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YOU CAN’T HAVE ONE WITHOUT THE OTHER, CAN YOU? …
Eight years later, on the exact same date,
2
faith in the international rule of law
and the role of the Security Council was – at least at the beginning – somewhat
restored when NATO initiated its air-campaign directed against the Gaddafi regime
in Libya on the basis of a swift resolution. As soon as it became clear that NATO
had effectively assumed the function of acting as an air force for the rebels, however,
many negative reactions substantially resembled those triggered by the 2003 Iraq war.
At the end of the day and apart fromthe obvious differences regarding the facts and the
legal background, these two cases share the significant similarity of having both ultimately
resulted in regime change. This final outcome once again shifted attention towards the
many fundamental and unresolved questions in the contemporary international system:
the role of the Security Council in preserving international peace and security in a world
that is dominated by sheer US military power and NATO, the gap between morality and
the law as it stands, and the standing of democracy in international law in contrast to
other systems of domestic governance.
Breaking down the controversies surrounding these debates leads us to two
fundamentally opposed views on the international (legal) order. On the one hand,
international law as it stands is still characterised by the fundamental importance of
sovereignty as the basis for a pluralist world order harbouring many different political
systems and a strict notion to use force only in conformity with the two exceptions
mentioned in theUNCharter.On the other, theworldhas seen the purported emergence
of a right to democracy that ultimately challenges the legitimacy of every other type
of governance attempts to introduce additional exceptions to the prohibition on the
use of force; and the most looming question is whether the world, slowly but steadily,
and often with significant help from outside, moving towards a union of democratic
states in the name of Kant’s vision of perpetual peace. Of significant importance for
the latter position is a fundamental and often wrongly-interpreted or ignored aspect of
contemporary just war theory, namely the inherent and deep relationship between the
use of force on humanitarian grounds and the legitimacy of the government against
which attacks are mounted.
2. Searching for the Roots: Just War Theory, Realpolitik
and the Non-Intervention Ideal
These conflicting views can be traced back to the interrelation between morality
and war and how the classical Roman idea of war as a ‘just’ enterprise, as conceptualized
by Christian scholars, has evolved until this very day. Both the idea to use force on
humanitarian grounds and regime change have forerunners in this tradition. While
de Vitoria is famously known for having justified the conduct of imperial Spain in
a manner that may be interpreted as an early antecedent version of human rights
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19 March does not seem to be a good day for dictators.