JUST WAR AND HUMANITARIAN INTERVENTION

Author(s): Jean Bethke Elshtain

Source: Proceedings of the Annual Meeting (American Society of International Law), Vol. 95
(APRIL 4-7, 2001), pp. 1-12
Published by: American Society of International Law
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THE THIRD ANNUALGROTIUS LECTURE:

JUSTWAR AND HUMANITARIAN INTERVENTION
Elshtain
by
JeanBethke
The just war tradition is a theory of comparative justice applied to considerations of
war and intervention. To better grapple with its complexities and the characteristic
form ofmoral reasoning that enters into the just war tradition, it is important to get
a grip on what this centuries-old, continually revised tradition consists of, and theways
inwhich it contests the terrain of war and peace questions with the alternative tradi
tions of realpolitik on one end of a continuum and pacifism on the other. Approach
ing humanitarian intervention through a just war lens means that such interventions,
or their
possibility, must be subjected to intense scrutiny and cannot be played out
simply by appealing to compassion or to doing the "right thing." The just war tradition

the tragedy of situations inwhich there maybe a "right thing" to do on

acknowledges
some absolute standard of justice, but no
prudent or decent way to do it
The structure of this essay begins with the basics of the just Avartradition. I go on to
consider whether this complex tradition affords a compelling frame within which to

intervention by drawing on specific instances of

conjure the issue of humanitarian
such intervention and measuring
these against just war stipulations. Finally, I round
intervention drawn
things off with a few comments on the politics of humanitarian
from theAugustinian
tradition. Augustinian realism warns us that no perfect standard
of justice or fairness can ever be attained by which to adjudicate questions of war,
violence, and intervention. But that does not mean that one should exile the language
of justice and the concerns intrinsic to it frommatters of war and peace altogether.
The Just War

Tradition

The just war tradition is a way of thinking that refuses to separate

politics from
ethics. Unlike the competing doctrine of state-centered
the just war
realism,
strategic
argument insists one must not open up an unbridgeable gulf between "domestic" and
"international" politics. The traditions of political realism and just war embrace con
trasting presumptions about the human condition.1 The realpolitikers, whose great
forefathers are Machiavelli
and Hobbes,
hold that men in general are ungrateful,
in Hobbes'
here?or,
dissembling, back-stabbing, and untrustworthy?Machiavelli
account, that humans are isolates driven into forward motion, bound to collide vio
lently, and that humanity in general is defined by themost horrible equality imagin
able?the
power each has to kill each other. It takes a lot of coercive force to hold such
creatures in check, not in the interest of a positive vision of human
possibility but
simply to stop them marauding.
By contrast, just Avarthinkers begin with a commitment to a view of human beings
as creatures who are
always conflicted and torn and whose human relationships are
characterized by love and kindness as well as selfishness and cruelty; by human soli
darity and human plurality. These are constant features of the human condition that
*
Laura Spelman Rockefeller
Professor of Social and Political Ethics, the University of
Chicago.
1
Unlike modern
war and realism?hold
both traditions?just
that one cannot simply
epistemologists,
bracket ontological
considerations
in treating any perspective of social and political life.Whether
or not this
ismade as an explicit philosophic
is another matter. Some view of what we used to call "human
argument
nature" is implied ifnot unpacked
outright.
1

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ASIL Proceedings,2001

are played out in a variety of plural ways in diverse cultures. Human motives and actions
are always mixed: We both affirm and destroy solidaristic possibilities, often doing so
simultaneously. For example, we affirm solidarity within the particular communities
of which we are a part?for every human being is a member of a way of life that em
bodies itself institutionally as family, tribe, civil society, state. This plurality is a constant
feature of human political and moral life.We may launch ourselves intowider ormore
universalistic possibilities from this particular site, seeking to affirm our common
humanity through organizations, institutions, and ways of being and thinking that draw
us into wider streams of existence. Or we may not And we may not in dreadful and

destructive ways, for example, by denying the very humanity of those from different
our own. This denial of humanity is also a denial, or a refusal to recog
plural sites than
all
that
cultures, without fail, define and refine moral codes, and that thesemoral
nize,
codes invariably set norms for the taking of human life; all have some notion of what
counts as a violation of this norm. Standards ofmoral conduct relate to all arenas in

which human beings engage one another, from families to politics. The challenging
norms are applicable to the arena of politics (as but one
question isnot whether moral
are
the standards and towhat ends do they apply?
example), but what
The tradition of realpolitik, by contrast, insists that the rules that govern domestic
the focus is a body's internal politics?are
moral conduct?here
inapplicable to the
world of what used to be called "men and states." Politics framed by just war thinking
insists thatwhile itwould be Utopian to presume that relations between states can be
governed by the premises and caretaking apposite in our dealings with family and
friends, this does not mean a war of all against all must kick in once one leaves the

or even the borders of one's country. The

hearth, or the immediate neighborhood,
is
realist
instrumental
calculations and some concept of national
strategic
governed by
interest; the just war thinker isgoverned by a complex amalgam of normative commit
ments and pragmatic considerations
that overlap in a number of important respects
with those of strategic realism, although the starting points vary. The just war thinker
is not nearly so harsh in his or her evaluation of what is usually called liberal inter
nationalism with itsjustifications of intervention in the name of sustaining, supporting,
or building a universal culture of Kantian republics as is the realpolitiker. At the same
time,he or shewould voice considerable skepticism about any such project, not because
she opposes making more robust an international regime of human rights and greater

fairness and equity but, rather, because of her recognition of the intrinsic value of
human cultural plurality. From the Augustinian
side, nothing less than the sin of
hubris is implicated in any attempt toweld humanity into a single mono-culture. Here
the story of the Tower of Babel is instructive. The reason God intervened, scattered
humanity, and set us to babbling was to remind humanity of the need for humility and
limits. The Babel story is a cautionary tale concerning any and all attempts to forge a

uniform humanity under a single scheme of things.

