Philosophia (2010) 38:499–515

DOI 10.1007/s11406-009-9233-1

Is U.N. Security Council Authorisation for Armed

Humanitarian Intervention Morally Necessary?

Ned Dobos

Received: 30 March 2009 / Revised: 28 September 2009 / Accepted: 21 December 2009 /

Published online: 23 January 2010
# Springer Science+Business Media B.V. 2010

Abstract Relative to the abundance of literature devoted to the legal significance of

UN authorisation, little has been written about whether the UN’s failure to sanction
an intervention can ever make it immoral. This is the question that I take up here. I
argue that UN authorisation (or lack thereof) can have some indirect bearing on the
moral status of a humanitarian intervention. That is, it can affect whether an
intervention satisfies other widely accepted justifying conditions, such as propor-
tionality, “internal” legitimacy, and likelihood of success. The more interesting
question, however, is whether the UN’s failure to provide a mandate can make a
humanitarian operation unjust independently of these other familiar considerations.
Is a proportional, internally legitimate humanitarian intervention, with a just cause
and strong prospect of success, still morally unacceptable if it is not approved by the
United Nations Security Council? This is the question that I turn to in the second
half of the paper.

Keywords Humanitarian intervention . Just war theory . United Nations Security

Council . International law

Legal scholars are split as to whether the UN Charter confers a right of armed
humanitarian intervention upon the Security Council. Those convinced that it does
typically cite the article which empowers the Security Council to sanction the use of
force in response to “any threat to the peace, breach of the peace, or act of

N. Dobos (*)
Centre for Applied Philosophy and Public Ethics, Charles Sturt University, Canberra A.C.T., Australia
e-mail: [Link]@[Link]

N. Dobos
Centre for Applied Philosophy and Public Ethics, The University of Melbourne,
Melbourne, Australia
500 Philosophia (2010) 38:499–515

aggression”. Their antagonists deny that this translates into a right of intervention.
“The peace”, they say, refers specifically to the peace between states, which is not
threatened by human rights abuses that occur entirely with a sovereign state’s
borders. A common response is that the Charter leaves it to the Security Council to
determine what constitutes a “threat to the peace”, and the nature of the peace to
which this refers. But what of article 2 (7), which explicitly disclaims any authority
of the United Nations to “intervene in matters which are essentially within the
domestic jurisdiction of any state”? Apparently this has no bearing on the issue,
since the violation of human rights is not something that is “essentially within the
domestic jurisdiction” of individual states: it is the legitimate concern of the
international community.1 The debate rages on.
Among those who agree that the Charter does give the Security Council the right
to prosecute (or authorise) armed intervention in defence of human rights, there is a
further divide between those who believe that the UN enjoys this right exclusively,
and those who maintain that an unsanctioned intervention by a regional organization,
an ad hoc coalition, or even an individual state can also be lawful under certain
circumstances. Article 2 (4) prohibits states and coalitions from “the threat or use of
force against the territorial integrity or political sovereignty of any state”. But
whether this proscribes unauthorised intervention is an open question. It all depends
on how “territorial integrity” and “political sovereignty” are interpreted. Some have
suggested that only conquest violates “territorial integrity”, and that anything short
of political subjugation leaves sovereignty intact.2 Thus humanitarian intervention,
whether sanctioned by the UN or not, is (or can be) consistent with international law
as long as it results in neither of the above.
Relative to the abundance of literature devoted to the legal significance of UN
authorisation, little has been written about whether the UN’s failure to sanction an
intervention can ever make it immoral. This is the question that I intend to take up
here, (though admittedly, the legality and morality of military intervention are
closely related, as will become apparent in the course of our discussion). I argue that
UN authorisation (or lack therefore) can have some indirect bearing on the moral
status of a humanitarian intervention. That is, it can affect whether an intervention
satisfies other widely accepted justifying conditions, such as proportionality,
“internal” legitimacy, and likelihood of success. I briefly elaborate on this in the
following section. The more interesting question, however, is whether the UN’s
failure to provide a mandate can make a humanitarian operation unjust indepen-
dently of these other familiar considerations. Is a proportional, internally legitimate
humanitarian intervention, with a just cause and strong prospect of success, still
morally unacceptable if it is not approved by the United Nations Security Council?
This is the question that I turn to in the second half of the paper.
The answer, I argue, depends on whether or not the Security Council was given
the opportunity to act. A state or coalition that launches an armed intervention
without so much as making its case to the Security Council is rightly condemned, at
least under some circumstances. However, where a mandate is sought but refused,
unilateral action is still likely to be justified all things considered. This might seem

1
Quoted in Wheeler 2000.
2
For a defence of this view, see Teson (2005a).
Philosophia (2010) 38:499–515 501

like a curious, if not downright incoherent position, but in what follows I hope to
show that it is the correct one.
In the final section I argue that my conclusion has little to do with the contingent
character of the UN Security Council and its current decision making procedures. A
number of ethicists have recently argued that UN authorisation is not strictly
necessary from a moral point of view, but most have put this down to the perceived
ineffectiveness of the UN, or its various moral deficiencies. The implication seems to
be that if these flaws were to be somehow ironed out, then the UN’s denial of a
mandate would sometimes suffice to undermine the legitimacy of an intervention.
This is mistaken. If the UN Security Council is ever reformed into (or replaced by) a
perfectly just and effective body, my conclusion would not require substantial
revision or qualification.

