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© 2004 Journal of Peace Research,


vol. 41, no. 2, 2004, pp. 131–147
Sage Publications (London, Thousand Oaks, CA
and New Delhi) www.sagepublications.com
DOI: 10.1177/0022343304041777 ISSN 0022-3433

Ethics and Intervention: The ‘Humanitarian


Exception’ and the Problem of Abuse in the Case
of Iraq*
ALEX J. BELL AMY
School of Political Science and International Studies, University of
Queensland

This article investigates the ethics of intervention and explores the decision to invade Iraq. It begins by
arguing that while positive international law provides an important framework for understanding and
debating the legitimacy of war, it does not cover the full spectrum of moral reasoning on issues of war
and peace. To that end, after briefly discussing the two primary legal justifications for war (implied UN
authorization and pre-emptive self-defence), and finding them wanting, it asks whether there is a moral
‘humanitarian exception’ to this rule grounded in the ‘just war’ tradition. The article argues that two
aspects of the broad tradition could be used to make a humanitarian case for war: the ‘holy war’ tra-
dition and classical just war thinking based on natural law. The former it finds problematic, while the
latter it argues provides a moral space to justify the use of force to halt gross breaches of natural law.
Although such an approach may provide a moral justification for war, it also opens the door to abuse.
It was this very problem that legal positivism from Vattel onwards was designed to address. As a result,
the article argues that natural law and legal positivist arguments should be understood as complemen-
tary sets of ideas whose sometimes competing claims must be balanced in relation to particular cases.
Therefore, although natural law may open a space for justifying the invasion of Iraq on humanitarian
terms, legal positivism strictly limits that right. Ignoring this latter fact, as happened in the Iraq case,
opens the door to abuse.

Introduction three weeks later, US troops entered


Baghdad, taking control of the city in the
When is it morally justifiable to use force to
following two days. It was not until 2 May,
change an oppressive foreign regime? On 20
however, that George W. Bush formally
March 2003, the United States and its allies
announced the coalition’s victory, aboard the
(principally the UK and Australia) began
USS Abraham Lincoln. According to the
Operation Iraqi Freedom with a series of
President, ‘the Battle of Iraq is one victory
missile attacks on Baghdad, aimed at
in a war on terror that began on 11 Sep-
‘decapi-tating’ the Iraqi leadership. Around
tember 2001, and still goes on’ (Washington
Post, 2 May 2003). As well as eliminating
* I am grateful to the editor and anonymous reviewers of
Journal of Peace Research for their very helpful comments
the ‘threat’ posed to the United States and
on an earlier draft of this article. This argument was first its allies by Iraq, the coalition’s leaders
presented at the University of Queensland symposium on insisted that the war would also improve the
‘Ethics and Foreign Policy’, 5–7 July 2003, and I am
grateful to the participants for their comments. Corres- lives of the Iraqi people by permitting the
pondence: a.bellamy@mailbox.uq.edu.au. delivery of humanitarian assistance and

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creating an environment where Iraqis could is taken to overrule positive law as a general
determine their own fate peacefully and principle, the consequence is often a more
democratically (Blair & Bush, 2003). At the disorderly international society with a much
time of writing, authoritative Western higher incidence of war. Thus, within the just
accounts suggest that between 5,500 and war tradition, theological and secular scholars
7,500 civilians had been killed by coalition alike feared that sovereigns might make use of
forces.1 It is likely, however, that the actual moral justifications for endeavours that were
number of civilian casualties was consider- anything but just. As a result, I argue that
ably higher than this. natural law and positive law should not be
This article investigates whether, and understood as separate traditions but as com-
when, using force to remove a foreign govern- plementary sets of ideas, the occasionally
ment is morally justifiable. It uses the case of competing claims of which must be balanced
Iraq to assess whether conservative interpre- in particular cases. The task that confronts us
tations of positive international law can be in a case like Iraq is therefore not one of
overridden by the moral right to uphold deciding whether the responsibility to uphold
elements of natural law that are knowable to natural law demands the derogation of
all.2 I agree with some of the war’s advocates positive law, or vice versa, but to find the
in arguing that conservative interpretations of appropriate balance between the two sets of
positive international law do not cover the claims.
full spectrum of moral reasoning on matters At this point, it is important to briefly
of war and peace (Sofaer, 2003). Positive discuss the relationship between natural law
international law only partly reflects Western and positive law and the way that they shape
traditions of moral reasoning about war that moral reasoning in international society.
are bound together in the multifaceted ‘just Until approximately 150 years ago, ‘inter-
war’ tradition. Another important element of national law’ was framed by the natural law
that tradition is natural law, which, among tradition, largely because there was no world
other things, insists that sovereigns have a sovereign to create and enforce global laws.
right to use force to uphold the good of the From Thomas Aquinas (1225–74) to
human community, particularly in cases Grotius (1583–1645), the theory and
when unjust injuries are inflicted on others practice of the law of nations held that
(Grotius, 1925: Book II, chs 20, 25). proper behaviour in international politics is
However, although this ‘humanitarian excep- governed by certain natural rights that accrue
tion’ (rooted in natural law) to positive law’s simply from being human, and are knowable
ban on the use of force is morally appealing, to all through the exercise of moral reason-
the Iraq case demonstrates the dangers of ing. From the mid-19th century onwards,
‘abuse’. ‘Abuse’ refers to cases where moral however, international law has become
arguments are used to justify a war that is not increasingly dominated by legal positivism –
primarily motivated by the moral concerns essentially, the belief that law is made up of
espoused, but by the short-term interests of what is written in treaties and the actual
those instigating violence. When natural law practices of states (see Hall, 2001). Among
1 The
the other flaws of natural law, jurists held
most comprehensive civilian casualty monitor can be
found at http://www.iraqbodycount.org. It is constantly that it gave sovereigns a wide remit for
updated. judging the justness of their actions for
2 In this article, I explore the question of whether natural
themselves, thus providing a virtual carte
law permits a right of intervention. Whether or not there
is a moral duty to intervene in particular cases is a separate blanche for sovereigns to wage war, some-
question that is not explored in this article. times offering nothing more that raison d’état