a more cosmopolitan or internation
Just war thinkers worry that certain appeals to
to the alleged possibility of
alist order?whether
of a Kantian or utilitarian sort?and
consideration
with
force
of
intervention
from
any
strategic considerations or
severing
national interest, invites radical de-politicizing of national action. Note, for example,
that in themultiple cases of resort to bombing in the second Clinton administration,
the word "war" dropped away as the phrase "humanitarian intervention" triumphed.
But no one can intervene militarily without getting blood on his hands. It follows that
attack heli
intervention that involves soldiers, automatic weapons,
a
war
vast
of
of one sort
is
the
modern
arsenal
war,
copters, bombers, cruise missiles,
or another. I will have more to say on this as we proceed.

humanitarian

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Grotius

Lecture: Just War

and Humanitarian

Intervention

As a theory of war fighting and resort to war, just war thinking is best known as a
cluster of injunctions: what ispermissible; what isnot permissible. For example, a war
must be the last resort; a Avar
must be openly and legally declared; a war must be a
are the ad bellum specifi
a
to
response
specific instance of unjust aggression?these
to ends; a Avar
cations. The means deployed in fighting a war must be proportionate
must be Avaged in such a Avayas to distinguish combatants from noncombatants?these
are the in bellonorms. Whether
in evaluating a resort to arms or in determining the
bases and nature of political order more generally, the just Avar thinker insists on the
need formoral judgments, for figuring out Avho in the situation at hand is behaving
in a more or less just or unjust manner?Avho
ismore the victimizer and Avho the vic
on
Avar
tim. Just
the pOAver ofmoral appeals and arguments of the sort that, for
insists
the strategic realist, ismere AvindoAvdressing, icing on the cake of strategic consider
ations. For the just Avar thinker, moral appeals are the heart of the matter?not
the
only matter but the place from Avhichone starts.
Just Avarthinkers do not propound immutable rules (they are not, to repeat, deontol
ogists) somuch as to clarify the circumstances that justify a state's going to Avar (jus ad
bellum) and Avhat is and is not alloAvable in fighting the Avars?or interventions?to
Avhicha polity has committed itself (jus in bello). There are those Avhoargue that our
moral squeamishness must be laid to rest in times of Avar; the image of the violated
Avoman, the starving child, the bloAvn-to-pieces man must be put out of sight and out
ofmind. This is cruel, they say, but Ave live in a cruel and dangerous Avorld.We must
think in terms of the Big Picture, the system of sovereign states and balance of forces.
For if Avedo not think in this Avay,if Aveare naive about the Avorld's Avays,
many more
human beings Avilisuffer over the long run as smaller nations or groups of people
Avithinnations are gobbled up by huge empires and tyrants run amok, are ethnically
cleansed, or are rounded up and murdered. Just Avarthinkers acknoAvledge the impor
tance of this insistence on the Avaysin Avhich
refusing to counter aggression may make
Avorse.
on
to
insist
that Avecan hold Avithina single frame a
HoAvever,
things
they go
concern Avith
a
a commitment to the
sense
in
collective
and
peoples
dignity of each
and every human person: The ethical concerns are never simply irrelevant.
The Just War

Tradition

as Frame for Action:

Sic et Non

The matter in dispute is Avhetheror not the just Avartradition gives us a vantage
point
from Avhich to assay critically forms of intervention that
appeal to humanitarian con
siderations or, specifically, to the just Avar tradition itself, often in and through the
many conventions and agreements thathave solidified and codified that tradition over
time. For the just Avar thinker, military intervention cannot simply be a knock-doAvn
conclusion that folloAvsfrom the articulation of
triggering stipulations and claims.
Hoav then Avould the just Avar thinker build a case for intervention? I have
already
noted that this tradition isdemanding and inherently
complex, aiming simultaneously
to limit resort to arms and to
respond to the urgent requirements of justice. There are
times Avhenclaims of justice may override the reluctance to take up arms. For there are
Avecan do so in
grievances and horrors to Avhich Aveare called to respond?provided
a manner that avoids, to the extent that it is
either
the
humanly possible,
deepening
or
neAV
instances
of
injustice already present
creating
injustice.
The first part of the just Avar
frameAVork is devoted to determining Avhether or not a
resort to Avar?or intervention?is
justified. War, for example, should be fought only
for a justifiable cause of substantial importance. The
primary just cause in an era of
nations and states is a nation's response to direct aggression.
Protecting citizens from

