But when the case for military intervention and regime change shifted to Iraq, the problematic character of the earlier just war approval became more apparent. There was a lack of evidence establishing defensive necessity, including any plausible serious linkage between the secular tyranny of Saddam Hussein and the Islamic extremism of Osama bin Laden. A possible argument for humanitarian intervention existed, but it was far weaker than in prior years, especially during the early 1990s; there was no current urgency, the interventionists had previously supported the Baghdad regime during its period of worst atrocities, and there were grounds to suspect that humanitarianism was invoked as a pretense designed to hide the pursuit of oil and the military establishment of regional control. When the war in Iraq ensued over the opposition of the UN Security Council and the validating claim of removing improperly possessed weapons of mass destruction soured, the Bush administration emphasized the liberating impact of its intervention. The claim is refuted by the growing evidence of a widely based resistance to the US-led occupation of the country. Here the vitality of international law remains valuable, prohibiting such wars of choice, and the limits of the just war approach become evident, allowing flimsy, self-serving justifications for an illegal war to possess a facade of credibility.

New Framework for Intervention

In the realities of global politics, there are several levels of interaction, each with an appropriate logic of justification relating to the interventionary use of force. On the level of state-to-state relations, wars of choice fought for strategic gain should remain under the prohibitory mantle of international law and the authority of the United Nations. From such a perspective it is correct to reinforce the wide rejection of the war in Iraq by world public opinion and by the legal considerations used to condemn recourse to aggressive war by Germany and Japan in World War II.

The distinct challenge posed by Al Qaeda, a dual approach needs to be used, combining a rationale based on just war thinking with the possibility of altering the parameters of defensive necessity under international law. To the extent that the new imperatives of security are relied upon to expand the right of self-defense via an argument for “preemptive war,” the facts and procedures must confirm the magnitude and imminence of the threat, and the post hoc justification by way of humanitarian intervention cannot be allowed. On the level of humanitarian intervention, the debate over law and justice remains unresolved, with a persisting tolerance for interventionary uses of force to prevent a humanitarian catastrophe of the kind associated with genocide. There is, however, a strong preference for UN authorization, and at least, a regional endorsement, as well as a convincing argument that intervention is necessary and is a last resort.

The discussion of conceptual frameworks available to lend or withhold approval from interventionary uses of force challenges us to find ways to walk the shaky political tightrope between humanitarian action and war prevention. The United States, acting under the banner of a war against terrorism, now claims the unilateral prerogative to fight wars of choice that violate the guidelines embedded in modern international law after centuries of effort by seasoned diplomats. US President Bush drove this point home in the 2004 State of the Union Address with his provocative statement that “America will never seek a permission slip to defend the security of our country.”

At the same time, the last decade of the twentieth century gave rise to a new humanitarian diplomacy seeking to protect those facing humanitarian catastrophe. The most pressing challenge in this setting is to endow the world community with the capability to address humanitarian emergencies without weakening the bonds of restraint that restrict war-making by states. One promising initiative that would help restore a positive balance would be the establishment of a voluntary peace enforcement capability within the framework of the United Nations, activated by a two-thirds decision of the Security Council, four-fifths recommendation of the General Assembly, and the approval of the Secretary General as enunciated in an explicit public document, and funded by either voluntary contributions or a global tax imposed on multinational corporations and banks. The objective would be to loosen the bonds that now tie intervention to the vagaries of geopolitics, encourage democratic debate on issues of intervention, and give the organized international community a decisive role and responsibility in both redefining the relationship between human rights and state sovereignty, as well as in defining those rare circumstances in which military action should be authorized to achieve humanitarian goals. Perhaps such a proposal seems utopian, but it is no less relevant than the dystopian opening of the floodgates of wars of choice that currently threaten to undermine a logic of limits.