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Ale x J. Bel l a m y ETHICS AND I N T E RV E N T I O N IN IRAQ 133

as justification. However, legal positivists Tesón’s argument would provide moral


have consistently faced a number of legitimacy for the war in Iraq on humani-
dilemmas when applying their essentially tarian grounds. However, Tesón overlooks
domestic methodology to the international the fact that the emergence of legal posi-
arena. First, there is no single authoritative tivism was a response to the failure of natural
lawmaker in international relations. Second, law to regulate violence. Moreover, I argue
there is no authoritative judge that sits above that as they emerged from the broadly same
the sovereign and interprets the law. Third, tradition of thought, natural law and legal
custom is as important a source of inter- positivism should be understood as comple-
national law as written treaties, and it is very mentary sets of ideas.
difficult to interpret custom objectively. This raises two important issues in
Fourth, even in matters of war and peace, relation to the problem of ‘abuse’. First, it is
positive law is underdeveloped. That is, it important to understand that the danger of
does not cover every eventuality and there are abuse was not first recognized in the 1990s
many aspects of war that it does not deal debate about humanitarian intervention, but
with at all. Finally, unlike domestic law, dates back to the Middle Ages in both theory
international law does not reside within a and practice. Second, it is equally important
community-based moral framework but to acknowledge that the problem of abuse is
instead sits uneasily alongside a variety of a practical as well as intellectual problem.
different moral frameworks. For these Since 1202, when the Venetian Republic
reasons, positive international law does not used a ‘holy war’ argument to justify the
provide a comprehensive framework for sacking of Zadar, an act primarily motivated
assessing the ethics of war, but neither does by a desire to protect Venetian commercial
natural law. The task for those who wish to interests in the Adriatic (Goldstein, 1999:
unravel the ethical dilemmas posed by inter- 25), states have abused moral justifications
vention is to balance positive law and natural for war to suit their own purposes. While a
law in particular cases. Machiavellian would respond by arguing
I argue that if we incorporate both that this demonstrates the futility of moral
positive law and natural law into our reasoning about war, I argue that historical
analyses, it is difficult to support those such epochs characterized by such ‘abuse’ also
as Tesón who call for a broad right of inter- tend to be characterized by devastating wars
vention. Tesón (1997: 6–17) argues that the and the breakdown of social order. The two
modern prohibition on the use of force for clearest cases in this regard are the ‘holy wars’
humanitarian purposes is a product of the fought by Catholics and Protestants
‘fetishization’ of the modern state and the (1618–48), in which each side claimed to be
dominance of legal positivism in contem- fighting for a just cause mandated by God,
porary international law. As a result, he and Hitler’s use of humanitarian justifi-
argues, the inflexible prohibition on force cations to legitimize the invasion of
exhibited in Article 2(4) of the UN Charter Czechoslovakia in 1939. The danger is that
should be tempered by an acknowledgment if contemporary international society seeks
that using force to protect the oppressed was to accommodate ‘abusers’ of moral justifi-
a legitimate practice prior to these 19th- cations for war or legitimizes their actions,
century legal developments, and that there- states will become more likely to make use of
fore the use of force for benign humanitarian such avenues, creating a more violent inter-
purposes today should be considered both national society.
legal and morally legitimate. If validated, What are the implications of this for the

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way we assess the justness of interventions to authority to use force under Resolution 678’.
change oppressive regimes? In the case of The justification continues by pointing out
Iraq, I argue that the moral case for war falls that all subsequent resolutions on Iraqi dis-
somewhat short of the conditions set out by armament (for instance, Resolutions 1154, 2
both positive law and natural law. If that is March 1998; and 1158, 25 March 1998)
the case, the challenge is not – as writers such were passed under Chapter VII of the
as Byers (2002) and Daalder (2002) suggest Charter and identified Iraqi non-compliance
– to reformulate the legal norms and moral as constituting a threat to international peace
principles that guide our thinking about the and security. Resolution 1441 found Iraq to
legitimacy of war, for past cases suggest that be in material breach of Resolution 687 and
when ‘abusers’ are accommodated, inter- warned of ‘serious consequences’ if it did not
national society becomes more disorderly comply. Thus, the British and Australian
(and may even be destroyed), and constraints governments argued, the war with Iraq was
on the use of force are weakened. Instead, the legal because it was authorized by the
challenge is to expose the abuse as such, and Security Council.
to confront the perpetrators with the unjust- By contrast, the US administration devel-
ness of their actions in order to constrain oped two legal arguments to justify the war.
potential abusers through normative pressure First, they agreed with the British and Aus-
at the domestic and international levels. tralian argument that a revived Resolution
678 provided enough justification for war.
Second, however, Bush emphasized the
Positive International Law and the
administration’s belief that the war with Iraq
War in Iraq
was a continuation of the ‘war against terror’
The legal debate about the decision to wage and implicitly suggested that a legal
war in Iraq was framed almost entirely by the argument based on self-defence, which was
interpretation of positive law. Moreover, the used with some success to justify Operation
broader moral debate about the war was also Enduring Freedom in Afghanistan, provided
often couched in legal positivist terms. The enough justification for the use of force
coalition members all suggested that there against Iraq under the doctrine of pre-
was enough authority in existing UN emptive defence outlined in the National
Security Council resolutions to justify the Security Strategy (2002).4
use of force against Iraq (see Arend, 2003; Most international lawyers and states dis-
Roberts, 2003). When the Attorneys- counted the claim that the war was legal
General of the UK and Australia put forward because it had been authorized by the
a legal case for war, their argument rested Security Council for a number of reasons.
principally on interpretations of Resolutions First, there is nothing in Resolution 687 that
678 (29 November 1990), 687 (3 April implies that Resolution 678 might be reacti-
1991), and 1441 (8 November 2002).3 As vated if Iraq did not comply. Second, Reso-
the British Attorney-General put it, ‘a lution 687 only demanded that Iraq formally
material breach of Resolution 687 revives the accept the terms, which it did in a letter to
the Council. Third, the Council has never
3 The text of the statement of the legal advice given by
Britain’s Attorney-General, Lord Goldsmith, and tabled in
authorized the use of force to implement
the British Parliament advice can be found at Resolution 687, and at the time it was passed
http://www.smh.com.au/articles/2003/03/18/104674975
0291.html, and the Australian Attorney-General’s advice 4See ‘Letter from the President of the United States to the
can be found at http://www.smh.com.au/articles/2003/ Speaker of the House of Representatives and Pro Tempore
03/19/1047749818043.html. of the Senate’, 21 March 2003.

