JUSTIFICATION OF ILLEGAL ACTION OR UNETHICAL INACTION:
A Conceptual Comparison of National and International Law
Gordon Campbell
 
Dr. Gordon L. Campbell argues that interventions in the internal affairs of a sovereign nation, actions clearly prohibited by Article 2 (7) of the UN Charter, can perhaps be legally justified under other international agreements, such as The Genocide Convention and the Universal Declaration of Human Rights. He claims that the components of these agreements should provide the basis for a new, formal, binding international agreement which he calls the Declaration of Civilized Nations. According to his proposal, only nations that are constitutional democracies will be eligible to become signatories of this Declaration and these nations will be charged with the responsibility of protecting all individual rights guaranteed under international agreements. Furthermore, nations that violate these rights will be subject to military retribution carried out by the signatories to this new international Declaration. Under Professor Campbell's "ideal" international order, freedom from attack will not be a right, but a liberty that nations eam by adhering to human rights principles, and the only waming required prior to military intervention will be the eidstence of the Declaration itself.

 

Todayís international arena is rife with violent military and quasi-military actions. Tremendous carnage embodying both indiscriminate and discriminate slaughter and degradation of millions of innocent people has occurred. Public opinion varies relative to a suitable response from our government. Some people believe we have a moral obligation to intervene, and condemn our political leadershipís lack of resolute action as unconscionable. Others cite our moral and legal obligations to other nation-states as justification for delays necessary for the coalition and consensus building required before any possible action can take place. While still others, hold such matters are not in our "national interest" as justification for inaction. This paper attempts to examine the legal and ethical basis of these issues and explores the implications of a civilized nationís "right" to unilateral military intervention.

 

National Law

It is generally assumed in a nation-state governed through a freely elected, representative democracy, laws enacted and enforced are done so for the benefit of its society: i.e. promoting its general welfare. People of that society, who breach said laws, risk punishment by the government. If apprehended, they are tried, and if found guilty, may be punished. In our system of government, the Legislative, Executive, and Judicial branches work together in this function. However, it is recognized that the general law may not always be appropriate in specific situations. The defense of general justification, in criminal law, allows people, at their peril, to break laws in these instances. It is then up to the enforcement or judicial function to determine whether the perpetrator(s) is (are) to be held liable for the breach of law and punished.

 

General Justification Defense

The General Justification Defense is embodied in Model Penal Code, Section 3.02. It provides the following:

 

(1) Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that: (a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and

(b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and

(c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear.1

 

The Legislature, may then in turn, rewrite the law to allow for specific exceptions or narrow the scope of the general law to achieve the same end. Of course, if it disagrees with the enforcement/judicial interpretation of non liability, it can expand the law so as to specifically disallow such an exception.

The principle of justification should be viewed, therefore, not as an encouragement to some other body to second-guess judgments made by the legislature, but rather to provide opportunities for supplementary, particularistic judgments that are beyond legislative capacity.2

It would appear, at least from this brief and cursory view, that national law in a democratic society is altruistic in nature and that the very existence of the General Justification Defense denotes a consequentialist bias in terms of liability and punishment.

 

International Law

Historically, international law, by comparison, was, and many would argue still is, created by nation-states for the benefit of themselves vis-à-vis other nation-states. Thus, there has been no true altruism at the international law level, i.e. a "world society" did not exist to be the recipient of benefit. It was every nation for itself, promoting itself. Psychological egoism was the norm. "No nation has friends-only interests"3 as the formulary credo for international law. International altruism is a facade, international beneficence a fiction--all such actions are an investment. International "kindness" is extended only when it is determined to be in the extending nations "interest".

...state selfishness is the hallmark of the international system. "National interest" is commonly seen as the sole motivation of states, and is exalted as a virtue. To this day, even international generosity such as foreign aid must be justified as being in the national interest. Occasional reference in recent years to inter-state justice or morality imposing obligations on "have-states" to assist "have-not states", is only rhetoric, and has had no significant normative implications. Selfishness--the national interest--must sometimes bow to competing national interests but is not subordinated to the common good. There is little Gesellschaft and even less Gemeinschaft in the international system. There is little sympathy for notions of inter-state "utilitarianism"--the greatest good of the greatest number, the maximum of happiness for mankind (or even for the greatest number of states). There is no commitment to "democracy", to the will (and the betterment) of the majority of states, or of human beings.4

International Law does, however, promote order among nations. It recognizes nation-states as equal in status and rights, the major right of which is sovereignty. Sovereignty is the autonomy and impermeability of nation-states to pursue their own national interest, maintain their own values including the socio-economic and political conditions determining the life and destiny of its citizens without external control or limitation beyond that expressly agreed to by treaty.5

United Nations

This principle of sovereign equality of nation-states is codified as international law by Article 2, paragraph 7 of the United Nations Charter. Member nation-states (charter signatories) affirm they have no authority independently or jointly to intervene in matters that are "essentially within the domestic jurisdiction of any state or shall require members to submit such matters to settlement under the present charter."

