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"New rules for new wars" international law and just war doctrine for irregular war.

This article traces the increasing pressures exerted upon international law and international institutions from two sources: the humanitarian military interventions (and failures to intervene) in the aftermath of the Cold War during the decade of the 1990s; and the "global war on terror This article is about U.S. actions, and those of other states, after September 11, 2001. For other conflicts, see Terrorism.

The War on Terror (also known as the War on Terrorism
" and wars of counterinsurgency coun·ter·in·sur·gen·cy  
Political and military strategy or action intended to oppose and forcefully suppress insurgency.

 and regime change fought during the first decade of the 21st century. Proposals for legal and institutional reform in response to these challenges emerge from two distinct and largely independent sources: a "publicist" or theoretical discussion among scholars in philosophy, law, and international relations international relations, study of the relations among states and other political and economic units in the international system. Particular areas of study within the field of international relations include diplomacy and diplomatic history, international law, ; and a formal or procedural discussion among diplomats and statesmen, both focusing upon what the latter group defines as a "responsibility to protect" (R2P R2P Right to Protect
R2P Request to Page
). This study coneludes with recommendations for reform of international humanitarian law International humanitarian law (IHL), also known as the law of war, the laws and customs of war or the law of armed conflict, is the legal corpus "comprised of the Geneva Conventions and the Hague Conventions, as well as subsequent treaties, case law,  (or Law of Armed Conflict See: law of war. ), and for reformulations of professional ethics professional ethics,
n the rules governing the conduct, transactions, and relationships within a profession and among its publics.

professional ethics liability,
n 1.
 and professional military education in allied militaries, both of which will be required to fully address the new challenges of "irregular" or hybrid war.








The new era of "irregular warfare" (IW) is thought to consist primarily of the substantial changes and challenges in military tactics and military technology--the so-called "revolution in military affairs The military concept of Revolution in Military Affairs (RMA) is a theory about the future of warfare, often connected to technological and organizational recommendations for change in the United States military and others. " (RMA (RealMedia Architecture) See RealMedia. ). (1) On the one hand, asymmetric warfare Asymmetric warfare originally referred to war between two or more actors or groups whose relative power differs significantly. Contemporary military thinkers tend to broaden this to include asymmetry of strategy or tactics; today "asymmetric warfare" can describe a military , including a variety of types of terrorist attacks involving rudimentary technology, has largely replaced the massive confrontations between opposing uniformed combat troops employing high-tech and heavy-platform weaponry that previously characterized conventional war. (2) On the other, new kinds of "emerging technologies," including military robotics and unmanned weapons platforms, non-lethal weapons, and cyber-attacks, ever-increasingly constitute the tactical countermeasures adopted by established nations in response. (3)

The era of irregular or unconventional war also, however, requires another revolution--a cultural sea-change that has been much harder to identify, and much slower in coming. This radical cultural shift entails reconceptualizing the nature and purpose of war-fighting, and of the war-fighter. This relatively neglected dimension of RMA requires new thinking about the role of military force in international relations, as well as about how nations raise, equip, train, and, most especially, about the ends for which these nations ultimately deploy their military forces. The new era of IW requires that military personnel develop a radically altered vision of their own roles as warriors and peacekeepers, as well as appropriate recognition of the new demands IW imposes upon the requisite expertise, knowledge, and limits of acceptable conduct for members of the profession of arms. Finally, the new era of IW requires that those institutions and personnel who educate and train future warriors be much more effective in helping them understand and come to terms with their new identity, the new roles they will be expected to play in the international arena, and the new canons of professional conduct appropriate to those roles.

This essay traces two parallel and independent discussions of the nature of this cultural transformation. The first, which I have attempted to document over the past two decades, consists in the discussion among philosophers, ethicists, political theorists, and international relations scholars concerning the evolution of "just war" doctrine. (4) These discussions exhibit what might be termed "theoretical authority," as contrasted with the "formal" or procedural authority inherent in a second, distinct discussion among diplomats and statesmen regarding the need for a more robust understanding of the role of military force in international affairs Noun 1. international affairs - affairs between nations; "you can't really keep up with world affairs by watching television"
world affairs

affairs - transactions of professional or public interest; "news of current affairs"; "great affairs of state"
. In the aftermath of Rwanda and Kosovo in particular, this second, distinct category of deliberation reflected a widely held conviction that, though the international community had not done nearly enough in Rwanda, we might well have done as much harm as good in Kosovo. (5)

II. FIN DE SIECLE Fin` de sie´cle

1. Lit., end of the century; - mostly used adjectively in English to signify: belonging to, or characteristic of, the close of the 19th century.

Shortly after the fall of the Berlin Wall in 1989, during what was heralded as the end of the Cold War in the early 1990s, it became increasingly clear to many of those working in military ethics, international law, and just war doctrine that conventional thinking about the ways in which national military forces were trained and deployed had to be radically reconceived. (6) The impetus for this re-conceptualization came from many quarters, some more well-grounded (in hindsight) than others. The era of superpower nuclear rivalry seemed at an end, and the era of conventional nation-state conflict diminished in importance. Especially in the aftermath of the short and decisive first Gulf War in 1991, it appeared increasingly unlikely that any "rogue nation Noun 1. rogue nation - a state that does not respect other states in its international actions
renegade state, rogue state

body politic, country, nation, res publica, commonwealth, state, land - a politically organized body of people under a single
" would again undertake large-scale conventional military aggression against a neighbor without fear of an overwhelming response by the international community collectively. (7)

Sadly, the euphoria of what was then triumphantly described by U.S. President George H.W. Bush as the emergence of a "new world order," (8) was supplanted by the growing recognition that the new order consisted largely of a new era of conflict, one that more typically involved the sorts of actions that militaries had hitherto undertaken only rarely and reluctantly. Instead of a stable world order, with violent conflict deterred by the collectivity of nations committed to an orderly rule of law, we had instead entered the era of asymmetric war, humanitarian intervention Humanitarian intervention is a principle in international customary law, referred to the armed interference in a sovereign state by another with the stated objective of ending or reducing suffering within the first state. , peacekeeping, and stability operations--the sorts of conflicts that, at the time, were grouped variously under headings like "police actions" or MOOTW MOOTW Military Operations Other Than War
MOOTW Messier Object of the Week
 ("military operations other than war Operations that encompass the use of military capabilities across the range of military operations short of war. These military actions can be applied to complement any combination of the other instruments of national power and occur before, during, and after war. Also called MOOTW. "). (9)

The varied, improvised, highly inconsistent, and inchoate Imperfect; partial; unfinished; begun, but not completed; as in a contract not executed by all the parties.

inchoate adj. or adv. referring to something which has begun but has not been completed, either an activity or some object which is
 experiences of military interventions for humanitarian or law enforcement and peacekeeping purposes in Somalia, Haiti, Bosnia, East Timor East Timor (tē`môr) or Timor-Leste (–lĕsht), Tetum Timor Lorosae, republic, officially Democratic Republic of Timor-Leste (2002 est. pop. , and, towards the end of that decade, Kosovo, contributed to this realization. Even more telling, however, was the dramatic failure of humanitarian military intervention The deliberate act of a nation or a group of nations to introduce its military forces into the course of an existing controversy.  by the United Nations (U.N.) in Rwanda.

The questions centered no longer on legal or moral permissions or the legal license to carry out conventional military campaigns of the sort that current international law pertaining to self-defense and collective security exclusively addresses. Instead, the even more troubling question in these new cases was, when should member-nations in the so-called "international community" recognize an obligation to come to the aid of vulnerable nations or victimized populations? (l0) What sets of conditions or criteria would constitute, for example, not so much a "just cause" for going to war, as an overriding obligation to come to the aid of vulnerable victims? And, upon whom would such an obligation fall? (11)

The answers to such questions were far from clear then, and remain so even today. Especially after the Rwanda debacle, commentators invoked the image of the Kitty Genovese Catherine Susan Genovese (July 7, 1935[1] — March 13, 1964), commonly known as Kitty Genovese, was a New York City woman who was stabbed to death near her home in the Kew Gardens section of Queens, New York.  murder in New York City New York City: see New York, city.
New York City

City (pop., 2000: 8,008,278), southeastern New York, at the mouth of the Hudson River. The largest city in the U.S.
 in the 1960s and wondered, by analogy, what sort of "community" the international community was, if its member-states consistently turned a blind and uncaring eye away from such tragic and seemingly avoidable cases of genocide. (12) Professor Stanley Hoffman, Harvard University Harvard University, mainly at Cambridge, Mass., including Harvard College, the oldest American college. Harvard College

Harvard College, originally for men, was founded in 1636 with a grant from the General Court of the Massachusetts Bay Colony.
, first began discussing criteria for what he termed "jus ad interventionem" in the mid-1990s. (13) Hoffman analogized to traditional jus ad bellum Jus ad bellum (Latin for "Justice to War"; see also Just War Theory) are a set of criteria that are consulted before engaging in war, in order to determine whether entering into war is justifiable. , in which he advocated primarily the legal right of individual nations and coalitions to intervene militarily, or otherwise override the prevailing legal principle of national sovereignty, in the face of massive abuses of human rights. (14)

While his learned analysis of the pending collapse of the traditional nation-state system of sovereignty was respectable, Hoffman's response was not quite rightly put. Instead, my own term at the time was jus ad pacem, stressing the peace-restoring intentions of military intervention, and discussing not the right, but the obligation to undertake such missions, even if reluctantly, in defense of the most basic human rights of vulnerable peoples. (15) Subsequently, the U.S. Secretary of State, Madeline K. Albright, long under intense criticism for her unwillingness to recognize such an obligation during the Rwandan genocide The Rwandan Genocide was the 1994 mass killing of hundreds of thousands of ethnic Tutsis and moderate Hutu sympathizers in Rwanda and was the largest atrocity during the Rwandan Civil War. , began to argue for replacing the so-called Weinberger-Powell doctrine (16) governing the resort to military force in America, with what we briefly came to call the "Albright Doctrine." (17) American military might, she asserted, would henceforth be at the disposal of the U.N. and the international community to aid desperate peoples and nations ravaged by state failure and genocide. (18)

Simultaneously, the eminent just war theorist, Michael Walzer Michael Walzer (3 March 1935) is one of America's leading political philosophers. Currently, he is a professor at the Institute for Advanced Study in Princeton, New Jersey and editor of Dissent, a left-wing quarterly of politics and culture. , argued in the preface to the third edition of Just and Unjust Wars that, on the one hand, while nothing concerning conventional war had changed sufficiently to prompt the re-writing or supervening Unforeseen, intervening, an additional event or cause.

