First, thank you for this kind response, and I also apologize for some delay in responding in turn

From Jus ad Bellum to Jus ad Pacem

Re-thinking Just War criteria for the Use of Military Force for Humanitarian Ends

George R. Lucas, Jr.

Professor of Philosophy and Associate Chair

Department of Leadership, Ethics & Law

United States Naval Academy (Annapolis, MD)

During the decade prior to September 11, 2001, many analysts in ethics and international relations had begun to envision a post-Cold War era in which the principal need for military force would come to be the rendering of international humanitarian assistance. Humanitarian tragedies in Somalia and Rwanda, and at least partially successful military interventions to prevent or halt atrocities in Bosnia and Kosovo, had prompted this significant new attention to the problem of using military force for humanitarian purposes in international relations.

The terrible events of that day, however, served to remind even the most optimistic among us that nations equip and support military forces primarily for the purpose of defending their own borders and protecting their own citizens from unprovoked attacks from abroad. It is nonetheless a sign of the growing importance of this relatively new-found interest in the humanitarian use of military force that military intervention by the United States and Great Britain in Afghanistan (ostensibly to seek out and punish terrorists and destroy their paramilitary organizations) swiftly came to be represented to the world as a humanitarian intervention as well. The current Afghan campaign has recently been described in broad and quite plausible terms as an effort to liberate citizens from an oppressive and unrepresentative regime, restore human rights (primarily to women who had egregiously been denied them), and prevent some of the worst effects of poverty and starvation in a troubled and long-suffering region of the world.

Notwithstanding all this attention to the problem, the criteria governing the justifiable use of military force for humanitarian purposes remain quite vague. Of those analysts who have attempted to address this issue, some, like James Turner Johnson and Paul Christopher, [i] represent humanitarian interventions as an extension of traditional just war theory because they still involve the use of military force for coercive purposes. Others, like Michael Walzer,[ii] have long argued that various caveats and qualifications need to be added to the baseline legalist paradigm in international relations in order to cover extenuating or emergency situations, including massive violations of human rights within what we are now coming to call “failed states.” Still others, like Stanley Hoffman, have argued that the humanitarian use of military force represents an emerging new paradigm in international relations that calls into question some of the basic assumptions regarding the sovereignty of nations, thus requiring a set of justifications all its own.[iii]

I want to suggest here that the strategies for simply assimilating the humanitarian uses of military force within existing rubrics in ethics and international relations are inadequate, and that something closer to the approach that Hoffman has sketched needs to be filled out to provide adequate moral and political guidance in such cases. I will attempt to provide a more complete sketch of the elements of this new humanitarian rubric of justification than Hoffman himself has done, in part by taking account of some of the modifications to international law and classical just war theory suggested by “assimilationists,” such as Turner and Christopher.

The first option, the attempt simply to assimilate or subsume humanitarian uses of military force under the rubrics of traditional just war criteria, fails because the use of military force in humanitarian cases is far closer to the use of force in domestic law enforcement and peace-keeping, and so subject to far more stringent restrictions in certain respects than traditional jus in bello normally entails. It is not, for example, sufficient that humanitarian military forces (any more than domestic police forces) simply refrain from excessive collateral damage, or merely refrain from the deliberate targeting of non-combatants. In fact, the very nature of intervention suggests that the international military “police-like” forces (like actual police forces) must incur considerable additional risk, even from suspected guilty parties, in order to uphold and enforce the law without themselves engaging in violations of the law.

The second strategy for encompassing humanitarian use of military force is represented in Michael Walzer’s longstanding attempts to revise and reform our understanding of international law in lieu of relying on the vagaries of moral reasoning alone. His strategy fails because it does not address the underlying conceptual incoherence involved in making the autonomous nation-state the unit of analysis in international law (as Stanley Hoffman has complained). Walzer's modifications of what he first labeled the original “baseline” formulation of the legalist paradigm, I will suggest, resemble the attempts of advocates of a dying paradigm to rescue it at all costs with specific but ungrounded measures designed more to answer critics or address anomalies than to re-conceive the underlying theoretical base.

Humanitarian interventions are not undertaken to address solely the political problems of "failed" states (of which Rwanda and Somalia are examples), nor only to contain or discipline the behavior of “rogue” states (such as Yugoslavia and Iraq). Instead, I argue that such interventions are necessary even more frequently to address the substantial pressures placed upon the international community by the behaviors of what might be termed "inept" states (of which Afghanistan, Congo, the Sudan, and many others are examples). “Inept” states, I suggest, are those nations with recognizable but ineffective governments unable to provide for the security and welfare of citizens, secure the normal functioning of the institutions of civil society, or maintain secure borders sufficient to control the operations of criminal elements in their midst. None of Walzer's earliest qualifications of the baseline legalist paradigm in Just and Unjust Wars (1977), let alone his more recent elaborations of his reformed legalist paradigm,[iv] addresses this dilemma successfully, or explain whether we have either the right or responsibility to do (for example) what the U.S. and Britain are currently doing in Afghanistan. As mentioned, this current exercise includes not only pursuing and destroying international terrorist networks and apprehending international criminals, but assisting in liberating–and in providing food, humanitarian assistance, and political support in nation-building–for the multi-ethnic citizens of a country held for years in virtual slavery by their own, internationally-recognized government.