The principle that a stateís sovereignty extends only to its border is further codified by the agreement of the signatories that they will not use aggressive military force against another signatory nation-state in dispute resolution. Only defensive, self or collective, military force is allowed. Use of military force between charter nation-states is strictly limited to the U.N. Security Council. Priority is given to the maintenance of peace. Use of military force, via Chapter VII of the U.N. Charter, by the Security Council can be utilized only if there is "a breach of peace, threat of a breach of peace, or act of aggression." Articles within this chapter set forth the steps to be taken prior to military action. Articles 39 through 42 "document the intention to prevent forcible political change".6 The U.N. was not expected to take the initiative to change the status quo: justice and political change is subordinate to peace and security.7

War between charter nation-states of the U.N., which has not been decreed by the Security Council, therefore constitutes an international illegal act. This is synonymous for the breach of an international obligation.

"The moral distinction between just and unjust wars, evolved by canon lawyers and naturalist jurists, has been transformed into one of legal and illegal war. Illegal resort to war is a breach of treaty and possibly, amounts to a war crime."8

If the basis of national law is the virtue of altruism, then clearly the basis of international law is ethical egoism. National law allows for a consequentialist interpretation for enforcement and liability. Does the egocentric nature of international law make the same allowances?

 

International Illegality

Four conditions are required to be met to constitute an international illegal act:

The breach must:

 

(1) be against the will of the complainant

(2) not be justifiable as, for instance, by the exercise of the right of self-defense

(3) be attributable or imputable to a subject of international law

(4) be voluntary9

Summarizing, an international illegal act may then be defined as a voluntary unjustifiable act or failure to act which is not condoned and is attributable to a subject of international law. Schwarzenberger states that it is uncertain whether the principles of agency of necessity (negotiorum gestio) and unjustified enrichment have been received into the body of international customary law. The principle of agency of necessity in this domain is similar to the general justification defense:

Adapted to international law, agency of necessity means action in the interest of, but without consultation with, another subject of international law in circumstances which make immediate action imperative, as, for instance, emergency assistance to nationals of a friendly country in a third state. This institution runs counter both to the principles of sovereignty and of consent. Nevertheless, reasonableness and good faith may require that obligations arising from such unasked assistance should be met. At this point, the borderline between a moral duty and a legal duty postulated by the jus aequum rule becomes very thin.10 (emphasis mine).

 

Jus Aequum vs. Jus Strictum

Jus aequum and jus strictum are polar opposites in the principles of legal jurisprudence as are teleology and deontology in moral philosophy. The principle of jus strictum calls for the strict and literal interpretation of legal rules. From an historical perspective, this was the basis of international law. However, over the centuries, treaty practice has allowed interpretation and application be done in a reasonable and equitable manner, or jus aequum.

 

...clauses stipulating good faith or equitable treatment have gradually come to be regarded as implicit in international transactions of a consensual character. Thus, today it is true to say that in international treaty law and that part of international customary law which has its origins in treaties, jus strictum has been largely transformed into jus aequum.11

 

To act, or not to act...

It would appear the principle of jus aequum combined with agency of necessity could be used as a means of justification for action done not in accordance with international law thus mitigating the second of four requirements necessary to constitute breach. This application, however, is not as altruistic as the general justification defense. Justification in the international arena, as seen from the example above, is tied to a "right" of the "would be breaching" nation. A "right" is tied to another specific international law or international customary law (e.g. the "right" to defensive use of military force). The precedence of this legal "right" over a specific law in question must, therefore, be deemed "reasonable". Thus, while the general justification defense may concede abidance to law in favor of the mitigation of an evil greater than the infractioned law was intended to prevent, its closest equivalent in international law will entertain the breach of one international law as acceptable only when it is done while conforming to another and if its precedence is determined "reasonable".