II

The fact that rebellion would be justified under certain circumstances does not
guarantee that foreign intervention in aid of, or in place of that rebellion would be
justified. As I see it, there are two main reasons for this. First, intervention might fall
short of the prudential constraints on war (likelihood of success, proportionality, last
resort) where rebellion would live up to them.3 Second, a government that wages
war to defend the rights of foreign nationals can in some cases be charged with
violating the rights of its own citizens in the process. (Here intervention can be
branded internally illegitimate).4 The absence of a UN mandate can potentially cause
an intervention to fall short of one or both of these conditions.
Whether a humanitarian intervention is internally legitimate hangs on whether the
citizens of the intervening state are morally obliged to finance it. If they are, then
their government does them no wrong by prosecuting the intervention with public
funds, (since to compel someone to do his duty is not to infringe his rights). On the
other hand where a country’s taxpayers are not under any such obligation, their
government forces them to make a sacrifice that they have every right to refuse by
using their collective resources for humanitarian war, and this is plausibly a breach
of their trust.
Now suppose that one state—state X—plans to execute a humanitarian
intervention in a troubled neighbouring country, and to shoulder all of its associated
costs. X may be asking too much of its constituents, especially if success depends on
a long-term and expensive occupation, justifying them in declining to make this
sacrifice. Should the government of X go ahead with the intervention regardless, it
would be infringing the rights of its own people. But what if the UN were to approve

3
Although these conditions are taken from Just War Theory, one can appreciate their moral logic without
being committed to the theory in its entirety.
4
It has also been argued that the “just cause” threshold for foreign intervention is higher than the
threshold for rebellion, such that only the most severe forms of oppression justify the former, whereas the
latter is justified, at least in principle, in a much wider range of cases. See for instance Walzer (1980). A
fuller discussion of this would take me too far afield. I will limit my discussion to the internal and
prudential constraints.
502 Philosophia (2010) 38:499–515

the intervention and arrange for its costs to be shared by a number of different states?
The sacrifice asked of the citizens of X may be reduced to a fraction of what would
be required to facilitate a unilateral action, and this might be a cost that the people of
X are morally obliged to sustain. Thus while unilateral intervention would be
internally illegitimate, contributing to a UN sanctioned multilateral effort might be
consistent with X’s fiduciary obligations toward its own people.
But in order to be internally legitimate it is not enough that an intervention be
consistent with the rights of taxpayers; it must also be consistent with the rights of
the soldiers deployed. This is a real problem if we accept one particularly popular
account of the “implicit moral contract” between the state and its armed forces.
Martin Cook sketches the account as follows:
The military contract obliges military personnel to run grave risks and to
engage in morally and personally difficult actions. They do these things on the
basis of the implicit promise that the circumstances under which they must act
are grounded in political leadership’s good faith judgment that the defense of
sovereignty and integrity of the nation (or, by careful extension, the nation’s
vital interests) require their action (Cook 2000, p. 62).5
The crucial point here is that soldiers enlist to defend their country and its vital
interests, not the human rights of foreigners. If this is right, then by waging war on
behalf of foreign nationals a state breaches its contract with its armed servicemen
and women, even if it commits no injustice against its taxpayers.
Let us grant for the sake of argument that this account of the implicit military
contract is accurate. It is important to note that this does not yield a blanket
prohibition ruling out all humanitarian war. An intervention carried out by a special
expeditionary force made up entirely of soldiers that volunteer to take part would not
violate their rights. But this would make internal legitimacy conditional upon a
sufficient number of volunteers agreeing to participate. The involvement of the
international community is obviously conducive to this end. A single state acting
alone may not be able to recruit enough volunteers from within its own populace to
do the job effectively. A multiplicity of states acting under the banner of the UN is
less likely to run into this problem, given that it has a much larger pool of potential
volunteers to draw from.
A UN mandate can also help to ensure that an intervention satisfies the prudential
constraints on war. The motives of states that engage in humanitarian intervention
unilaterally are often viewed with suspicion. This can be expected to aggravate the
resistance from within the target society, which could potentially lead to mission
failure. The motives of the “international community”, by contrast, seldom arouse
the same amount of suspicion, and in this respect at least, a UN mandate might be
said to improve an intervention’s prospect of success.
In addition to this, UN authorisation arguably limits the costs and risks associated
with intervention and thus contributes to proportionality. It is often overlooked that
when judging the proportionality of a military operation, the relevant costs that must
be factored into the equation are not only those whose effects are felt immediately,

