Is Walzer's Position on Iraqi Containment in Need of Humanitarian Intervention? more

IS WALZER’S POSITION ON IRAQI CONTAINMENT IN NEED OF HUMANITARIAN INTERVENTION? Introduction “Political theories are tested by events in the political world.”1 So wrote Michael Walzer, whose book, Just and Unjust Wars, is a modern classic.2 Walzer emphasizes the moral seriousness of war. He rejects the realist view “that war lies beyond (or beneath) moral judgment.”3 War raises moral questions that are distinct from questions of feasibility, self-interest, and necessity. He was in favor of the multilateral effort to remove Saddam Hussein from Kuwait in the Gulf War of 1991, and Walzer was one of sixty scholars to sign The Institute for American Values’ 9/11 statement “What We’re Fighting for” that said, “[I]t is crucial for our nation and its allies to win this war. We fight to defend ourselves, but we also believe that we fight to defend those universal principles of human rights and human dignity that are the best hope for humankind.”4 Nonetheless, Walzer was against the unilateral action taken by the “coalition of the willing” to remove Hussein from power in 2003. Here “America’s war is unjust,”5 Walzer claimed in no uncertain terms. Instead, he advocated a form of containment against the Iraqi nation. In this paper I will evaluate the limitation on war in situations that seem to call for humanitarian intervention.6 I begin with Walzer’s position on jus ad bellum (the justice 1 2 Michael Walzer, Arguing about War (New Haven: Yale University, 2004), 85. __________, Just and Unjust Wars, second edition (New York: Basic Books, 1992). 3 Ibid., 3. 4 Jean Bethke Elshtain, Just War Against Terror (New York: Basic Books, 2004), 203 and 209. This statement with additional responses from both German and Saudi scholars is also online at http://www.americanvalues.org/html/wwff.html (accessed November 17, 2005). 5 Walzer, Arguing about War, 160. 6 I will follow Fernando Tesón’s use of the terms “humanitarian intervention” to refer to “proportionate help, including forcible help, provided by governments (individually or in alliances) to individuals in another state who are victims of severe tyranny (denial of human rights by their own government) or 2 of going to war). This involves a discussion of his views on the sovereignty of states and the commitment to non-intervention. I will also summarize Walzer’s view on when humanitarian interventions are justified. I will examine his position on the Iraq war as an example of his general jus ad bellum views.7 I will then critique Walzer’s position on humanitarian intervention. I argue that a case may still be made for the permissibility of humanitarian intervention using Walzer’s own principles. This will turn on empirical claims concerning the gravity of the Iraqi situation and the real life inadequacy of his proposal.8 I also argue that he minimizes the objectivity of justice, and puts state rights above individual human rights. Finally, I examine utilitarian concerns, which seem to motivate much of his limited war theory. It is not my intent to argue for or against jus ad bellum regarding the intervention of Iraq beginning in March 2003.9 Weighing all the empirical issues to provide material anarchy (denial of human rights by the collapse of the social order).” Permissible humanitarian interventions are guided by: 1. aiming at ending such tyranny or anarchy, 2. utilizing the principle of double effect (where the permissibility of causing serious harm is the side effect of promoting some good end, and costs and benefits must be considered), 3. generally only cases of severe tyranny or anarchy count, the victims welcoming it, and 4. it should preferably meet the approval of democratic states (Tesón, “Ending Tyranny in Iraq,” Ethics & International Affairs 19, no. 2 [2005: http://www.carnegiecouncil.org/media/5190_Teson.pdf? PHPSESSID=82d1d16f5deed417b8aff92f830b1575 (accessed March 31, 2006)], 2). For legitimate instances that may constitute falling outside these two general categories of severe tyranny and anarchy, see George R. Lucas, Jr.’s discussion of “failed,” “rogue,” and “inept” states in his “From Jus ad Bellum to Jus ad Pacem: Rethinking Just War Criteria for the Use of Military Force for Humanitarian Ends,” Ethics and Foreign Intervention, Deen K. Chatterjee and Don E. Scheid, eds. (Cambridge University, 2003), 73-94. 7 Walzer’s subtle position on Iraq is revealed primarily in two articles: “Inspectors Yes, War No. No Strikes,” The New Republic (September 30, 2002), 19-22; and “The Right Way,” The New York Review (February 13, 2003), 4. Both works are found in Walzer’s Arguing about War. 8 Elshtain stressed the importance of accurate empirical claims regarding just war discussions when she said, “There is no substitute for the facts. If we get our descriptions of events wrong, our analyses and our ethics will be wrong too. The words we use and our evaluations of events are imbedded with important moral principles” (Elshtain, 9). 9 For more on this debate, see Elshtain, 182-92; Gary Rosen, ed., The Right War? (Cambridge University, 2005); Thomas Cushman, ed., A Matter of Principle: Humanitarian Arguments for War in Iraq (University of California, 2005); http://www.academicinfo.net/iraqcrisis.html (accessed November 28, 2005); Tesón, “Ending Tyranny in Iraq”; Ken Roth, War in Iraq: Not a Humanitarian Intervention (Human Rights Watch, January 2004: http://hrw.org/wr2k4/3.htm [accessed December 2, 2005]); Irwin Abrams and Wang Gungwu, eds., The Iraq War and Its Consequences (Singapore: World Scientific, 2003); Paul Rutherford, Weapons of Mass Persuasion (University of Toronto, 2004); and Peter S. Temes, The Just War (Chicago: 3 content for the formal principles of just war theory is simply beyond the scope of this paper.10 Rather, my primary purpose is to demonstrate that Walzer’s position for Iraqi containment and against this humanitarian intervention is inadequately grounded. I argue that humanitarian intervention is justified in a greater number of cases than Walzer’s criteria allow. Walzer’s Jus Ad Bellum Walzer’s theory of nonintervention rests on his theory of aggression. This latter theory is expressed by six propositions that he calls the legalist paradigm.11 At its core the paradigm involves a domestic analogy: the relation of states to one another is similar to the relations of citizens within a society. The state treats its individual citizens autonomously and with certain rights, but it still attempts to regulate the behavior of its citizens by law. When crimes are committed, punishing consequences must be involved at some level for “law and order” to prevail. Similarly, states are independent and have the rights of territorial integrity and political sovereignty. Nonetheless their behavior toward one another is regulated by law. Any imminent threat or use of force by one against another is criminal and deserves or justifies punishment for such acts of aggression—by the victim and any other member—once the aggressor state is militarily thwarted. Finally, military force as a response toward such aggression may be justifiably executed only under such conditions. For Walzer, war is justified only by self-defense. Ivan R. Dee), 199-206. 