Who Should Intervene? The Legitimate Authority Question and the Use of Military Force in Former Yugoslavia (1991-1995)<![if !supportFootnotes]><![endif]>
Dr. Carl CEULEMANS
Royal Military Academy – Brussels
With the end of the Cold War we have seen an increased interest for the issue of interventions (and more in particular for humanitarian interventions) from an ethical point of view. This renewed philosophical attention for the problem of interventions has generated quite a number of publications on this subject. A particular characteristic of this recent literature is its frequent use, be it in an explicit or implicit way, of the principles of the so-called just war tradition in order to assess the moral appropriateness of an intervention. One of these bellum justum criterions determines that only a legitimate authority (‘auctoritas principes’) may decide whether military force can used. The importance of the legitimate authority principle manifests itself especially in an environment where it is not clear who has the competence to start a war. Take for instance the medieval feudal society, during which the phenomenon of private warfare was all too common. Anyone who wanted to study the ethical nature of war in those days could not avoid the problem of war competence.<![if !supportFootnotes]><![endif]> The first bellum justum principle that Thomas Aquinas mentions in his Summa Theologica is that of the legitimate authority. Under the heading of this principle Aquinas specifies that private persons and lower authorities (e.g. a vassal) have no business in starting a war. In order to obtain justice, they can always have recourse to a higher authority.<![if !supportFootnotes]><![endif]> Now this lack of clarity in the intervention context is also present today.
On the one hand the UN Charter clearly indicates that the individual member states nor the regional organizations have the authority to decide on military interventions. Only the UN Security Council can do so. Article 24 paragraph 1 of the UN Charter stipulates unambiguously that the member states have conferred on the Security Council the primary responsibility for the maintenance of international peace and security (with a limited exception for individual and collective self-defense<![if !supportFootnotes]><![endif]>). This means that when an intrastate war generates a threat for the international peace and security it is the Security Council that gets to decide on the appropriateness of a military intervention.<![if !supportFootnotes]><![endif]> Based on Article 53 paragraph 1 of the UN Charter the Security Council can always utilize such regional arrangements or agencies for enforcement action under its authority. “But”, Article 53 paragraph 1 continues, “no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council”.<![if !supportFootnotes]><![endif]> On the other hand however there is also the question whether this strict legal interpretation of the legitimate authority principle can be considered as the most appropriate from an ethical point of view.
The relevance of the legitimate authority question became clear for the first time in the post-Cold War period with the international intervention in the Yugoslav conflict (1991-1995). During this conflict there was not only the Security Council that was actively involved in the peace process in the Balkan region. The European Community (later transformed in the European Union), the NATO, the Organization for Security and Cooperation in Europe (OSCE), the West European Union (WEU), and numerous non-governmental organizations all played in one way or another an active role in the search of a peaceful result. Furthermore, the Yugoslav conflict stimulated a number of unprecedented forms of cooperation, like that between the UN and NATO.<![if !supportFootnotes]><![endif]> In this presentation I will try to formulate an answer for the two following questions:
<![if !supportLists]>1. <![endif]>How is the legitimate authority principle being conceptualized in the post Cold War intervention literature?
<![if !supportLists]>2. <![endif]>How do we have to evaluate the international intervention in the Yugoslav crisis in the light of the results obtained from the literature study on interventions in the post Cold War?
2. The Legitimate Authority Concept in the Intervention Context: a Study of the post Cold War Literature
Who, according to the recent intervention literature, has the right to decide on military interventions? It is possible to distinguish three central approaches to the conception of legitimate authority:
<![if !supportLists]>1. <![endif]>The predicate of legitimate authority is exclusively reserved for multilateral organizations (the UN or a regional organization). Unilateral or multinational interventions defined as interventions decided on autonomously by one single state (unilateral) or by a coalition of states (multinational) are according to this approach simply unacceptable.
<![if !supportLists]>2. <![endif]>The predicate of legitimate authority is preferably, but not exclusively reserved for multilateral organizations. In exceptional cases it must be possible for an individual state or for a coalition of states to decide on a military intervention.
<![if !supportLists]>3. <![endif]>Despite the existence of the UN or regional organizations, the individual state (or a coalition of states) must retain the legitimate authority predicate in the intervention context.
2.1. The Multilateral Organization as an Exclusive Legitimate Authority
In a study on the relevance of the bellum justum principles in the post Cold War period, Brian Wicker leaves little doubt as to who should be considered as the legitimate authority nowadays: “It seems to me pretty clear that today, if there is any fundamental authority at all for the use of force, e.g., to intervene for the sake of humanity, it has to be the UN for the moment the time being the best approximation we have to the conscience of humankind”.<![if !supportFootnotes]><![endif]> This doesn’t mean however that for Wicker all the interventions are to be organized and implemented by the UN. An intervention that is not organized by the UN can also be legitimate as long as it is executed under the authority of the Security Council.
