Human Rights

When in conflict, the protection of human rights takes precedence over self-determination. Where primal violence results in genocide, military intervention may be necessary to restore the rule of law and protect fundamental human rights.

The concept of human rights in wartime developed out of the Just War tradition.²⁰ That tradition has imposed few restrictions on how combatants attack each other; after all, that is what war is all about. But civilians are another matter. Since the Middle Ages, when rape, plunder and pillage ceased to be tolerated as legitimate spoils of war, Just War has placed increasing emphasis on protecting the lives and property of civilians from the ravages of war. Its most important standards have been codified in the law of war, which is discussed below.

Just War principles go beyond the law and beyond war. They represent moral and ethical constraints on the use of lethal force, even if they have been frequently disregarded. The principles of Just War complement the law of war, and provide moral guidelines for the use of military force where laws are inadequate. They represent the convergence of law, morality and values - the elements of military legitimacy.

In peacetime, Just War principles are especially important to strategic and operational restraint. When there is no threat to vital US interests, these strategic principles provide moral justification for military intervention; and when intervention is justified, Just War principles provide moral guidelines for the use of force at operational and tactical levels.

Wartime is different. It is a lethal contest that contemplates death and destruction. In order to protect non-combatants from the ravages of war the law of war distinguishes them from combatants, who are legitimate targets in war.

In operations other than war the distinction between combatants and non-combatants is blurred. The enemy, if one can be identified at all, can be an innocent civilian by day and a ruthless combatant by night.²² The questionable status of armed youngsters in Somalia illustrated this ambiguity; they were dangerous to UN forces whether they were combatants or bandits. Such ambiguities make the law of war an inadequate standard of legitimacy in operations other than war.²³ Rules of engagement (ROE) tailored to specific mission requirements are necessary to provide the standards of restraint required for military legitimacy. Sovereignty: national rights vs human rights

At the strategic level the moral and ethical standards for going to war originated with religious concepts (the principles of just cause and right intention), but they were secularized in the seventeenth century when Hugo Grotius published his treatise, The Law of War and Peace (1625). Grotius justified war based on self-defense, protection of property, state duties and punishment for aggression. Moral concepts of just cause and right intention became less important than the sovereign right of nations to protect their interests. With the acceptance of the doctrine of national sovereignty in the eighteenth century, non-interventionism, or war avoidance, was the moral standard; but as discussed earlier, the rule was honored in its breach, confirming that might made right.

The legal doctrine of sovereignty considers each nation equal and independent - free to resolve its own internal problems however it chooses, no matter how brutal or at what cost of human rights - without risk of intervention. This principle of non-intervention has been codified in Article 2 (4) of the United Nations Charter, which prohibits '...

The principle of non-intervention has produced creative theories based on Just War principles that have expanded the concept of self-defense. Strict interpretation of Article 52 requires an armed attack before armed force is justified in self-defense. Just War principles were used to stretch the concept of self-, or collective, defense in order to justify US interventions in Grenada in 1983 (Urgent Fury) and Panama in 1989 (Just Cause). These justifications included the protection of US citizens and the request of putative governments for military assistance. The US bombing raid on Tripoli in 1986 went even further, having been justified as pre-emptive self-defense. This same rationale was used by the Israelis in their attacks on PLO bases in Arab countries.²⁵

Operation Restore Hope established a precedent tor military intervention under the auspices of the UN without either an invitation or grounds for individual or collective self-defense. The only justification was human suffering caused by civil (tribal) violence and aggravated by famine and over-population. Somalia was not unique; Rwanda has since experienced even greater carnage, and Angola and Sudan are experiencing similar primal conflict. Given its unhappy experience in Somalia the US is not likely to intervene in African violence for purely humanitarian reasons; but Uphold Democracy in Haiti illustrated that the Somalia precedent could be applied closer to home. Changing concepts of sovereignty

The erosion of the traditional concept of sovereignty as a bar to intervention has sparked interest in creating a UN peace-enforcement capability that could complement its traditional peacekeeping role.

... sovereignty was in fact never so absolute as it was in theory. A major intellectual requirement of our time is to rethink the question of sovereignty.²⁶

He has also proposed a novel concept of universal sovereignty that would support offensive peace operations and humanitarian intervention under international law:

Underlying the rights of the individual and the rights of peoples is a dimension of universal sovereignty that resides in all humanity and provides all peoples with legitimate involvement in issues affecting the world as a whole. It is a sense that increasingly finds expression in the gradual expansion of international law.²⁷

Boutros-Ghali's concept would impose on the community of nations an affirmative obligation to intervene wherever there are gross violations of human rights or crimes against humanity. The prospect that the UN may become the world's policeman, with the coercive capability to enforce its decisions, has made many UN members nervous about the crumbling shield of sovereign immunity. Democracy has been recognized as a universal ideal for each nation, but not for the community of nations (the UN), where the fiction of sovereignty (one nation, one vote) would put inordinate power in the hands of the Third World.