What I will attempt to forge instead is a hybrid of just war theory as an alternative to the legalist paradigm. This hybrid is modeled on analogy with just war theory, but is not simply identical to it. Rather, my proposals are designed to address the unique and problematic features of what I shall also label jus ad interventionem and jus in interventione, by spelling out specific criteria and explanations and justifications for each.

I. Background: “On the Very Idea of Jus ad Pacem and Jus in Pace”

Jus ad pacem (or jus ad interventionem) refers to the justification of the use of force for humanitarian or peaceful ends.[v] The concept of this use of military force has been much discussed as incidents of it have proliferated since 1990. The discussions of justification, however, have focused mainly upon legitimacy (legality) and legitimate authority: that is, upon analysis of the sorts of entities that might theoretically have the right to use force across established national boundaries in order to restore peace, maintain order, respond to natural disasters, prevent humanitarian tragedies, or attempt to re-build so-called “failed” states.[vi] This focus on legitimacy is appropriate, and, returns what, in medieval times, was perceived as the principle problem with justifiable war, as James Turner Johnson has noted.[vii] The problem of political legitimacy or “legitimate authority” has once again re-established its priority of place over “just cause” as the principle concern in just war theory as we cope with the havoc wreaked by semi-autonomous “non-state entities” (organizations like Hamas and Al Qaeda), as well as to their attempts to justify their alleged right to violate time-honored principles of jus in bello by targeting non-combatants who dwell in regions of the world far removed from their spheres of concern, and who are utterly innocent of any kind of involvement in the political affairs with which they claim to express grievances.

Given the extent of the interest in this topic, and the increasing demands made on military forces for this purpose, from Somalia and Rwanda to Bosnia, Kosovo, and arguably now even Afghanistan, these discussions and resulting analysis have been surprisingly unfocused, inchoate, and inconclusive. Many authors seem to treat the use of military force for humanitarian purposes as a novel development of the post-Cold War era, when in fact this use of the military has a long and noble history.[viii] Other writers and analysts, suspicious of the use of military force for any purpose whatever, have been reluctant to re-consider their selective anti-military bias (forged in the aftermath of the Vietnam war), let alone embrace the emerging notion that national militaries do now, and will, for the foreseeable future, continue to have a positive and important role to play in enforcing justice, protecting individual liberty, and defending fundamental human rights, as well as in performing their more traditional role of defending national borders and protecting the welfare of their own citizens.

What is often overlooked is that the prospective need for humanitarian military interventions is rapidly becoming the principle justification for raising, equipping, training and deploying a nation’s military force. Military forces have been used sporadically for centuries for the decidedly secondary purpose of peace-keeping and nation-building in their own nation’s political or economic interest. It is extraordinary and utterly without historical precedent, however, to appeal to humanitarian exercises in the international arena, or to an admittedly elusive and ambiguous “interventionist imperative,”[ix] rather than to national self-defense or the defense of vital national interests, as the primary justification for the use of military force. It is not at all clear that nations and their citizens, once fully apprised of this reversal or subordination of the traditional ranking of priorities regarding the use of their military, will be willing to provide the human and financial resources for such exercises in the absence of accompanying, and clearly defined national interests. The abysmal failures of United Nations coalition forces in Rwanda and Bosnia dramatically illustrate this problem.

Even if nations (such as the United States and the nations of Western Europe) are willing to accept some variation of the interventionist imperative, the acceptance of this obligation results in a fundamental and profound renegotiation of the implicit “military-civilian contract.” I will not bother once again to rehearse the traditional terms of that contract here, or to comment on the nature of the substantial alterations introduced into it by acceptance of the interventionist imperative.[x] Suffice it to say that the terms of the renegotiation are sufficiently substantial to have prompted an ongoing debate within our own nation’s military at present, to have evoked a great deal of uneasy criticism and even a few isolated protests (military personnel refusing to comply with the uniform dress codes of coalition forces, or to subject themselves to a chain of command outside the direct jurisdiction of their own national leaders), and to have prompted senior military leaders to suggest that a distinct humanitarian and peacekeeping division of our existing military forces should be established and separately maintained.[xi]

The final dilemma (again, still incompletely diagnosed) is the unavoidable ambiguity inherent in humanitarian military missions. While it has become popular since the inception of the so-called “Weinberger Doctrine”[xii] for military and civilian strategic planners to demand clearly articulated performance goals and well-defined “mission end-states” prior to consenting to the deployment of military force, I have argued that such goals and end-states will always be elusive in the case of humanitarian exercises patterned after “Albright Doctrine.” This is a problem altogether different from that of claiming that the imperative to intervene may be unclear or non-binding. Rather, as in the case of Rwanda, the imperative to intervene may be all too clear, and the attendant obligation “to do something to help those unfortunate people” might be quite strong, but the means, methods, goals, strategy, and definition of the mission and its successful accomplishment will remain difficult to define beyond some initial and desperate preliminary aim (to prevent, or to halt, the impending genocide, for example). It is for these reasons that I have persisted in referring to the problem of humanitarian use of military force as the dilemma of the “reluctant interventionist.”

II. Establishing Criteria for Jus ad Pacem

The foregoing summary of the complicated issues and problems associated with humanitarian military intervention is meant to suggest that such operations are sufficiently unique as to demand their own form of justification, and their own regulations or limitations governing the acceptable use of force (jus in pace, or jus in interventione). This proposal runs counter to the prevailing tendency to subsume humanitarian interventions under the rubrics of justifiable war or just war doctrine.

