On the Legitimacy of the Iraq War
Nov. 14th, 2005 10:06 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
ziasudraEthics and Intervention: The 'Humanitarian Exception' and the Problem of Abuse in the Case of Iraq
Alex J. Bellamy, Journal of Peace Research 41, no. 2, 2004, pp. 131-147.
"This article investigates whether, and when, using force to remove a foreign government is morally justifiable. It uses the case of Iraq to assess whether conservative interpretations of positive international law can be overridden by the moral right to uphold elements of natural law that are knowable to all." (p. 132)
Types of law:
- Positive international law (from the "just war" tradition)
- Natural law (sovereign has the right to uphold good of country and subjects)
By enforcing natural law, the sovereign makes him/herself the exception, winning the right to keep peace using whatever means under a certain sense of immunity.
Bellamy claims that the humanitarian exception in Iraq's case resulted in abuse:
"'Abuse' refers to cases where moral arguments are used to justify a war that is not primarily motivated by the moral concerns espoused, but by the short-term interests of those instigating violence." (p. 132)
Bellamy: "I argue that natural law and positive law should not be understood as separate traditions but as complementary sets of ideas, the occasionally competing claims of which must be balanced in particular cases." (p. 132)
Problems with international law: (p. 133)
1. No single authoritative lawmaker in international relations.
2. No authoritative judge above the sovereign.
3. Customs: hard to interpret objectively.
4. Positive law is underdeveloped, doesn't address all necessary aspect of law keeping.
5. No defined community-based moral framework, impossible to establish ethics.
On Téson's argument that would justify Iraq war on humanitarian grounds:
"However, Téson overlooks the fact that the emergence of legal positivism was a response to the failure of natural law to regulate violence. Moreover, I argue that as they emerged from the broadly same tradition of thought, natural law and legal positivism should be understood as complementary sets of ideas." (p. 133)
~ Téson's argument lies in the thesis that it is legally and morally legitimate to use force for benign humanitarianism. Viewed this way, the war on Iraq can fall within this category. Instead of protecting unregulated violence, Téson believes that the rise of legal positivism is a fetishization of the modern state, thus discarding the historical context whence legal positivism came.
As in Protestants vs. Catholics wars and Hitler's war:
"The danger is that if contemporary international society seeks to accommodate 'abusers' of moral justifications for war or legitimizes their actions, states will become more likely to make use of such avenues, creating a more violent international society." (p. 133)
What to do in light of these 'abuses'?
"Instead, the challenge is to expose the abuse as such, and to confront the perpetrators with the unjustness of their actions in order to constrain potential abusers through normative pressure at the domestic and international level." (p. 134)
Positive International Law and the War in Iraq
"The legal debate about the decision to wage war in Iraq was framed almost entirely by the interpretation of positive law. Moreover, the broader moral debate about the war was also often couched in legal positivist terms." (p. 134)
Did Iraq really breach UN Resolution 687 (one of the reasons for going to war)? (pp. 134-135)
- "...there is nothing in Resolution 687 that implies that Resolution 678 (an earlier resolution) might be reactivated if Iraq did not comply."
- Iraq did follow Resolution 687 in letter.
- Council never authorized force to implement Resolution 687.
- Resolution proposal for force over Iraq not approved by Council.
- 1998 Operation Desert Fox did not win consensus of interpretations by the Council.
All this to show, that the UN Security Council cannot be arguably proven that they authorized the use of force in Iraq, as the US administration would like to have had.
Without UN approval, then, the justification falls on natural law: pre-emptive self-defence.
Rogue states = imminent threats?
"Such states may be 'rogues', but they are still states, and there is no evidence to suggest that they pose a threat that is uniquely different to threats posed by other states." (p. 135)
~ Bellamy calls the US administration's pre-emptive self-defence argument "not compelling," thus not justifiable based solely on positive international law.
"That said, however, positive international law does not cover the full spectrum of moral reasoning about intervention." (p. 136)
~ For example: intervention at Kosovo. Illegal in terms of positivist law, but morally legit considering the situation. So the question is whether, apart from positivist legalism, there is compelling moral reason/natural law justification for the US administration to go to war against Iraq.
The Humanitarian Exception
Blair's argument: sanctions failed to achieve their goals, therefore morally necessary to intervene in another way.
"...Blair seemed to imply that war was being waged, in part, to minimize the negative consequences of the prior actions of those that were initiating the war." (p. 136)
Bellamy points out flaws in this reasoning: (p. 136)
- Just war or no, intervention required that the state against which war is waged commit a wrong first.
- The sanction regime itself: was it legit? Morally beneficial to begin with? The question of abuse arises again with the sanction, on whether it was able to right the wrong as it was supposed to do.
