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CANADIAN FORCES COLLEGE /COLLÈGE DES FORCES CANADIENNES
NATIONAL SECURITY STUDIES COURSE 3
16 April 2001
STRATEGIC LEVEL ETHICS: From theory to practice.
By/par
Colonel Daniel St Amour
This paper was written by a student attending the Canadian Forces College in fulfillment of one of the communication skills requirements of the Course of
Studies. The paper is a scholastic document, and thus contains facts and opinions which the author alone
considered appropriate and correct for the subject. It does not necessarily reflect the policy or the opinion of any agency, including the Government of Canada and the Canadian Department of National Defence. This paper may not be released, quoted or copied
except with the express permission of the Canadian Department of National Defence.
La présente étude a été rédigée par un stagiaire du Collège des Forces canadiennes pour satisfaire à l’une des exigences du cours. L’étude est un document qui se rapporte au cours et contient donc des faits et des opinions que seul l’auteur considère appropriés et
convenables au sujet. Elle ne reflète pas nécessairement la politique ou l’opinion d’un
organisme quelconque, y compris le gouvernement du Canada et le ministère de la Défense nationale du Canada. Il est défendu de diffuser, de citer ou de
reproduire cette étude sans la permission expresse du ministère de la Défense nationale.
ABSTRACT
This paper deals with the issue of what can be done to prevent or at least minimize
the risk of international paralysis when the world reckons with such a cataclysmic
humanitarian crisis as Rwanda. Although just war theory and the body of international
law address the question of just intervention (Jus Ad Bellum) and good conduct (Jus In
Bello) of military forces, the theory addresses the just termination (Jus Post Bellum) of
military operation in a very limited fashion. The paper attempts to address an area in the
just war theory that, other than Articles 32 to 41 of the Hague Convention IV, has been
mostly ignored: there is no ethical or legal constructs developed in meaningful way to
address the Jus Post Bellum phase of a humanitarian intervention. The aim of this paper,
therefore, is to find out what conditions must be present when a state decides to engage in
the humanitarian intervention of the future. To accomplish the aim, the paper will look at
two key dimensions of the decision making-process involved in deciding to commit to a
humanitarian intervention, i.e., legal and political dimensions. The paper will also
demonstrate that three pillars must support these two dimensions in order to provide the
right conditions for the UN Member States to engage in a humanitarian crisis. Three
pillars are grounded in the theory of war ethics, i.e., the Jus Ad Bellum (JAD), the Jus In
Bello (JIB) principles, and the Jus Post Bellum (JPB). The genocide in Rwanda illustrates
the importance of having all three pillars in place. The Rwanda experience suggests,
although the JAD and JIB pillars are well grounded, the JPB pillar is not, and without it,
humanitarian intervention will remain problematic. Finally, the paper points out that the
United Nations’ (UN) Charters gives the Security Council a key role in the legitimisation
of a humanitarian intervention. It suggests that the Security Council could be the change
agent and take the lead towards amending the Law of Armed Conflict (LAOC) to reflect
JPB principles.
Page 2 of 34
Introduction
In 1994, while a genocide was brewing in Rwanda, the world remained in a state
of inertia. While the world stood still approximately 800,000 Rwandans were massacred.
Even with repeated calls for help from General Dallaire, the Commander of the United
Nations Assistance Mission In Rwanda (UNAMIR), the UN failed to intervene.1 The US,
a key player at the UN Security Council, maintained that because both Tutsis and Hutus
were getting murdered, it was not genocide. As far as the US was concerned, Rwanda
was in the midst of a civil war. Rwandans were fighting for their right of self-
determination. Thus, the US had no right to intervene in their domestic affairs.2 Why
was there no interest in intervening in Rwanda, and what can we do about it? Could it be
as simple as Samuel Huntington when he argues that it was “morally unjustifiable and
politically indefensible that members of the US armed Forces should be killed to prevent
Somalis from killing one another. 3” The issues must be more complex and raised the
question as to, what could be done to prevent or at least minimize the risk of international
paralysis when the world reckons with such a cataclysmic humanitarian crisis as
Rwanda?
Although just war theory and the body of international law address the question
of just intervention (Jus Ad Bellum) and good conduct (Jus In Bello) of military forces,
the theory addresses the just termination (Jus Post Bellum) of military operations in a
very limited fashion. Herein lies a significant problem: there is no moral or legal
constructs developed in any meaningful way to address the Jus Post Bellum phase of the
1 Gourevitch, P., (1998). [Excerpted from chapter 11]. We wish to inform you that tomorrow we will be killed with our families. Farrar, Straus & Giroux, 1. http://www.pbs.org/wgbh/pages/frontline/shows/evil/ 2 ibid.3 Huntington, Samuel, P., (1992, autumn). New contingencies, Old rules. Joint Forces Quaterly. 338.
Page 3 of 34
engagement. Walzer maintains that there” is an obligation to make sure the conditions
that require the intervention in the first place don’t simply resume once you leave”4, but
offers little advice on how military forces meet their obligations towards a military
intervention and not remain engaged indefinitely.
The aim of this paper is to find out what conditions must be present when a state
decides to engage in a humanitarian intervention in the future. To accomplish the aim,
the paper will look at two key dimensions of the foundation in a state decision making-
process, i.e., legal, and political dimensions. The paper will also demonstrate that three
pillars must support these two dimensions in order to provide the right condition for the
UN Member States to engage in a humanitarian crisis. Two pillars are grounded in the
theory of war ethics, i.e., the Jus Ad Bellum (JAD) and the Jus In Bello (JIB) principles.
The Jus Post Bellum (JPB) pillar is submitted as weak or non-existent, and therefore must
be further developed.
This paper is presented in four parts. The first part will examine the legal and
political dimensions focusing on the inter-dependence of each dimension in a human
intervention context. The second part will consist of a detailed analysis of the model three
pillars, (i.e., the JAD, JIB, and JPB) essential to provide the ethical justification required
to initiate, conduct, and terminate a humanitarian intervention. In the third part of the
paper, the genocide in Rwanda will illustrate the importance of having all three pillars in
place. The Rwanda experience suggests that the JAD and JIB pillars are well grounded,
but the JPB pillar is not, and without it humanitarian intervention will remain
4 Walzer, Micheal, (1995, Spring). The politics of rescue. Social research 62. 41.
Page 4 of 34
problematic. Finally, the last section looks at ways and means to guide decision-makers
in making the right decision regarding conflict engagement, conduct and termination.
