Of Legalism and Intervention

by Adam Johnson

In Chapter 6 of Just and Unjust Wars, Walzer addresses the complicated issue of wars of intervention. Under the premise that aggression is the most important (or perhaps only) factor in determining if a war is just or unjust and the only wars waged in good moral standing are defensive, wars of intervention seem to be rather directly disallowed. Indeed, military intervention to reshape the internal affairs of another nation very clearly runs counter to the doctrine of respecting the territorial and political sovereignty of nation-states. Walzer however claims that intervention is effectively in a different category than the standard aggressive war and can in fact be justified (86). Walzer then moves to establish three cases in which intervention is morally justified, roughly paraphrased as 1) when there are issues of secession/national liberation resultant from multiple political communities residing in the same national borders, 2) when another foreign power has already become involved, and finally 3) extreme human rights violations (90). My purpose in this paper is to support these three cases (with some slight modifications to case two), but rather than using Walzer’s appeal to self-help and self-determination doctrines as justification, to instead articulate a refined legalist justification centered around the ideas of sovereignty, legitimacy, failed states, and revolution.

First let us tackle case one – that of secession and national liberation. It is important to note that Walzer clarifies that in the event of multiple political communities residing within the same borders, one of these communities must already be engaged in large-scale military efforts to acquire independence before intervention can be allowed. (90) This prevents such things as intervention in America as even though we are quite polarized politically today, we have some how refrained from large-scale military conflicts internally. The implication here is basically thus: unless one political community feels oppressed/under represented enough to fight for escape, no intervention is allowed. To me, this is rather obviously and strongly tied to the notion of political legitimacy. In the event that a political community rightly feels so seriously wronged by its fellow communities/state, a drastic failure and breakdown of the state’s responsibility to the people has occurred, which in turn predicates that the state has lost or at least severely damaged its political legitimacy and sovereignty. This has extremely important implications for the legalist stance on just war theory, as legalism only forbids nation-states from aggressive wars against other sovereign nation-states. In the event that the government has acted in such a way as to present itself as a failed state, legalism allows us to intervene, as we do not risk violating the territorial or political sovereignty of a fellow nation-state since a failed state has neither of these things. Furthermore, I would like to point out that in the circumstance of a political community being justified in having a military conflict in order to achieve independence is more commonly known as a just revolution. Therefore, it seems to follow that once an internal revolution is justified, so too is outside intervention.

Though Walzer’s second case for intervention – when another foreign power has already become involved – is somewhat problematic, cashing it out in legalist terms of sovereignty serves to reduce some possible sticking points. For Walzer, counter intervention is not about winning the war, but rather to accomplish a balancing act to “maintain or restore the integrity of a local struggle” and military action on the part of the counter-intervening state should be “roughly equivalent to that of the other intervening states.” (100) Obviously, the goal in this approach is to ensure the self-determination of the state in question. Unfortunately this noble goal runs into some issues. First of all, Walzer does not seem to give any credence to a situation in which the original intervention was in fact justified. The problems associated with countering a legitimate intervention are obvious enough. Furthermore, there is simply something innately flawed with the stance of finding one side distasteful enough to counter-intervene, but only enough to even the odds, and not have the goal of actually winning the war. It seems inappropriate at best to throw away resources and human lives in order to put up a half-assed fight against something you would not address at all had another foreign power simply stayed out of it. We can, however, salvage case two with a small, yet important, additional word and by cashing it out in legalistic terms of sovereignty. Firstly and obviously the addendum – modifying the original claim from ‘when another foreign power intervenes’ to ‘when another foreign power intervenes illegitimately’ avoids the mess of counter-intervening against a legitimate intervention. Furthermore, this distinction between legitimate and illegitimate interventions allows us to hold a more logical stance concerning the local integrity of the conflict in terms of legalism. Thusly, if a separate foreign power illegitimately intervenes, it is threatening the sovereignty of the invaded state, which of course is ‘illegal’ according to international tradition, if you will, therefore we are free to counter-intervene in order to preserve the sovereignty of the nation enduring the conflicts.

Finally we come to case three for intervention – mass violation of human rights. Walzer manages to soften some of the errors of his defense of case two here, stating in the event of widespread atrocities “we don’t want the local balance to prevail…the appeal to self-determination in the sense of Millian self-help is not very attractive.” (101) Here again, however, I will turn to legalism to defend this position. Walzer describes and defines these mass violations as activities that “shock the moral conscience of mankind…the moral convictions of ordinary men and women, acquired the course of their everyday activities.” (106) Though this is vague enough to warrant a fuller fleshing out, for the purposes of this argument it will work well enough, especially when coupled with the parameters used by the Nuremburg code to define crimes against humanity. The existence of the Nuremburg code at all seems to heavily favor the legalist stance in the case of mass human rights violations. In the all too common event of ethnic cleansing, genocide, and severe oppression, the Nuremburg code gives us leeway to intervene and halt the atrocities. Furthermore, in a more general sense this situation is remarkably similar to that of a political community fighting for independence from case one. Here again, the state has acted in such a way as to become a failed state and lose its political sovereignty, once again paving the way for legitimate intervention. Likewise, again it seems that once an internal revolution can be justified, so too can the intervention of an outside foreign power be justified.

All in all, Walzer has provided us with at least an excellent starting point for evaluating wars of intervention. He gives us three cases--secession/national liberation, counter-intervention, and human rights violations--that are compelling and mostly well-defended in terms of self-determination that allow a certain amount of bending of the standard rules of war and aggression and can thusly justify a war of intervention. While I very much like and agree with these three cases, I feel a stauncher legalism in terms of political legitimacy and sovereignty provide a much stronger defense of these cases than Walzer provides himself as it follows a more internally consistent system than that of 'sometimes it is okay to aggressively violate a nation's political and territorial sovereignty.'