 

Analogies

A man is walking alone on a strip of public beach. He comes to a low fence posted with a sign stating:

NO TRESPASSING
---PRIVATE BEACH---
VIOLATORS WILL BE PROSECUTED

As he turns to walk back the way he came, he hears a cry for help. He spots someone in apparent distress, about thirty yards beyond the shore. No one else is visible. The person in apparent distress, is, however, on the private beach side of the fence. Ethically and/or legally, should the man intervene?

Now, of course, before we answer this question, a few important missing variables need to be ironed out. Example: Can the man swim and can he swim well enough to assist a potentially drowning victim? Is the person only crying help or yelling HELP! SHARK! with extremely large triangular dorsal fins clearly visible in close proximity? Is it the dead of winter on a fresh water lake, with a wind chill of 40 below but with ice only paper thin?

If the answers to the above questions are:

1. The man is our next Olympic Gold Medal hopeful in the 1500 meter free style,

2. He is a certified life guard instructor, and

3. It is a warm, sunny, mid-July day on Lake Michigan . . .

does anyone consider trespassing an acceptable justification for inaction?

Letís try a little more difficult. A scenario an airliner has been high-jacked by three terrorists. It is day six. The aircraft, with ten crew members, seventy-one remaining passengers, and the three terrorists is now sitting at the end of a runway in a third world country sympathetic to the terrorists. The plane is fueled and ready, but with no where to go. Each day their leader has selected a passenger, shot them in the head and dumped their body out of the plane--just to show he is serious in their demands. They want seven of their brethren, now incarcerated in three different countries, to be released.

A passenger nervously awaits use of the single restroom the terrorists will allow. It is in the front of the plane, just behind the small first class section. One terrorist occupies it now. The remaining two are standing on either side of the open cockpit door, UZIís slung on their sides. The terrorist exits, smiles at the waiting passenger, and walks four rows toward the back of the plane to talk to another passenger in her native tongue--UZI slung at her side over her too large, BDU jacket. Upon closing the door the passenger is shocked to discover the terrorist had left something behind: her 9-mm semiautomatic GLOCK 17 which she usually had stuffed in the front of her pants. What should the passenger do? Any aggressive action must be done quickly before she notices it missing. She is less than fifteen feet away from the left of the door, with her two accomplices, also less than fifteen feet away from the door, but to the right. All are more heavily armed, and there are many passengers.

Again, like the first scenario, it would be nice to have some further details before we answer the question. If, for instance, the passenger is an 86 year old, rheumatoid great grandmother who has never held, much less fired a handgun in her life, I, were I unlucky enough to be a fellow passenger, would certainly hope she wouldnít come out like a gun blazing Annie Oakly. But, what if the passenger was a Navy SEAL commando who thought he was on vacation? Furthermore, he is both trained, and currently proficient, in close quarter battle (CQB) techniques. He quickly examines the weapon. It is not "a plant". It is fully operable, and has a full clip of Remington 88-grain jacketed hollow-point rounds, with one in the chamber. He estimates heíll have less than three seconds after the weapon is seen to "neutralize" the terrorists: less than three seconds, three terrorists, three head shots--one 180 degrees from the other two, within a fifteen foot radius, in a crowded compartment. He is CQB proficient...in practice--he has never shot anybody, much less "neutralized" anyone in his life. What should he do?

Given the two scenarios, each with its exceptionally qualified character (one a champion swimmer, the other a Navy SEAL commando), I doubt, at least with this audience, there will be little disagreement concerning the action each should take. Both the scenarios and the expectation for action of each character have important similarities:

1. Both involve violation of law: the first trespass, the second murder. The trespass violation, probably for the vast majority of Americans, doesnít even merit consideration. The fact all three terrorists are to be "neutralized" without quarter, though only the leader has committed the "executions", probably doesnít bother anyone in this audience. In fact you probably object to the term "murder" and prefer "neutralize". After all, it is justifiable homicide, i.e. defense of self and others. Section 3.02 of the Model Penal Code is expected to immediately and unquestionably apply to both scenarios.

2. Expected intervention is based on ability: In both scenarios we considered the "evil" to be overcome, the danger to our character if action is taken, and the ability of our character to overcome the evil and mitigate the danger to himself while intervening. Individual ability has somehow been translated into an individual obligation to act.

 

Obligation

This linkage between ability to act and an obligation to act is set forth by Kant under the universal maxim of common interest in The Defense of Virtue. As for the kind and extent of assistance to be rendered, Kant states, "It is every manís duty to be beneficent--that is, to promote, according to his means, the happiness of others who are in need, and this without hope of gaining anything by it." The latter prohibition of expectation of gain is important for several reasons:

1. all people are to be treated as an end in and of themselves and not used as a means,

2. to preserve the self respect and dignity of the aided individual, which is critical to

3. avoid the establishment of a dependency relationship which undermines the autonomy of the individual.