There is a straightforward, almost pedestrian, sense in which jus ad bellum does not apply to humanitarian operations: they are not, nor are they intended to be, acts of war on the part of the intervening forces. This is not just a technicality, a distinction without a difference. There is a profound difference in the expectations and obligations laid upon combatants during conventional hostilities between military adversaries, and intervention with a humanitarian motive. Whereas what Michael Walzer terms the “war convention” grants license to combatants to act so as to minimize risk to themselves vis á vis the enemy, and so to preserve their lives in combat, the same latitude transparently does not extend to humanitarian exercises. This is because the justification for such actions to begin with, and the subsequent prospects for their enduring legitimacy, rest upon understanding the purpose of the intervening forces as primarily the enforcement of justice, the protection of rights and liberties currently in jeopardy, and the restoration of law and order. Unlike conventional combat, these high moral and legal purposes that provide the justification for humanitarian military intervention are seriously compromised if the intervening forces themselves deliberately, or even inadvertently, behave unjustly, violate rights, infringe liberty, or destroy the rule of law. Like domestic police forces, military personnel engaged in humanitarian actions are therefore not entitled to protect themselves first, or even to inflict unintentional collateral damage on non-military targets or personnel by the principle of double effect, as they might be at least excused for doing under the “war convention” in traditional combatant roles. Rather, such forces are expected instead to incur some risk to themselves, to (as it were) “bend over backwards” to avoid even inadvertent commission of the kinds of acts they are intervening to prevent.

While this may seem straightforward in theory, the practice of humanitarian interventions to date has often diverged significantly from the obligations imposed by this unique, jus in pace constraint. Given the aforementioned absence of clarity and purpose of mission in terms of traditional national interests, military and civilian leaders have been led to formulate policy on the fly, with unfortunate results. Beginning with Michael Ignatieff,[xiii] many commentators have come to lament the resulting emergence of a battlefield doctrine termed “radical force protection,” in which field commanders are ordered to suffer few or even no casualties, for fear that public support for a “humanitarian” mission will quickly erode when a nation’s own precious human resources begin to be consumed in its pursuit. Many military and civilian analysts have commented upon the unfortunate and paradoxical qualities of this doctrine, in which military forces are willing to kill but not willing to incur risk, and have rightly lamented the unintended success of sophisticated battlefield tactics and “hi-tech” weaponry in exporting most, if not all of the risk of armed combat to non-combatants. Martin L. Cook, in this volume, eloquently laments the sense in which both asymmetric warfare (the possession of vastly superior forces and materiéle), and precision-guided weaponry – both of which should have made discrimination between military and non-military targets possible and more precise – have had precisely the opposite effect. The paradoxical quality of “immaculate” or “riskless” war is that it is comparatively “riskless” only for the combatants with superior forces, exporting virtually all risk of harm or death to non-combatants.[xiv]

The growth of the doctrine of “radical force protection” is a logical outgrowth of the application of conventional just war doctrine to a situation in which it is clearly inadequate. The doctrine seems to be a reasonable interpretation of the war convention in an instance in which military objectives are poorly defined, and national interests elusive or non-existent (as occurred, for example, in Vietnam). But even the cursory rationale for humanitarian military intervention that I have provided above leads to precisely the opposite conclusion: namely, that military forces should expect to incur more, rather than less risks, for the sake of enforcing international law and establishing peace.

This is not to say that traditional just war doctrine provides no guidance whatever. Indeed, an additional feature of humanitarian interventions is to re-introduce discussions of morality into foreign policy and international relations (from whence they have long been banned since the days of George Kennan, Dean Rusk and the young Henry Kissinger). Specifically (as I have argued elsewhere) the “Albright Doctrine” resurrects reliance on the venerable, ethical version of just war doctrine, even as it supplants the legal model of international relations in vogue for the past quarter-century, ever since the initial publication of Michael Walzer’s brilliant analysis of that alternative to classical just war doctrine in Just and Unjust Wars (1977). While humanitarian uses of military force have thus contributed to a resurrection and reconsideration of the older, ethical tradition of just war doctrine, I am arguing simply that this doctrine needs to be systematically re-conceptualized to encompass these new applications.

Before turning to this task, I wish to devote further attention briefly to problems posed by the legalist alternative. Yet another feature of the advent of humanitarian uses of force as a principle if not primary justification for the retention and use of national militaries is to call into question the notion of the “nation state” as the primary unit of analysis in international relations. Once again, Martin L. Cook makes reference to this profound change in established ways of thinking about international relations since the Peace of Westphalia in 1643.[xv] Likewise, Stanley Hoffman has excoriated the “political realists” in international relations for their uncritical and unreflective reliance on this artifice as clearly inadequate to the tasks of thinking about the protection of the lives, liberties, and rights of real biological individuals within the borders of such entities whose normal operations have clearly “gone awry.”[xvi]

