IntroductIon
The articles collected in this book are the result of the proceedings of the Special Workshop on Humanitarian Interventions chaired by prof.
zw. dr hab. Jerzy Zajadło of the University of Gdańsk, organized during the 23rd World Congress of Philosophy of Law and Social Philosophy (Internationale Vereinigung für Rechts- und Sozialphilosophie – IVR) which was held on 1st – 6th August 2007 in Kraków (Cracow), Poland, by the Department of Theory and Philosophy of Law of the Jagiellonian University. Most of the articles printed in this volume are based on their authors’ presentations at the workshop while others have been included as a voice in the discussion.
The opening paper of this volume by Jerzy Zajadło is a general intro- duction to the issue of humanitarian intervention. The author aims to expose the place of the discussion on humanitarian intervention in the framework of the most important legal, philosophical and ethical issues of the recent years and decades. After giving a brief outlook of the legal framework of the UN system in the second half of the 20th century, the article portraits the notion of humanitarian intervention as a practical case of the clash between Gustav Radbruch’s three elements of the idea of law: security, purposefulness and justice, suggesting that humanitar- ian intervention may in fact be the extreme normative exception that could be solved in favorem justice. This idea as well as the inherent con- tradictions of the humanitarian intervention seem to reverberate in the report of the International Commission on Kosovo, which states that the NATO’s military intervention was “illegal, though legitimate.” The increase of interest in humanitarian intervention in the late 1990s and especially after Kosovo led to the ‘reconceptualization’ of the notion of humanitarian intervention. The most notable example of that process is the Report of the International Commission on Intervention and State Sovereignty (ICISS) which suggested replacing the term ‘humanitarian
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intervention’ with the notion ‘responsibility to protect’ (R2P). In the sec- ond part of the article, different classifications of humanitarian interven- tion that exist in literature are presented. By showing the actual scale of the practice of what could be qualified as humanitarian intervention in the 20th century, Jerzy Zajadło convincingly argues that no matter what attitude towards humanitarian intervention is taken, this phenomenon of international political life cannot be treated per non est. Even more importantly, it cannot be considered in selective or one-dimensional perspective of ethics, politics or law taken separately. Only holistic and interdisciplinary solutions are possible; hence as the editors of this vol- ume believe, progress in the nuanced twists and turns of humanitarian intervention or what is now more frequently referred to as responsibility to protect, can be most effectively achieved when bringing together opin- ions from different fields of study, national and scholarly backgrounds or schools of thought. The reconceptualization of the humanitarian in- tervention debate has helped to form a framework of six major criteria defining the permissibility of humanitarian intervention – five of them have been identified as objective ones (just cause, exploration of other possible methods, proportionality of the applied measures, probability of efficiency, humanitarian intentions) and the remaining sixth subjective criterion is the right authority element. The remaining articles in this volume, stress different aspects of these criteria frequently referring to one of the most recent cases under discussion in relation to humanitarian in- tervention – the disaster in Darfur, Sudan. All of these essays fit in to the continuing debate about humanitarian intervention, ultimately proving the leading article’s conclusion that the basic questions on humanitarian intervention stay the same – it is the answers that change in time.
The article by Roger Campione refers to the first of the abovemen- tioned criteria – the just cause, although in the context of yet another institution of international life, which is prior and genetically origina- tive to humanitarian intervention – the just war theory. In what is an eloquent intellectual travel from the ancient times to the present, Roger Campione gives his outlook on the history and the development of the idea of just war. He shows how the notion originated in ancient Greece and Rome, particularly in the views of Cicero only to evolve later in St.
Augustine’s theology which was in turn systematized and legitimized in the scholastic interpretation of Thomas Aquinas. The latter’s doctrine of just war was then taken up some two centuries later by Francisco de
9 Vitoria, struggling to adapt it to the changing realities of the new era.
Vitoria started the process of secularization of the just war theory, which was later taken over from theologians by lawyers such as Alberico Gen- tili, Hugo Grotius and Emmerich de Vattel. Gradually, beginning espe- cially with Vattel, the elaborate criteria of just war developed by Aquinas have been reduced to mere procedural requirement of guerre en forme.
With the arrival of legal positivism in the 19th century, it seemed that the just war theory was permanently discarded. However, the difficult experiences of the two most devastating wars ever, caused a revival of the just war theory’s influence not only in the new international legal order but also in the writings of Hans Kelsen and more recently Michael Walzer. The systematic historical reconstruction presented in this article by Roger Campione is successful in refuting a much often encountered presumption that the just war theory is inseparable from the medieval European and Catholic thought, particularly that of St. Augustine and Thomas Aquinas.
