What are the prerogatives of the sovereign state? This is a question with which international law has wrestled in recent generations. Generally, international law assumes that a nation’s sovereignty is limited. Sovereignty cannot outweigh impunity; that is to say, where state sovereignty is absolute, international law is impossible. The more pressing question, particularly since World War II, is whether nations are morally obligated to defend basic human rights in scenarios in which there is egregious, outrageous socio-political evil such as genocide and mass murder. This question is no less urgent in the third decade of the 21st century.
Human beings living in a moral universe cannot prosecute moral atrocity if nations, or coalitions of nations, do not take this task seriously. The very purpose of governing authority is to reward the good and prohibit and punish evil. International law, if it has teeth, must do more than simply honor the victims of socio-political evil (important as that honoring is). The challenge today, given the mix of moral erosion in the West and the extent of totalitarianism globally, is whether the international community has the ability to prosecute what are typically called “crimes against humanity.” This term, issuing out of post-WWII criminal tribunals, calls for constant reflection and reiteration. At the Nuremberg trials following on the heels of the end of the Second World War, three categories of international crime were identified: (1) “crimes against peace” (that is, aggression), (2) “war crimes,” and (3) “crimes against humanity.” Today we encounter all three of these challenges, not infrequently in the form of mass murder, ethnic cleansing, rape, and torture.
The natural law binds nations in the form of a ius gentium toward mutual obligations and duties (do good and avoid doing evil).1 This law and these obligations are perpetual in validity, for all times and cultures. Natural law reasoning acknowledges the realm of state sovereignty. However, that sovereignty is not absolute; the presumption of sovereignty is negated when and where the intolerable occurs, when and where a state permits egregious human rights violations either among its own people or among other peoples. International law does not need a “world government” for its enactment; what it does need is a federation or coalition of nations that are committed to holding accountable violators of the most basic of human rights. The prosecution of the above-mentioned categories of human rights violations is philosophically and politically justified. The great challenge to international law is to find the agreement among the nations and will toward holding violators accountable through punishment according to international criminal law. Justice, after all, requires an accounting, and therefore, punishment. Can, for example, the International Criminal Court get the job done?
It needs emphasizing that natural law reasoning does not equate to some form of colonialism or imperialism. It translates into responsible policy in the same way that it provides moral wisdom to nations through “just war” moral conditions that assist them in discerning whether or not to undertake coercive intervention. Hence, it operates on the basis of moral principles such as just cause, identifying sufficient harm, proportionality, public condemnation, and the restoration of basic rights that have been violated. “War crimes” are precisely that – crimes – because they are unchosen expressions of evil that are forced upon the innocent. War itself need not be evil or an act of cruelty. Nor is it the case that war is uncontrollable. The moral conditions contained in ius in bello (justice in executing war) guide military leaders and soldiers in terms of what may and may not be done.
We react to catastrophic geopolitical events in the world because of natural law reasoning – do good and avoid doing evil – and we treat others as we would wish to be treated ourselves because of its practical application in the form of a “Golden Rule” ethic. This confronts relatively free nations with the difficult issue of both humanitarian and military intervention. Thirty years ago many were inclined to view the Cold War as the result of defects in the international order. However, the tragic reality is that (a) the Cold War never really ended but rather simply went underground while the West pursued appeasement, and (b) geopolitical disaster after disaster has visited the international community in the decades since. How, then, might those who are responsible for policy in relatively free nations propose to deal with the scale of humanitarian need in our day that is massive – situations that usually fall short of war per se but which require some measure of interventionary force for humanitarian purposes?
Here perplexing issues confront us. When, if ever, should a nation engage in coercive intervention for the primary purpose of saving lives or protecting innocent lives where vital national interests are not (seemingly) directly at stake? Should governments respond and intervene to prevent – or at least retard – the effects of genocide, mass murder, enslavement of peoples or people-groups, and egregious human rights violations? Why or why not? If so, by what rationale?