The model at Figure1 provides a visual perspective of the humanitarian
intervention model. The base displays the dimensions that must be present before a state
is in a good posture to seriously consider engaging in a humanitarian intervention. When
the legal and political dimensions are satisfied, the state political body will be in better
position to debate the issue and, thereafter, decide if it is worthwhile to engage. Once the
decision is made to examine the issue then the political governance must ensure that the
conditions are favourable to achieve a positive outcome. Here lies the key: all three
ethical conditions of just war theory, as enonciated by Immanuel Kant in the 18th
century,5 must be met, i.e., the JAB, JIB, and JPB. Otherwise, its like having a structure
with a solid foundation, legal, and political dimensions, without all its supporting pillars
necessary to support the humanitarian intervention.
J P B
J P
B
J
P
B
J U S I N
B E L L O
J U S
P O S T
B E L L U M
J U S
A D
BE L LU M
Figure 1 Figure 1 Political Dimension
Legal Dimension
Humanitarian Intervention
Page 5 of 34
The theory
The legal dimension
The first dimension is legal in nature. Canada as a member state of the UN and as
a signatory to the charter must work within this international law construct.
The key UN Charter articles most relevant to humanitarian intervention are
Articles 1(3) and 2 (4) in the UN Charter.6 Those establish the states sovereignty sanctity
and human rights. Article 1 (3) sets the stage by promoting and encouraging human
rights and fundamental freedoms for all by stating that one of the main purpose of the UN
is: “To achieve international co-operation in solving international problems of an
economic, social, cultural, or humanitarian character, and in promoting and
encouraging respect for human rights and for fundamental freedoms for all without
distinction as to race, sex, language, or religion.” 7 Note that Article 1(3) does not say
that the role of the UN is to police human rights. Rather, the charter speaks of
encouraging respect of human rights which is in line with the key principle of sovereign
sanctity as expressed in Article 2(4). Article 2 (4) discusses the use of force or threat
thereof against a sovereign state, “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”. 8
The legal precedent is fairly well established with regard to the territorial sanctity
of a sovereign territory. There are very few instances that warrant a humanitarian
5 Concise Routledge Encyclopedia of Philosophy, 1st ed. (New York: Routledge, 2000), 432. 6 United Nations (UN), (1945, June) UN Charter. New York, NY. http://www.un.org/aboutun/charter/index.html 7 Ibid. 8 Ibid.
Page 6 of 34
intervention without the legitimate governance’s consent. The exceptions form the basis
of the ethical interpretation of the Jus Ad Bellum principles which is the foundation of
LOAC.
The paper published by the Prime Minister’s Office titled “The Canadian Way in
the 21st Century” states how the Canadian Government sees Canada’s basic values within
an international legal context. In the paper, Jean Chretien, Canada’s Prime Minister (PM)
states that “Canada speak to the world through the values that can be traced to our
origins of ‘peace, order, good government’ [and] Canada’s foreign policy is the mirror
image of its domestic policy. 9” Canada does this by “capturing the traditions of
accommodation, peaceful resolution of conflict, the rule of law and democracy. Canada’s
legal framework”10.
The PM believes that by transmitting these values to the world, the probability of
maintaining world stability will improve.11 International law with its body of
conventions, protocols, treaties, declarations, and resolutions is certainly a key element in
the pursuit of “Peace, Order, and Good Government”.
The political dimension
The Political Dimension refers to the political imperatives that influence the
mission to engage in a humanitarian mission. It is also based on philosophical views that
range between pacifism and realism. Pacifists are basically against killing people even in
case of self-defence on the premise that less suffering will incur if we let others do with
9 Government of Canada (GC), (2001) The Canadian way in the 21st century. Ottawa, Ont: Prime Minister Office (PMO), 23. http://pm.gc.ca/default.asp?Language=E&Page=keyinitiatives&Sub=TheCanadianWayinthestCen.html 10 Ibid., 21 11 Ibid., 3.
Page 7 of 34
us as they please. 12 They are against the conduct of all forms of war.13 Realists hold the
view that states ought to be guided solely by a concern for national interest, such as
protection of citizens from external threat. 14 However, threat is a very subjective
element. A nation is threatened to the extent it feels threatened, and by the way the
nation defines its vital interest and, therefore, how secure a nation feels is subjective and
depends on factors that are not necessarily under our control.15
The PM describes Canada’s vision the international environment for the next
century as: “to secure economic prosperity for Canadians while not leaving citizens of
the globalized society behind.” 16 Prosperity will depend on economic growth, national
unity, and the highest quality of life for Canadians. In order to achieve this vision, Jean
Chretien holds that Canada needs “to support policy coherence at the international level,
not only in the economic, but also the social, environmental, health, and cultural
consequences of globalization,” 17 He envisions the realization of policy coherence
through the advantages of our multi-cultural society. Canada’s citizens have roots in
every part of the world and, therefore, are well placed to promote Canada’s core values of
Peace, Order, and Good Government throughout the world. 18
The legal, and political dimensions are grounded in Canada’s perception of
“globalization as a mean to increase wealth, expanded opportunity and improved well-
12 Foltion, N., & Elfstrom, G. (1986). Military ethics: Guidelines for peace and war. Boston, London, and Henley: Ruthledge & Kegan. 7-8. 13 Coates, A. J., (1997). The ethics of war. Manchestor & New York: Manchestor University Press, 77. 14 Finnis, John, & Nardin, Terry (Ed.). The ethics of war & peace: Religious and secular perspectives. Princeton: Princeton University Press, 79. 15 Foltion N., & Elfstrom G. Military ethics: Guidelines for peace and war, 39. 16 GC PMO. The Canadian way in the 21st century, 21. 17 Ibid., 22. 18 Ibid., 21.