5
I should point out that Cook does not unequivocally endorse this account of the contract.
Philosophia (2010) 38:499–515 503

but also the remote and mediated consequences, or those brought about via the
interceding agency of other parties. Suppose that a humanitarian intervention
liberates an oppressed people swiftly and with minimal casualties. Looking at things
in isolation, the benefits may seem to offset the costs. But if the intervening state can
foresee that its actions will provoke neighbouring countries to engage in extremely
harmful conduct somewhere down the track, these negative consequences count
against the proportionality of the war.
Now it has been argued that unauthorised intervention is particularly prone to
some such unwanted remote consequences. Specifically, it is said to pave the way
for states to wage wars of self-aggrandizement masquerading as humanitarian
intervention. This claim is usually defended by appeal to the concept of customary
international law. On the prevailing view, unauthorised intervention is illegal. But
every transgression of this law at the same time weakens or erodes it. Prevailing
norms, expressed through the actions and attitudes of states, eventually rise to the
level of customary law, which overrides charter and treaty law—where one finds the
principle of non-intervention enshrined. Thus “repeated humanitarian intervention
without the authorization of the Security Council could establish a right to
humanitarian intervention [without authorisation].”6 The risk is that this will lead
to a state of affairs in which states routinely wage wars for political and economic
gain under the pretence of humanitarian intervention. UN sanctioned intervention
does not carry the same risk.
The upshot of what I have said so far is simply this: Where a unilateral intervention
would be internally illegitimate, disproportional, or unlikely to succeed, a UN mandate
can actually reduce the costs of the intervention, remove the impediments to its
success, and reconcile it with the intervening state’s obligations towards its own
people. In these cases, UN authorisation can be described as indirectly necessary:
necessary for intervention to satisfy other widely accepted justifying conditions.
There is another sense in which UN authorisation is, or can be, indirectly
necessary. The facts that are relevant to the evaluation of a humanitarian intervention
are often contested. In 1992, an editorial in The Chicago Tribune likened the assault
against Muslims in Bosnia to the Holocaust: “Are Nazi-era death camps being
reprised in the Balkans? Unthinkable, you say? Think again… The ghost of World
War II genocide is abroad in Bosnia…”.7 Some reports estimated that the conflict
had claimed upwards of 200,000 lives by that stage. But this was by no means
unanimously accepted. George Kenney put the number somewhere between 25,000
and 60,000 in total, and was dismissive of the Chicago Tribune’s World War II
comparison: “Bosnia isn’t the Holocaust or Rwanda” he wrote; “it’s Lebanon”
(Kenney 1995). The details of the Kosovo conflict later in the decade were also
disputed. NATO claimed that civilians belonging to the province’s ethnic Albanian
population were being systematically slaughtered and expelled en masse. But the
Wall Street Journal reported that there was only evidence to suggest a “pattern of
scattered killings [mostly] in areas where the separatist Kosovo Liberation Army had
been active”.8

6
Stein, “Unauthorised Humanitarian Intervention”, p. 20
7
“What Goes on in Bosnia’s Camps?”, Chicago Tribune, August 6 1992, Section 1, p. 24.
8
Quoted in Pilger (2004).
504 Philosophia (2010) 38:499–515

The question of whether an intervention is likely to succeed at an acceptable cost

has similarly attracted widely divergent responses. For example the National
Intelligence Council (NIC) predicted that an American-led invasion of Iraq would
leave the country divided along sectarian lines and plagued by violence and conflict
(See Chomsky 2006). Ken Adelman, a former assistant to Donald Rumsfeld and
arms control director under Ronald Regan, was more optimistic. He predicted that
the liberation of Iraq would be “a cakewalk” (Adelman 2002).
Not only is there disagreement over the facts—the expected costs of intervention,
the kinds of rights abuses taking place, and so on—there is also disagreement over
whether the expected costs are “excessive”, whether the rights abuses are “severe
enough” to override sovereignty, etc. This can be seen as a disagreement over the
standards brought to bear on the facts. Take for instance the US State Department’s
resolution that as many as 250,000 Iraqi civilian casualties would be acceptable to
achieve the purposes of the current war (Ali and Barsamian 2005). Tariq Ali sees this
as proof that the US government does not accord to Iraqi life the same value that it
accords to American life. There is an underlying assumption that “we are a superior
nation, a superior race, and a superior people” (Ali and Barsamian 2005, p. 27). Ali’s
objection is not that the expected number of casualties is being understated, but that
the number of casualties considered “excessive” is too high.
Now a state is justified in going to war only if it is reasonably confident that it has
its facts straight, and that its standards are impartial and not skewed (by a sense of
racial superiority or any other factor). If it is unable to convince the international
community of this, can it proceed with the degree of confidence required? One might
say that UN approval is needed to validate the facts being cited to justify war, and to
verify that the standards being applied are not out of sync with those of the
international community. On this view, UN authorisation is needed not because it
actually affects the prospect of success at an acceptable cost, but because it
determines whether a state has solid grounds for the belief that the conditions of
success and proportionality have been met.
Thus there are two ways for the lack of UN authorisation to delegitimize an
intervention indirectly. On either approach, whether an intervention is justified
ultimately depends on whether it meets a number of familiar conditions, and UN
authorisation is important only because it has some bearing on whether or not these
conditions are met (or the certainty with which we can judge that they have been
met). The more interesting question, however, is whether UN authorisation has any
ethical significance independently of this. Should we think of UN approval as a
condition of just intervention in its own right? It is to this question that I now turn.

