As war loomed over Kosovo 10 years ago, Germany’s then foreign minister, Joschka Fischer, said that the principle that had always governed his involvement in politics was: “Never again war; never again Auschwitz!”
Ethnic cleansing and violence in Kosovo, however, soon made it clear to him that there were moments when one had to choose between those two imperatives: a new Auschwitz sometimes could be prevented only by means of war.
The idea of a “just war,” legitimized by a justa causa (just cause), though scorned for many years, is thus back in vogue. The notion used to be frowned upon because any warring party tends to view its own cause as just. Moreover, in the absence of an impartial judge, a winner can always impose his “truth” upon the vanquished, as happened with the Treaty of Versailles after World War I.
While “just wars” seem to be back, international law has also come to condemn waging aggressive (“unjust”) war as a punishable crime, with the consequence that every warring party now declares its wars to be a defense against foreign attack, much as Adolf Hitler did in 1939. Indeed, all war ministries have become “defense ministries,” leaving one to wonder against whom a country must be defended if there are no longer any attackers. But in this matter as well, the winner gets to judge who was the aggressor, so it is fortunate that Hitler did not prevail.
Of course, military intervention for purposes beyond defending one’s country remains possible, but requires a UN Security Council resolution. The latter alone, provided no permanent member of the Security Council disagrees, can decide whether a war is legitimized by a “just cause” (nowadays generally a gross breach of human rights).
The Security Council’s permanent members thus remain legibus soluti, ie, sovereign in the seventeenth-century sense of the word, meaning “able to do evil with impunity.”
The right of humanitarian intervention limits the sovereignty of all other countries. Behind this is the notion that respect for human rights can be enforced externally, together with the hope that rulers will behave better because they recognize that they may be held accountable for violating human rights.
Whether this hope is justified remains to be seen. In the meantime, the return to the idea of a “just cause” carries big risks, especially evident when, as happened in Georgia, a great power claims the mantle of a protector of the rights of its nationals in a neighboring country. If this idea stands, Russian minorities from the Baltic to the Crimea may turn out to be ticking time bombs.
The idea of the “moral indifference” of the law of war is based on the recognition that wars will not be eliminated, and that they should instead be limited and their horrors mitigated by universally applicable rules of conduct. Precisely because it is less ambitious than the principle of “just war,” moral indifference has been tremendously successful in mitigating war’s horrors by banning some particularly inhuman types of weapons, forcing armies to protect civilians and accord humane treatment to prisoners of war, banning annexations, etc.
The pacifist Leo Tolstoy, in his novel War and Peace, regarded this pruning and tending of war as cynical. Wars shouldn’t happen at all, he believed. On the other hand, Tolstoy justified the unrestrained and unregulated eruption of public anger and the furious slaying of retreating French soldiers by Russian peasants. Mao Zedong (毛澤東) would approve.