10 The following are examples of modalities that result from the difficult empirical questions of this or any other war: “Was it ‘the wrong war in the wrong place at the wrong time’? Between that view and its diametric opposite are other possibilities—for instance that it was the right war in the right place at the wrong time, or even the wrong war (because conducted inappropriately) in the right place at the right time” (Daniel Kofman, “Moral Arguments: Sovereignty, Feasibility, Agency, and Consequences,” A Matter of Principle, 125). 11 Walzer, Just and Unjust Wars, 61-3. 4 Walzer’s holds “that norms are morally binding insofar as they ‘fit’ the cultural beliefs and practices of specific communities.”12 For Walzer, “Justice is relative to social meanings.”13 He assumes that the right of communal integrity is an intrinsic one in which we must respect “the political process itself, with all its messiness and uncertainty, its inevitable compromises, and its frequent brutality.”14 Given this communitarianism, individual “liberty interests are parasitic on communal interests or values.”15 He claims, “States are the members of this society, not private men and women. In the absence of a universal state, men and women are protected and their interests represented only by their own governments. Though states are founded for the sake of life and liberty, they cannot be challenged in the name of life and liberty by any other states [sic].”16 Communal interests are primary in international law. Even if a government is unjust, that determination can be made only by its own citizens. Until that occurs, other states must presume the government as legitimate.17 Like Mill, he argues that [t]he members of a political community must seek their own freedom, just as the individual must cultivate his own virtue. They cannot be set free, as he cannot be made virtuous, by any external force. …[T]here is no right to be protected against the consequences of domestic failure, even against a bloody repression. Mill generally writes as if he believes that citizens get the government they deserve, or, at least the government for which they are ‘fit.’ And ‘the only test…of a people’s having become fit for popular institutions is that they, or a sufficient portion of them to prevail in the contest, are willing to brave labor and danger for their liberation.’ No one can, and no one should, do it for them.18 12 J. L. Holzgrefe, “The Humanitarian Intervention Debate,” Humanitarian Intervention: Ethical, Legal, and Political Dilemmas, J. L. Holzgrefe and Robert O. Keohane, eds. (Cambridge, 2003), 33. 13 Walzer, Spheres of Justice: A Defense of Pluralism and Equality (Oxford: Basil Blackwell, 1983), 312, cited from Ibid. 14 __________, Just and Unjust Wars, 229. 15 Tesón, “The Liberal Case for Humanitarian Intervention,” Humanitarian Intervention: Ethical, Legal, and Political Dilemmas, 106. 16 Walzer, Just and Unjust Wars, 61. 17 __________, “The Moral Standing of States: A Response to Four Critics,” Philosophy and Public Affairs, Vol. 9, No. 3 (Spring, 1980), 212. 18 Walzer, Just and Unjust Wars, 87-88. 5 The Westphalian system of nation-states that Walzer generally endorses has the ultimate purpose of limiting war. States subscribe to a legal doctrine in which they are accorded “independence from foreign control and coercion.”19 As sovereign with territorial integrity, they have a right to govern their own affairs without interference. They also exercise self-determination in which they have “the right of a people ‘to become free by their own efforts.’”20 The government should be a reflection of a people’s wishes. The relation between sovereignty with territorial integrity and selfdetermination is such that the former may exist without the latter, but the latter cannot exist without the former. The Iraqi regime under Hussein, for example, had sovereignty with territorial integrity, but it certainly did not have self-determination. The Case for and Against Humanitarian Intervention Walzer’s legalistic paradigm allows important exceptions. He says, “[T]he ban on boundary crossings is not absolute.”21 Thus, when it is claimed that Walzer holds to justifying war “only” by self-defense, it must be understood in prima facie terms. According to Walzer, there are five significant “revisions”22 on the basis of the “complex realities of international society”23—three of which specifically allow for various types of unilateral interventions: secession or national liberation, counter-intervention, and humanitarian intervention.24 In each three cases, Walzer follows Mill’s formula: “always act so as to recognize and uphold communal autonomy.”25 19 20 Ibid., 89. Ibid., 88. 21 Ibid., 89. 22 Ibid., 85, 90, and 121. 23 Ibid., 61. 24 The two other revisions concern first strike anticipations for self-defense and minimal security for the victim state prior to a peace settlement being worked out. 25 Walzer, Just and Unjust Wars, 90. 6 The first case involves coming to the aid of a secessionist or national liberation movement. Walzer offers the example of the Hungarian Revolution against the Hapsburg Empire in 1848-9. Hans-Peter Gasser has stated that “no one would condemn a war waged… by a people rebelling against a tyrannical regime.”26 This is the import behind The Declaration of Independence when it says, “That whenever any Form of Government becomes destructive of these ends [of ‘life, liberty and the pursuit of happiness’], it is the Right of the People to alter or to abolish it, and to institute new Government.” Walzer claims that Mill thought Britain would be justified in coming to the aid of Hungary against the Hapsburg Empire.27 In the case of counter-intervention, it becomes justifiable for another foreign power to balance the power between two rivals without imposing its own selfdetermination. So if Britain did in fact come to the aid of Hungary prior to Russia’s involvement, then Russia would have been justified to balance the power by aiding Austria. In actuality, once Russia got involved in aiding Austria, Walzer states that Mill thought Britain had a duty to defend Hungary. Walzer thought it would not have been just if it turned out to be a disaster for Britain as well as others. Britain’s prudential reasons in staying out of the affair may have been the best overall thing to do, and as a result, the just thing to do. Intervention in either of these two senses seems to classify as a form of “collective self-defence.”28 This is understood as “third-party States” coming “to the aid 26 Hans-Peter Gasser, International Humanitarian Law—An Introduction (separate print from: Hans Haug, Humanity for All; The International Red Cross and Red Crescent Movement/Henry Dunant Institute [Stuttgart: Haupt, 1993]), 4. 27 Walzer, Just and Unjust Wars, 92-4. This is not to say that intervention is justified in every case whenever revolution is justified. The rebels must be radically unfit from the government they are seceding from, and their arguments and decisions alone are the ones to determine this (cf. ibid., 89; and his “The Moral Standing of States,” 214). 28 Gasser, 4. 