The Ploughshares Monitor Spring 2004 Volume 25 Issue 1
This article is excerpted from a contribution to a public seminar organized by the World Council of Churches in New York in November 2003. The presenter, Rev. Dr. Konrad Raiser, was then General Secretary of the WCC.
The responsibility to protect endangered populations has figured prominently on the agenda of the World Council of Churches (WCC) for the last 10 years. So, this paper approaches the subject from the basis of a long tradition of ecumenical discussion among Christian Churches and in particular the positions formulated by the WCC. These positions, articulated in public statements and other interventions, have generally maintained a very reticent attitude regarding the use of military force in response to conflict situations and a strong support for the principles enshrined in the Charter of the United Nations, especially those in Art. 2.4 and 7 of the Charter.
The WCC has expressed its reservation with the term “humanitarian intervention” and has opted instead for a formulation which places the emphasis on human protection instead of humanitarian intervention. This change of terminology, which follows the same line as the International Commission on Intervention and State Sovereignty (ICISS), recognizes the dilemma inherent in the UN Charter, i.e., the tension between the prohibition of intervention into the internal affairs of sovereign states (Art 2.7) and the affirmation of the universal validity of human rights and the recognition that the observance of human rights and fundamental freedoms for all is essential for international peace (Art. 1.3 and 55c).
The ICISS offers a political and legal solution for this dilemma by shifting the terms of the discussion from the question of the “right to intervene” to the “responsibility to protect” and by reinterpreting sovereignty to include the responsibility of a given state to protect its citizens. While the report makes a convincing case for this reinterpretation in terms of international law and the spirit of the Charter of the UN, and while it broadens the perspective by adopting the wider principle of “human security” over against the narrow understandings of “national security,” the responses presented in the report raise a number of basic ethical questions.
The international convention against genocide of 1948 is the only instance where the international community has accepted the legitimacy and even the obligation to disregard the sovereignty of a given state in order to prevent a crime against humanity. This raises the question whether situations where the relevant government authority is unable or unwilling to prevent systematic, continuous, and massive human rights violations can be considered as fulfilling the conditions for intervention under the convention against genocide. A WCC study document, “The protection of endangered populations in situations of armed violence: toward an ecumenical ethical approach,” refers in particular to the problem of selective intervention: “Recent international military engagements undertaken in some situations in the name of ‘humanitarian intervention’ and the failure to intervene in others have raised serious moral and ethical questions. How can the international community come to the aid of people in crisis in a proportionate and consistent manner which gives equal value to all life?” As a provisional conclusion the documents states: “that it is ever necessary to consider that the use of armed force in international relations is a reflection of the failure of the international community to have responded in a timely and appropriate fashion to prevent a conflict or to resolve a conflict during its early stages. An inadequate or inconsistent response to human suffering compounds the moral failure.”
Christians are called to a ministry of just peacemaking but they cannot escape making decisions involving moral and ethical uncertainties. Thus, from an ecumenical Christian perspective the question arises whether “the international community should refrain from taking up arms even to protect endangered populations in situations of armed violence or to defend those deployed by competent international authority for this purpose. Here competing moral and ethical values must be considered. Some Christians say yes, believing that the teachings of Jesus require us to oppose any use of armed force. Others say no, considering that the protection of human life may require it to do so in extreme situations, and considering that such decisions should be approached with great humility. In either case, responsibility for unintended consequences must be accepted both by those who choose to use armed force and by those who do not.”
The decisive ethical questions concern the range and the limits of the responsibility to protect and the appropriate means for such protection. The responsibility to protect does not include an obligation to guarantee total security. Under normal circumstances the protection of citizens is provided for by the forces of order, in particular police, and by the judicial process. It is generally recognized that the use of force may be required by police to fulfil their mandate to protect citizens. In addition, most constitutional states distinguish clearly between the role of police and of the military. This implies the explicit prohibition to use the military to maintain public order and guarantee the safety of citizens, except in the case of a state of emergency.
From an ethical perspective, protection basically implies a defensive approach. This means that prevention must receive priority attention. But even where prevention has failed, the orientation toward protection of the endangered population remains defensive; it may have to be content with eliminating the immediate threat with as little harm as possible, without claiming to have removed the root cause once and for all. The objective normally should be to restore the capacity and willingness of the authorities of the given state to provide for human security relying on their own forces.
The broader discussion about the responsibility to protect and the role of the international community focuses on those situations where the legitimate authority is either unable or unwilling to live up to the responsibility inherent in its sovereignty. These questions have been treated extensively in the report of the ICISS; from a legal and political perspective they represent a reasonable consensus.
