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HUMANITARIAN WAR

Global security

The practice of justifying aggressive war as ‘humanitarian intervention’ derives from documents drawn up in the highest political and military circles in the United States from the end of the 1980s. In August 1990, in a speech delivered in Colorado, US President George H.W. Bush outlined a project of world pacification styled the ‘new world order’. The thrust was that, having won the last world war—the Cold War—the United States had a duty to oversee the future development of international order and set out the principles and rules that were to govern it.¹

The following year, this project was elaborated in a policy document entitled National Security Strategy of the United States.² Early in 1992, the strategic outlines announced by the president were further developed in another text, Defense Planning Guidance. This important document was drawn up by a staff of officials in the Pentagon and State Department, presided over by the deputy secretary of defense, Paul Wolfowitz—a leading figure in the neoconservative movement then embarking on a long and brilliant career which was to see him installed as president of the World Bank.³ In the meantime, an extensive specialized literature was pursuing the strategic and military implications of the notion of ‘global security’ that lay at the core of these documents. The fact that the world was no longer divided up by the traditional ideological and military barriers did not mean that threats to peace had ceased: they had become more insidious and widespread, requiring different means for concentrating and deploying international power and radically new defence strategies that could ensure security on the global scale.⁴

The strategic insights that emerge from these documents, and from Defense Planning Guidance in particular, are extraordinarily illuminating, because they anticipate the essential traits of US foreign policy during the final decade of last century. The collapse of the Soviet empire and the end of the Cold War were seen as ushering in a new era in which the danger of a large-scale nuclear war has diminished. Thus the United States had within its grasp the ‘extraordinary possibility’ of building a just, pacific international system based on the values of liberty, the rule of law, democracy and the market economy. The foundations for this new world order were to be a system of ‘global security’, reflecting the ever increasing interdependence of economic, technological and communications factors on the planetary scale. Such a system would require the close cooperation of the nations in the three most highly industrialized areas on the planet: North America, Europe and Japan. In view of the increased complexity and interdependence of international factors, the vital interests of the industrial countries were judged to be more vulnerable than ever before, in particular with respect to their unhampered and regular access to energy sources, supplies of raw materials, liberty and security of movement by sea and air, and the stability of world markets (financial markets in particular). Finally, the industrialized nations were seen to be living under the combined threats of international terrorism and the proliferation of biological, chemical and nuclear weapons.

The organization of this system of global security involved two essential strategic innovations. In the first place, now that NATO was no longer committed to opposing the Warsaw Pact countries, following the Pact’s dissolution, the defensive strategy of the alliance had to be revised. Its traditional geographical framework had to be expanded so as to counter the increasing risks of international disorder which might spring up in many different regional areas.⁵ In a world that was no longer divided up into two blocs, the trans-Atlantic alliance which had underwritten the US military presence in Europe needed to be recast, with new functions being allocated to its massive military resources. The new ‘Atlantic entente’ had to be the expression of a strategy that was protective rather than defensive, expansive rather than merely reactive, dynamic and flexible rather than static and rigid. And the emphasis on security was not to be restricted to the military sphere, but extended to include the political and economic dimensions—not least in order to control the ongoing decomposition of the Soviet empire.⁶ It was on the basis of these premises, and showing remarkably rapid strategic reflexes, that United States presented a ‘new strategic concept’ to the NATO summit held in Rome in November 1991. In the summit’s closing declaration we find explicit reference to a new vocation for NATO that goes beyond the geographical limits of its traditional competence, defined in Article 5 of its Charter, to identify the need to pay greater attention to the ‘global context’, rather than merely the regional context of Europe and the Atlantic.⁷

In the second place—and this is the crucial point—the strategy of global security requires the major powers, seen as responsible for world order, to regard the old principle, sanctioned at Westphalia, of non-interference in the domestic jurisdiction of nation-states as having been superseded. They are called on to exercise and legitimize their right and duty to undertake ‘humanitarian intervention’ whenever force is required to solve crises within individual nations, and particularly to prevent or put an end to serious violations of human rights.