7 of the State being attacked.”29 This is important since The Charter of the United Nations says, “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations” (Article 51). What about when one state acts inhumanly toward its own citizens? Does it ever become justifiable for one state to invade another for humanitarian purposes of liberation? Is there a right for other foreign states to intervene on behalf of another state’s citizens without the permission of that state? Here much of the controversy centers around Article 2(4) of The Charter, which states, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”30 There are basically two views about humanitarian intervention. Some think it is never permitted—that there is no sufficient justification for war solely on the basis of protecting human rights.31 Call this absolute non-interventionism. Others believe that humanitarian intervention can be justified, but there are two views as to when this is acceptable. One allows intervention for only extreme human rights abuses—viz., mass murder and slavery.32 Call this weak interventionism. The other is a little more liberal— 29 30 Ibid. For an exposition on how two juridical camps (classicists and legal realists) employ different strategies to loosen Charter restraints from simply self-defense and Security Council enforcement, see Tom J. Farer, “Humanitarian Intervention Before and After 9/11,” Humanitarian Intervention: Ethical, Legal, and Political Dilemmas, 61-74. 31 This has been the standard until fairly recently. Today “very few” disapprove of all forms of humanitarian intervention (Tesón, Humanitarian Intervention: An Inquiry into Law and Morality, third ed. [Ardsley, N.Y.: Transnational, 2005], 24 and 187). 32 This is the position of most legal scholars (ibid.). 8 tyranny and anarchy—but still thinks that the abuses must be severe.33 Call this strong interventionism. Walzer is among those who think there is a place for limited interventions only of the first sort.34 More explicitly, If the dominant forces within a state are engaged in massive violations of human rights, the appeal to self-determination in the Millian sense of self-help is not very attractive. That appeal has to do with the freedom of the community taken as a whole; it has no force when what is at stake is the bare survival or the minimal liberty of (some substantial number of) its members. Against the enslavement or massacre of political opponents, national minorities, and religious sects, there may well be no help unless help comes from outside. And when a government turns savagely upon its own people, we must doubt the very existence of a political community to which the idea of self-determination might apply.35 Again, People who initiate massacres lose their right to participate in the normal (even the normally violent) processes of domestic self-determination. Their military defeat is morally necessary. Governments and armies engaged in massacres are readily identified as criminal governments and armies (they are guilty, under the Nuremberg code of ‘crimes against humanity’). Hence humanitarian intervention comes much closer than any other kind of intervention to what we commonly regard, in domestic society, as law enforcement and police work.36 Thus according to Walzer, weak interventionism can be justified. Absolute noninterventionism’s attempted justification on state sovereignty misses the point of the state, viz., to protect its citizens and not wipe them out. Walzer, on the other hand, advocates a limited type of police work in responding to actions “that shock the moral conscience of mankind,”37 It must be rooted in a moral choice “ruled out by the legalist paradigm—unless they are authorized... by the society of nations.”38 33 By tyranny, I mean a form of government in which a dictator is absolute and not bound by a constitution, laws, or an opposition from that which is ruled. By anarchy, I mean a society without any government. 34 Walzer, Just and Unjust Wars, 90. 35 Ibid., 101. 36 Ibid., 106. Nuremberg signals a definite change in the outlook of national sovereignty. 37 Ibid., 107. 38 Ibid., 106. 9 Suppose, however, the society of nations does not authorize this type of police work. This concerns the hotly debated issue of authority.39 There are basically three positions here. 1. The majority of legal scholars hold that it is only legitimate when the UN Security Council says it is. 2. It is only legitimate when the community of democracies, e.g., NATO, say it is (the UN Security Council is not necessary). 3. While gaining approval of one or the other parties above is preferable, sometimes it is still not necessary. Unilateral intervention can be justified. For Walzer, morality allows for “unilateral action” conditioned upon there being no other immediate option,40 and only those capable of intervening under such circumstances have at least a right to do so when there are “reasonable expectations of success.”41 In such circumstances where the UN is dragging its feet as it were, the legal must give way to the moral; otherwise, the former would be unjust.42 Or as The Kosovo Commission put it, intervention in this case was morally legitimate even if it was formally illegal.43 The moral cannot be reducible to the legal, but the legal should be an expression of the moral. An adequate moral view must allow exceptions to full state autonomy. The situation is similar to an individual needing to get to the hospital for some emergency.44 Suppose a woman was giving birth and needed someone to drive her to the hospital in such a way that they would exceed the speed limit. It may indeed be breaking 39 40 For more on this, see Tesón, Humanitarian Intervention: An Inquiry into Law and Morality, 164-7. Walzer, Just and Unjust Wars, 107. 41 Ibid., 107-8. 42 Given one’s perspective on proportionality, it may not be fair to simply assume the worst of the UN. In other words, their reluctance to enter into a particular conflict, even one involving an emergency, may be the result of a cost/benefit analysis in which there are genuine moral complexities. I thank Bruce Landesman for this point. 43 The Independent International Commission on Kosovo, The Kosovo Report (Oxford University, 2000), 4. 44 I thank Tom Farer for this example. 10 the law, but it would be morally expected or at least be permissible given the extenuating circumstances—certainly not condemnable.45 Of course this is still dangerous, but it is well worth the risk. Of course it would be nice to wait around for a police escort or even an ambulance, and of course, the couple could simply decide to stay home and deliver with the assistance of the 911 operator. Nonetheless, sometimes these are not viable options. The Case for Containment Given this understanding of the justification for humanitarian interventions, and given what is known about life in Iraq prior to the regime change, one may suspect that Walzer would be in favor of the regime change or at least not condemning of it. Instead, under the circumstances, he was categorically opposed to a regime change in Iraq on the basis of humanitarian intervention. He did allow for the possibility of regime change due to humanitarian intervention under alternative circumstances, and we must examine his reasons for this. If his reasons for humanitarian interventions do end up justifying the Iraqi regime change, then not only is his position against invading Iraq on humanitarian grounds inconsistent, but