Crisis in Kosovo: A Just Use of Force?
| DOI | 10.1111/1467-9256.00095 |
| Published date | 01 September 1999 |
| Date | 01 September 1999 |
| Author | Brian Orend |
| Subject Matter | Article |
Crisis in Kosovo: A Just
Use of Force?
Brian Orend
This article looks at NATO's armed interven-
(Walzer, 1977; Orend, forthcoming in Reis-
tion in Serbia from the perspective of inter-
man and Antoniou, 1994; Best, 1994).
national law, and especially just war theory.
After explaining the principles by which just
war theory permits armed intervention, the
An objection
crisis in Kosovo is used as a fascinating and
relevant case study.
Perhaps it will be asked: why not simply refer
to the current body of international law itself,
The greatest diculty in the right of nations
and not some obscure piece of political
has to do precisely with right during war; it
theory? The answer is that the current law on
is dicult even to form a concept of this or
armed intervention is extremely unsettled,
to think of law in this lawless state without
and so will not help us reach our goal of
contradicting oneself. . .
evaluating NATO action vis-aÁ-vis clear, con-
Immanuel Kant (1995 [1795], p. 117)
sistent and defensible principles. When one is
apprised of what the current law on armed
NATO's use of armed force against Serbia
intervention is, one is not surprised to hear
raises fascinating political questions. Was it a
all the wild claims and counter-claims about
justi®ed act of humanitarian intervention or
the legality of NATO's action against Serbia.
illegitimate aggression against a sovereign
On the one hand, Article 2(4) of the UN
nation? Although the operation is not over,
Charter declares that states 'shall refrain' from
and some evidence remains unclear, it is pos-
intervening in the internal aairs of others.
sible to re¯ect substantively on these ques-
And this is one of the mildest expressions of
tions.
the legal norm of non-intervention. On the
The best aid to re¯ection here is just war
other hand, the UN Security Council has
theory, which is the most comprehensive and
authorised recent armed interventions in
in¯uential perspective on the ethics of war
Somalia and Bosnia. Presumably the Security
and peace. It oers a concise set of criteria
Council did not violate international law when
that states must satisfy if their use of armed
it did so, for it is authorised by Articles 39±42
force is to be morally grounded. Most of the
of the same Charter to decide when the use
international laws of armed con¯ict, such as
of international armed force is permissible.
the Hague and Geneva Conventions, were
Which Articles carry greater weight? Experts
®rst devised and defended by just war theor-
are divided. The clearest conclusion is that
ists. The most prominent contemporary
there exists a strong legal presumption
exponent of just war theory is Michael Walzer
against armed intervention, yet there are also
Brian Orend, University of Waterloo, Canada
# Political Studies Association 1999. Published by Blackwell Publishers, 108 Cowley Road, Oxford OX4 1JF, UK
and 350 Main Street, Malden, MA 02148, USA.
125
Crisis in Kosovo: A Just Use of Force? . Orend
Politics (1999) 19(3) pp. 125±130
some permissive precedents. These pre-
we all have to basic human dignity and to the
cedents, however, are de®ned more by raw
objects of vital human need. The human
political choice than by conformity to ®rm
rights most broadly endorsed are those to
moral principle (Regan, 1996, 179±211).
life, liberty and subsistence, for instance as
enshrined in the UN's Universal Declaration
Rules for a just armed
and subsequent international Covenants
(Nickel, 1987; Shue, 1980).
intervention
The notion here is that if states violate
human rights, they forfeit their state rights.
The ®rst principle of just war theory is that,
States that violate human rights are illegiti-
sometimes, states can have moral justi®cation
mate; some contend that such states are
for resorting to armed force (Orend, forth-
`internal aggressors' who enjoy non-inter-
coming: b). The resort to armed intervention
ference only at the discretion of legitimate
against a sovereign country is just, in terms of
states. Following John Rawls, we might estab-
the theory, only if the intervenor, whether
lish criteria of minimal justice (MJ) that a
one state or several, ful®ls each of the six cri-
state must ful®l if it is to be entitled to state
teria which follow.
rights: MJ1 ± it is able to rule its people in
First, the intervenor must have a just cause.
accord with law and order; MJ2 ± it provides
The key principle is the vindication of funda-
its people with secure access to the objects
mental rights and the protection of those
of their human rights;...
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