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Ale x J. Bel l a m y ETHICS AND I N T E RV E N T I O N IN IRAQ 135

none of the ambassadors to the Council as the threat of conventional attacks by states
implied that it did. Fourth, we know that because many of the precursors to attack
between September and November 2002, (such as arms buildups and concentrations)
the USA and the UK proposed a resolution are not necessary for terrorists.
that endorsed the use of force if Iraq con- This is certainly a compelling argument
tinued to be in material breach of its obli- when it comes to terrorism, and many states
gations, but failed to persuade most other may have taken this into consideration when
Council members to support it. Finally, evaluating the legitimacy of Operation
when they launched Operation Desert Fox Enduring Freedom. Writers such as Glennon
in 1998, the USA and the UK failed to (2002) and Daalder (2002) have both argued
persuade the Council to accept their that the threat of terrorism, evidenced by 11
interpretation of past resolutions and a September, justifies a broader understanding
significant majority (11–4) of Council of self-defence because the threat may be
members explicitly rejected it (Gray, 2002). imminent though not always evident.
In the absence of a plausible argument However, this argument is much less com-
demonstrating that the Security Council pelling when applied to states such as Iraq,
authorized the use of force, the US adminis- because the administration failed to demon-
tration developed the concept of pre-emptive strate that such states do present a new form
self-defence to bolster its justification for of threat to international security. Such states
war. This doctrine was formally announced may be ‘rogues’, but they are still states, and
in the new National Security Strategy there is no evidence to suggest that they pose
unveiled in September 2002. The strategy a threat that is uniquely different to threats
document insisted that: posed by other states. The National Security
Strategy therefore fails to identify the new
given the goals of rogue states and terrorists, the
United States can no longer solely rely on a
type of threat posed by ‘rogue states’. As a
reactive posture as we have in the past. The result, the argument that the United States
inability to deter a potential attacker, the holds a right of pre-emptive self-defence in
immediacy of today’s threat, and the magnitude relation to them is not compelling.
of potential harm that could be caused by our Moreover, the US administration failed to
adversaries’ choice of weapons, do not permit
convincingly demonstrate that Iraq did pose
that option. We cannot let our enemies strike
first. (National Security Strategy, 2002: 15) an imminent threat.
The legal case for war with Iraq was there-
The document argued that such a strategy fore untenable in terms of positive inter-
was founded on international law. It insisted national law. The coalition offered two sets of
that ‘for centuries, international law recog- justification: the implied authorization of the
nized that nations need not suffer an attack Security Council and the right of (pre-
before they can lawfully take action to emptive) self-defence. Both arguments, it is
defend themselves’ (p. 15). The National clear, were flawed in important respects. In
Security Strategy attempted to prove the particular, to be plausible both required the
existence of ‘imminent threat’ by linking the stretching of key principles to such an extent
‘war against terrorism’ with the so-called ‘axis that the principles themselves were called into
of evil’ states of Iraq, Iran and North Korea. question. For instance, if the supposed ‘right’
In order to justify the broadening of the right of pre-emptive self-defence extends to a state
of pre-emptive self-defence, the strategy with negligible military capabilities that makes
argued that the threat posed by terrorism no discernable threat prior to the attack, the
could not be as readily identified beforehand moral distance between ‘self-defence’ and

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‘aggression’ disappears. That said, however, the effects of the sanctions regime were
positive international law does not cover the morally impermissible. The argument
full spectrum of moral reasoning about inter- followed that as sanctions had (apparently)
vention. In 1999, for example, NATO inter- not achieved their goals (Iraqi disarmament)
vened against Yugoslavia to halt and reverse the and imposed a heavy burden of suffering on
ethnic cleansing of Kosovo. In terms of the Iraqi people (which could be counted in
positive law, the intervention was illegal, yet terms of ‘thousands’ of deaths), the use of
many writers – myself included – argued that force was morally required. It would simul-
it was nevertheless morally justifiable because taneously achieve the coalition’s material
it prevented a greater wrong from being com- goals and ease the suffering of the Iraqi
mitted (Bellamy, 2002; IIC, 2000). However, people. In the move described above, Blair
as suggested at the outset of this article, there seemed to imply that war was being waged,
is a further potential set of arguments that in part, to minimize the negative conse-
could be used to justify the war with Iraq, as quences of the prior actions of those that
one warranted by the moral rights bestowed on were initiating the war. Those prior actions,
all individuals by natural law – while acknow- it could be argued, were at least in part put
ledging that it was illegal under positive law. in place as punishment for Iraq’s mistreat-
This argument holds that according to natural ment of the Kurds and Shi’ites in the after-
law, wars fought for humanitarian purposes are math of the Gulf War in 1991.5 The
a moral good in themselves, though there is argument follows that the coalition chose
debate about whether the key moral good is not to use force to ‘right the wrong’ but
humanitarian intent or humanitarian outcomes instead to apply economic sanctions. Once it
(compare Ramsbotham & Woodhouse, 1996 became clear that economic sanctions were
and Wheeler, 2000). not serving the just cause and were proving
disproportionately expensive, the allies chose
the resort to force as a ‘last resort’ and more
The Humanitarian Exception
appropriate method of satisfying the just
Once it became clear that the UN Security cause dating back to 1991.6
Council was not going to authorize the use This is a sophisticated argument, but
of force against Iraq, the leaders of all three there are a number of problems with it. Most
main interveners began to emphasize the fundamentally, although the just war tra-
humanitarian necessity of war. As in the dition permits wars that aim to ‘right a
Kosovo case, the most ardent advocate of the wrong’, there is almost unanimity of thought
‘humanitarian exception’ was British Prime among secular and theological ethicists that
Minister Tony Blair. Blair used two broad the wrong must be committed by the state
arguments. The first was a moral argument that war is being waged against. Even accept-
for shifting tactics to enforce Iraqi disarma- ing the argument that the coalition had a just
ment. He argued that ‘the alternative [to cause dating back to 1991 and were
war] is to carry on with a sanctions regime justifiably using nonviolent methods to
which, because of the way that Saddam
5 The primary justification for sanctions was Iraq’s non-
Hussein implements it, leads to thousands of
compliance with Resolution 687, but humanitarian justifi-
people dying needlessly in Iraq every year’ cations also played a part in the way that political leaders
(Blair, 2003). Thus, Blair tacitly agreed with explained the sanctions to their domestic publics (Wheeler,
the many critics of the sanctions regime 2000: 145–165).
6 I am very grateful to Nils Petter Gleditsch, editor of
against Iraq (such as Simons, 1996, and Journal of Peace Research, for putting this excellent
Ismael & Heddard, 2003) by suggesting that argument to me.