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ASIL Proceeding?,2001
is a fundamental

norm, and it scarcely counts as protection ifno response is

made when one's countrymen and women are being slaughtered, hounded, routed
from their homes, and the like.
But there are other justified occasions for war. Aggression need not be directed
against one's own to trigger jus ad bellum argument. The offense of aggression may
be committed against a nation or a people
incapable of defending itself against a
determined adversary. If one can intervene to assist the injured party, one isjustified
in doing so, provided that other considerations are met From St. Augustine on, saving
"the innocent from certain harm" has been recognized as ajustifiable cause?the
inno
cent being those who are in no position to defend themselves. The reference isnot to
any presumption ofmoral innocence on the part of victims; nobody is innocent in the
classic just war framework in that sense.2 In our time, this saving of the innocent is
intervention.
usually referred to as humanitarian
This does not mean, of course, that any one nation or even a group of nations can
or should respond to every instance of violation of the innocent,
including themost
horrific of all violations, ethnic cleansing. Thejust war tradition adds a cautionary note
about overreach. Be certain before you intervene, even in a just cause, that you have
a reasonable chance of success. Do not barge in and make a bad situation worse. Con
siderations such as these take us to the heart of the so-called in bello rules. These are
restraints on themeans to be deployed even in ajust cause. Means must be proportion
ate to ends. The damage must not be greater than the offenses one aims to halt Above
all, noncombatant
immunitymust be protected. Noncombatants
historically have been
all
the
and
unarmed
women, children,
infirm,
persons going about their daily
aged
war
as
as
well
of
who
have
disarmed
been
lives,
prisoners
by definition.
injeopardy, knowingly putting inplace strategies
Knowingly placing noncombatants
that bring greatest suffering and harm to noncombatants
rather than to combatants,
on just war grounds. Better by far to risk the lives of one's own combat
isunacceptable
ants than the lives of enemy noncombatants. Just war thinking also insists thatwar aims
be made clear, that criteria for what is to count as success in achieving those aims be
publicly articulated, and that negotiated settlement never be ruled out of court by fiat.
The ultimate goal of just war is a peace that achieves a greater measure of justice than
harm

thatwhich characterized
the ante-bellum period.
The jus in bello considerations are borne along by twomajor principles of discrimi
nation: targeting only legitimate war targets (here noncombatant
immunity) together
with proportionality, a way of restraining the scope and intensity of warfare in order
tominimize
its destructiveness.
How well does thejust war tradition bear up when it is specifically evoked as the

recent vintage
grounding and framework for intervention? We have two examples of
that afford interesting and ambiguous case studies: the 1991 Persian Gulf War (not, to
intervention per se, although humanitarian grounds melded
be sure, a humanitarian
to traditional grounds of nonaggression against a sovereign state were evoked) and the
1999 intervention inKosovo. The Persian Gulf War was prompted by the annexation
of Kuwait, the brutalization of Kuwaitis, and the gutting of their country. These were
clear violations of basic principles of international order that encode respect for the
a
sovereignty of states. You do not have to like the regime in place in country that is
that an ad bellum tripwire has been crossed,
the victim of aggression to acknowledge
2
This is another way in which thejust war tradition guards against moral triumphalism: by insisting that
even though the balance of justice may fallmore on one side than the other in cases of conflict, there should
that the aggressor iswholly evil and that the aggressed against iswholly innocent Presup
be no presumption
can and have fueled horrible things.
positions of total innocence

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GrotiusLecture:JustWar andHumanitarian Intervention 5

a crime (inMichael Walzer's
term) committed
violates theUnited Nations Charter.
The American response to Iraqi aggression
beginning. Such considerations framed much
intervene and what means to deploy once one

by one state against another, one that

evoked just war imperatives from the
of the debate about whether or not to
had. The language of "just cause" was

repeated endlessly as was "'last resort," the argument here being that sanctions were
tried and failed. Legitimate authority was articulated explicitly: a twenty-seven-nation
coalition acting under the imprimatur of theUnited Nations and in the name of col
lective security. So far so good? Yes and no.
Justwar principles are ambiguous and complex. Evaluations have to be made at each
step along the way. Greater and lesser evils (injustices) must be taken into account.
Thus, certain questions must be asked, including, What would be the cost of resisting
the postwar Gulf region be a more, or less, unjust and dis
Iraqi aggression? Would
ordered region? Might not the human and environmental damage, and the assaults
to the spirit that every Avartrails in itswake, blight any peace? The ends may be justi
themeans may be unjust or unjustifiable,
fied?restitutive response to aggression?but

