JustWar Theory and ICISS Report
“JustWar Theory” deals with the rationalization of war, especially thereason behind the break of a warfare. The validation of war takes ona theoretical and historical aspects of the historical aspect dealingwith the chronological form of regulations and procedures that havebecome pragmatic in numerous conflicts through years whiletheoretical aspect deals with morally extenuating warfare and thesystems in which war may or may not occur. The tradition of thetheory also takes into consideration the opinions of lawyers andphilosophers through the years and assesses their logical viewpointsof war’s moral restrictions as well as whether their opinionscontribute to the frame of concords that have progressed to monitoror direct warfare. In this regards, this part reviews the outcome ofthe final decision made on the justification discussion that lead tothe formation of the right toprotect and the ICISS reportwith its incorporation of thejust war theory.
The Just War Theory and its Origin
The ideologies of a just war originate from the Greek and Romanphilosophers but traditionally St. Augustine (324-430) and St.Aquinas (1225-1274) laid the present basis of the just war theory.Brown (2011, p.2) supports the acknowledgment of the theory to St.Augustine and St. Aquinas by defending their position on just wartraditions. Referring to the Bible, St. Augustine regards that somewars are necessary to fight to arrest evil. Later, St. Aquinasadjusted St. Augustine`s assertions to three criteria: legitimateauthorities to declare the need of war, there should be a just causeand a right intention to start a war. In fact, Brown (2011, p.2)asserts that the expectancy is that the theory tells people whether awar is just and whether a resort to war is the right action to take,all things deliberated. The just war theory, therefore, asserts thata war is only just if the primary resort is justified (jus adbellum) and is carried out in an ethical manner (jus in bello)(Hutchings, 2010, p.139). in this regards, “Jus adbellum expresses the moral justifications of war while the jusin bello expresses the moral conduct of war.” The right to goto war (jus ad bellum), should follow some criteria thatentail a “just cause, right intention, comparative justice,competent authority, a probability of success, last resort, andproportionality.” The proper demeanour of war (jus in bello)on the other hand, directs on how combatants should act during war. Ajust war must be carried out of distinction, proportionality,military necessity, fair treatment of war prisoners and use realweapons (Ajebe, 2011, p.32-34). Hutchings (2010) argues, “Just WarTheory has become the accepted term for a body of thinking thatoriginated in Christianity, once Christianity had abandoned itsoriginal pacifism,” (138). The acceptance of the theory accordingto Hatchings supports the acknowledgment of the theory’s origin toSt. Augustine (324-430) and St. Aquinas (1225-1274) who drew aparallel with the theory to the Bible.
How Just War Theory Transformed to the Right to Protect
The need to protect citizens from the effects of war fundamentallyled to the right to protect. The Canadian government and the ICISSestablished the Responsibility to Protect Report, in reaction to thequestion modelled by Annan and the contentious debate (Payandeh,2011, p.472). The right to protect then became part of the ICISSreport stating the nation`s sovereignty details dual responsibility.The report mandated all self-determining states to have a duty tosafeguard their citizens following their respective interpretation ofwhat their state sovereignty are, privileges, responsibilities andthe rights that come with freedom. The program operated along threepillars that permitted nations to intervene in cases where there is acommission of the four of the mass atrocity crimes in opposition toits populace (Small 2014, p.1). First, is the accountability thatevery government has towards its residents to safeguard them frommass killings and to protect their basic human rights (Breakey, 2012,p.8). Secondly, the international community has a responsibilitytowards a nation that fails to safeguard its populace from anguish orsevere harm resulting from internal war, repression, insurgency,state failure. In addition, other states have the obligation tomediate if the nation in question shows no signs of willingness tostop or avert the situation or if the state is, in fact, theperpetrator (Kumar, 2011). Thirdly, the right to protect extends tothe non-interventions principles yielding to the internationalresponsibility to protect (Glover, 2011).
Establishment of the Right to Protect
The numerous humanitarian brutalities that happened throughout the1990s lead to the debates and creation of a protocol permitting theinternational community to avoid any further mass acts of violence.To begin with, the over reliance of military force and the weakexecution of United Nations peacekeeping mission resulted in failuresin ending the 1992 to 1993 war in Somalia. The Rwanda genocide in1994 represented deficiency in Western Powers saving the innocentcitizens and failures of non-intervention practices (Evans andSahnoun, 2001, p.1). In 1995, the United Nations failed to precludethe massive extermination of civilians in Srebrenica, Bosnia. In1999, the NATO intervened the Kosovo war without the authority of theUnited Nation Security Council (UNSC) unleashing a debate on thecollation of the willing (Braathen, 2015). The discussion at handwas whether this kind of intervention is justified given bypassingand undermining the UNSC authority.