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accomplish their goals until it became rights abuse were evidently incapable of
apparent that this tactic was not working, righting that wrong.
there are three principal problems with this The second, and more persuasive,
line of reasoning. First is the question of dis- humanitarian argument levelled by Blair,
crimination. As Grotius pointed out (1925: Bush and Howard was that Saddam
507), a just warrior ought ‘not to involve the Hussein’s record of human rights abuse alone
innocent with the nocent in the same warranted intervention. Once again, the
punishment’, yet it is clear that the sanctions British were at the forefront of making this
regime targeted the Iraqi population in the argument. The Foreign and Commonwealth
hope that they would overthrow their Office (2002) released a short report in
government. Benon Sevan, executive November 2002 documenting the decades of
director of the UN’s ‘oil-for-food’ pro- human rights abuse in Iraq. It insisted that
gramme in Iraq, reported that the Iraqi ‘Iraq is a terrible place to live. People are in
government’s misappropriation of revenue constant fear of being denounced as oppon-
from this programme was small, owing to ents of the regime. . . . Arbitrary arrests and
the UN’s close scrutiny of spending, and that killings are commonplace.’ The Iraqi regime,
it had virtually no effect on the quality of life the report points out, was guilty of torture,
of ordinary Iraqis.7 The sanctions regime abusing women, abusing prisoners, conduct-
ignored the Kantian imperative that humans ing summary executions, persecuting
should be seen as ends in themselves, never Kurdish and Shi’ite minorities and gassing its
as means to an end, by attempting to use the own people. The report concluded that
suffering of the civilian population to coerce ‘Saddam Hussein has been ruthless in his
the government. Second, it is doubtful treatment of any opposition to him since his
whether the sanctions regime was propor- rise to power in 1979. A cruel and callous
tionate, because between 1991 and 2003 disregard for human life and suffering
sanctions appeared to cause more harm than remain the hallmarks of his regime’ (pp.
the evil they were trying to undo.8 Moreover, 6–8). George W. Bush used his 2003 State of
the fact that the sanctions regime was ques- the Union Address to make a similar
tionable on discrimination and proportion- argument. Bush told his audience that ‘I
ality grounds was evident long before 2003. have a message for the brave and oppressed
Finally, and perhaps most important, the use people of Iraq: Your enemy is not surround-
of economic sanctions after 1991 was an ing your country – your enemy is ruling your
inappropriate tool for responding to the country’, before insisting that ‘if war is
humanitarian catastrophe of 1991. It did forced upon us, we will fight in a just cause
nothing to stop the killings in the aftermath and by just means – sparing, in every way we
of the Gulf War or to ease the plight of the can, the innocent’ (Bush, 2003).
Kurds and Shi’ites thereafter. This once again These arguments echo the claims of
raises the spectre of abuse, because the cosmopolitan writers and others who suggest
methods chosen to pursue the ostensible just that there is a ‘humanitarian exception’ to
cause of halting mass killing and human the ban on force in positive international law.
7
Such writers claim that there is agreement in
Benon Sevan in informal consultations of the UN
Security Council, 22 November 2002.
international society about what constitutes
8 For instance, in 1998 the UN’s humanitarian coordi- a ‘supreme humanitarian emergency’ and
nator in Iraq, Dennis Halliday, pointed out that the sanc- that in such cases states not only have a right
tions regimes created conditions where ‘children are being
permanently damaged by malnutrition and protein to intervene to halt human suffering, they
deficiency’ (Cockburn, 1998). have a moral duty to do so (Arend & Beck,

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1993; Tesón, 1997). Indeed, in 1992 Pope cases of human suffering create a legitimate
John Paul II (1992: 475) argued that ‘the moral exception to the rule of non-
conscience of humanity and international intervention rooted in natural law.
humanitarian law’ demands that ‘the inter- There is little doubt that the Hussein
national community not only has a right but regime had a terrible human rights record. In
a duty of humanitarian intervention where 1988, for instance, Iraqi forces crushed a
the survival of populations and entire ethnic Kurdish rebellion with chemical and con-
groups is seriously compromised’. ventional weapons, killing an estimated
Advocates of the cosmopolitan position 100,000 people – the vast majority of them
find evidence for a ‘basic floor’ (this term is civilians (Stromseth, 1993: 81). Immediately
Vincent’s, 1986) of agreement in the con- after the 1990–91 Gulf War, Iraqi forces
temporary international human rights again went into action to suppress rebellion.
regime that includes agreed and detailed This time, the Kurds and Shi’ites rebelled at
standards of humane behaviour, accepted the instigation of George Bush Senior and
methods of governmental and nongovern- were brutally crushed. As Freedman & Karsh
mental surveillance, and increasing acknowl- recount (1993: 419):
edgement of universal criminal culpability. the [Republican] Guard plunged into their
Just as this consensus has grown over time, new task with a degree of brutality that was
they argue, so too has state practice devel- exceptional even by the exacting standards of
oped towards a growing recognition that the regime. The holy cities of Najaf and
Karbala were given a particularly harsh treat-
there is indeed a right of intervention in
ment. Thousands of clerics were arrested and
extreme cases. They argue that a precedent hundreds were summarily executed.
was set after the Gulf War by Operation
Provide Comfort in northern Iraq (Wheeler, By the end of April 1991, tens of thousands
2000). This operation was implicitly sanc- of civilians had been killed and over two
tioned by UN Security Council Resolution million refugees had fled Iraq (Freedman &
688, which itself marked a revolutionary Karsh, 1993: 420). In order to make the link
moment in international society because it between Iraq’s dire human rights record and
implied that human suffering alone could the legitimacy of the invasion, however, two
constitute a threat to international peace and questions need to be addressed: first, is the
security and hence warrant a collective ‘humanitarian exception’ grounded in
armed intervention by the society of states.9 Western traditions about the morality of war,
The argument follows that the subsequent or is it a more recent rhetorical device, as
interventions in Bosnia, Somalia and some of its critics (such as Chomsky, 1999)
Rwanda reinforced this new norm. Sover- suggest? Second, even if we answer the first
eignty, Tony Blair once famously opined, is question in the affirmative, we need to
not a veil that human rights abusers can hide ask whether the situation in Iraq at the
behind (Blair, 1999). Instead, ‘state authori- beginning of 2003 constituted a supreme
ties are responsible for the functions of pro- humanitarian emergency that required the
tecting the safety and lives of [their] citizens’ immediate use of force to provide a remedy.
(ICISS, 2001: 13). Thus, the cosmopoli-
tanist argument seemingly endorsed by The Humanitarian Exception in Just
Bush, Blair and Howard holds that extreme War Thinking
9 I am not necessarily endorsing this interpretation of the
Is it legitimate to use force to protect the
Resolution. On the background to and importance of Res- citizens of another state from tyranny?
olution 688, see Chopra & Weiss (1992). Different traditions within just war