A supervening cause is an event that operates independently of anything else and becomes the proximate cause of an accident.
 of that classic work, on the other hand, everything else pertaining to justifiable war had changed. (19) In particular, he admitted that humanitarian military intervention--something viewed by him in that earlier work with some suspicion as a marginal military concern, undertaken by traditional nation-states with decidedly mixed motives--now properly occupied center stage in the debate over just war doctrine at the dawn of the new millennium. (20)

My own concern continued to be that these conversations all remained focused upon permissions to intervene, or the presumed legal right to intervene or override national sovereignty for humanitarian purposes. This did not seem adequately to address, at the time, the dilemmas faced in Rwanda, Bosnia, or Kosovo, in which other nations appeared reluctant to take on what otherwise appeared a moral (if not a legal) obligation to come to the aid of vulnerable victims of state failure, or of state-sponsored ethnic oppression. (21) There was a widespread and mistaken belief (then and now) that the U.N. Genocide Convention of 1948 specifically imposed such obligations on U.N. member nations, or at least upon the Convention's signatories or contracting parties. (22) However, as became painfully obvious in more recent cases such as Darfur, that Convention most assuredly does not impose any such obligations. (23) Accordingly, it gradually became apparent that attention needed to be focused more clearly on questions of formal or procedural authority at the international level for assigning or affixing responsibility for jus ad pacem in terms of what the German Enlightenment philosopher, Immanuel Kant, would term an "imperfect duty," rather than, as with Hoffman, merely a legal fight or permission. (24)

Even more, I worried that no one in that discussion at the time was focusing on the equally important question that I labeled jus in pace (in analogy with jus in hello) concerning the constraints imposed on the motivations and conduct of those charged with use of deadly force An amount of force that is likely to cause either serious bodily injury or death to another person.

Police officers may use deadly force in specific circumstances when they are trying to enforce the law.
 during such campaigns. The chief difference, I argued, was that armed combatants in these new kinds of irregular or unconventional conflict did not face an enemy in the conventional sense, towards (or more properly, between) whom the customary law of armed conflict and relevant Geneva conventions comprising the bright-line statutes of international humanitarian law applied (affording protection to non-combatants, prisoners, and relief workers). (25) Instead, they functioned as a kind of international constabulary, charged with keeping order, making peace, providing security, and attempting to reestablish and maintain the Rule of Law in situations in which the normal order had broken down. (26) "War" in the twenty-first century had come to resemble less the invasion of Normandy, or Japan, or even of Kuwait, than it now resembled the activities of police and national guardsmen during a domestic riot, or similar situations in which domestic security forces are mobilized to counter a criminal conspiracy, gang violence, or to maintain order and provide relief during natural disasters such as earthquakes, hurricanes, tsunamis, or famine. The sudden elevation of such activities from occasional and marginal status to the principle justification for the use of military force in the international arena, however, required a radical rethinking of conventional military preparation and education, as well as of the relevant rules of engagement governing combat and occupation.

This claim was not well received at the time. In Afghanistan, it is not well received even now. Many colleagues in international relations countered in effect that "war is war," and that the same rules still governed the conduct of soldiers and protection of noncombatants in these humanitarian and peacekeeping operations as had governed, for example, their behavior toward German and Japanese soldiers and civilians during World War II. (27)

That conviction, however, seemed relatively easy to refute. There are sharp differences between conventional military operations This is a list of missions, operations, and projects. Missions in support of other missions are not listed independently. World War I
''See also List of military engagements of World War I
  • Albion (1917)
 and constabulary operations, even as vaguely defined at the international level, mostly involving risk, force protection, and the economical (or proportional) use of force. As one example, wholly unlike the rules of engagement during conventional combat, military troops .engaged in constabulary operations, or otherwise providing security as part of an occupying military force, are only permitted to use lethal force in cases of individual self-defense The individual's inherent right of self-defense is an element of unit self-defense. It is critical that individuals are aware of and train to the principle that they have the authority to use all available means and to take all appropriate action to defend themselves and other US , and only as a last resort. (28)

It has been a vindication of sorts to have those important differences between combat and police work subsequently recognized and affirmed as official doctrine, almost a decade later, in the current U.S. Army field manual on "counterinsurgency operations" or COIN. (29) As that manual itself now clarifies, the moral calculus in these areas changes substantially in a manner that frequently imparts more risk and responsibility for discrimination, proportionality, and non-injury to combatants, similar to the rules of engagement governing the use of force by domestic police. (30) As the interesting "7th Chapter" on "Leadership and Ethics during Counterinsurgency" makes clear, these restrictions are imposed equally on moral and legal, as well as prudential grounds. (31) Overall, this inescapable equivocation between roles, and the incumbent responsibility the manual demands to know both which role is which, and (even more importantly) what role the individual combatant is fulfilling at any given moment, has become the chief characteristic of IW.

At the time, a decade ago, my senior military colleagues were even more outraged at this suggestion. "We are not police, and ought not to undertake constabulary duties," several fumed. "We are the 'pointy end' of the spear! When normal order disappears, we are warriors who kill people and break things until someone tells us to stop." (32)

"No," I would reply. "It is now criminal conspirators, terrorists, and lawless gangs of genocidal vigilantes who are killing people and breaking things (or, most recently, engaging in piracy on the high seas high seas

In maritime law, the waters lying outside the territorial waters of any and all states. In the Middle Ages, a number of maritime states asserted sovereignty over large portions of the high seas.
). In this new era of warfare, you are the warriors who intervene forcefully to protect the intended victims, and who, with that same point of your spear, order those perpetrators of violence to stop." First and foremost, that is to say, warriors during IW provide protection and security for intended victims until their criminal oppressors are forced to desist. (33) That, I submit, constitutes an enormous departure from the warrior's role during conventional combat, and it has proved extremely challenging for contemporary military personnel to understand and adapt to this radically altered role. This constitutes the principal challenge in Afghanistan at present.


Such was the state of the debate as of the Year 2001. It was an inchoate conversation, a kind of intellectual or methodological anarchy that is historically inherent in the publicist tradition of international law and international norms generally. No one is "in charge" of this conversation. Instead, in the absence of any clear-cut chain of command or "ecclesiastical authority," various individuals and communities opine, editorialize ed·i·to·ri·al·ize  
intr.v. ed·i·to·ri·al·ized, ed·i·to·ri·al·iz·ing, ed·i·to·ri·al·iz·es
1. To express an opinion in or as if in an editorial.

2. To present an opinion in the guise of an objective report.
, lament, and propose without any clear hierarchy or structure of authority, or any systematic way of vetting their proposals. No organization or international body licensed or commissioned studies of these matters, and the extent to which anyone paid attention to the proposals I have cited in the literature and conversation of the time was largely a function of the prominence or visibility of their authors, rather than the merit of the proposals themselves. Recognizing this problem, my own efforts at the time were to gather and systematize sys·tem·a·tize  
tr.v. sys·tem·a·tized, sys·tem·a·tiz·ing, sys·tem·a·tiz·es
To formulate into or reduce to a system: "The aim of science is surely to amass and systematize knowledge" 
 these various discrete proposals and contributions with full attribution, in hopes of provoking a more reflective conversation about where we stood, and what problems (such as generating appropriate jus in hello constraints for irregular warfare) still needed to be more carefully addressed.

Meanwhile, concurrent with the aforementioned events in the 1990s, two decades of seemingly random and scattered Random and Scattered was an EP released by Park in 1999. Track listing
1. Nice Night For A Fist Fight
2. If You Could Concentrate
3. How To Revive
4. Racing A Train
 terrorist attacks aimed increasingly at the United States United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area.  and its citizens directly, came to a head in the coordinated suicide air attacks on the Trade Towers in New York New York, state, United States
New York, Middle Atlantic state of the United States. It is bordered by Vermont, Massachusetts, Connecticut, and the Atlantic Ocean (E), New Jersey and Pennsylvania (S), Lakes Erie and Ontario and the Canadian province of
 and the Pentagon in Washington, D.C. Like genocide and humanitarian disasters, these acts signaled the dramatic weakening and the increasing irrelevance of the traditional nation-state system, and along with it the legal norms of state sovereignty and territorial integrity Territorial integrity is the principle under international law that nation-states should not attempt to promote secessionist movements or to promote border changes in other nation-states. Conversely it states that border changes imposed by force are acts of aggression. . The existing system of international law, organized specifically around the "legalist le·gal·ism  
1. Strict, literal adherence to the law or to a particular code, as of religion or morality.

2. A legal word, expression, or rule.
" or "Westphalian" paradigm, addressed the governance of states as collective entities treated under law like biological individuals. (34) This conceptual framework For the concept in aesthetics and art criticism, see .

A conceptual framework is used in research to outline possible courses of action or to present a preferred approach to a system analysis project.
 seemed pathetically unsuited to the task of discerning the appropriate response to "non-state actors" engaged in coordinated and large-scale acts of violence aimed indiscriminately at random citizens, even as that same body of law had failed miserably to confront the earlier dilemma of governments that turned violently against their own citizens. (35)

Into this legal and moral void, unfortunately, strode neoconservative advocates of a "new American realism," with relatively little experience in foreign relations Foreign relations may refer to:
  • Diplomacy, the art and practice of conducting negotiations between representatives of groups or nations
  • Foreign policy, a set of political goals that seeks to outline how a particular country will interact with other countries of the
 and a decidedly contemptuous attitude for international law and international institutions generally. (36) They invoked these crises as occasions for promulgating doctrines of unrelenting vigilantism Taking the law into one's own hands and attempting to effect justice according to one's own understanding of right and wrong; action taken by a voluntary association of persons who organize themselves for the purpose of protecting a common interest, such as liberty, property, or  and unilateralism u·ni·lat·er·al·ism  
A tendency of nations to conduct their foreign affairs individualistically, characterized by minimal consultation and involvement with other nations, even their allies.
. They proposed to meet force with force, fight fire with fire, and unwittingly and unreflectively in the process, to stoop to Verb 1. stoop to - make concessions to
patronise, patronize, condescend - treat condescendingly
 the level of criminals and terrorists in order to combat them. The U.N. and other institutions of international law were ridiculed, by Richard Perle in. particular, for their unfortunate tendencies toward ineffectiveness and corruption. Both of these admittedly undeniable tendencies appeared to ground the assertions of the "new realists" that these corrupt and ineffective international organizations and legal institutions could justifiably be ignored or overridden. (37) Commentators wondered whether the traditional distinction between combatants and noncombatants during asymmetric conflict was any longer sustainable, and whether maintaining a respect for the lives of bystanders merely disadvantaged the "law-abiding" side in these new conflicts. (38) Others wondered whether otherwise rights-respecting states or their representatives should now be authorized to engage in torture, or enhanced interrogation interrogation

In criminal law, process of formally and systematically questioning a suspect in order to elicit incriminating responses. The process is largely outside the governance of law, though in the U.S.
 of unindicted suspects in these conflicts, or whether they were entitled to apprehend and detain (as well as interrogate) these suspects in ways that utterly flaunted existing domestic values, and represented clear and intentional violations of existing provisions of international law. (39)

That such pernicious doctrines could gain what turned out to be a devastating foothold in this country and abroad I finally attribute in part to the understandable confusion, fear, and anger that accompanied the sequence of events narrated above. But, it also reflected the fact that what might otherwise have constituted sober voices in this international conversation were "AWOL." While political scientists and scholars in international relations continued to debate the evolution of just war doctrine, largely in its conventional mode, (40) philosophers and ethicists had allowed their own participation in these ongoing conversations to lapse almost to silence in the aftermath of the Vietnam War Vietnam War, conflict in Southeast Asia, primarily fought in South Vietnam between government forces aided by the United States and guerrilla forces aided by North Vietnam. . Legal scholars, for their part, remained blindly, almost pathologically wedded to their increasingly outmoded Westphalian paradigm, stubbornly invoking the bright-line provisions of international law to rail against the improvised, case-based responses of nations and their military forces as those forces, in turn, tried vainly to cope with these largely-unfamiliar problems. (41) Few were willing to admit that these crises presented problems which those laws and legal institutions themselves were poorly equipped to address.