Moral reason #2: "Saddam Hussein's record of human rights abuse alone warranted intervention." (p. 137)
~ The cosmopolitanist argument. But the core question here is: What constitute "supreme humanitarian emergency" (p. 137) as an international moral judge, jury, and police? Is there such an international community, which would have then made the intervention on such grounds legitimate? Ultimately, it's a US-UK-Australia coalition here, not an international one.
"Thus, the cosmopolitanist argument seemingly endorsed by Bush, Blair and Howard holds that extreme cases of human suffering create a legitimate moral exception to the rule of non-intervention rooted in natural law." (p. 138)
Human rights violation is not the main issue here:
"In order to make the link between Iraq's dire human rights record and the legitimacy of the invasion, however, two questions need to be addressed: first, is the 'humanitarian exception' grounded in Western traditions about the morality of war, or is it a more recent rhetorical device...? Second, even if we answer the first question in the affirmative, we need to ask whether the situation in Iraq at the beginning of 2003 constituted a supreme humanitarian emergency that required the immediate use of force to provide a remedy." (p. 138)
Global norm, just like holy war rhetoric?—"...a 'humanitarian intervention' is commanded by 'humanity' to protect innocednts under threat of mass execution." (p. 139)
"In the contemporary era, the cosmopolitanist logic replaces papal authority with either the legal authority of the UN Security Council or the moral authority of Western liberalism. The protected populations are no longer merely Christians, but all humanity." (p. 139)
~ But who defines "humanity"?
"Although the holy war tradition seemingly provides a way into locating a universal moral obligation within an ethical tradition on war, it cannot serve the purpose of providing a framework for justifying the Iraq war...." (pp. 139-140)
1. Christendom to "Humanity" is not an equal switch.
2. Lack of authority higher than the state.
"Although natural law argument does provide a basis for justifying humanitarian intervention, it is important to note that significant elements of the classic just war tradition rejected it, and that by the 19th century this tradition of thought had been almost entirely replaced by legal positivism, precisely because it justified perpetual war in Europe." (p. 141)
~ And because positivist law developed as a response to natural law, the two should be viewed in light of each other, especially when considering contemporary moral dilemmas on abuse.
If a natural law-only argument (as in classical just war theory) is to be upheld: (p. 141)
1. Need to show that natural law violations are knowable to all.
2. Need proof that violation is widespread and systematic.
3. Need to show that force will save more than harm.
Would human rights violations have been worse?
"this is not to excuse the Iraqi regime. What it does do, however, is question the necessity of using force for humanitarian purposes in 2003." (p. 142)
Timing:
"The question of timing is fundamental, for while there may be agreement that natural law is violated by a state's repression of its people – and particularly through acts of genocide and mass killing – both classical just war thinking and contemporary scholarship place a considerable degree of weight on the immediacy of the problem." (p. 143)
~ To Bellamy, there wasn't sufficient evidence that Iraq at the beginning of 2003 qualified as an immediate threat – as defined by just war theorists from the 17th century on in how urgency is factored into intervention as a direct response of punishment to breached natural laws. In Iraq's case, when breach of law had been in a sense perpetual, why 2003?
Conclusion
In short: argument #1 --> war was legit because of international support; nope, no UN authorization. Argument #2 --> it was legit for pre-emptive, self-defence reasons; nope, US, in using natural law as justification, failed to demonstrated imminent threat as delineated by Classical just war theories.
"In the case of Iraq, the coalition could not point to a 'supreme humanitarian emergency' as a just cause, nor could it demonstrate the exhaustion of peaceful alternatives. Moreover, as the legal debates revealed, it is not even clear that the invasion was launched wtih the intent of saving threatened Iraqis." (p. 145)
When considering the Iraq War in light of international positivist laws, the Coalition's reasons for going to war were not justifiable. But Bellamy warns against separating the legal positivists from the natural law. So the question becomes: was the war in Iraq legitimate when looking at it in light of natural law (most prominently, the Classical just war theory)? Was the war in Iraq "just"? Bellamy answers no.
I find it interesting that in all the theory talk, WMD wasn't mentioned in the article. Is it assumed that WMD falls under the "failure to proof immediate danger" category? I wouldn't say so 100%, because Bellamy's point for immediate danger is very much focused on humanitarian crisis (i.e., human rights violations, etc.), and not on physical, military equipments. I wonder what his reason for excluding this particular "reason" from the US administration was?
What if WMD were found... would that somehow add weight to the natural law argument? This would put the sovereign squarely within his (in this case, Bush's) responsibility to protect is own subjects from harm, regardless of means, as a sovereign under the exception rule. It's not quite humanitarian exception, but it's definitely the sovereign's exception as outlined by Agamben in Homo Sacer.