Page 8 of 34
being for Canadians and the citizens of other developed countries.” 19 For the citizens of
those states that are less fortunate, living in poverty, for example in less than secure
environments, Canada and beneficiaries of globalization “must help those that are
excluded to benefit.”20
Just War Theory
Analysis of the legal and political dimensions provides the basis to ground the
decision making process. Once the legal and political justifications to intervene have
been met, an ethical government must ensure that the conditions to meet the principles of
just-war theory are in place. The humanitarian intervention success depends very much
on a just intervention, a just conduct, and the ability to plan a just end to the crisis, in
other words the model’s three pillars, i.e., Jus ad bellum, Jus In Bello, and Jus Post
Bellum. Figure 3 shows how the three pillars of just-war theory inter relate.
19 Ibid., 22. 20 Ibid.
Page 9 of 34
Figure 3
Crisis
JPB delay
Jus Ad Bellum conditions
Commitment
Jus In Bello
Just Conduct
Jus Post Bellum Condition
NO
Just War TheoryJPB1
JPB yes
JPB3
JPB4 Just end
JPB5 JPB1
JPB2
JAB1
JAB2
Just intervention
JAB6
JAB3
Jus Ad Bellum (Just Intervention) JAB1: Just cause JAB2: Right intention JAB3: Proper authority, public declaration JAB4: No Precipitate Force JAB5: Probability of success JAB6: Proportionality Jus In Bello (Just Conduct) JIB: Just cause JIB2: Right intention JIB3: Proper authority, public declaration JIB4: Last Resort JIB5: Comparative justice JIB6: Consistency with ideal of perpetual peace Jus Post Bellum (Just End) JPB1: Just cause for termination JPB2: Right intention JPB3: Proper authority, public declaration JPB4: Discrimination JPB5: Proportionality.
JAB5
JAB4
The first pillar, Jus Ad Bellum, is based Grotius work “concerning the law of peace
and war”. Once a state governance believes that it ought to consider acting, JAB
provides the conceptual framework for deciding whether an intervention is justified or
not. An intervention is considered JAB when the intervention is for a just cause and a
Page 10 of 34
right intention; is publicly declared by a legitimate authority only once the avenues of
negotiation have been exhausted; and has reasonable chance of success with minimum
collateral damages.21 Each of these criteria is examined below.
A just cause and a right intent go hand in hand. To demonstrate right intent, a
government must be responding to an aggression to its own territory or in response to
threats to the lives and well being of citizens of other nations. David Luban “argues that
where a nation is in a grave danger from famine, flood, or other disaster even through its
own mismanagement, wherever large number of lives are at stake other nations are
obligated to help.22”23 The obligation needs to be weighted against national sovereignty
as stated in article 2(4) and article 1(3) of the UN Charter. Article 2(4) insists on
territorial integrity and political independence. If the intent is to help a country that has
been the victim of an aggression, intervention is justified unless its purpose is strictly for
self-interest, and all venues of negotiations have not been tried.24 Finally, war is
permissible if the intention is to set right perceived present or past wrong. 25
To satisfy JAB a state must also have the proper authority. The intervention
must be publicly declared, and domestic rights must be protected. Although, article
2 (7) of the UN Charter re-enforced by resolution 36/103 passed at the 91st plenary
meeting held by the General Assembly prohibits the Security Council ‘s intervention in
the domestic affairs of a state by re-affirming that: “No state or group of states has the
right to intervene or interfere in any form or for any reason whatsoever in the internal
21 Orend Brian (2000), War and international justice: A Kantian Perpective.Waterloo, Ontario, Canada: Wilfrid Laurier University Press, 205-211. 22 Luban, D, ‘Just war and human rights,’ Philosophy in public Affairs, Vol. 9, 1980, 150-81. 23 Foltion N., & Elfstrom G., 117. 24 Nuttal, J., & Rosenthal J. H. (Ed). (1993). Ethics and international affairs: Polity. (2nd ed.). Washington D.C.: George Town University Press, 162. 25 Ibid.
Page 11 of 34
and external affairs of any other state”26 Part III of the declaration presents a few
exceptions to the non-use of force. The first exception is found in Paragraph 2 III (c) and
expresses the right to self-defence by affirming that: “The right and duty of states fully to
support the right to self-determination, freedom and independence of peoples under
colonial domination, foreign occupation or racist regimes, as well as the right of these
peoples to wage both political and armed struggle to that end in accordance with the
purposes and principles of the Charter of the United Nations.”27 The declaration, as
indicated in Paragraph 4, also supports an intervention in response to threats to the lives
and well being of citizens of other nations and might legally justify the use force in a
sovereign territory. The declaration states that: “Nothing in this declaration shall
prejudice in any manner the right to self-determination, foreign occupation or racist
regimes, and the right to seek and receive support in accordance with the purposes and
principles of the Charter of the United Nations”. 28 Finally, Article 1 of the Convention
on the Prevention and Punishment of the Crime of Genocide which entered into force on
12 January 1951 recognises the obligation to act to prevent and punish in case of
“genocide (as defined in Article 2), whether committed in time of peace or in time of war,
is a crime under international law which they undertake to prevent and to punish”.29
On the principle of no precipitate force, Jeff McNamara says that one may pre-empt
a likely aggression if and only if a country can prove that their adversary was actually
26 UN General assembly. “36/103. Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States.” Resolution 36-103: 91st plenary meeting. 1981, December 9 http://www.un.org/documents/ga/res/36/a36r103.htm 27 Ibid. 28 Ibid. 29 Convention on the Prevention and Punishment of the Crime of Genocide. Approved and proposed for signature and ratification or accession by General Assembly resolution 260 A (III) of 9 December 1948 entry into force 12 January 1951, in accordance with article XIII. http://www.unhchr.ch/html/menu3/b/p_genoci.htm
Page 12 of 34
guilty of an offence that threatens its territorial integrity.30 A pre-emptive strike is not
permitted unless it is clear that there is compelling evidence that the threat will actually
occur, or that the obvious threat can move all too quickly toward an actual assault.31
Finally, to meet the conditions of a just intervention there must a reasonable
probability of success. There should also be proportionality considering the social and
economic wellbeing of all concerned. The probable good in pursuit of the just cause
must outweigh the probable evil.32 The calculation of proportionality must be made
compared to the probability of success. 33 In an international context, the potential
escalation, and ramifications of a possible war have at times been crucial to determine
how much coercion a nation and/or the international community are prepared to use to
resolve a dispute. For example, the Russian’s invasion of Hungary in 1956 was an
obvious infringement of the principle of non-aggression and a clear violation of
Hungarian Sovereignty and right to self-determination. Hungary’s request for help from
international community in 1956 was very similar to Kuwait’s except for a distinct
difference. An armed conflict with Russia had the potential of causing a nuclear
holocaust. 34 The human suffering that would result from helping Hungary in 1956 would
have been worse than not intervening. Thus, each case must be decided in terms of the
long-range effect of going to war. 35
The second pillar, Jus In Bello, refers to the criteria that justify moral conduct in
operations. Jus in bello principles have deontological roots. The legal framework that has
30 McMahan, & Nardin Terry (Ed.). (1996). The ethics of war & peace: Realism, Morality, and war. Princeton: Princeton University Press, 85. 31 Foltion N., & Elfstrom G., Military Ethics: Guidelines for Peace and War. 35-36. 32 O’Brien, W.V. (1981). The conduct of a just an limited war. New York: Praeger, 27-28. 33 Ibid.34 Coates A. J., The ethics of war.179. 35 Ibid., 115.