The challenge we now face as a result of these decidedly unfortunate developments is a stark and unpalatable choice between two alternatives. We may choose to adhere, on the one hand, to increasingly outmoded institutions and principles grounded in the "legalist paradigm" or otherwise in the priority of sovereignty in the Westphalian system of nation-states, and cling stubbornly to the increasingly irrelevant structural deficiencies of the U.N. itself. The alternative, on the other hand, requires abandoning all these underlying conceptions and international institutions based upon them, and instead allowing this recent "perfect storm" of tragic events, from Rwanda to Iraq, to persuade us (as the "chicken hawks Nelson "Chicken Hawks" Louis (born February 3, 1896-died May 26, 1973) is a former Major League Baseball player in . He played for the New York Yankees and Philadelphia Athletics. In his career, he hit 7 home runs and drove in 60 RBI. Career Statistics

Player G AB H Avg.
" propose) that there are no longer any "rules" governing conflict, and that each side or participant is licensed to do whatever it takes to prevail in pursuit of their narrow interests.


Perhaps we should instead phrase the problem as a question. If the old rules, paradigms, and institutions are no longer adequate to ground our understanding and situate sit·u·ate  
tr.v. sit·u·at·ed, sit·u·at·ing, sit·u·ates
1. To place in a certain spot or position; locate.

2. To place under particular circumstances or in a given condition.

 our responses to these new developments, what (other than "nothing") should take their place? What, for example, should be the rules governing entry into, and military conduct during, these new sorts of conflicts? When, how, and upon whom are obligations to intervene in the interests of the lives and welfare of vulnerable peoples to be imposed? How in particular should we address the criticisms of realists and "vigilantes" who claim that they are not bound by rules or conventions of any sort, and should be free to protect their citizens' lives and properties wholly as they see fit, by whatever means are deemed "necessary?" (42)

It is first incumbent to ask whether the discussions of the limited justification for such resort to force can be meaningfully made simply by appeal to traditional just war criteria. As stated, the proposed military operations, whether aimed at counter-terrorism, stability and peacekeeping or humanitarian intervention, are not "war" in the conventional sense. Ought we, therefore, in evaluating the justifications for such operations, to appeal solely to criteria designed to evaluate the moral justification of conventional war? (43) During the decade of post Cold War humanitarian interventions in the 1990s, for example, this question remained unformulated, but it can be seen in hindsight to have driven much of the discussion. Alternative criteria, proposed piecemeal by Michael Walzer, Stanley Hoffman, David Luban, and others began to emerge in order to adjudicate adjudicate (jōō´dikāt´),
 disputes concerning the moral legitimacy of military interventions in Bosnia, Rwanda, Somalia, Haiti, and Kosovo--interventions that frequently seemed to invoke moral obligations on the part of the "international community" that appeared sharply at variance with "bright-line" provisions of international law. (44) In 2001, I began to offer and promote a collective summary of those alternative jus ad pacem criteria emerging from a variety of voices and discussions that continued throughout the debate on preemptive pre·emp·tive or pre-emp·tive  
1. Of, relating to, or characteristic of preemption.

2. Having or granted by the right of preemption.

 self-defense in 2002-2003. (45)

Subsequently, U.N. Secretary-General Kofi Annan Kofi Atta Annan (born April 8, 1938) is a Ghanaian diplomat who served as the seventh Secretary-General of the United Nations from January 1 1997 to January 1 2007, serving two five-year terms. He was the co-recipient of the Nobel Peace Prize in 2001.  commissioned a report from a "High-level Panel on Threats, Challenges and Change," designed to re-think the ideal of collective security in the U.N. Charter. (46) Led by Gareth Evans Gareth Evans may refer to:
  • Gareth Evans (philosopher), a philosopher and linguist.
  • Gareth Evans (politician), former Australian politician and head of the International Crisis Group.
, president of the International Crisis Group in Brussels and former minister for foreign affairs foreign affairs
Affairs concerning international relations and national interests in foreign countries.
 of Australia, the High-level Panel issued five basic guidelines, in the form of questions for the U.N. Security Council to consider, when deciding whether to authorize the use of military force:

(a) Seriousness of threat. Is the threatened harm to State or human security of a kind, and sufficiently clear and serious, to justify prima facie [Latin, On the first appearance.] A fact presumed to be true unless it is disproved.

In common parlance the term prima facie is used to describe the apparent nature of something upon initial observation.
 the use of military force? In the case of internal threats, does it involve genocide and other large-scale killing, ethnic cleansing ethnic cleansing

The creation of an ethnically homogenous geographic area through the elimination of unwanted ethnic groups by deportation, forcible displacement, or genocide.
 or serious violations of international humanitarian law, actual or imminently apprehended?

(b) Proper purpose. Is it clear that the primary purpose of the proposed military action is to halt or avert the threat in question, whatever other purposes or motives may be involved?

(c) Last resort. Has every non-military option for meeting the threat in question been explored, with reasonable grounds for believing that other measures will not succeed?

(d) Proportional means. Are the scale, duration and intensity of the proposed military action the minimum necessary to meet the threat in question?

(e) Balance of consequences. Is there a reasonable chance of the military action being successful in meeting the threat in question, with the consequences of action not likely to be worse than the consequences of inaction? (47)

More detail and guidance, concerning "R2P" specifically, is offered in the original report of the "International Commission on Intervention and State Sovereignty The International Commission on Intervention and State Sovereignty (ICISS) was an ad hoc commission of participants from mostly North and South America which in 2001 worked to popularize the concept of humanitarian intervention and democracy-restoring intervention under the name of " (ICISS ICISS International Commission on Intervention and State Sovereignty (Ottawa, Ontario, Canada)
ICISS Impact Collision Ion Scattering Spectroscopy
), still largely organized (as are the above criteria) along the lines of traditional "just war" doctrine. (48) The initial report of the Commission in 2001, in the wake of 9/11, drew a distinction between the responsibilities of nations to protect their own citizens (e.g., the then-pending United States response to the 9/11 terrorist attacks), and the responsibilities incumbent upon states confronting what the report termed "human protection claims in other states." (49) That report, in turn, conceived of the underlying question entirely, as did Stanley Hoffman and others at the time, in terms of the "rights" of states to intervene in other states, and the controversy this engendered regarding state sovereignty. (50) However, under the heading of "operational principles," it did engage the issue of the duties of caution and restraint incurred by the intervening militaries. (51)

In such a conceptual framework, humanitarian intervention and "R2P" does seem to be a concern that is quite distinct from counterterrorism coun·ter·ter·ror  
Intended to prevent or counteract terrorism: counterterror measures; counterterror weapons.

Action or strategy intended to counteract or suppress terrorism.
, COIN, and so-called preventive war A war initiated in the belief that military conflict, while not imminent, is inevitable, and that to delay would involve greater risk. , not to mention retaliation of the sort subsequently inflicted by the United States and NATO NATO: see North Atlantic Treaty Organization.
 in full North Atlantic Treaty Organization

International military alliance created to defend western Europe against a possible Soviet invasion.
 allies upon the Taliban and al-Qaeda operatives in Afghanistan. The International Convention on Intervention and State Sovereignty (ICISS) understood itself to be addressing only the "right of humanitarian intervention," and held that the remaining issues were, according to according to
1. As stated or indicated by; on the authority of: according to historians.

2. In keeping with: according to instructions.

 the Commission, "already well addressed" by prevailing international law and U.N. Security Council procedures. (52) With the benefit of hindsight, however, there are grounds for questioning the rigidity of those distinctions, and especially for questioning the adequacy of international law or institutions to handle any of them.

Our actual experience with such conflicts has taught, in contrast, that the nature of the conflicts themselves tend to defy and defeat any tidy conceptual distinctions we try to impose upon them. About the only distinction that survives experience with these conflicts is, once again, the acknowledgement that whatever these military actions are, they do not comprise conventional war in any meaningful sense, as the ICISS report itself explicitly acknowledges in its concluding sections on "Operational Dimensions," (53) and have radically different objectives than either traditional war-fighting or traditional peace-keeping on the older U.N. model. In particular, any military operation will need to demonstrate in all cases going forward what Rwanda especially required: the ability and willingness to engage in much more robust action than traditional peacekeeping, as currently envisioned under prevailing U.N. guidelines. (54) This is especially problematic for the U.N., because, as the 2001 report acknowledges, the U.N. does not wage (or traditionally to this point, has not waged) war, and lacks the kind of "logistic planning and support, and command and control capacity, that would make possible either war-fighting or military interventions of any significant size." (55) I would add a final caveat: that the approach taken by the Commission itself, in focusing on a right or legal permission to override sovereignty, failed in the end to fully engage the difficulty inherent in R2P itself: once again, the obligation or duty (rather than some sort of "right") to intervene in the face of an impending or ongoing humanitarian crisis A humanitarian crisis (or "humanitarian disaster") is an event or series of events which represents a critical threat to the health, safety, security or wellbeing of a community or other large group of people, usually over a wide area. .

Military commanders, for their part, likewise have now come to recognize that the real underlying issue is simply that IW/HI/COIN do not constitute "war" in any conventional meaning of the term. This is so, whether the "wars" in question are wars fought in response to provocation (as the U.N.-authorized, NATO-led war in Afghanistan that began in November, 2001), or intended instead either to prevent, or halt the progress of a humanitarian disaster in a failed state, or whether the war in question is a preventive war of counter-terrorism and regime change (as in Iraq). Whatever the view of the justification, advisability, or feasibility of such wars, they are definitely not "conventional."