even ifpains are taken to avoid direct

targeting of civilians.
*
Much of this complexity fell out of the argument as a thinned-out variant on just
war discourse" emanated from the supporters of intervention in theHouse of
Repre
sentatives and the Senate, as well as from the Bush administration. Hearing just war
discourse being evoked was simultaneously heartening and troubling. Itwas hearten
limits to the use of
ing because concerns of justice were foregrounded and because
force, as well as itsjustification, came into debate. Itwas troubling because the rhetoric
of justification veered dangerously
toward a crusading moral
triumphalism, with
Saddam Hussein
called a Hitler for our time, although the Iraqi people themselves
were
spared any blanket Nazification rhetorically speaking.
This rhetorical upping of the ante points to a temptation related to the just war
tradition, namely, theway inwhich it can slide over into the rhetoric of crusades. Must
Saddam really be a Hitler in order to justify going towar against his regime? On the
other hand, on the in bellofront, care was taken in coalition targeting policy in line
casualties of coalition
withjust Avarrestraints. Ifpostwar estimates of the noncombatant
are
at
to
all
thousand
fifteen
accurate?five
thousand civilians according to
bombing
its
for
knoAvn
of
forceful
is ghastly,
intervention?that
scarcely
Greenpeace,
support
but something to be grateful for at the same time. All one need do is to compare this
discriminatory policy against the indiscriminate terror bombing of civilian targets in
World War II to appreciate the restraint that the coalition partners placed on them
selves in their targeting strategy.
That having been said, one should nonetheless be haunted by the
possibility that
something as grave as reflecting on so-called "collateral damage" (that is, the harm that
comes to nonmilitary targets, such as civilian noncombatants, from the
legitimate
targeting of a military site) rather easily becomes formulaic. This possibility came to
lightmost vividly in theKosovo intervention. The New York Times offered a long reprise
on the
bombing of the Chinese embassy. Readers of that piece learned that not only
error but
Avere involved as Avhat the Times called
incompetence
"inexpert" targeters
forged forth absent higher level accountability. What most interested me, hoAvever, Avas
the Adsual that accompanied
this piece. One sees an aerial photograph
identified as
described as a site for "Supply and Procurement"
target #493, "Belgrade Warehouse,"
for the Serbian forces. "Collateral
damage" is noted and ranked as "Tier 3 High" Avith
a
seven
Estimate"
to
of
three
civilian Avorkersand an additional calculation
"Casualty

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ASIL Proceedings,2001

of "unintended civilian casualties of25-50."3 We have done our moral duty, this seems
to say. Calculating civilian casualties in such a routinized way violates the spirit ifnot
the letter of just war teaching.
Just war thinking also requires sustained attention even after the shooting has
on whether noncombatants
stopped. Because themedia focused nearly all its concerns
were actual targets of coalition bombing strategy during the course of the conflict in
the Gulf, the public's attention was deflected from the long-range effects of bombing,
including life-threatening assaults to the infrastructure of Iraqi society (energy and
water supplies, for example). These are matters that require explicit attention within
ajust war framework. The strategic realist can say, "Hit anything thatmakes them hurt
and impairs their ability tofight" But the just war thinkermust not move so hastily. He
or she must siftout thatwhich is vital to the opponent's war effort?including
power
thatwhich, while itmay be drawn into support of
stations?from
and communication
military actions, is essential to sustain civilian life.Here water and food supplies are
foremost, even paradigmatic, as an example of what noncombatants
require.
The First Geneva Protocol (1977) codifies just war thinking on civilian and nonmili
tary targeting in language thatdirects our attention not only to the buildup towar, or the
now include malnu
war itself,but to its long-term consequences. Those consequences
tritionand epidemics linked direcdy to inadequate food and water supplies and medicines.
What this adds up to is the following: Ifjust war is evoked, those evoking it should
staywithin the framework they have endorsed. This framework was abandoned once
the Iraqis had been routed from Kuwait. But the war, or the aftermath of the war,
continued. The health catastrophes faced by the Iraqi public, the plight of theKurds,
and the disproportionate
casualty figures (with estimates of one hundred thousand

thousand wounded)
raise serious ethical
Iraqi soldiers killed and three hundred
concerns. Was this a fairfight or a turkey shoot? Just war thinking does not permit one
to evade such questions. The lopsidedness of casualties is an occasion for serious
debate and a problem for the just war thinker as it is not for the strategic realist.
Also worrisome is the fact that just war considerations fell off the rhetorical radar
screen once hostilities ceased. Spokesmen for the U.S. government reverted almost
immediately to the language of strategic realism and the inviolability of sovereignty,
therebyjustifying coalition refusal to intervene in the internal affairs of Iraq when the
our attention. Can you really stand back and say
plight of theKurdish people captured
"no intervention in internal affairs, that's international law"when you have been respon
sible in part in bringing about those internal affairs in the first place? This creates the
sort of ethical schism thejust Avartradition aims to bridge. There isnothing wrong per
se with diplomatic and strategic categories, depending on how they are used and to
what ends. The problem I am gesturing toward is the abrupt taking up of a rhetoric
of strategic realism once the rhetoric of just war seems to have exhausted itsutility.
The North Atlantic Treaty Organization
(NATO) intervention inKosovo is,formany,
a paradigmatic
intervention in the very name of humanity
instance of humanitarian
the Nuremberg
itself, calling to mind
precedents and "crimes against humanity."
Hitler and Nazism were evoked repeatedly to characterize Serbian policy. It is the in
bellodimensions of just war I aim to emphasize, although certain ad bellumissues would
come into play in any exhaustive examination of theKosovo intervention within ajust
war framework, including the vexing matter of "right authority." As an editorial in
Commonweal magazine pointed out, although a hawk (or strategic realist) might have
refrained in this situation (James Baker's famous "we've got no dog in thisfight") and
or she could somehow squeeze what was
a
pacifist similarly and by definition, unless he
5

Steven Lee Myers,

Chinese Embassy Bombing: A Wide Net ofBlame, N.Y. TIMES, Apr.

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17,2000,

at A1.