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thinking, broadly defined, reveal two threat of mass execution. The logic is strik-
different answers to these questions. The ingly similar. Sinibaldo Fiesci, adviser to
first is the ‘holy war’ tradition that took hold Pope Innocent IV in the 13th century,
in Europe in the late 16th and early 17th argued that the Pope was responsible for all
centuries. There are three particularly humanity. Although the Pope could not
relevant aspects of holy war thinking. First, punish infidels for simply being infidels, he
holy wars are wars fought to propagate ‘right was permitted to use force against infidels if
religion’ or establish a social order in line they violated natural law and particularly if
with divine authority (Johnson, 2001: 38). they did so in places where Christians (no
Second, such wars are legitimate in order to matter how few) lived (Muldoon, 1979:
enforce religious compliance and to punish 10–12). In the contemporary era, the cos-
deviation. Finally, ‘holy wars’ (rather than mopolitanist logic replaces papal authority
‘just wars’) are wars in which the partici- with either the legal authority of the UN
pants are either morally ‘holy’ or utterly Security Council or the moral authority of
unjust (Johnson, 2001: 38–39). It is clear to Western liberalism. The protected popu-
see how such holy war thinking, which was lations are no longer merely Christians, but
developed by a diverse range of theorists and all humanity.
statesmen including Francis Bacon, Stephen However, many of the problems with
Gosson and Cardinal Allen (Johnson, 1974: the holy war doctrine extend to the modern
81–133), could lend itself to a moral justifi- idea of humanitarian intervention. Most
cation for intervention to assist others. relevant here, though, is the issue of ‘right
Underlying the holy war idea is the notion authority’. By the end of the 17th century,
that God commands particular wars rather the idea that the Pope had authority to use
than merely permits them. Such wars are force to protect Christians or enforce
commanded not only to protect the religious conformity had all but dis-
religious way of life of the potential inter- appeared from the just war tradition. Early
vener but also to ‘maintain truth and the jurists such as the neo-scholastics (Vitoria
purity of religion’ (Gouge, 1631: 215). and Suarez) and Grotius and Vattel were
This echoes the much more recent work united in their rejection of holy war, and
of solidarist theorists of international society instead insisted that the primary just cause
and law who argue that the obligation to for war was ‘reasons of state’, with the
help citizens of other states in distress is a grounds for war found in customary
moral duty founded in common humanity. practice and natural law. Today, of course,
Coming at the problem from very different the only authority above the state permit-
perspectives, Franck & Rodley (1971) and ted to instigate war is the UN Security
Lepard (2002) conclude that there are sound Council. In the absence of agreement about
moral grounds for humanitarian inter- what constitutes ‘common humanity’ and
vention, because there is ‘common’ agree- how the obligations of humanity are to be
ment in a number of ethical traditions that interpreted, it is problematic to suggest
crimes such as the mass killing of civilians that individual states may appeal to
are universally punishable. Thus, while a ‘humanity’ to seek justification for their
holy war is commanded by the Pope to actions. Although the holy war tradition
protect Christian communities everywhere seemingly provides a way into locating a
that are threatened by infidels, a ‘humani- universal moral obligation within an
tarian intervention’ is commanded by ethical tradition on war, it cannot serve the
‘humanity’ to protect innocents under purpose of providing a framework for

