Case Study in Somalia

Humanitarian Intervention and Just War

Author(s): Mona Fixdal and Dan Smith

Source: Mershon International Studies Review , Nov., 1998, Vol. 42, No. 2 (Nov., 1998),
pp. 283-312

Published by: Wiley on behalf of The International Studies Association

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Mershon International Studies Review (1998) 42, 283-312

Humanitarian Intervention and Just War*

MONA FIXDAL

Department of Political Science, University of Oslo

DAN SMITH

International Peace Research Institute, Oslo

Humanitarian intervention is one of the primary international security
problems of today. As an object analysis, it sits at the intersection of the
realist and idealist traditions in the study of international relations.
Despite its high profile, debate on humanitarian intervention is unsatis-
factory; participants talk past one another and most discussion is devoid
of ethical concepts. In particular, there is a striking absence of explicit
reference to the Just War tradition. Only scholars of international law
have explicitly and systematically examined normative issues, but their
focus seems too narrow. The result is a series of what appear to be arbi-
trary judgments about when humanitarian intervention is justified
combined with an often fundamental misunderstanding of the interna-
tional system. This essay presents a sketch of the Just War tradition’s main
concepts and argues that it is both possible and advantageous to resort to
them in discussing and evaluating humanitarian intervention. The article
then applies these concepts to the recent debate on humanitarian inter-
vention and shows that almost all of the concerns raised in this

scholarship fit within the Just War framework. The essay focuses on the
criteria from the Just War tradition that deal with when to resort to the
use of armed force.

It would be impossible for the world to be happy … [if] the innocent were not
allowed to teach the guilty a lesson (Vitoria 1557[1991]:298).

Humanitarian intervention has become one of the most debated topics in interna-
tional politics today. It is among a group of problems-civil wars, conflict resolu-
tion, and conflict prevention-that are forming the keynotes of security since the

*The authors wish to thank the Norwegian Ministry of Defense for financial support for the research that made
this article possible. The ministry, however, is not responsible for either its contents or its conclusions. The authors
also want to express their appreciation to Henrik Syse, Greg Reichberg, and Anthony McDermott as well as the editor
of this journal and several anonymous reviewers for their comments on earlier drafts.

? 1998 The Mershon Center at The Ohio State University.
Published by Blackwell Publishers, 350 Main Street, Maiden, MA 02148, USA, and 108 Cowley Road, Oxford OX4 1JF, UK.

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Humanitarian Intervention andJust War

end of the Cold War, much as the arms race, deterrence, and disarmament were
until the Soviet Union ceased to exist. Humanitarian intervention is a largely-
though not wholly-new area of inquiry within academic international relations.
Yet it offers, among other things, a chance to revisit a theme that is both perennial
and “arguably the hottest topic in international relations theory today” (Kegley
1995:1)-the debate between idealism and realism.

Idealism is inherent in the premises for humanitarian intervention. There has
been much discussion of “the CNN effect” (Gow 1997:215-216; Holbrooke 1998:
34-35, 91), which is believed to have directed the political agenda in Western
Europe and North America toward peacekeeping operations in Iraq, Bosnia, Haiti,
Rwanda, and Somalia. It is a shorthand term for a process by which an ethical
response to a large-scale tragedy is first aroused and then translated into political
action. Beyond the motivation, humanitarian interventions are multilateral and
based on cooperation. Such is the stuff of idealism. Meanwhile, realism emerges in
the recognition that the actors in the multilateral operations are the governments
of states, acting out of a mix of short- and long-term interests. Humanitarian inter-
vention is never purely humanitarian.

An opportunity to revisit the idealist-realist debate may not stir much interest.
The discipline’s habit of navel-gazing distracts attention and, perhaps, energy from
worthwhile research on real-world problems (Goldmann 1995). Moreover, the
debate is often narrow in scope; more than anything else, it reflects the uncertain
and unsatisfactory bounds of the current field of international relations (Smith
1996). Accordingly, if the debate is to be revisited, it must be done in terms that
can be more productive than simply recycling old, familiar hypotheses and a priori
assumptions. Given that humanitarian intervention contains aspects of both ideal-
ism and realism and is a topic born of the post-Cold War, it offers us a new context
and a different set of problems and issues to examine in exploring this old debate.