III

Suppose that a humanitarian intervention has a just cause, is internally legitimate,

satisfies all of the prudential constraints on war, and that none of this can be
reasonably denied. Why should we still think that the authorisation of the Security
Council is morally necessary? One common answer is that UN approval is needed to
weed out ulterior motives. Stephen Garrett goes so far as to suggest that “the
argument for multilateralism in humanitarian intervention rests, above all, on the
Philosophia (2010) 38:499–515 505

proposition that such a format is the best guarantee against potential abuses by states
that use ‘humanitarianism’ as a cover for pursuing their selfish national interests”
(Garrett 1999, p. 150). The logic at work here is simple. The UN Security Council is
comprised of 5 permanent members (the P5) and 10 non-permanent elected members
(E10), always including representatives from Europe, Africa, Asia, and the
Americas. All of the major races and religions, large and small countries, capitalist
and socialist economies, and democratic and non-democratic polities, are represented
(Doyle 2006, p. 41). The idea is that so many differently motivated states will not
pronounce their blessings on a war that serves one country’s national interests.
This argument presupposes that selfish motives make for unjust war, but is this
really the case? A billionaire who donates large amounts of money to charity only to
make the Forbes Magazine list of most generous philanthropists does a morally
good thing, but not for morally good reasons. This may lead us to think less of the
billionaire as a person, but we certainly would not object to his giving to charity.
Selfish motives taint their subject, not the actions that stem from them.9
At this point one can be expected to interject that ulterior motives corrupt
humanitarian intervention by adversely affecting its consequences. If an intervention
is driven by national self-interest, the argument goes, it is likely that the means used
to prosecute it will not be conducive to a positive humanitarian outcome. The
Kosovo campaign is often cited as a case in point. Ellen Meiksins Wood admits that
opponents of this war tended to oscillate between principled opposition on the one
hand, and practical opposition on the other, (or opposition to the war only because it
was “bungled”). For Wood, however, “the ‘bungling’ [was] inevitable simply
because the war [was] driven by overriding factors quite distinct from, and in
opposition to, its stated objectives” (Wood 2000, p. 196). The real purpose of the
war was to put on display NATO’s awesome military muscle, and to force the
Milosevic government to capitulate to NATO unconditionally, (which was “nothing
but a straightforward issue of power”) (Arrighi 2000, p. 196). It is not surprising,
then, that NATO forces adopted a mode of warfare that best served these ends: high-
tech, high-altitude, and highly destructive bombing. This, however, proved
disastrous for the very people that the war was ostensibly waged to protect. On
March 23rd 1999, the day prior to the commencement of the campaign, the number
of people that had been forced out of their homes was estimated at 230,000, and
2,500 had been killed. By the end of the war 1.4 million were displaced and 10,000
killed (Mandelbaum 1999, p. 3).
Peter Coghlan argues that American interests have had a similar affect on the Iraq
war. He identifies three distinct motives behind the decision to invade. The first was
punitive: to take revenge against the terrorist cells that attacked New York and
Washington on September 11. The second was to show off the military strength of
the US, and with this to send a message to potential aggressors. The third was to
liberate the Iraqi people. The first and second reasons, says Coghlan, have
“undermined” and “corrupted” the third. US forces wanted to help the Iraqi people,
but have largely failed in this objective because they were so determined to “kick
some ass” along the way (Coghlan 2003, pp. 143–144).

9
I admit that there may be certain exceptions to this. For a fuller discussion, see Teson (2005b).
506 Philosophia (2010) 38:499–515

While there is no denying that ulterior motives can have (and historically have
had) an adverse affect on consequences, I am not convinced that the influence of
national self-interest should be simply presumed inimical to good results. In fact,
there are a number of ways in which national self-interest can improve the prospects
of a positive humanitarian outcome.
States are often reluctant to sustain casualties where they have no national
interests at stake, and this can spell disaster for the intended beneficiaries of a
disinterested humanitarian intervention. NATO’s campaign over Kosovo only
exacerbated the forced expulsion of the ethnic Albanians, at least in the short term.
Wood’s explanation for why the intervention was limited to high-altitude bombing is
that this best served the selfish ulterior motives of NATO’s member states. But an
equally plausible explanation is that this method of war was adopted precisely
because NATO states had no strategic or economic interests at stake. This made a
ground assault politically unfeasible, since democratic citizens have shown
themselves unwilling to tolerate military casualties purely for the sake of defending
foreign nationals (consider Somalia). The presence of national interests can make up
for this “commitment shortfall” (Wesley 2005, p. 70). Indeed, this is what political
realists have been telling us for years. Morgenthau is adamant that “moralistic”
doctrines are only ever implemented in “fits and starts… here half-heartedly and
with insufficient means, there with all-out military commitments, there not at all…”
(Morgenthau 1951, p. 119). The result is negative net utility overall.
Aside from this, national interest can help keep the ruthlessness of war in check.
Anthony Coates argues that disinterested humanitarians are particularly disposed to a
dangerous sense of self-righteousness (See Coates 2006a, pp. 73–79). The more
soldiers see themselves as the defenders of justice, good, and civilisation, (as
opposed to the national interest), the more likely they are to “simplify the moral
boundaries of the conflict” and to perceive the enemy as the embodiment of
injustice, evil, and barbarism; as an opponent that is not deserving of the respect that
is usually owed to the enemy (Coates 2006a, p. 76).
This can potentially turn what Plato referred to as mere “discord” into all out war.
Where armed conflict breaks out between enemies who are “by nature friends”—
where Greeks are pitted against other Greeks—the goal of the war is to resolve the
dispute that triggered it and to restore the peace, says Plato. Such wars are fought in
a limited way: “they quarrel as those who intend some day to be reconciled (Coates
2006b, p. 212).” As a result, Plato tells us:
They will not devastate Hellas, nor will they burn houses, nor ever suppose
that the whole population of a city—men, women, and children—are equally
their enemies, for they know that the guilt of a war is always confined to a few
persons and that the many are their friends.10
Discord between combatants who are by nature friends is contrasted with war
between natural enemies: Greeks and Barbarians. The aim of such wars is not
specific redress and a restoration of the peace, but annihilation and total defeat says
Plato. Coates explains that between natural enemies, “a standing cause of war exists—