GrotiusLecture:JustWar andHumanitarian Intervention

going on within the category of a "police action" that pacifism can endorse, inter
ventionists of various sorts argued forcefully that ethnic cleansing is one of those rare
knock-down triggers ad bellum. Interventionists come in several varieties, of course, and
Commonweal notes one sort, "genuine interventionists," who hold to a seamless web
are all "created equal" and justice
approach to human rights violations, namely, they
demands "going everywhere to stop certain harms from continuing if you go any
where" (provided, of course, you have themeans).
"Therefore, international action
to
to
be
almost
taken
stop slaughter and ruin, whether it is born of
ought
everywhere
ethnic and religious rivalries or internal political divisions. The principle of inter
vention should be universal and uncompromising."4 That is not the sort of interven
tionism thejust war tradition underwrites so long as it remains tethered toAugustinian
realism, hence attuned to the role of contingency, including a state's or a coalition's
inability to respond evenly and robustly everywhere, whenever something terrible is
an absolute standard of
happening, whatever the demands of
justice.
Humanitarian
intervention comes under the category of saving innocents from cer
tain harm or, as it is now more commonly called, those in need of rescue. Augustine
might evoke neighbor love here, that is, serving one's neighbor in the name of a form
of friendship and stewardship. How did this play out on the ground? Well, on the
ground Kosovar Albanians were harassed, tormented, deported, and killed. But we?
primarily theUnited States although under the rubric ofNATO?did
nothing on the
to
cast
stated
within
human
this.
Our
intent,
stop
ground
rights justice language, was
to stop ethnic
name of humanity itself.The argument was thatWorld
in
the
cleansing
War n had taught us that genocide
is a crime thatmust not go unpunished. Other
avenues had been exhausted. Mr. Milosevic was immune to diplomatic overtures. NATO
is a legitimately constituted concert of states and, therefore, has authority to act, if
need be, for humanitarian reasons and in the interest of collective self-defense, pro
a
tecting thewhole idea of European comity of nations. These are grounds for selective
humanitarian intervention with considerations that go beyond the crimes themselves;
so let's assume ad fo/ftzmjustification.
The biggest problem from a just war perspective in theKosovo Avarwas themeans
deployed tohalt and to punish ethnic cleansing. In thefirst instance, our means speeded
the
up the process as the opening sorties in the bombing campaign gave Milosevic
excuse he needed to declare martial law and tomove
in
to
order
rapidly
complete
what he had already begun, entrenching his forces in Kosovo before NATO
might
the
change itsmind about introducing ground troops into the conflict?something
United States, rather astonishingly, announced
itwould not do from the get-go. We
blundered into a strategy, not giving much consideration to the likely reaction to our
there was no prepa
bombs, namely, a deepening of the terror and expulsions. Hence,
ration for the influx of desperate humanity to neighboring countries and regions, and
their plight was made doubly desperate by lack of food, water, medicine, and shelter
at their points of terrified egress. This does not seem a
good way to run a humanitarian
intervention, whether in the name of justice or any other good.5
4
Gerald Vann, Editorial, Intervention: When and How, 126 COMMONWEAL 5 (1999).
5
There are so many critical questions
to ask about this intervention. One worry, voiced
a
by number of
can only
this ostensibly new "universal dispensation
critics, iswhether
apply to Serbia and a mere handful
of other states thatmeet very exacting requirements:
theymust be sufficiently weak to be easily defeated, yet
to present worthwhile
Further theymust be
sufficiently advanced
targets for no-casualty bombardment....
to capitulate when the
sufficiently illiberal to perpetrate outright massacres, yet sufficiently semi-democratic
of electrical supplies and other targets evokes the protests of inconvenienced
mostly bloodless
bombing
This from Edward N. Luttwack, No-Score War, TIMES LlTERARYSUPPLEMENT
citizens...."
July 14,2000, at 112.
Luttwack adds: "What does itmean for themorality of a
supposedly moral rule, when it is applied arbitrarily
against some, but not others?*

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ASIL Proceedings,2001

The heart of thematter from ajust war framework is this:We made no attempt to
the strenuous demand of proportionality. Rather, we violated the norm of dis
crimination in a strange up-ended kind of way by devising a new criterion, combatant
than did noncombatant
immunity, as our combatants ranked higher in consideration
or
thatmatter. With our
Kosovar
for
for
Albanian
Serbian civilians,
civilians,
immunity

meet

to keep NATO

soldiers (read American combatants, for thatwas the

that had nothing to do with just war or
consideration
domestic
political
overriding
humanitarian
issues) out of harm's way, we embraced combatant immunity for our
combatants and indirectly for the Serbs soldiers, too. Instead, we did lots of damage
from the air, reducing buildings to rubble, tearing up bridges, and killing people in
determination

and television stations. It is harder by far to face determined combatants on

the ground, to interpose one's combatants between the Kosovar Albanians and their
was not
a second
given
thought We did not introduce Apache heli
predators. This
a
loss
for
fear
of but one in combat6 If combatant immu
the
situation
into
of
copters

markets

nity is to become our new organizing principle in the future, the United States will
surely face situations inwhich we refuse, or are unable, not only to do what is right, but
to do what may be necessary, having set zero-casualties as a new norm for theway we
do war.