Michael Walzer is the last of the just war theorists analyzed by Roger Campione, being at the same time the point of departure for the author of the next article – David Moszkowicz – in his analysis of the Darfur crisis. The author, giving his outlook of the first four years of the Dar- fur crisis asks a question whether and, if so, when, protection of funda- mental human rights can be termed a just cause (iusta causa) leading to the use of military force. David Moszkowicz aims to analyse Walzer’s justification of humanitarian intervention in the light of the current hu- manitarian crisis in Darfur. After giving a brief account of the evolution from humanitarian intervention to responsibility to protect, as well as the history of the Darfur conflict, the author turns to Walzer’s political and ethical theory giving a detailed outlook of its strengths and weak- nesses in the light of the Sudanese events. Using the described Walze- rian tools of analysis, David Moszkowicz concludes that human rights violations in the Darfur region are reasons for a just war, however other criteria, such as ‘reasonable chance of success’ need also to be taken into account. Nevertheless, the possible negative balance of the anticipated effects of humanitarian intervention in Darfur should lead to restraint.
The author recommends that a better use of alternative methods and the increasing of international pressure could still do a lot for Darfur.
In their chapter, Zdzisław Brodecki and Paulina Zajadło-Węglarz also refer to the just cause element in the context of justification of inter-
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ventions. First of all, by referring to the Iraqi war of 2003 they show how
‘just’ wars are confused with humanitarian interventions in regard to the justification element and the burden of proof. Reasons for developing a new approach embodied in responsibility to protect are subsequently explained, which enables the comparison of presumptions and the bur- den of proof in three stages of modern war and R2P alike: responsibil- ity to prevent, react and rebuild. This leads the authors ultimately to a multi-level, legal and philosophical comparative analysis of the just war tradition and humanitarian intervention. By giving an example of comparing the two kinds of warfare: modern war (for which Iraq inter- vention of 2003 is an example) and humanitarian intervention in the light of the three phases of the R2P, they develop an answer to the ques- tion whether the essence of contemporary humanitarian intervention can be comprehended without making references to the contents of the classic doctrine of just war. The conclusion is an affirmative answer to that problem, although the authors note that usage of just war tradition language may be useful for methodological reasons.
In a short summary of the paper given at the workshop, John W. Lan- go discusses the second of the humanitarian intervention’s permissibility criteria – namely the exploration of other possible methods or, in other words, the last resort principle. He discusses robust peace keeping as a form of interventional measure preceding the intervention itself. Bas- ing his argument on the case of Darfur, John W. Lango aims to answer the following question: which alternative is preferable, armed interven- tion or robust peacekeeping in the context of the just cause and last resort criteria? These alternatives are not incompatible, for the Sudanese Gov- ernment might be pressured to abide by the terms of the peace agree- ment and admit such a peacekeeping operation by means of the credible threat of armed humanitarian intervention otherwise.
The debate over humanitarian intervention has tended in recent years to focus on the conditions under which the resort to armed intervention is permissible while paying less attention to which actors are best suited to engage in such a complicated and demanding undertaking. In his paper, Eric Heinze aims to explore characteristics that affect the ability of po- tential agents of humanitarian intervention to effectively undertake this operationally and politically demanding task. While the military where- withal of the intervener is fundamental, the author argues that a po- tential intervener’s legitimacy as an agent or enforcer of humanitarian
11 norms is also crucial in determining whether and the extent to which it is a suitable agent. Eric Heinze suggests that the efficacy of a potential intervener depends not only on its military wherewithal, but also on cer- tain non-material factors than can affect its ability to effectively exercise this power. Using a consequentialist ethical framework, this article ex- amines the various material and non-material factors that can militate either for or against the suitability of certain actors undertaking humani- tarian intervention in various parts of the world. The author ultimately uses this framework to examine the suitability of various possible agents of a potential humanitarian intervention in Darfur, Sudan.
