dr. Guy C. Van Damme
Major, Associate Professor
Head of the Chair of Philosophy
Royal Military Academy
Avenue de la Renaissance, 30
1000 Brussels
Belgium
Ph. + 32 2 737 64 81
Fax. + 32 2 737 6512
e-mail: guy.van.damme@filo.rma.ac.be
 
 

1. Introduction

The method used to learn about military decision making in future humanitarian interventions is the empirical method, which means that we study past humanitarian interventions. In this article, we try to approach this issue from a more deductive point of view. This method can be considered as an addition to the empirical approaches.

In humanitarian interventions, the value of individual and collective rights has become evident in recent years. A second aspect of humanitarian interventions is the fact that, by the nature of a humanitarian intervention no legal code can be available for every possible military decision. Earlier humanitarian interventions made it clear that not every situation can be foreseen in advance. A legal code that is too detailed and inflexible can be worse than none at all and lead to conflicts with moral codes (for example the humanitarian intervention in Rwanda). Therefore, I think that every legal code must leave flexibility for what I call " rational military decision making," which I see as a model that must be used and filled in the field, in concrete situations.

2. Rational military decision making

Rational military decision making has to be both ethical and efficient. To see the ramifications of that claim, we have to define what we understand by "ethical "decision making. A first answer could be respect for human rights. Alan Gewirth defines "human rights as rights which all persons equally have simply insofar as they are human."¹ This is no doubt the central thesis of the human rights perspective. Nevertheless, it is also a thesis that is far from self-evident.

A first critical comment we can formulate on the human rights theory is that there is no such thing as an objective manner in which we ought to treat human beings. The values we tend to present as "universal human rights" are in fact nothing more than a subjective (= western) set of values. Another point of discussion is the question whether so-called positive rights (or social-economic rights) may be considered legitimately as human rights.

For H.L.A. Hart there is at least one natural right, namely the equal right for every individual to be free.² To see what his claim entails, we must determine whether this equal right to be free has a positive or a negative character. Hart defines these natural rights as follows:

The second part of the definition is about the right to act and in particular the right to perform all non-coercive and non-restraining actions necessary to pursue a certain objective. This is, one could say without too much hesitation, again a right with a negative character, but we need to examine the issue more carefully. If we claim that one has to have the right to perform all the necessary actions in order to pursue one’s own objectives in life, is it then not fair to say that the withholding of the necessary means to perform those actions constitutes a violation of that right? Alternatively, to put it differently: does the right to pursue one’s own objectives imply a right to the necessary means in order to make use of this possibility?

Those who state that the social-economical rights are also human rights use the very same argument: in order to make use of one’s capacity of rational choice, one has to have the necessary means. If this were not the case, the whole human rights philosophy would be nothing more than an empty box.

Such commentators further state that when we make decisions we have to take into account not only negative human rights. We consider that as a sine qua non, but we think that the same must also happen for positive human rights. We think that it is necessary that those positive rights in the thinking of every decision-maker must be considered if decisions are to be morally sound. We are convinced that human rights don’t make sense if negative and positive human rights aren’t considered equally. The latest Belgian change of the constitutional laws suggests that there is hope. In comparison to a number of fellow countries, the Belgian constitution previously did not recognise positive human rights (and precisely human rights of the second and third generation, the so-called socio-economical and cultural rights).

The constitutional legislation of 1994,in the first paragraph of article 23 explicitly states the rights a decent existence to every citizen. Therefore, a number of positive (economical, social, and cultural) rights must be guaranteed in casu: the right to work and the right to free choice of professional activity.

At first sight this seems reasonable, but the implications must be put in perspective: these rights can’t be immediately mandated, which means that an individual can’t demand them in court:

"The individual does not derive subjective rights to which he can refer to in court."⁴

We think that this Belgian situation is symptomatic for the position of the positive human rights. Those rights are indeed recognised, but the realisation of positive human rights isn’t assured. All international laws, which recognise positive human rights, seem to suggest a program, a political objective, or a universal frame which must be filled in variously by the national states depending upon their resources and capabilities.

3. The non-violation of human rights

. Taking into account the preceding, we think that:

• We have to be aware of the discussion concerning whether human rights constitute an objective set of values ;
• We aren’t allowed to make a distinction between positive and negative human rights ;
• We have to take into account that positive human rights aren’t executable.

"A decision qualifies as rational only after it has been checked to ensure the existing aim(s) don’t comprise a violation of the stock of ideas of human rights; if so it will be necessary to formulate a new aim or new aims; only then will it be possible to determine whether the available means can applied in an efficient way to achieve the now justified aim(s)."

4. Prima facie

The next question we ask ourselves is whether every violation of the duty of abstention or non-violation is a "real" violation or a "prima facie" violation? Prima facie means literally at first sight, and when we consider the violation of the duty of non-violation as "prima facie," then we mean that everyone must abstain from violations of human rights except in special cases (these need to be carefully described, needless to say, but the point is that exceptions are possible).