Consider that in all the instances cited above, military operations resembling conventional war--for instance, the sort of conflict described and analyzed by Clausewitz, or illustrated by wars from WW I and II through Korea--were concluded in a very short period. (56) For example, Taliban forces were unseated from governance in Kabul and, along with al-Qaeda operatives, driven out of the country or into hiding in Pakistan, while Saddam Hussein's army was largely routed and dispersed, and Hussein himself driven from power and into hiding, all in a matter of weeks. (57) Conventional military operations (attacks against a conventional enemy, employing conventional weapons and tactics) were quickly replaced by the same kind of humanitarian peacekeeping and stability operations undertaken variously in Bosnia, East Timor, and Kosovo, or unsuccessfully in Rwanda. (58) These are precisely the operations (illustrated precisely, in turn, by the case studies) featured in the Army COIN field manual: the challenges of a military occupation, pacification Pacification



sea god, stiller of storms on the ocean. [Norse Myth.
 of the countryside, re-building of the basic infrastructures of civil society, providing personal and community security through effective police work, re-establishing the rule of law, and basically building trust through other kinds of effective public relations public relations, activities and policies used to create public interest in a person, idea, product, institution, or business establishment. By its nature, public relations is devoted to serving particular interests by presenting them to the public in the most  with the local population of the occupied territory (the cliched cli·chéd also cliched  
Having become stale or commonplace through overuse; hackneyed: "In the States, it might seem a little clichéd; in Paris, it seems fresh and original" 
, but no less important, "winning hearts and minds"). (59) They also, in both instances, resulted in an insurgency, or, more properly, the rise of a number of distinct insurgent INSURGENT. One who is concerned in an insurrection. He differs from a rebel in this, that rebel is always understood in a bad sense, or one who unjustly opposes the constituted authorities; insurgent may be one who justly opposes the tyranny of constituted authorities.  groups, opposed to the occupation and determined at very least to impede or prevent success in the IW operations described and hoping eventually to wrest power from the occupation or from the resulting provisional governments the occupation supported. (60)

Counterinsurgency and humanitarian military interventions both have this property: that they are not, strictly speaking Adv. 1. strictly speaking - in actual fact; "properly speaking, they are not husband and wife"
properly speaking, to be precise
, war at all, but something more akin to domestic constabulary operations carried out by a non-constabulary force--sometimes, as in Iraq, comprised technically of "vigilantes" (61)--operating somewhat ad hoc For this purpose. Meaning "to this" in Latin, it refers to dealing with special situations as they occur rather than functions that are repeated on a regular basis. See ad hoc query and ad hoc mode.  in the international arena. There has been a good deal of discussion since 2003 of the justifiability of preventive wars of intervention, a sub-category of what medieval and early modem scholars termed bellum offensivum. (62) Much of this debate has centered on challenging the widely accepted views of Michael Walzer, who had argued that, in contrast to the limited justification afforded to preemptive wars of self-defense, truly preventive wars, even those fought to impede a "gathering threat" rather than an "imminent danger," could never under any circumstances be justified. (63)

This blanket proscription now seems to many of us, in the present era, yet another example of a stubborn and excessively rigid conceptual distinction that simply "does not answer" to the dilemmas of contemporary humanitarian and counter-insurgency (counter-terrorist) missions. Instead, we might turn out in fact to be extremely reluctant to condemn a preventive intervention in a nation's sovereignty for the purposes of avoiding or halting a massive humanitarian disaster, such as genocide. And, we might grant more latitude to such humanitarian-oriented missions than we would allow to preventive security interventions undertaken to combat terrorism, especially in the absence of concrete evidence (rather than speculation) concerning the existence or precise activities of an ongoing criminal conspiracy.


There is a good deal to "muddle through" in all this, involving both entry into, behavior during, and perhaps just as importantly, wrapping up and walking away from such inherently messy, and morally (not to mention legally) vague military operations. It is nevertheless important to try to do a better job, since IW conflicts, for the foreseeable future, constitute the principal kinds of conflicts we will ask our military forces to undertake on our behalf. (64)

First, the set of distinctions that both international law and these recent U.N.-sponsored studies presuppose pre·sup·pose  
tr.v. pre·sup·posed, pre·sup·pos·ing, pre·sup·pos·es
1. To believe or suppose in advance.

2. To require or involve necessarily as an antecedent condition. See Synonyms at presume.
 seem to suggest that the use of military force in response to, say, a terrorist attack is both more clearly defined and legitimated, as well as utterly distinct from, a decision to use military force to halt a humanitarian disaster. (65) That may seem initially to be a straightforward demarcation. But after the ruling government and the terrorists themselves have been routed, it is less clear what governs the behavior of the intervening forces in rebuilding and restoring the rule of law in the nation it has invaded. The latter involves counterinsurgency in the form of constabulary and security work, but also reconstruction and humanitarian relief. And, in any case, if a nation is "clearly justified" in intervening in another to rout terrorists who have attacked its soil, does it not have a similar right to prevent such attacks, or the growth of such criminal conspiracies elsewhere as well--as the U.N. "High Level Panel" report on international security in 2005 strongly suggests?

Given all these uncertainties and contingencies, as well as the underlying similarities of the types of activities in which invading forces must finally engage in order to impose a workable economic and political solution to them, it seems unwise in the extreme to draw sharp distinctions stubbornly between them. Nor should we fail to acknowledge the underlying challenge that all of these "irregular" and unconventional military operations pose for our understanding of existing international law and institutions.

In his essay, Why Serve the State?, Martin L. Cook offers a telling historical synopsis of the current paradox of professional military ethics and military services. Cook links all the foregoing questions to the underlying tension between moral claims that are universal in scope on one hand, such as the respect for non-combatant immunity, and the protection of basic human rights, and the particular claims and responsibilities laid upon military personnel as employees or "servants" of individual nation-states. (66) They have as both moral agents generally, and especially as professional military personnel armed with deadly force, to protect and not harm the innocent, and to provide benevolent quarter to those in crisis. (67) Those universal moral claims and duties arising from the profession of arms, however, often come into tension with the duties of military personnel as servants of the state to carry out or defend the policies (as well as the citizens and the borders) of the particular state in which they happen to reside. (68) The resulting paradox of military professionalism that he describes drives many of the dilemmas we confront in humanitarian operations and other forms of IW, and themselves are caused by, rather than resolved through reliance upon, international law grounded in the Westphalian nation-state paradigm.

Humanitarian intervention is a particularly pronounced, but by no means unique, manifestation of this underlying Westphalian dilemma. Troops trained and equipped to defend the nation, consisting of individuals who have sworn an oath to risk their lives in that endeavor, are instead deployed to risk their lives and expend their resources in the defense of other nations and their peoples, in a fashion that cannot easily be subsumed under the existing U.N. statutes pertaining to "collective security." Elsewhere, as in Afghanistan, hostilities may begin in a straightforward fashion, as the military forces of allied nations, under a conventional legal understanding of self-defense or collective security, invade that country in pursuit of criminal elements and rogue governments that shelter them. They quickly find themselves enmeshed in risky, highly fraught, and dangerous situations of peacekeeping, stability, security, and humanitarian reconstruction that looks for all the world like a COIN response to a local insurgency, or to internal political conflicts that are really none of the occupying coalition's business. On the other hand, if the insurgency or internal political rivalries and instabilities themselves constitute a regrettable result of having allowed a problem like Afghanistan or Rwanda to fester too long in the past, would it not be in some sense obligatory, as well as permissible, to try to "head off" such situations before they reach a tragic climax in the present?

For these reasons, I have linked both counter-terrorism and law enforcement with humanitarian intervention in the list of conditions I have compiled in Table One (appendix) from some two decades of wrestling with these questions and problems. In particular, I think it crucial to determine when we might incur obligations to undertake these missions, as well as the legal and moral "right" to do so. Issues of conflict of interest in decision-making and deployment likewise need to be carefully considered. And finally, guidance concerning the rules of engagement and the constraints on use of force needs to be radically re-thought in light of those obligations and underlying intentions. This is what the provisions summarized in Table One, (69) and those comprising the summary of R2P, attempt to accomplish. (70)

When comparing the two sets of proposals, however, there are some revealing differences. For example, there is no restriction in the diplomatic proposals baring blatant conflicts of interest, such as might tempt powerful nations from exploiting the difficulties of their neighbors in order to cloak a naked grab for territory or resources in the guise of a "humanitarian mission" of liberation or salvation. (71) More disconcerting dis·con·cert  
tr.v. dis·con·cert·ed, dis·con·cert·ing, dis·con·certs
1. To upset the self-possession of; ruffle. See Synonyms at embarrass.

 is the relative lack of detailed emphasis (72) in the diplomats' discussion of the following points:

(1) substantive reflections on how the intervening military forces, the combatants, should conduct themselves during the intervention (Table I, 7); and

(2) what has recently come to be called jus post bellum Jus post bellum (Latin for "Justice after War"; see also Just War Theory) deals with the termination phase of war. The idea was written about by Brian Orend to reflect the need for rules to end wars completely and fairly. : namely, how and when the intervening military forces ought to declare their work completed, and withdraw (Table I, 3 (ii)). (73)

The first consideration is the traditional realm of jus in bello, the Law of Armed Conflict (LOAC). As with the discussion of conventional jus ad bellum above, the question is in large part whether or not our customary (and somewhat inchoate) understanding of LOAC in its conventional sense will cover the demands of what I have termed jus in pace. It is precisely this matter that the U.S. Army COIN field manual addresses, precisely because we cannot really rely on past practice and understanding as adequate guidance for these circumstances. (74)

Like conventional jus in bello, jus in pace stresses the morality of means. Consider the final entry on permissible strategy, tactics, weapons systems, and conduct, in Table 1. (75) Alongside conventional jus in bello constraints, like noncombatant immunity (discrimination) and proportionality, these jus in pace guidelines also address issues specific to COIN and humanitarian interventions, such as the tactic of "force protection." (76) Force protection in normal instances is taking reasonable precautions to insure the safety and security of one's own military forces, ranging from posting sentries and establishing checkpoints, to avoiding the temptation to commit troops to domestic altercations or disturbances whose nature and cause are unclear. (76) Owing to owing to
Because of; on account of: I couldn't attend, owing to illness.

owing to prepdebido a, por causa de 
 the absence of national self-interest, however, NATO troops were famously told by their commanding officers in Kosovo, as in Haiti, that the political purposes of the intervention were "not worth the loss of a single one of your lives." (78) In Rwanda, Haiti, and Bosnia, this lack of the intervening military's identification with the military mission resulted in a transition from normal force protection to the extreme of "radical" force protection, in which intervening troops refused, or were even ordered not to provide, elementary protection or security to victimized populations (e.g., as in the case of Belgian Army The Land Component, formerly the Belgian Army, is the land-based armed force of the Belgian Armed Forces. The current Commander of the Land Component is Major-General Eddy Testelmans.  Captain Luc Lemaire at the Don Bosco school compound in Rwanda, or the complaint of U.S. Army captain Lawrence Rockwood concerning the welfare of Haitian political prisoners). (79) In other instances, intervening NATO troops were initially ordered to refrain from attempting to interdict indigenous criminals, such as Radovan Karadzic and Gen. Ratko Mladic, the so-called "Butchers of Srebrenicia," in Bosnia, lest in doing so they generate more conflict and imperil im·per·il  
tr.v. im·per·iled or im·per·illed, im·per·il·ing or im·per·il·ling, im·per·ils
To put into peril. See Synonyms at endanger.
 their own welfare. (80)

While no soldier generally wishes to die in war and competent commanders always do everything they can to avoid "taking casualties," the entire concept of risk and risk-aversion are very different in COIN than in conventional war. It is easier to bomb from on high than at lower, more discriminate, but also more risky altitudes. Likewise, it is easier to bomb, shell, or call in a missile attack, than to order a ground force to invade a local village, house-to-house. In conventional war, as Walzer demonstrates, there is no obligation that compels troops to undertake the riskier tactic other than the legal requirement to avoid intentional criminal negligence The failure to use reasonable care to avoid consequences that threaten or harm the safety of the public and that are the foreseeable outcome of acting in a particular manner.  in the use to deadly force. (81) As Walzer's numerous cases on this topic indicate, compliance with that vague legal restriction is often a matter of considerable variance in judgment. (82) By contrast, in COIN operations, it is imperative that occupation security forces incur the greater risk, in order to avoid even the appearance, let alone the actual prospect, of harming those they have intervened to protect. (80)

The other peculiarity of interventions, as with police work, is what can and should be done with POWs who turn out to be wanted criminals, or who are at least subject to indictment under international law. Unlike the diplomatic provisions of R2P, the provisions of Table I, Section 7 above compel invading forces to arrest those (such as Milosovek, Karadzic, Mladic or, for that matter, Saddam Hussein Saddam Hussein

(born April 28, 1937, Tikrit, Iraq—died Dec. 30, 2006, Baghdad) President of Iraq (1979–2003). He joined the Ba'th Party in 1957. Following participation in a failed attempt to assassinate Iraqi Pres.
) charged with, or suspected of crimes against international law, and compel them to turn over such suspected criminals to appropriate international authorities, such as the International Criminal Court, rather than to summarily try them in understandably hypersensitive hy·per·sen·si·tive
Responding excessively to the stimulus of a foreign agent, such as an allergen; abnormally sensitive.

 and highly biased local venues.


