimes fail to succeed on the ground and

the UN needs to have more stringent methods. It could also be ascertained that neither the

international community nor states perceived a legal right or obligation to act quickly in

situations that exhibited widespread human rights violations and atrocities. The major

powers were also reluctant to commit militarily and economically to mitigate the crisis.

This set a precedent that in the future, despite human beings suffering terribly at the

hands of a repressive state or rival ethnic group, the UN or regional organizations will not

necessarily act to protect them. It also reflected the incapability of the UN to act as an

impartial mediator and peacekeeper.

1.10.3.4. Rwanda (1994):

The Rwanda crisis of 1994 starkly brought out the inability of the international

community to act under Chapter VII of the UN Charter despite clear evidence of human

rights violations. The African Republic of Rwanda was largely divided between two

ethnic communities, the Hutus and the Tutsis. In 1961, Rwanda, which was till then a

colony of Belgium, became independent. The Hutus mostly dominated the power

structure and as such, the periodic clashes between the Hutus and the Rwandan Patriotic

Front made up of Tutsis became a common affair. In August 1993, a truce was signed

between the Hutus and the Tutsis in Arusha, in which a ceasefire was agreed upon.

However, things took a tum for the worse when on 6 August 1994, Rwanda's moderate

Hutu President, Juvenal Habyarimana was killed in a plane crash outside the Rwanda

capital, Kigali. As the circumstances of the crash was unclear, some believed that the

Tutsi rebel groups shot him down, while others suspected that the Hutu military was

behind the assassination. The assassination triggered a rampage on the part of extremist

Hutus, who were provided arms by the military itself, and they attacked the Tutsis and

moderate Hutus without discrimination. Even children and women were not spared. By

the end of April, some 200, 000 Tutsis had lost their lives and 250, 000 had fled the

75

country. By mid summer, nearly 2 million Tutsis were dead. 120 In the midst of such

chaos, the UN remained largely ineffective. At the time of the crisis, there was a UN

troop presence in Rwanda to monitor the Arusha Accords. The UN Assistance Mission

for Rwanda (UNAMIR) was unable to prevent the outbreak of violence. The UN

Secretary General had requested the deployment of a larger force to deal with the crisis,

but the Security Council could not come to a decision, as no state made a firm offer to

provide troops. The US demanded a more detailed plan as, in all possibility; it did not

want to face another Somalia. 121 The UN Security Council did manage to pass Resolution

925 that called upon UNAMIR to provide security. However, due to lack of logistical

support, the UN force remained without any means to stop the warfare. 122 As Hutu

violence continued, France's Foreign Minister, Alain Juppe announced that France was

willing to intervene in Rwanda to protect groups that were threatened by the violence.

Ironically, it was France that had trained many of the Hutu dominated Government forces

that were involved in the killing. 123 On 22 June 1994, the UN Security Council passed

Resolution 929 authorizing the use of force for humanitarian purposes. On 23 June,

French troops in armoured vehicles crossed over from Zaire into western Rwanda.

Meanwhile, in July 1994, the Tutsi rebels captured Kigali and Rwanda's second largest

city, Butare. The French troops present in Rwanda declared a safe zone in Southwestern

Rwanda for protection of Rwandan rebels. Fearing the rebel Tutsi group, namely the

Rwandan Patriotic Front that was made up of exiled Tutsis from refugee camps in Zaire,

many Hutus fled the country. The influx of refugees into Zaire caught the international

community unawares and dysentery and cholera became widespread in the refugee

camps.

On 18 July 1994, the rebels announced a ceasefire and on 19 July, a government was

formed composed of both Tutsis and Hutus. The UN subsequently recognized the

12° K. Richburg, "Rwanda's Final Killing Ground", The Washington Post (Washington D.C.), 18 May 1994, p. A16. Also Murphy, n. 39, pp. 244-258.

121 P. Lewis, "US Backs Troops for Rwanda But Terms Bars Any Action Soon", The New York Times (New York), 17 May 1994, p. AI.

122 UN Security Council Resolution, 925, UN SCOR, 491h session, 33881

h meeting, UN Doc, S/RES/925, 1994.