It is interesting to note, that though we consider our laws altruistic, there exists no legal compulsion for our characters to act. A moral compulsion, perhaps, but legal, no. The vast majority of laws are designed to prevent evil and thereby allow good to exist. But our laws are not designed to compel people to "do good". We must also remember, though a moral compulsion to act may exist and may indeed result in action, the "moral nature" of the compulsion has no bearing on whether the General Justification Defense will be admissible. It is strictly a consequentialist weighting and comparison of the general evil the law was intended to prevent vs. the specific evil the actor sought to avoid by conduct which violated the law.

 

International Implications

A general extrapolation of the legal violations within these individual scenarios to the international arena would refocus our attention from trespass to violation of sovereignty and from murder to unilateral use of aggressive military force. As under the General Justification Defense, a moral compulsion of a nation to commit these acts will not be acceptable in the international community as justification for violating international law. Jus aequum liberties within negotiorum gestio demand not only the actions be reasonable, but be based on international law(s) whose precedence is reasonable vis-à-vis the law or laws being violated. This is extremely difficult given the importance attributed to both the sanctity of sovereignty and the prohibition against unilateral use of aggressive military force. Indeed, as already pointed out, the U.N. Charter was initially designed to make acceptable breach in this regard difficult, if not impossible for charter nations:

The subordination of the requirement of justice, or of political change, to that of peace and security indicated that the United Nations was not expected to take the initiative in changing the status quo, even though, unlike the League of Nations, the U.N. was not obligated to preserve the status quo.12

Difficult, is not, however, the same as impossible. Unlike within national law, there exists in the international community, proactive, or "do good" laws. The question becomes whether or not it is reasonable to assert these laws, within their narrow confines, as supererogatory, so as to allow a nation unilateral use of aggressive military means to enforce them. The laws I posit for this justification are the International Convention on the Prevention and Punishment of the Crime of Genocide and two covenants essentially converted from The Universal Declaration of Human Rights: the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights.

The Genocide Convention, was in actuality, the first international human rights agreement. Though narrow in scope when interpreted from this perspective, it did establish limits on sovereignsí rights in dealing with its own people by making genocide and its prevention, a legitimate, and appropriate subject for international law.13 The latter two covenants further permeated the heretofore impermeable monolith of national sovereignty by legitimizing human rights, not only as an international issue, but as international law.14 There are, however, three fundamental problems with these laws as they presently exist in the international arena:

1. "Violating" states still claim sovereignty over what they consider to be concerns "essentially within" domestic jurisdiction,

2. "Other states" have yet to truly shed the above traditional attitude, and

3. Established enforcement processes & mechanisms do not exist--they are strictly ad hoc.

What is called "enforcement" barely meets the criteria normally attributed to a monitoring function. Such activity is relegated to assorted U.N. Committees. True enforcement is limited to political actions--trade sanctions, negative publicity, etc. For the most part, the above Covenants and Conventions do not provide for any body that might take the initiative to monitor compliance. Furthermore, no agreement provides for a "complaints department", investigative arm, or judicial forum, much less punishment. Once an issue is "elevated" to the international political arena, human rights are likely to be subordinated to other considerations. Dependent upon the issue, third party nation-states will both condemn major powers for their failure to act to support human rights issues and prevent atrocities, as well condemn efforts to unilaterally act as "policemen". Henkin then asserts the United States will probably respond that it is each nation's responsibility to induce compliance with the aforementioned human rights obligations. Unilateral enforcement is necessary because multinational machinery has not been effective.15

Within a nation-state, a legal violator raises the Justification Defense so as not to be held accountable for his breach, first to the police and then, if necessary, to the court system. In the international arena, we have law with out police and without a compulsory judicial body. The World Court, as it now exists, is in reality, merely an arbitrator. If the alleged tortfeasor elects not to recognize his "offense" as alleged by the claimant nation, there is no compulsory mechanism to force him into court. Political pressures from other nations may be used, but again, these are ad hoc. Even if both nations agree to go to court, international arbitral practice is generally inconclusive. If true "fault" can be demonstrated, the most the aggrieved party can expect is reparation--the tortafeasor has the "...obligation to re-establish, as far as possible, the state of affairs as it would probably have existed had the international tort not been committed."16 If reparation is not possible, two subsidiary forms exist: "satisfaction" and "compensation".