Alex J. Bellamy, Journal of Peace Research 41, no. 2, 2004, pp. 131-147.
"This article investigates whether, and when, using force to remove a foreign government is morally justifiable. It uses the case of Iraq to assess whether conservative interpretations of positive international law can be overridden by the moral right to uphold elements of natural law that are knowable to all." (p. 132)
Types of law:
- Positive international law (from the "just war" tradition)
- Natural law (sovereign has the right to uphold good of country and subjects)
By enforcing natural law, the sovereign makes him/herself the exception, winning the right to keep peace using whatever means under a certain sense of immunity.
Bellamy claims that the humanitarian exception in Iraq's case resulted in abuse:
"'Abuse' refers to cases where moral arguments are used to justify a war that is not primarily motivated by the moral concerns espoused, but by the short-term interests of those instigating violence." (p. 132)
Bellamy: "I argue that natural law and positive law should not be understood as separate traditions but as complementary sets of ideas, the occasionally competing claims of which must be balanced in particular cases." (p. 132)
Problems with international law: (p. 133)
1. No single authoritative lawmaker in international relations.
2. No authoritative judge above the sovereign.
3. Customs: hard to interpret objectively.
4. Positive law is underdeveloped, doesn't address all necessary aspect of law keeping.
5. No defined community-based moral framework, impossible to establish ethics.
On Téson's argument that would justify Iraq war on humanitarian grounds:
"However, Téson overlooks the fact that the emergence of legal positivism was a response to the failure of natural law to regulate violence. Moreover, I argue that as they emerged from the broadly same tradition of thought, natural law and legal positivism should be understood as complementary sets of ideas." (p. 133)
~ Téson's argument lies in the thesis that it is legally and morally legitimate to use force for benign humanitarianism. Viewed this way, the war on Iraq can fall within this category. Instead of protecting unregulated violence, Téson believes that the rise of legal positivism is a fetishization of the modern state, thus discarding the historical context whence legal positivism came.
As in Protestants vs. Catholics wars and Hitler's war:
"The danger is that if contemporary international society seeks to accommodate 'abusers' of moral justifications for war or legitimizes their actions, states will become more likely to make use of such avenues, creating a more violent international society." (p. 133)
What to do in light of these 'abuses'?
"Instead, the challenge is to expose the abuse as such, and to confront the perpetrators with the unjustness of their actions in order to constrain potential abusers through normative pressure at the domestic and international level." (p. 134)
Positive International Law and the War in Iraq
"The legal debate about the decision to wage war in Iraq was framed almost entirely by the interpretation of positive law. Moreover, the broader moral debate about the war was also often couched in legal positivist terms." (p. 134)
Did Iraq really breach UN Resolution 687 (one of the reasons for going to war)? (pp. 134-135)
- "...there is nothing in Resolution 687 that implies that Resolution 678 (an earlier resolution) might be reactivated if Iraq did not comply."
- Iraq did follow Resolution 687 in letter.
- Council never authorized force to implement Resolution 687.
- Resolution proposal for force over Iraq not approved by Council.
- 1998 Operation Desert Fox did not win consensus of interpretations by the Council.
All this to show, that the UN Security Council cannot be arguably proven that they authorized the use of force in Iraq, as the US administration would like to have had.
Without UN approval, then, the justification falls on natural law: pre-emptive self-defence.
Rogue states = imminent threats?
"Such states may be 'rogues', but they are still states, and there is no evidence to suggest that they pose a threat that is uniquely different to threats posed by other states." (p. 135)
~ Bellamy calls the US administration's pre-emptive self-defence argument "not compelling," thus not justifiable based solely on positive international law.
"That said, however, positive international law does not cover the full spectrum of moral reasoning about intervention." (p. 136)
~ For example: intervention at Kosovo. Illegal in terms of positivist law, but morally legit considering the situation. So the question is whether, apart from positivist legalism, there is compelling moral reason/natural law justification for the US administration to go to war against Iraq.
The Humanitarian Exception
Blair's argument: sanctions failed to achieve their goals, therefore morally necessary to intervene in another way.
"...Blair seemed to imply that war was being waged, in part, to minimize the negative consequences of the prior actions of those that were initiating the war." (p. 136)
Bellamy points out flaws in this reasoning: (p. 136)
- Just war or no, intervention required that the state against which war is waged commit a wrong first.
- The sanction regime itself: was it legit? Morally beneficial to begin with? The question of abuse arises again with the sanction, on whether it was able to right the wrong as it was supposed to do.