123 Murphy, n. 39, p. 248.

76

government as a legitimate government. 124 The French forces in Rwanda left the country

on 22 August 1994 with the French President, Mitterrand claiming that France had

fulfilled its obligations in Rwanda and it was up to the Rwandan authorities to establish

durable peace. 125 Towards 1995, there were as many as 250, 000 Rwandans, mostly

Hutus located in nine camps within Rwanda's borders. Within weeks, these inmates of

the camps were encouraged to return to their homes. Zaire also forced many Rwandan

and Burundi refugees out of camps within its borders. Nearly 130, 000 of them were

forced to leave.

The Rwandan crisis is a black mark on the humanitarian record of the UN. Throughout

the crisis, the UN remained complacent and could not provide help even to the French

troops. The vocal UN response to the Bosnian crisis, occurring at the same time, reflected

a selective bias on the part of the international community, to intervene even for

humanitarian purposes in places that had certain geo strategic significance to the Great

Powers. Rwanda is a peripheral state and did not effect the world power alliance at all,

whereas Bosnia is situated in the heart of Europe and most dominating powers in the UN

had a stake in its affairs. 126 Other cases of intervention in the post cold period included

the UN intervention in Haiti, 1993-94, NATO's intervention in Kosovo, 1999, which this

study analyses in the third chapter.

1.11. Theoretical Perspectives on Humanitarian Intervention:

Realists argue that states would not risk their soldiers merely to save lives in another

country without the influence of certain strategic national interest. Humanitarian claims

always provide a shield for the pursuit of national interest and that legalizing a right of

humanitarian intervention would lead states to abuse it. Thomas Franck and Nigel Rodley

124 L. Lyons, "New Rwandan Government Welcomed By the UN", The New York Times (New York), 1 September 1994, p. Al4.

125 K. Richburg, "French Troops Withdraw from Rwanda safe Zone", The Washington Post (Washington D.C.), 22 August 1994, p. AI.

126 C. Krauthammer, "Stop the Genocide in Rwanda", The Washington Post (Washington D.C.), 27 May 1994, p. A25.

77

argue that Article. 51 of the UN Charter is already vulnerable to abuse. 127 As such,

Bhikhu Parekh's definition of humanitarian intervention as action "wholly or primarily

guided by the sentiment of humanity, compassion or fellow feeling" might not hold true

in all cases of intervention. 128 States might be motivated by humanitarian concerns, but

force will never be used unless vital interests are at stake. 129 Realists also argue that

humanitarian intervention, motivated by calculations of national interest, leads to its

selective application. Rwanda and Burundi were ravaged by civil war in the 1990s, but

since they were peripheral states, they did not affect the policy choices of the Great

Powers. 130

The liberal perspective tries to strike a balance between the "legal tradition" of the post­

Westphalia order based on sovereignty and the old moral tradition of the "just war

doctrine" which vindicated intervention as an expression against injustice. Though

liberalism is divided over the issue of intervention, by and large, it justifies intervention

on three grounds:

i) The recognition that sovereignty is neither abstract nor absolute but is conditional upon

the state ensuring the fit between the government and the governed. In other words, the

state forfeits its sovereign right if it fails to fulfil its basic obligation of protecting the

rights of its people.

ii) The moral obligation to protect global humanity by ensuring states' compliance with

basic human rights norms should not be impeded by the constraints imposed by

sovereignty.

iii) Intervention, at times becomes necessary and inevitable to maintain international

stability. 131

127 T. Franck and N. Rodley, "After Bangladesh: The Law of Humanitarian Intervention by Military Force", American Journal of International Law (Washington D.C.), vol. 67, no. 4, 1973, p. 290.

128 B. Parekh, "Rethinking Humanitarian Intervention", in Bhikhu Parekh ed., The Dilemmas of Humanitarian Intervention, Special issue of International Political Science Review (London), vol. 18, no. 1, !997, p. 54.

129 Walzer, n. 9, p. 103. 130 Wheeler, n. 48, p. 3 I. 131 Stanley Hoffman, "The Politics and Ethics of Military Intervention", Survival (London), vol. 37, no. 4,

Winter 1995-96, pp. 29-51.

