Ending Tyranny in Iraq: A Debate

• Introduction
• Remarks
• Questions and Answers

Introduction

PAIGE ARTHUR: I welcome all of you on behalf of the editor of the Ethics & International Affairs Journal, Christian Barry, who lives in Brazil and can't be here today. We are celebrating the launch of our summer issue, which is a special issue on ethics and the use of force after Iraq.

On October 15, the people of Iraq will vote on a new constitution. We are familiar with the chain of events that has led to this point: the American-led invasion; the stated goal of overthrowing Saddam Hussein; the imposition of an interim constitution that was to help guide the Iraqi people toward writing their own; and finally, the election of a national assembly in January 2005, which then began the constitution-writing process.

This is an outcome that many human-rights advocates would seem to welcome. Yet, if you dig deeper, you find strong doubts. How can an outcome be just when there is such skepticism concerning the means by which it was gained? The war was largely justified either as an enforcement of Security Council resolutions or as a preventive action in the interests of U.S. security. Both of these cases were rejected by most governments and most citizenries around the world, sometimes very strongly.

The long-term oppression and murder of Iraqi citizens was evoked, but few believe that this was the reason behind the U.S. policy decision.

These remarks bring me directly to tonight's debate and to our two distinguished guests. Fernando Tesón is the Simon Eminent Scholar at Florida State University College of Law. He has argued in our most recent issue of Ethics and International Affairs that the Iraq war was justified as a humanitarian intervention. Kenneth Roth, Executive Director of Human Rights Watch, has argued very cogently and eloquently elsewhere that it was not.

This debate goes to the very heart of the questions of what humanitarian intervention is, when it is legitimate, and who may undertake it. Each of these questions folds into a public discussion about humanitarian intervention that is rich with ethical contents and conflicts, a discussion that has largely been lost in the U.S. since 9/11.

A very wise commentator, Stanley Hoffmann, has pointed out that the contemporary international system is based on four norms: sovereignty, self-determination, self-government, and human rights. In the case of Iraq, we see how upholding one of these norms—sovereignty, for example—might force us to minimize the others. There is no ethical formula by which potential conflict among these norms can be resolved. Instead, tensions must be resolved through arguments based on consistency, impartiality, and potential outcomes.

We have invited Fernando Tesón and Ken Roth today to set forth such arguments for resolving ethical conflicts. It is also the express aim of our journal, Ethics and International Affairs, an aim that is unique among publications.

So it gives me great pleasure to celebrate the launch of this special issue, Ethics and the Use of Force after Iraq, with our two guests, each of whom has very strong views on this issue.

Fernando will give us the highlights of the article that he published in Ethics and International Affairs. We will then have a response from Ken Roth. I then hope for a bit of back-and-forth between the two of them before I open the floor for questions.

Remarks

FERNANDO TESÓN: Good evening. In case you are wondering about my accent, I was born and raised in Buenos Aires, Argentina. My English is really perfect; I just fake the Latin.

An overwhelming number of people have criticized the stated rationales of the war—the twin ideas that we had to suppress weapons of mass destruction that Saddam had, and/or that attacking Iraq is related to the war on terror, even without talking about weapons of mass destruction.

I agree with the critics; these are not good justifications.

Another justification, which, from an ethical standpoint, is the best argument for the war, is the one that the president and his allies should have given from the beginning: the war was justified as humanitarian intervention, as the use of force to end severe tyranny.

Many, including Ken Roth, have said that this is not humanitarian intervention. Because the Coalition leaders gave this non-humanitarian justification, the act is already characterized as something else, and thus it's not eligible under the doctrine of humanitarian intervention.

If you believe, as Ken and I do, that the doctrine is valid, then the critics say this was something else, because the leaders said it was something else. They said that they were trying to remove the weapons of mass destruction, or enforce prior U.N. resolutions or try to find Osama bin Laden.

I argue that the war in Iraq was justified under the humanitarian-intervention doctrine. Before giving the core of my argument, I will outline some elements of the defensible doctrine of humanitarian intervention:

• Humanitarian intervention must be aimed at tyranny or anarchy;

• Only severe tyranny is targeted, not just any authoritarian regime;

• There must be acceptable costs, both moral and material, under some doctrine, like the doctrine of double effect.

Critics say it is not, because in order for it to be a necessary condition, the invader has to have a humanitarian rationale or motive or intention to do it, which was not the case. George W. Bush and Tony Blair were not thinking about the human rights of Iraqis; they were thinking about something else.

This criticism overlooks an important distinction between intention and motive, best put forth by John Stuart Mill in his nineteenth century masterpiece, Utilitarianism, "A note to."