10
Quoted in Coates (Coates 2006b), p. 212.
Philosophia (2010) 38:499–515 507

a cause that owes nothing to the specific threats made or injuries received, but one
that is rooted in the perception of the enemy’s fundamental Otherness” (Coates
2006b, p. 213). As a result, war is conducted with greater intensity, savagery, and
ruthlessness than discord, and those engaged in it tend to pay less regard to the
distinction between combatants and non-combatants insofar as both share in the
“fundamental Otherness” to which Coates refers. In 1139, the Lateran Council
sanctioned the use of crossbows against infidels but not against fellow Christians. In
the 1800’s, soft-nosed dum-dum bullets, “designed not just to penetrate the body but
o tear it apart,” were developed by the British for use in colonial wars but not
European wars. In World War II the Germans adopted radically different rules of
engagement on the Eastern and Western Fronts, and this was because they
recognised the common humanity of the English and Americans, but not of the
Slavic Russians. Similarly, the Americans tended to treat German solders in
accordance with the rules of war, while the bodies of Japanese combatants were
regularly mutilated (Coates 2006b, pp. 213–214).
If soldiers are aware that they are fighting for mundane national interests, rather
than lofty moral principles, they are less likely to demonise and dehumanise the
enemy. An acute awareness of the self-serving nature of an intervention can help to
prevent the target state and its supporters from being cast as fundamentally Other.
With this, national interest can arrest the degeneration of discord into war. While we
may have some reason to think that a politically or economically driven intervention
will have bad consequences for its intended beneficiaries, then, we also have reason
to be cautious of unadulterated altruism.
Perhaps there is a rights-based argument for the necessity of UN authorisation? In
what remains of this section I consider whether an unauthorised intervention (simply
in virtue of being unauthorised) could be said to violate: 1) the rights of the target
state; 2) the rights of the citizens of the target state; 3) the rights of other states in the
international community. If the answer to any of these questions turns out to be
affirmative, then it is possible for the UN’s disapproval to rule decisively against a
humanitarian intervention without causing it to fall short of any of the other
conditions of just war.
1) The target state
What is it that justifies a government in issuing commands and compelling its
citizens to obey? How is this to be reconciled with the moral equality of persons? A
common answer is consent. If an individual gives consent to another’s right to
promulgate and enforce law, the exercise of this authority is consistent with that
individual’s autonomy and equality. This gives us some insight into what makes
vigilantism objectionable. Insofar as he does not enjoy the consent of the people that
he coerces into compliance with the law, the vigilante treats them in a way that is not
consistent with their moral status. This is why only the police and courts, qua agents
of the state, may enforce the law and administer punishment, (assuming of course
that the state does enjoy the consent that the vigilante lacks).
From this we can extrapolate that unilateral or otherwise unauthorised
humanitarian intervention—the international analogue of vigilantism—constitutes
an injustice against the target state. If we take it that the UN Charter empowers the
Security Council to engage in, or to authorise, humanitarian intervention, then we
508 Philosophia (2010) 38:499–515

can say that every UN member state, having signed the Charter, has consented to the
Security Council’s right to enforce international human rights agreements. But no
state has consented to unilateral law enforcement, or to enforcement by ad hoc
coalitions and regional organisations for that matter. Hence unilateralism wrongs the
target state in the same way that vigilantism wrongs its object.
But this is too quick. Let us consider more carefully law enforcement at the
domestic level. On closer inspection it appears that whether or not the law-breaker is
wronged by the vigilante depends on the nature of his offence. Suppose that your
neighbour, an ordinary citizen, spots you jaywalking or not wearing a seatbelt while
driving, and takes it upon himself to force you to comply with the law. There is a
definite sense in which you are wronged here. But what if your neighbour were to
stop you from beating or killing your spouse? Surely anyone can legitimately
prevent an assailant from murdering, raping or maiming his victim. No special
authority is needed. The difference between the two cases seems to be this: It is
morally wrong to assault people independently of its being illegal. Jaywalking, on
the other hand, is not something that is independently proscribed by morality. In
legal parlance, it is malum prohibitum: wrong merely because prohibited by statute,
as opposed to malum in se, or wrong in and of itself. To put it another way, if
jaywalking is immoral, this is only because it is illegal and one happens to be
morally obliged to discharge his legal duties.
It seems to me that a “victim” of vigilantism has grounds for complaint only if he
is forced to refrain from behaviour that is malum prohibitum. The same can be said
for law enforcement in the international arena. Some international treaties, especially
those dealing with commerce and communications, require acts and forbearances
that are morally neutral. With respect to these laws one could plausibly say that
unilateral enforcement wrongs the target state. But respect for human rights is not a
convention-dependent obligation which has no force outside of international law.
Rather, like an individual citizen’s obligation not to commit assault, the state’s
obligation to honour human rights is pre-institutional, and these are requirements
that anyone may enforce.
Now perhaps this is too sweeping a claim. While the denial of some
internationally ratified human rights is undeniably malum in se, is this true of all
rights? Or are some based only on the consent of states, with no normative force
outside of legal institutions? Prominent human rights theorist James Griffin seems to
suggest the latter. The right to periodic holidays with pay, the right to protection
against attacks on one’s honour and reputation, the right to inherit property, freedom
of residence, the right to work, and the right to “the highest attainable standard of
physical and mental health”, are just a few of the more “lavish” human rights listed
in the Universal Declaration and other international documents (Griffin 2008).11
Griffin denies that these are bona fide human rights. Hence a state’s obligation to
honour them—if there is one—exists only in virtue of there being a law which
requires that states do so. It follows that unilateral intervention in defence of these
rights is objectionable in the same way that vigilantism is objectionable in cases of
malum prohibitum offences domestically. But given that humanitarian intervention is