78

The Pluralist International Society Theory defends the rul-es of the society of states on the

ground that they uphold "common good." Sovereignty must not provide a license to

states in abusing human rights of its citizens. English school theorist R.J. Vincent has

recognised, "that states should satisfy certain basic requirements of decency before they

qualify for the protection which the principle of non-intervention provides. 132 However,

humanitarian intervention to be legitimate must be under UN control. They are

vehemently opposed to unilateral intervention. 133

The Solidarists argue for a case of humanitarian intervention, be it multilateral or

unilateral. Walzer points out "morality, at least, is no bar to unilateral action, so long as

there is no immediate alternative available." 134

There are four criteria to judge whether an intervention qualities as humanitarian, which

are derived from the just war tradition.

i) There must be a just cause- a supreme humanitarian emergency.

ii) Use of force must be the last resort

iii) It must meet the requirement of proportionality.

iv) There must be a high probability that the use of force will achieve a positive

humanitarian outcome. 135

1. 12. Humanitarian Intervention: The Thematic and the Problematic

1.12. 1. The Thematic:

The idea behind any humanitarian intervention is the saving of lives, beyond borders.

Humanitarian intervention refers to a situation when a state or group of states enter by

force into the territory of another state in response to large scale violation of human rights

or ethnic cleansing that are taking place there. The UN Charter imposes an obligation on

132 R.J. Vincent, and P. Watson, "Beyond Non-Intervention", in I Forbes and M.J. Hoffman eds., Political Theory, International Relations and the Ethics of Intervention (London: Macmillan, 1993), p. 126.

133 Wheeier, n. 48, pp. 28-29. 134 Walzer, n. 9, p. 107. 135 Wheeler, n. 48, pp. 33-34.

79

every state to protect human rights. 136 State sovereignty has been redefined "states are

now widely understood to be instruments at the service of their people, and not vice

versa." 137

In the post-cold war period, there has occurred this distinct shift in understanding the

concept of "humanitarian intervention." Rather than "a right to intervene," the entire

discourse has shifted to a "responsibility to protect". This has three advantages:

i) Evaluates the issue from the point of view of those needing support, rather than the

intervening state.

ii) The prime responsibility to protect is with the state concerned. If the state is unable or

unwilling to protect, or is itself the abuser, than the international community takes the

responsibility to act.

iii) Responsibility to protect encompasses three aspects:

a) Responsibility to react

b) Responsibility to prevent

c) Responsibility to rebuild. 138•

'The Universal Declaration of Human Rights-1948 also provides strong criteria for

human rights protection. Most important among them are:

That the inherent dignity and inalienable rights of all members of the human

family are the foundations offreedom,justice and peace in the world;

That every one has the right to life, liberty and security of his person;

That no one shall be subjected to torture or to cmel inhuman or degrading

treatment or punishment;

That no one shall be subjected to arbitrary arrest, detention or exile'.

136 Gareth Evans and Mohamed Sahnoun, "The Responsibility to Protect", Foreign Affairs (New York), vol. 81, no. 6, November-December 2002, pp. 99-110.

137 Kofi Annan, "Two concepts of Sovereignty", The Concept of Intervention (New York: United Nations Publication, 2000).

138 Evans, n.136, pp.l01-2.

80

The Preamble of the U.N. provides that the U.N. shall promote,

"Universal respect for, and observance of human rights, in the dignity and worth

of the human person, in the equal rights of men and women and of nations large

and small."

However, humanitarian intervention has always been an activity which the international

community has reluctantly engaged upon, and it is seen as an aberration rather than a rule

in international system.

1. 12. 2. The Problematic:

The provisions of the U.N. Charter weigh heavily against the use of force solely to

protect human rights in a target state. Article 2(4) of the UN Charter firmly lays down the

inviolability of the territorial integrity and sovereign independence of any state.

It states that 'All members shall refrain in their international relations from the threat or

use of force against the territorial integrity or political independence of any state, or in

any other manner inconsistent with the purposes of the United Nations' .139

This article suggests that all norms of forcible self-help, reprisal, protection of nationals,

and humanitarian intervention that have developed in the pre-Charter days are now no

more acceptable either legally or morally.

There can be a counter argument to this prohibition on the use of force by Article 2(4).