is a strange turn of events. The Serbian army could operate with impunity with
out any worry about facing its opponents on the ground. In themeantime,
there was
on.
we
to
had
the
civilians
Once
obvious
of
"collateral
exhausted
going
damage"
plenty
on
we
which
life
infrastructure
the
civilian
military targets,
depends?this
degraded
This

we had no quarrel with the Serbian

despite a disclaimer from President Clinton that
like
under
for
the
Saddam, were victims. Because you cannot
Iraqis
they, too,
people
eliminate atrocities on the ground by dropping bombs from an altitude that keeps
them safely out of range of any possible ground-fire, although the Serbians had almost
no ability to fight back, our ends were tainted by our means?means
thatwill surely
haunt us in the future. It is a terrible thing for anyone to kill or to be killed. But that
risk ofmen and women in arms. If theUnited States is no longer
is the occupational
cannot fight wars
prepared to take any such risk for any cause, then by definition it
a
on
case
even
made
has
when
been
effectively
comparative justice grounds. Then-Presi
dent Clinton was looking for a "no casualty" or "no cost" war. But one pays a price, and
not just inmonetary terms, for such ventures. Isn't "riskless warfare" an incoherent
idea? As Paul W. Kahn argued

in a hard-hitting piece,

"War and Sacrifice

inKosovo":

If the decision to intervene ismorally compelling, it cannot be conditioned on

that assume an asymmetrical valuing of human life.This
political considerations
contradiction will be feltmore and more as we move into an era that is simulta
on the one hand, and the
neously characterized by a global legal and moral order
on
are the conditions under
What
of
the
nation-states
other.
continuing presence
which states will be willing to commit their forces to advance international stan
dards, when their own interests are not threatened? Riskless warfare by the state
in pursuit of global values maybe a perfect expression of this structural contradic
tion within which we find ourselves. In part, then, our uneasiness about a policy
of riskless intervention in Kosovo arises out of an incompatibility between the
morality of the ends, which are universal, and themorality of themeans, which
seem to privilege a particular community. There was talk during the campaign of
6
Interservice
rivalry between
Richard Posner

rivalry is also a factor, or may be, in the matter of use or nonuse ofApache helicopters given
to Judge
to attack surface targets. Thanks
the Army and Air Force on the use of planes
for calling my attention to this issue.

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GrotiusLecture:JustWar andHumanitarian Intervention

a crude moral-military calculus in which the life of one NATO

combatant was
to
to
the
of
thousand
talkmeant
lives
Kosovars.
Such
be
twenty
thought
equivalent
that even those who supported the intervention could not know the depth of our
commitment to overcoming humanitarian disasters. Is it conditioned upon the
absence of risk to our own troops? If so, are such interventions merely moral
to happen? If the Serbs had discovered a
disasters?like
that in Somalia?waiting
to
have
been an abandonment of theKosovars?7
inflict
real
would
there
costs,
way
Something called "The Clinton Doctrine" fueled the Kosovo operation. This doc
trinewas a hotchpotch: not strategic realism, notjust Avar,not liberal internationalism.
It established no clear grounds forhumanitarian intervention or political rescue, offer
ing instead a melange of ideas and desiderata thatwere somurky itwas nearly impos
sible to glean from itany clarity for either intervening or refraining from intervening
in situations of humanitarian
catastrophe. The doctrine consisted of two parts that
involved promulgating
the use of force on behalf of universal values and justifying
military intervention in the internal affairs of states.
in a highly critical piece inForeign Affairs, this
According toMichael Mandelbaum,
so-called doctrine made a hash of things in the Balkans where spirals of violence con
tinue, where any indication of an American pull-out inspires panic, and where the end
result of the deteriorating mess is de facto partitioning, not unlike the outcome in
Bosnia where the Dayton Accords ratified the results of ethnic cleansing. In Kosovo,
those who were victims are now victimizers, and the more brutal members of the

separationist movement seem to be in ascendancy. But these persistent and

deteriorated conditions have dropped off our media radar screen.8
Let's rehearse a few of the problems with this doctrine and policy as itplayed out in
Kosovo as a way of solidifying the difference between thisway of justifying "humanitar
ian intervention," by contrast to a just Avarpolitics frameAvork that cavils at risk-free solu
tions or pseudo-solutions tohorrible tragedies and political problems. Consider that our
entire purpose in bombing Avasto save lives. Estimates are that some 2,500 people had
died before the bombing campaign and that during the "11 Aveeksof bombardment,
an estimated 20,000
people died violently in the province, most of them Albanian
civilians murdered by Serbs_By
its [the bombing campaign] end, 1.4 million Avere
Avent
to
alliance
also
Avar,by itsOAvnaccount, to protect the precarious
displaced_The
of
the
countries
the
of
Balkans. The result, hoAvever, Avasprecisely the
political stability
What
Mandelbaum
opposite-"9
points to is a political failure that emerged, in part,
means
our stated ends.
to
the
achieve
giAren
deployed
Evoking strategic realism,
national interest, as Avellas state sovereignty as a value, Mandelbaum
argues that the
Kosovo

Clinton doctrine's squishiness virtually guaranteed thatU.S. policy Avouldbe driven

by
media attention and public opinion polls rather than by coherence of any sort.
I come to quite similar
Starting from a different perspective than Mandelbaum's,
conclusions. Mandelbaum
is surely correct that a quick resort to
Avas the
bombing
Clinton administration's modus operandi to almost every
foreign policyjam?Avhether
the administration Avas
interest,
using at any given point the rhetoric of national
national security, punishing dictators,
or
saving lives,
fighting the neAV global Avar
against terrorism (this being the stated rationale behind bloAving up Avhatturned out
War and Sacrifice inKosovo, 19 REP. FROM INST. Phil. 8c Pub. POL. AFFAIRS 1,4 (1999).
7PauiW.Kahn,
*
The run-up to the Kosovo
intervention is, of course, enormously
use
complicated,
including the savvy
the case not
by the Kosovo Liberation Army of the media and international human rights groups tomake
only for the existence of a humanitarian
catastrophe,
clearly the case, but for intervention of a sort that
would bolster their cause and case even
them as a
though die United States had, in 1998, characterized
terrorist organizadon.
9
Michael Mandelbaum,
A PerfectFailure: NATO's War Against
1999).
Yugoslavia, 77 FOREIGN Aff. (SepL/OcL