Neither the academic nor the diplomatic discussions of proposed "new rules" for IW explicitly address so-called jus post bellum. Yet this, as I mentioned, is precisely what COIN and humanitarian interventions primarily are, or else what they quickly, and almost exclusively become. Thus, any attempt to encompass "new rules" for IW conflicts must surely take account of this recent development in just war theory. Just war doctrine must henceforth be understood, on this new account, to consist of three (rather than merely two) parts, each corresponding to war's beginning, prosecution, and end: jus ad bellum, the justification of entering into war, jus in bello, the military conduct of adversaries during war, and jus post bellum, the obligations of war's victors to its victims to establish a just and lasting peace, sufficient to prevent the onset of future conflict. Jus post bellum is not merely an afterthought, but a preeminent and overriding obligation laid upon belligerents in the interest of justice. No war can be termed "just," and no belligerents exonerated for their participation in it, in which there is not, from the outset, a manifest intent (revealed in policy and practice) to ensure a stable peace that provides for both long-term security and the protection of basic human rights in that war's aftermath. This is part and parcel of the full import of "right intention" in classical jus ad bellum. (84)

In particular, the three dimensions of just war discourse are not neatly separable sep·a·ra·ble  
Possible to separate: separable sheets of paper.

, and must not be compartmentalized. (85) One cannot discuss jus ad bellum in abstraction, distinct from the expectation that combatants, proposing to defend or enforce justice, must employ only just means in the realization of just ends (jus in bello). This intention must precede, and thoroughly infuse in·fuse
1. To steep or soak without boiling in order to extract soluble elements or active principles.

2. To introduce a solution into the body through a vein for therapeutic purposes.
 combat, even as the intention to restore peace with justice and to repair a society's ability to sustain and protect its citizens (jus post bellum) must infuse both deliberations about war and the subsequent conduct of it. War's onset, its conduct, and its aftermath flow seamlessly together, and policymakers, as well as combatants, are drawn together into a web of moral responsibility for war's advent and outcome. These new insights prove especially pertinent to the conduct of irregular war.

Regarding rules of engagement during jus post bellum, in the aftermath of more conventional hostilities undertaken for otherwise morally-justifiable ends, we might reasonably expect (and a minimally-just state itself should consistently demand) that its own military forces commit themselves to respecting the most basic elemental rights of noncombatants in the enemy state. This commitment must be sustained through education and training leading up to deployment, and reinforced consistently during the period of deployment. This is especially important when, as in humanitarian interventions or regime change, the opposing state and its rank-and-file citizens do not themselves constitute "the enemy" in any meaningful sense.

I have argued myself that, far from constituting a lofty or unrealistically high standard, this principle is simply a demand for consistency of purpose. (86) Commitment to noncombatant immunity, as well as to restraint, proportionality, and the economy of force, are not abstract ideals, let alone reducible to uncomprehending or cynical compliance with the requirements of international law. Instead, adherence to such principles essentially defines the intervening state or coalition's commitment to minimal justice in the first place, from which it derives its authority to wield the sword in defense of justice. By marked contrast, it is not the putative justice of their cause, but the sustained and intentional injustice of their means, that identifies and morally de-legitimates the tactics of both terrorists and so-called "rogue states."

It is this jus in pace and jus post bellum asymmetry in behavior and intentionality intentionality

Property of being directed toward an object. Intentionality is exhibited in various mental phenomena. Thus, if a person experiences an emotion toward an object, he has an intentional attitude toward it.
 that, finally, allows us to discriminate with confidence between a warrior and a murderer, as well as between legitimate acts of war Tom Clancy's Op-Center: Acts of War is a technothriller by Jeff Rovin Plot introduction
The mobile Regional Operations Center (ROC) in Turkey investigates a dam blown up by Kurdish terrorists.
, and criminal activities. And it is this principle that must be taught, emphasized, and reinforced with unmistakable clarity in the education and training of legitimate military forces. (87) This demonstrates, in turn, that the historical and culturally bound dimensions of both law and tradition regarding conventional war and traditional just war doctrine are currently being pushed to their limits. This is especially noteworthy as we wrestle with the structure and future of international institutions like the U.N., or debate the meaning of an "international community" as a legitimate form of authority, and wonder together in good faith about the future reforms needed in international law to authorize, and even obligate the use of force in the interests of justice, and for the protection of human rights.

Provisions for Jus ad Pacem and Jus in Pace (Humanitarian and
Counterterrorist Interventions)

1. (A) "Humanitarian intervention is justified whenever a
nation-state's behavior results in grave and massive violations of
human rights, or poses an imminent threat of grave harm to other
nations and peoples."

(i) intervention is justified when these behaviors result in grave
threats to the peace and security of other states and other
peoples; and

(ii) intervention need not be restricted to such cases, but may be
justified when the threats to human rights are wholly contained
within the borders of the state in question.

(B) States may use military force in the face of threats of war, or
impending terrorist actions, or preparations by states or non-state
actors actively engaged in doing, or imminently threatening, grave
harm to other nations and peoples, whenever:

(i) there is a manifest intent on the part of such parties to
injure; and

(ii) there is a degree of active preparation that makes that intent
a positive danger; and

(iii) both of the foregoing occur in a situation in which waiting,
or doing anything other than deploying military force preemptively,
greatly magnifies the risk.

2. (A) "Sovereignty may be overridden whenever the protection of
the rights of that states' own citizens can be assured only from
the outside."

(i) sovereignty may be overridden whenever the behavior of the
state in question, even within its own territory, threatens the
existence of elementary human rights abroad; and

(ii) sovereignty may be overridden even when there is no threat to
human rights outside the borders of the state in question,
providing the threat to that state's own citizens are real and

(B) "The decision to override sovereignty and intervene must
finally be subject to review and approval by an appropriate
collective international body."

(i)The decision to intervene, whether to protect human fights or
enforce international law, ought never to be undertaken
unilaterally; however

(ii) a unilateral agent of intervention may be authorized by an
appropriate international tribunal; and also

(iii) a regional security organization may be authorized by an
appropriate international tribunal to undertake a military
intervention for humanitarian or counterterrorist purpose; and

(iv) in the absence of prior approval, the burden of proof falls
upon the intervening power to demonstrate that it has unilateral
license to intervene, based upon prima facie compliance with all of
the above.

3. The intention in using force must be restricted without
exception either to purely humanitarian concerns, such as the
restoration of law and order in the face of natural disaster, or to
the protection of the rights and liberties of vulnerable peoples
(as defined in the United Nations Charter and the Universal
Declaration of Human Rights), or to halt or prevent violations of
international law by nations or non-state actors that pose a clear
and imminent threat of grave harm to other nations or peoples.

(i) intervening nations and their militaries should possess no
financial, political or material interests in the outcome of the
intervention, other than achieving the publicly proclaimed
humanitarian ends, enforcing international law, or averting the
risk of grave and substantial harm to other nations and peoples;

(ii) the intervening nation or nations must establish a set of
conditions under which the need for intervention will have been
satisfied, together with a reasonable timetable for achieving their
humanitarian ends or eliminating the perceived threat.

4. Military intervention may be resorted to for humanitarian
purposes, or to avert the risk of terrorism or enforce vital
provisions of international law, only when all other options have
been exhausted.

(i) this condition is deemed to have been met when reasonable
nonviolent efforts have been unsuccessful and there is no
indication that future attempts will fare any better.

5. Military force may be utilized for humanitarian purposes, , or
to avert the risk of terrorism or enforce vital provisions of
international law, only when there is a reasonable likelihood that
the application of force will meet with success in averting a
humanitarian tragedy.

(i) a resort to military force may not be invoked when there is a
real probability that the use of such force will prove ineffective,
or may actually worsen the prospects for a peaceful resolution of
the crisis; and

(ii) military force may not be employed, either for humanitarian
ends or for the purposes of counterterrorism and law enforcement,
whenever collective, public debate and deliberation fail to
determine straightforward and feasible goals to be achieved by the
application of force.

6. The lives, welfare, rights and liberties to be protected from
humanitarian disaster or terrorist attacks must bear some
reasonable proportion to the risks of harm incurred, and the damage
one might reasonable expect to inflict in pursuit of humanitarian

7. Military force used for humanitarian or counterterrorist
purposes may never encompass the use of strategy, tactics, weapons
systems or battlefield conduct that are themselves recognized as
illegal or immoral.

(i) captured belligerents must be treated as prisoners of war
according to established international conventions, and may not be
mistreated or subject to trial or sentence by the intervening
forces; and

(ii) prisoners of war accused of humanitarian crimes and abuses, or
of engaging actively in planning for a doing grave and
indiscriminate harm to other nations and peoples, may be bound over
for trial by an appropriate international tribunal; and

(iii) civilian noncombatants must never be deliberately targeted
during a humanitarian or counterterrorist military operation; and

(iv) military necessity during humanitarian or counterterrorist
operations can never excuse the use of weapons, or pursuit of
battlefield tactics, already proscribed as illegal under
established international treaties and conventional law of armed
combat; and

(v) finally, military necessity during humanitarian or
counterterrorist operations cannot excuse tactics or policies, such
as "force protection," that knowingly, deliberately, and
disproportionately reallocate risk of harm from the peace-keeping
forces and belligerents to non-combatants.

(1) See Prologue to ROBBIN F. LAIRD & HOLGER H. MEY MEY Meghauli, Nepal - Meghauli (Airport Code) , THE REVOLUTION IN MILITARY AFFAIRS: ALLIED PERSPECTIVES 1 (1999).

(2) See id.

(3) See id.

(4) See George R. Lucas, Jr., The Reluctant Interventionist: The Critique of Realism and the Resurgence of Morality in Foreign Policy in GEORGE R. LUCAS, JR., PERSPECTIVES ON HUMANITARIAN MILITARY INTERVENTION (Univ. of California Institute of Governmental Studies/Public Policy Press 2001); George R. Lucas, Jr., The Role of the International Community in the Just War Tradition: Confronting the Challenges of Humanitarian Intervention and Preemptive War In political rhetoric "preemptive war" may also be used to refer to preventive war
Preemptive war (or preemptive attack) is waged in an attempt to repel or defeat a perceived imminent offensive or invasion, or to gain a strategic advantage in an impending (allegedly
, 2 JOURNAL OF MILITARY ETHICS 122-144 (2003); George R. Lucas, Jr., From Jus ad bellum to Jus ad pacem: Rethinking Just War Criteria for the Use of Military Force for Humanitarian Ends, 72-96 in ETHICS AND FOREIGN INTERVENTION, Eds. Donald Scheid and Deen K. Chatterjee (New York: Cambridge Univ. Press, 2004); George R. Lucas, Jr., Jus in bello for Nonconventional Wars, Delivered at the International Studies Association 49th Annual Meeting (Mar. 26, 2008), available at index.html; George R. Lucas, Jr., "Methodological Anarchy:" Arguing about Preventive War 33-56 in EMPOWERING OUR MILITARY CONSCIENCE: TRANSFORMING JUST WAR THEORY AND MILITARY MORAL EDUCATION (Ed. Roger Wertheimer London Ashgate Press 2010).