After assessing the response in retrospect, the Kosovo`s IndependentInternational Commission established that the interposition wasproscribed but legitimate (Serrano, 2011, p.3). However, theconclusion became a controversy demanding answers to the questionswhether, where, when, how and whose authority should intervene toprevent and end the large-scale humanitarian horrendous acts ofcrimes. The dissatisfaction of the available answers led to theinitiation of a new consensus by Kofi Annan, the United NationsSecretary-General, on approaching these issues (Breakey, 2012,p.4-5). Annan asked, "…if humanitarian intervention is,indeed, an unacceptable assault on sovereignty, how should we respondto a Rwanda, to a Srebrenica – to gross and systematic violationsof human rights that affect every precept of our common humanity?"(Murray and Mckay, 2014, p.12). After many debates on the principlesof just war theory, the international community created the‘Responsibility to Protect’ program also referred to as R2P orRtoP.
The Idea of the Right to Protect
The concept of the right to protect dwells in the duty acceptance forthose living in safety zones to care for one in danger zones. TheICISS 2001 report outlined specific accounts for the right to protectconcept. The first account is the right to protect calls for theresponsibility to prevent conflicts (Cuza, 2014, p.344). Thisprotection comprises of addressing the internal, external and rootcauses that put the human population at risk (Payandeh, 2011, p.473). The states have a liability to address internal strains before theyspiral. This responsibility is already a challenge considering thedifficulties in implementing them. For instance, a majority of thestates suffer structural causes and poverty, which often requirestrong support from the international community (Braathen, 2015).According to the ICISS report (2001, p.19), preclusion is the mostdynamic element of the responsibility to protect. Although preventionis better than reaction on saving human lives, failures avoiding theintrastate conflicts from taking place remain a persistent problem.
The Six Conditions of the ICISS Report
Failures to protect own state shifts the responsibility to theinternational community. When considering opposing actions ofanother state for humanitarian objectives, the starting point shouldalways be the norm of non-intervention. Expectations for the use ofnon-intervention include genuine or public violence that shocks thehuman conscience or a situation that clearly presents a danger to thesecurity at the international levels, as they will need coercivemilitary force (Payandeh, 2011, p.478). The ICISS report proposes sixconditions for military intervention that ought given utmostconsideration. These six states follow the just war theory criteriaand list them as “right intentions, last resort, proportionalmeans, reasonable prospects of success, just cause and the moralauthority,” (Small, 2014, p.180). Primarily any militaryintervention must be inspired by the right intention aimed atpreventing or stopping human suffering. Secondly, the interventionmust be the last resort after the exhaustion of all other applicableoptions. Thirdly, the military intervention must be conducted in aproportional manner to stop or prevent human suffering. Fourthly, alogical or tested means of ending suffering must be used. Fifthly,intervention should be applied when there is an extraordinary orapparently shocking human suffering or such threats. Lastly, theUnited Nation Security Council authority must be sought beforecarrying out a military intervention (Yoshida, 2013).
Adoption of the Just War Theory and the Right to Protect in theICISS Report
The commission set the conditions to toughen the edict of the statesby granting clear plans to direct the international action in theextraordinary situations when violence within a nation threatens allpeople (Glover, 2011). In connection with the just war theory and tothe just cause condition, the commission agreed that reactions toaverting a large-scale loss of life or tribal purging qualify forjustification of intervention. In many cases, a war begins or existswhen entities have exhausted all the peaceful options withoutsuccess. The main tenacity of the interposition then must be focussedto avert or stop human travail or suffering and guarding the victimsof the original intervention validation. Objectives that comprise ofalteration of the borders, toppling of regimes and advancing aspecific participant group for self-determination claims cannot bewarranted (Braathen, 2015). A right intention and a just cause mustnot only drive any intervention, but it should also continually bethe last recourse. Every implementation of non-military means to stopmass atrocities must have been deeply explored to ensure that therewas no other options remnant to resolve the conflict. Exploringoptions do not say that trying every thinkable measure before itfails because time might not allow for more severe loss of lives anddamages. The choice of choices must be logically supported by solidgrounds and prospects of success in correspondence with the right towar (jus ad bellum) component of the just war theory (Cuza,2014, p.343).