The quantity of international relations literature in the 1990s on humanitarian
intervention-that is, intervention into armed conflicts for humanitarian purposes
with a range of means including armed force-shows that the field has responded
quickly to the need to shift focus in the post-Cold War era. In preparing this essay,
we reviewed a large portion of this literature. Like Richard Little (1993), we found
“surprisingly little” research leading toward a general theoretical understanding of
intervention. There are no doubt many reasons for this fact, but three stood out to
us as we read.

The first is the extent to which people talk past one another (Hoffmann 1995-
1996; Smith 1997). While some writers focus almost exclusively on moral ques-
tions, such as whether there is a right or duty to intervene, others are mainly con-
cerned with political, strategic, and prudential questions. Divorcing the issues in
this way is unfortunate and unnecessary. The moral and the strategic are inti-
mately connected; what is required is a framework of argument that embraces
both.

The second is that very little of the ethical argument passes muster. With few
exceptions, the ethical issues are dealt with less convincingly, systematically, and
competently than the strategic and political issues. This literature shows a distinct
bias against normative arguments, even when discussing normative issues.

The third is that, with one exception, all the arguments in the intervention lit-
erature fit the framework of the Just War tradition, but there is very little direct ref-
erence to that tradition in the material. The exception is not unimportant: it is
the question of will, or the lack of it, which has been a central feature of criticisms
of United Nations’ (UN) action in Bosnia (Gow 1997). That apart, the literature
draws implicitly on considerations and arguments that have been discussed in the

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MONA FIXDAL AND DAN SMITH

Just War tradition since its origins in the early medieval period. Such a finding
should not be surprising. In Western culture, the Just War tradition is the tradition
for addressing moral questions about when and how to use force. As James Turner
Johnson (1984:11, emphasis in original) argues:

The name just war stands for a broad and consensually shaped tradition in Western
culture on the problems ofjustifying and restraining the violence of war; as products
of that culture, we cannot shuck off these traditional ways of thinking by a simple act
of will.

Despite this observation, only a few works on intervention refer directly to the
Just War tradition. John Becker (1995) does so skeptically, while Nicholas Hopkin-
son (1993:8-9) seems to do so unknowingly, listing several criteria for humanitar-
ian intervention that are identical with important Just War criteria without
referring explicitly to that tradition. Robert Myers (1996) rejects the tradition’s
general validity, while Mervyn Frost (1996:199-200) dismisses its relevance to civil
war and intervention. Oliver Ramsbotham and Tom Woodhouse (1996:226, 228;
see also Ramsbotham 1997, 1998) list twelve principles for humanitarian interven-
tion, several of which correspond to Just War criteria, even though they mention
the tradition itself only briefly. Charles Stevenson (1996) justifies the Clinton Doc-
trine on use of force by using Just War concepts, but misleadingly presents them
all as absolute conditions. Others (e.g., Fisher 1994; Sharp 1994, 1997; Smith
1994, 1997; Hehir 1995; Collins and Weiss 1997; Harff 1997) give the tradition a
more important place in analyzing the literature on the appropriate modes of
humanitarian intervention.

The purpose of this review essay is to show that the Just War framework is able
to encompass most of the main arguments in the current humanitarian interven-
tion literature and, thus, that the debate on humanitarian intervention would
benefit from more explicit use of this framework. Our procedure is to group the
various assumptions, arguments, and views on intervention according to the logic
of the Just War tradition. Structuring a diverse literature according to the catego-
ries of one tradition with which that material barely engages runs the inevitable
risk of simplifying arguments and ignoring significant nuances. Nonetheless, we
believe that the enterprise is justified, if only because explicit engagement with the
Just War tradition will improve our understanding of this important phenomenon.

In the next section, we sketch the main points of the Just War tradition (or
framework). In this essay, for reasons of space, we address only one part of this tra-
dition-that which concerns the decision to resort to arms. We will not consider

the other part-the right and wrong ways to use force once the decision has been
made to use it. We will present arguments that explain why it is both possible and
advantageous to resort to the Just War tradition in the context of humanitarian
intervention. Having, we hope, established a comprehensible outline of the Just
War tradition, we then discuss the one part of the intervention literature that has
seriously and consistently addressed normative questions-the literature on inter-
national law. We use this section to distinguish between legal and ethical concepts
of justice and to propose that the hegemony of arguments based on the law pull
the debate on intervention in an unproductive and unrealistic direction. Follow-
ing this presentation, we review the intervention literature in the light of the six
criteria drawn from the Just War tradition.