Satisfaction is any non-monetary form of reparations which falls short of restitution in kind. A formal apology or condemnation of an act by an international tribunal illustrates this type of reparation. For the rest, there is only monetary compensation as a substitute for any restoration of the status quo ante.17

It must be emphasized, the preceding discussion is international TORT law, not CRIMINAL law. There is no international criminal court. The U.N. Security Council may establish a war crimes tribunal--but this is, once again, a political process.18

We now have an interesting juxtaposition of national and international laws. On one side we have national law, complete with enforcement and courts, with both recognizing the General Justification Defense. On the other side we have international law lacking both enforcement and courts, but recognizing the principle of jus aequum. Can justice, both intra- and international (in so far as national law and practice conform to the international standards regarding Genocide and human rights), be achieved through international law sans enforcement? Lacking both enforcement and a compulsory judicial body, is international law regarding genocide and human rights merely window dressing? Does a nationís agreement as a covenant signatory combined with an ability to act, create an obligation, both moral and legal, to unilaterally intervene with military force despite other laws prohibiting such action?

 

Kant vs. Hobbes

The moral answer, to this very specific question, may be derived from the juxtaposition and application of two dichotomous philosophers: Kant and Hobbes. Their polar philosophies of international peace, both its derivation and its enforcement, speak very loudly to the world as it politically exists today.

Both Hobbes and Kant agreed that the "natural state of man" is war, not peace. Peace, therefore, not being natural, must be a construct--a conscious creation of men for themselves. Whereas international peace for Hobbes could only be achieved by the erection of a Leviathan--a supreme authority capable of enforcing order, Kant rejected this notion. For Kant, international peace is the only logical option of reasoning men. The same moral imperative which led man to associate in national political communities to overcome civil war applies to the international community.

Kant's rejection of a "requirement" for a Leviathan was also based on the premise and possible nature of its existence. He feared that a world state or federal union could lead to a despotic peace. For Kant, even the temporary state of war was "rationally preferable" to world despotism. Second, the very assumption that force could only be deterred by force could, in and of itself, provide the rationale for future wars. Lastly, the notion that war is necessary for the preservation of peace is inherently contradictory.

Kant saw the establishment of a perpetual international peace as possible only when mankind gained the reasoned awareness of the benefits of the rational imperative of peace and respect for the law. The guarantee of peace is not through force, but through reason. Peace is a moral duty, therefore it cannot be imposed.

As an imperative of the practical reason, the achievement of a peaceful coexistence is what Kant calls a "regulative idea"--a rational end of action that man must adopt as a maxim of behavior, independent of its possibility of realization. This means that man must act as though perpetual peace were attainable and attempt to create the essential conditions for its attainment: a republican constitution in every state and a league of peace comprised of independent and free nations. Kant suggests that it is only through the growing antipathy to war that mankind will realize the necessity of an everlasting peace. This process will be long and uncertain, but must not be imposed.19

Kant Plus Hobbes

I offer the following premise: Both Hobbes and Kant are correct. Nations that have truly adopted the "ideal" of human rights and dignity, and whose people are governed through a "tradition" of a republican constitution, meet the Kantian prescription where international peace is enforced merely by the reasoning of men. Can anyone here assembled, even remotely foresee a war among the E7 nations of the world? There is no political, social, and/or, perhaps most importantly, economic reason for one. Indeed, it is the reason of political, social, and economic stability and growth which contraindicates the very notion of war among these nations. For these nations, the light of reason has dawned on Kant's "regulative idea". Reason has prevailed: the preservation of peace and renunciation of international violence as policy has been accepted as in their own and mutual interest. I will subsequently refer to these nations of enlightened reason, with intentional hubris, as the true, "civilized" nations of the world. War, among the civilized nations of the world does not exist.

Kant's reason does not light the entire world. War, does of course, continue to exist in the rest of the world. Uncivilized nations continue to practice, not only war, but "uncivilized" war, committing great atrocities. For them, only a Hobbesian Leviathan can establish and enforce peace. The former Soviet Union met both Hobbes' criterion for a Leviathan and Kant's definition of a despotic international regime. But, there was peace within its confines. When the Leviathan exited, barbarism entered: the Balkans ignited.