We find a very similar legitimate authority conception in Jarat Chopra’s and Thomas Weiss’s article “Sovereignty is No Longer Sacrosanct: Codifying Humanitarian Intervention”.<![if !supportFootnotes]><![endif]> In this article both authors are very clear on the question of the legitimate authority in the case of humanitarian interventions. Both say that “to circumscribe illegitimate justifications, the United Nations should have sole responsibility for determining the existence of humanitarian crises, in the manner that it has monopoly to “determine the existence of any threat to the peace, breach of the peace, or act of aggression” under Article 39. Furthermore, direction or conduct of humanitarian operations should be only a United Nations activity, ideally through Chapter VII of the Charter”<![if !supportFootnotes]><![endif]> Whereas Wicker’s conclusion is based on the fact that nowadays the UN can be considered as the best approximation to the conscience of humankind, Chopra’s and Weiss’s argumentation is somewhat different in nature. For them the distrust towards unilateral interventions plays a central role in favoring the Security Council as the legitimate authority.
The authors we talked about thus far attributed the exclusive legitimate authority predicate to the UN (other international actors could take part in the execution of the intervention, but always under the authority of the UN). Robert Johanson and Robert Phillips are somewhat less strict. Johanson indicates for instance that “…any intervening agency should have widespread legitimacy and possess a limited but real autonomy from separate states in decision-making and action”.<![if !supportFootnotes]><![endif]> For Johanson this description does not only include the UN but also regional organizations like the OAS and the OAU. Unilateral interventions however are to be excluded for reasons of partiality. If an intervening agent is to be legitimate its decision making process concerning the intervention has to have at least the impression of being free from particular national interests. Indeed, Johanson argues that “decisions should emphasize equity and reciprocity whenever multilateral interventions are undertaken because these enhance the expectation of legitimate behavior and nurture an international culture of compliance, making the use of military force less likely over the long run”.<![if !supportFootnotes]><![endif]> Robert Phillips uses a very similar argument. He also feels that the UN as a universal organization should possess the primary mandate to represent the international community in the domain of international peace and security.<![if !supportFootnotes]><![endif]> This does not however exclude regional organizations from taking decisions on matters of intervention. Phillips is especially convinced that these organizations are more suited for taking action in the region because they are more familiar with the regional sensitivities. This regional autonomy is not unconditional however. In order to guarantee the impartiality of the operation as much as possible, any regional intervention has to be preceded by consultations with the Security Council. Indeed, Phillips adds, just as an individual cannot be a good judge in his own case, so can an individual state or even a regional organization not be considered as wholly impartial in a conflict in which it is concerned in one way or another.<![if !supportFootnotes]><![endif]>
The least one can say is that this first legitimate authority approach is closely linked with the stipulations of the UN Charter. The only difference is that the former might be considered as slightly broader than the latter. This has to do with the fact that this first legitimate authority approach attributes a right to intervene autonomously to regional organizations. One has to be aware however that the authors who believe that the UN has to have the exclusive legitimate authority predicate, are not necessarily convinced that the UN is also a perfect guarantor of the international peace and security. Catherine Guicherd for instance, who supports the thesis of the UN being the sole legitimate organ<![if !supportFootnotes]><![endif]>, nevertheless stresses the fact that the UN is confronted with two fundamental weaknesses that undermine its legitimacy. Not only is the UN characterized by a lack of representativity (“is the UN anything other than the disguised concert of the great powers, such that it is the five permanent members who in the end make the decisions?”), it also suffers from a serious ineffectivity.<![if !supportFootnotes]><![endif]>
2.2. The Multilateral Organization as a Primary Legitimate Authority
The defenders of the second legitimate authority approach adhere to the position that the UN (or a regional organization) has to be considered as the primary but not the exclusive legitimate authority. In exceptional circumstances a state or a coalition of states has to have the right to decide autonomously on the appropriateness of a military intervention. The next obvious question is of course: what are “exceptional circumstances”? In what kind of circumstances is it permissible for an individual state or a coalition of states to take intervention initiatives?
In his article “The Politics and Ethics of Military Intervention” Stanley Hoffmann distinguishes three cases for unilateral intervention.<![if !supportFootnotes]><![endif]> A first case of unilateral intervention is that in which the UN (or a regional organization) is incapable of finding a solution for the crisis at hand due to an internal paralysis of the political decision making process, or by the mere fact that the actions taken have not resulted in what was aimed for.<![if !supportFootnotes]><![endif]> Hoffmann adds two conditions to this first case of unilateral intervention. The first is that of proportionality: an intervention shouldn’t cause more damage than in the case that there would be no intervention. Furthermore the intervening state or coalition has the duty to explain its intervention and to rapport to the UN or the relevant regional organization in order to obtain multilateral support. A second case is that of protecting the right of self-determination of a political community. According to Hoffmann a unilateral intervention is justified when an intervening state comes to the rescue of a democratic government that fights a foreign supported revolt, or acts in a preventive way against a similar movement that wants to impose its will on a resisting population.<![if !supportFootnotes]><![endif]> Again Hoffmann adds a condition to rapport to a multilateral level. The third case is according to Hoffmann “the trickiest”. Here we are concerned with what he calls “dangerous states, whose policies could threaten the peace and security of an area or the world”.<![if !supportFootnotes]><![endif]> Although Hoffmann favors an a priori multilateral authorization, he argues that an individual state must, under strict conditions, have the right to intervene in a dangerous state in order to neutralize the threat it presents for the international community (e.g. to destroy the mass destruction potential of such a state). One of these conditions is that the intervening state must prove that the danger a given state presents is “a clear, specific and present one, resulting not only from the nature of the dangerous state’s regime and from the explosive character of the region but also from evidence about its programmes and activities;…”.<![if !supportFootnotes]><![endif]> Another condition is that all non-military measures must have been tried first (last resort principle).