Since the 1960s, various international institutions have referred to the principle of ‘humanitarian intervention’ as the right of the international community to intervene on a country’s national territory in order to verify violations of human rights and bring aid to the mistreated population. During Carter’s presidency, the defence of human rights was officially proposed as a juridically legitimate motive for interference in a nation’s domestic affairs.⁸ Nonetheless, it was in the 1990s that the perspective of humanitarian intervention became the key element in the strategy of the ‘new world order’, making ever stronger claims to ethical and juridical legitimacy. At the same time, there was a growing tendency in the West to refer to ‘international humanitarian law’ rather than the ‘international law of war’. The latter, as is well known, was the outcome of a long process of adaptation and secularization of the ethico-religious principles of the doctrine of the bellum justum elaborated in Catholic theology. The new ‘international humanitarian law’ is presented as legitimizing—through economic measures, interventions of ‘peace- enforcement’, international criminal jurisdictions—situations in which the sovereignty of states may be subordinated to the international safeguarding of human rights.⁹

The legalization of humanitarian interventions

The theoretical premise for humanitarian intervention is that the international safeguarding of human rights takes precedence over state sovereignty, and indeed over the maintenance of peace and world order. A nation’s ‘external sovereignty’—in common with its ‘domestic sovereignty’ vis-à-vis its own citizens—cannot be considered an absolute, unlimited prerogative, particularly in the context of a planetary society in which the processes of integration are making for ever greater unity and functional interdependence. When a government rides roughshod over the fundamental rights of its citizens or commits crimes against humanity, the international community has the right and obligation to intervene. The upholding of international order requires the imposition of a minimum level of respect for human rights on all states without exception, if necessary through the use of force. This also means establishing severe sanctions to be applied against those countries responsible for persecuting religious, racial or ethnic minorities, as well as for war crimes, mass murder or rape, and indeed wholesale genocide.

In the context of the strategic tenets of the ‘new world order’ and the doctrine of human rights, the practice of humanitarian intervention gained ground rapidly during the closing decade of the last century, thanks to the initiatives of the Western world, and of the United States and Britain in particular. The Gulf War of 1991 brought matters to a head, forcing both supporters and opponents of military action against Iraq to pay attention not only to the question of ‘peace-making’, but also to that of ‘humanitarian intervention’. This practice was reinforced in the immediate post-war phase, thanks to the activism of the US and British governments, which undertook ‘humanitarian interventions’ in both northern and southern Iraq with the tacit consent of the United Nations. This led to a limitation of the sovereignty of the Iraqi state, with the establishment on its territory—and progressive enlargement on the basis of unilateral decisions—of no-fly zones, ostensibly to protect the Kurdish minority in the north and the Shiite minority in the south.

From 1992 to 1994 the policy of humanitarian intervention was applied without any normative reference, ignoring even the UN Charter. The intervention of the United States, with some allies, in Somalia was initially motivated by the need to guarantee aid in the form of food and health provisions, but rapidly turned into a bloody military conflict whose aims became further and further removed from the institutional purposes of the United Nations, until they came to coincide with the interests of powerful oil companies. No less ambiguous, and tragically controversial, were the prospects, over many months, for an analogous ‘humanitarian’ intervention on the territory of the former Yugoslavia. In the end, the mission was in practice taken over by NATO forces. This organization, engendered during the Cold War, was made to seem like the military emanation of the United Nations, rather than a politico-military structure designed to safeguard the more or less legitimate interests of Western nations. NATO’s military activity on the territory of the former Yugoslavia during the Bosnian war (1992–95) and above all the war for Kosovo (1999) became increasingly intrusive, with the tacit assent of the United Nations. The latter war definitively sanctioned the practice of humanitarian intervention, taking in the most explicit way possible the humanitarian motivation as justa causa for a war of aggression. In this case, it was argued that the use of international force for humanitarian motives was legitimate in opposition not only to the principle of non-interference in the domestic jurisdiction of a sovereign state, but also the UN Charter, the principles of the statute and sentence of the Nuremberg Tribunal, and indeed international customary law.¹⁰