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justifying the Iraq war, for two principal other states is just, and – according to
reasons. First, the shift from ‘Christendom’ Walzer (1977: 14) – an act of necessity, not
to ‘humanity’ as the legitimate object of charity. The justness of the use of force to
protection is not self-evidently justifiable. protect foreign nationals, however, is much
Second, even the holy war idea presup- more contentious.
posed authorization by an authority higher To the extent that one can be found, the
than the state. What we are left with by the existence of such a right finds its roots in
end of the 17th century, and still today, Aquinas’s ideas about natural law, and the
however, is the state as the highest auth- development of those ideas by Vitoria and
ority and war permitted only for ‘reasons of Grotius. At this point, however, it is import-
state’. ‘Reasons of state’ only permit the use ant to note a key difference between the
of force to protect the state and its citizens, classical just war tradition and the holy war
not to deliberately conquer or compel the tradition. While the holy war tradition
citizens of other states. Nevertheless, as we speaks of a moral duty to intervene, Vitoria
will see in the following section, Vitoria and Grotius speak only of a right to act: that
and Grotius did provide for the use of force is, we may act, but we are not morally com-
to punish those who violate natural law. pelled to do so. To use Walzer’s phraseology,
The second, and more familiar, tradition viewed from this perspective the use of force
of thought is the ‘classic’ just war thinking. to defend the citizens of another state is an
It is this doctrine that provides us with the act of charity, not necessity.
criteria of jus ad bellum (just cause, right In his discussion of the Spanish war
authority, right intent, proper declaration) against American Indians, Vitoria asked
and jus in bello (principally proportionality whether it was permitted to use force against
and discrimination). The key questions, infidels who practised cannibalism and
then, for this tradition of thought are human sacrifice. In answering in the
whether the suffering of the Iraqi people affirmative, Vitoria argued that the use of
constituted a ‘just cause’ and whether the force was permissible because the ‘wrongs’ it
coalition invasion was conducted with was intended to halt were wrong under
‘right intent’.10 The principal ‘just cause’ natural law – which is knowable to all – not
that permeates the classic tradition is self- Christian law, which is knowable only to
defence. According to Vitoria, even the Christians. The context of Vitoria’s dis-
unjust and the infidel have a right to bear cussion, however, was one where the
arms in self-defence, creating the possibility (Spanish) sovereign had a degree of legal
that a war may be just on both sides (see jurisdiction over the American Indians. In
Johnson, 1974: 154–156). This raises the cases where no such jurisdiction existed,
question of whether the use of force to Vitoria demanded that no right of punish-
defend others is just. The classical tradition ment existed (Nardin, 2000). Grotius went
is clear in stipulating that the defence of one step further in arguing that sovereigns
10 The question of ‘right authority’ in the case of Iraq is
have a right to punish acts that ‘excessively
something of a given for classical just war theorists, as the violate the law of nature or of nations in
right to wage war is one held by states. Thus, whilst con- regards to any persons whatsoever’ (cited by
temporary international law may suggest that the allies did
not have proper authority to invade Iraq, this is not a Nardin, 2000: 8). As Nardin (2000: 9)
question for classical just war theorists. The argument suggests, the emerging doctrine in this
follows that if ‘just cause’ and ‘right intent’ can be ascer- period, evident in Grotius, was that every
tained, the lack of UN authorization need not undermine
the case for war in natural law, though, as I argued earlier, sovereign had a right to enforce natural law
it certainly does undermine the case in terms of positive law. against every other sovereign. This state of

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affairs was accompanied by almost perpetual particularly where there is no authority set
war in Europe.11 above the sovereign to judge its claims. This
Although the natural law argument does was not an idle intellectual problem. As
provide a basis for justifying humanitarian noted earlier, the problem of ‘abuse’ was a
intervention, it is important to note that real one, and contributed to a context of
significant elements of the classic just war perpetual war in Europe that only began to
tradition rejected it, and that by the 19th markedly decrease once these rights began
century this tradition of thought had been to be removed by the emergence of legal
almost entirely replaced by legal positivism, positivism in the 18th and 19th centuries.
precisely because it justified perpetual war Beginning with the Peace of Westphalia in
in Europe. Just war theorists identified two 1648, positive international law asserted
central problems with the idea of using with ever-increasing vigour a sovereign’s
force to uphold natural law in foreign states. right to rule however he saw fit and the
First, among many classic just war theorists obligation of other sovereigns to respect his
– Grotius included – the idea that sover- right to do so. This had the effect of making
eigns have a right to suppress rebellion is warfare much more rare, though at the cost
sacrosanct. Indeed, many writers suggest of occasionally tolerating tyrannical rule
that sovereigns may not be bound by inter- domestically. Positive international law
national customs in such cases, though therefore developed as a response to the
Grotius insisted that they remain bound by endemic abuse of natural law. As a result,
natural law (Johnson, 1974: 141). This natural law and positive law should not be
doctrine significantly limited the idea of a viewed as separate bodies of reasoning.
universal right to uphold natural law. Instead, the application of natural law to
Second, and more significantly, from Vattel contemporary moral dilemmas should be
onwards the ‘right’ to wage war became tempered by legal positivism in order to
increasingly a matter of state-to-state guard against abuse.
relations regulated by ever more restrictive In order to sustain a natural law
positive law. Giving sovereigns a licence to argument, as an exception to the established
interpret and enforce ‘natural law’, it was rules of positive international law, to justify
found, led to anarchy and perpetual war. As interventions to topple repressive regimes, it
one of the early legal positivists, Samuel von would be necessary to demonstrate at least
Pufendorf, put it (1672/1934: 837), it is three points. First, it would have to be shown
‘contrary to the natural equality of mankind that the elements of natural law being
for a man to force himself upon the world violated are knowable to all. That is, it must
for a judge and decider of controversies. . . . be evident that those violating natural law
Any man might make war upon any man are violating principles common to all. The
under such pretense.’ Although Pufendorf modern corollary of this is acceptance by
went on to clarify his statement, the senti- international society of a ‘basic floor’ of
ment is clear. A ‘right’ that permits sover- humane behaviour below which the rights of
eigns to wage war to enforce ‘natural law’ sovereign inviolability are invalidated
opens the possibility of abuse in allowing (Vincent, 1986). Second, it must be demon-
sovereigns to wage war for any reason, strated that the violation is widespread and
systematic. Third, it must be shown that
11Including, but not limited to, the Thirty Years War, the using force to defend these rights will save
English Civil War, the Anglo-Dutch Wars, Catherine the
Great’s wars, Anglo-Spanish Wars, Franco-Italian wars and more than it injures. For, as Nardin (2000:
Habsburg–Ottoman Wars. 7) points out, many classic just war theorists