Hoffmann’s three exceptions on the rule of multilateral intervention are problematic for more than one reason. The first case for instance presents a danger insofar that the members of the Security Council, by using their veto, can create for themselves or others the proper conditions for a unilateral intervention. Both other exceptions are problematic for another reason. Why is it that in the case of protecting the right of self-determination of a political community or neutralizing the threat of a dangerous state one may deviate from the rule of multilateral intervention? Is it because in these two cases the risk of abuse by individual states (the main reason for excluding unilateral interventions) has to be assessed as substantially lower? One could argue that the threat these two cases present for the international peace and security is such that one simply cannot wait for a multilateral decision. But this argument doesn’t hold either. Even if we accept the above premise we have to conclude that the actual reason for justifying a unilateral intervention is not the one Hoffmann provides. Indeed, by saying that in those two cases one simply cannot wait for the international community to decide, the actual ground for the unilateral intervention is not so much the protection of a democratic regime or the neutralization of a dangerous state, but simply the impotence of the UN (or any other international organ) to take swift and adequate action. In this respect it is not unreasonable to consider Hoffmann’s second and third case as examples of his first exception (impotence of the UN or a regional organization), and not as separate cases of unilateral intervention.<![if !supportFootnotes]><![endif]>
2.3. The Individual State as the Legitimate Authority
The defenders of the second approach argued that the individual state (or a coalition of states) could only be a legitimate authority in exceptional circumstances. In a third approach the role of the state is much more prominent. Here it is said that that the right to decide on the appropriateness of a military intervention has to remain with the state. For a number of authors this position is so self-evident that they pay little or no attention to the legitimate authority aspect when they discuss the ethical quality of military interventions. In his article “The Ethics of Intervention” David Fisher explores whether the traditional bellum justum principles can be used as an ethical framework for studying military interventions.<![if !supportFootnotes]><![endif]> Fisher opens his inquiry by considering the legitimate authority principle. In this respect he states the following “The first requirement – that war should be declared by a competent authority – is usually interpreted within the tradition to mean by a government of a state”.<![if !supportFootnotes]><![endif]> Those who expected that Fisher would proceed by discussing the relevance of the traditional interpretation of the legitimate authority in the intervention context will be somewhat disappointed. All in all Fisher is rather brief on this subject by simply saying that “this condition would appear readily applicable to military intervention since we are concerned with the interventions of one state in the affairs of another”.<![if !supportFootnotes]><![endif]> Another author, who doesn’t question the use of the traditional legitimate authority criterion in the intervention context either, is Gordon Graham. Just like Fisher, Graham tries to establish an ethical framework based on the just war principles for the study of military interventions. In this respect Graham reformulates the legitimate authority principle as follows: “armed intervention must be undertaken and waged exclusively by the leaders of the state”.<![if !supportFootnotes]><![endif]> At no time however Graham seems to doubt the legitimacy of the state as the exclusive authority when it comes to deciding on questions of intervention.
Other authors, who also defend the individual state as the legitimate authority, don’t take this position for granted. They are well aware that nowadays there are strong legal and ethical considerations to favor an international organization like the UN as the legitimate authority. The awareness of these legal and ethical arguments necessitates them to explain and justify their position in an explicit way. This is what James Turner Johnson tries to do when he refers to the legitimate authority concept in tradition of Christian thinking.<![if !supportFootnotes]><![endif]> In this tradition the legitimate authority is characterized as a sovereign authority (in the early days this was the prince who wasn’t accountable to a higher secular authority, now it is the sovereign state). Now anyone, who is familiar with this specific way of thinking, Johnson continues, will notice that putting constraints on such a sovereign body is not all that obvious. The responsibilities that are linked with being a sovereign cannot be transferred that easily to a higher non-sovereign international authority. In order to argue why this is the case, Johnson appeals to Paul Ramsey’s “The Ethics of Intervention”.<![if !supportFootnotes]><![endif]> In this article, that was published in the sixties during the Vietnam war, the theologian Ramsey takes the following position concerning the right of intervention belonging to the individual states: “…the right and duty of intervention to deal with breaches of peace and threats to a just peace can be withdrawn from the nation-state only by an actual reordering of the structures of world politics by which the power and responsibility is transferred to higher political authority”.<![if !supportFootnotes]><![endif]> Or to put it differently, as long as there in no higher international organization (global or regional) that doesn’t possess the real power to intervene in an effective way, the individual states have to remain the legitimate authority in the intervention context.<![if !supportFootnotes]><![endif]> Now although Johnson doesn’t put it in so many words, it is clear that for him there is no such international organization for the moment.