The Just War Tradition

Just War is the name for a diverse literature on the morality of war and warfare
that offers criteria for judging whether a war is just and whether it is fought by just

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Humanitarian Intervention and Just War

means. This tradition, thus, debates our moral obligations in relation to violence
and the use of lethal force. The thrust of the tradition is not to argue against war
as such, but to surround both the resort to war and its conduct with moral con-
straints and conditions.

The literature on Just War is usually traced back to Saint Augustine of Hippo in
the fifth century. The theme was revived in the twelfth century and was made
systematic by Saint Thomas Aquinas in the thirteenth century. As a received tradi-
tion, it is Christian and largely Western-though it draws on ancient Greek phi-
losophy, there is a comparable concept in the Koran (Armstrong 1993:156), and a
similar debate in Islam (Martin 1991; Mayer 1991). European theologians were
primarily responsible for formulating the specific Just War criteria for judging the
morality of war that we discuss here. The tradition has also been influenced by
canon lawyers, legal scholars, secular philosophers, and military strategists (ohn-
son 1975, 1991: Barnes 1982).

There are two Just War categories, ius ad bellum and ius in bello. The former con-
cerns when we may justly resort to war, and the latter discusses how the war may
legitimately be fought. Table 1 presents the main criteria in each category together
with brief explanations of what the particular criteria mean. The criteria listed in
this table are primarily drawn from the work of Richard Miller (1991:13-15).

Some may argue that it is inappropriate to transfer the concepts and criteria of
the Just War tradition to the issue of intervention. After all, the tradition devel-
oped primarily within theology. The main question facing Augustine and Aquinas
was whether a Christian could legitimately resort to force. In the modern era, some
scholars still argue for a religious Just War ethics (e.g., Ramsey 1968), but most
moral philosophy is secular, as is our approach here.

Although theology was the most important formative influence on the Just War
tradition, it was not the only one. Another source, especially for the in bello crite-
ria, was the medieval chivalric code (Johnson 1975, 1981). The medieval knight’s
duty to protect the innocent or the weak was one of the first attempts to codify
immunity for noncombatants. On the ad bellum side, the sixteenth-century Refor-
mation led to a partial secularization, splitting apart the secular from the religious

TABLE 1 Just War Criteria by Category

Criterion Definition

Ius ad Bellum (the Justice of Resort to War)

Right authority Only a legitimate authority has the right to declare war.

Just cause We are not only permitted but may be required to use lethal force if we
have a just cause.

Right intention In war, not only the cause and the goals must be just, but also our motive
for responding to the cause and taking up the goals.

Last resort We may resort to war only if it is the last viable alternative.

Proportionality We must be confident that resorting to war will do more good than harm.

Reasonable hope We must have reasonable grounds for believing the cause can be achieved.

Relative justice No state can act as if it possesses absolute justice.

Open declaration An explicit formal statement is required before resorting to force.

Ius in Bello (the Justice of the Conduct of War)

Discrimination Noncombatants must be given immunity and protection.
Proportionality Military actions must do more good than harm.

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MONA FIXDAL AND DAN SMITH

and the Protestant from the Catholic, but there was often agreement across these
divides. Most religious philosophers maintained that war for religion was the most
just cause for the use of force. In their opposition to this point of view, secular
scholars were joined by the influential Catholic theologian, Vitoria (1557 [1991:
302]). Secular philosophers who thought about justice in war in terms of natural
law were identifiably inspired by writers such as Augustine and Aquinas. In their
interpretations of right, the Jesuit Francisco Suarez (1621 [1944]) and the Protes-
tant Hugo Grotius (1625 [1990]) were closer to each other than to some of their
respective coreligionists (Skinner 1978:284-301). Those readers deterred by the
theology in Just War arguments may be reassured by the tradition’s inclusion of
both secular and ecumenical elements.

The Just War tradition has several advantages in dealing with the range of prob-
lems involved in determining the legitimacy of using force. Its first advantage is
that it recognizes politics and the reality of power alongside ethics. The relevant
parts of Augustine’s (427 [1984]) City of God are an effort to move away from early
Christian pacifism without ceding Christian virtues. Writing in the wake of the sack
of Rome, Augustine points to the flaws and sinfulness of human nature that make
wars necessary but that do not give license to taking war as an occasion to suspend
the struggle to be virtuous. He (Augustine 427:XIX, 7 [1984:861-862]) confronts
the dilemmas that force wars upon the unwilling, saying:

But the wise man, they say, will wage just wars. Surely if he remembers that he is a
human being, he will rather lament the fact that he is faced with the necessity of wag-
ingjust wars; for if theywere notjust, he would not have to engage in them, and conse-
quently there would be no wars for a wise man.

