The distinction between offensive and defensive force is central to modern international law. As developed in the interwar years and later codified in the United Nations Charter, international law has strictly banned resort to offensive force, the only possible exception being operations mandated by the Security Council. In the just war tradition (JWT), by contrast, some kinds of offensive force are permitted, including humanitarian interventions. This article compares these two different ways of understanding the distinction between offensive and defensive force. It suggests that there is a need to specify in which cases the offensive use of force may be legitimate for humanitarian purposes, and it does so by drawing on the just war idea of `reaction against wrong-doing'. The concept of a reactive use of force, inspired by St. Augustine and the subsequent JWT, is thus central to the article's argument.
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References
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* The authors are Senior Researchers at the International Peace Research Institute, Oslo (PRIO). They acknowledge the very useful comments from four anonymous referees and the journal's editor. Work on this article would not have been possible without grants from the Norwegian Ministry of Defense and the Research Council of Norway.
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1 James Gow, `A Revolution in International Affairs?', Security Dialogue, vol. 31, no. 3, September 2000, pp. 293-306.
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2 Michael Walzer, `The Argument About Humanitarian Intervention', Dissent, Winter 2002, pp. 29-37, on p. 30.
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3 See, for instance, Noam Chomsky, The New Military Humanism (London: Pluto, 1999).
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4 Walzer (note 2 above), p. 32.
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5 Michael Walzer, `The Politics of Rescue', Dissent, Winter 1995, pp. 35-41, on p. 35.
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6 Independent International Commission on Kosovo, The Kosovo Report (Oxford: Oxford University Press, 2000), p. 4; available at www.kosovocommission.org. This report can be taken to imply that humanitarian intervention is an exception to a general prohibition on war, which indeed seems to be the view of influential scholars, including Michael Walzer and Nicholas Wheeler.
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See also Ramesh Thakur, `Intervention, Sovereignty and the Responsibility to Protect: Experiences from ICISS', and J. Peter Burgess, `The Foundation for a New Consensus on Humanitarian Intervention' (Reference Review), Security Dialogue, vol. 33, no. 3, September 2002, pp. 323-340 and 383-384, respectively.
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and Augustine, Political Writings, eds Ernest L. Fortin & Douglas Kries (Indianapolis, IN: Hackett, 1994), pp. 26-27, 32, 130-131, 148-155, 205-229.
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9 See Augustine, On Free Choice of the Will, 1.5.11-1.6.13, in Swift (note 8 above), pp. 131-134; and Letter 47.5, in Swift, p. 130.
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10 See, for instance, Letter 153.6, in Swift (note 8 above), p. 112; and City of God, 19.7 and 12, in Swift, pp. 114, 116.
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11 See Letter 189.6, in Swift (note 8 above), pp. 114-115; and Letter 229.2, in Swift, p. 115.
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12 See James Turner Johnson, Can Modern War Be Just? (New Haven, CT: Yale University Press, 1984), pp. 19ff.
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13 James Turner Johnson, Morality and Contemporary Warfare (New Haven, CT: Yale University Press, 1999), p. 103.
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14 See Thomas Pangle & Peter Ahrensdorf, Justice Among Nations (Lawrence, KS: University Press of Kansas, 1999), pp. 218-238, for a summary statement of this realist view, as made famous by Hans Morgenthau.
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15 Francisco de Vitoria, `On the Law of War', in Anthony Pagden & Jeremy Lawrance, eds, Vitoria: Political Writings (Cambridge: Cambridge University Press, 1991), pp. 293-327. The terminology of offensive and defensive war is first introduced on p. 297.
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16 Suárez later summed up this viewpoint when he characterized defensive war as a reactive response to violent deeds that are in the process of being perpetuated (or about to take place) and which have not yet come to completion. In contradistinction, offensive war seeks redress for a wrong whose effects are still felt in the present, but where, nevertheless, the injurious deed itself is already past and done (`On War', in Selections from Three Works [Buffalo, NY: William S. Hein, 1995], p. 804).
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17 Vitoria (note 15 above), p. 303.
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18 Ibid., p. 304.
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19 However, among just war thinkers a dispute arose on the question whether the moral mandate to wage offensive war might legitimately be transferred from a higher to a lower authority in cases where the former had shown negligence in rectifying wrongs committed under its jurisdiction. Vitoria responded in the affirmative (`On the Law of War' [note 15 above], p. 302), and Suárez in the negative (`On War' [note 16 above], p. 807).
21.