Michael Walzer develops a very similar argument in his article “Politics of Rescue”.<![if !supportFootnotes]><![endif]> Walzer isn’t a priori opposed to multilateral interventions as such. What he questions is the seemingly unconditional faith in the UN as the sole legitimate authority in the post-Cold War era. According to Walzer this faith in the multilateral decision making process has its origin in a Rousseau-like general will argument. Just as in a democratic decision making process where the individual particular interests cancel out one another so the general will remains, so will the particular interests of the individual states neutralize each other so that in the end the general will of the international community emerges.<![if !supportFootnotes]><![endif]> This kind of reasoning may sound very appealing in theory, Walzer says, in practice however the result is rather disappointing. Instead of a “purification” of the collective decision making process, chances are that there will be no outcome at all, “…for its result is very likely to be stalemate and inaction, which cannot always be the general will of international society”.<![if !supportFootnotes]><![endif]> And even if the multilateral decision making process reaches a result, Walzer adds, then there is little or no guarantee that the result will not be influenced by a set of particular interests. It is possible for instance that within an international organization, a coalition of states joined by common interests will have its way. In short “multilateralism is no guarantee of anything”.<![if !supportFootnotes]><![endif]> So for Walzer there is only one conclusion: as long as there is no international body that is willing and able to intervene, the individual right of states to intervene should not be taken away. The position Walzer defends in this article is not really new. In his “Just and Unjust Wars”, Walzer argues that any state with the capacity to put a stop to a humanitarian crisis, should at least have the right to do so.<![if !supportFootnotes]><![endif]>
At first sight one might remark that Walzer’s and Ramsey’s argumentation on the one hand, and Hoffmann’s first exception on the other hand, aren’t all that different. In both positions the justification of the individual right to intervene is based on the impotence on the multilateral level. It would be a mistake however to consider both these positions as identical. For Hoffmann the primary decision level is that of the multilateral organization. Only when it has become clear that a multilateral decision on an intervention is not possible, then the individual state acquires the right to intervene autonomously. This is not the case in Ramsey’s argument. Here the individual state is the primary level of decision. Only when an international authority with real power is created, can the primary right to intervene be withdrawn from the individual state.<![if !supportFootnotes]><![endif]>
Furthermore Ramsey and Walzer do not only talk about a right to intervene, they also mention a duty to do so. The central question for Walzer in the legitimate authority debate in the post-Cold War era is not so much “who should have the right to intervene?”, but rather “who should take the initiative to intervene?”.<![if !supportFootnotes]><![endif]> The introduction of the duty to intervene creates an additional moral dimension. Such an obligation makes it a lot less obvious for an individual state to pass on the decision to intervene to a higher multilateral level. If a state is aware of the fact that a multilateral body does not have the will or/and the capacity to act, then the position of strict multilateralism becomes suspect. Indeed, insisting in such a scenario that every intervention decision should be taken in a multilateral framework, appears to be some kind of clever ploy to get rid of a number of moral obligations, one doesn’t have the intention of keeping.
Whereas the authors of the first legitimate authority approach were strictly opposed to unilateral interventions, authors like Walzer and Ramsey are convinced that individual states have to keep their fundamental responsibilities in the domain of international peace, security and justice. Compared to the two former approaches this third position deviates without any doubt the most for the UN Charter stipulations.
3. A Legitimate Authority Analysis of the International Intervention in the Yugoslav Conflict
Now we know what the main approaches of the legitimate authority concept are, it is our objective to assess the legitimate authority quality of the international intervention in the Yugoslav conflict, based on these three perspectives. The first legitimate authority approach stated firmly that only multilateral organizations (and more in particular the UN) could be considered as a legitimate authority. When we look at the international intervention in the Yugoslav crisis, and more specifically at the international modus operandi concerning the use of military force, we have to assess its legitimacy quality as very high. It was the Security Council that created some five grounds for the use of force in the framework of the Yugoslav conflict, and conferred to the member states (“acting nationally or through regional arrangements”) the right to make use of these grounds.<![if !supportFootnotes]><![endif]> At no time during the conflict was the Security Council’s authority to decide on the matter of the use of force questioned. Within the framework of the UN-NATO cooperation this acknowledgement of the Security Council as the legitimate authority was expressed in a response of the NATO Secretary General Wörner to the question of his UN colleague Boutros-Ghali to provide support for the implementation of the Security Council Resolutions concerning the Yugoslav conflict. In this respect Wörner replied the following (on December 17, 1992): “We confirm the preparedness of our Alliance to support, on a case-by-case basis and in accordance with our own procedures, peace-keeping operations under the authority of the UN Security Council, which has the primary responsibility for international peace and security”.<![if !supportFootnotes]><![endif]> This international acknowledgement wasn’t limited to this NATO statement. During the operations on the ground, NATO and the WEU kept repeating that the sole objective of their military actions was to contribute to the implementation of the Security Council Resolutions.