For Augustine, then, wars always have been and will be a part of earthly life. He is
sometimes referred to as an early realist, but City of God shows him to be subtler
than that, sitting on the cusp between realism and idealism, seeking the virtuous
path through a sinful world. Nearly sixteen centuries later, identifying the need to
balance between recognizing a painful reality and attempting nonetheless (or
therefore) to do the right thing remains a major achievement of the Just War tra-
dition. This tradition provides the means for avoiding the tendency in so much
writing on international relations to present ethics and politics as disconnected
and dichotomous. Ethical and political arguments address problems from differ-
ent angles; it is legitimate to distinguish between them, but unhelpful to treat
them in isolation from one another.

A second advantage of the Just War tradition is that by recognizing the imper-
fections of the human world, the framework also acknowledges the moral impor-
tance of consequences. The use of force, in itself undesirable and normally wrong,
may nevertheless be necessary and right in some circumstances. Even then, it can
have harmful effects. Thus, it is important but not enough to have virtuous aims.
The Just War framework reflects three major ethical traditions: deontology, conse-
quentialism, and virtue ethics. In deontology, priority is given to the need for our
actions to fulfill the duties we owe to others; actions are judged on the basis of
whether they conform to standards derived from, for example, the concepts of
natural law. In consequentialism, priority is given to the need for the effects of our
actions to fulfill the duties we owe to others; actions are judged by whether they
promote welfare, happiness, or other good effects. In virtue ethics, priority is given
to the need for our actions to fulfill the duty we owe ourselves to fulfill the duties
we owe to others; thus, it is the actor who is judged rather than the action, based
on whether the person has a good character and good intentions. Duty, effects,
and the character of the actor are themes that reverberate in Just War philosophy
and the intervention literature.

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Humanitarian Intervention and Just War

The third advantage of the Just War traditions builds on the idea that the imper-
fections of the world and the discrepancies that often exist between virtuous inten-
tions and uncertain consequences encourage us to ponder each case before making
firm judgments about the legitimacy of a war or intervention. TheJust War tradition
meets this challenge through its distinctive, case-specific form of argument. In this
tradition, moral principles set guidelines and admit of exceptions, compromises,
and the clash between desire and reality. This form of argumentation goes by the
name of casuistry. The advantage of casuistry is that, rather than submitting moral
dilemmas to the “tyranny of principles” (Jonsen and Toulmin 1989:5), it attempts to
bring morality and actuality onto the same plane. Conclusions arise not from strong
preconceived notions about justice in war (or intervention) but from sensitivity to
the reality of the particular war (or intervention).

This flexible discursive mode is well suited to the complex challenges of inter-
vention in current conflicts. Few would hold that all interventions are morally
right-or wrong. In most interventions, the complicated circumstances can lead
debate in different directions. Rigid moral principles do not help us deal with this
complexity. Does a failure to meet the test of proportionality, for example, tip our
judgment against intervention even though there is an unquestionably just cause?
If there is just cause and every reason to believe the intervention will succeed and
do little damage, should we hold back because of problems about legitimate
authority? These questions cannot be answered by propounding general princi-
ples except at such a level of generality as to be effectively useless. But that is no
reason to conclude that intervention cannot be subjected to moral philosophy
(Jackson 1993) or governed by ethical rules (Rengger 1993). The answer lies in
achieving a balance between moral and political arguments as well as between the
care for motives and for consequences. Such a balance is characteristic of the Just
War tradition.