Summarizing the concerns of Hoffman and Cook in my own terminology, the problem they have delineated with the standard international relations (legal) model is as follows: while it provides appropriate analysis and response to the behavior of “rogue” or “criminal” states, the model is ineffective in delineating appropriate responses to “failed states,” and utterly collapses in the case of “inept” states. International law, grounded in national sovereignty and the protection of identifiable national entities against aggression, is readily able to identify and condemn the behavior of “rogue” states in clear and unambiguous legal terms. Unlike the case of inter-state aggression, however, it is not “against the law” for a nation to “fail,” or to prove inept in providing for the welfare of its own citizens.[xvii] In the case of true failure, as in Rwanda, there are at least reasonably clear guidelines for peace-keeping established within the United Nations Charter that permit (but do not, as we have unfortunately discovered, require) outside intervention to restore peace and order.[xviii] It is the robustness and moral force of these legal permissions that Walzer seeks to clarify and strengthen in order to encompass a situation like Rwanda more effectively. By contrast, it is neither illegal to be, nor do we have guidelines in international law to delineate appropriate responses to, an “inept” state. This is a fatal lacuna, for “inept” states (unlike “failed” states) retain the semblance of viability, but harbor within (or are powerless to resist from without) terrorism, insurrection, border violations, and countless flagrant violations of civil law that collectively lead to the kinds of problems that require humanitarian intervention.[xix]

Inept states constitute a severe problem for the legalist paradigm. Michael Walzer can alternately be thought of as the principle defender of this conception – given his advocacy of legal rather than moral reasoning in international relations – or as a severe critic of this conception – given his profound revisions of its implicit “baseline” usage as that has evolved since the 17^th century. He is certainly not an uncritical acolyte of the sovereign nation-state. What Walzer clearly does wish to defend is a robust notion of international law, in which sovereign nations as the primary units of analysis can be held strictly accountable in clearly defined, legal terminology, for violations of clearly-established legal statutes. This he holds to be a vastly superior mode of analysis to case-based moral reasoning characterizing the older rubrics of the just war tradition. Law is stipulative, while moral reasoning is argumentative. The former is clear (if quite limited in scope), while the latter is inherently vague, even if far-reaching in scope.

The very important qualifications to the baseline model he then proposes, however, in order to generate conditions justifying an international response to terrorism, natural or political disasters, or massive violations of human rights and genocide (for example) seem sharply at odds with the importance he elsewhere attaches to the functional role of the state, and to the justification for the existence of sovereignty he famously develops in Just and Unjust Wars. The substantial qualifications he introduces there and subsequently to handle humanitarian disasters returns the focus of moral analysis to the biological individuals (their needs and rights) for the sake of whom nations are said to exist. The fate of individuals and their nations in international law rests upon a powerful analogy with domestic law, in which such individuals themselves are the primary unit of analysis.[xx] In the domestic instance, however, the fundamental equivocation over moral or legal considerability (that is, over what sorts of entities “count,” or are protected, in law or morality) is largely absent, arising only in the deliberate decision to treat corporate entities (like businesses, organizations, or local governments) as “fictional persons” under very clearly-defined and limited situations. Such equivocation, however, lies at the heart of the international legal dilemma. When do we privilege nations, and when do we privilege their inhabitants? To do the latter almost always involves violations of international statutes and conventions designed to protect the sovereignty of the nation-state precisely for the sake of the peace and security of its inhabitants. This is the heart of what Cook cites as the Westphalian paradigm, and (as he argues) this was all along the carefully-concealed source of its fundamental incoherence.

I am now claiming that this dilemma, this equivocation over moral and legal considerability, is most pronounced in the case of inept states. In the case of “rogue” states, the analogy with the behavior of individual criminals in domestic law covers the range of our responses, at least up to the point of punishment (how do we “punish” criminal states like Iraq without harming their innocent inhabitants, for example?). In the case of “failed” states, like Rwanda, there is (at least temporarily), no government or established, defensible borders any longer to recognize in any meaningful way, as their dissolution is what has provoked the crisis to which the international community responds.

None of this applies to the case of “inept” states like Congo, Sudan, Haiti, or (now very dramatically) Afghanistan. The borders, and the presumably “legitimate” government, are intact, as was the case with the Taliban in Afghanistan. The behaviors that provoke concern (harboring terrorists in Afghanistan, or permitting drug-running, diamond-smuggling, slavery, torture, and extortion in Congo) are not necessarily the acts of the government, let alone do these actions represent the collective will of the people of the nation themselves (in which case they would simply be classified as “rogue states”). Rather, the problem lies instead in the inability or unwillingness (usually the former) of the governments in question to enforce the rule of law or maintain the normal workings of civil society within their own, sovereign borders. These glaring inadequacies of “inept” states, in turn, permit insurgent forces or shadowy international organizations to penetrate and operate within their borders at will, often wreaking as much havoc for the nation’s own citizens (as occurred in both Congo and Afghanistan) as for innocents abroad.

I simply find it clumsy and needlessly ad hoc to attempt desperately to salvage an underlying conception that makes the indictment of these obviously immoral and unjust practices difficult, if not impossible, to understand. It is not “against international law” for a nation to lack the resources to field an effective Coast Guard to ward off terrorists or smugglers (as in Yemen), nor is it against the law for desperately impoverished or ineffective governments to find themselves powerless to prevent terrorist organizations from operating within their borders (as in Sudan and Afghanistan). These are very different situations from promoting or encouraging terrorism, or providing aid and comfort to international criminals, as Iraq, Libya, Iran, and North Korea have been on occasion accused of doing, which is a definable and theoretically punishable offense against international law. It is not clear we can “punish” entities for being poor, or even for being incompetent! Yet the poverty and/or incompetence, when it results in the terrorizing and savage mutilation of citizens by insurgent armies in Congo, or the senseless destruction of innocent workers in the New York Trade Center by misguided fanatics trained on Afghan soil, clearly results in a situation in which some sort of firm response is justified. When one finds oneself, as Walzer does, consistently called upon to invent exceptions to the rules to encompass such situations, it seems to me a clear indication that something is fundamentally wrong with the underlying conceptions to which the exceptions must be granted. Accordingly, let me now turn to my proposed modification of just war theory to encompass these situations.