To answer that question we start from the point of view that our duty of non-violation is an absolute given. In that case a decision is rational only in so far as the existing aim(s) and/or their realisation don’t constitute a violation of the stock of ideas of the human rights; once that is determined, we can consider whether the available means can applied in an efficient way to achieve the now justified aim(s).

From the point of view of feasibility, it seems that this way of acting isn’t problematic because we have stated the revised definition in negative terms. However, if we ask ourselves whether an absolute duty of non-violation is opportune the answer becomes more problematic. A simple example makes it immediately clear. Suppose that we, like the Belgian constitutional legislation, accept the right of the preservation of a healthy environment (an individual and collective human right of the third generation). Suppose that a fire breaks out in the woods of the Ardennes as a consequence of an extremely dry summer, and one decides to set fire a part of the woods to create a so-called counter-fire to contain the blaze. If we see the non-violation duty (do not harm the environment) as an absolute principle, the decision to set a counter-fire can’t be considered rational under our definition because the realisation of the objective, to burn down a part of the forest that isn’t yet affected to prevent the expansion isn’t compatible which the literal and absolute requirement not to harm the environment. We think that in this particular case the decision for a preventive burn must be considered as a rational decision. The violation of that human right effectively prevents a greater violation of the human right to a healthy environment free from intentional human damage.

It is clear that the non-violation duty may not be considered as something absolute. A new adaptation is needed:

A decision can be considered rational only after it has been checked to see whether the existing aim(s) violate the stock of ideas of human rights. If we find such a violation, we must decide whether it is a prima facie violation of the stock of ideas of human rights; if it is, we must formulate a new aim(s). Only then can we determine whether the available means can be applied in an efficient way to achieve the now justified aim(s).

5. The cancelling of the non-violation duty

This settlement brings us to the next question: when can we override the non-violation duty? Here we arrive in the field of the proportionality. Methodologically we are focusing on a dilemma: how far can we go in the developing of a theory concerning the weighing up of human rights without violating too much a principal point: its simplicity and by doing this prohibit the application of our model. Against this correction stands our aim to protect individual liberty as much as possible.

A solution for this complex difficulty seems possible by making a combination of the conviction of Marc Van Den Bossche⁵ that applied ethics must be directed towards an ethical estimation of problems where the capacity of judgement is the central issue and the double-effect doctrine.

This doctrine, which was originally formulated by Thomas Aquino, states that it is morally acceptable to do something that has good as well as bad consequences, under the condition that the bad consequences are unintended, inevitable, and proportional to the good consequences.

Consideration of the arguments mentioned above has leads to an argument that we can formulate in the following way:

"A decision qualifies as rational only after it has been checked to ensure the existing aim(s) don’t comprise a violation of the stock of ideas of human rights; if so it will be necessary to formulate a new aim or new aims; only then will it be possible to determine whether the available means can applied in an efficient way to achieve the now justified aim(s)."

The obligation of non-violation expires when one can reasonably decide that adhering to the obligation of non-violation of the stock of ideas of concerning human rights will result in a much greater violation.

6. The decision maker

So far, we have concentrated our attention solely upon human rights. Now we must examine the decision-maker and more particularly his state of mind. Objectively, in terms of the effects on the subjects, the state of mind of the decision-maker when he decides to commit the violation is irrelevant because the violation results in a direct infringement of human rights that in turn directly affects human beings. For the victims of that violation the state of mind of the decision-makers doesn’t matter. This factor becomes important only when we must determinate the innocence or guilt of the decision-maker.

We would take into account the fact that an individual isn’t able to determine or even estimate a priori all possible results of a decision. Within the framework of this article, this seems to us a fundamental and just excuse to proceed with great caution. The juridical power should judge and pronounce sentence in case of doubt.

That conclusion brings us to the content of our ethical model:

"A decision qualifies as rational only after it has been checked to ensure the existing aim(s) don’t comprise a violation of the stock of ideas of human rights; if so it will be necessary to formulate a new aim or new aims; only then will it be possible to determine whether the available means can applied in an efficient way to achieve the now justified aim(s). The obligation of non-violation expires when one can reasonably decide that adhering to the obligation of non-violation of the stock of ideas of concerning human rights will result in a much greater violation.

. In the case of doubt concerning the reasonable infringement of the duty of non-violation, any individual and / or legal body has the right to bring a case before the competent court in its own name, or in the name of another individual and / or body and / or de facto organisation, in order to obtain a hic et nunc judgement."
 
 

NOTES

1. A. Gewirth, Reason and Morality, University of Chicago, Chicago, 1978, p.27.

2. H.L.A. HART, Are there any natural rights? In: A. QUINTON, Political Philosophy. New York, 1967, p. 53.

3. Ibid.

4. J. GIJSSELS, Grondrechten of woorden, in Vlaams jurist vandaag, nr 22, 1994, p2.

5. M. Van Den Bossche, Kritiek der Technische rede, VUBPRESS, Brussels, 1995, p.32.