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10

ASIL Proceedings,2001

to be a legitimate pharmaceutical
Shifa Plant?in Kartoum, Sudan). Also
plant?the
were
that
the
civilian infrastructure of targeted soci
embargoes
preferred
degraded
eties^?a way ofmaking war on civilians. Mandelbaum,
too, opposes thisway of punish
to
at
in
the
innocent
the
order
express outrage
ing
guilty. The clearest rationale avail
able to us to oppose such a strategy lies in the comparative justice considerations that
arise from just war imperatives.
How would ajust war approach help us parse such questions further? Consider
former-President Clinton's comments throughout theKosovo intervention and as part

of the run-up to it.Mr. Clinton deployed strained domestic analogies in an attempt to

put a distinctively American stamp on the Balkans tragedy. The events he selected can
be shoe-horned within our reigning political preoccupations
only via a tortured logic.
war
or
to
in fruitful tension, the
hold
balance,
tradition, remember, attempts
Thejust
universal
commitments
with
for
the
of
moral
respect
requirements
plurality of polities,
cultures, and regimes in and through which humankind realizes itself.We are invited
to acknowledge
thatwhich is "in common" and to respect and recognize signs of dif
ference so long as these do not violate certain basic norms.10 Rather than helping us
see suffering humanity in and through the particular plight of theAlbanian Kosovars

with their quite particular and complex history,Mr. Clinton forced domestic analogies
likened the signing of a federal hate-crime statute to the
along these lines: He
as
of
each was designed to stop haters. The Kosovo intervention
bombings
Belgrade
got mapped onto the preferred domestic rhetoric of the Clinton administration. The
a
president spun out a "vision" for a new postwar Kosovo cast in the language of ver
even for a
let
alone
sion ofmulticulturalist
unrealistic
ideology,
pluralist democracy
a fractured, destabilized region in the Balkans thatwill be reeling from the events here
for the next half-century or more.
undercut this rhetoric in a May 23, 1999, op-ed in The New York
On
that
Times.
occasion, he not only proclaimed restoration of the status quo ante, his
number one priority, he added the caveat thatKosovo would come under a kind of
protectorship more or less run by theKosovo Liberation Army (KLA), which aims explic
a
itlyfor a separatist all-ethnically "pure" Albanian micro-state, not Balkans version of
described

But Mr. Clinton

rhetorics of justifi
multiculturalist
imperatives. Lost in both presidential
(which, of course, clash with one another) was attention paid to the somber
realities of intervention, including rueful recognition of unintended
consequences
and limits to what our power can accomplish.11

American
cation

Keeping Just War Augustinian:

Why Restraint

Begins at Home

a framework of
thinking is to remain honest, it is best placed within
war
realism?this by contrast to versions of just
that, in losing a connec
Augustinian
tion to this rich strand of reasoning, become mere variants on liberal institutionalism
If just war

10
take another sort of paper to spell out
Not all cultural differences are to be respected, clearly. Itwould
list as the most egregious
those norms that every culture should observe. This would not be an impossible
that every political culture agrees are egregious, even if they violate these very norms at the
wrongs?those
is going to be political
same time?would
or ethnic cleansing, slavery, and torture. There
include genocide
constitute a form of torture? For
For example, does female circumcision
controversy on the boundaries.
it clearly does as their rhetoric already reflects their commit
those who call it afemale sexual mutilation,"
norm has been, or isbeing, violated, itdoes not perforce dictate what
a
ment Even ifone has
agreed that key
can or should be or what forms of intervention in any given situation can or would be appro
a nation's
policy
now?one
a
takes the shape
might call itmoral intervention?that
priate. There is routine form of intervention
of international human rights protest through a growing listof international agencies and watch-dog groups.
11
at A17.
William Jefferson Clinton, Editorial, A Just and Necessary War, N.Y. TIMES, May 23,1999

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GrotiusLecture:JustWar andHumanitarian Intervention

11

and quickly degenerate into internationalist sentimentalism. Augustinian realism offers

no assurances that one can make theworld safe for
anything. Estrangement, conflict,
are
constant
of
the
features
human
condition.
Politics is one way human
tragedy?these

beings deal with this condition. Politics on any level never escapes certain pervasive
features of human life in all its complexity and plural modes of cultural expression.
Augustinian realism embeds deep skepticism about the exercise of power, beginning

with the aims and claims of sovereignty and of any concentration of power. At the same
time, this realism recognizes the inescapability of politics and calls on citizens to
the world of politics faithfully. Politics confronts us with
engage
intransigent
"otherness," with people who have their own cultures and opinions. Politics requires
thatwe respond in some concrete way to a world of conflicts and oppositions. The
realist of this sortworries thatwe have been so overtaken by a sentimentalized notion