Page 13 of 34
originated from the JIB principles is found in the four Geneva conventions and two
protocols on law and armed-conflict.36 The JIB ethical dimension provides guidance
when one has to make a situation arises and is not covered by the legal framework. The
responsibility to ensure that the norm are adhere to from both JIB and LOAC, is
bestowed to military commanders, officers, and soldiers who formulate and execute the
plan. It still behooves to the heads of state to ensure that the justified end is pursued by
justified means. Hence the role of the rules of engagement. Theses rules provides
consistency in the application of force and prevent escalation through proportional use of
force. To be in abeyance the soldiers may target only “those engage in harm”37
(discrimination), the soldiers may use only the minimum force required to achieve the
aim (micro-proportionality), and cannot use means that are wrong ( No Means Mala in
Se)38. The law in armed conflict oversight is the role of the International Court of Justice
(ICJ) is the principal judicial organ of the United Nations and thus has the oversight role
of the law of armed conflict.39 Lets suppose also that according to JAB and JIB principles
are met and, therefore, the conditions are such that we have just cause, and the right
instruments to enable the state to conduct a just war; the state is left wondering what will
be consider a right ending with regard to its own citizenry, the population remaining
behind, and international community.
The third pillars is addressed in Kant JPB ethical construct when coined the term Jus
Post Bellum by discussing basic principles. Little attention were given to theses
36 One World, Frequently Asked Questions about IHL. What treaties make up international law? http://nt.oneworld.org/cfdocs/icrc/anyfs.cfm?pagepath=pages/page1232.htm 37 Orend, B. War and International Justice: A Kantian perspective. 205-211. 38 Orend, B. Stanford Encyclopedia of Phylosophy. 2000, 4. http://setis.library.usyd.edu.au/standford/archives/spr2000/entries/war 39 The International Court of Justice. General Information: The Court at a Glance. 2001, March 26. http://www.icj-cij.org/icjwww/igeneralinformation/icjgnnot.html
Page 14 of 34
principles until recently when Brian Orend began exploring this uncharted territory by
proposing a Kantian’s perspective on how a just war should end.40 The five rules of JPB
as follows:
x� Just Cause for termination; x� Right intention; x� Public declaration, legitimate authority, and domestic rights-protection; x� Discrimination; and x� Proportionality.
To have just cause to end a war or in a lesser degree to end a nation’s commitment to
a humanitarian intervention, Brian Orend states that “a just war should end when there is
a reasonable vindication of those rights whose violation grounded the resort to war in the
first place.”41 The government’s intent to end the conflict must aim towards an equal
application of the law towards the investigation and prosecution of war criminals on both
sides of the armed conflict.42 Furthermore, to have a just end to a war, as stated in Kant’s
theory, “the term of the peace must be publicly proclaimed by a legitimate authority,” 43
and is reinforced by the article 32 to 41 of The Hague Convention IV. The convention is
very limited in its application of JPB. It only speaks of the role of the white flag in
providing the rights of the flag-bearer and the rights of the one receiving the flag of truce
and also regulates the capitutilation process.44 However, Walzer warns that at the end of
the conflict there is a tendency for the victor to re-establish the previous ground rules that
were present before the intervention began. He also insists that the last thing one should
do is to re-establish the status quo since returning to the pre-war status quo might become
40 Orend, B. (2000). War and International Justice: A Kantian perspective, 217-256. 41Ibid.42 Ibid, 232. 43 Ibid, 228. 44 Ibid, 218.
Page 15 of 34
the breathing ground for the conditions that caused the war in the first place. Another
duty from the just government is to avoid discrimination at all cost, thereby keeping to a
minimum the potential resentment that the populations may have against each other and,
in the process, preventing further conflict. Brian Orend warns, in his work on war and
international justice, that “Undue and unfair hardship is not to be brought upon the
civilian population in particular: punitive measures are to be focused upon those elites
most responsible for the aggression.” 45 Finally, on the principle of proportionality no
crusade is allowed. The aggressors still have human rights. This argument does not
prevent a need to demilitarize to the point that they have sufficient forces to maintain law
in order internally and to protect their border. 46
Without knowing, at least from a risk-management point of view, the desire goal and
end-state, the head of states cannot fulfil their social contracts with their citizenry and
members of their armed forces. A possible solution proposed in this paper is to enshrine
JPB principle in the UN Charter or other UN policy instruments. It would go a long way
towards reassuring states governance that all the conditions are favorable to a successful
intervention and would minimize the position governments find themselves in engaging
in a humanitarian intervention.
45 Ibid. 46 Ibid.
Page 16 of 34
The practice
A reflection on what happen in Rwanda in the dark days of the 1994 genocide
can shed some light on why UN member states failed to recognize that a humanitarian
intervention was the right thing to do.