also his arguments for having a strong containment system are unnecessary. This is not to say that humanitarian intervention must be the only reason for acting in this situation. In terms of motives, Walzer admits that he cannot think of a pure case of humanitarian intervention without other motives being involved.46 45 “Hugo Grotius in the 17th century and other early international lawyers, recognized as lawful the use of force by one or more states to stop the maltreatment by a state of its own nationals when that conduct was so brutal and largescale as to shock the conscience of the community of nations” (Thomas Bergenthal, International Human Rights in a Nut Shell [St. Paul, MN: West, 1988], 3, emphasis added). Here the concern seems to be obeying a higher law, or the natural law. 46 Walzer, Just and Unjust Wars, 101-2. Brown stated that “since states are never wholly altruistic this move is usually the prelude to a denial that altruism can be a factor at all in the conduct of international affairs. Contrary to this absolutism, there is no reason to think that when states act to right a wrong they may not also be motivated by self-interest. Motivation is a complex process and about the only thing that can be said with certainty about it is that there is never simply one single reason why anyone does anything” (Chris Brown, “In Defense of Inconsistency,” Ethics and Foreign Intervention, 46). 11 Walzer claimed that if ever there was a justifiable and necessary cause for going to war against Iraq, it was during the ‘90s when Hussein was toying with UNSCOM (the United Nations Security Commission).47 The peace agreement that ended the Gulf War included the elimination of Iraq’s stockpiles of biological and chemical weapons or weapons of mass destruction (WMD) and WMD program. Those restrictions were to be monitored by UNSCOM, but several years later Hussein began denying them access to various sites. The will to enforce UNSCOM began to die. Prior to this event, Walzer claimed we may have had a justifiable and necessary war of enforcement, given WMD. In September 2002, he said, “The right thing to do, right now, is to re-create the conditions that existed in the mid-‘90s for fighting a just war.”48 In January 2003, Walzer argued that we needed to contain Iraq instead of going to war against it. He proposed that containment involve three conditions.49 The first concerned sanctions. These were working, but needed to do a better job in adjusting to the needs of the civilian population while at the same time be better at excluding the enhancement of the Iraqi military. Walzer conceded though that no matter how good the sanctions get, they would still adversely effect Iraqi civilians, and the reason for this would really be the Iraqi government.50 It seems obvious to Walzer that even though the Kurds were not still being slaughtered, other Iraqis were continually dying as a result of inept containment policies (e.g., lack of food and medical supplies, and not repairing Iraq’s water-treatment systems that required importing specialized materials). Osama bin Laden stated that these sanctions were the cause of millions of innocent Iraqi children 47 48 Walzer, Arguing about War, 144. Ibid., 149. 49 Ibid., 153-4. 50 Ibid., 153-4; and cf. Temes, The Just War, 168. 12 dying, and it was one of his reasons for declaring Jihad on the United States.51 Certainly by leaving Hussein in power, the US, UN, et al. could have more forcefully insured and strategically managed the distribution of benefits to the Iraqi people.52 The second condition of containment concerned the continued enforcement of the “no-fly” zones. These zones represented an obvious threat of force that would keep Hussein from brutalizing the Kurds and the Shias. Walzer claimed that if Hussein was given carte blanche in northern and southern Iraq, it would “justify, perhaps even require, a military intervention on humanitarian grounds.”53 Earlier, Walzer said, Regime change can sometimes be the consequence of a just war—when the defeated rulers are moral monsters, like the Nazis in World War II. And humanitarian interventions to stop massacre and ethnic cleansing can also legitimately result in the installation of a new regime. But now that a zone of (relative) safety has been carved out for the Kurds in the North, there is no compelling case to be made for humanitarian intervention in Iraq. The Baghdad regime is brutally repressive and morally repugnant, certainly, but it is not engaged in mass murder or ethnic cleansing; there are governments as bad (well, almost as bad) all over the world.54 The third condition is UN inspections. These would serve as a barrier to any deployment of WMD if, and only if, the inspections are coercive. Walzer seemed to think that, in and of itself, the US threat of force to get the inspectors back was a good thing; otherwise, the UN would still be playing around with Iraqi negotiators. Nonetheless, Walzer said in January 2003, “[T]he existence of a strong inspection system 51 James Bovard, “Iraqi Sanctions and American Intentions: Blameless Carnage? Part 1,” Freedom Daily (January 2004, posted February 9, 2004: http://www.fff.org/freedom/fd0401c.asp [accessed November 29, 2005]). Bovard goes on to give a couple reasons why this number killed was probably over exaggerated by around a half million, nonetheless, at least hundreds of thousands of children suffered and died as a result of these sanctions. 52 The UN “Oil-for-Food” program was supposed to be an example of a beneficent program to assuage the suffering Iraqi people. Instead, due to lax containment policies, it turned into a debacle that benefited the former Iraqi dictator. See Jonathan Hunt, Per Carlson, Brian Gaffney, George Russell, Grace Cutler, and Betsey Petrick, “Oil-for Food a Failure from the Start?,” Fox News (February 13, 2005: http://www.foxnews.com/story/0,2933,147046,00.html [accessed November 29, 2005]); and http://www.oilforfoodfacts.org (accessed November 29, 2005). 53 Walzer, Arguing about War, 154. 54 Ibid., 149. 13 is today the best argument against going to war.”55 It is a real alternative that should be attempted prior to taking the “last resort” of war.56 It is primarily in this last area that Walzer criticized the Bush administration in January 2003. Walzer criticized it for its “unilateralist impulses,”57 as well as its preference to fight a preventive war rather than a preemptive one.58 Walzer distinguished between an unjustified preventive war and a preemptive, or what might better be called an anticipatory strike justified by a probable opposing imminent attack. Walzer uses the “Six Day War” of 1967 as a paradigm case of a preemptive or anticipatory war.59 A preventive war on the other hand, “is designed to respond to a more distant threat.”60 According to Edmund Burke, preventive war “has been the original of innumerable and fruitless wars.”61 According to Walzer, this is exactly what we had with the Iraqi threat. No one was expecting an imminent attack from Iraq. Under these circumstances, there was no sufficient reason for making war the first option rather than the last. That is, in not sticking to an inspections system, Walzer argued that the Bush administration was 55 56 Walzer, Arguing about War, 156. Walzer already