The presence of the phase 'or in any other manner inconsistent with the purposes of the

United Nations.' This allows the use of force for certain essential 'rights' put forth in the

UN Charter. Article I (3) of the UN Charter cites one of the purposes of the UN as 'To

achieve international co-operation in solving international problems of an economic,

social, cultural or humanitarian character, and in promoting and encouraging respect for

human rights and for fundamental freedoms for all without distinction as to race, sex,

139 UN Charter, Article 2, Para 4.

Ot

language, or religion.' Given that, the use of force for salvaging human rights is not

'inconsistent with the purposes of the UN' that Article 2 (4) cites. The preamble to the

UN Charter also states that 'to reaffirm faith in fundamental human rights, in the dignity

and worth of the human person, in the equal rights of men and woman and of nations

large and small' as fundamental goals of the UN. Therefore, considered from the point of

view of the preamble, humanitarian intervention is warranted within Charter norms. 140

The only clear exception in using force that the Charter provides is Article 51 which

states:

'Nothing in the charter shall impair the inherent right of individual or

collective self defense if an armed attack occurs against a Member of

the United Nations, until the Security Council has taken measures

necessary to maintain international peace and security. Measures taken

by members in the exercise of this right of self defense shall be

immediately reported to the Security Council and shall not in any way

affect the authority and responsibility of the Security Council under the

present charter to take at any time such action as it deems necessary in

order to maintain or restore international peace and security' . 141

This Article indicates that any use of force other than a response to an armed attack does

not trigger a right to "self defence". Article 51 does not provide any room for

humanitarian intervention. Nor does "pre-emptive strikes" come under it. Hence, any

display of force for humanitarian reasons or under the calculation of pre-emption cannot

be justified according to the provisions of Article 51. Moreover, provisions of the Charter

on the use of force allow only multilateral use of force under U.N command and control,

and that is weighed against use of force solely to protect human rights abuses in target

states. ·

Atticle 2(7) reads as follows:

'Nothing contained in the present Charter shall authorise the United Nations to intervene

in matters that are essentially within the domestic jurisdiction of any state or shall require

140 Murphy, n. 39. p. 72-73. 141 UN Charter, Chapter VII, Article 51.

82

the Members to submit such matters to settlement under the present charter; but this

principle shall not prejudice the application of enforcement measures under chapter

VII' _142

Article 2 (7) deviates from the general scepticism on the use of force when it lays down

the right to intervene in the domestic affairs of state when pursuing enforcement

measures under Chapter VII of the Charter. Chapter VII authorises the Security Council

to determine that a "threat to the peace, breach of the peace, or act of aggression" exist

before enforcement measures under the same are invoked. Yet, the contradictory

statements about the use of force in Article 2 ( 4) and 2 (7) in the UN Charter could

provide obstacles for its use on the ground. But it is interesting to note that one could

argue for a right to humanitarian intervention by locating it within the purposes of the UN

as given in Chapter I that deals with the purposes and principles of the UN, especially

with regard to the provisions in Article 1 (3).

The problem, however, remains and the questions that one ought to pose are:

i. What are the definite circumstances under which the act of humanitarian intervention

is justified?

ii. Even if a decision to intervene is reached, what is it based on? Can it be based on

televised pictures of violence?

iii. Are unilateral uses of force by states to undo human rights violations justified,

especially when they occur outside of UN mandate?" 143

1. 13. Unilateral Interventions:

Humanitarian intervention reveals a strong tension between order and justice, more so,

when it comes to unilateral interventions. Hedley Bull is not prepared to qualify justice

over order. He points out that it is pertinent to keep in mind the consequences for

142 UN Charter, Article 2, Para. 7. 143 Stanley Hoffman, The Ethics and Politics of Humanitarian Intervention (Indiana: University of Notre

Dame Press, 1996), pp. 12-38.

83

international order of any attempt to promote individual justice; and the degree of

injustice that exist in the world order. When it comes to humanitarian intervention,

especially of the unilateral degree and kind, the states have conflicting claims of justice

and this may create further complications. 144

The cold war period was an era of heightened ideological passions, combined with the

emergence of nuclear weapons. The East-West conflict paralysed. the Security Council.

