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Josef Bordat: Intervention and Prosecution in Times of War and Terror. On the Reform of the International Public Law.


After the collapse of the bipolar world order (1989/91), many military conflicts broke out in the destabilized and deeply changing world, mostly with an ethnical background, like in former Yugoslavia. Due to this fact the focus within the concept of war has changed from the aggression of sovereign states to military violence, carried out in ethnic conflicts by non-state groups.

The attempts to reform the international public law correspond to this change as recent proposals like the report of the International Commission on Intervention and State Sovereignty (ICISS) show. At the same time the human rights of the General Declaration (1948), that only could reach a world-wide meaning as a moral orientation, shall be strengthened by the prosecution of “crimes against humanity” according to the Roman Statute (1998) of the International Criminal Court (ICC).

I will analyze both developments in the following paper.

The military reaction: The right and the duty to intervene

In the debate about the question if, when and how humanitarian interventions can afford peace military action is ambitionally taken into consideration due to cases of failed or rogue states in which ethnic conflict let to violence and the harm of human rights. In spite of the non-intervention principle of the UN-Charta (art. 2, 7), which also puts any military violence out of the question (art. 2, 4), the so called “humanitarian intervention” became a paradigm of the “just war” in a new world order, deeply influenced by the non-intervention in Rwanda (1994). So both the NATO (in Kosovo, 1999) and the US (in Iraq, 2003) reclaimed a “moral right” to intervene. And in the case of Kosovo it was regarded so even by critical observers like Jurgen Habermas. I cannot discuss the argument here, but I just want to stress that there was a broad consensus in German politics and in the German public towards the participation of the Bundeswehr in the Kosovo. Nevertheless, there is a contradiction between existing international public law and these practice of military intervention.

One attempt to solve the problem theoretically is the report The Responsibility To Protect of the Canadian government, worked out by the International Commission on Intervention and State Sovereignty (ICISS) and edited by the International Development Research Center (IDRC). The report of the ICISS was published immediately after the terrorist attacks of September 11th, 2001 on aims in New York and Washington D.C., exactly in December 2001. But the main part of the work was already done at this time, the group had met in November 2000 for the first time. So the commission, led by its co-chairs Gareth Evans and Mohamed Sahnoun, not only dealed with the “war on terror”, but with the question of humanitarian intervention generally, on the background of the experiences in the Rwanda genocide and the Kosovo war, although the terrorist attacks for sure influenced the commission members deeply, as the statement right at the beginning points out: “This report is about the so-called ,right of humanitarian intervention’: the question of when, if ever, it is appropriate for states to take coercive – and in particular military – action, against another state for the purpose of protecting people at risk in that other state. At least until the horrifying events of 11 September 2001 brought to center stage the international response to terrorism, the issue of intervention for human protection purposes has been seen as one of the most controversial and difficult of all international relations questions.” (IDRC: 2001, p. VII). Than the historical motivation and the concrete materializing of the topic and the aim follows: “With the end of the Cold War, it became a live issue as never before. Many calls for intervention have been made over the last decade – some of them answered and some of them ignored. But there continues to be disagreement as to whether, if there is a right of intervention, how and when it should be exercised, and under whose authority. ” (IDRC: 2001, p. VII).

So the question is: When are military interventions permitted, and if they are carried out, how and under whose leadership? With these question the commission puts itself into the tradition of the bellum iustum-topos, because firstly the ius ad bellum, secondly the ius in bello is addressed. By analogy with the historical recta intentio the report summarizes the “right intention” in the following basic principle: “The primary purpose of the intervention, whatever other motives intervening states may have, must be to halt or avert human suffering. Right intention is better assured with multilateral operations, clearly supported by regional opinion and the victims concerned.” (IDRC: 2001, p. XII).

Only in the case of “serious and irreparable harm occurring to human beings, or imminently likely to occur” with “large scale loss of life, actual or apprehended, with genocidal intent or not” military intervention is justified (IDRC: 2001, p. XII). That does as well mean, pre-emptive military action is not justified without an evident prove for upcoming harm of human rights. But pre-emptive military action exactly is, what nowadays is firm part of the US-National Securtity Strategy (NSS) of 2002: “[T]he United States will, if necessary, act pre-emptively.” (US-Government: 2002, ch. V, p. 15). What “necessary” in this context does mean, the world was forced to observe in march 2003, when the USA and some European allies like Great Britain, Spain and Poland, attacked the Iraq to ensure, that Saddam Hussein can not make use of the weapons of mass-destruction, he reputed has got.