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maintain that ‘one is not justified in harming admits that there are no objective criteria for
many to rescue a few’. evaluating when a humanitarian emergency
Thus, the classical just war tradition becomes supreme, he argues that such an
opens a space for morally justifying the emergency exists ‘when the only hope of
invasion of Iraq in terms of a humanitarian saving lives depends on outsiders coming to
exception to positive international law predi- the rescue’.
cated on the upholding of natural law. Did the situation in Iraq at the beginning
Nevertheless, the problem of abuse that led of 2003 constitute just such an emergency?
to perpetual war and the virtual closure of It is important to begin by reiterating the fact
the natural law tradition in the 18th century that the Iraqi regime had an appalling
leaves proponents of the war with at least human rights record. Moreover, it is import-
three hurdles to cross. These hurdles are ant to also note that the regime had a track
brought together in the question of whether record of breaking both natural law and
the situation in Iraq at the beginning of 2003 positive international law. The former were
constituted a ‘supreme humanitarian emer- breached in the 1988 and 1991 pogroms
gency’ that necessitated the use of force. against the Kurds and Shi’ites. The latter
In order to address these three criteria, were breached in the 1981 and 1990 in-
contemporary advocates of the moral case for vasions of Iran and Kuwait, respectively. It is
humanitarian intervention tend to limit the uncontroversial, however, to suggest that the
legitimacy of intervention to cases of human rights situation in Iraq did not
‘supreme humanitarian emergency’. The worsen in the run-up to war and that Iraqi
notion of a ‘supreme emergency’ was first breaches of natural law had been worse – and
coined by Walzer (1977: 251–255). It has had gone unpunished – in the past. This is
two components. The first is the immediacy not to excuse the Iraqi regime. What it does
of the danger, and the second is its nature. A do, however, is question the necessity of
supreme emergency occurs where the danger using force for humanitarian purposes in
is very close, and in order to qualify it must 2003. The use of force against Iraq in either
be ‘of an unusual and horrifying kind’. There 1988 or 1991 would have been morally
is widespread agreement that if humanitarian legitimate, because it would have been a
intervention is to be contemplated at all, it direct response to state-led mass murder and
must only be in situations of ‘supreme hence an act of defence for others against
humanitarian emergency’. As Vincent put it breaches of natural law. For the use of force
(1986: 126–127), ‘humanitarian inter- to count as a legitimate defence against
vention is . . . reserved for extraordinary breaches of natural law in 2003, however,
oppression, not the day-to-day’. More one would expect to have seen either an esca-
recently, the International Commission on lation of human rights abuse in Iraq or
Intervention and State Sovereignty (ICISS) evidence of the interveners attempting
concluded that military action for humani- alternative means of accomplishing humani-
tarian purposes was only legitimate ‘in tarian goals. The UN’s ‘oil-for-food’ pro-
extreme and exceptional cases’ (ICISS, 2001: gramme may count as one such activity, but
31). Wheeler (2000: 34) provides an import- from the brief discussion of this above it
ant outline of what constitutes a ‘supreme appears that the Iraqi regime was not pri-
humanitarian emergency’, arguing that the marily responsible for the failure of this
concept of a supreme humanitarian emer- project. Other than this, the states that led
gency ‘captures the exceptional nature of the the 2003 invasion did very little to help
cases under consideration’. Although he improve conditions in Iraq.

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The question of timing is fundamental, the beginning of 2003. We must conclude,


for while there may be agreement that then, that there was no supreme humani-
natural law is violated by a state’s repression tarian emergency that required the use of
of its people – and particularly through acts force to alleviate it. Latter-day Grotians may
of genocide and mass killing – both classical argue that the requirement for past violations
just war thinking and contemporary scholar- to be punished provides enough moral
ship place a considerable degree of weight on ground for war, but this argument again
the immediacy of the problem. The immedi- opens the door to abuse. If a right of punish-
acy of the problem provides the link between ment is not temporally limited, then it can
the unlawful act and the act of prevention or be used by sovereigns to justify virtually any
punishment. To return to the 17th century, war they might wish to wage.
the key difficulties with the Grotian idea that
all states may wage war on all other states to
Conclusion
uphold natural law were: (1) identifying
what counted as a breach of natural law and Although positive international law does not
(2) linking the punishment to the act. As we cover the full spectrum of moral reasoning
noted above, at best today there is a consen- about war, it nevertheless frames much of the
sus that intervention to halt mass killing may contemporary debate about the legitimacy of
be morally permissible as an exception to the particular wars. Thus, although the legal case
ban on the use of force contained within for war with Iraq was quite weak, the coali-
positive international law. There is virtually tion nevertheless chose to frame its justifi-
no suggestion that other forms of human cations in legal positivist terms. The written
rights abuse warrant armed intervention. In law is helpful in this regard because it
1999, Iraq ranked 13th on The Observer’s provides a common framework, accessible to
human rights index.12 Although such all, for assessing legitimacy claims. The coali-
rankings are always flawed, it at least suggests tion put two legal arguments forward. First,
that Iraq was not alone in the scale of its it argued that the war was legal because it was
abuse. Interestingly, of those 13 states, only authorized by the Security Council. This
three (Yugoslavia, Indonesia and Iraq itself ) argument can be discounted, because the
have been subject to intervention.13 In the coalition has not demonstrated that its
two other cases of intervention – Kosovo and interpretation of the relevant resolutions
East Timor – intervention was a direct reflects the clearly expressed will of the
response to ongoing mass killing and ethnic Council. Indeed, on closer examination it
cleansing. In cases where there are high levels appears that the Council expressed the
of human rights abuse but no ongoing mass contrary view: that to be legitimate, any use
killing, which include Algeria, Libya and of force would require explicit authorization.
North Korea, a variety of methods short of Second, the USA argued that the war was a
war and punishing economic sanctions have legitimate act of pre-emptive self-defence.
been used. Whatever else the Iraqi regime This argument, however, was invalidated by
was guilty of, it was not guilty of breaches of the USA’s failure to demonstrate that Iraq
natural law as fundamental as mass killing at posed a threat prior to the invasion.
It is difficult to conclude, then, that the
12 The index was compiled by The Observer newspaper invasion of Iraq was legal if we use positive
(UK). The index, and supporting articles, can be read at international law as our benchmark. However,
http://www.guardian.co.uk/rightsindex.
13 Though it should be noted that the intervention in East that does not necessarily mean that it was
Timor was authorized by the Security Council. unjust. During the Kosovo intervention in