acknowledged that the criterion of “last resort” cannot be taken literally in any situation. To do so would make war always morally impossible since there always is something else to be tried. “For we can never reach lastness, or we can never know that we have reached it. There is always something else to do: another diplomatic note, another United Nations resolution, another meeting. Once something like a blockade is in place, it is always possible to wait a little longer and hope for the success of (what looks like but isn’t quite) nonviolence. If there are potentially effective ways of avoiding actual fighting while still confronting the aggressor, they should be tried” (Ibid., 88-9). Walzer goes on to talk about how closely proportionality is aligned to the decision making process of “last resort.” We want our political and military leaders to look hard for alternatives, and then when nothing realistic turns up, we want them to agonize over the costs and benefits of their decision before they “let loose the dogs of war” (Ibid., 89-91, and 155). But nonetheless, Walzer and others like former President Jimmy Carter were convinced that there were “clear alternatives” to invading Iraq (cf. Carter, “Just War—or a Just War?,” New York Times [March 9, 2003: http://www.commondreams.org/views03/0309-02.htm (accessed November 26, 2005)]). 57 Walzer, Arguing about War, 156. 58 Ibid., 146-8. 59 See his discussion in Just and Unjust Wars, 74-85. 60 Walzer, Arguing about War, 146. 61 __________, Just and Unjust Wars, 76. 14 waging a preventive war. It is at this point that Walzer claimed a preventive war was being stretched from the boundaries of traditional just-war categories. Now Walzer allowed that perhaps the arguments against a preventive war did not consider WMD or delivery systems for them that require immediate action whether there is an imminent threat of their use or not. He gave the example of the Israeli attack on the Iraqi nuclear reactor in 1981. Walzer seems to have allowed for a stretching of preventive war to fall under just war categories in this case, but he concluded that there was no analogy with what the US was doing to Iraq in 2002. There was certainly a real threat against Israel in 1981, but there was none to the US in 2002. Walzer concluded his case against the Bush administration by claiming that the only real reason for regime change is that Hussein will never give up pursuing WMD.62 Walzer thought that even this was not persuasive, thinking that Hussein would “almost certainly” suspend the pursuit in the face of a unified front willing to enforce the inspection process. Walzer also went on to claim that even if the US establishes democracy in Iraq, there is no guarantee that the next individual in charge would not pursue the WMD program. So the obvious answer for Walzer was continued inspections. How does Walzer’s strong enforcement policy fit with his upholding the demands of “communal integrity”—“the rights of contemporary men and women to live as members of a historic community and to express their inherited culture through political forms worked out among themselves”?63 Was his support of Iraqi containment an infringement of his communitarianism? Critique 62 63 Walzer, Arguing about War, 149. __________, “The Moral Standing of States: A Response to Four Critics,” 211. 15 I agree with Walzer’s justification of weak humanitarian intervention even when others such as the UN do not give their blessing and assistance. Nonetheless, much may be said by way of a critique of his containment/humanitarian position. There are empirical matters that question the effectiveness of Walzer’s containment program. Perhaps this program would be effective if one is simply concerned about the WMD issue, but it seems strong sanctions, enforced “no-fly” zones, and persistent weapons inspections would inadequately deal with the atrocities that in fact continued. Mass murders and enslavement may still thrive under such conditions. An increasing amount of information reveals how brutal Hussein’s regime was. According to legal scholar Fernando Tesón, in this regard the Baghdad regime was “one of the worst in history.”64 He goes on to say that if ever one met this standard of setting the bar high for humanitarian intervention, it was Hussein’s regime. It is important to be reminded here what sort of individual provides this case study for humanitarian intervention. Tesón said that Hussein murdered 100,000 Kurds in 1988, killed around 300,000 Shia after the 1991 war, burying about 30,000 in a mass grave, murdered about 40,000 Marsh Arabs, caused millions to flee their homes, and tortured hundreds of thousands or even millions between 1968 and 2003.65 Given this track record, it seems likely that this type of individual would continue to commit atrocities even under Walzer’s containment policy. There is nothing inherent about strong sanctions, enforced “no-fly” zones, and persistent weapons inspections that would deter “the butcher of Baghdad” from destroying his own people. Two atrocities from recent Iraqi history are examples of the sorts of genocide and enslavement that, ironically, Walzer’s policy would allow in justifying humanitarian 64 65 Tesón, Humanitarian Intervention: An Inquiry into Law and Morality, 395. Ibid., 395-6. 16 intervention. Human Rights Watch describes an atrocity against the Marsh Arabs, calling it an instance of “crimes against humanity”: Numbering some 250,000 people as recently as 1991, the Marsh Arabs today are believed to number fewer than 40,000 in their ancestral homeland. Many have been arrested, ‘disappeared,’ or executed; most have become refugees abroad or are internally displaced in Iraq as a result of Iraqi oppression. The population and culture of the Marsh Arabs, who have resided continuously in the marshlands for more than 5,000 years, are being eradicated. …Starting shortly after the end of the Gulf war in 1991, Marsh Arabs have been singled out for even more direct assault: mass arrests, enforced ‘disappearances,’ torture, and execution of political opponents have been accompanied by ecologically catastrophic drainage of the marshlands and the large-scale and systematic forcible transfer of part of the local population.66 The second instance concerns the children’s prisons. The following is one moving account of liberation during the invasion of Iraq as told by Marine Chaplain Lt. Carey H. Cash: Suddenly there was the sound of screaming—not the screaming of adults or women, but of children. Then, like a river bursting through a weakened bank, as the iron gates swung open a mass of frail children came pouring out onto the stone terrace and into the arms of their waiting parents. They were malnourished and filthy, many of them wearing nothing more than rags for clothing. There were dozens at first; and then there were hundreds, mostly males between the ages of eight and fifteen. They flooded the lot in front of the building and soon were grabbing the necks of Padilla and Jones, crying, kissing them on each cheek, then jumping back into the arms of mothers, fathers, sisters, and brothers. …HUMET [Human Exploitation Intelligence Team] specialists found out that the prison had been established years ago by the local Baath [sic] Party as a jail for the sons of parents who refused to support the regime. Many of the boys had been incarcerated for more than five years. As soon as they turned fifteen or sixteen, most of them were involuntarily conscripted into the regular Iraqi Army to man border posts, or to serve as cannon fodder in Saddam’s wars. In fact HUMET later discovered that many of the frightened conscripts we had faced in the southern Rumeilah oil fields were in fact just such men. They had been imprisoned as young boys, and after coming of age, they had been required by their military leaders to fight against the Americans. They were warned that they would be killed if they fled.67 66 Human Rights Watch, The Iraqi Government Assault on the Marsh Arabs (January 2003: http://www.hrw.org/backgrounder/mena/marsharabs1.htm [accessed December 3, 2005]); and cf. Joseph W. Dellapenna, The Iraqi Campaign Against the Marsh Arabs: Ecocide as Genocide (January 31, 2003: http://jurist.law.pitt.edu/forum/forumnew92.php [accessed December 3, 2005]). 