III. Principles of Jus ad Pacem

Stanley Hoffman, almost alone among commentators on this topic thus far, has begun the process of formulating preliminary criteria by which moral reasoning could be guided in the decision to override national sovereignty and employ military force for humanitarian ends. He has proposed two versions of what he terms a “universal maxim” of jus ad interventionem:

(1) collective intervention is justified whenever a nation-state’s condition or behavior results in grave threats to other states’and other peoples’ peace and security, and in grave and massive violations of human rights;

(2) sovereignty may be overridden whenever the behavior of the state in question, even within its own territory, threatens the existence of elementary human rights abroad, and whenever the protection of the rights of its own members can be assured only from the outside.[xxi]

When we examine these proposals in greater detail, the first seems designed to define something akin to “just cause” in classical just war theory. The first variation of Hoffman’s “maxim” applies to events ranging from the Holocaust to the genocidal acts in Bosnia, Kosovo, and Rwanda. One inherent problem arises from attempting to tie in “grave and massive violations of human rights” with “threats to other states’ and other peoples’ peace and security.” It is not clear that every humanitarian case can fulfill that additional constraint, nor is it clear why this provision would need to be simultaneously met in order to call forth aid to an indigenous population’s own internal threats to its own peace and security brought on by acts of its own government or fellow citizens. It bears mention, however, that the tragic events within the borders of Kosovo, Haiti, Somalia and even Rwanda did encompass at least veiled threats to others peoples’ peace and security, broadly construed.

In the second provision, Hoffman addresses the sovereignty problem explicitly. He seems to be attempting to address at least partially the notion of “legitimate authority.” Both provisions of the maxim seem to imply that legitimate authority in humanitarian interventions is restricted to “the international community” or to collectivities of some sort. But while this restriction is inherently appealing owing to its caution, it merely begs, rather than addresses, the comprehensive and complex question of legitimacy. Why should not a country (India, or Tanzania, or Vietnam, for example) be empowered to “invade” a neighbor (East Pakistan, Uganda, or Cambodia, respectively) engaged in massive violations of human rights carried out against its own citizens? And why should the “international community” be obliged to wait to prevent what Walzer describes as “gross and massive” violations of human rights like this until some perceived threat to other states’ freedom and security is detected? Current agreements and U.N. policies on collective security seem to have governed this cautious attitude, but for those who found the U.N. debacles in Bosnia and Rwanda less than satisfying, it is worth reminding ourselves that these collective humanitarian actions were carried out under the constraints imposed by such existing agreements and conventions, which do not appear to begin to address the complexity of the humanitarian problem.[xxii]

At present, the criterion of “legitimate authority” appears to be largely taken for granted: all legitimate humanitarian interventions, it would appear, should come about through multilateral debate and decision, and should reflect the collective will of the international community. Unilateral interventions should be prohibited. Does this, however, mean that the international community cannot appoint a single nation to act as its agent (as, for example, in the cases cited above, where individual nations did seem to intervene for appropriate humanitarian purposes in the “internal affairs” of a neighboring state)? Likewise, the role of regional security organizations, like NATO, needs to be more carefully explored as a possible legitimate agency. Interventions carried out by such regional security collectivities would neither be unilateral (and so not strictly proscribed) nor sufficiently multilateral to qualify as legitimate authorities under conventional understandings of that concept. Perhaps language should be included within any new jus ad pacem rubric to address problems, like Bosnia and Kosovo, that seem to fall as responsibilities primarily to a region (i.e., Western Europe) rather than to the international community as a whole, permitting the affected region’s security and cooperation organization to act as the legitimate authority in such a case.

Starting with Hoffman’s proposals, and continuing with the qualifications and clarifications I have begun to introduce above, I believe we are at last in a position to formulate a complete list of jus ad pacem or jus ad interventionem (including some preliminary provisions for restrictions on battlefield conduct, or jus in pace), sufficient to govern involvement in humanitarian exercises. While there is no compelling need to require that such criteria perfectly match the seven conventional provisions of just war doctrine, it will help guide our discussion and ensure a full and comprehensive treatment of the problem if we use the traditional provisions as guideposts for our proposed new formulations.

1. Justifiable Cause for Intervention. Let us begin with the humanitarian equivalent of “just cause.” Hoffman’s original proposal needs some modification and clarification. It should, I believe, read as follows:

“Humanitarian intervention is justified whenever a nation-state’s behavior results in grave and massive violations of human rights.”

This needs to be understood in two senses:

(a) intervention is justified when these behaviors result in grave threats to the peace and security of other states and other peoples, and

(b) intervention need not be restricted to such cases, but may be justified when the threats to human rights are wholly contained within the borders of the state in question.