But if there is evidence for the harm of human beings likely to occur or occurring, the just cause determines a duty to act, if the concerned state is not able (“failed state”) or willing (“rogue state”) to do so. The military action has to be carried out even against reservations roused by the UN-Charter’s principles sovereignty (art. 2, 1), non-violence (art. 2, 4) and non-intervention (art. 2, 7): “The principle of non-intervention yields to the international responsibility to protect.” (IDRC: 2001, p. XI). So the humanitarian intervention in such cases is not only a possibility to be taken into consideration, but a responsibility, from which a duty follows, given that the international community is willing to take its role in the globalized world seriously.

One point is not settled yet: Who can lead the international community in its effort to fulfill the duty described? The answer is quiet clear: Only the United Nations can play the part of the legitima potestas (“legitimate authority”) today: “The UN, whatever arguments may persist about the meaning and scope of various Charter provisions, is unquestionably the principal institution for building, consolidating and using the authority of the international community.” (IDRC: 2001, p. 48). That means: “There is no better or more appropriate body than the United Nations Security Council to authorize military intervention for human protection purposes.” (IDRC: 2001, p. XII).

Even under a mandate of the UN Security Council humanitarian interventions only may be tackled as ultima ratio (“last resort”): “Military intervention can only be justified when every non-military option for the prevention or peaceful resolution of the crisis has been explored, with reasonable grounds for believing lesser measures would not have succeeded.” (IDRC: 2001, p. XII).

Also the ius in bello has to be respected. The nonobservance of the debitus modus during the military intervention would run contrary to its just reasons. If the military intervention causes cruelties worse than those, that made the war necessary, it can not be called a right solution, the ICISS insists in proportionality, namely in “proportional means” (“The scale, duration and intensity of the planned military intervention should be the minimum necessary to secure the defined human protection objective.” IDRC: 2001, p. XII.) and “reasonable prospects” (“There must be a reasonable chance of success in halting or averting the suffering which has justified the intervention, with the consequences of action not likely to be worse than the consequences of inaction.” IDRC: 2001, p. XII.).

The decision whether proportionality and discrimination are ensured or not, should be made under inclusion of such Non Governmental Organizations (NGO), that are involved directly. They have the empirical data and the experience which the decision-makers of the Security Council do not have in every case. Their judgment has to be taken seriously into consideration, in order to avoid difficulties as occurred during the operation “Restore Hope” in Somalia (1992). In this respect it is consistent, when the ICISS demands a “maximum possible coordination with humanitarian organizations” (IDRC: 2001, p. XIII).

According to the ICISS, the responsibility of the world community is, however, not only a reactive one, carried out by military means (“responsibility to react”), but also it extends on the political and economic prevention (“responsibility to prevent”) and the post-war reconstruction (“responsibility to rebuild”), a quite decisive expansion of the intervention concept.

The responsibility to prevent means “to address both the root causes and direct causes of internal conflict and other man-made crises putting populations at risk.” (IDRC: 2001, p. XI). The ICISS does not leave any doubt concerning the importance of that task: “Prevention is the single most important dimension of the responsibility to protect: prevention options should always be exhausted before intervention is contemplated, and more commitment and resources must be devoted to it.” (IDRC: 2001, p. XI).

The obtained armistice after a military intervention, that in some cases becomes necessary despite of all civil prevention, is not yet a stable peace. The mission is not completed when the violence is stopped by the pressure of military superiority. It consists in the reconstruction of the infrastructure but also of the broken confidence into the government and the authorities. That means the duty to intervene covers the responsibility to rebuild, that is defined by the commission as the duty “to provide, particularly after a military intervention, full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert” (IDRC: 2001, p. XI).

Morally, the decision for a humanitarian intervention still remains an extremely difficult. The more important are clear principles of what has to be considered as “just” and what must be judged as “unjust” in relation to a contemporary ius ad bellum interventionis resp. ius in bello interventionis, because it is finally necessary to do a balancing act between on the one hand the paradox of a “global war for peace” without any clear perspective and on the other hand the certainty for criminal regimes, dictatorships and terrorist groups to harm human rights with cruelty under the protection of the non-intervention-principle fixed in the UN-Charter.

In order to save the world from falling into the barbarism of both extremes, the civilized world community must grow together. The United Nations must become in fact strong enough to play the role of a contemporary auctoritas principis. The announced reform therefore has to improve the organizational conditions, especially by an enlargement of the Security Council and a concerted initiative for an advanced juridical procedure, that in future cases will structure and rule the debate about the decision for or against a humanitarian intervention.