67 Lt. Carey H. Cash, A Table in the Presence (Nashville, TN: W, 2004), 145-6. 17 Former UN weapons inspector Scott Ritter told Time magazine that he saw one of these prisons while he was doing an inspection in 1998. He said, “It was a horrific scene. Actually I'm not going to describe what I saw there because what I saw was so horrible that it can be used by those who would want to promote war with Iraq, and right now I'm waging peace.”68 Ritter damns human rights as a basis for interventions that may positively result in a regime change to liberate the plight of the suffering. For him, what is really important is letting every state do whatever it pleases, and thereby preventing war.69 Is this really how we should live? Is this really the pursuit of justice? Is promoting communal integrity really the highest goal of society? Commendably, Walzer would answer, “No!” in the face of these cases of genocide and slavery, but unfortunately it doesn’t seem that he was even aware of these facts.70 Had he been aware, Walzer evidently would have claimed that the people of Iraq do not have to live under the extreme tyranny of this sort, and other states should not enable it with an indefinitely strong containment policy. Since there is no statute of limitations anywhere concerning murder, for the benefit of everyone in our age of globalization, Hussein needed to be removed at a favorable time even if that required foreign assistance.71 68 Massimo Calabresi, “Exclusive: Scott Ritter in His Own Words,” Time (September 14, 2002: http://www.time.com/time/nation/article/0,8599,351165,00.html [accessed December 4, 2005]). 69 Ritter seems to advocate a modern notion of sovereignty stemming from the Peace of Westphalia in 1648. For a contrast between this notion and a traditional one exhibited as late as the American and French revolutions, see James Turner Johnson, “Using Military Force Against the Saddam Hussein Regime: the Moral Issues,” Foreign Policy Research Institute (December 4, 2002: http://www.fpri.org/enotes/americawar.20021204.johnson.militaryagainsthusseinmoralissues.html [accessed January 25, 2006]). 70 Then again, perhaps he was aware of these cases and would claim that their material content somehow did not fit the formal content of genocide and slavery. 71 Even Congress acknowledged this fact by passing the Iraqi Liberation Act, which was signed into law by President Bill Clinton on October 31, 1998 (Public Law 105-338). It stated, “It should be the policy of the United States to support efforts to remove the regime headed by Saddam Hussein from power in Iraq and to promote the emergence of a democratic government to replace that regime… The Congress urged the President ‘to call upon the United Nations to establish an international criminal tribunal for the purpose of 18 Now even if these ongoing events were not the case, the Iraqi people unquestionably lived under severe tyranny. The question is, “Does this really justify unilateral humanitarian intervention?” The basic problem with Walzer’s thesis is that it seems to beg the question against foreign involvement unless a situation meets his arbitrary criteria.72 For foreigners, Walzer simply stipulates that the “fit” between a community and its government is “a morally necessary presumption… [in which] the state is ‘legitimate.’”73 He clarified that this legitimacy may not be true for those belonging to a particular community at issue; this form of life must work out their determinations within a historical/political context of self-determination. Foreigners “must act as if” the government is legitimate and not intervene.74 He has raised communal rights to such a level that foreigners cannot rightly say anything to move them to war against a state whose citizens fit the government they have. This idea of state sovereignty he generally subscribes to ultimately has the purpose of limiting war. These foreigners must simply presume a pluralistic society of indicting, prosecuting, and imprisoning Saddam Hussein and other Iraqi officials who are responsible for crimes against humanity, genocide, and other criminal violations of international law’” (Steve LaRocque, “Congress First Voted to Back Regime Change in Iraq in 1998,” The United States Mission to the European Union [September 19, 2002: http://www.useu.be/Categories/GlobalAffairs/Sept1902CongressHistoryRegimeChangeIraq.html (accessed December 8, 2005)]). I need not be committed to whether March 2003 was the right time or not. It seems that Walzer’s attitude with Iraq should have been the same as his attitude toward the counter-intervention of Hungary in 1848-9. Comparatively speaking, whether our intervention in Iraq truly is a disaster or is the best overall thing to do seems much too hasty a judgement for simply three years after the fact. 72 George R. Lucas, Jr. put it this way: “Walzer’s modifications of what he first labeled the original ‘baseline’ formulation of the legalist paradigm, I will suggest, resemble the attempts of advocates of a dying paradigm to rescue it at all costs with specific but ungrounded measures designed more to answer critics or address anomalies than to re-conceive the underlying theoretical base. …I simply find it clumsy and needlessly ad hoc to attempt desperately to salvage an underlying conception that makes the indictment of these obviously immoral and unjust practices difficult, if not impossible, to understand. …When one finds oneself, as Walzer does, consistently called upon to invent exceptions to the rules to encompass such situations, it seems to me a clear indication that something is fundamentally wrong with the underlying conceptions to which the exceptions must be granted” (From Jus ad Bellum to Jus ad Pacem: Rethinking Just War criteria [sic] for the Use of Military Force for Humanitarian Ends [http://www.usafa.af.mil/jscope/JSCOPE02/Lucas02.html (accessed April 3, 2006)]). 73 Walzer, “The Moral Standing of States,” 212. 74 Walzer, “The Moral Standing of States,” 212-6. 