Though unilateral interventions were undertaken by India in East Pakistan ( 1971 ),

Vietnam in Cambodia ( 1979) and Tanzania in Uganda ( 1979) they were condemned by

the UN Security CounciL The power differential between the two super powers, the US

and the USSR was minimal and a balance was maintained in the structure of international

relations for fear of retaliation. States of either power blocs were careful not to venture

into the other's sphere of influence as that might escalate into a full-fledged conflict with

manifestations of a nuclear war. Sovereignty and territorial integrity of states were the

prime values in the international order. The collapse of the Soviet Union and the end of

cold war increased humanitarian interventions due to the rise in the culture of human

rights. Due to the change in focus from state sovereignty to concepts such as human

rights in the structure of international politics, the idea of unilateral interventions gained

credence. This was more so in circumstances, when in the face of human rights

violations, the UN Security Council was unable to decide on the use of force due to

differences among its five permanent members. NATO intervened in Kosovo in 1999

without UN mandate because the UN Security Council was unable to decide on the use of

force. The differences between China and Russia who threatened to veto any resolution

on intervention on one hand, and the US, France and UK who desired an intervention, on

the other, stalled any decision by the UNSC to intervene in Yugoslavia. The situation

would have been bereft of a solution if NATO had not decided to use force unilaterally. It

is another matter that NATO's use of force has not changed the situation in Kosovo to a

large extent.

144 Bull, n. 90, pp. 180-95.

84

Unilateral intervention is not without its consequences to world order. Given the power

differential between the Great Powers at an all time high on military terms, the ratio of

which could be US: Russia: China= 10:4:1, the proactive role of the US as the world's

sole super power is obvious. There exists no balancer to US power. The case of US

overriding the UN Security Council in its decision to attack Iraq on 20 March 2003 has

again brought in questions concerning the legality of unilateral decisions to use force to

the forefront of international politics. Michael Ignatieff also points to "traces of imperial

arrogance" that led US to intervene in Somalia, and exit without solving the root of the

problem. 145 So, what is it that can provide a road map and a strong moral influence on

decisions to intervene, especially in the existing circumstances when states are showing

signs of overriding the UN? It is at this juncture that one can tum to the tradition of Just

War to provide a guideline as to when, how and where to intervene for humanitarian

reasons.

1.14. Just War Theory: A Normative Paradigm and Explanatory Model for

Humanitarian Intervention:

Humanitarian interventions reveal a tension between order and justice at its starkest, Just

War principles help reconciles them. The suspicions engulfing unilateral humanitarian

interventions are to a great extent less, if Just War principles are the informing principles

in the policy making level. The criteria of Just War help legitimize an intervention

especially in a world order where the crossing of borders is mostly regarded as a break

from the legal course.

The Just War Theory is not a deterministic moral theory; it allows room for compromise

when and if the situation demands. What it tries to engage upon are "pointers" at an

action, normative parameters within which one can locate an act of war or intervention

and provide it a legal sanctity. The basic thrust of the contemporary policy debate in UN

headquarters as well as capitals around the world has shown a conflicting pattern of

discourse. For some, the international community is not intervening enough; hence,

145 Ignatieff, n. 54, pp. 34.

85

tragedies like Rwanda will be all too likely. For others, it is intervening too much raising

questions about legality, process and the possible misuse of the notion of

"humanitarianism".

Sovereignty is no longer looked at as an absolute rule. In fact, the post cold war has

witnessed a growing awareness of human rights abuse and the legitimate responsibility of

states to do away with such grievances. For some, the new interventions are effective­

heralding a new world order in which human rights trumps state sovereignty, for others, it

ushers in a world in which big powers ride roughshod over small powers, manipulating

the rhetoric of humanitarianism and human rights.

In an address to the 54th sessiOn of the UN General Assembly in September 1999,

Secretary General Kofi Annan reflected upon "the prospects for human security and

intervention in the next century." He recalled the failures of the Security Council to act in

Rwanda and Kosovo, and challenged the member states of the UN to "find common

ground in upholding the principles of the Charter, and acting in defence of our common

humanity." In his millennium report to the General Assembly in 2000, he restated the

dilemma.

"if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how

should we respond to a Rwanda, to a Srebrenica, to gross and systematic violations of

human rights that offend every precept of our common humanity?"

In a dangerous world marked by overwhelming inequalities of power and resources,

sovereignty is for many states their best and sometimes their only line of defence. But

sovereignty is more than just a functional principle of international relations. For many

states and people, it is also recognition of their equal worth and dignity, a protection of

their unique identities and their national freedom. However, when sovereignty is used as

a license to kill, as a barricade behind which states carry out human rights violations, then

the international community has to act.