(5) Gareth Evans & Mohamed Sahnoun, The Responsibility to Protect, INTERNATIONAL COMMISSION ON INTERVENTION AND STATE SOVEREIGNTY (2001), available at; Gareth Evans & Mohamed Sahnoun, Intervention and State Sovereignty: Breaking New Ground, 7 GLOBAL GOVERNANCE Global governance refers to political interaction and the creation and empowering of international organizations aimed at solving problems that affect more than one state or region, when there is no democratic power of enforcing compliance.  119, 119 (2001); Report of the High-level Panel on Threats, Challenges and Change, Gareth Evans, A More Secure World: Our Shared Responsibility, U.N. Doe. A/59/565 (Dec. 2, 2004).

(6) Mary Caprioli & Peter F. Trumbore, Rhetoric Versus Reality: Rogue States in Interstate Conflict, 45 JOURNAL OF CONFLICT RESOLUTION 770, 770 (2005), available at EReadings/13.1.Rogues_CaprioliTrumbore2005Rhetoric.pdf.

(7) Id. at 776.

(8) Maj. Bart R. Kessler, Bush's New World Order: The Meaning Behind the Words 1 (Mar. 1997) (unpublished research paper, Air Command and Staff College The Air Command and Staff College (ACSC) is located at Maxwell Air Force Base in Montgomery, Alabama and is the United States Air Force's intermediate professional military education (PME) school. ), available at theWords.pdf.

(9) U.S. Dept. of Def., Irregular Warfare (IW) Joint Operating Concept (JCO JCO Journal of Clinical Oncology
JCo Java Connector (SAP)
JCO Journal of Clinical Orthodontics
JCO Joyce Carol Oates
JCO Junior Commissioned Officer (India)
JCO JavaCommunity.
) 1-10 (Sept. 11, 2007), available at The Department of Defense's designation has since been replaced by a somewhat more refined, tripartite distinction between "irregular" warfare (IW), major combat operations (MCO MCO Managed care organization, see there ), and SSTRO SSTRO Security, Stability, Transition, and Reconstruction Operations : "stabilization, security, transition and reconstruction operations" (such as humanitarian intervention and disaster relief). IW itself is defined as "A violent struggle among state and non-state actors for legitimacy and influence over the relevant populations. IW favors indirect and asymmetric approaches, though it may employ the full range of military and other capabilities, in order to erode an adversary's power, influence, and will." The most recent "term of art" to describe the complex interplay between conventional and unconventional operations is "hybrid" war. These distinctions are somewhat artificial and for the most part, poorly drawn and even more poorly described. The message, however, is clear: the U.S. and other allied and coalition governments will face criminal and terrorist attacks of unconventional sorts, employing a variety of tactics and weapons, aimed largely at civilian populations rather than enemy governments or their military forces, and aimed at creating insecurity among the populations that are destabilizing to their respective governments. The joint doctrine Fundamental principles that guide the employment of US military forces in coordinated action toward a common objective. Joint doctrine contained in joint publications also includes terms, tactics, techniques, and procedures. It is authoritative but requires judgment in application.  is aimed at defining and formulating strategic responses to a variety of such conflicts.; see also Jeffrey Hasler, Defining War, 24 SPECIAL WARFARE 12, 15-17 (Jan.-Feb. 2011) (defining "Irregular Warfare" and "Hybrid Warfare" while cautioning that "[r]egular review and restatement of approved definitions and their descriptions are necessary as sources of doctrine" so that unofficial terms and theories like "Hybrid Warfare" do not get used incorrectly).

(10) Gregory Reichberg & Henrik Syse, Humanitarian Intervention: A Case of Offensive Force?, 33 SECURITY DIALOGUE 309, Sept. 2002, at 309, 313-14.

(11) I first highlighted this dilemma in 1998, in an essay entitled "The Reluctant Interventionist," for a working group hosted by the Carnegie Council for Ethics in International Affairs The Carnegie Council for Ethics in International Affairs is a New York City-based foreign policy think tank. Founded in 1914, and originally named Church Peace Union, Carnegie Council is an independent and nonpartisan institution, aiming to be the foremost voice of ethics in , and subsequently delivered as a colloquium col·lo·qui·um  
n. pl. col·lo·qui·ums or col·lo·qui·a
1. An informal meeting for the exchange of views.

2. An academic seminar on a broad field of study, usually led by a different lecturer at each meeting.
 at a meeting of the American Philosophical Association on Wednesday March 24, 1999, just hours after NATO began its air campaign in Kosovo. Lucas, The Reluctant Interventionist, supra A relational DBMS from Cincom Systems, Inc., Cincinnati, OH ( that runs on IBM mainframes and VAXs. It includes a query language and a program that automates the database design process.  note 4; George R. Lucas, Ethical Issues in the Use of Military Force for Humanitarian Intervention, (Carnegie Council on Ethics and Int'l Affairs and the Nat'l War Coll., Keynote Discussion Paper for the Third Conference on Ethics and Warfare in the 21st Century, February 5-6, 1998).

(12) Lucas, The Role of the International Community, supra note 4, at 122, 126-27.


(14) Id.

(15) See Lucas, The Reluctant Interventionist: The Critique of Realism and the Resurgence of Morality in Foreign Policy, supra note 4; Lucas, From Jus ad bellum to Jus ad pacem, supra note 4.

(16) Also cited simply as the "Weinberger Doctrine" after Secretary of State "Cap" Weinberger, who first officially issued the guidance. The doctrine in fact reflects the collective thinking of Vietnam-era military veterans, including the eventual Chairman of the Joint Chiefs and Secretary of State Colin Powell. The doctrine chiefly held that U.S. military forces should never again be committed to armed conflict without a clear and widely supported mandate from Congress and the American public, including clear objectives defining mission success and an "exit strategy" to terminate hostilities, and the commitment of sufficient troops and materiel ma·te·ri·el or ma·té·ri·el  
The equipment, apparatus, and supplies of a military force or other organization. See Synonyms at equipment.
 to ensure overwhelming military superiority in pursuit of the mission. It is patently obvious that most IW conflicts of whatever sort during the past two decades failed to satisfy most of these criteria. See Excerpts from Address of Weinberger, N.Y. TIMES, Nov. 29, 1984, at A5.

(17) Madeleine K, Albright, U.S. Secretary of State, American Principle and Purpose, Forrestal Lecture, U.S. Naval Academy (Apr. 15, 1997) (transcript available at; Madeleine K, Albright, U.S. Secretary of State, The United States and Assistance to Post-Conflict Societies, USAID USAID United States Agency for International Development
USAID Agencia de los Estados Unidos para el Desarrollo Internacional (Spanish) 
 Conference on Democracy, Human Rights, and Reintegration reintegration /re·in·te·gra·tion/ (-in-te-gra´shun)
1. biological integration after a state of disruption.

2. restoration of harmonious mental function after disintegration of the personality in mental illness.
 (Oct. 31, 1997) (transcript available at; Madeleine K. Albright, Farewell Remarks, Washington, D.C.: U.S. Department of State (Jan. 19, 2001) (transcript available at

(18) Id.

(19) MICHAEL WALZER, JUST AND UNJUST WARS xi-xvi (3d ed. 2000).

(20) Id.

(21) See Raymond Bonner, The World; Begging for Mercy For Rwanda--Earlier This Time, N.Y. TIMES, Nov. 27, 1994, available at 0C12FE39540C748EDDA80994DC494D81.

(22) Karen Engle, "Calling in the Troops": The Uneasy Relationship Among Women's Rights The effort to secure equal rights for women and to remove gender discrimination from laws, institutions, and behavioral patterns.

The women's rights movement began in the nineteenth century with the demand by some women reformers for the right to vote, known as suffrage, and
, Human Rights, and Humanitarian Intervention, 20 HARV HARV High Alpha Research Vehicle (NASA test plane)
HARV High Altitude Research Vehicle
HARV High Altitude Reconnaissance Vehicle
. HUM. RTS (Request To Send) An RS-232 signal sent from the transmitting station to the receiving station requesting permission to transmit. Contrast with CTS.

1. (operating system) RTS - run-time system.
. J. 189, 211 (2007).

(23) Convention on the Prevention and Punishment of the Crime of Genocide The Convention on the Prevention and Punishment of the Crime of Genocide was adopted by the United Nations General Assembly in December 1948 and came into effect in January 1951. , Dec. 9, 1948, 78 U.N.T.S. 277, available at The Convention offers a working definition of genocide, and binds its signatories and contracting parties not to engage in it or tolerate it within their borders, and to do all in their power to apprehend and bring to justice those individuals implicated in such acts. Only Article 8 addresses actions other than criminal prosecution of individual perpetrators, and it merely states that "any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide." It does not compel signatories or contracting parties to do this, nor does it specify what actions might be required of the United Nations or its member states in response, apart from the procedures for indictment, extradition, and criminal prosecution of perpetrators of genocide after the fact. The document was a product of its time, aimed at denouncing Nazi atrocities, and admonishing ad·mon·ish  
tr.v. ad·mon·ished, ad·mon·ish·ing, ad·mon·ish·es
1. To reprove gently but earnestly.

2. To counsel (another) against something to be avoided; caution.

 nations against harboring Nazi fugitives from justice. With the benefit of hindsight, it is clear that those, like Albright, who feared to invoke its provisions had not actually ever read them, and that many readers had merely imagined or extrapolated an idealistic, but wholly nonexistent non·ex·is·tence  
1. The condition of not existing.

2. Something that does not exist.

 responsibility of nations to employ military force, if necessary, to halt or prevent genocide. The Darfur example decisively refutes this interpretation. For a concise summary of current understanding and status of this convention, see William A. Schabas, Convention on the Prevention and Punishment of the Crime of Genocide (2008), available at

(24) Perfect duties, or what Kant later called "duties of justice," are those in which specific actions (or restrictions on action) are defined for obligors as duties owed to specific obligees, while "imperfect" duties, or "duties of virtue," describe categories of activities required of obligors, without defining either specific obligees, or specific actions owed them. The former category of moral duties are properly the subject of legislation within a legal system of justice (according to Kant), while the latter (e.g., the moral duty of philanthropy) cannot intelligibly be legislated because of this lack of specificity of obligee and obligation that would normally constitute the content of such legislation. This distinction is first introduced in the second chapter of Kant's Grundlegung (1783), and later refined in his Rechtslehre, or "Doctrine of Justice" (1795). See, e.g., EMMANUEL KANT, METAPHYSICS OF MORALS The Metaphysics of Life (Die Metaphysik der Sitten, 1797) is a major work of moral philosophy by Immanuel Kant. It is not as well known or as widely read as his earlier works, Groundwork of the Metaphysics of Morals and the Critique of Practical Reason.  (Mary Gregor, trans., Cambridge University Press Cambridge University Press (known colloquially as CUP) is a publisher given a Royal Charter by Henry VIII in 1534, and one of the two privileged presses (the other being Oxford University Press). , 1996) (1797).