In sub-Saharan Africa, there were multiple Leviathans: the colonial powers, who themselves were, as of then, approaching, but had yet to attain, "civilized" status. Again, exit the Leviathan, enter barbarism: Uganda, Ethiopia, Somalia, Rwanda--human tragedies all. Lacking a Leviathan, life in the UNcivilized nations of the world is truly Hobbesian--"nasty, brutish, and short".

 

Maturation

Cultures, societies, and nation-states, like individuals, mature over time. Kant stated the process is both long and uncertain. But we, the civilized nations of the world, have grown and matured. Ratiocination and bloody experience have led us away from barbarism: might does not equate to right. We are, after all, about to enter the 21st century. When will the UNcivilized nations of the world grow up? The hubris sanctimony of this question belies both its incongruities and our culpability's for the state of the world.

True, we have matured, but to state that process was bloody is the grossest of understatements. Fortunately for us, our technological capacity for inflicting death closely paced our socio-politic and economic maturation. We, the civilized nations of the world are approaching the 21st century in all four of the above domains. The UNcivilized nations of the world approach it only with the imported technology of death.

During the multiple decade chess match which constituted the Cold War, aid (conforming to the national interest of the super powers) to Third World Pawns provided them access to 20th century technology. This, in turn, enabled them to produce huge populations. These populations are now unsustainable without the external support which created them in the first place. Exit the Cold War, exit "national interest", exit foreign assistance: enter barbarism. Surprise, surprise, wars erupt over control of limited resources. Wars among people with, by our mature and civilized standards, crusader mentalities--but armed with OUR 20th century weaponry. Imagine the world, if there would be one, if our hunter gather or subsistence farmer ancestors, with their familiar clan associations, were given 20th century technology over a few generations instead of developing it themselves over tens of centuries: no time to develop philosophy, no time to develop wisdom, no time for maturation. Our "noble" philosophies concerning the rights and dignities to be afforded every human being, let alone the concept of "Just War" and its conduct were not adopted by all the nations we "aided". The means, the technology of death on a grand scale, was. True, you don't need 20th century technology to commit atrocities but it certainly picks up the pace.

 

Return to Analogies

In the international arena, the United States is a powerful swimmer. But does our swimming capability create an obligation to assume the role of life guard? After all, there may be sharks, a strong under tow or a rip tide. There are always unknown dangers. If however, the person in the water is there due to our actions, either directly or indirectly, does the obligation to assume greater risk in intervention increase? The United States is also a highly skilled and capable soldier. Again, does this, in and of itself, create an obligation to assume the role of World Marshall? After all, three terrorists in three seconds is one thing, but are there shills on board we don't know about, have explosives been placed, will the aircraft be attacked from the outside before or during a hasty takeoff attempt? Deadly unknowns exist in all armed interventions. Does capability create obligation? If we armed the terrorists, or created the despotic governments, or gave such governments the capability to inflict mass carnage on innocent populations, does the obligation to assume greater risk in intervention increase?

Syndicated columnist, William Raspberry, wrote an article, which I can only describe as self torture, dealing with a specific situation of this nature. He was attempting to answer a friend 's question: "What's the right thing to do?"

I wasn't able to give him the moral guidance he sought, which was bad enough. Far more disturbing, I found myself impelled toward the amoral conclusion that "right" has nothing to do with it I find myself thinking that it's different because foreign policy--and especially military policy--is different. Even where resources are not a question, by what authority do we intervene? Until quite recently we intervened to contain Communism. The decline of Communism has left us without any reliable basis on which to make our foreign policy decisions. What are America's vital interests? We'd like to see the spread of democracy. But what should we do when some people insist on other forms of government? What's the right thing to do? There is the humanitarian thing the diplomatic thing But what is the right thing? I want to think about it some more, but right now I tending toward the view that the question is irrelevant, except in domestic terms. In foreign affairs, the relevant question is: What is expedient? and in the particular matter of military intervention, only one question strikes me as reasonable: Is it necessary?20

It is obvious, at least when reading the article in its entirety (which I recommend), that Mr. Raspberry does not like his conclusion. The selection of expediency and pragmatism over ethics is most unpalatable. I believe Mr. Raspberry's inability to see another solution is limited by his paradigm of international affairs, one that is based on the "old" world order where national sovereignty, including human rights abuse and injustice, are subordinated in favor of international peace and security. The Civilized nations of the world need to change this paradigm. If they do not, I believe they then must fully accept the inescapable conclusion that international degradation of human rights, inclusive of torture, mass exoduses of populations, mass starvationís, intentional military attack of innocent civilians and genocide constitute the acceptable DOUBLE EFFECT of their international peace and security.

