Ethics and Intervention: the ‘Humanitarian Exception’ and the Problem of Abuse in the Case of Iraq
| Date | 01 March 2004 |
| DOI | 10.1177/0022343304041777 |
| Author | Alex J. Bellamy |
| Published date | 01 March 2004 |
| Subject Matter | Journal Article |
131
Introduction
When is it morally justifiable to use force to
change an oppressive foreign regime? On 20
March 2003, the United States and its allies
(principally the UK and Australia) began
Operation Iraqi Freedom with a series of
missile attacks on Baghdad, aimed at
‘decapi-tating’ the Iraqi leadership. Around
three weeks later, US troops entered
Baghdad, taking control of the city in the
following two days. It was not until 2 May,
however, that George W. Bush formally
announced the coalition’s victory, aboard the
USS Abraham Lincoln. According to the
President, ‘the Battle of Iraq is one victory
in a war on terror that began on 11 Sep-
tember 2001, and still goes on’ (Washington
Post, 2 May 2003). As well as eliminating
the ‘threat’ posed to the United States and
its allies by Iraq, the coalition’s leaders
insisted that the war would also improve the
lives of the Iraqi people by permitting the
delivery of humanitarian assistance and
© 2004 Journal of Peace Research,
vol. 41, no. 2, 2004, pp. 131–147
Sage Publications (London, Thousand Oaks, CA
and New Delhi) www.sagepublications.com
DOI: 10.1177/0022343304041777 ISSN 0022-3433
Ethics and Intervention: The ‘Humanitarian
Exception’ and the Problem of Abuse in the Case
of Iraq*
ALEX J. BELLAMY
School of Political Science and International Studies, University of
Queensland
This article investigates the ethics of intervention and explores the decision to invade Iraq. It begins by
arguing that while positive international law provides an important framework for understanding and
debating the legitimacy of war, it does not cover the full spectrum of moral reasoning on issues of war
and peace. To that end, after briefly discussing the two primary legal justifications for war (implied UN
authorization and pre-emptive self-defence), and finding them wanting, it asks whether there is a moral
‘humanitarian exception’ to this rule grounded in the ‘just war’ tradition. The article argues that two
aspects of the broad tradition could be used to make a humanitarian case for war: the ‘holy war’ tra-
dition and classical just war thinking based on natural law. The former it finds problematic, while the
latter it argues provides a moral space to justify the use of force to halt gross breaches of natural law.
Although such an approach may provide a moral justification for war, it also opens the door to abuse.
It was this very problem that legal positivism from Vattel onwards was designed to address. As a result,
the article argues that natural law and legal positivist arguments should be understood as complemen-
tary sets of ideas whose sometimes competing claims must be balanced in relation to particular cases.
Therefore, although natural law may open a space for justifying the invasion of Iraq on humanitarian
terms, legal positivism strictly limits that right. Ignoring this latter fact, as happened in the Iraq case,
opens the door to abuse.
* I am grateful to the editor and anonymous reviewers of
Journal of Peace Research for their very helpful comments
on an earlier draft of this article. This argument was first
presented at the University of Queensland symposium on
‘Ethics and Foreign Policy’, 5–7 July 2003, and I am
grateful to the participants for their comments. Corres-
pondence: a.bellamy@mailbox.uq.edu.au.
90T 01 041777 (ds) 3/2/04 1:10 pm Page 131
creating an environment where Iraqis could
determine their own fate peacefully and
democratically (Blair & Bush, 2003). At the
time of writing, authoritative Western
accounts suggest that between 5,500 and
7,500 civilians had been killed by coalition
forces.1It is likely, however, that the actual
number of civilian casualties was consider-
ably higher than this.
This article investigates whether, and
when, using force to remove a foreign govern-
ment is morally justifiable. It uses the case of
Iraq to assess whether conservative interpre-
tations of positive international law can be
overridden by the moral right to uphold
elements of natural law that are knowable to
all.2I agree with some of the war’s advocates
in arguing that conservative interpretations of
positive international law do not cover the
full spectrum of moral reasoning on matters
of war and peace (Sofaer, 2003). Positive
international law only partly reflects Western
traditions of moral reasoning about war that
are bound together in the multifaceted ‘just
war’ tradition. Another important element of
that tradition is natural law, which, among
other things, insists that sovereigns have a
right to use force to uphold the good of the
human community, particularly in cases
when unjust injuries are inflicted on others
(Grotius, 1925: Book II, chs 20, 25).
However, although this ‘humanitarian excep-
tion’ (rooted in natural law) to positive law’s
ban on the use of force is morally appealing,
the Iraq case demonstrates the dangers of
‘abuse’. ‘Abuse’ refers to cases where moral
arguments are used to justify a war that is not
primarily motivated by the moral concerns
espoused, but by the short-term interests of
those instigating violence. When natural law
is taken to overrule positive law as a general
principle, the consequence is often a more
disorderly international society with a much
higher incidence of war. Thus, within the just
war tradition, theological and secular scholars
alike feared that sovereigns might make use of
moral justifications for endeavours that were
anything but just. As a result, I argue that
natural law and positive law should not be
understood as separate traditions but as com-
plementary sets of ideas, the occasionally
competing claims of which must be balanced
in particular cases. The task that confronts us
in a case like Iraq is therefore not one of
deciding whether the responsibility to uphold
natural law demands the derogation of
positive law, or vice versa, but to find the
appropriate balance between the two sets of
claims.
At this point, it is important to briefly
discuss the relationship between natural law
and positive law and the way that they shape
moral reasoning in international society.
Until approximately 150 years ago, ‘inter-
national law’ was framed by the natural law
tradition, largely because there was no world
sovereign to create and enforce global laws.
From Thomas Aquinas (1225–74) to
Grotius (1583–1645), the theory and
practice of the law of nations held that
proper behaviour in international politics is
governed by certain natural rights that accrue
simply from being human, and are knowable
to all through the exercise of moral reason-
ing. From the mid-19th century onwards,
however, international law has become
increasingly dominated by legal positivism –
essentially, the belief that law is made up of
what is written in treaties and the actual
practices of states (see Hall, 2001). Among
the other flaws of natural law, jurists held
that it gave sovereigns a wide remit for
judging the justness of their actions for
themselves, thus providing a virtual carte
blanche for sovereigns to wage war, some-
times offering nothing more that raison d’état
journal of PEACE RESEARCH volume 41 / number 2 / march 2004
132
1The most comprehensive civilian casualty monitor can be
found at http://www.iraqbodycount.org. It is constantly
updated.
2In this article, I explore the question of whether natural
law permits a right of intervention. Whether or not there
is a moral duty to intervene in particular cases is a separate
question that is not explored in this article.
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