Humanitarian intervention and war (Just war, Part 2)

[Editor’s note: This is the second in the series on just war by Dr. Michael Corgan.]

The anguish for leaders of countries is never about right versus wrong. It’s usually about bad versus worse or right versus right. Nowhere is this anguish more sharply drawn than in the tension between legal war and just war as defined by just war theory.

To set the simplest case first, the current legal restrictions on the use of war are essentially the United Nations Charter, which all states have signed, and the attendant treaties and conventions that attempt to codify restraints on armed aggression.

Defendants at Nuremberg Trials
Nuremberg Trials: Defendants in their dock, circa 1945-1946. (National Archives photo in public domain; from Wikimedia Commons)

Basically, the only legal recourse to war is self-defense against aggression. The one addition is that a state may, if requested, come to the defense of another state that cannot defend itself against aggression.

The famous Nuremberg Trials following WWII brought the world’s attention to the issue of expanding the criteria for war beyond legally permitted war. Up to that point, international law had been guided by laws that had been agreed to and written down.

But what law had the Nazis in the dock at Nuremberg violated? Certainly no law of the Third Reich had stood in their murderous way. But just as clearly, “crimes against humanity” had been committed, as all civilized nations agreed, even if there were no legal protocols for addressing such crimes.

Enter the idea of “natural law” and the elaboration of just war doctrine, which rejected the prevailing assumption that recognized every state as sovereign and as inviolable for what it did within its own borders.

The new idea of humanitarian intervention as a justification for war was first called into play when NATO took military action in Kosovo in 1999. Was this a legal use of war? Not according to current interpretations of the treaties almost all nations had signed. Was it a just war? If the Nuremberg principles were valid, then it seems it was just, at least from the standpoint of having a just cause.

We will return to this dilemma later but subsequent just war posts will first look at the other five criteria for just war and the conundrums they raise.

Michael T. Corgan, Associate Chair and Associate Professor of International Relations, Boston University