 

A U.N. Leviathan?

A paradigm shift regarding the use of force in the international arena vis-à-vis enforcement of international law regarding human rights concomitant with a revised understanding of "national interest" will be required if the Civilized nations of the world truly believe in the universal application of the ideals they espouse. John Fenske, in a article concerning the Balkans, succinctly phrases the problem:

The quandary of Europe and the United States can be summed up in two words: politics and principles.21 Judy Mayotte, discussing the Civil War in Sudan, further elaborates the problem:

 

...Throughout the world more than 25 million civilians are internally displaced. The international community, including the industrial democracies as well as developing nation states, is forced to grapple with the complex issue of conflict between national sovereignty and protection of the basic human rights of and humanitarian access to the internally displaced.22

 

Mayotte then cites U.N. Security Council Resolution 688, which condemned Saddam Hussein's brutal repression of the Kurds and called upon the international community to do what was necessary to conduct relief operations as a precedent solution. She quotes Sir Brian Urquhart concerning the resolution: "...for the first time in history [this resolution] determined that humanitarian suffering within a given member state was a threat to international peace and security."23

The major problem of reliance on this type of solution by U.N. Resolution is time--first, time for consensus as to problem recognition; second, time for consensus as to what to do; and finally, time to take action. Again, the question becomes: Are the hundreds of thousands of lives that are lost during this process the acceptable DOUBLE EFFECT of the time it takes for international politics to formulate a U.N. Leviathan? Cannot idealistic principles be coupled with expedient action?

Steven L. Burg, in "Why Yugoslavia Fell Apart", appears to echo Kant when he concludes:

 

...if the international community is to facilitate the peaceful settlement of such conflicts elsewhere, it must devise the means to prevent ethnic domination and safeguard human rights. In short, the principles of sovereignty, territorial integrity, and national self-determination must be integrated into a single framework for determining the legitimacy of claims to political authority. And that framework must be based on the superiority of principles of human rights and democracy.24

 

A New World Order: A Kantian Leviathan

I offer a heretical solution constructed with the idealism of Kant but erected upon the firm, pragmatic foundation of Hobbes. The Civilized nations of the world must recognize and declare the supererogatory obligation of the Covenants and Conventions dealing with human rights and genocide, up to and including their precedence over Article 2, paragraph 7 of the U.N. Charter, as well as, restrictions regarding use of unilateral military force. This declaration is to be remanded to writing and signed by the Civilized nations. It will allow the signatories to take unilateral military or humanitarian action, after consultation with or notification, but not requiring consensus, of the signatory nations. The signatory nations will restrict membership to this declaration to "civilized" nations. All nations, to be eligible to be signatories, must be constitutional democracies. Additionally, all signatories agree to have any and all actions taken in accordance with this declaration to be reviewed and bound by any verdicts of a special tribunal to consist of the civilized signatories and the U.N. Security Council. Thus, any nation which believes itself to be a "victim" of any such action will "have its day in court". Justification in accordance with jus aequum and negotiorum gestio will be the responsibility of the tortfeasor. Any restitution or reparation will be limited to the previously described "satisfaction and compensation". Of course, the claimant nation will also be bound by any verdict found regarding its culpability in the actions which lead to the unilateral intervention. They may be forced to compensate the "civilized nation" and/or turned over to a War Crimes Tribunal. All non-signatories will still be "bound" by the U.N. restrictions.

Furthermore, the Declaration of Civilized Nations, will recognize the importance of sovereignty and the right of people to self determination. No actions done in accordance with the Declaration will be taken with an end to subvert this right. The end of all action will be to correct a wrong. Nations may chose what ever government form they desire. Nations may have civil wars as a means to this determination--this is their right. The Civilized nations hope, through this process, that they may "mature" to the Kantian rational. They need to "learn to think for themselves if they are to gain control over their lives".25 "Civilized" intervention will only occur to end, not their conflict, but violations of international law. If, for example, in their conflict, they commit genocide, or purposely attack innocent civilian populations, the perpetrators will be subject to immediate attack. This action is not a force of occupation or a peace-keeping operation---it is strictly one of military retribution. The Declaration constitutes the only warning necessary. Freedom from attack is thus, not a right, but a liberty. A liberty whose price includes adherence to human rights principles.