2. Legitimate Authority. Secondly, if completing Hoffman’s preliminary investigation of this issue, we must ask what gives the interventionists the right to ignore international borders and nation-state sovereignty in order to respond to the clear humanitarian emergencies cited in the first provision. A modification of Hoffman’s second criterion from his original “interventionist maxim” would read as follows:

“Sovereignty may be overridden whenever the protection of the rights of that states’ own citizens can be assured only from the outside.”

But this is clearly not sufficient in itself to establish legitimacy. We need several additional qualifications. Hoffman’s own formulation seems to contain two additional qualifications:

(a) sovereignty may be overridden whenever the behavior of the state in question, even within its own territory, threatens the existence of elementary human rights abroad, and my clarification of this point,

(b) sovereignty may be overridden even when there is no threat to human rights outside the borders of the state in question, providing the threat to that state’s own citizens are real and immediate.

This still leaves the question of “who” is to determine whether such threats are “real and immediate?” In short, we have not yet exhausted the account of legitimacy that interventions seem to require. Here I propose a second clause that seems to capture widespread concern on the part of most commentators on this problem that such judgments should be collective rather than unilateral, in order to ensure “right intentions” (see below) and exclude ulterior, self-interested motives.

“The decision to override sovereignty and intervene must be made by an appropriate collective international body.”

This does not, however, mean that the intervention itself must constitute a collective military action, although there are ample grounds for finding that preferable. Instead, in light of our recent experience and my analysis above, this legitimacy provision seems to entail the following:

(a)The decision to intervene can never be undertaken unilaterally; however

(b) a unilateral agent of intervention may be authorized by an appropriate international tribunal; and also

(c) a regional security organization may be authorized by an appropriate international tribunal to undertake a military intervention for humanitarian purposes.

3. Right Intention. I suggest that much of the concern over multilateralism and collective action concerns the possibility of conflicted and self-interested motives. This needs to be addressed explicitly. Paul Christopher notes that Hugo Grotius originally licensed military interventions for clear humanitarian purposes (such as the prevention of cannibalism, rape, abuse of the elderly, and piracy), and simultaneously warned against the likelihood of hidden and less noble agendas, such as greed, religious and cultural differences, and national self-interest, poisoning the presumptive humanitarian and disinterested motivations.[xxiii] These considerations lead straightforwardly to the following restrictions on the use of force for humanitarian purposes, in terms of “right intention’”.

The intention in using force must be restricted without exception to purely humanitarian concerns, such as the restoration of law and order in the face of natural disaster, or to the protection of the rights and liberties of vulnerable peoples (as defined in the United Nations Charter and the Universal Declaration of Human Rights).

Furthermore, the intentions must be publicly proclaimed and clearly evident without conflict of interest to the international community. Intervening nations and their militaries should possess no financial, political or material interests in the outcome of the intervention, other than the publicly proclaimed humanitarian ends described above, nor should they stand to gain in any way from the outcome of the intervention, other than from the general welfare sustained by having justice served, innocent peoples protected from harm, and peace and order restored. A useful protection against abuse of this provision is for the intervening powers not only to state clearly and publicly their humanitarian ends, but also to set forth a set of conditions under which the need for intervention will have been satisfied, together with a reasonable timetable for achieving their humanitarian goals. Suspicion of possible ulterior motives might be further allayed not only by ensuring the trans-national character of the intervention, but by providing (in the publicly-stated proposal to undertake it) for periodic rotation, where feasible, of the specific nationalities involved in carrying out the action.[xxiv]

4. Last Resort. On the face of it, this provision seems easy enough to formulate for humanitarian uses of military force.

Military intervention may be resorted to for humanitarian purposes only when all other options have been exhausted.

What this means is that good faith efforts by the international community must be made to avert humanitarian disasters within the borders of a sovereign state through diplomatic negotiation, economic sanction, United Nations censure, and other non-military means as appropriate. In practice, this is easier said than done, and could result (as in Rwanda and Bosnia) in delaying necessary deployment of force to prevent a humanitarian tragedy while the “international community” wrings its collective hands ineffectually, worrying whether all other available options have been satisfied. Paul Christopher’s sensible proposal from the standpoint of just war theory, applied to humanitarian cases, is that “[this] condition is met when reasonable nonviolent efforts have been unsuccessful and there is no indication that future attempts will fare any better.”[xxv]

5. Likelihood of Success. Johnson and Christopher tend to collapse or blend their concerns for the criterion of likely success into others treating everything from last resort and legitimate authority to the proportionality of war to its stated ends. I favor keeping this criterion distinct, as providing a unique and important constraint on the decision to deploy force for humanitarian reasons.

Military force may be utilized for humanitarian purposes only when there is a reasonable likelihood that the application of force will meet with success in averting a humanitarian tragedy.

This innocent and seemingly-obvious provision in fact imposes something like Weinberger Doctrine constraints on those whose moral outrage or righteous zeal might tempt them into military adventures for which the intervening powers are ill-prepared and unsuited, or which might make an already-bad situation even worse. Specifically, let me suggest:

(a) a resort to military force may not be invoked when there is a real probability that the use of such force will prove ineffective, or may actually worsen the prospects for a peaceful resolution of the crisis; and

(b) military force may not be employed, even for humanitarian ends, when the international community is unable to define or determine straightforward and feasible goals to be achieved by the application of force.

These Weinberger-like constraints are also important as reassurances to those political representatives of that camp who have been extremely reluctant to embrace what otherwise appears to be an international moral obligation to render humanitarian assistance or prevent avoidable tragedies when we as bystanders are in a position to do so (the “interventionist imperative”).