11
The term “lavish” is used with reference to the right to the “highest possible standard” of health on
p. 208.
Philosophia (2010) 38:499–515 509

only ever contemplated where the rights violations are incontrovertibly malum in se,
conceding this point is of little practical significance.
Before moving on I should make one further qualification. Nobody would deny that
it is permissible for an ordinary citizen to intervene in a domestic dispute in order to
prevent his neighbour from beating or killing his spouse. But this example presupposes
that there is no time to call the proper authorities, such that private law enforcement is
necessary to prevent the crime. But what if there is time to call the police? I take it that
because vigilantism is unnecessary in this case, it is also unjustified, and this is despite
the fact that the offence being committed is malum in se. By analogy, where there is
time to engage the UN in dealing with a humanitarian crisis, a state or coalition that
bypasses the UN and acts unilaterally is rightly condemned. This, however, is not
because the state targeted by the unilateral action is wronged in any sense. Rather, it is
because the international community is wronged. I will say more about this shortly.
2) The citizens of the target state
If the subjects of an oppressive government decide not to revolt against it,
because they “judge rebellion to be imprudent or uncertain of success or because
they… still believe the government to be tolerable, or they are accustomed to it, or
they are personally loyal to its leaders” then this is their prerogative, Walzer tells us
(Walzer 1980, p. 214). To intervene against a regime whose citizens have decided to
exercise this prerogative is to usurp their right of revolution. The underlying
principle here is that the right to violently coerce or overthrow a government lies
ultimately with its citizens. For foreigners to obtain this right it must be transferred
to them. We can take this to mean that an intervention must be welcomed by its
intended beneficiaries if it is to have any hope of being justified.
Now suppose that the subjects of a certain oppressive regime did welcome
humanitarian intervention, but only as long as it was sanctioned by the United Nations.
Perhaps the UN is seen as the only truly neutral entity capable of disinterested
involvement. In this scenario, humanitarian intervention usurps the rights of its
intended beneficiaries if and only if it lacks a UN Security Council mandate.
This, however, has never happened in the past, and is unlikely to happen in the
future. Where people are desperate enough to invite foreign forces into their country
to defend their human rights, they will typically not be overly concerned about the
identity of the intervener. And if they were to demand that assistance come from
some specific party, the party singled out is likely to be chosen because of its
religion, race, ethnicity, or territorial or cultural closeness. It is almost inconceivable
that the UN will be identified as the sole entity whose intervention is welcome, but
this is what is needed for the argument to work.
3) The international community
Let us grant for the sake of discussion that the UN Charter confers a right of military
intervention upon the Security Council exclusively, as per the dominant view. The
final argument that we need to consider says that, by signing the Charter, a state
relinquishes its right of unilateral intervention, and thus breaches this contract—
violating the rights of its co-signatories—by engaging in it.
I think that this argument is persuasive and rules decisively against unilateral
intervention where: 1) The intervention proceeds without a UN mandate having been
510 Philosophia (2010) 38:499–515