Suppose someone is drowning, and I decide to rescue the person. You say that I intended to rescue the person, I committed to rescuing the person, and I did it. You say, "Fernando, that's a very nice thing that you did. You rescued this person. She was drowning; now she's alive." Then you ask, "But why did you do it?" I have two possible answers. I could say, "Oh, because we ought to rescue people in need," in which case my motive is pure. But suppose I say, "I rescued the person because she owes me $10,000." Now what will you say?

I suggest, following John Stuart Mill that you can say, "Fernando, you're not a particularly admirable person, but what you did was good. The act of rescue was a good act, whereas your intention was selfish. It was not admirable; it was not altruistic."

So intention covers the willed act and its consequences. I rescue the person. John Stuart Mill said it's the commitment to doing it, the neurons sending the orders to my body to do it, the motions, and then doing it. That is the intention of doing the act.

Motive, on the other hand, is a further goal that I want to achieve with the act. In that example that I gave you, the further goal was to get repaid.

Critics of the war in Iraq overlook this distinction, without which governments in international relations can never have good motives or intent. Governments always have non-altruistic, non-humanitarian reasons for doing what they do. If you blur the distinction between intention and motive, there is no way that a leader—f he is running for reelection— can ever have good intentions for doing something, because he has a further motive.

Therefore, in order to say that governments may be doing the right thing, we have to distinguish between intention and motive. I submit that the governments of the U.S. and the United Kingdom, the Coalition, had the intention of overthrowing Saddam: Not of overthrowing Saddam, alone, because that's not liberating, but of liberating Iraq, which is a conjunction of deposing the dictator and doing things to create a society that is not a dictatorship, like a democracy, for example, which is being tried now.

Let's assume for the sake of argument that the motive was selfish or non-humanitarian—even if the motive was bad, like seizing the oilfields, I would submit that intention and motive must be distinguished.

The president told us that we were going in to destroy weapons of mass destruction. Then it turns out that the weapons are not there. Let's assume the worst, that he lied to the people or that he made a big mistake. One of two must be true.

Then I suggest to you, as Mill said, that that is a reason to deride George W. Bush, but not a reason to devalue the act of liberating Iraq. All over the world, the debate has been tainted by this inability to distinguish between approval of the act and disapproval of the person.

Alongside this intention, the motive had some humanitarian components. Although I don't have any inside information, my guess of the reason why we went to Iraq would be the following: fighting tyranny in the world is a way to defeat U.S. enemies; we are made safe by modifying the political culture in the Middle East. The grand plan is to do something, after September 11, to change the Middle East, including solving the Israeli-Palestinian conflict. I don't know that the president or anyone else can pull it off.

Even the motive was not devoid of humanitarian components. Human Rights Watch should applaud remarks in the second inaugural address and in his speech at the National Endowment for Democracy, that the safety of the United States requires making the world more democratic, fighting tyranny, and allowing people to be free.

The only reason you might say that it is indefensible is that it will fail. Leaders, statesmen should never attempt wars that are doomed to failure.

In my article I respond to Ken's report filed in January 2004. Human Rights Watch is my favorite human-rights organization. It continues to do wonderful work. This is a disagreement among people who share the same values.

The argument by Human Rights Watch is that we didn't have ongoing atrocities, and that humanitarian intervention is only justified in such cases. Saddam was one of the worst dictators since the Second World War—whereas the war took place and Saddam was deposed after the atrocities had been committed.

That standard is inadequate, because it creates a motivation for murderers to speed up the execution. All Hitler would have had to do to fend off a humanitarian rationale would be to exterminate all the Jews, so there are no more Jews to save. All Milosevic would have to do is to exterminate all the people that he was trying to exterminate in the former Yugoslavia, or ditto the Pakistani army in Bangladesh in 1971, to fend off any justification based on the humanitarian-intervention doctrine as appropriate.

The Kosovo Commission, for example, which is chaired by people who can hardly be suspected of being sympathetic to this administration, has used the standard that a protracted period of severe tyranny justifies humanitarian intervention. I would apply that same standard to the Iraq case.

My views on what has happened since the overthrow of Saddam are not different from yours. I believe that we snatched defeat from the jaws of victory there, that we botched it, and that things could have been done much better. My argument is merely that the intervention was justified at the time it happened.

Some people have said, "Look at the resistance of the Iraqi insurgents. It is obvious that we cannot impose democracy. That there is armed resistance to the occupiers means that our intervention was misguided."

That argument is mistaken. The ferocity and determination of the enemy should not be a yardstick for war. Imagine if FDR or Truman had said of the Nazi offensive in les Ardennes, in 1944, "no, no, I see now that there was too much resistance. Therefore, we'll withdraw from Europe." That is crazy. On the contrary, the greatness of people like FDR and Winston Churchill was in their understanding that you have to defeat the enemies of freedom when the costs are high. The same applies in Iraq.

The goals that are pursued by those of us who love democracy, human rights, and freedom require the defeat of the insurgents to further the realization of democracy and human rights in Iraq, and perhaps in the rest of the region.