of compassion thatwe have forgotten such mordant

defi
teachings as Max Weber's
nition of politics as the boring of hard boards.
There is little danger of just war turning into either a
language of narrow strategic
or
a
an
of
sentiment
rhetoric
Avithin
framework. Built in are
justification
Augustinian
barriers to the dangers inherent to the just war tradition at one end of the continuum
that links itup to crusades and triumphalism. Augustinian
realists are not crusaders.
But they insist thatwe are called to act in a mode of realistic
hope with a hard-headed
can
of
to
the
limits
action.
You
underwrite
border
recognition
crossing with this per
it
at
doesn't
the
altar
of
the
state?but
spective?because
worship
you cannot do so
with impunity given its built-in respect for the plurality of cultures in and
through
which humanity manifests itself.
as a frame for just war
Augustinianism
stipulations ismore likely to emerge as a via
negativa. There are things thatmust not be done and that are, by definition wrong;
hence, to the extent possible, these things should be stopped. But this list of knock

down violations isnot infinite: Itwould include genocide and ethnic

cleansing, torture
as an instrument of
and
political power,
unprovoked aggression against another coun
tryor people. The aim of intervening in such cases would be interpositional: not to
impose an alternative order but to stop a disorder, an instance of clear injustice.
In sum, Augustinian just war thinking imposes constraints where they
might not
otherwise exist; itgenerates a debate thatmight not otherwise occur; and it
promotes
skepticism and uneasiness about the use and abuse of power without opting out of
political reality altogether in favor of Utopian fantasies and projects. It requires action
and judgment in a world of limits, estrangements, and
partial justice. It fosters recog
nition of the provisionality of all political arrangements.
It is at once respectful of
distinctive and particular peoples and deeply internationalist It
recognizes selfdefense
against unjust aggression but refuses to legitimate imperialistic crusades and the build
ing of empires in the name of peace. It requires paying close attention to political
rhetoric, itsuse and abuse. It recognizes, in thewords ofMichael
Ignatieff, that "the
language of human rights provides a powerful new rhetoric of abstract justification.
Keeping control of Avarin themodern age means keeping control of this poAverful neAv
rhetoric, making sure that the cause of human rights does not lure citizens into Avars
that end up abusing the very
rights they Avere supposed to defend."12
Another Avarning, thisfrom
theologian Richard Miller:
12
Michael

Ignatieff,

Virtual

War:

Kosovo

and Beyond

6 (2000).

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12

ASIL Proceedings,2001
intervention can have this prima facie altruistic
Perhaps because humanitarian
to
it to be different fromwar, thereby enabling
it
is
consider
component,
tempting
as humanitarian
those who would ban war to approve of such action_Insofar
in
such
interventions might be described
terms, they appear to
(or redescribed)
The
little
for
of
domestic
coercion or police
pose
difficulty
pacifists.
paradigm
action, allowing for the use of violence in order to stop criminal activity,may en
able some pacifists to accept military action (and the prospect of violence)
in
international affairs.13

In other words, humanitarian

intervention must bear the heavy burden of justification
that just war, in its classical sense, requires in any resort to force.What Miller calls the
admirable
"intuitively admirable" notion of humanitarian
intervention?intuitively
as
or
lull to sleep our
"insofar
they spring from selfless
other-regarding motives"?may
it comes

to deployment of violent means.14

seems
at
thispoint rather inured to the routinization of use of
public
American bombing in foreign policy situations so that it scarcely registers on the radar
screen much of the time. This is especially true ifour consciences can be kept clear
a
to genuine goods. The
through deployment of language of justification that speaks
to
war
insouciance
aims
the language
tradition
without abandoning
prevent such
just
of justice in international relations altogether and, thereby, leaving it to an elastic
that refuses, much of the time, to conjure with the complexities of
"humanitarianism"
critical faculties when
The American

the use of force.

use and abuse of the lan
Taking just war seriously raises serious questions about the
in the Kosovo
intervention
humanitarian
What
of
guage
justifications.
happened
intervention isa collapse of the rhetoric of justification as inapt domestic analogies got

onto the Balkans: Bombing Serbia is the same as initiatives against so-called
mapped
hate crimes. Intervention then becomes a kind of police action?not war, not violence,
never a violation of norms of proportionality and discrimination. The rhetoric of noble
aim (and stopping ethnic cleansing is a noble aim) may too easily become a cover for
war thinking would
troubling and often ineffective means. Here Augustinian just
deconstruct masking rhetoric by insisting that those in authority, and citizens of the
United States, face up towhat isgoing on and ask themselves the tough questions, not
to forestall justifiable intervention but to tryto ensure, insofar as anything in theworld
of politics can be ensured, that themeans do not defeat, taint, or undermine the ends.

A full fleshing out of this position is beyond the purview of this paper but perhaps
I have said enough to indicate that the humanitarian
intervention, or appeals to such,
should not lull our critical faculties to sleep but, rather, engage them deeply as these
a kind of automatic urgency, an ethical imprimatur, of the sort that Avar
appeals have
does not. If thejust Avar tradition cavils at the particular way strategic realists sever
international relations from ethical restraints construed as inapplicable to the world

the particular way appeals to

of men, war, and states, this tradition also challenges
or
internationalism
and liberal
humanitarianism
may collapse, domestic and
collapse,
foreign politics.
13
Richard

3,5 (2000).

B. Miller, Humanitarian

Intervention, Altruism, and theLimits ofCasuistry, 28J. RELIGIOUS

14
Id, at 9.

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ETHICS