sought, and; 2) the intervening state cannot plausibly claim that there was no time to
engage the UN, or that authorisation would certainly have been denied. Matters are
different where authorisation is sought but refused, or where the intervening state
can plausibly claim that there was either no time to pursue a mandate, or no chance
of winning one. Here, I suggest that a state or coalition which intervenes unilaterally
cannot be charged with violating the rights of its co-signatories by breaking its
international commitment. Intuitively this may seem strange. It suggests that UN
authorisation is not morally necessary, but that the pursuit of it somehow is, at least
under certain circumstances. Nevertheless, this is the position that I will be defending.
Let us start with one of W.D. Ross’ famous examples. You make a promise to meet
a friend at a certain time in a certain place for a trivial reason. On your way to the
meeting place, you come across the scene of an accident that has left a person injured
and in need of urgent attention on the side of the road. If you stop to render assistance,
you will not be able to meet your friend, and therefore you will break your promise.
Nevertheless, most would agree that this is permissible, if not obligatory. The
explanation, crudely put, is that the obligations arising out of one’s promises are prima
facie and need to be weighed against countervailing moral considerations—
including conflicting duties—before any all things considered moral judgment can
be made. In the example, the countervailing considerations are so weighty that they
justify you in defaulting on your prima facie obligation to your friend.
Similarly, the obligations arising out of a state’s international contracts are prima
facie. Unlike the promise to meet a friend for lunch in Ross’ example, however,
these commitments should not be seen as trivial, and so a very strong justification
needs to be provided for their transgression. Nevertheless in some cases there will be
sufficiently weighty countervailing considerations. For example, suppose that a state
must break with its international covenant in order to ensure that egregious human
rights abuses beyond its borders are brought to an end.
This is precisely the predicament of a state or coalition that seeks a mandate for a
humanitarian intervention but does not receive one. It is also the predicament of a
state that does not have time to appeal to the UN, or that has strong grounds for
believing that a mandate will not be forthcoming even if the case is made to the
Security Council. The state can prevent a great evil, but it must breach the terms of
the UN Charter to do so. Unilateral intervention might in these cases constitute a
rights infringement against the international community, but it is not a rights
violation. That is, it is not an unjustified infringement.12 For the imperative to
prevent a state from violating the basic rights of its people surely takes moral priority
over fidelity to international agreements, just as the imperative to render urgent
assistance at the scene of an accident overrides one’s promise to meet a friend.
On the other hand, where there is time to pursue a mandate, and no reason to
believe that the effort would be an exercise in futility, a state that intervenes without
engaging the Security Council has absolutely no justification for breaking its
international contract. It cannot appeal to necessity here. It cannot claim that
honouring the Charter would have resulted in the continuation of serious human
rights abuses. For all the acting state knows, it could have both honoured its
international commitments and addressed the humanitarian crisis in question. It

12
The distinction between “infringement” and “violation” was introduced by Thomson (1977).
Philosophia (2010) 38:499–515 511

therefore does not simply infringe the rights of its co-signatories; it violates them, or
infringes them without sufficient justification. This undermines the legitimacy of the
humanitarian operation.13
Nevertheless we must conclude that UN authorisation is not a condition of just
intervention in its own right. States and coalitions must seek a mandate from the UN,
at least under certain circumstances, but they need not refrain from unilateral action
if a mandate is not forthcoming. In the following section I try to show that my
conclusion has little to do with the contingent character of the United Nations and its
current decision making procedure.

IV

The UN has a mixed track record when it comes to actually enforcing its human
rights commitments. Its efforts in Rwanda and Bosnia are often cited in this
connection. When the killing in Rwanda began, the 2,500 UN peacekeepers
stationed in the country were assigned the responsibility of evacuating foreigners,
but forbidden from defending Rwandans against genocidal assault. Mark Huband
offers a glimpse into what followed:
A few yards from the French troops, a Rwandan woman was being hauled
along the road by a young man with a machete. He pulled at her clothes as she
looked at the foreign soldiers in the desperate, terrified hope that they could
save her from her death. But none of the troops moved. ‘It’s not our mandate,’
said one, leaning against his jeep as he watched the condemned woman, the
driving rain splashing at his blue United Nations badge… (Huband 1994).
An estimated 800,000 Tutsis and moderate Hutus were ultimately killed. The UN,
and former Secretary-General Kofi Annan have since accepted responsibility for
failing to prevent the genocide (Huband 1994, See also UN Admits Rwanda
Genocide Failure 2000).
The UN’s handling of the conflict in Bosnia has also attracted criticism. Between
September 25, 1991 and April 28, 1995, the Security Council adopted 73 resolutions
regarding Yugoslavia, and the President of the Security Council supplemented this
with 70 statements on the crisis (Murphy 1996, p. 216). But to say that the UN
didn’t exactly “walk the walk” would be an understatement. UN units were sent to
the region in 1992, but the Security Council did not permit the use of force. As a
result, Glover explains:
the UN on the ground found its authority endlessly mocked. In 1992 a Serb
soldier shot Hakija Turajlic, the Deputy Prime Minister of Bosnia, while he
was being carried by a UN vehicle. Repeated ceasefire agreements were

13
Interestingly enough, my position bears some resemblance to that taken by the International
Commission on Intervention and State Sovereignty (ICISS). Its 2001 report, The Responsibility to
Protect, states that “Security Council authorization must in all cases be sought prior to any military
intervention action being carried out”. But it goes on to admit that, although the Security Council should
be the first port of all, “the question remains whether it should be the last (International Commission on
Intervention and State Sovereignty 2001)”.
512 Philosophia (2010) 38:499–515