Jus Ad Bellum: Let’s review the principle of just intervention and ending an
intra-state conflict in the context of Rwanda genocide in 1994.
On just cause: Even though Rwanda did not commit interstate armed aggression, its
massive human rights violation were a just cause for nations to commit military forces to
the conflict. Grotius, Oppenheim and Walzer all agree that a state forfeits its claim to
sovereignty when leaders violate their subjects human rights’ in such a way as to make
the concept of self-determination irrelevant. On 6 April 1994, the plane of Rwanda’s
President was shot down near Kigali airport, and the same night Thousands were killed
on the first day while the UN forces standed still while Tutsis and Hutus moderate were
being killed. 47 On 21 April 1994, the Prime Minister was killed and the 10 Belgians
guarding the Prime Minister’s residence were disarmed, tortured, and hacked to death.48 .
Up to 800,000 Rwandans were killed that spring. As Luban pointed out when a large
number of lives are at stake, the other nations are obligated to help.49 In the spring of
1994, because of the extremely serious human rights violation, the Rwandans right to
self-determination were non-existent, therefore, the sovereignty status as under Article
2(4) of the UN Charter was not applicable. Hence, there was just cause for UN mandated
humanitarian intervention.
47 Ibid.48 Ibid.49 Luban, D. ‘Just war and human rights,’ Philosophy in public Affairs.
Page 17 of 34
On right intent: On 30 April 1994 the UN Security Council, while thousands of
Rwandans were being systematically killed, the Security council was debating whether
the crisis was a genocide. 50 After a long debate within the security council on the
Rwandan crisis, there was a resolution condemning the killing. The word genocide was
not included in the resolution.51 Finally, on 17 May 1994, the Security Council supported
the need to send a force of approximately 7000 armed personnel to defend Rwandan on
the basis that an act of genocide may have been committed. 52 This force was not
deployed due to the arguments over who would pay the bill and provide the equipment.53
Even though there was just cause to get involved, there was clearly no intent to change
the mandate from observer force to peace enforcement. The world had simply no
intention to intervene in Rwanda’s affair!
Canada is signatory of the Convention on the Prevention and Punishment of the
Crime of Genocide of which Article 1 clearly states that crimes against humanity, hence,
genocide cannot and will not be tolerated by the signatories of the agreement. 54 Canada,
therefore, had a moral and legal duty to act with its allies to prevent or stop the
cataclysm. Although, the crisis did not affect Canada’s vital interest, the PM’s policy on
Peace, Order, and Good Government mentioned earlier (p.7) suggests that Canada must
participate in assisting troubled states in reinstating a justice system and police force able
maintain peace and order on its territory. Good government in Canadian terms entails a
responsibility on the part of government to provide citizens with the basics requirement
50 Loeterman, Ben & Robinson, Mike, dir. Triumph of evil. PBS Video, 1999. 51 Keane, Fergal & Destexhe, Alain. Rwanda: A historical chronology.52 Ibid. 53 Ibid.54Convention on the Prevention and Punishment of the Crime of Genocide. Approved and proposed for signature and ratification or accession by General Assembly resolution 260 A (III) of 9 December 1948
Page 18 of 34
needed to rear a country. These include health, education, economic development, social
justice, and the ability to collect taxes to pay for those services. Only Chechoslovakia,
New Zealand, and Spain ambassadors pressured the UN for the return of troops to the
crisis area.55 Canada remained quiet on the issue.
On proper authority, public declaration and domestic rights protection: The
government had consent from Rwanda to intervene. Not only were the Rwandans
consenting, both Hutus (before the killing started to escalate) and Tutsis (once the killing
started to escalate) called for foreign assistance.56 Furthermore, Article 3 of the UN
Convention on the Prevention and Punishment of the Crime of Genocide provided the
international authority with the necessary legal framework to intervene. The convention
stipulates that genocide is an act of committing with intent to destroy, in whole or in part,
nationals, ethnical, racial or religious group such as:
x� Killing members of the group; x� Causing serious bodily or mental harm to members of the group x� Deliberate inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part; x� Imposing measures intended to prevent births within the group; and x� Forcibly transferring children of the group to another group.
In fact, Canada and the other131 nations57 which are party to the genocide
Convention were non-compliant with Article 8 which calls for action on infraction
entry into force 12 January 1951, in accordance with article XIII. http://www.unhchr.ch/html/menu3/b/p_genoci.htm 55 Gourevitch, P., (1998). [Excerpted from chapter 11]. We wish to inform you that tomorrow we will be killed with our families. 56 Orend, B. War and International Justice: Akantian Perspective, 208. 57 Office of the United Nations High Commissioner for Human Rights. (1997). Convention on the Prevention and Punishment of the Crime of Genocide: Approved and proposed for signature and ratification or accession by General Assembly resolution 260 A (III) of 9 December 1948 entry into force 12 January 1951, in accordance with article XIII. Geneva, Switzerland. http://www.preventgenocide.org/law/convention/reservations/
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committed at article 3 above. Hence, there was not only just cause to intervene on 6
April 1994, it was a duty to do so.
On no precipitate force: The UN or any countries that wanted to get involved would
need to wait until compelling evidence was available that things were spinning out of
control in Rwanda. There was plenty of credible, verifiable information from
international organizations, non-governmental organizations, and the media. All the
evidences pointed to the fact that if a viable political solution were not soon sought, there
would be mass slaughters in Rwanda.58
On probability of success: The UNAMIR force to Rwanda was poorly equipped and
supported. A well conceived plan with more better equipment would have stopped the
killings (as expressed on many occasion prior the actual genocide). 59 The tragedy of the
assassination of the 10 Belgium soldiers and the subsequent withdrawal of their forces
could have been avoided if General Dallaire had been provided with sufficient armed
forces and Rules of Engagement (ROE) to maintain a proper mandate to ensure Peace,
Order, and Good Governance.60
On proportionality: The Rwanda civil war was a very complex problem, and the
resources of continued deployment that were required would have been very costly.
However, if one puts it in perspective, it would not have cost anything close to the Gulf
War overall cost of $26061 billion.