This didn’t mean however that the regional organizations concerned were reduced to mere military instruments of the UN. During the conflict NATO developed, be it always in the UN framework, a number of its own initiatives. The North Atlantic Council (NAC) decided on August 2, 1993 for instance “to make immediate preparations for undertaking, in the event that the strangulation of Sarajevo and other areas continues, including wide-scale interference with humanitarian assistance, stronger measures including air strikes against those responsible, Bosnian Serbs and others, in Bosnia-Herzegovina”.<![if !supportFootnotes]><![endif]> By threatening air strikes NATO enlarged the interpretation of SC Resolution 836 (June 4, 1993). This key resolution of the safe area policy only permitted Close Air Support operations. Furthermore NATO formulated within the framework of this same resolution a number of ultimata against the Bosnian Serbs (Sarajevo in February 1994, and Gorazde in April 1994).
What with the second legitimate authority approach? According to this approach the multilateral organization is no longer an exclusive, but a primary legitimate authority. Only in exceptional circumstances the individual state has the right (or even the duty) to intervene on its own. Now given the fact that during the Yugoslav conflict the problem of the appropriateness of a unilateral intervention was at no time an issue (as we already said the whole of military activities took place within the UN framework), we may safely conclude that legitimacy quality of the international force mode was again very high.
Before continuing with legitimate authority assessment of the third approach, we will pause here in order to consider the legal aspect of the UN-NATO cooperation a bit more in detail. Based on the results of the two previous approaches, it is safe to say that there was no legitimacy conflict between the Security Council and NATO during the Yugoslav conflict (on the contrary). For a number of authors however this cooperation was not without problems from a legal point of view. For Ige Dekker and Eric Meyjer, two Dutch jurists, the UN-NATO cooperation was not well-founded legally, for the simple reason that NATO acted in the Yugoslav war as a regional organization without possessing the proper legal status to do so.<![if !supportFootnotes]><![endif]> When NATO was founded in 1949 the governments of the US, the UK and the Netherlands made it clear that NATO had to be considered solely as a collective security organization in the sense of Article 51, and not also as a regional agreement as mentioned in the Charter’s Chapter VIII. NATO’s attitude changed somewhat in the beginning of the nineties, when it tried to adjust itself to the new international security situation. One of the consequences was that NATO began acting more and more like a regional organization (as it did in the Yugoslav conflict) without adapting its constitution accordingly. For Dekker and Meyjer this development had serious implications for the UN-NATO cooperation. Because of NATO’s failure to include its “new” regional organization character in its constitution, NATO formally escaped the stipulations mentioned in Article 53 paragraph 1 of the UN Charter (e.g. the duty to inform the Security Council). According to Dekker and Meyjer this legal flaw could very well jeopardize the primary role of the Security Council in the domain of international peace and security, once the Council has authorized NATO to use force. In that respect both Dutch jurists claim that there is only one conclusion possible: “As long as NATO doesn’t draw the consequences from its new role as a regional organization - … - it cannot be considered from a legal point of view as the proper instrument for the UN and the NATO member states to use military force as was planned in Bosnia”.<![if !supportFootnotes]><![endif]>
When we want to assess the legitimate authority quality of the international intervention in Yugoslavia from the third perspective, we have to ask ourselves whether the individual member states were justified in transferring the authority to decide on the matters of the use of force to the UN. According to Paul Ramsey this can only be done in the case the UN, as a higher authority, has sufficient military capacity to intervene adequately. Now although the UN doesn’t have an armed force of its own, we may not conclude from this that it were the individual states who had the right (or even the duty) to intervene in unilateral way. During the conflict the UN could call upon organizations with a sufficient military potential, like the WEU or NATO, to contribute to the implementation of the SC Resolutions. From a legal point of view this form of subcontracting is perfectly legitimate (cf. Article 53 of the UN Charter). The only condition (which was satisfied in our case) is that these organizations have to operate under the authority of the UN.
This didn’t alter the fact however that during the Yugoslav conflict the UN, as Thomas Weiss put it, was considered more than once by the individual states as some kind of forum “to appear to be doing something without really doing anything substantial to thwart aggression, genocide, and the forced movement of peoples”.<![if !supportFootnotes]><![endif]> It should be quit clear that the existence of the UN doesn’t absolve the member states, and more in particular the superpowers, from their responsibilities in the domain of international peace and security. James Gow refers in this respect to the US responsibility in the Yugoslav conflict. Gow is convinced that if the US had shown a similar political and military determination during the period of the Vance Owen plan (May 1993), as it did during the period of the Dayton agreement, the war might have come to an end much sooner.<![if !supportFootnotes]><![endif]>
In this chapter we tried to verify whether the international community had satisfied the legitimate authority principle. We proceeded in two steps. First we studied the post-Cold War literature on the ethical appropriateness of military interventions in order to establish how the legitimate authority is conceptualized. We distinguished three main approaches.