See Gregory Reichberg, `Just War or Perpetual Peace?', Journal of Military Ethics, vol. 1, no. 1, 2001, pp. 16-35, especially pp. 25-27, for a discussion of Dante's views on war, as presented in his treatise Monarchia.
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21 Yasuaki Onuma, A Normative Approach to War: Peace, War, and Justice in Hugo Grotius (Oxford: Clarendon Press, 1993), p. 109.
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22 This is the terminology that Vitoria uses in `On the Law of War' (note 15 above), p. 302.
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23 Onuma (note 21 above), p. 108.
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24 Suárez (note 16 above), p. 817.
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25 Ibid.
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26 Kant, in his influential Perpetual Peace, hints at an even more rigorous set of conditions for humanitarian intervention (see Immanuel Kant, Political Writings, ed. Hans Reiss [Cambridge: Cambridge University Press, 1970], especially pp. 96-97).
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27 In particular, Article 51 of the UN Charter; see Peter Malanczuk, Akehurst's Modern Introduction to International Law, 7th rev. edn (London & New York: Routledge, 1997), pp. 311-318.
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28 It should be added that the UN Charter stipulates that the right to self-defense is temporary; it lasts only `until the Security Council has taken measures necessary to maintain international peace and security' (see Christine Gray, International Law and the Use of Force [Oxford: Oxford University Press, 2000], p. 93). There is disagreement as to what this implies under circumstances where the UNSC takes measures that prove to be ineffective.
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29 See Michael Walzer, Just and Unjust Wars (New York: Basic, 1977), pp. 80-85, for a JWT-based discussion of pre-emptive strikes.
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30 UN Charter, Chapter VII; see Malanczuk (note 27 above), pp. 387-415.
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31 See Gray (note 28 above), pp. 26-42, for a thorough discussion of this question; see also Frederik Harloff, `Unauthorised Humanitarian Intervention: Armed Violence in the Name of Humanity?', Nordic Journal of International Law, vol. 70, no. 1, January 2001, pp. 65-119, where it is pointed out that it is still very unclear `whether and to what extent the international community is entitled to forcibly compel its members to respect human rights and humanitarian law' (p. 66).
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32 See Gray (note 28 above), ch. 7, for a discussion of the importance of regional organizations and arrangements in recent UN policy.
34.
33 However, some of them, such as Walzer (`The Argument About Humanitarian Intervention' [note 2 above], pp. 31-33) and Johnson (Morality and Contemporary Warfare [note 13 above], pp. 60-61), stress the imperfect and provisional character of the UN's Security Council arrangement.
35.
34 A possible exception may be the case of intervention with the aim of stopping genocide, as indicated by Article 8 of the Draft Code of Crimes Against the Peace and Security of Mankind (1996), available at http://www.un.org/law/ilc/texts/dcode.htm.
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35 UN Charter, Article 51.
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36 See ICISS (note 7 above), p. xiii.
38.
37 See Michael J. Glennon, `The New Interventionism: The Search for a Just International Law', Foreign Affairs, vol. 78, no. 3, May/June 1999, pp. 2-7.
39.
38 See Walzer (note 2 above). For a discussion of NATO's Kosovo intervention in the light of Vitoria's teaching on the transferal of legitimate authority from a higher to a lower instance by reason of `necessity', see Reichberg (note 20 above), pp. 23-25.
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39 James Gow (note 1 above) accepts that humanitarian interventions may be undertaken for the defense of human values, yet he radically suggests that this aim should come under the heading of `self-defense'. For a rebuttal of Gow's argument for an enlarged concept of self-defense, see Henrik Syse, `Ethics, Sovereignty, and Self-Defense: A Rejoinder to James Gow', Security Dialogue, vol. 31, no. 4, December 2000, pp. 437-442.
41.
40 See the commission's 2001 report (note 7 above), pp. xi-xiii, 32-35.
42.
Malanczuk (note 27 above), pp. 316-317.
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42 See Gray (note 28 above).
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43 Christine Gray (ibid., pp. 90-92) emphasizes the importance in international law of reporting to (and debating in) the UNSC any interstate use of armed force, even undertaken in strict self-defense.
45.
44 George R. Lucas, Jr., Perspectives on Humanitarian Military Intervention (Berkeley, CA: Berkeley Public Policy Press, 2001), p. 48.
46.
45 Independent International Commission on Kosovo (note 6 above), p. 10. It is in essence such a framework - both ad bellum and in bello - that ICISS (note 7 above) attempts to construct.