58 Loeterman, Ben & Robinson, Mike, dir. Triumph of evil. 59 Orend, B. (2000). War and International Justice: A Kantian perspective. 205-211. 60 Loeterman, Ben & Robinson, Mike, dir. Triumph of evil. 61 Ralston Saul, J., (1994). Voltaire’s Bastard: The dictatorship of reason in the west. Toronto: Penguin Books.
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Jus In Bello
On proportionality: Presuming, at least in hindsight, that there was a genocide
being perpreted in Rwanda in 1993/94, a humanitarian intervention would have met the
JAB conditions. The expected benefits of the intervention would have been to protect
Tutsis and moderate Hutus from being massacred by members of the Hutus power. The
Hutu regime had proved themselves to be outlawed, devoid of rigths to non-interference,
because of its systamic human rights violations, against their own citizens. As long as
they would have abided to the JIB principles, UNAMIR troops were within the bounds of
international law to intervene, with lethal force if necessary. Since the majority of the
killings in Rwanda were perpretated with small arms, mostly machetes, the risk for the
UN troops of not abiding to the JIB principles of proportionality would have been slight.
On discrimination: Even though, on 23 November 1993, General Dallaire had
requested from the UN, approval for the draft rules of engagement (ROE) that he had
sent, the same day, General Dallaire received no formal response. The confusion
surrounding the ROE may have well been a contributing factors to the ten Belgians
soldiers surrending without a fight and, hence, their subsequent atrocious death.62 Due to
the UN’s inability to endorse a clear set of ROE and a suitable mandate, the UN not only
put Rwandans at risk but also its own troops.
Jus Post Bellum
On just cause: On 4 August 1993, the Arusha Peace Agreement was signed by
the various factions in Rwanda.63 It allowed the return of Hutus refugees to Rwanda from
62 Des Forges, Allison, (March, 1999) Leave None To Tell The Story. New York: Human Rights Watch Publications,133. 63 Keane, Fergal & Destexhe, Alain. Rwanda: A historical chronology
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Uganda and the establishment of a share Hutus/Tutsis coalition government.64 To assist
the government of Rwanda, the UNAMIR was established from in the fall of 1993. At its
peak UNAMIR was up to 2548. 65 At that critical juncture, it was clear that there was no
legitimate government in power, and that the Rwandans human rights were seriously
violated. The UNAMIR mandate should have changed from an assistance mission to a
military intervention. The mandate was not changed. As Walzer points out when “a state
which the governments turns against its own people and engages in “terrible human
rights violations such as massacre. Such state violates the thin and universal moral code
and becomes illegitimate.”66 Thus the UN Security Council had just cause to act and
chose not to. The council decided to reduce it’s commitment to assist Rwanda instead.
On right intent: The Hutu Power’s were expecting UN troops to withdraw once
the UNAMIR forces were at risk. 67 The Hutu Power’s prediction was pretty accurate.
The force was reduced to 250 within 14 days of the assassination of Rwanda Prime
Minister and gruesome killing of the ten Belgian soldiers sent to protect her.68 The UN’s
withdrawal of the majority of its troops was questionable at best. There was no intention
to prevent genocide. And if the UN didn’t have enough evidence to call it genocide, they
had information to the effect that one was certainly brewing.
On public declaration: The Arusha Peace Accord was never successfully
Council refusal to call the mass killing genocide as shown on 30 April 1994, when, after
discussing the Rwanda situation, it could not get the necessary support to call the crisis a
64 Ibid. 65 Ibid. 66 Walzer, M , On just cause: Resorting to force. Canadian Journal of Political Science, 3, XXXIII: 2000 (9 April 2001), 5 , Walzer, M , On just cause: Resorting to force. Canadian Journal of Political Science, 3, XXXIII: 2000 (9 April 2001), 5 , http://www.wlu.ca/~wwwpress/jrls/cjps/issues/33.3/orend.html 67 Keane, Fergal & Destexhe, Alain. Rwanda: A historical chronology68 Ibid.
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genocide.69 The reluctance to call the Rwanda crisis a genocide had the effect to prevent
a nasty humanitarian intervention, since there was no crime against humanity taking
place; thus, there was no humanitarien intervention needed.
On public discrimination: By February 1997, 21 suspects are indicted for crime
against humanity.70 The Hutus male population are arrested in mass and their most basic
human rights are taken away. To this date, very few of the Hutus incarcerated have been
prosecuted. 71 Undue and unfair hardship has been brought to the Hutus population.
On proportionality: The Rwanda tragedy in 1993/94 was not only messy, it has
been volatile ever since. For the Rwandans, it is very important that the conditions for
peace were in place so they do not return to a state of War. To that effect, the Western
governments had pledged $600 Million in to aid to Rwanda on the condition that the
political base of the new government be expended.72 Why? After all, the genocide
occurred not long after the Arusha Peace Accord was signed which was based on
allowing the return of refugees and the coalition government of Hutu-Tutsi. The
conditions to the financial aid had the effect to increase, in mid-May 1995, the tensions
between the UN and Rwanda. The international aid was very limited to rebuild a country
that had been so devastated. 73 To tie that financial aid to condition similar to the Arusha
Peace Accord which was a total failure to begin with, was short sighted. One would not
argue that it would be just to insist on conditions that financial aid should be directed
toward promoting Peace, Order, and Good Government; values proudly espoused by
Canada.
69 Ibid.70 Ibid.71 Ibid.72 Ibid.
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How did Canada do in its obligations to aid Rwanda. According to Canadian
Council for International Co-operation (CCIC) funds allocated to provide African aid
were cut during the early to mid 90s by 58%.74 All funding allocations to the
development of education were reduced dramatically in the fiscal year 1993/94 budget. 75
In fact, Rwanda was a low priority in Canada’s foreign policy and international relation
and never saw fit to established a foreign embassy in the region.76 If all developed
countries were to take this approach, it would be impossible to create the right conditions
to enable the UN to end the intervention.
From the experience gained in Rwanda, we can see that there was a significant
reluctance from UN member states to intervene in a conflit that had no end in sight. Due
to this uncertainty there was a serious lack of will from the international community to
intervene.
