Burma Redux: Global Justice and the Quest for Political Reform in Myanmar (34 page)

At the end of the Cold War, when political practitioners began to construct an international humanitarian order and political theorists started to take an expanding interest in global justice, many ethical frameworks emerged. Indeed, in the first half of the 1990s the UN, a Wilton Park conference, Brown University in the Providence Principles, the World Conference on Peace and Religion in the Mohonk Criteria, the ICRC in a code agreed by eight major disaster response agencies, and Save the Children all issued guidelines to action.
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Unsurprisingly, none took much interest in abstract moral principles. By contrast, when philosophers picked up on the shift in global politics they sometimes turned for inspiration to just war theory, for two millennia a vibrant western and Islamic tradition.
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Soon discourse on humanitarian intervention actively embraced it.
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Elsewhere, in analyses of international terrorism for instance, just war principles also became central to debate.
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In these many ways, the revival of just war theorizing stimulated by publication of Walzer’s
Just and Unjust Wars
in 1977 was taken to a new level through fresh modes of interest.
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Today this body of theory is an obvious place to look when constructing a framework for ethical analysis of diverse contemporary forms of cross-border engagement.

At the heart of the just war tradition stand two major questions. When is intervention justified? How should it be undertaken? The first generates a concern with
jus ad bellum
, or just recourse to war, the second an interest in
jus in bello
, or just conduct of war.
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When debate is extended beyond war, however, several issues raised under the second heading fall away. Classic
in bello
conditions include discrimination, designed to identify legitimate human targets, proportionality, focused on morally appropriate degrees of violence, and minimum force, mandating the least possible brutality, bloodshed and loss of life. Though perhaps relevant to some degree, none of these conditions translates readily into forms of intervention falling short of warfare. For this reason, the focus here is solely on
ad bellum
conditions. It is worth noting that some theorists argue that isolating one of the two classic questions in this way is not possible.
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Jus in bello
cannot be explored in isolation from
jus as bellum
because
ad bellum
conditions set the parameters and terms of engagement. However, while this is valid, the reverse contention is not.
Jus ad bellum
can certainly be separated out and examined on its own, for a decision to intervene is logically prior to actual engagement.

Since just war theory is vital and contested,
ad bellum
conditions are drawn up in diverse ways. Nevertheless, there is broad agreement that
jus ad bellum
has seven constituent parts: just cause, right intention, legitimate authority, formal declaration of war, reasonable hope of success, last resort, and proportionality regarding aims.
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The theorists who subscribe to this list, or something very like it, hold these conditions to be jointly necessary and sufficient for award of
jus ad bellum
. The key issue for this analysis is the utility of the list in shaping an interventionist ethic stretching beyond warfare. Taken at face value, and cast in fresh language, there is no reason why these seven conditions should not be useful.

Analyzing just war theory initially on its own terms, several issues need to be addressed. One is quite minor. Formal declaration of war has fallen into considerable disuse, and has thus become inapplicable.
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Since an assessment should not hang on a practice no longer widely observed, the condition is best excluded.
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A larger issue is that just cause has always been difficult to specify clearly, and has long been problematic. “The traditional phrase ‘just cause’ is a vague one,” writes Richard Norman, “and as it stands it might appear to give no guidance at all.”
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“For many critics,” notes A. J. Coates, “… ‘just cause’ [is] the essential weak link in just war theory.”
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Beyond that, there is an ordinary language objection that just cause tends to be given a meaning equivalent to that of
jus as bellum
, implying that it is compromised if conditions such as right intention, legitimate authority and so on are not fulfilled. In everyday conversation, a cause is just if and only if it meets all the conditions on the list. For this reason, just cause is best equated with
jus ad bellum
.

If that happens, though, it is necessary to find a new condition to undertake the allotted function of just cause in the wider theory. What that mainly involves is kick-starting a process of deliberation and debate by pointing out that terrible things are happening in the world and that making war might be the appropriate response. Many argue that only self-defense can provide sufficient justification.
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Wait for someone to make war on you, or in some versions reveal that they intend to make war on you, and then consider making war back is the maxim. However, that is too limiting. It rules out pre-emptive warfare, and in principle there is no reason why it should be sidelined. Something else is thus needed. In a theory premised on justice, the obvious candidate is demonstrable injustice.
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Naturally, this does not exclude self-defense, for unprovoked attack is demonstrably unjust. On a positive note, it has the advantage of extending analysis beyond self-defense, and of grounding rights to self-defense in claims of justice.

There are therefore six conditions of just cause, and it is simply advisable to take one further step and put them in sequence. This is best done functionally, in terms of the task each is required to perform in the decision-making process generating a verdict one way or the other. Looked at like this, there are three main tasks. First, it is necessary to be clear that there exists in the world a problem to which war is the only viable solution. The twin conditions of demonstrable injustice and last resort speak jointly to this. The perceived problem can be labeled intractable injustice. Second, it is important to ensure that any proposed solution is acceptable as a response to that problem. Here legitimate authority and right intention are key. The proposed solution can be termed responsible intervention. Third, it is essential to be satisfied that resorting to war is likely to result in a better, not worse, world. Here reasonable hope of success and proportionality come into play. The risk assessment exercise can be called weighing contingent factors.