Writing on the ethics of humanitarianism five decades ago, Princeton ethicist Paul Ramsey set forth the argument that military intervention for the sake of justice remains both a right and a duty. According to Ramsey, the failure of free nations to intervene, based on a stewardship of responsibilities in the world, would be:
“tragically to fail to undertake responsibilities that . . . are not likely to be accomplished by other political actors.”Paul Ramsey, “The Ethics of Intervention,” in The Just War: Force and Political Responsibility (New York: Scribner’s, 1968), 23.
Responding to the common objection that intervention can be unjust, Ramsey acknowledged both possibilities – unjust as well as just causes. But the mere possibility that intervention can be unjust, he insisted, did not release political actors from their moral responsibility.
“Anyone who is impressed only by the immorality and probable ineffectiveness of interventionary action,” he noted, “should sensitize his conscience to the immorality and probable ineffectiveness of nonintervention.”Ramsey, “The Ethics of Intervention,” 22.
Nor, in Ramsey’s view, did the presence of the United Nations change this moral reality, since the UN does not supplant individual states’ sovereignty or reorder their respective societies. In addition, the UN has become increasingly powerless to prevent or retard socio-political evil around the globe.
Ramsey’s views were popular neither then nor now. Nevertheless, Ramsey’s wrestling with the international obligations that attend “neighbor-love” placed him squarely within the mainstream of classic just war thinking and the Christian moral tradition. All people, based on their shared humanity, possess an intrinsic dignity and hence are to be sheltered from arbitrary and inhumane acts of oppression. To wrestle with our response to egregious and massive human rights violations around the globe is to be caught between two accusations, namely, that of “imperialism” (or Western bias) and cultural particularity (or state sovereignty). Political responses in relatively free nations to atrocity tend generally to be predictable and weak, without any moral-philosophical basis upon which to construct responsible policy as it applies to humanitarian disaster. And if we look to Christian thinkers and moral philosophers we find a paucity of substantive contributions to public debate that might bear on responsible policy.
While a detailed discussion of humanitarian debate among political, legal, and social theorists remains well beyond the scope of this essay, a general rule of thumb regarding intervention may be stated: intervention must always be proportionate to the degree of human suffering where it is found and oriented toward a greater good in a reasonably comprehensive manner. This is self-evident moral truth assumed by natural law reasoning and embodied in a “Golden Rule” ethic, even when wisdom and political prudence are needed to discern the particular strategies – what, where, and how – that should be applied in responding to a specific catastrophic scenario in order to implement justice.
Human goods need protecting. For this reason, just war moral reasoning, with its severe qualification of intervention, represents a necessary mediating character – between ideological pacifism and Realpolitik – in the face of geopolitical evil. One political historian frames the matter in this way:
there [are certain moral] goods worth the risk [of intervening] . . . and “peace at any price” is unacceptable. . . The pacifist misses this complex reality of the possibility and political conditions for human flourishing . . . The realist approach, by which the conduct [of intervening] is bound by no moral limit, undermines the very moral and political legitimacy of the regime.John P. Hittinger, “Just War and Defense Policy,” in David F. Forte, ed., Natural Law and Contemporary Public Policy (Washington, DC: Georgetown University Press, 1998), 335.
The fact that certain human goods need protecting and force can be morally guided finds confirmation both in domestic policy and in foreign affairs, particularly in the context of possible humanitarian or military intervention. Both natural law reasoning and the Christian moral tradition contain the most important element to the moral equation by which humanitarian intervention in some cases is justified. Because of its view that human beings are a representation of the image of God, one significant ramification is that human beings qua human beings possess an intrinsic dignity and thus deserve equal regard. This dignity cannot be revoked by governments or political actors. It follows, then, that
the spectacle of people being harried, deported, slaughtered, torture, or starved en masse constitutes a prima facie justice claim. Depending on the circumstances on the ground as well as the relative scales of power, an equal regard claim may trigger a [needed] movement toward armed intervention on behalf of the hounded, tortured, murdered, and aggrieved.Jean Bethke Elshtain, “The Responsibility of Nations: A Moral Case for Coercive Justice,” Daedalus (Winter 2003): 67.