International and International Ethics

The normative perspective most frequently found in the current literature on
humanitarian intervention is grounded in international law and human rights.
International legal scholarship brings to the examination of this type of interven-
tion the explicitly normative discourse that is appropriate for an evidently ethical
issue. For this linkage, it deserves credit. The scope of that discourse, however,
focuses narrowly on how to balance state sovereignty and human rights against
each other (e.g., Reisman 1990; Gardner 1992; Scheffer 1992; Carty 1993; Don-
nelly 1993; Greenwood 1993; Johnson 1993; Leifer 1993; Pease and Forsythe 1993;
Himes 1994; Lyons and Mastanduno 1995). Achieving this balance is no small
issue, of course. For three centuries, the state has been the organizing principle of
political power, political philosophy, and political science (Hoffmann 1995-1996).
And human rights have become a major feature of both political and ethical dis-
cussion in the late twentieth century. That said, a legal discussion of sovereignty
and human rights by no means exhausts the ethical issues raised by humanitarian
intervention. Moreover, the issues are not nearly as straightforward as some of the
more aggressively normative legal literature supposes. Before we propose a differ-
ent normative route be applied to further discussions within the intervention
literature, it is worth considering four important shortcomings in the current
international legal writing on intervention.

The first is the simultaneously empirical and analytical error of assuming that
the age of sovereign states is coming to an end in a timescale that will affect the
current intervention debate. Empirically, this assumption is untenable. Presently

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MONA FIXDAL AND DAN SMITH

there are more sovereign states than there have ever been, and they keep appear-
ing. One calculation is that in the nineteenth century new sovereign states were
founded at an average rate of one every four years, compared with every eighteen
months in the first half of this century, and every five months in the second half
(Kidron and Segal 1995:154). In analytical terms, of course states’ sovereignty is
limited (Onuf 1995; Watson 1997). The mistake is to think that there has been
any period in the past five centuries when it has also not been limited. Today
there may be changes in degree, but the basic principles of states’ behavior have
not changed (Krasner 1995). Most states’ capacity to meet today’s major problems
is limited; however, there is no other agency that can mobilize the necessary
resources and organize solutions to these pressing problems (Halliday 1994).
While the increasing number of interventions is taken by some writers (e.g.,
McCarthy 1993; Jackson 1995; Lyons and Mastanduno 1995; Rosenau 1995; Lugo
1996) as one sign of the collapse of the state system, such a trend can also indi-
cate the shoring up of state sovereignty (Forbes 1993). For example, strengthen-
ing state sovereignty in southeastern Europe was persuasively presented as one of
the objectives of intervention in order to prevent ethnonationalist violence from
spreading (Pfaff 1993:105-107). It is, therefore, more persuasive to view any
changes in sovereignty as long-term (Rosenau 1995), or as swings in the pendu-
lum of power (Watson 1997) in the context of the constant evolution of sover-
eignty (Barkin 1998:230-231), rather than to claim that a fundamental shift has
occurred or is imminent.

The second shortcoming in the legalists’ discussions of intervention follows
from the previous one. Leaving to one side some important reservations in the lit-
erature, the picture that is painted in general is that of an international system in
which, as juridical distinctions between states fade, the authority of international
law is increasing to the point that it resembles the status of law within states today
(Rosas 1994). The implicit claim is made that whereas making legislation is politi-
cal, the implementation of law is not. But in the context of intervention, this anal-
ogy between national societies and international society does not hold up.
Although it may work in relation to organizations such as the World Trade Organi-
zation or the European Union, where all parties consent to the framework of law,
it appears to have little bearing when a group of states attempts to use legal norms
against another state such as Iraq or a para-state such as the Republika Srpska. In
the latter cases, the use of the law is political to the core. Some critics (e.g., Betts
1994; Rieff 1994, 1995b; Weiss 1994) of United Nations’ policies in Bosnia during
the 1992-1995 war insisted that the organization had to drop its impartiality and
take sides for justice and law to occur-in other words, work against the Serbs. In
short, giving law a central place in the discussion of intervention when the state
system has not collapsed necessarily politicizes humanitarianism. This politiciza-
tion may not be a bad thing; however, what is happening needs to be understood.
Discussions of intervention cannot address reality if those involved restrict them-
selves to identifying and interpreting relevant law.

The third shortcoming is something of a gloss on the second. The interna-
tional law perspective tends to equate what is legitimate with what is legal. James
Turner Johnson (1984:22-23) traces this axiom to Grotius in the seventeenth
century, and argues that it creates moral uncertainty about what constitutes legiti-
mate authority. Grotius (1625 [1990]) gave a systematic statement about the
equation of legitimacy with legality, but it is not clear that he originated the idea.
Both Vitoria (1527 [1991:299-302]) and Suarez (1621:disp. XIII [1944:805-810];
see also Copleston 1993:393-395) emphasized the centrality of the state and its
sovereignty in deciding what was …