Gidon Gottlieb has proposed another unique concept that would modify the concept of sovereignty in order to discourage ethnic violence. He has suggested the creation of extra-territorial national home regimes that would provide protective zones for ethnic minorities.²⁸ These international ethnic zones should be distinguished from internal ethnic political sub-divisions that threaten the stability of existing nation-states.

Gottlieb has made a distinction between nations (ethnic groups seeking national autonomy) and states (internationally-recognized entities) to support the concept of national home regimes.

An underlying premise of Gottlieb's theory is that only democratic regimes are legitimate, but that self-determination is at the root of contemporary ethnic violence in much of the world.³⁰ He supports military intervention to alleviate the human suffering associated with violent self-determination, and advocates humanitarian assistance and the special military capabilities to provide it; he has even suggested that Special Forces units be used to apprehend those accused of war crimes. But he has also recognized the limitations of combat power, citing the Weinberger Doctrine and suggesting that military enforcement operations should rely on air power, not US ground forces.³¹ Humanitarian intervention as Just War

Eroding concepts of sovereignty have made the legal principle of nonintervention less absolute, restoring the relevance of the Just War principles to intervention. As the traditional theory of sovereignty gives way to moral justifications for intervention, current legal standards of self-defense and collective defense are likely to be broadened for humanitarian intervention.³²

The three major Just War principles governing intervention are competent authority, just cause and right intention. Competent authority is a legal standard governed by the Constitution and statutory law such as the War Powers Act, and international law such as the United Nations Charter. But just cause and right intention are moral criteria that recall the theological underpinnings of Just War.

Just Cause applies the principle of discrimination to strategic decisions to intervene. Considerations include

... the substance of the cause, the comparative justice of the adversaries, the proportionality of the means and consequences of recourse to armed force to the good to be achieved, in the light of the probability of success and reasonable exhaustion of peaceful remedies.³³

Right intention has theological origins, and includes promoting values such as democracy, human rights and the rule of law.

The revival of moral standards to justify military intervention has brought new support for humanitarian intervention. Theologians and church groups that have traditionally opposed military interventions are now echoing Secretary General Boutros-Ghali's call for new interpretations of sovereignty and military legitimacy:

People are calling for reinterpretations of the concept of both national sovereignty and non-intervention, saying that the way we've understood them for three centuries is not adequate.³⁵

The Reverend William Sloane Coffin, Jr., one of the most outspoken critics of US military operations since Vietnam, supported the US intervention in Somalia and has indicated a willingness to support peacekeeping in Bosnia:

Moral isolation is simply not a defensible position for those opposed to war. There is great anguish and confusion. We are groping for some kind of legitimate police action on an international scale.³⁶

Rev. Sloane expressed the sentiment of many who have had misgivings about the morality of military operations in the past, but who feel morally obligated to use the military instrument of national power to protect fundamental human rights. This was reflected in a rare joint statement of leaders of major Protestant, Catholic, Jewish and Muslim groups made before the deployment of US forces to Somalia. The resolution confirmed that the US '... is not policeman to the world, hut the mass murder of innocents is unacceptable'. It went on to say that the US should '... act in concert with other nations when possible, alone when necessary'.³⁷

Michael Walzer, a recognized authority on Just War, believes that moral standards incorporated in the principles of just cause and right intention are sufficient to justify intervention in Bosnia:

I think of this in terms of the old international doctrine of humanitarian intervention. It was always held that in cases of massacre on the other side of the border, you have a right, and maybe an obligation, to go in and stop it if you can. I think that applies to starvation, whether politically induced or naturally caused, or to ethnic cleansing, mass deportations, and other acts that, in the old legal phrase, 'shock the moral conscience of mankind'.³⁸

But Walzer warns of using moral pretensions for immoral purposes, the essence of wrong intention. He noted that a crucial condition of a right intention to support military intervention is that it not be '... a cover to create a satellite state, a puppet government, or be used for conquest'.³⁹

The new dialogue on Just War indicates a major shift in public support for humanitarian intervention that is likely to effect future US military commitments. Ironically, many conservatives who have supported military interventions in the past are opposed to humanitarian interventions as an inappropriate use of the US military. The debacle in Mogadishu temporarily chilled support for US interventions; but the initial public support for Restore Hope and more recently for Uphold Democracy in Haiti portends a humanitarian role for the US military in peacetime - a capability seen by many as a moral imperative rather than a security measure.⁴⁰

The revival of just cause and right intention as moral justifications for intervention reflects a circular evolution of Just War. Almost 400 years after Grotius began the secular trend with the doctrine of sovereignty, the law has proved to be an inadequate substitute for morality. In the new security environment both legal and moral standards are essential elements of military legitimacy.

The importance of just cause and right intention to legitimize any uninvited US military intervention was reflected in the UN and congressional resolutions authorizing Desert Storm. The congressional resolution authorized offensive action based on the requirements of these Just War principles.⁴¹ The circumstances surrounding the UN resolution which authorized Restore Hope were different in that there was no external agression; the legal basis for the intervention was disaster relief.⁴² In Haiti, the acquiescence of General Cedras, even if under duress, and subsequent congressional resolutions legitimized the US military intervention there.