86

It is in such situations that the Just War principles help provides the ground rules for

interventions especially of the humanitarian nature. 146

1. 14.1. Just War Principles and Humanitarian (military) Intervention

1.14.1.1jus ad bellum: (Recourse to War):

(1) Just Cause:

Military intervention to save human lives is an exceptional and extraordinary measure.

Hence, to be warranted, there must be a just cause which includes,

i) Large scale loss of life: actual or apprehended with genocidal intent, which is the

product of either deliberate state action, or state neglect or inability to act, or a failed state

situation.

ii) Large scale "etlmic cleansing"- actual or apprehended, whether carried out by killing,

forced expulsion, acts of terror or rape.

(2) War is declared by a Competent Authority:

There is no better body than the United Nations Security Council to authorize military

intervention. Regional organisations under Chapter VIII of the UN Charter also have a

duty to protect, but the U.N. Security Council must mandate their action. Michael

Walzer, however, lays down that unilateral intervention is justified when it is a response

to acts "that shock the moral conscience of mankind," and when there is no alternative

available.

(3) Force must be the Last Resort:

Military intervention can only be justified when non military options for the prevention

or peaceful resolution of the crisis has been explored, with reasonable grounds for

believing that lesser measures would not have succeeded. However, "lastness" is a

146 Wheeler, n. 48, pp. 23-24.

87

qualitative term; it demands case specific analysis and one must take into account "the

requirements of existing conditions." 147

(4) Right Intention:

The primary purpose of the intervention, whatever other motives intervening states may

have, must be to halt or avert human suffering.

(5) Proportionality of Ends:

The overall good must outweigh the harm done.

(6) Probability of Success:

There must be reasonable chance of success in halting or averting the suffering, which

has justified the intervention, with the consequences of action not likely to be worse than

the consequences of inaction.

1. 14. 1.2.jus in bello (Conduct in War):

(1) Proportionality of Means:

The means used in war or intervention must not be disproportionate to the end sought.

(2) Discrimination and Non-Combatant Immunity:

The intervening body must discriminate between combatants and non-combatants. In the

21st century, with the "state of the art" technology and precision-guided bombs,

discrimination can be firmly follm;ved.

The Just War Theory can not only explain and justify intervention but also predict the

outcome, by analysing the probability of success taking into account the power

differential between the two conflicting states.

147 Elshtain, n. 13, pp. 1-21, and see David Fisher, "The Ethics of Intervention", Survival (London), vol. 36, no. 1, Spring 1994, pp. 51-59.

88

1. 15. Endings (post bellum):

How should an intervening army decide to leave after an intervention is over? Should the

army aim to stop the killings, destroy the military forces of the oppressor, or work

towards a regime change? Intervention may also lead to occupation for a long time,

which might prove costly for the intervening state. However, trying to straighten a mess

may not be easy for the intervening state. "The people who have always lived there,

wherever, "there is" have to be given a chance to reconstruct their common life." 148

There may arise three occasions when an intervening army needs to stay on.

i) If the killings has been overwhelming and there exist no human and institutional base

for reconstruction - e.g. Cambodia

ii) Ethnic divides may worsen if the intervening army exits. They must stay on to protect,

e.g. Kosovo, Uganda, Rwanda.

iii) The state has collapsed and the warlords are in a position of wrecking havoc in the

country. This would call for a long-term occupation. The requirement here is of

multilateral occupations, which is not controversial, and is unlikely to serve the interests

of any single state. A UN force is the most reliable protector in such conditions. If that is

not the case, then unilateralism can be an alternative. The final solution is of course

"local legitimacy". The intervening forces should aim to establish an authority that fits or

is accommodative to local political culture. This authority must be capable and

committed to govern the devastated country well, and have sufficient political support.

As soon as such an authority has come to power, the intervening force must finally come

out.l49

1. 16. Conclusion:

In order to substantiate the correlationship on the prime hypothesis, "Just War principles,

which reconcile order with justice, inform humanitarian intervention decisions", this

study attempts a causal analysis on the dependent variable i.e. humanitarian intervention.

148 Walzer, n.SO, pp. 34-37. 149 Ibid.

89

Case studies of Indian intervention in East Pakistan and NATO's intervention in Kosovo

are analyzed in order to establish not only the correlation, but the causal relationship

between Just War Theory and humanitarian intervention. The exercise has been

undertaken in order to test the prescriptive strength of the theory with regard to

humanitarian intervention in the real world.

90