The other condition of the ICISS report corresponds to the secondcomponent of the just war theory justice in war (jus in bello).This part covers the states that direct on how the war orintervention takes place. Proportionality in conducting acts of justwar refers to minimum intensity and duration indispensable to securealtruistic intentions in request (Yoshida, 2013). The influence ofthe targeted state must be restricted o necessities required toaccomplish the intervention purpose. Any intervention, therefore,should adhere to the principles of responsibilities to protect. Thereasonable prospects of success operate within the comparisons ofcosts, consequences, and benefits of the intervention. If the actualprotection is more costly and has more effects than benefits andnon-intervention, then the move cannot be justified. For instance, amilitary action cannot be justified in a state in question if it islikely to incite more conflicts or risks destabilizing the entireregion. Sometimes a non-intervention could be more humanitarian thanintervention (Murray and Mckay, 2014, p.23).
The issue of establishing necessary actions leads to the stipulatedcondition of the right to authority that is in line with the just wartheory. As such, there should be one entity that decides thefulfilment of the conditions before permitting a military response.The ICISS report emphasizes on UNSC as the all-times chief foundationof authority for both martial and non-military actions in the face ofaltruistic disasters (Evans and Sahnoun, 2001, p.47). The reportoutlines two more viable sources of authority that can initiatemilitary actions while retaining the highest degree of legitimacy.The United Nations General Assembly addresses the situations ofdeadlock and inability to maintain international security and peace.The responsibility to protect constitutes the obligation toreconstruct an aftermath. Aiming at creating a long lasting peacesolution and avoiding the continued conflict along with mass killingsmust be well addressed to cover the main causes of the conflict.
The just war theory, the responsibility to protect and the ICISSreport might be in a general order in a dedicated course to protectand prevent atrocities. Wars need to take place as a reaction tounjust suffering, a call to correcting an inflicted wound or inself-defence as these signify a just cause by the just war theory. Anation should start war after establishing the probabilities ofsuccess otherwise it renders them a hopeless cause. Additionally, awar is justified to take place if it aims at rebuilding peace thatwould have existed without the use of force. Côte d`Ivoire and Libyahave already experienced the fruits of the Responsibility to Protectprogram (Serrano, 2011, p.12). However, their use poses a challengeto its application in the ongoing Syria conflict. The varyingstrategic alliances and political realities affect thefunctionalities of the Responsibility to Protect programs. Forinstance, a legitimate government may in itself be the perpetrator ofthe unwanted actions of war making. Such ICISS protocols then becomedifficult to carry out in consideration to causing minimum harm tothe population facing war. Any instance of a state failing to protectits citizens or prevent war leads to the responsibility to react(Ajebe, 2011, p.29-32).
The responsibility to protect leaves the international community withchallenges, especially when demanding for peaceful means ofintervention. On contrary to the just war theory that advocates forfighting to correcting evil, the international community tasks in theappropriate use of peaceful diplomatic means to protect civilians.Unfortunately, the time allowance provided by the ICISS report tomake informed decisions in events of inadequate means can at manytimes cause more damage in continuing wars (Donnell, 2014, p.562). Besides, the current debates still rest on the comprehension of thehumanitarian intervention about the use of military action.Evaluation of the responsibility to protect reveals two conflictingagendas between the proponents` doctrine and the duration for thepolicy agenda. For instance, if the responsibility to protect drivesan international conflict then it cannot represent itself as asustained commitment to protection. If these conflicting agenda wereto exist then the right to protection would disappear (Discenza,2013, p.109-110)
Critique of the ICISS
The responsibility to react according to the report of the ICISS(International Commission on Intervention and State Sovereignty) in2001 is the second most imperative element of responsibility toprotect (R2P) founded in the prevention, reaction and reconstructionapproach (Luensman, 2014, p.2). It is, however, becoming evident thatdespite the concept of R2P being extensive enough principally on theissues surrounding conflict prevention and politics most of thediscussion are mainly focused on the responsibility to react(Bellamy, 2006, p.145). Humanitarian intervention is a controversialsubject both when action is taken and when not thus, it is overlyimperative to review the ICISS report on the backdrop of the right toprotect. The ICISS report has managed to provide the much-neededanswers on humanitarian intervention during the 1990s crises mainlyon issues concerning the responsibility to protect, right authorityand the balance between protecting civil rights and dominion ofcountries. There is, however, a controversy on the issue of justice,especially when judging the legitimacy of an intervention based onthe ICISS report criteria (ICISS 2001, p.4). According to Lango(2014, p.26), the responsibility to protect is a wide approach thatin many angles raise the issue of how just an intervention is.However, the issue or aspect of ‘just’ cogitates the conflictsthat arise from the facts, such as, the threats population groups aresubjected to and the notion that responsibility to protect goesagainst the non-intervention principles of the UN Charter and theinjunction on the use of strength (Bellamy, 2009, p.34. This hasmoved the debate from the right to intercede to the obligation toprotect departing from the tri-partite responsibilities that focus onpreventing, react and rebuild focusing only on humanitarianintervention (Genser and Cotler, 2012, p. 38). In this regards, it isessential to discuss the ICISS report by illustrating that thelegitimacy of an intervention based on the six ICISS report criterionfail to provide a clear-cut position on whether an intervention islegitimate or in this case whether it is just or unjust.