73 Ibid.74 Canadian Council for International Co-operation. (April 95), Implementing the Cuts: The Implications of Budget Cuts to NGO/NGI Programs in the Partnership Branch of CIDA. 75 Ibid. 76 Delvoie, Louis, Canada and internal security operations: The search for policy rationales. Canadian Military Journal (summer 2000), 9.
Page 24 of 34
The Rwanda humanitarian crisis provides the international community with the
essence of the problem. Without a strong Jus Post Bellum pillar, the Jus Ad Bellum and
Jus In Bello pillars are not sufficients to support the commitment of UN member states
towards humanitarian intervention as depicted below at Figure 3. Thus, without a strong
Jus Post Bellum construct, the lack of will to commit military forces in intra-state conflict
will remain.
J
U S
A
B E L L U M J U S
A D
B E L
J U S AD BE L L U M
Humanitarian Intervention
J US I N
BE L L O
Political Dimension
Legal Dimension
Figure 3.
A solution
How can the UN pursue the challenge? One needs only to look at specific articles in
Chapter VII and Chapter VIII of the UN Charter to see the key role the Security Council
Page 25 of 34
plays in the legitimisation of a humanitarian intervention. Article 39 clearly states that an
intervention in an armed conflict is possible when sanctioned by the Security Council
under Chapter VII of the Charter. As expressed in Articles 41 and 42 the Security
Council “shall determine the existence of any threat to the peace, breach of the peace, or
act of aggression, and then makes recommendations or decides on measures, if necessary
provides the Security Council with alternate means to military intervention to main tain
international peace and security by affirming that: “ The Security Council may decide
what measures not involving the use of armed force are to be employed to give effect to
its decisions, and may call upon the Members of the United nations to apply such
measures. These may include complete or partial interruption of economic relations and
of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the
severance of diplomatic relations.” 77 Nevertheless, the Charter is very explicit in the use
of military options as last resort as illustrated by Article 42: “Should the Security
Council consider that measures provided for in Article 41 would be inadequate or have
proved to be inadequate, it may take such action by air, sea, or land forces as may be
necessary to maintain or restore international peace and security. Such action may
include demonstrations, blockade, and other operations by air, sea, or land forces of
Members of the United Nations.” 78
On the subject of the right of individual and collective self-defence, it is expressed in
Chapter VII of the charter article 51 and includes the protection of nationals’ abroad. 79
The right to self-defence is only authorised by the Security Council until it can put in
place the measures necessary to maintain international peace and security. To that effect
77 Ibid. 78 Ibid.
Page 26 of 34
article 51 states that: “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, until the Security Council has taken measures necessary to maintain
international peace and security.” 80 Finally, article 53 highlights the pre-eminence of
the Security Council and reinforces the fact that the right of self-defence applies only to
states, and claiming it for other entities (e.g. Kosovo) has no foundation in international
law by iterating that: “The Security Council shall, where appropriate, utilise such
regional arrangements or agencies for enforcement action under its authority. But no
enforcement action shall be taken under regional arrangements or by regional agencies
without the authorisation of the Security Council etc.” 81
Considering some of the roles bestowed to the Security Council in the UN Charter, it
could be advantageous for the council to encourage reputable academic institutions to
pursue Kant’s work on JPB. Briand Orand in his newly published work, War and
International Justice: A Kantian perspective82, provides the line of departure. Much
debate on JPB needs to occur. However, before Kant’s views can be entrenched in Just
War Theory and into international law.
Who could be better suited than the Security Council to become the change agent and
lead the world in developing the JPB pillar. The international community cannot morally
fail again when a crime against humanity is committeed. The international community
needs strong leadership form the Security Council so that, as in the case of Rwanda,
although the UN member states had the obligation to intervenve, they did not. The
79 Ibid. 80 id. Ib 81 Ibid. 82 Orend, B. War and International Justice: A Kantian perspective. 205-211.
Page 27 of 34
mandate was never changed from being an observation to an intervention mission. The
inadequate mandated resulted in confusion on the ROE. The outcome was the tragic
deaths of hundreds of thousands of human beings. One the root cause to this inaction is
the dillemma of committing troops to a mission that has no end in sight and that has
nothing to do with one state national interest. The UN must lead and create the
conditions to avoid becoming helpless, once again, when serious violations of human
rights and/or crime against humanity are being committed. Only when just war theory
gives due consideration to the JPB principles, and when the international law is
supported by a comprehensive legal construct, the UN will be able to rally the politician
to engage in a future humanitarian intervention. Right now the Just Post Bellum pillar is
almost non-existant.
CONCLUSION
Rwanda’s genocide and the subsequent inaction of the international community
illustrate the uneasiness of the UN Member states to engage their military forces in an
armed-conflict with no end state. It will always be very difficult to generate willingness
to jumanitarian interventionss. Presently there is no question that troops committed in
humanitarian intervention have a high probability of being committed for the long-term.
The problem is made more difficult because of the many different point of views
among the 132 UN members states that are signatory on the Charter, mainly because of
their different legal, and political dimensions. Nevertheless, they all have this in
common; they all signed on the Human Rights declaration and the Convention on the
Prevention and Punishment of the Crime of Genocide, Geneva conventions and
protocols, declarations and resolutions that cover a wide range of issues including the
Page 28 of 34
JAB and JIB pillars. Furthermore, no state can afford to remain engaged in a
humanitarian intervention indefinitely. States need to know how and when a mission will
end before they can commit to an intervention. Thus, the importance of JPB. The UN
Security Council could be the change agent to provide the impetus to include JPB
principles in international law.
Unless, the UN takes up the challenge and addresses the JPB aspects of just war
theory and the legal construct to support humanitarian intervention, the international
community willl remain helpless in its ability to engage and succeed in its humanitarian
intervention. Therefore, the UN needs to show resolve in establishing the JPB otherwise
enthusiasm for humanitarian intervention will continue to wane.
Page 29 of 34
Bibliography
Andrikson, D.C., & Rosenthal J. H. (Ed). (1993). Ethics and international affairs: The
ethics of collective security. (2nd ed.). Washington D.C.: George Town University
Press.
