Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, March 23, 2011

Does military intervention in Libya comply with just war doctrine?

Thanks to Rick for flagging Michael Walzer's criticism of the West's military intervention in Libya.  I agree with Walzer's concerns, but I wonder if there is a way to ground the case against the intervention in terms sounding directly in the Church's just war doctrine.  For me at least, it was relatively easy to explain my opposition to the Bush administration's invasion of Iraq: there was no showing that a preemptive war was necessitated by "imminent" grave harm to the U.S., and the war's rationale (at least as stated by President Bush) seemed to place a much greater value on American lives than on Iraqi lives.  I also oppose the Obama administration's actions in Libya, but I have a hard time placing "incoherence" within just war doctrine.  Here's para. 2309 of the Catechism:

The strict conditions for legitimate defense by military force require rigorous consideration. The gravity of such a decision makes it subject to rigorous conditions of moral legitimacy. At one and the same time:

- the damage inflicted by the aggressor on the nation or community of nations must be lasting, grave, and certain;

- all other means of putting an end to it must have been shown to be impractical or ineffective;

- there must be serious prospects of success;

- the use of arms must not produce evils and disorders graver than the evil to be eliminated. The power of modem means of destruction weighs very heavily in evaluating this condition.

These are the traditional elements enumerated in what is called the "just war" doctrine.

The evaluation of these conditions for moral legitimacy belongs to the prudential judgment of those who have responsibility for the common good.

If the aim of the intervention is humanitarian, doesn't it fail the "serious prospects for success" prong by merely extending the conflict?  Does just war doctrine speak to this conflict in other ways, or are these factors largely superfluous to a serious moral evaluation of the intervention?


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I see two questions: (1) Is the action just?; and (2) were proper procedures [congressional authorization] followed? It seems that the more process one engages in -- get the people's approval via Congress -- the more likely it is that a full airing of the moral legitimacy question will occur.

Posted by: DFoley | Mar 23, 2011 1:50:33 PM

My concern is similar to DFoley's concern - the President neither sought or received Congressional authorization for this action.

One of the old requirements of the just war doctrine is that a legitimate sovereign must decide to go to war. - E.g. - "...the authority of the sovereign by whose command the war is to be waged. For it is not the business of a private individual to declare war, because he can seek for redress of his rights from the tribunal of his superior." ST, II. ii. q. 40.

We have a government of separated powers, or in this case, power – the national sovereignty is shared by the President, Congress, and the Judiciary. Pres. Obama cannot commit troops without consulting Congress and obtaining a declaration of war or some sort of authorization.

As Justice Jackson noted in Youngstown Sheet and Tube v. Sawyer, 343 U. S. 579 (1952):

“When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, as an undivided whole, lacks power.” – Id. at 635-637.

Posted by: Jonathan | Mar 23, 2011 2:35:28 PM

"Humanitarian intervention" in philosophy of international law and legal theory as well as international law proper does not fall within the ambit of just war doctrine. There's two posts in favor of intervention at Crooked Timber by guest blogger Conor Foley (one needs to weed through the comment threads, but it's worth it): http://crookedtimber.org/2011/03/22/libya-the-case-for-intervention/ and

Prior to the UNSC Resolution 1973, I posted some of the pro and con arguments at the Ratio Juris blog as well as compiled a short list of the relevant literature on "humanitarian intervention," which few folks appear to have any deep acquaintance.

See: http://ratiojuris.blogspot.com/2011/02/humanitarian-ie-military-and-otherwise.html

Posted by: Patrick S. O'Donnell | Mar 23, 2011 6:23:03 PM

I failed to give the URL for the latest post at Ratio Juris on the pro & con arguments regarding humanitarian intervention: http://ratiojuris.blogspot.com/2011/03/humanitarian-ie-military-andor.html

Posted by: Patrick S. O'Donnell | Mar 23, 2011 6:26:13 PM

I might have said that one might of course look to just war doctrine (and I confess to being more interested in 'secular' just war ethics) for possible moral criteria applicable to humanitarian intervention,* one definition of the latter being "the use of force across state borders by a state (or group of states) aimed at ending widespread and grave violations of the human rights of persons other than its own citizens, without the permisssion of the government of the state within whose territory force is applied."

One might also note that the reasons for U.S. involvement in this particular case could, given recent events, apply equally to other states in the region, like Yemen and Bahrain.

As to the two previous concerns, one should read Michel Dorf's three posts at his blog:

http://www.dorfonlaw.org/2011/03/is-military-action-in-libya.html and


*See Brian Orend's discussion of just war doctrine in this regard here (2.1): http://plato.stanford.edu/entries/war/#2

Posted by: Patrick S. O'Donnell | Mar 23, 2011 6:45:45 PM

Re: "there must be serious prospects of success"

This of course applies to the envisaged war and thus is not applicable in the same way to the humanitarian intervention in which case "success" is, first, implied in the decision to embark on the venture in the first place (i.e., if the prospect of 'ending widespread and grave violations of the human rights of persons' was not likely, it would undercut the sui generis rationale for humanitarian intervention), and, secondly, at least in this case, would have to be tied to criteria gleaned from the language of the UNSC resolution itself.

Other principles seem more to the point: right intention, proper authority and public declaration, and last resort. Much of the current debate seems to hinge differing views of the precise motivation for humanitarian intervention, focusing in particular on the intentions of the U.S. apart or above the other participating state bodies and supportive organizations.

While we may reflect on the relevance of jus ad bellum principles to humanitarian intervention, perhaps the letter and spirit of jus in bello rules and norms of just war doctrine are equally applicable in the case of humanitarian intervention. Larry May has attempted to close the gap between the morality and legal rules of such conduct in his "minimalist" natural law account in War Crimes and Just War (2007).

Posted by: Patrick S. O'Donnell | Mar 24, 2011 1:23:42 AM

Thanks Patrick -- very helpful.

Posted by: rob vischer | Mar 24, 2011 10:40:21 AM

I'm not as well read on just war doctrine as I'd like to be, or have time to be, so thanks to Patrick O'Donnell for the links in humanitarian intervention. It always seemed to me that just war doctrine's classic framework omitted that entire category, so I'm eager to find time to read the linked material.

On a related but distinct variation, is there much work out there on the morality of internal rebellion? When is it valid for individuals or groups to take up arms against the king?

The connection, to me, is that inter-state just war theory is incomplete if it does not account for the legitimacy and humanitarian record of each state's government. It seems to do so in asking whether the intervenor is acting through proper authority (the Congress debate). But just war theory, as some render it, does not account adequately for the target country's governance, not just in the sense of humanitarian concerns, but in the sense of legitimacy. After all, many interventions are justified if invited by the valid sovereign, but that of course implicates asking WHO the sovereign is. What if we simply recognize the rebels as the government, and accept their invitation? That could get too cute, but what about intervention blessed by deposed/former exile govenments, e.g., Haiti, De Gaulle, Taiwan?

The internal rebelllion question seems to ask that by boiling it down to just the legitimacy question as a precursor. There, I struggle with carrying over the "chance of success" factor from classic just war. Warsaw Ghetto? Masada? At some point, fighting evil seems right even if the cause is hopeless. And if that is true intra-state, why is it true inter-state? If America did not exist, as the UK looked bleak against Hitler, was it time to surrender when the odds got too high?

Or are we all suffering under boundaries established by Aquinas or others in a world in which most or all kingdoms or empires were within a spectrum of better or worse, without the extremes we see today?

Posted by: curious and unsure | Mar 24, 2011 11:37:08 AM