immediately broken. At one ceasefire signing ceremony at Sarajevo airport, the

agreement was broken so quickly that the signatories had to take cover under
the table they had just used (Glover 2001, p. 135).
And the incident at Srebrenica made international headlines. The UN had
declared the region a protected “safe area” before it was captured by Serbian forces
under General Mladic. An estimated 8000 people were massacred—the largest mass
murder in Europe since WWII—while 400 armed Dutch peacekeepers looked on,
lacking the authorisation to act. Mladic ridiculed his victims in the presence of the
troops: “Do you think the Dutch are afraid of me? I don’t fear them. I am stronger
than all of you. They cannot protect you” (Glover 2001, p. 136).
Now “The UN” cannot bear all of the blame for these failures. On May 17, 1994,
the Security Council did authorise a peacekeeping mission which allowed the use of
military force to secure safe areas in Rwanda, but certain member states were
unwilling to provide the necessary troops and material. Nevertheless it has been
argued that the UN, by its less than optimal performance on these occasions and
others, has forfeited its claim to being the only legitimate authority that can sanction
humanitarian intervention. A recent editorial from the New Republic reads:
After the slaughters of the 90’s, all of which numbered the fecklessness and the
cynicism of the UN among their causes, it defies belief that people of goodwill
would turn to that organization for effective action.14
Other contingent characteristics of the UN have also been invoked to dismiss the
need for its authorisation. According to Mark Evans, it is purely a function of the
“non-ideality” of the UN that humanitarian intervention can be legitimate without its
approval (Evans 2005, p. 82). We should not insist on a UN mandate, Evans argues,
because of the veto system which prevents the Security Council from reaching
decisions in a truly democratic manner (Evans 2005, p. 72). In a similar vein,
Fernando Teson disclaims the moral necessity of UN authorisation on the grounds
that “the decision to assist victims of grievous injustice should not depend on the
acquiescence of rulers who, at the very least, do not represent their people, and, at
the very worst, are tyrants themselves” (Teson 2005a, p. 166). UN approval is not
strictly necessary from a moral point of view because domestically illegitimate
governments sit on the Security Council, some of them with veto power. Charles
Krauthammer seems to share this sentiment when he asks: “By what possible moral
calculus does an American intervention to liberate 25 million people forfeit moral
legitimacy because it lacks the blessing of the butchers of Tiananmen Square or the
cynics of the Quai d’Orsay?” (Krauthammer 2004).
Should we take this to mean that the lack of authorisation would make an
intervention illegitimate if the UN were reformed into something more representa-
tive, more democratic, and more effective? Such reforms might I think strengthen the
case for the indirect necessity of UN authorisation. Earlier I suggested that a
unilateral intervention might provoke stiffer resistance from within the target society
than an intervention which is seen to be the work of the international community.
One reason for this is that the professed humanitarian motives of a state acting alone

14
“Again”, The New Republic, Monday May 15, 2006.
Philosophia (2010) 38:499–515 513

are likely to be met with greater suspicion. However the United Nations in its current
form is seen by many around the world to be nothing more than an agent or puppet
of the great powers—especially the US. Those who hold this view are likely resist a
UN-led intervention with the same intensity that they would resist unilateral
intervention. But if the UN were to become less reliant on, and less subservient to,
the major powers, it’s supposed neutrality would be taken a lot more seriously, and
this may well reduce resistance to its efforts to enforce human rights norms.
Moreover, lack of approval from the UN in its current form does not always cast
doubt on the moral status of an intervention in the way that I described in Section I. I
suggested that if a state is unable to convince the Security Council that an
intervention is proportional, likely to succeed, and so on, it cannot judge that these
conditions have been satisfied with the level of certainty and confidence that morality
requires. But the veto system currently in place weakens this argument, or at least
reduces the scope of its application. For even where the overwhelming majority of
member states are convinced of the moral legitimacy of an intervention and vote in
favour of a mandate, a single negative vote from any one of the Permanent 5 is
sufficient to deny authorisation. The UN’s disapproval would be a more reliable
indication that an intervention is not justified according to the prevailing moral
standards of the international community if the veto system were scrapped.
Apart from this, however, changes to the character of the UN would not call for
my conclusion to be significantly revised. I have admitted that there are conceivable
circumstances under which unauthorised intervention would be illegitimate despite
satisfying the internal and prudential conditions, namely; 1) Where the citizens of the
target state oppose intervention by any party other than the UN, or; 2) Intervention
proceeds without a mandate having been sought, and the intervening state cannot
claim that there was no time or no hope of winning a mandate.
Now if the veto system were abolished, this might serve to convince cynics that
the UN is a genuinely neutral body and not an agent of the great powers. As a result,
oppressed subjects might become more inclined to welcome intervention only by the
UN. Furthermore, if the UN were reformed in a way that reduced administrative
muddle, improved response times, and made the Security Council less prone to
deadlock, then it would become increasingly difficult for states to justify bypassing
the UN and refusing it the opportunity to act. Thus reforms might serve to broaden
the range of cases in which 1 and/or 2 obtain.
However where a mandate is sought but denied, unilateral intervention is likely to
remain justified all things considered no matter how close to the “ideal” the UN
comes, since the imperative to prevent grave human rights violations will always
take moral priority over fidelity to international contracts. Thus my conclusion that
the UN’s refusal to provide a mandate cannot delegitamize an intervention directly
would apply even if the UN were turned into (or replaced by) a perfectly just and
effective body.

IV

The “proper authority” condition of Just War Theory is generally understood to be a

threshold requirement in its own right, along with just cause, proportionality, last
514 Philosophia (2010) 38:499–515

resort, and so on. The prevailing view today is that the UN Security Council alone
constitutes a proper authority, at least when it comes to humanitarian intervention,
and so a strict application of Just War Theory seems to prohibit unilateral
intervention, irrespective of whether the other requirements are satisfied. Against
this, I have argued that the main reason we have for insisting on a UN mandate is
that it increases the chances of these other conditions being met. A UN authorised
action is more likely to succeed at an acceptable cost, and to be consistent with the
domestic fiduciary obligations of the states that prosecute it.

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