Confronted by such a palpable eversion of international law, the United Nations did next to nothing, giving proof of its subordination to, if not patent complicity with, the Western powers. A resolution censuring NATO’s military intervention, presented to the Security Council by Russia, India and Belarus, was naturally rejected by the three Western powers holding the power of veto: the United States, Britain and France. Only three of the fifteen Council members—Russia, China and Namibia—dared to manifest their dissent by voting in favour. So it was that governments representing over two-thirds of the world’s population could find no instrument of ‘international democracy’ able to give effective expression to their opposition to a ‘humanitarian war’.

After a lengthy silence, UN Secretary-General Kofi Annan finally made a statement in which he endorsed the line of the United States (which, as everybody knew, had been instrumental in getting him elected as secretary-general). He had no qualms about declaring that, in instances of systematic and large-scale violation of human rights, humanitarian intervention could be pursued disregarding the principle of respect for states’ sovereignty and non-interference in their domestic affairs. Indeed, addressing the General Assembly on 20 September 1999, Annan went so far as to justify the military intervention of NATO, in the absence of a mandate from the Security Council, in terms of a ‘state of necessity’. He presented the use of force as the lesser evil in light of the risk of genocide resulting from the inertia of the international community. And, rather than make a stand for the institutional prerogatives of the United Nations as involving an absolute monopoly over the legitimate use of international force, as should have been his elementary duty, Kofi Annan insisted on the primacy of the protection of human rights and on the declining function of nation-states in the era of globalization.¹¹ In practice, the United Nations, through the mouthpiece of its secretary-general, legitimized a war of aggression simply because the aggressors presented it as ‘humanitarian war’.

And what part did the Hague Court of Justice—the supreme judicial organ of the United Nations—play in all this? As is well known, this Court is not even endowed with an obligatory jurisdiction. It only had to declare its incompetence in order to reject the appeal presented by the Yugoslav Federation against the ten NATO countries that took part in the military attack.¹² Similarly, the International Criminal Tribunal for the former Yugoslavia, created by the Security Council at the instigation of the United States, declined to intervene to censure the aggression being carried out by the NATO countries, since it had no specific competence to judge crimes against peace. Its statute, unlike that of the Nuremberg Tribunal, gave it competence to judge only crimes of jus in bello—meaning war crimes, crimes against humanity and genocide.¹³

The theoretical debate

Thus we see how the leading international institutions, starting with the Security Council and General Secretariat of the United Nations, have endorsed or legitimized a posteriori the ‘humanitarian breakthrough’ imposed by the major Western power without raising the slightest objection as to questions of principle—indeed conferring upon it full international legality. And yet the case for considering the safeguarding of human rights as prevailing over the integrity of states’ domestic jurisdiction, such as to justify the use of force, is by no means proven. Doubt persists in situations where the use of force has been authorized by the international institutions, and all the more acutely in those where it has not been authorized, as was the case in the 1999 war for Kosovo. In this instance, the humanitarian motivation was invoked as sufficient grounds for ethical and juridical legitimation of the use of force, even outside the terms of the United Nations Charter and international customary law.

The fourth section of Article 2 of the Charter obliges member states to refrain from threatening or using force against the territorial integrity and political independence of any nation. There is only one general exception to this prohibition: force can be used if the Security Council, having ascertained the existence of a threat to peace, a breach of peace or an act of aggression, decides that it is necessary, under its direction and control, to have recourse to force in order to re-establish international order (Articles 39 and 42). This general exception is accompanied by a more specific one: the right of a country to react in self-defence if attacked by another state or group of states (Article 51).