(25) See, e.g., U.S. ARMY, FM 3-0, OPERATIONS vii (2008) available at ("Army doctrine now equally weights tasks dealing with the population--stability or civil support--with those related to offensive and defensive operations.").

(26) Id.

(27) See, e.g., Cian O'Driscoll, New Thinking in the Just War Tradition: Theorizing the War on Terror, in SECURITY AND THE WAR ON TERROR (Alex J. Bellamy, et al. eds., 2007).

(28) See U.S. ARMY, supra note 25, at vii.

(29) See HEADQUARTERS DEPT. OF THE ARMY, FM 3-24/MCWP 3-33.5, COUNTERINSURGENCY, vii (2006) ("This field manual/Marine Corps warfighting publication established doctrine ... for military operations in a counterinsurgency (COIN) environment."), available at

(30) See id. at Foreword.

(31) See id. at 7-1.

(32) One routinely hears general characterizations of one's proper role such as this from military personnel. In this instance, however, I refer to principled disagreements I had between 1997 and 2005 with my counterparts in the Chair of Leadership at the Naval Academy: Admirals Leon A. "Bud" Edney, Henry "Hank" Chiles, and Vice Admiral Michael Haskins. All three were highly experienced and accomplished retired Navy flag officers. Bud Edney flew combat air missions over North Vietnam in Squadron VA-164 and had over 1,000 carrier landings in his career. Hank Chiles was a nuclear submariner, experienced on the front lines of the "Cold War" as former CO of "STRATCOM STRATCOM Strategic Communications
STRATCOM US Strategic Command
," America's strategic nuclear forces. Mike Haskins had completed his career as the Inspector General of the Navy, and, together with Admiral James Ellis, made all the final targeting decisions during the Kosovo air campaign.

(33) This was the position taught and advocated in leadership and ethics programs at the U.S. Naval Academy. It is consistent with the view of contemporary warriors. See MICHAEL IGNATIEFF, THE WARRIOR'S HONOR: ETHNIC WAR AND THE MODERN CONSCIENCE 5-7 (1998) (discussing moral connections many Westerners feel for the rest of the world, the impact it has on ethnic accommodation in their own countries, and how countries heal after war and savagery); see also SHANNON E. FRENCH, THE CODE OF THE WARRIOR: EXPLORING WARRIOR VALUES PAST AND PRESENT 7 (1st paperback ed. 2003) ("By setting a standard of behavior for themselves, accepting certain restraints, and even "honoring their enemies," warriors can create a life-line that will allow them to pull themselves out of the hell of war and reintegrate re·in·te·grate  
tr.v. re·in·te·grat·ed, re·in·te·grat·ing, re·in·te·grates
To restore to a condition of integration or unity.

 themselves into their society.").

(34) See John Davenport, Just War Theory, Humanitarian Intervention, and the Need for a Democratic Federation, FORDHAM UNIV. 36-37, (last visited Mar. 11, 2011) (discussing the concept that state sovereignty should be conceived as "derivative from recognizing 'socially basic rights' and providing (to some significant degree) the goods to which they entitle individual citizens: for government [rights] are ... derived from the rights of the people").

(35) As writers like Martin L. Cook and Henry Shue complained, the underlying conceptions of sovereignty and territorial integrity seemed, in the latter instances at least, unintentionally to grant the legal right to commit unlimited wrongs with the legally secure jurisdiction of one's own borders. As Cook remarked at the time, this seemed a steep moral price to pay for collective security. See MARTIN L. COOK, Tim MORAL WARRIOR: ETHICS AND SERVICE IN AGE U.S. MILITARY (2004); Henry Shue, Limiting Sovereignty, in HUMANITARIAN INTERVENTION AND INTERNATIONAL RELATIONS 11, 12 (Jennifer M. Welsh ed., 2004); MARTIN L. COOK, UNCHARTED WATERS, 7th Annual Stutt Lecture, U.S. Naval Academy (Feb. 23, 2006), available at

(36) Including former Vice President Richard Cheney, national security adviser Richard Perle, deputy defense secretary Paul Wolfowitz, Secretary of State Condelezza Rice, and a number of prominent neoconservative political theorists (including both William and Irving Christol), collectively known as "neocons" or derided by their critics as "chicken hawks." See Cheyney Ryan's recent assessment. CHEYNEY RYAN, THE CHICKENHAWK SYNDROME: WAR, SACRIFICE, AND PERSONAL RESPONSIBILITY 1-2 (2009).

(37) Lucas, The Role of the International Community, supra note 4; Lucas, Methodological Anarchy: Arguing about Preventive War, supra note 4.

(38) See MICHAEL L. GROSS Michael L. Gross (b. 1954) is a political ethicist and lecturer in political science at the University of Haifa where he is co-director of the Graduate Program in Applied and Professional Ethics in the Division of International Relations. , MORAL DILEMMAS OF MODERN WAR: TORTURE, ASSASSINATION Assassination
See also Murder.


Fanatical Moslem sect that smoked hashish and murdered Crusaders (11th—12th centuries). [Islamic Hist.: Brewer Note-Book, 52]


conspirator and assassin of Julius Caesar. [Br.
, AND BLACKMAIL IN AN AGE OF ASYMMETRIC CONFLICT (2010); Jeffrey Reiman, Ethics for Calamities: How Strict is the Moral Rule Against Targeting Noncombatants? 93-106, in EMPOWERING OUR MILITARY CONSCIENCE: TRANSFORMING JUST WAR THEORY AND MILITARY MORAL EDUCATION (Roger Wertheimer ed., 2010).


(40) See generally Richard Falk, Legality to Legitimacy: The Revival of the Just War Framework, HARV. INT'L REV. (May 6, 2006),,2; Michael Walzer, The triumph of just war theory--and the dangers of success, SOCIAL RESEARCH (2002),

(41) See generally John Dugard, International Terrorism and the Just War, 12 STAN. J. INT'L STUD. 21 (1977); Ruti Teitel, The Wages of Just War, 39 CORNELL INT'L L.J. 689 (2006).

(42) To date, as I stated in the introduction to this paper, there have been two substantive answers: the collective set of guidelines emerging from what might be termed scholarly debate and analysis during the 1990s, to which I referred above (and which are re-printed in Table 1), and the work of international diplomats during the period 2000-2005, under the aegis of the Canadian government and the United Nations, addressed primarily to the dilemma of intervention to protect the peoples of failed states like Rwanda from harm. This work, originally undertaken by the International Commission on Intervention and State Sovereignty (2001) has come to be known as "The Responsibility to Protect" (R2P). See INTERNATIONAL COMMISSION ON INTERVENTION AND STATE SOVEREIGNTY, (last visited Mar. 11, 2011).

(43) As an illustration of the trouble one can generate: the three divisions of the American Philosophical Association, for example, considered a resolution opposing the proposed American-led intervention in Iraq, which offered as its chief justification for such opposition the claim that: "Both [JWT JWT J. Walter Thompson (agency)
JWT Java Windows Terminal
JWT Just War Theory
JWT Jim Wolf Technology
JWT Java Workflow Tooling
JWT John Wayne Trail (US Army Yakima Training Center)
JWT Justified War Theory
] and international law say that states may resort to war only in self-defense." American Philosophical Association Resolution: Philosophers Vote Overwhelmingly Against the War, Feb. 2003, VANDERBILT UNIVERSITY, available at Neither, of course, says any such thing without considerable ambiguity, though this is a fair (if imprecise) summary of what might be termed the "historical vector" of JWT away from ambiguous moral discourse and toward the specificity and clarity afforded by the legalist paradigm, in which only self defense against aggression constitutes a justification for war. This resolution as stated initially was passed in the Eastern division by a margin of nearly five-to-one, notwithstanding its historical and factual inaccuracies. The Pacific division, by contrast, passed a modified resolution expressing "serious doubts about the morality, legality and prudence of a war against Iraq led by the United States," on somewhat less than a three-to-one majority, only after deleting as inaccurate the characterization of just war doctrine and international law contained in the earlier draft. Proceedings and Addresses of the American Philosophical Association, 77 AM. PHILOSOPHICAL ASS'N 2 (Nov. 2003), available at (The Central Division wisely deferred the motion, on the grounds that its substance exceeded the range of their collective expertise).

(44) See Ragvi Mahalingam, The Compatibility of the Principal of Nonintervention non·in·ter·ven·tion  
Failure or refusal to intervene, especially in the affairs of another nation.

 with the Right of Humanitarian Intervention, 1 UCLA UCLA University of California at Los Angeles
UCLA University Center for Learning Assistance (Illinois State University)
UCLA University of Carrollton, TX and Lower Addison, TX
 J. INT'L L. & FOREIGN AFF AFF Affectionate
AFF Affirmative
AFF Adult FriendFinder (website)
AFF American FactFinder (US Census data retrieval system)
AFF Accelerated Free Fall (type of skydiving training) 
. 221 (1996), see also Saira Mohamed, Restructuring the Debate on Unauthorized Humanitarian Intervention, 88 N.C.L. REV. 1278 (2010), available at uploads/2010/05/Mohamed.wptd_.pdf.

(45) See Appendix; see also LUCAS, PERSPECTIVES ON HUMANITARIAN INTERVENTION, supra note 4; see also GEORGE R. LUCAS, JR. & WILLIAM RUBEL ru·bel  
See Table at currency.

[Belarusian, from Old Russian rubl, cut, piece; see ruble.]

Noun 1.
, ETHICS & THE MILITARY PROFESSION: THE MORAL FOUNDATIONS OF LEADERSHIP (Pearson, 2004; 3rd ed. 2010) (The table included in the appendix to this article is widely studied by future military officers in the United States).





(50) Id. at 8.

(51) Id. at xiii.

(52) See id. at vii-viii.

(53) Id. at 57.

(54) INT'L COMM'N ON INTERVENTION AND STATE SOVEREIGNTY, supra note 49, at 57 (2001). The later, and broader, U.N. High-Level Panel report put this matter succinctly in its executive summary:
   Long-established customary international law makes it clear that
   States can take military action as long as the threatened attack is
   imminent, no other means would deflect it, and the action is
   proportionate. The Security Council has the authority to act
   preventively, hut has rarely done so. The Security Council may well
   need to be prepared to be more proactive in the future, taking
   decisive action earlier. States that fear the emergence of distant
   threats have an obligation to bring these concerns to the Security

REP. OF THE U.N. HIGH-LEVEL PANEL ON THREATS, CHALLENGES AND CHANGE, A MORE SECURE WORLD: OUR SHARED RESPONSIBILITY (EXECUTIVE SUMMARY) 4 (2004), available at While implicitly a rebuke to the U.S. for waging unilateral or vigilante vigilante n. someone who takes the law into his/her own hands by trying and/or punishing another person without any legal authority. In the 1800s groups of vigilantes dispensed "frontier justice" by holding trials of accused horse-thieves, rustlers and shooters, and  preventive war, the statement acknowledges the importance of considering this option at some level as an appropriate response to international criminal conspiracy or a pending humanitarian crisis. Taken in context, moreover, the issue is treated as part and parcel of a comprehensive approach toward international law and order that incorporates preventive war, counter-terrorism, and law enforcement with humanitarian intervention, peace-keeping, and stability operations. Id.