As much as the Security Council is mandated to protect primarily, thelegitimacy criteria applied to humanitarian interventions, whichrequires the use of force remains a contentious issue (Luensman,2014, p.2). The issue of legitimacy on humanitarian interventionsbecomes even complex considering the strong recommendation by the UNto prioritize the use of ambassadorial, altruistic and other pacificapproaches as described in Chapters 6 and 8 of the Charter (McKernan,2008, p.1). The legitimacy criteria for military interventionespecially when peaceful means become inadequate and populations areexposed to ethnic cleansing, war criminalities and crimes againsthumankind are mainly abstract and general. According to Helmke(2010), there are no specific guidelines to measure the nature andmagnitude of harm to the state of human security to determine thatthe state is serious enough to justify a military intervention. Thesix criteria for military intervention as means of protecting humanrights are only moral criteria and not legal obligations.
Problematical aspect of the just notion
The Just cause conception in the ICISS report criteria is givenfirst-hand precedence compared to the other five criteria. Accordingto Werkner and Rademacher (2013), just cause is a major weak point inthe just war theory. As pointed out, the just cause is pretentiouslyand customarily used to rationalize the use of force. The existingconfusion in outcomes of the use of force is evident in Afghanistanand Iraq as most recent fails that according to Helmke (2010) andBanon (2006) can be interpreted as ‘just’ by some while otherslook at it as ‘unjust’. As depicted in the ICISS report, the useof force is justified to be ‘just’ when it is intended to haltthe massive loss of lives due to genocide and ethnic cleansing. Thereport only limits the interpretation of ‘just’ to humanitarianissues, which is different from how states and differentorganizations interpret it (Werkner and Rademacher, 2013, p.176).
Deng (2010, p.83) points out that individual interpretations havealso varied with some referring to the cause of just as ways tospread egalitarianism, prevent the development of weapons of massdestruction (WMD) and efforts to change regimes. Just as the ICISSreport fails to provide a clear and definite threshold of events thatcan be considered to trigger a responsibility to undertake preventiveor protection action, it has mainly inclined towards the threshold ofinterventions instead (Genser and Cotler, 2012, p. 38). In fact, theICIIS report uses the traditional just of war theory approach thatrules out ‘just cause’ criterion to be dependent on large-scaleloss of life. However, such a benchmark may be propagated by genocideaction resulting from the state actions or inability to prevent orstop and large-scale ethnic cleansing that may involve killings,forced expulsion or terrorism acts (Genser and Cotler, 2012 Brunneeand Toope, 2010).
The challenge involved in considering military intervention as a lastresort as negotiation and other peaceful approached are sought isimmense considering that the more time is taken to reach aresolution, more lives are lost. This has been practical in the caseof Syria and Yemen in the past five years (Prosviryakova, 2012).Legitimate authority as the second ICISS criterion brings out theissue of sovereignty than another criterion. The ICISS reportmentions that the UN has a higher authority in authorizing the use offorce in the global system. The report goes further to acknowledgethat any action by regional organizations as long as the UN hasauthorized them have the legitimacy to undertake action. According toHelmke (2010), this, therefore, creates a hierarchy of authoritygiving the UN a stronger position followed by regional organizations,ad hoc coalitions and particular states varying amounts of authority.However, Helmke (2010, p.72) asserts that how these authorities aredetermined is a point of conflict.
In the third criterion ordinarily described as the right intention,the need for force is considered eminent based on altruistic natureof the humanitarian condition but not individual state interestreasons. McKernan, (2008), however, argues that in most cases, anassortment of both collective and self-interest do influencedecisions for action that the ICISS openly confirm to allow.According to the commission, the use of force justified to be for theright intention must be undertaken multilaterally and purposely be toavert a humanitarian crisis (Genser and Cotter, 2012, p.39). Thisprovides an opening for the improbable and unachievable opportunityfor pursuing where rules and the less become less important comparedto the considerations that are based on the judgment of behaviour. As Helmke (2010, p.72) describes, the ICISS fails to provide a clearcut definition of what right intention means and the specificapproach to determining the multilateral interests.