From the three approaches, the first was no doubt the closest to the UN Charter stipulations. In addition to the Security Council this first approach also allowed for the regional organizations (under certain conditions) to decide autonomously on the matters of intervention. The second approach accepted unilateral interventions in exceptional circumstances, for instance, when it became abundantly clear that the UN (or another multilateral organization) was not able to take appropriate measures in a given crisis situation. According to the third approach the individual state had to remain the legitimate authority. As long as there is no higher (global or regional) authority with the real power to make a difference, the individual states should not pass on their right (and even duty) to intervene to that higher level (cf. Ramsey and Walzer).
In the second part of the presentation we used the three approaches to assess the legitimate authority quality of the international intervention in the Yugoslav war. The assessment from the first and the second approach was quit positive. This had to do with the fact that it was the Security Council that created the global framework for the use of force. The regional organizations, like NATO and the WEU, operated within that framework. The result from the third approach was not so clear-cut. On the one hand one could claim that the authority transfer to the UN level was legitimate because the UN could, for the implementation of the SC Resolutions, call upon organizations with a sufficient military capacity. On the other hand however one could remark that states, and superpowers in particular, had a tendency to (ab)use the UN as some sort of alibi for their political and military inaction.
When we look at the results of the legitimate authority analyses, it is striking that these are remarkably positive. This is no coincidence. The main objective of the legitimate authority principle is to limit as much as possible the number of authorities that have the right to use force. The basic premise here is that there are several candidates to use force, and that the legitimate authority analysis has to point out the one that may do so in a legitimate way. This logic is clearly present in the two first approaches. They both indicate that from all the international actors only one (or a very limited few) can be accepted as a legitimate authority. In the third approach this logic is still present, but much less outspoken. It is still claimed here that there should be a limitation on those who want to decide on the use of force, but at the same time the proponents of this approach make it clear that this basic premise of the legitimate authority analysis is no longer self-evident in the post-Cold War era. In this respect Michael Walzer for instance points out that the most problematic moral question today is not necessarily the most asked one: “Who will, who should, do the “standing” and pay the price of the possible but often invisible victories? This is no doubt the hardest question, but it isn’t, curiously, the one that has attracted the most attention. The public debate has had a different focus – as if there were (as perhaps there once were) a large number of states eager to intervene”.<![if !supportFootnotes]><![endif]> The problem thus no longer seems to be who of the many candidates has the right to intervene, but rather who, in the given circumstances, should assume his responsibility. This new development revealed itself in our analysis in two ways. First there was a total absence of “moral tension” in the approaches where the traditional legitimate authority logic was the central element. Indeed, as was shown in the analysis form the first two approaches, at no time was the legitimacy of the UN questioned. This “moral tension” reappeared somewhat in the third approach with the question whether the individual states weren’t too prone to pass on their responsibilities in the domain of international peace and security to the UN level.
<![if !supportFootnotes]><![endif]> An altered version in Dutch of this presentation has been published in a Belgian Journal: Res Publica. Belgian Journal of Political Science, Vol. XLIII, (2001/1), pp. 193-208.
<![if !supportFootnotes]><![endif]> Anthony Coates puts this as follows: “In the interest of peace the just war tradition sought to limit the recourse to war and to curb an easy resort to violence. One way of doing this was by upholding the ‘public’ character of war and by outlawing ‘private’ war. The widespread occurrence of private war was an urgent problem when the tradition was still in its infancy, in a medieval Europe where power was fragmented and where, under the influence of a Germanic and militaristic culture, combat was glorified and the resort to arms encouraged”. See Anthony Coates, The Ethics of War. Manchester/New York, Manchester University Press, 1997, p. 125.
<![if !supportFootnotes]><![endif]> Thomas Aquinas, Somme Théologique, Part 3 (II-II), Q 40, Paris, CERF, 1985, p. 280.
<![if !supportFootnotes]><![endif]> Article 51 of the UN Charter stipulates the following: “Nothing in the present 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.”
<![if !supportFootnotes]><![endif]> Even though Article 2 paragraph 7 of the UN Charter clearly indicates that “nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state” that same paragraph explicitly indicates that “this (non-intervention) principle shall not prejudice the application of enforcement measures under Chapter VII”. This means that from an international legal point of view an international intervention cannot be excluded. What can also not be excluded is the fact that such an intervention can be done by military means. Not only has the Security Council, based on Article 39 of the Charter, the authority to determine whether there is any threat to the peace, breach of the peace, or act of aggression, based on Article 42 of the Charter, it also has the authority to decide on the use of military force in case the international peace and security is breached or threatened.
<![if !supportFootnotes]><![endif]> Both in his “An Agenda for Peace” as in the supplement to this document, Boutros-Ghali stresses the fact that regional organizations can play a very useful role in the domain of international peace and security. The Security Council retains however the primary responsibility for the maintenance of international peace and security. Regional organizations can not only alleviate the burdens of the Security Council, its actions can also contribute to a stronger regional sense of participation in international affairs. See Boutros Boutros-Ghali, An Agenda for Peace. Preventive Diplomacy, Peacemaking and Peace-keeping. (A/47/277-S/24111), New York, United Nations, 1992, §63-64 and Boutros Boutros-Ghali, Supplement to An Agenda for Peace. Position Paper of the Secretary-General on the Occasion of the Fiftieth Anniversary of the United Nations. (S/1995/1-A/50/60), New York, United Nations, 1995, § 88.