Brunk,G. & al, (1996). Understanding attitudes about war: Modelling moral judgement.
Pittsburgh: Pittsburgh University Press.
Canadian Council for International Co-operation. (April 95), Implementing the Cuts: The
Implications of Budget Cuts to NGO/NGI Programs in the Partnership Branch of
CIDA.
Christopher, Paul, (1999). The ethics of war and peace: an introduction to legal and
moral issues. Toronto; Prentice Hall.
Coates, A. J., (1997). The ethics of war. Manchestor & New York: Manchestor
University Press.
Cohen & al (Eds.), (1974). War and moral responsibility. Princeton: Princeton
University Press.
Concise Routledge Encyclopedia of Philosophy, 1st ed. (New York: Routledge, 2000).
Delvoie, Louis, Canada and internal security operations: The search for policy rationales.
Canadian Military Journal (summer 2000).
Des Forges, Allison, (March, 1999) Leave None To Tell The Story. New York: Human
Rights Watch Publication.
Finnis, John, & Nardin, Terry (Ed.). (1996). The ethics of war & peace: Religious and
secular perspectives. Princeton: Princeton University Press.
Page 30 of 34
Foltion, N., & Elfstrom, G. (1986). Military Ethics: Guidelines for Peace and war.
Boston, London, and Henley: Ruthledge & Kegan
Government of Canada (GC), (2001) The Canadian way in the 21st century. Ottawa,
Ont: Prime Minister Office (PMO).
http://pm.gc.ca/default.asp?Language=E&Page=keyinitiatives&Sub=TheCanadia
nWayinthestCen.html
Gourevitch, P., (1998). [Excerpted from chapter 11]. We wish to inform you that
tomorrow we will be killed with our families. Farrar, Straus & Giroux, Inc.
Available http://www.pbs.org/wgbh/pages/frontline/shows/evil/
Graham, G., (1997). Ethics and International Relations. Cambridge: Blackwell
Publishers Inc.
Hare, R.M., (1981). Moral thinking . Oxford: Clarendon Press, 105.
Hasmi , H. Sohail, & Nardin, Terry (Ed.). (1996). Interpreting Islamic Ethics. Princeton:
Princeton University Press.
Huntington, Samuel, P., (1992, autumn). New contingencies, Old rules. Joint Forces
Quarterly.
Isaak, Jeffrey, (1998). Democracy in Dark Times. New York: Cornell University Press.
Kant, Immanuel, (1983). Perpetual peace and other essays. Translated by T. Humphrey.
IN: Hackett.
Keane, Fergal & Destexhe, Alain. Rwanda: A historical chronology. Keegan, J., (1993). An history of warfare. London: Hutchinson.
Lackey, D., (1989). The ethics of war and peace. New Jersey: Prentice Hall.
Page 31 of 34
Lacroix, W.L., (1988) War and international ethics: Tradition and today. New York:
University Press of America.
La Hague: The International Court of Justice. General Information: The Court at a
Glance. 2001, March 26.
http://www.icj-ij.org/icjwww/igeneralinformation/icjgnnot.html
Leslie, J., (1996). The end of the world: The science and ethics of human extinction.
New York: Routledge.
Locke, Hume, Rousseau, (1962). Essays on Social Contract. New York; Oxford
University Press.
Loeterman, Ben & Robinson, Mike, dir. Triumph of evil. PBS Video, 1999.
McMahan, & Nardin Terry (Ed.). (1996). The ethics of war & peace: Realism, Morality,
and war. Princeton: Princeton University Press.
Nuttal, J., & Rosenthal, J. H. (Ed), (1993). Ethics and international affairs: Polity. (2nd
ed.). Washington D.C.: George Town University Press.
O’Brien, W.V. (1981). The conduct of a just an limited war. New York: Praeger.
One World, Frequently Asked Questions about IHL. What treaties make up international
law? http://nt.oneworld.org/cfdocs/icrc/anyfs.cfm?pagepath=pages/page1232.htm
Orend, Brian, (2000). War and international justice: A Kantian Perpective.Waterloo,
Ontario, Canada: Wilfrid Laurier University Press.
Pearsall, Judy, (Ed.). Oxford, Concise English Dictionary. (10th ed.) (1999). New York,
NY: Oxford University Press.
Page 32 of 34
Ralston Saul, J., (1995). The doubter’s companion: a dictionary of aggressive common
sense. Toronto: Penguin Books.
Ralston Saul, J., (1994). Voltaire’s Bastard: The dictatorship of reason in the west.
Toronto: Penguin Books.
Richard, B., (1979), A theory of the good and right. Oxford: Clarendon Press.
Stanford Encyclopedia of Phylosophy. 2000.
Thomas, L., (1995). Routledge philosophy guide book: Locke on government. New
York: Routledge, 13.
United Nations, Charter. http://www.un.org/aboutun/charter/index.html
http://www.unhchr.ch/html/menu3/b/p_genoci.htm
United Nations, The UN in Brief. http://www.un.org/Overview/brief.html
United Nations, Office of the United Nations High Commissioner for Human Rights.
(1997). Convention on the Prevention and Punishment of the Crime of Genocide:
Approved and proposed for signature and ratification or accession by General
Assembly resolution 260 A (III) of 9 December 1948 entry into force 12 January
1951, in accordance with article XIII. Geneva, Switzerland.
http://www.preventgenocide.org/law/convention/reservations/
UN General assembly. “36/103. Declaration on the Inadmissibility of Intervention and
Interference in the Internal Affairs of States.” Resolution 36-103: 91st plenary
meeting. 1981, December 9 http://www.un.org/documents/ga/res/36/a36r103.htm
Walzer, Michael, & Nardin, Terry (Ed.), (1996). War, Peace, and Jewish traditions.
Princeton: Princeton University Press.
Walzer, Micheal, (1995, Spring). The politics of rescue. Social research 62.
Page 33 of 34
Walzer, M , On just cause: Resorting to force. Canadian Journal of Political Science, 3,
XXXIII: 2000 (2001, April), 5 ,
http://www.wlu.ca/~wwwpress/jrls/cjps/issues/33.3/orend.html
Page 34 of 34