19 states in keeping with the priority of communal integrity. Foreigners must learn to respect diversity even if that entails states of severe tyranny to co-exist. Again, foreigners may be moved to intervene when there are instances “that shock the moral conscience of mankind” (i.e., mass murder, genocide, mass deportation, slavery, or murderous anarchy).75 It seems incredible to claim that these communities deserve what they get. Luban called this “an absurd, and at times even obscene view, uncomfortably reminiscent of the view that women are raped because secretly they want to be.”76 He went on to say that in cases where “the state enjoys no legitimacy—where there is active and virtually universal struggle against it[,] …[i]t makes the ‘self’ in ‘self-determination’ mean ‘other’; it reverses the role of people and state.”77 At this point, Walzer claimed that his critics are not taking his dualism into account. His dualism grants that “states can be presumptively legitimate in international society and actually illegitimate at home.”78 It is simply up to the community to decide what is best for itself. Foreigners are not privy to the internal state of affairs between a community and its government. Foreigners are in no position to know or make veridical moral judgments. The golden rule is inoperative in international affairs. One nation cannot do unto another as the former would have the latter do unto them. Foreigners must simply presume international legitimacy as morally necessary, since they are in no position to deny the reality of that union [between a community and its government], or rather, they are in no position to attempt anything more than 75 There is also the problem here regarding the fact that not all cultures or individuals are shocked by these acts, viz., the ones committing them. Consequently, not all communitarians need endorse Walzer’s revisions of the legalistic paradigm for border crossings. 76 David Luban, “Just War and Human Rights,” Philosophy and Public Affairs, Vol. 9, No. 2 (Winter, 1980), 179-80. 77 Ibid., 180. 78 Walzer, “The Moral Standing of States,” 214. 20 speculative denials. They don’t know enough about its history, and they have no direct experience, and can form no concrete judgments, of the conflicts and harmonies, the historical choices and cultural affinities, the loyalties and resentments, that underlie it.79 This seems to beg the question against our external knowledge. It doesn't seem that foreigners are this ignorant. Knowledge in this regard may be based on an awareness of the empirical facts and what comports with objective justice. It need not be based on the arbitrary will to uphold communal integrity. After all, human rights abuses are clearly accessible to the general public especially by NGOs like Amnesty International or Human Rights Watch, as well as by the corroborative testimonies of others who have experienced such tyrannical communities (i.e., expatriates). Further, Walzer’s strong containment policy requires moral judgments to intervene in foreign business. We should not listen to his foreign judgment if foreign judgments are all so speculative. In addition, not everything needs to be thoroughly experienced from the “inside” as it were prior to knowing its moral status. One need not live as a junkie strung-out on the street prior to condemning such a practice. Similarly, a foreigner can judge that certain individuals within a community do not “fit” at all with their government and should be set free from it. Communal integrity really is not all that Walzer claims it is. His first presumption entails another: “if a particular state were attacked, its citizens would think themselves bound to resist, and would in fact resist, because they value their own community in the same way that we value ours or in the same way that we value communities in general. …[I]t is the expectation of resistance that establishes the ban on invasion.”80 Further, if no one freely comes forward to defend one’s country, then that 79 80 Walzer, “The Moral Standing of States,” 212. Walzer, “The Moral Standing of States,” 212. 21 still doesn’t justify foreign intervention. It simply means the state is not defended. Nonetheless, if the majority welcomes the foreign intervention, then Walzer thinks it’s “almost certain”81 that one of his three exceptions would hold: secession, counterintervention, and humanitarian intervention as he defined them. “Almost certain” is not “certain” though. This allows for the possibility of something else taking precedence over communal integrity as Walzer has laid it out. It seems at least possible that the majority was sick of severe tyranny short of genocide and slavery, unable to do anything about it, and welcomed with open arms humanitarian intervention to bring about regime change without secession.82 If that is at least possible, then it seems that foreigners have the weighty responsibility to determine with their fallible knowledge whether they can and should do something to assuage the suffering and uphold basic human rights.83 More importantly, minority rights is another related issue. Strength in numbers to uphold communal integrity does not justify severe tyranny and neither does it establish justice. If communal integrity is really what Walzer thinks it to be, then in instances of counter-intervention where some third party A aids a struggling democracy B against a tyrannical government C, it would be perfectly justifiable for some other party D— democratic or tyrannical—to balance the powers by aiding C. It seems highly implausible though to be justifiably fighting on “the dark side,” even if it is simply to balance the power. Balancing power prior to any intervention is not worth preserving if it is as sick as the Baghdad regime. Doppelt claimed that this “doctrine of counter81 82 Ibid., 214, n. 7 (emphasis added). Cf. Tesón, Humanitarian Intervention: An Inquiry into Law and Morality, ch. 7 for cases where local populations have been overwhelmingly benefited and evidently supportive of such humanitarian interventions. 83 It needs to be kept in mind how many things go into making a judgment of this sort, not the least of which are historical complexities. 22 intervention reveals the least plausible dimension of Walzer’s conception of selfdetermination as the highest good of international morality.”84 Walzer responded that this “kind of neutrality is a feature of all the rules of war; without it there could be no rules at all but only permissions addressed to the Forces of Good entitling them to do whatever is necessary (though only what is necessary) to overcome their enemies.”85 So it seems that the debate turns on one’s fundamental intuitions concerning international relations. Will one enlist with “the Forces of Good” or with “the Forces of Communal Integrity”? Certainly there are abuses with the former. In like manner, there are also abuses with the latter. Concerning both absolute non-interventionists as well as weak interventionists, strong interventionist Tesón perceptively claimed that they deceptively present their doctrine as one that protects communal values and selfgovernment, yet even a cursory look at history unmasks non-intervention as the one doctrine whose origin, design, and effect is to protect established political power and render persons defenseless against the worst forms of human evil. The principle of non-intervention denies victims of tyranny and anarchy the possibility of appealing to people other than their tormentors. It condemns them to fight unaided or die. Rescuing others will always be onerous, but if we deny the moral duty and legal right to do so, we deny not only the centrality of justice in political affairs, but also the common humanity that binds us all.86 Walzer’s underlying goal seems to be the limitation of wars in allowing the historical/political process to work. This is commendable in itself, but he goes on to chide his critics who should “set things right,… by making arguments, not by summoning up armies.”87 His legalist paradigm features a consequentialist aspect.88 Any theory of jus ad bellum must deal seriously with the demands of the likelihood of success and 84 Gerald Doppelt, “Walzer’s Theory of Morality in International Relations,” Philosophy and Public Affairs, Vol. 8, No. 1 (Autumn, 1978), 13. 