General Anthony Zinni, speaking of his experiences in Somalia,[xxvi] warns us that this traditional criterion limiting military force has a special urgency and ambiguity in the humanitarian instance. Militaries, including the American military, are not primarily oriented or necessarily well suited to carry out the varieties of tasks a true humanitarian exercise may require. It is difficult in advance to predict just what sorts of activities these may comprise, but they certainly transcend the straightforward projection of lethal force to include also civil engineering, police and law enforcement, and other functions of a stable civil society. In some instances, military experts on hand may perform, say, civil engineering functions (like water purification, distribution of food rations, or bridge and road construction) as readily and ably as civilian counterparts. In other instances, as occurred in Somalia, the need to resurrect a moribund legal system and to re-establish police, courts, and a working prison system may push the intervening forces into roles they are ill-prepared and ill-equipped to play, with disastrous consequences. Yet, as Zinni notes, any attempt to avoid engaging in these necessary nation-building exercises is likely to doom the humanitarian mission to failure.

6. Proportionality of Ends. It is not sufficient, however, to demand that military intervention be successful, or that it merely refrain from worsening a bad situation. The NATO air campaign in Kosovo satisfied both constraints, but concerns abound regarding the consequences of the aforementioned doctrine of force protection, and the resulting civilian casualties sustained (e.g., from height restrictions imposed on attacking aircraft).

The lives, welfare, rights and liberties to be protected must bear some reasonable proportion to the risks of harm incurred, and the damage one might reasonable expect to inflict in pursuit of humanitarian ends.

In the end, it seems to me that the debates over this aspect of the Kosovo air campaign come down to this provision, although the question of whether to engage in that intervention initially focused on what amounted to discussion of criterion 5. Post-mortems and continuing analysis of the results of that intervention now routinely raise the question of whether the damage inflicted in an effort to stop the threatened genocide by Serbian troops against Kosovars (as a result of force-protection measures imposed, including the unwillingness to commit ground troops to the exercise) was, in the end, unduly large.[xxvii]

It is at this stage that discussions of justifiable military intervention for humanitarian ends shift from the actual discussion of the justification of such intervention, to discussions, similar in some respects to traditional law of armed combat (jus in bello), governing the manner in which intervening forces may operate and conduct themselves. The Kosovo debate illustrates this ambiguity clearly. Given what was known of Serbian intentions within the province of Kosovo, based upon substantial prior experience elsewhere in the region (in Bosnia and Herzegovina, for example), there was every reason to anticipate that the anticipated casualties to be suffered by innocents in the absence of armed intervention of whatever sort would vastly outweigh any anticipated “collateral damage” that the intervening forces might inadvertently inflict themselves. While any attempt to engage in such calculus is necessarily fraught with difficulty, it seems that most observers agree that this condition (taken as a constraint to be satisfied in the initial decision to deploy military force) was amply satisfied.

What is being debated after the fact, then, is no longer the initial justification of the intervention, but the manner in which it was ultimately carried out. Jus ad pacem demands that a reasonable evaluation of the likely overall outcomes (including necessary forms of military deployment and conduct during the intervention) be undertaken before deciding whether to undertake the mission. By contrast, what is now being debated is whether, during a justifiable humanitarian mission, reasonable resulting constraints on the conduct of military forces during the humanitarian mission were violated in selected instances. This takes us to our final consideration.

7. Just Means, Moral Means (or, Proportionality of Means). It is a sign of the residual unclarity within the just war tradition itself that commentators differ over just what the “final” provisions of the tradition entail. Many follow James Turner Johnson’s synthesis of the tradition as concluding with the provision that just wars must be fought for the aim of peace. I find that redundant, particularly in the case of humanitarian intervention, as this stated end or intention is explicit in the formulation of the concept, and in the third provision, above, that interventions (in addition to conventional justifiable wars) be entered into for the sake of restoring order and establishing peace. For this reason, the jus ad pacem label is particularly appropriate for the list of constraints imposed on humanitarian military intervention.

The concern that remains unaddressed is something equivalent to the traditional jus ad bellum requirement that justifiable wars must be prosecuted by just means. There are a variety of ways of capturing this essential insight, which may well be the most important and difficult provision to achieve in practice for otherwise justifiable, if not downright obligatory, military interventions. This would not be surprising, as strict compliance with jus in bello, particularly the principle of discrimination between combatants and non-combatants, remains the most elusive component of just war theory generally.[xxviii]

The morality of the means employed to carry out a humanitarian intervention, or to achieve its stated goals, must be commensurate with, or proportional to, the morality of the cause or ends for the sake of which the intervention is conducted. Transparently, a military intervention conducted for the sake of protecting human rights or averting a humanitarian tragedy cannot itself rely upon military means of intervention or modes of conduct by military personnel which themselves violate the very rights the interventionists sought to protect, or which provoke a humanitarian tragedy of dimensions similar to the original impending tragedy the interventionists sought to avert.

The last phrase in particular captures the concerns of critics of the NATO bombing strategy, and the concomitant decision against using low-flying Apache combat helicopters or ground forces, for the sake of force protection and the minimization of allied combat casualties in Kosovo. The critics, both military and civilian, are not quibbling about criterion 6 above from the advantage of hindsight, so much as calling attention to this paradoxical feature of the use of deadly force for humanitarian purposes, the details of which I have collectively labeled jus in pace or jus in interventione.