The Declaration, thus changes what has become the general interpretation of Bellum Justum. That is, the definition of "likelihood of success" is the same as total victory. It is not. Likelihood of success is defined as the probability that intervention will either prevent or stop a "wrong" from occurring, i.e. an illegal human rights violation in accordance with the established covenants and conventions. The intent is not the outcome of the conflict, for that is an intra-national concern and not of interest to the Civilized nations. The intent is the preservation of the primacy of justice. Both military intervention and humanitarian aid must be to that end, and that end alone. We must not create a dependency.

We partly show our respect of others by recognizing they have their own ends, interests and desires which they should be free to pursue. This means any regulative principles of justice should not themselves presuppose any particular conception of the good but should guarantee an equal freedom to individuals. This is the only way we can supposedly make sure that we do not impose on some the values of others and so deny them the freedom to pursue their own conceptions.26

 

Conclusion

Such a "Declaration of Civilized Nations" is, of course, idealistic. Then again, so is our Declaration of Independence Constitution, and the U.N. Charter. Idealism is the light by which reality may follow. Like Kant's prescription for world peace, the fact that it does not presently exist does not negate the possibility of its realization. The question boils down to the intensity of belief the "Civilized Nations of the World" have regarding the universality of human rights principles. What price are we willing to pay for the enforcement of the international laws to which we ascribe? Is there a connection between a nation's conduct relative to its proprietary "interest" vs. espoused principles and its citizenry's attitude of "not getting involved" even though they witness murder, rape, muggings, arson, theft, etc.? Who sets the example for whom? Paraphrasing the conclusion of Michael Mandelbaumís article, The Reluctance to Intervene:27

Communication technology will continue to make graphic images of man's inhumanity to man, be it from our cities, suburbs, towns and schools or from obscure corners of the globe, instantly available everywhere. Thus, life without civilized intervention may not only continue to become nastier, more brutish, and shorter than before---it will also be televised.

 

NOTES

1. Kent Greenwalt, Conflicts of Law and Morality. (Oxford University Press, 1989) p. 291.

2. Ibid. p. 290.

3. Charles deGaulle, U. S. News and World Report (Sep. 26, 1966). cited in Jay M. Shafritz, Words on War, (Prentice Hall, 1990), p. 273.

4. Louis Henkin, "Law and Politics in International Relations: State and Human Values", Journal of International Affairs (Spring / Summer 1990, Vol 44 / No. 1) pp. 188-189.

5. Ibid., pp. 185-186.

6. Morton A. Kaplan & Nicholas Deb. Katzenbach, The Political Foundations of International Law, (John Wiley & Sons, Inc., 1961) p. 296.

7. Ibid.

8. Georg Schwarzenberger, A Manual of International Law, (Frederick A. Praeger, 1967) p. 194.

9. Ibid., p. 174.

10. Ibid., pp. 174-175.

11. Ibid., p. 29. (emphasis added)

12. Kaplan & Katzenbach, p. 296.

13. Henkin, p. 196.

14. It took 18 years for the Declaration of Human Rights to be transformed into a comprehensive, legally binding covenant. It is also interesting to note that "the United States is virtually alone among major powers in resisting exhortation to adhere to the principal human rights covenants and conventions." [Henkin, How Nations Behave, Chapter 3].

15. Henkin, pp. 205-206.

16. Schwarzenberger, p. 180.

17. Ibid.

18. "The U.N. International Law Commission has produced draft statutes for a permanent court to try cases of genocide, war crimes, terrorism, and drug trafficking. The hope now is to produce an international treaty". [Economist, 30 July 1994].

19. Gabriel L. Negretto, "Kant and the Illusion of Collective Security" Journal of International Affair (Winter, 1993, Vol. 46, No. 2) p. 510.

20. William Raspberry, "Doing the Right Thing Is Not the Main Factor", Richmond Times-Dispatch (Friday, August 5, 1994), p. A15.

21. John Fenske, "The West and the Problem from Hell", Current History, (November 1993, Vol. 92, No. 577).

22. Judy Mayotte, "The Civil War in Sudan", Journal of International Affairs, (Winter 1994, Vol. 147, No. 2), p. 497.

23. Ibid., p. 498.

24. Steven L. Burg, "Why Yugoslavia Fell Apart", Current History, (November, 1993), p. 363.

25. Victor J. Seidler, Kant, Respect and Injustice, (Routledge & Keagan Paul, 1986). p.175.

26. Ibid., pp. 122-123.

27. Michael Mandelbaum, "The Reluctance to Intervene", Foreign Policy (Summer 1994, Vol. 95) p. 18.