Remarkably, humanitarian scholars have identified no less than twenty-one international humanitarian and human rights accords between 1946 and 1990 to illustrate the extent of codification and institutionalization of the humanitarian ideal.2
These conventions cover an extraordinarily wide range of scenarios in which basic human rights are denied; they include political asylum, international refugee status, prevention and punishment of genocide, political rights of women and children, war crimes, hostage-taking, and torture. In addition, a 2005 United Nations World Summit which brought together various heads of state affirmed the responsibility to protect (R2P) populations from genocide, ethnic cleansing, war crimes, and crimes against humanity. At the heart of R2P is the principle that states must act to prevent mass atrocity and protect population-groups from such risks. Accordingly, when states lack the capacity to take such measures, the international community has a responsibility to provide assistance in doing so. Should peaceful means be inadequate and a state be either unable or unwilling to protect its population, then military intervention is justifiable.
However, at least three phenomena in our day challenge the efficacy of R2P thinking. On the one hand, the increasingly aggressive nature of rogue and totalitarian states such as North Korea, China, Iran and Russia currently indicates that the international community lacks either the will or the authority (or both) to apply interventionary assistance. Secondly, failed states and unstable states present a challenge to the free world, not infrequently in our day due to a third factor, namely, a resurgent radicalized Islam that is resistant – and violently so – to any form of Western intervention. Making matters worse, as political philosopher Jean Elshtain has noted,
all too often UN “peacekeepers” are obliged by their rules of engagement (rules of “disengagement” would be more like it) to stand by as people are being slaughtered. International bodies have tended to avoid using coercive force in order to protect innocent victims of political chaos. As a result, in many cases it will be other political institutions that must respond to the grievances and horrors at hand, provided they can do so in a manner that avoids – to the extent that this is humanly possible – either deepening the injustice at hand or creating new instances of injustice, doubly difficult to sort out.Elshtain, “The Responsibility of Nations,” 67-68.
To intervene or not to intervene? This should always be a difficult question. The use of force in other nations should always induce hesitation and anxiety. At the same time, the mood of Western nations currently is decidedly non-interventionist. The aim of much humanitarian assistance, where it is found, is only to ameliorate symptoms of the catastrophe – for example, bringing food and medical supplies to population groups that are under siege or oppression – rather than to interfere with the siege and oppression at the causal level, that is, at the level of power structures. Nevertheless, non-intervention is not an absolute moral principle. In fact, it is becoming increasingly apparent in the third decade of the 21st century that a regime can do things to people either within its own borders or beyond that are so evil and so thoroughly wrong that another nation or coalition of nations would be justified in intervening. Stated differently, the right of a people or people group to escape evil being inflicted upon them cannot necessarily hinge on whether they themselves possess the strength and resources to defend their own interests.
“Peace,” in the end, must be highly qualified, for it is not a social-political good unless it is justly ordered, as the Mafia, pirates, terrorists, and any cartel of organized crime well illustrate. The principles of justice are primordial and pre-political in nature. They existed before states were formed and particular laws were enacted. Justice demands that duty – i.e., moral obligation – comes first (i.e., serving others). This commitment, doing good and avoiding evil, is anchored in natural law moral reasoning, yielding a wedding of justice and charity. In accordance with a “Golden Rule” ethic, we treat others as we ourselves wish to be treated. This is the foundation of any morally just interventionary theory and policy.
It has been said that people will not cherish their own freedom if they are unwilling to intervene on behalf of others. Ancient proverbial wisdom beckons people of principle, irrespective of their location in life and history, to intervene on behalf of the traumatized. Such a call bears repeating in our post-consensus, non-interventionist cultural climate:
If you faint in the day of adversity, How small is your strength. Rescue those who are being led away toward death, Hold back those stumbling toward the slaughter. If you say, “But we knew nothing about this,” Does not He who weighs the heart consider it? Does not He who guards your life Not know it? And will He not repay each person According to what that person has done?Prov. 24:10-12.
1. This is the burden of Hugo Grotius, considered the father of international law, in The Rights of War and Peace (1625).
2. Thomas G. Weiss and Cindy Collins, Humanitarian Challenges and Intervention, 2nd ed. (Boulder: Westview, 2000), 19.