Humanitarian intervention can never be pursued via military means that themselves are deemed illegal or immoral.

As I have suggested throughout this essay, the provisions and restrictions upon the conduct of military forces that this final provision imposes are not well understood, but are certainly more, rather than less, constraining that traditional jus in bello or law of armed combat, while including those tradition provisions as well. Specifically, for example:

(a) captured belligerents must be treated as prisoners of war according to established international conventions, and may not be mistreated or subject to trial or sentence by the intervening forces;

(b) prisoners of war accused of humanitarian crimes and abuses may be bound over for trial by an appropriate international tribunal;

(d) military necessity during humanitarian operations can never excuse the use of weapons, or pursuit of battlefield tactics, already proscribed as illegal under established international treaties and conventional law of armed combat;

(e) finally, military necessity during humanitarian operations cannot excuse tactics or policies, such as “force protection,” that knowingly, deliberately, and disproportionately reallocate risk of harm from the peace-keeping forces and belligerents to non-combatants. It is not sufficient that humanitarian military forces simply refrain from excessive collateral damage, or merely refrain from the deliberate targeting of non-combatants. The very nature of intervention suggests that the international military forces (like domestic law enforcement personnel) must incur considerable additional risk, even from suspected guilty parties, in order to uphold and enforce the law without themselves engaging in violations of the law.

Paragraphs (a) and (c), and (d) capture the conventional constraints characteristic of jus in bello. Paragraph (b), however, begins to suggest the character of law enforcement that humanitarian interventions may entail. Paragraph (b) implies that the intervening forces are not, in the name of protecting or minimizing casualties among their own personnel, permitted to turn a blind eye toward international criminals operating in their midst, but have the same obligations to apprehend criminals and enforce justice that their domestic peace-keeping counterparts do. Moreover, it explicitly states that if, during the course of an armed intervention or afterwards, an apparent perpetrator of criminal actions such as Slobodan Milošević or Osama bin Laden is apprehended, then (as with conventional domestic criminals) the duty of the intervening forces is to ensure that the accused is properly treated and bound over for trial in a legal manner.

Why do I suggest this? Let me hasten to say that is not because I believe that murderous Yugoslavian thugs or spoiled, vain, and destructive miscreants like bin Laden are somehow especially entitled to avail themselves of the tender mercies of the law which they have otherwise scorned. Instead, there is an important practical element at work in this provision. It properly classifies terrorism and its proponents as “criminals” carrying out “crimes against humanity,” rather than dignifying their actions as quasi-legitimate acts of “war,” or otherwise conferring upon their perpetrators and their shadowy, non-state organizations the status of statehood. The important domestic analogy is the continuing struggle to avoid “romanticizing” the activities of organized crime or dissident factions within a nation-state with a quasi-cultural status as “acts of war,” lest we seem to be sanctioning or excusing the resulting violence and threats to legitimate and established order. No matter how legitimate the grievances of such individuals and organizations may otherwise be found to be, it is vital not to permit them or ourselves to fall into the fatal trap of somehow legitimating criminal actions (whether of Timothy McVeigh, Bonnie and Clyde, or Osama bin Laden) as if these were some sort of populist redress of grievance or otherwise-justifiable protest against the injustices they purport to cite.

It is precisely this recognition of the radically different moral status of these criminals, and of the international society against which they have set their faces and directed their actions, that imposes special burdens and responsibilities on the decorum and behavior of intervening forces, sent to enforce and uphold the law. Paragraph (e) thus directly enjoins the as-yet-unresolved paradox posed by the increasing tendency toward force protection in the course of carrying out humanitarian interventions. I suggested in the preceding pages that such tactics evolve as a result of thinking dictated by conventional just war theory and international relations, according to which national sovereignty and national interests are the primary units of analysis. These serve to define the nature of the limitations placed upon an individual’s self-sacrifice during wartime, as described in Walzer’s “war convention.” Since these provisions are almost always lacking in truly justifiable humanitarian interventions, the concerns they engender, while understandable, are seriously misplaced.

What we require of the intervening forces is not merely that their controlling interests and command structures lack any personal conflicts of interest in the enforcement of justice, protection of rights, and establishment of peace, but that they be willing to incur risk and put themselves in harm’s way for the sake of these moral ideals, and with an end of securing (and certainly not themselves threatening or destroying) the blessings of rights and liberty to the vulnerable and endangered victims whose desperate plight initially prompts the international call for military intervention. This is not an imposition of lofty moral idealism, but a simple requirement for consistency of purpose that civilized society routinely imposes upon itself, and particularly upon those who chose to uphold and defend civilization’s highest ideals and most essential governing principles. In humanitarian interventions, as in domestic law enforcement, we cannot and we do not forsake our laws and moral principles in order to enforce and protect them.

These jus in pace criteria, and especially this final provision, are not as strange, stringent, or unreasonable as they may at first seem, since we ask precisely these same commitments of any domestic law enforcement agency or authority. It is, I have argued, in the nature of humanitarian intervention that it not only restores a legitimate role to morality in foreign policy, but that it begins to import some of the more cherished securities and civilizing protections of domestic civil society into the international arena precisely to supplant the anarchy, ruthlessness, and terror that still too often flourish in the darker regions of our new global order.

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