Moral reason #2: "Saddam Hussein's record of human rights abuse alone warranted intervention." (p. 137)
~ The cosmopolitanist argument. But the core question here is: What constitute "supreme humanitarian emergency" (p. 137) as an international moral judge, jury, and police? Is there such an international community, which would have then made the intervention on such grounds legitimate? Ultimately, it's a US-UK-Australia coalition here, not an international one.
"Thus, the cosmopolitanist argument seemingly endorsed by Bush, Blair and Howard holds that extreme cases of human suffering create a legitimate moral exception to the rule of non-intervention rooted in natural law." (p. 138)
Human rights violation is not the main issue here:
"In order to make the link between Iraq's dire human rights record and the legitimacy of the invasion, however, two questions need to be addressed: first, is the 'humanitarian exception' grounded in Western traditions about the morality of war, or is it a more recent rhetorical device...? Second, even if we answer the first question in the affirmative, we need to ask whether the situation in Iraq at the beginning of 2003 constituted a supreme humanitarian emergency that required the immediate use of force to provide a remedy." (p. 138)
Global norm, just like holy war rhetoric?—"...a 'humanitarian intervention' is commanded by 'humanity' to protect innocednts under threat of mass execution." (p. 139)
"In the contemporary era, the cosmopolitanist logic replaces papal authority with either the legal authority of the UN Security Council or the moral authority of Western liberalism. The protected populations are no longer merely Christians, but all humanity." (p. 139)
~ But who defines "humanity"?
"Although the holy war tradition seemingly provides a way into locating a universal moral obligation within an ethical tradition on war, it cannot serve the purpose of providing a framework for justifying the Iraq war...." (pp. 139-140)
1. Christendom to "Humanity" is not an equal switch.
2. Lack of authority higher than the state.
"Although natural law argument does provide a basis for justifying humanitarian intervention, it is important to note that significant elements of the classic just war tradition rejected it, and that by the 19th century this tradition of thought had been almost entirely replaced by legal positivism, precisely because it justified perpetual war in Europe." (p. 141)
~ And because positivist law developed as a response to natural law, the two should be viewed in light of each other, especially when considering contemporary moral dilemmas on abuse.
If a natural law-only argument (as in classical just war theory) is to be upheld: (p. 141)
1. Need to show that natural law violations are knowable to all.
2. Need proof that violation is widespread and systematic.
3. Need to show that force will save more than harm.
Would human rights violations have been worse?
"this is not to excuse the Iraqi regime. What it does do, however, is question the necessity of using force for humanitarian purposes in 2003." (p. 142)
Timing:
"The question of timing is fundamental, for while there may be agreement that natural law is violated by a state's repression of its people – and particularly through acts of genocide and mass killing – both classical just war thinking and contemporary scholarship place a considerable degree of weight on the immediacy of the problem." (p. 143)
~ To Bellamy, there wasn't sufficient evidence that Iraq at the beginning of 2003 qualified as an immediate threat – as defined by just war theorists from the 17th century on in how urgency is factored into intervention as a direct response of punishment to breached natural laws. In Iraq's case, when breach of law had been in a sense perpetual, why 2003?
Conclusion
In short: argument #1 --> war was legit because of international support; nope, no UN authorization. Argument #2 --> it was legit for pre-emptive, self-defence reasons; nope, US, in using natural law as justification, failed to demonstrated imminent threat as delineated by Classical just war theories.
"In the case of Iraq, the coalition could not point to a 'supreme humanitarian emergency' as a just cause, nor could it demonstrate the exhaustion of peaceful alternatives. Moreover, as the legal debates revealed, it is not even clear that the invasion was launched wtih the intent of saving threatened Iraqis." (p. 145)
When considering the Iraq War in light of international positivist laws, the Coalition's reasons for going to war were not justifiable. But Bellamy warns against separating the legal positivists from the natural law. So the question becomes: was the war in Iraq legitimate when looking at it in light of natural law (most prominently, the Classical just war theory)? Was the war in Iraq "just"? Bellamy answers no.
I find it interesting that in all the theory talk, WMD wasn't mentioned in the article. Is it assumed that WMD falls under the "failure to proof immediate danger" category? I wouldn't say so 100%, because Bellamy's point for immediate danger is very much focused on humanitarian crisis (i.e., human rights violations, etc.), and not on physical, military equipments. I wonder what his reason for excluding this particular "reason" from the US administration was?
What if WMD were found... would that somehow add weight to the natural law argument? This would put the sovereign squarely within his (in this case, Bush's) responsibility to protect is own subjects from harm, regardless of means, as a sovereign under the exception rule. It's not quite humanitarian exception, but it's definitely the sovereign's exception as outlined by Agamben in Homo Sacer.