(55) INT'L COMM'N ON INTERVENTION AND STATE SOVEREIGNTY, supra note 49. At the time of this writing, the U.N.'s attempt to respond to the rebellion and retaliation in Libya are providing a dramatic test of the structural limitations described in the report.

(56) Joseph J. Collins, Planning Lessons from Afghanistan and Iraq, 41 JOINT FORCES QUARTERLY, June 2006, at 10 (noting the difference between conventional warfare and the asymmetric wars in Afghanistan The term Wars in Afghanistan may refer to:
  • Islamic conquest of Afghanistan (637-709)
  • First Anglo-Afghan War (1839-1842)
  • Second Anglo-Afghan War (1878-1881)
  • Panjdeh Incident (1885)
  • Third Anglo-Afghan War (1919)
 and Iraq).

(57) Id.

(58) See generally INST. FOR NAT'L STRATEGIC STUDIES, GLOBAL STRATEGIC ASSESSMENT: AMERICA'S SECURITY ROLE IN A CHANGING WORLD 145-61 (2009) (describing the humanitarian interests involved after the close of conventional warfare).

(59) See generally, U.S. ARMY & MARINE CORES, COUNTERINSURGENCY FIELD MANUAL, Forward (2006) ("A counterinsurgency campaign is, as described in this manual, a mix of offensive, defensive, and stability operations conducted along multiple lines of operations Lines that define the directional orientation of the force in time and space in relation to the enemy. They connect the force with its base of operations and its objectives. .").

(60) Id.

(61) This is my terminology, introduced originally in a NEH-sponsored "Summer Institute on War and Morality" that I co-directed with Dr. Albert Pierce in 2004. Lucas, Methodological Anarchy, supra note 4, at 33 (Roger Wertheimer ed., 2010). The term is employed effectively by one of the participants in that institute, Prof. Jordy Rocheleau, in Preventive War and Lawful Constraints on the Use of Force: An Argument against International Vigilantism, 198-202, in RE-THINKING THE JUST WAR TRADITION (Eds. Brough, Lango, & van der Linden Albany, NY: State University of New York Press The State University of New York Press (or SUNY Press), founded in 1966, is a university press that is part of State University of New York system. External link
  • State University of New York Press
, 2007) (citing my then-unpublished work).

(62) See Allen Buchanan & Robert Keohane, The Preventive Use of Force: A Cosmopolitan Institutional Proposal, 18 ETHICS & INT'L AFF. 1, 4 n.8 (2004) ("The humanitarian law of war can be seen as an imperfect institutionalization Institutionalization

The gradual domination of financial markets by institutional investors, as opposed to individual investors. This process has occurred throughout the industrialized world.
 of some of the most important jus in hello principles of just war theory. However, given the distinctive risks of the preventive use of force, special institutional arrangements are required for responsible decisions to use force preventively, over and above better compliance with rules of humane warfare that are designed to apply to all uses of force."); David Luban, Just War and Human Rights, 9 PHIL. & PUB. AFF. 160, 173 (1980) ("In such circumstances a conception of jus ad bellum like the one embodied in the UN definition fails to address the moral reality of war. It reflects a theory that speaks to the realities of a bygone era.").

(63) See Michael Walzer, The Crime of Aggressive War, 6 WASH. U. GLOBAL STUD. L. REV. 635, 640 (2007) ("It seems to me that prevention is still wrong; ordinary brutality is not a just occasion for military attack.").

(64) See generally George R. Lucas, Jr., "This Is Not Your Father's War"--Confronting the Moral Challenges of "Unconventional" War, 3 J. NAT'L SEC. L. & POL'Y 329 (2009).

(65) U.N. Secretary-General, Follow-up to the outcome of the Millennium Summit: Note by the Secretary-General, [paragraph][paragraph] 5-11, U.N. Doe. A/59/565 (Dec. 2, 2004).

(66) See generally, MARTIN L. COOK, THE MORAL WARRIOR 39-53 (2004).

(67) Id. at 51.

(68) Id. These arguments originally appeared in the author's 1994 Reiff Lecture at the U.S. Air Force Academy: WHY SERVE THE STATE?" THE MORAL FOUNDATIONS OF MILITARY OFFICERSHIP.

(69) See Appendix, below.

(70) It bears mention that Martin Cook now questions the very intelligibility, as well as the practical feasibility, of attempting to do this. See Martin Cook, Accountability for International Intervention/Protection Activities, 29 CRIMINAL JUSTICE ETHICS 2 (2010). Alongside serious practical problems of poor performance and lack of accountability of peace-keeping forces themselves, he raises serious conceptual objections. If R2P, for example, constitutes an "imperfect duty" in the sense described above, then it is in principle impossible to legislate, because we cannot intelligibly compel nations to "do good works" for unspecified others. Id. This involves thinking clearly not only about "sovereignty" per se, but also about the purpose and function of nations themselves as guarantors of security and common life for their citizens. Using their militaries for benevolent but risky purposes in other, failing states may constitute a violation of the tacit underlying agreement that any nation has with its own military personnel, and it would be beyond the legal reach of the U.N. or the international community to override this contractual arrangement by compelling any nation to utilize its military in this fashion.

(71) See Appendix, Table I, Provision 3(i).

(72) The ICISS report offers some, but not a great deal, of guidance regarding humanitarian operations, and none regarding any other features of IW. It holds principally that such operations must proceed on the basis of "clear objectives; clear and unambiguous mandate at all times; and resources to match" and entail what the report terms a "common military approach among involved partners; unity of command; clear and unequivocal communications and chain of command." It cautions that such operations require acceptance by the intervening forces of "limitations, incrementalism in·cre·men·tal·ism  
Social or political gradualism.

 and gradualism grad·u·al·ism  
1. The belief in or the policy of advancing toward a goal by gradual, often slow stages.

2. Biology
 in the application of force, the objective being protection of a population, not defeat of a state." To this end, the report urges the adoption by intervening militaries of "rules of engagement which fit the operational concept; are precise; reflect the principle of proportionality; and involve total adherence to international humanitarian law," and, in particular, that such forces accept "that force protection cannot become the principal objective" of the humanitarian mission. ICISS, THE RESPONSIBILITY TO PROTECT: PRINCIPLES FOR MILITARY INTERVENTION [paragraph] 4(a-d) (Dec. 2001), available at

(73) Appendix, Table I.

(74) U.S. ARMY & MARINE CORPS, COUNTERINSURGENCY FIELD MANUAL3-25 (2007). This is not to argue that these circumstances are new or unprecedented. President George Washington offered advice on just these points to Col. Benedict Arnold, during what American historian, Joseph J. Ellis, termed "America's first preemptive war" against Canada in 1775. Much of his advice, like that of General Petraeus in the U.S. Army's current COIN manual, concerns showing respect to the inhabitants of occupied territories, whose affections we wanted at least not to alienate, treating POWs well, avoiding the commission of atrocities or acts of wanton cruelty and punishing its own individual members for any perceived infractions of these basic principles by the intervening army, and finally, showing "cultural awareness" and sensitivity, especially in matters of religion. See Brian O'Malley, Lessons on Iraq From a Founding Father, WASH. POST, Mar. 1, 2008, at A-15. Arnold's troops, the article avers, won the affections of Canadians initially, but squandered their good will through blatant and repeated violations of Washington's edicts.

(75) Appendix, Table I.

(76) Id. at 7(v).

(77) Ronald Rokosz & Charles Hash, Changing the Mindset mind·set or mind-set
1. A fixed mental attitude or disposition that predetermines a person's responses to and interpretations of situations.

2. An inclination or a habit.
 Army Antiterrorism an·ti·ter·ror·ist  
Intended to prevent or counteract terrorism; counterterror: antiterrorist measures.

 Force Protection, JOINT FORCES Q., Autumn/Winter 1997-98, at 112.

(78) George R. Lucas, Jr., New Rules for New Wars: Just War Doctrine for Irregular War (2006), pages416035/p416035-1.php.

(79) In Rwanda, this was the case for Belgian Army Captain Luc Lemaire at the Don Bosco school compound, and U.S. Army Captain Lawrence Rockwood in Haiti concerning the welfare of Haitian political prisoners. Both cases are described in CASE STUDIES IN ETHICS AND THE MILITARY PROFESSION, EDS. GEORGE R. LUCAS, JR. AND W. R. RUBEL (3d ed., New York: Pearson, 2007).

(80) Id.

(81) Walzer, supra note 19, at 305.

(82) Id. at 304-324.

(83) Kevin Parker, Worth the Risk: Balancing Force Protection to Achieve Effective COIN Results, THE WRIGHT STUFF (Feb 3, 2011), 0603/0603Articles/MajParkerOnCOIN.pdf.

(84) See Brian Orend, Just War Theory and the Ethics of War and Peace, in THE ASHGATE RESEARCH COMPANION TO ETHICS AND INTERNATIONAL RELATIONS 115, 117 (Patrick Hayden ed., 2009); see also BRIAN OREND, MICHAEL WALZER ON WAR AND JUSTICE, 94 (2000) (presenting a discussion of "fight intention" in Walzer's theory of jus ad bellum); see also BRIAN OREND, WAR AND INTERNATIONAL JUSTICE: A KANTIAN PERSPECTIVE 190 (2000) (discussing "right intention" from a Kantian point of view).

(85) See BRIAN OREND, THE MORALITY OF WAR 31 (2006) (presenting the history of just war theory and examining its multiple dimensions as being logically and conceptually distinct, but inextricably in·ex·tri·ca·ble  
a. So intricate or entangled as to make escape impossible: an inextricable maze; an inextricable web of deceit.


(86) See Lucas, The Reluctant Interventionist: The Critique of Realism and the Resurgence of Morality in Foreign Policy, supra note 4; Lucas, From Jus ad bellum to Jus ad pacem, supra note 4.

(87) See EMPOWERING OUR MILITARY CONSCIENCE, supra note 38 (Ed. Roger Wertheimer; presenting a collection of works on the education of just war theory and ethics for military personnel).

George R. Lucas, Jr., Professor of Ethics and Public Policy, Naval Postgraduate School The Naval Postgraduate School is a graduate school operated by the United States Navy. Located in Monterey, California, it grants primarily master's degrees plus some doctoral degrees to its students, who are mostly active duty officers from U.S. and foreign military services. , Monterey, California and Class of 1984 Distinguished Chair of Ethics, United States Naval Academy United States Naval Academy, at Annapolis, Md.; for training young men and women to be officers of the U.S. navy or marine corps. George Bancroft, Secretary of the Navy, founded and opened (1845) it as the Naval School at Annapolis. , Annapolis, Maryland.
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Title Annotation:Divided Loyalties: Professional Standards and Military Duty
Author:Lucas, George R., Jr.
Publication:Case Western Reserve Journal of International Law
Date:Jan 1, 2011
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