85 Walzer, “The Moral Standing of States,” 217. 86 Tesón, “The Liberal Case for Humanitarian Intervention,” 129. 87 Walzer, “The Moral Standing of States,” 229. 88 Walzer says, “Considerations of utility play into the structure at many points, but they cannot account for it as a whole. Their part is subsidiary to that of rights; it is constrained by rights” (Just and Unjust Wars, xvi). 23 proportionality. In regards to the former, if a humanitarian mission is doomed to failure, a government should not needlessly expend more lives. If swimming out to a drowning victim is the only means of saving, it makes no sense for someone who does not know how to swim to save that victim. In regards to proportionality, if the bad consequences outweigh the good ones, then war should not be waged. One may be very likely to stop a particular humanitarian crisis by dropping a nuclear bomb, but the overall bad consequences would rule this option out. So the likelihood of success and proportionality requirements were never meant to rule out all wars, and Walzer acknowledges this. They rule out particular wars. Nonetheless, there is no compelling reason why these requirements should follow Walzer and rule out all cases of intervention on the basis of extreme tyranny and anarchy short of slavery, mass murder, or genocide. What about simply cutting down on grave means to remedy certain situations? If Walzer allows for interventions on the basis of rectifying slavery, mass murder, or genocide, and if the utility argument is supposed to rule out cases of extreme tyranny and anarchy, then it seems the argument would equally rule out Walzer’s cases. Even Walzer acknowledges that rectifying slavery, mass murder, or genocide may also not be likely, and more overall harm may result. Communal integrity (or even the lack thereof) should not be the deciding factor for whether or not there is a right to intervene. Individual human rights are the primary consideration. It is simply right to want to alleviate suffering, even in cases of tyranny and anarchy. So long as these are being severely abused, it should not matter what form the abuse comes in. If more good may result from an intervention, no form of severe abuse needs to be tolerated. All such cases are open targets as it were on an individual basis. Perhaps all cannot be accomplished at once, and one must not bite off more than one can chew. Nonetheless, just war principles such as 24 utility serve as real life constraints to what may be accomplished—both morally and practically. Using a domestic analogy, generally speaking it is a good idea to leave police work to the police. There are good consequentialist reasons for this: one usually gets hurt and fails to succeed in attempting to uphold the good, one may create more of a mess, one may actually end up empowering the “bad guys” to act however they want as well, etc. Abiding by this rule minimizes social disorder and maximizes social stability. On occasion though, an individual adult may be confident, warranted, and even expected to take a baseball bat away from a kid who is killing other kids with it prior to the police getting involved. Now one may say that to keep things from getting out of control as it were, society may allow for these cases of emergency. Then what about cases where death is not imminent? On occasion, an individual adult may also be confident, warranted, and even expected to restrain a teen rapist, for example, prior to the police getting involved. Both murder and rape are severe human rights abuses, and under certain circumstances, both should be dealt with individually by the private citizen. Cases of imminent death are not the only emergencies worthy of the private citizen’s intervention. In the same way, limiting intervention to simply one case over the other appears not only arbitrary, but also immoral. As a nation though, it is not always as clear and simple in imposing our will over a teen rapist or a murderous kid. Sometimes what appears to be an easy case of unilateral intervention turns out to be a much more difficult and time-consuming project. In such cases, it comes down to a judgment call for how long the intervention should continue. This certainly is not an easy issue. Nonetheless, there is no clear reason to restrict 25 interventions of one case of severe tyranny over another when something can probably be done to remedy particular horrendous humanitarian situations. What is clear is that war is certainly a dirty and horrible business, and it should never be entered into without the utmost gravity. The “fog of war” makes any war unpredictable to a great extent, but there are still some things far worse that only a war may cure. John Stuart Mill put it this way: “War is an ugly thing, but not the ugliest of things. The decayed and degraded state of moral and patriotic feeling which thinks that nothing is worth war is much worse. The person who has nothing for which he is willing to fight, nothing which is more important than his own personal safety, is a miserable creature and has no chance of being free unless made and kept so by the exertions of better men than himself.”89 Some people are willing to give their lives for such cases. Thus, as seen from the overall perspective, the summoning of armies may be described as a positive good under certain circumstances to bring about international order as well as to aid the immediate victims of not just mass murder and slavery, but of severe tyranny and anarchy. Humanitarian intervention should aim at maximizing the flourishing of basic human rights. Once the nations seriously value and enforce this, then one may rightly assume a utility of social harmony. Conclusion Walzer simply presumes that states have autonomous moral standing. Contrary to his views, states do not have international rights that are independent from the individual human rights of their citizens. As John Locke and others like Thomas Jefferson taught, because states exist to protect and enforce these natural individual human rights, any government that significantly violates them no longer fulfills its function. Consequently, 89 John Stuart Mill, “The Contest in America,” Dissertations and Discussions, vol. 1 (1868), 26 (first published in Fraser’s Magazine, February 1862). 26 domestic and international legitimacy is lost, and at this point humanitarian interventions are morally permissible under certain circumstances to overcome severe tyranny and anarchy in more cases than simply slavery, genocide, and mass murder.