The article by Sebastian Sykuna and Tomasz Widłak also concen- trates on the right authority element. There is a view in the literature of the subject that the problem with this criterion arises only when hu- manitarian intervention leads to interference with state’s sovereignty by force and without its consent. No dilemma should occur when interven- tions do not bear characteristics of interference, that is in cases when there is consent on the part of the particular state or when it is devoid of sovereignty. Authors aim to verify this thesis by analyzing the example of an intervention in a failed state. The notion of a ‘failed state’ and the basic nature of legal problems that may occur in connection with this entity are first explained. Subsequently, presumed legality of humanitar- ian interventions in failed states is looked into – and to verify this thesis the authors try to answer the underlying question about the nature of sovereignty of failed states. The analysis finds out that since there are no precise legal instruments to decide on where the border between ‘suc- cessful’ and ‘failed’ state is, it is quite obvious that one cannot prejudge the general legality of humanitarian intervention differently in respect to these two categories. In the second part of the article, the problem of legitimization of interventions in failed states is analyzed. In order to accomplish this, the authors go through all five subjective criteria of the permissibility of humanitarian interventions as well as the three phases of intervention mentioned in the R2P attitude. They come to a conclu- sion that although there may be a clearer view of the just cause in case of failed states, generally humanitarian intervention in a failed state does not constitute a special situation and all five subjective elements have to be verified on a case by case basis.
The two remaining articles in this volume offer a more general over- view of the institution of humanitarian intervention and its links to the
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most fundamental values of contemporary international society. Katya Kozicki brings to the discussion on humanitarian intervention a philo- sophical reflection on the way justice in Law leads to the clash between universal and singular, abstract and concrete, which is inherent to plural- istic societies where different conceptions of the good compete. Accord- ing to the author, contemporary societies are intrinsically complex and such complexity involves, for the comprehension of it, the acceptance of pluralism and antagonism. Yet, there is a conviction that such antago- nism could be appeased through a criterion of justice based on a con- sensus over a determinate conception of the good capable of reconciling that which, indeed, is impossible to be conciliated. Despite contempo- rary democracies have being reasonably able to get along with difference (and for that they appeal to different artifices such as the creation of the impersonal figure of legal subject, conceived in an abstract and formal way: “to be free and equal before the law”), they do not really recognize the other, treating difference and diversity as worthless things. That is, difference and diversity are situations to be tolerated, once they cannot be overcome into the liberal spirit of respect and tolerance. She argues the above is also true for contemporary liberal democracies after World War II, that is, an international order articulated around a consensus on matters that are not really consensual such as democracy itself, constitu- tional system and justice. The question of reconciliation thus remains:
how is justice possible in the conflict between singularity, the other, and universality (the law as norm – principle or rule – which necessarily has a general form)? This allows us to think of a contingent criterion of jus- tice which in turn amounts to decisions in the field of law that are always provisional to the extent that justice (in the present) is never complete or perfect. Taking Jacques Derrida’s approach of justice as its standpoint this article aims to stress the difficulty to achieve a unique concept of justice as well as to think justice in the sphere of international law and the problem of ensuring human rights in the international order.
Dobrochna Bach-Golecka analyses the pro-democratic aspect of hu- manitarian interventions. She aims to show how the principle of sover- eignty is intertwined with democracy and where exactly intervention as a remedy fits in this relation between the two. The author begins with distinguishing sovereignty and self-determination and showing that their effective mutual enforcement is in fact conditional of democracy within a particular state. Nevertheless, the controversial issue of the right to
13 democratic governance under international law may either be conduc- tive to international peace and security or it may generate settlements by force, threatening international order. In order to decide this issue, the author presents her analysis of the so called democratic-peace thesis both in the contemporary and Kantian view, coming to a conclusion that there is an immanent link between democratic arrangements in particu- lar states and international law’s function as a guarantee of international peace and security, as well as human rights. In the second part of her paper, Dobrochna Bach-Golecka looks into the linkage between democ- racy and humanitarian intervention. The most controversial issue here is whether the instrument of humanitarian intervention may or may not be regarded as a means to promote democracy. In a subsequent effort to answer this question, she explores the emerging democratic imperative in the international law. Although there is no single and universal model of democracy, there are however some characteristic elements, constitu- tive of this form of government in every case and the rule of law is the most vital and primary of them. There are some strong arguments for a pro-democratic intervention understood as an involvement of inter- national community to stop mass violations of human rights and self- determination principle. At the same time there are, however, clear vices in this approach among which the risk of ineffectiveness and disturbance with the internal political process is seen as the most prominent one by the author. She concludes that democracy is indeed conductive to peace, and generally there is no need for humanitarian pro-democratic intervention when sovereignty, self-determination and democracy are in place, because they are enough to secure and protect human rights.
Jerzy Zajadło, Sebastian Sykuna, Tomasz Widłak