Professor Terry Nardin replied to my piece in the Ethics &International Affairs journal: "Fernando, this is not an argument for humanitarian intervention; it's an argument about how the sole superpower should behave. It is about an empire." He is arguing that empires should promote democracy as part of foreign policy, and fight tyranny. He calls me "a humanitarian imperialist."

My answer to that is that a country that is the hegemon, the only superpower, is not necessarily a bad thing. A world in which there is one superpower is better than a world in which there are no superpowers, and all of the governments, none of which dominates the others, are all dictators. The one superpower that has some beneficial influence is better. Now, if one superpower is the evil empire, that is worse than everything else.

If being a humanitarian imperialist means advocating, as I do, that the world's only superpower use its might to promote democracy and freedom in the world, then I am a humanitarian imperialist.

PAIGE ARTHUR: Now we will turn to Ken Roth.

KEN ROTH: Thank you very much.

It's a bit odd for me to be taking a position against humanitarian intervention. Most of those who know me, within the human-rights movement, realize that I am a human-rights hawk. I spend a good part of my time within Human Rights Watch— often unsuccessfully—pushing my more pacifist colleagues to accept humanitarian intervention.

Nonetheless, as somebody who believes in the institution of humanitarian intervention, I also feel a duty to say not only when it should be used, but also when it cannot be defended, because if we don't limit humanitarian intervention to the appropriate cases, we risk "intervention fatigue"—yet another tyrant to topple; we're not going to bother with this one. Or you end up generating political resistance. Somebody running around toppling governments left and right, after a while, will generate a reaction. Or you simply run out of troops. We are seeing that very realistically today. Whatever you think about the merits or demerits of invading Afghanistan, invading Iraq, there are no more Western troops left for Darfur, as a perfect illustration. So we have to hand off this quite severe humanitarian tragedy to the African Union, which is ill-equipped and has never done anything like this before and is moving very slowly, as a result, at the expense of the Sudanese people and the people of Darfur.

So that's why I come to this debate, not because I'm against humanitarian intervention, but because it is important to limit humanitarian intervention to justifiable cases. That doesn't mean that you ignore the problem in the unjustifiable cases. There are plenty of dictators where you would say, "No, we're not going to invade," but you would use every means at your disposal, short of military intervention, to try to stop the repression. The vast majority of Human Rights Watch's work is devoted to that non-military form of pressure against tyranny.

But there is a narrow category of cases where we would contemplate humanitarian intervention, which is what we are discussing here.

If we think back to March 2003, humanitarian intervention is not what this war was about. Fernando alludes to the various justifications that were offered at the time: ridding Saddam of the supposed weapons of mass destruction; severing the supposed pre-war links with international terrorism; making the Middle East, and Israel in particular, safer from this dangerous person who once invaded Kuwait; promoting democracy in a volatile region; at the more psychological level, exacting revenge for somebody who tried to assassinate Daddy, or one-upping Daddy, who didn't have the nerve to go all the way to Baghdad, but the tougher George W. is going to do it.

Imagine a scenario where, with invasion imminent, a bunch of generals got together in Iraq and overthrew Saddam and said, "Come in, weapons inspectors, check out the weapons of mass destruction. There aren't any. You have free rein of the country. We will be just as repressive as Saddam, but, guaranteed, no weapons of mass destruction."

Does anybody think that there would have been an invasion? Absolutely no way. This was not about protecting the people of Iraq. That rationale was offered, but it was offered the way you marshal your arguments for something that is really about something else.

Let's suspend reality for a moment and examine, could this have been justified, in retrospect, as a humanitarian intervention?

I come at this question with a slightly more complex test than Fernando. I follow a six-part test. You can cite Michael Walzer's "just war" work. You can look at The Responsibility to Protect, the Canadian commission report that was implicitly endorsed recently at the U.N. summit.

People look to the following six factors:

1) Was war the last reasonable option?

2) Was the war dominated by a humanitarian purpose?

3) Did the war generally comply with the standards of international humanitarian law?

4) At the time of the war, was it reasonable to say that the people would be better off rather than worse off because of the invasion?

5) Was the war approved by the U.N. Security Council or some comparable multilateral agency?

6) The most important—the threshold question—was the level of repression of the sort where there was imminent or ongoing mass slaughter?

Let's go through these one by one and explain why, at least five out of those six criteria were not met.

1) Was this the last reasonable option? It's hard to even answer that question, because this war wasn't about humanitarian intervention; it was about the supposed weapons of mass destruction. The Bush administration didn't wait for the last inspectors to go in. They were rushing to war, because they were worried that spring was coming, and it would be too hot for the troops to wear their chemical protective gear. They didn't even wait for the last possible resort to deal with the weapons of mass destruction issue.