<![if !supportFootnotes]><![endif]> For more information on the cooperation between NATO and the UN during the Yugoslav crisis, see Dick Leurdijk, The United Nations and NATO in Former Yugoslavia, 1991-1996. Limits to Diplomacy and Force. The Hague, Netherlands Atlantic Commission, 1996, 152 p.
<![if !supportFootnotes]><![endif]> Brian Wicker, “After Kuwait the Deluge”, Brian WICKER (ed.), Studying War – No More? From Just War to Just Peace. Kampen, Kok Pharos Publishing House, 1993, p. 186. This is also more or less the position defended by Michael Barnett: “The UN is the only organization that approximates universality and is invested by states as having some degree of moral authority. Most simply, it has this legitimacy and authority by virtue of the fact that member states invest legitimacy in it”. See Michael Barnett, “Bringing in the New World Order. Liberalism, Legitimacy, and the United Nations”, World Politics, 49, (July 1997), p. 541
<![if !supportFootnotes]><![endif]> Jarat Chopra and Thomas Weiss, “Sovereignty Is No Longer Sacrosanct. Codifying Humanitarian Intervention”, Ethics & International Affairs, 6, (1992), pp. 95-117.
<![if !supportFootnotes]><![endif]> Ibid., p. 114.
<![if !supportFootnotes]><![endif]> Robert Johanson, “Limits and Opportunities in Humanitarian Intervention”, Stanley Hoffmann, The Ethics and Politics of Humanitarian Intervention. Notre Dame / Indiana, University of Notre Dame Press, 1996, p. 72.
<![if !supportFootnotes]><![endif]> Ibid., p. 73.
<![if !supportFootnotes]><![endif]> Robert Phillips and Duane Cady, Humanitarian Intervention. Just War vs. Pacifism. Lanham, Rowman & Littlefield Publishers, 1996, pp. 19-20.
<![if !supportFootnotes]><![endif]>Ibid.,. p. 20.
<![if !supportFootnotes]><![endif]> Catherine Guicherd, “Regional Collective Security”, Brian Wicker & Fred van Iersel (eds.), Humanitarian Intervention and the Pursuit of Justice. A Pax Christi Contribution to a Contemporary Debate, p. 97. In a later study Guicherd takes a more moderate position by saying that in exceptional circumstances states do have the right to intervene militarily. See Catherine Guicherd, “International Law and the War in Kosovo”, Survival, 41, 2, (Summer 1999), pp. 19-34.
<![if !supportFootnotes]><![endif]> Guicherd indicates in this respect that there seems to be some kind of contradiction between the condition of representativity and that of effectivity. Frederic Bozo formulates this “legitimacy-effectivity”-contradiction as follows: “the legitimacy of a collective security action … grows proportionally to the number and the representativeness of the states involved. Contrariwise, its effectiveness depends upon a coalition which is as organised, workable and therefore as restricted as possible, controlled by those states which are both willing and able to act”. Frederic Bozo cited in Catherine Guicherd, “Regional Collective Security”, p. 97.
<![if !supportFootnotes]><![endif]> In fact Hoffmann mentions in his article four and not three cases. I left out the first case however because it doesn’t talk about a unilateral intervention the way I conceive it. Indeed, in this first case Hoffmann refers to these unilateral interventions as those that “are authorised by the UN or by a regional organisation operating at the request or with the consent of the UN…”. The fact that Hoffmann talks in this specific case about interventions that are authorized by the UN or a relevant regional organization makes them in my view multilateral and not unilateral interventions. See Stanley Hoffmann, “The Politics and Ethics of Military Intervention”, Survival, 37, 4, (Winter 1995-1996), p. 39.
<![if !supportFootnotes]><![endif]> Ibid., p. 39.
<![if !supportFootnotes]><![endif]> Ibid., p.40. Hoffmann’s second case is very similar to Michael Walzer’s second condition for a legitimate intervention: “when the boundaries have already been crossed by the armies of a foreign power, even if the crossing has been called for by one of the parties in a civil war, that is, when what is at issue is counterintervention…”. See Michael Walzer, Just and Unjust Wars. A Moral Argument with Historical Illustrations. New York, Basic Books, 1992, p. 90.
<![if !supportFootnotes]><![endif]> Stanley Hoffmann, “The Politics and Ethics of Military Intervention”, p.40.
<![if !supportFootnotes]><![endif]> Ibid., p.40.