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1999, most NATO leaders used moral rather taken in response to violations. As a result,
than strictly legal arguments to justify their individual sovereigns became the final
actions. Likewise, in 2003 the leaders of the (earthly) judge of what counted as natural
three primary coalition countries argued that law. As a check on the possibility of abuse,
the Iraqi regime’s mistreatment of its own Vitoria and Suarez both insisted that the
citizens created a powerful moral case for war. prince consult others before deciding on the
There are, I argued, two potential justness of his cause.14 Nevertheless, the
grounds for accepting this claim within the natural law argument was regularly abused.
just war tradition. First, a secularized The breakdown of Papal authority and the
interpretation of the holy war tradition may widening of causes that could be considered
permit the use of force to protect fellow ‘just’ precipitated a general breakdown of
members of humanity from defilement by order in European politics and a state of per-
uncivilized leaders. There were two key petual war. The response came first of all in
problems with this line of reasoning. On the the reversal of the logic of ‘natural law’ in
one hand, the holy war tradition requires an Vattel and Pufendorf and then its progressive
authority higher than the state to demand replacement with legal positivism, which
such a war (be it God himself or his represen- placed ever-greater restrictions on the use of
tative on earth). Today, the only authority force, culminating in the UN Charter’s
above the state permitted to wage war is the general ban.
Security Council, which takes us back to the Ethical thinking about war and peace
positive law debate. On the other hand, a today is largely framed by these two elements
holy war requires the intervener to identify of the just war tradition: natural law and
with the victims that are being saved. In the legal positivism.15 It is important to recog-
holy war tradition the common community nize that the two traditions coexist and that
was Christendom. Today, political leaders the latter is, in large part, a response to the
invoke ‘humanity’ as the common signifier, failings of the former. Thus, we ought to
though in the case of Iraq they failed to reject Tesón’s call for a modern form of
demonstrate either what that common natural law to replace the rigid strictures of
humanity was or how it was aided by the international legal positivism that view the
invasion. This is particularly problematic law as an objective category of rules that we
given that the overwhelming majority of apply to particular cases through correct legal
humanity was resolutely opposed to the reasoning, and which adjudicates on the full
invasion. scope of our moral dilemmas (Higgins,
A second line of reasoning could also be 1994; Kingsbury, 2002). Natural law
found, that of natural law. Natural law provides a common way of thinking about
theorists, from Aquinas onwards, have the morality of war, while legal positivism
argued that sovereigns do have a right acts as a vital brake on abuse. It is clear,
(though not an obligation as it is in the holy however, that the problem of abuse was
war tradition) to wage war against those who
violate natural law. The key problem was that
14 Vitoria said that the sovereign ‘ought’ to consult as
although Vitoria and Grotius believed
widely as possible, whilst Suarez said ‘must’. Having con-
natural law to be knowable by all (and God sulted, however, the sovereign remains the right authority
to be the final arbiter of disputes), there were to decide upon the justness of war according to Vitoria. See
no guidelines nor any overarching authority Johnson (1974: 181–182).
15 Though the humanitarian intervention debate is not
to determine what natural law meant in limited to these two traditions. See Holzgrefe (2003:
particular cases and what action should be 15–52).

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Ale x J. Bel l a m y ETHICS AND I N T E RV E N T I O N IN IRAQ 145

integral to the narrowing of the rights of nastier, more brutish and even shorter for
natural law. those who already suffer.
The problem with using natural law as a On 15 March 1939, Hitler justified the
foundation for a humanitarian justification invasion of Czechoslovakia by arguing that
for invading Iraq is that to make a com- his forces would halt ‘assaults upon life and
pelling argument in this case requires a fairly liberty’ committed by ‘the intolerable terror-
broad understanding of what is permitted by istic regime of Czecho-Slovakia’. German
natural law. In the case of Iraq, the coalition troops, he argued, would ‘disarm the terror-
could not point to a ‘supreme humanitarian ist bands and the Czech troops who are
emergency’ as a just cause, nor could it shielding them; they will take under their
demonstrate the exhaustion of peaceful protection the lives of all who are threatened’
alternatives. Moreover, as the legal debates (quoted by Chesterman, 2001: 27). This
revealed, it is not even clear that the invasion justification mirrors almost exactly the
was launched with the intent of saving justifications given for countless humani-
threatened Iraqis. As a result, it appears that tarian interventions since – including the
humanitarian justifications were abused to invasion of Iraq. Although there are grounds
justify a war that could not be justified by – and a need – for moral exceptions to
either positive international law or reasons of positive international law in time of mass
state (the defence of the state and its allies). killing and genocide, the danger of abuse
The application of natural law arguments should not be underestimated. Widen the
to justify contemporary humanitarian wars exception by undermining key tracts of
must acknowledge legal positivism. In positive law and the incidence of war is likely
particular, if the problem of abuse is to be to increase. Doing so also undermines the
avoided, potential interveners must demon- moral basis of the argument. If all wars can
strate both the egregiousness of the regime be ‘humanitarian’, then the humanitarian
they are intervening against and the neces- exception itself ceases to have meaning, just
sity of using force to halt violations of as natural law ceased to have meaning when
natural law immediately. The benchmark sovereigns could use it to justify anything.
must be set high on both criteria because we The danger with accepting the legal and
are talking about a limited natural law moral arguments for war with Iraq is that it
exception to positive law, not a general will undermine the veracity of those argu-
moral principle in itself. We are admitting ments: Security Council resolutions can be
that in some circumstances the use of force interpreted so broadly as to mean anything
without UN sanction may be morally per- and nothing; pre-emptive self-defence blurs
mitted, though it is never commanded. It is into aggression; humanitarian wars become
for political communities to decide whether the norm, but selectivity on the basis of the
they are morally obliged to react, on a case- ‘national interests’ of the interveners
by-case basis. In the Iraq case, the coalition remains.
was able to demonstrate the egregiousness of The post-Iraq era presents international
the regime but not the necessity of using society with a crucial dilemma. On the one
force when it did. Lowering this second con- hand, international society could attempt to
dition while maintaining the general excep- amend its rules to accommodate the USA
tion would create a space for the and its allies by loosening restrictions on pre-
proliferation of abuse. This would lead to emptive self-defence and aggressive war for
more ‘intervention’ not ‘humanitarian inter- ostensibly humanitarian purposes. On the
vention’, and would undoubtedly make life other hand, international society could recall

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the importance of the relationship between Abuses: A Report on the Human Cost of
natural law and legal positivism and acknow- Saddam’s Policies by the Foreign and Common-
ledge that a degree of legitimate order is wealth Office. London: FCO, November.
provided by a combination of both types of Franck, Thomas & Nigel Rodley, 1971. ‘After
Bangladesh: The Law of Humanitarian Inter-
law.
vention by Force’, American Journal of Inter-
national Law 67(2): 275–305.
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