The sovereignty of the states has to be reconsidered and reduced to the aspect of responsibility. In case of failure, sovereignty must not be an obstacle for multilateral action mandated by the United Nations as the subordinating power, that better soon than later is able to carry out a “world domestic policy” in the name of humanity. This is the price to be paid for the real chance, if not of keeping “eternal peace”, so at least of putting an end to “new wars”.

So need is for a reform of the international public law to settle a right to intervene just in this sense as a right consequence of the changes and erosions caused by ethnic conflicts and the implications to be made from the “new wars”, in order to prevent both the harm of human rights and unilateralist acts against it.

Further need insists in the regard, that these harm of human rights has to be prosecuted world-wide and to be put under legal punishment.

The legal reaction: The right and the duty to prosecute

This thought finds its expression in the current venture to the International Criminal Court (ICC). The Roman Statute (1998) of the ICC as the second attempt to deal with the problem of “new wars” closes an obvious gap between the morality of human rights and the legality of war crimes. With the statute of the ICC violations of human rights can always and everywhere be punished in periods of “war” and “peace”, for the ICC is constituted as a permanent court, departed to the criminal courts for former Yugoslavia and for Rwanda, which are ad hoc-courts as well as the historical example, the Nuremberg criminal tribunal. With this permanent institution for justice and peace a long-cherished wish is fulfilled.

The ICC statute includes regulations in13 chapter and 128 articles, dealing with the crime of genocide, crimes against humanity and war crimes. For these crimes the statute contains almost 70 individual facts of criminal offences. The definition of the genocide corresponds to the regulations in article 2 of the Genocide Convention (1948). The crime of genocide, just like crimes against humanity, can also be pursued if it was committed outside an armed conflict. War crimes are included, too, if they are committed in inner-state conflicts, that means, the problem of “new war” is taken into consideration. So, for the first time in history a legal approach of international public law covers all possible manners of violating elementary human rights as crimes and lists them precisely with several facts of criminal offences.

However, the ICC statute does not contain any specific punishment connected to each criminal offence. The court can impose the following punishments on a person who has been convicted of a crime mentioned in the statute: prison sentence until a maximum duration of 30 years, a lifelong prison sentence, a fine and the confiscation of earnings and property. Furthermore the criminal responsibility of individual persons is an important point of the statute, important to know in this context is the fact, that there are no exception regulations for active office or mandate holder like members of government or parliament (art. 27, 2).

A clear signal goes out from Rome: In the 21st century the impunity of worst violations of human rights shall have an end world-wide. No other development in international public law is focused so much on the protect on of the human rights by the guaranteed prosecution of “crimes against humanity”. The ICC-Statute so far is the latest institutional step of a basic transformation of the modern international public law from non-intervention to protection and therefore matches exactly the aims of the ICISS. Hence it would be an important act, if the USA and other states like China, India and Israel ratified the Roman Statute of the ICC and with that helped the court to get the meaning which is due to it.


The “new war” in context of ethnic conflicts can only be encountered with a new international public law that forms a “new peace order” by global justice and military decision. The new forms of violence represent challenges for the international community, that need a global system of jurisdiction and execution, both a court like the ICC and a mechanism of intervention in cases of necessity to provide the legal and military framework in which the United Nations are able to counter ethnic conflicts effectively.

Links / Hintergrund

Der Artikel folgt dem Vortrag von Josef Bordat anläßlich der Societas Ethica Conference at Oxford vom 23.-27. August 2006, zum Thema "Political Ethics and International Order/ Politische Ethik und Internationale Ordnung".




Abstract des Vortrags (deutsch)


Der Autor

Josef Bordat (1972) lebt und arbeitet in Berlin. Nach einem Studium in Wirtschaftsingenieurwesen an der TU Berlin (Diplom), einem Lehr- und Forschungsaufenthalt an der Universidad Nacional de San Agustín in Arequipa in Perú und einem Magisterstudium in Philosophie an der TU Berlin promovierte er über "Gerechtigkeit und Wohlwollen. Das Völkerrechtskonzept des Bartolomé de Las Casas." - Neben Übersetzungs-, Vortrags- und Publikationstätigkeiten ist er Mitherausgeber des "International Journal of the Humanities" und Mitarbeiter am Schwerpunktthema "Transformation der Kultur. Kulturelle Veränderungen im 21. Jahrhundert" des Marburger Forums.

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Texte zu Kunst und Philosophie
ISSN 1437-3777