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Libya and the ‘necessary laws of nations’

Many people like to think that they are living through unique times, with new problems and challenges. Yet they are often merely playing out issues identified centuries ago – as is the case with the current Libyan crisis.

The United Nations Security Council voted on 18th March to authorise member states, ‘acting in cooperation with the Secretary-General, to take all necessary measures … to protect civilians and civilian populated areas under threat of attack’  in Libya.

The authorisation of ‘all necessary measures’ came as a surprise to most observers, who had expected that anything more than military measures to enforce a no-fly zone over Libya would have been vetoed by China or Russia.

Since the vote, however, attention turned to the proper interpretation of ‘all necessary measures’. Can air power be used by NATO against rebel as well as government forces, if at any point they should decide to attack civilians seen as loyal to Qaddafi? Or if government forces appear to use civilians as human shields, can those civilians legitimately be targeted by NATO, on the basis of a utilitarian calculation that this ‘collateral damage’ (as it is horribly called) is a necessary price to pay for the protection from government depredations of many more innocent civilians?

The ethical dilemmas here are clearly apparent. But the dilemmas would still be there had Resolution 1973 not allowed that ‘all necessary measures’ could be taken to achieve the UN’s goals. The unique contribution of the language of necessity might however be to close down the space for ethical debate about the legitimate scope of armed conflict in this case.

In an article to be published in History of European Ideas, I discuss the Enlightenment international lawyer Emer de Vattel. What has that to do with the events being played out in Libya you might ask?

Its relevance lies in the fact that Vattel’s 1758 book The Law of Nations was the first on that subject to introduce the language of necessity into the subject of the ethics of war. The book was seen to be so important, President George Washington took time to read it in 1789 – although he famously forgot to return it to the New York Society Library.

Before Vattel, going all the way back to St Augustine, those who had taken up their quills to discourse on the subject wrote in the ‘just war’ tradition. The idea of the just war required that various kinds of judgement – about one’s own mental and spiritual state, of absolute moral imperatives, of circumstances, of consequences, of legal authority – were made in the process of coming to a decision about whether military action was just or not.

Vattel wrote about war in the wake of the early modern conviction that the job of moral philosophers was to establish permanent moral ‘laws’, universally applicable, rather than transitory guidelines. Vattel’s laws of war aimed to be as exhaustive as possible, narrowing down the scope for contingent judgement and reliance on the good character of rulers.

But Vattel recognised that a systematic, internally coherent exposition of rules of conduct in war would still be unlikely to take account of every concrete situation in this high-stakes realm. There would always be a domain outside those rules. It was this ‘outside’, wherein the usual rules did not apply, that Vattel considered the sphere of what he called ‘the necessary law of nations’. This law said only that states may do whatever they deem necessary for their survival or well-being. It was not a sphere where difficult choices are made, but one where there simply are no choices; outside the normal laws of war, anything goes.

Vattel’s legacy for modern international law was profound. International legislation has grown apace, and with it also the notion, most famously articulated by Michael Walzer, that the normal rules of war can be set aside in a ‘supreme emergency’, when the fight is for humanity, and necessity means that ethical evaluation must cease.

In Resolution 1973, endorsement of humanitarian intervention is propounded in the language of necessity. However, the interests of the international community are best served by open ethical argument, and the language of necessity mobilised in favour of the UN’s intervention in Libya’s civil turmoil closes space for that argument, just when it is most needed.

Ben Holland

Published inArab SpringInternational PoliticsLibyaPolitical theory

4 Comments

  1. Nicole Dodd Nicole Dodd

    Hi Ben! So are you saying that by using ‘all means necessary’ goes against the ethical argument about the intervention? I dont really understand it..

  2. Ben Holland Ben Holland

    Nicole — Thanks for your question. I suppose that what I was trying to do was to highlight how the language of ‘necessity’ in warfare is fairly modern, going back only as far as Vattel. For Vattel, the rules of war that he came up with together made up a bounded system. Bounded systems have boundaries (!), and therefore there must be something outside them. If all morality can be expressed entirely in terms of rules, and the rules made up the system, then what lay outside the system in some sense lay outside morality. So when the rules don’t apply, we are in the realm of what Vattel called ‘necessity’, meaning that states can do whatever they want as they are unconstrained by moral rules.

    I wanted to point out how this way of thinking continues to reverberate in ethical discourse about war. So in Michael Walzer’s brilliant book Just and Unjust Wars he argues that at some point in some conflicts, ‘when the heavens are really about to fall’, the normal rules cease and combatants must do what they must. That’s why I’m dubious about the language of necessity finding its way into the coalition powers’ remit in Libya. There should be no necessity in warfare, just judgement and moral evaluation all the way.

  3. Dan Dan

    Really interesting, made me think more than ant other posting. One thing though, how could Washington famously have forgotten to take the book back when they only found out last year?

  4. Ben Holland Ben Holland

    Dan — Good point!

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