<![if !supportFootnotes]><![endif]> This is clearly shown by what Hoffmann says in his third case: “Nuclear proliferation and the proliferation of means of mass destruction undoubtedly constitute a ‘threat to the international system as such’ ; as a result, as Bryan Hehir has pointed out, states with the capacity to destroy the nuclear installations or the plants that produce other weapons of mass destruction in such states could be tempted to assert their power to intervene unilaterally. Hehir insists that in these cases ‘the desired norm should be multilateral authorisation prior to any military action’. This is desirable in principle. But one can imagine cases in which the UN or the relevant regional grouping has failed to deal with the issue,…”. Ibid., p.40. From the italic part of the quote one can clearly deduce that it is the impotence of the international organizations “to deal with the issue” that constitutes the most important factor in considering a unilateral intervention.
<![if !supportFootnotes]><![endif]> David Fisher, “The Ethics of Intervention”, Survival, 36, (Spring 1994), pp. 51-59.
<![if !supportFootnotes]><![endif]> Ibid., p. 53.
<![if !supportFootnotes]><![endif]> Ibid., p. 53.
<![if !supportFootnotes]><![endif]> Gordon Graham, Ethics and International Relations. Oxford, Blackwell Publishers, 1997, p. 108.
<![if !supportFootnotes]><![endif]> James Turner Johnson, “Humanitarian Intervention, Christian Ethical Reasoning, and the Just-War Idea”, Luis Lugo (ed.), Sovereignty at the Crossroads? Morality and International Politics in the Post-Cold War Era. Lanham, Rowman & Littlefield Publishers, 1996, pp. 127-143
<![if !supportFootnotes]><![endif]> This text was first published in The Review of Politics, 27, 3, (July 1965), pp. 287-310. Later on this article was included as a chapter in Paul Ramsey’s The Just War. Force and Political Responsibility (1968).
<![if !supportFootnotes]><![endif]> Paul Ramsey, The Just War. Force and Political Responsibility. Littlefield, Adams Quality Paperbacks, 1992, p. 25.
<![if !supportFootnotes]><![endif]> Ramsey makes the following comparison when he talk about the right of intervention of the state on the on hand and that of an international organization on the other hand: “these two things are the opposite ends of the same seesaw: one end (the right and the duty to use force to impel another power to do or to forbear) cannot go down faster than the public authority and enforcement of a world or regional political community (the other end) goes up”. Ibid., p.25.
<![if !supportFootnotes]><![endif]> Michael Walzer, “Politics of Rescue”, Social Research. An International Quarterly of Social Sciences, 62, 1, (1995), pp.53-66.
<![if !supportFootnotes]><![endif]> Ibid., pp. 62-63.
<![if !supportFootnotes]><![endif]> Ibid., p. 63.
<![if !supportFootnotes]><![endif]> Ibid., p. 63.
<![if !supportFootnotes]><![endif]> Michael Walzer, Just and Unjust Wars. A Moral Argument with Historical Illustrations., p. 108
<![if !supportFootnotes]><![endif]> Paul Ramsey, The Just War. Force and Political Responsibility., p. 25.
<![if !supportFootnotes]><![endif]> Walzer formulates this as follows: “Who will, who should, do the “standing” and pay the price of the possible but often invisible victories? This is no doubt the hardest question, but it isn’t, curiously, the one that has attracted the most attention. The public debate has had a different focus – as if there were (as perhaps there once were) a large number of states eager to intervene”. Michael Walzer, “Politics of Rescue”, p. 62.
<![if !supportFootnotes]><![endif]> These five grounds were (1) to ensure the security of UNPROFOR and its freedom of movement, (2) to ensure the security of the personnel of the humanitarian organizations, (3) to protect humanitarian convoys, (4) to ensure compliance with the ban of flights in the airspace of Bosnia, and (5) the ensure the compliance with the embargo on weapons and with the economic sanctions.
<![if !supportFootnotes]><![endif]> Dick Leurdijk, The United Nations and NATO in Former Yugoslavia, 1991-1996. Limits to Diplomacy and Force. The Hague, Netherlands Atlantic Commission, 1996, pp. 17-18.
<![if !supportFootnotes]><![endif]> Ibid., p. 38.
<![if !supportFootnotes]><![endif]> Ige Dekker en Eric Meyjer, “Het NAVO-optreden in Bosnië. Een juridische analyse van de NAVO als instrument van de VN-Veiligheidsraad” (“The NATO Intervention in Bosnia. A Legal Analysis of NATO as an Instrument of the UN Security Council”). Transaktie. Tijdschrift over Wetenschap van Oorlog en Vrede (Journal for the Science of War and Peace), 24, 4, (1995), pp. 487-508.
<![if !supportFootnotes]><![endif]> Ibid., p. 503 (English translation of the quote from Dutch was done by the author).
<![if !supportFootnotes]><![endif]> Thomas Weiss, “UN Responses in the Former Yugoslavia. Moral and Operational Choices,” Ethics & International Affairs, 8, (1994), p. 20.
<![if !supportFootnotes]><![endif]> James Gow, Triumph of the Lack of Will. International Diplomacy and the Yugoslav War. London, Hurst & Company, 1997, p .1.
<![if !supportFootnotes]><![endif]> Michael Walzer, “Politics of Rescue”, p. 62.