Translating all this into the larger discourse of intervention understood as cross-border political engagement, it can be argued that intractable injustice remains appropriate in provoking action. Individuals should not interfere in the politics of another jurisdiction unless they become aware of significant internal injustice. Demonstrable injustice can thus be taken unchanged from the modified version of just war theory developed here to the broader ethic. Last resort appears to be more difficult. While it makes eminent sense to argue that military engagement must be a last resort, it makes no sense to speak that way of, say, expressive state or civil pressure. Nevertheless, it is important to mandate that no foot be set on the parallel state and non-state ladders of intervention unless it is clear that citizens of the target jurisdiction are not themselves able to tackle the significant injustice they face. The remaining conditions translate almost directly from just war theory to the wider ethic. The proposed solution should certainly be responsible intervention, though here legitimate authority is best cast as appropriate authority to embrace non-state modes that may not be able to secure formal legitimacy. Right intention need not be revised. Finally, a risk assessment exercise remains imperative, and should comprise reasonable hope of success and proportionality regarding aims.

The argument is that this framework can be used to assess all eight types of intervention, and is an appropriate way to structure ethical debate. As those types combine different forms of agency, distinct modes of intervention and diverse realms of activity, the burden of proof varies across them. The injustice that provokes intervention of the most aggressive and invasive kind, war or cross-border terrorism, must be a lot more intractable than that which provokes other forms. Equally, the intervention must be embarked upon with an enhanced sense of responsibility, and the risk assessment exercise carries a heavier burden of proof. However, as cross-border political action of any kind is not to be taken lightly, the conditions listed here are always applicable. To indicate how this framework might be used in debate, it is necessary to examine the three paired sets of conditions.

Intractable injustice
identifies an unjust situation that cannot readily be treated within the target jurisdiction. One of the two composite conditions is demonstrable injustice. It must be clear that injustice is real and potent. The second is exhaustion of less invasive strategies, a condition that has to be met to place state or non-state actors on the respective ladders of intervention. Ascertaining that injustice cannot readily be dealt with by the indigenous political system is the minimal respect for communal integrity required by any form of external engagement. To move up the parallel ladders, it is necessary to check that opportunities afforded at lower levels have been fully considered. Particular care must be taken when switching from external to internal action.

Responsible intervention
identifies a form of cross-border political engagement combining appropriate authority and right intention. The first condition does not mean that all civic action is ruled out, but rather that in both the state and non-state sectors attention must be paid to authorization. Among states, this is increasingly held to require multilateral backing and even a UN mandate for action such as humanitarian military intervention.
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Among non-states, authorization is harder to generate but still required through, for instance, appeal to human rights principles. Regarding the second condition, right intention is never easily determined and can only be judged case by case. However, it does not require entirely unmixed motives. As Walzer noted in discussing the 1991 Gulf War, “even just wars have political as well as moral reasons—and will have, I expect, until the messianic age when justice will be done for its own sake.”
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It may then be advisable to say that the stated moral objective should at least be prominent, and that any other intention is admissible to the extent that its objective is coextensive with the just intention.
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Weighing contingent factors
identifies a risk assessment exercise that must be undertaken by all external agents. No cross-border political action can be launched without reasonable hope of success, and no agency can adopt strategies out of proportion to its aims. In the real world, many interventions have been able to meet these conditions, but some have not. In 1993, a UN peacemaking operation in Somalia had an overambitious mandate, and resulted in disaster.
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In 1995, the UN’s first ever “safe area” in Srebrenica, policed by 110 troops, was quickly overrun by Serbian forces perpetrating the worst atrocity seen in Europe since the Second World War.
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In a different sphere, many sanctions regimes, including ones imposed on Myanmar, have almost no hope of success.
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Deliberating intervention

Since intervention will always be contentious, it will always have to be argued out in either actual or virtual forums. The first issue concerns the identity of participants in debate. Here the requirements of global justice mandate that both rights-bearers and duty-bearers be brought within the frame. Additionally, on a very practical level it is important that individuals and groups likely to be most affected by any actual intervention be allowed to speak. In all probability, many people will thereby gain entry for more than one reason. Next, once participants have been identified and assembled, it is necessary to determine how debate should be structured. Given that communal integrity is valued by cosmopolitans and communitarians alike, insiders must be accorded a privileged status amounting to a collective veto over proposals made by outsiders. In many distressed societies this is both a near-impossible undertaking, and a vital ambition. Before interfering in others’ affairs, it is essential to find out what they think. Once that has been done, it is important to act in conformity with their wishes. To the fullest extent possible, this minimal respect must be granted to intended beneficiaries of cross-border political action.