The more critical issues emerge when the government of a given state is not only unable or apparently unwilling to protect its citizens, but when the forces of order, including the military, become themselves the source of the threat to human security and act with the connivance or even under the order of the government against their own fellow citizens. In such situations, the report of the ICISS suggests that the international community has an obligation to act. However, moral outrage in international public opinion cannot by itself be a sufficient basis for the political decision on the part of the international community to act. The unmediated translation of moral imperatives into political action can have disastrous and even immoral effects. Normally, it is the function of the rule of law to mediate between morality and politics, between moral and political judgment. Legal norms protect a community against moral rigorism as well as political arbitrariness. And any infringement of individual autonomy and the integrity of citizens in a given state must be authorized by a judge according to the law of the land.
The same principle should apply in cases where the international community feels obliged to violate the sovereignty of a given state. Chapter VI of the charter invokes the authority of the International Court of Justice for the peaceful settlement of disputes and conflicts. Meanwhile, a new instrument has been created with the International Criminal Court which is to act as a trustee of international humanitarian law. The moral and ethical principle that sovereignty implies the responsibility to protect the life and security of all citizens must be translated into a framework of norms and legal judgements which allow, and even oblige, the Security Council to appeal to an international court of law to assess the evidence which is believed to indicate that a given state is failing in its fundamental responsibility to protect its citizens and is thus no longer entitled to the respect of its sovereignty according to Art. 2.7 of the UN Charter.
The problem is compounded in the case of “failed states” where the threat to human security arises from irregular armed groups under the command of “war lords” and where the structures of public order have broken down. The parties to the conflict do not consider themselves bound by any of the conventions of international humanitarian law. Diplomatic, legal, or economic means of exercising influence and pressure on the conflicting parties in most cases are ineffective. It would therefore appear that the use of force by the international community is the only means to end the armed conflict and the suffering of the civilian population. However, experience indicates that an armed intervention from outside is not necessarily the appropriate way to protect the affected population.
The ethical problem here is related to the fact that the defensive objective of human protection in most cases is incompatible with the logic and the rules of military intervention. Military logic is geared toward interstate conflicts which involve armies with a unified structure of command and allow for the distinction between combatants and civilians. Military forces are trained and equipped to fight an enemy and to achieve victory. In the case of civil conflicts the lines are not clearly drawn between friend and enemy; the “enemy” lacks a unified structure and is often invisible, as in guerrilla warfare. An outside military intervention lacks clearly identifiable targets and risks destroying vital parts of the infrastructure of the country. The tendency of the intervening forces to minimize casualties among their own units and thus to give priority to air attacks leads to “collateral damage” that betrays the “responsibility to protect.” In addition, military units are neither trained nor well equipped to handle a fragile peace and to restore civic order.
When the primary objective, therefore, is to protect the civilian population and to facilitate the re-establishment of a functioning framework of public order, the legitimacy of international action will be judged on the basis of different criteria than those of military effectiveness. The basic objective of any international intervention must be to re-establish a functioning framework of government which can assume the responsibility to protect, however imperfectly. This calls for a strategy of intervention which limits the role of military force to those exceptional circumstances which call for “robust” action and instead follows the defensive logic of police operations. They may be less “effective” in the short run and may appear to respond to symptoms only, instead of addressing root causes. However, they generally leave the existing infrastructure and the fabric of public order intact and seek to cooperate with and affirm the forces of civil society, especially the religious communities, with a view to strengthening the capacities of the community to defend itself against the sources of disruption and insecurity.
The concept of “humanitarian intervention” has led to a very problematic blurring of the fundamental distinction between two ways of exercising the “responsibility to protect.” A military intervention causing disproportionate numbers of civilian casualties and vast damage to the civilian infrastructure in violation of the Geneva Convention cannot be considered “humanitarian.” Further, it distorts the accepted understanding of the criteria for humanitarian action, i.e., universality, independence, impartiality, and humanity. Humanitarian action by the International Red Cross or other voluntary agencies aims at protection or assistance irrespective of religion, ethnic, or national origin, and political or ideological convictions. These humanitarian ideals must not be confused with military considerations. Even military protection of humanitarian action can compromise its objectives.
Humanitarian action accepts the basic vulnerability of human life in community and aims at turning vulnerability into a source of cooperation. Alternative strategies of protection do not rely on the use of military force, or limit its use to borderline cases, but instead place all the emphasis on civilian means of protection, including the use of police forces. The renewed militarization of security considerations under the banner of the “war on terror” must be resisted on ethical, as well as on legal and political grounds. For the same reason it remains problematic to invoke the traditional criteria of the ethics of war, i.e., the “precautionary principles” of the “just war” concept. They assume a misleading analogy between the classic situation of inter-state war and the contemporary conditions of civil conflict or the threat of terrorist attacks that can hinder efforts to shift perspective from the “right to intervene” to the “responsibility to protect.”