The ‘proportion means’ criteria purports that the damage beingcaused by the action taken must cause less damage than the scale ofdamage being averted (Banon, 2006, p.15). The criteria according toHelmke, (2010) lack definite ways in which the mentioned proportionsare to be calculated. Prosviryakova, (2012) also criticizes theapproach as vague as it only reflects a shallow measure of the scaleduration and intensities being revered to in the report. Helmke,(2010) supports the criticism by adding that it is impossible todetermine or envisage accurately the cost benefit and determiningfactors of war until it is over. The report according to Genser andCotter (2012) does not provide any solid definition of proportionmean, which according to Helmke (2010) and Chandler (2004) variesgreatly from one conflict to another, and depend on nationalinterests at stake in the affected states.
Legitimacy of intervention
The ICIIS criteria focus on intervention and identify howintervention can be used for both pre-emptive and reactive purposes(Lango, 2014, p.26). The ICISS report according to Werkner &Rademacher (2013) has failed to indicate or even demonstrate acomparison of what the results would have been between applying thecriteria to preventive/reactive intervention and the preventivereactive without intervention or even the threshold measure inregards to factors such as the stage and type of response. Inaddition, the report fails to opt for further findings such asgenocides on the actual parameters surrounding its predispositiontowards large-scale killings as a major trigger for intervention.Instead, it only considers only the crimes against humanity and warcrimes that result or involve large-scale killings and ethniccleansing to meet the report’s threshold.
The ICISS report also has positive support from Lango (2014) andDeng (2010) who argue that the report managed to tackle the conflictbetween humanitarian intervention and sovereignty. This was mainlythrough providing a different conceptual framework making it apriority over unconditional territorial control. As Helmke (2010) hasdiscussed, the ICISS report also managed to reframe the controversialdebate by removing the emphasis from the privileges of states beingintervened to the responsibility of states providing the service. Thereports also changed the perception from states providing protectionto the perspective in which individual states are demandingprotection of their populations (McKernan, 2008, p.1).
The R2P approach has paved the way for a new myth of sovereignty withcontrol, eliminate challenges of authority by codifying previous adhoc and ineffective humanitarian intervention systems such as theDarfur crisis and Rwanda genocide. Genser and Cotter (2012) also addsthat the R2P in the ICISS report is intended to create a culture thatis proactive towards identifying preventive, responsible andprotection measures before resorting to military intervention.However, some scholars such as Lango (2014) dispute this notion byoutlining some issues including the apprehension of many states inthe south of the globe on the possibilities of superior economies orintervenes resulting to neo-imperialism or neo-colonization. Chinaand Russia have supported this concern also as McKernan, (2008)argues that R2P is a potential cause of unjustified violations ofstate sovereignty.
The ICISS report strategically adopts the ideas and the principles ofjust war theory to promote a consensus among the majority of thestates to embrace the protection of human life from massiveatrocities. The just war theory plays a significant part inestablishing foundations and conducts of war. The states comprehendtheir duty to ensure no harm to its citizens. The inclusion of thismandate in the report is the primary constitute of the responsibilityto protect. The collective framework of security measures such asones stipulated in the ICISS report enhances the sovereign states toengage in acts that a free from conflict and to intervene when otherstates apparently fail. The presence of the international communityoversees, therefore, demonstrate a vital position in maintainingprotection especially for states who tend incapable of restoringpeace. However, the current war in earnest proves challenges in thedirect application of intervention and reactions. The just war theoryand the protection responsibility covers the fundamentals of war andconduct well, but the ICISS report needs a frequent review relatingto the uncertainties arising from unique events along withadvancements of tackling the conflicts.
There is a lot of work to be done in efforts being made to supportthe R2P in the ICISS report in 2001. There are a lot of doubts risingon the effectiveness of the ICISS report and more so the issue of‘just’ about the six criterion of the CSIIS. The shift ofpriority between unlimited sovereignty and the increased interest oncollective security strengthening the importance of governmentalresponsibilities exposes the weaknesses within the ICISS report andits adaptation. The inclination of the use of force in R2P is areflection of the failure that the ICISS reports has. This alsoundermines the very basic principles of the core objectives of the UNin resolving humanitarian crises while ensuring military engagementas the last option. This, therefore, puts the legitimacy ofintervention actions into question paving way for the rise of thequestion as to whether the interventions being used are ‘just’ orunjust.`
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