Whether they did everything they could, short of war, to deal with Saddam's repression, one big thing they didn't do was indict him. That would not have removed him the next day. But we have experience with international indictments and the destabilizing effects that they have. Look at Milosevic, who looked pretty secure. He was indicted, and very quickly he was out of there. Look at Charles Taylor in Liberia. An international indictment has the ability to delegitimize leaders, make it clear to their entourage that there is no way their government will ever enjoy normal relations with the rest of the world until they get rid of the thug at the top. In those circumstances, there is a tendency for them to overthrow the tyrant.

Would this have happened in Iraq? Who knows? But the Bush administration wasn't willing to try, because they hated the obvious mechanism that was available, the International Criminal Court. They had an ideological hatred for a court that could be used against them. They were not even going to give it a try. Even back when Saddam committed his major crimes, in the 1988 Anfal genocide against the Kurds, he was our ally against Iran. I spent a good deal of my life trying to get Saddam indicted after the Anfal genocide, and the U.S. government wasn't terribly interested. They were too busy handing him billions of dollars in commodity credits and loan guarantees because he was a useful counterweight to Iran.

2) The question of humanitarian purpose. Here, Fernando, let me distinguish the two concepts that you put forward, because I'm talking about something a bit different. Governments never act altruistically. I'm not looking for pure motives. Nor, on the other hand, am I looking at the narrow concept of intent. Rather, I look to the dominant purpose informing an action. Whenever you're dealing with something as complex as war, many decisions are made day in and day out that will have an effect on whether civilians are hurt. Are civilians killed? Are they injured? Are they harmed in some way?

If you have a dominant humanitarian motive to your enterprise, you are likely to make those day-to-day wartime decisions in a way that maximizes the protection of civilians. That's not the way this war unfolded. As a result, there were real-world negative consequences to the lack of a dominant humanitarian motive for the Bush intervention.

If this had really been about maximizing protection for Iraqi civilians, we would have gone in with a much bigger force. We would have listened to General Shinseki when he said that several hundred thousand troops were needed to avoid postwar chaos, to avoid the looting of arsenals and the various things that have led to the disastrous insurgency today. Rather than listening to him, he was fired. Rumsfeld didn't like the Army. The Army is cloddy and old-fashioned, just boots on the ground. Rumsfeld liked the Afghanistan war—a handful of special forces on the ground and a lot of very high-tech bombing. To hear General Shinseki, a very wise, respected person, say we need several hundred thousand troops was the wrong message. So he was ignored.

He would not have been ignored if humanitarianism had been one of the dominant forces behind the intervention, because it was clear that you needed more troops to avoid postwar chaos and to lay a foundation for Iraq having a reasonable prospect of emerging from the invasion with a government intact and prospects of moving towards democracy. So the humanitarian-purpose criterion failed.

3) Did the invading force largely comply with international humanitarian law, the laws of war, the Geneva Conventions? To a large extent, yes, but in very important respects, no. To sum up, the Air Force is good at targeting very precisely fixed targets that could be targeted in advance. When it came to mobile targets— targets of opportunity—it failed miserably. A good example was the decapitation strikes aimed at the Iraqi leadership, where they decided to use a very imprecise method of locating the leaders. The Iraqi leadership loved to use Thuraya satellite phones, and the Air Force could figure out where they were located. They each had a GSP clip, these little forces that allow you to locate where it is within 100 meters. Now, a 100-meter radius in the middle of the desert pretty much locates the guy. But a 100-meter radius in the middle of a city—it's like taking a football field and looping it around the goalposts.

So the Air Force would say, "Well, Saddam is probably somewhere in there," and they would then very precisely hit—pretty much randomly—one of the buildings in that 100-meter radius. As a result, their decapitation strikes had the remarkable success ratio of being zero for fifty. But scores, if not hundreds, of civilians died as a result. They would not have launched those precise attacks on unknown targets if they had been carefully abiding by international humanitarian law.

Let me give you another example, cluster munitions. These are bombs that explode in the sky and let out small submunitions, little cluster bomblets, that scatter over a wide area. The Air Force used to use these in populated areas, until Human Rights Watch and others began criticizing them for the many civilians who died as a result. In fact, after the Kosovo war, we discovered that a quarter of the civilians who died, died because cluster bombs had been dropped in populated areas. They scatter all over the place, killing kids, moms, dads.

The Air Force got the message and stopped using those in populated areas in Iraq. But the Army, being a different service, didn't learn that lesson. As it was invading in southern Iraq, when the Iraqis would shoot artillery, they would fire back a rocket barrage over the horizon, which would scatter 3,500 or so submunitions over a one-kilometer-radius area. As a result, as best as we can estimate, about 1,000 people died because of this scattershot method of fighting back against Iraqi artillery. There is no way that that complies with international humanitarian law. Again, that should be one of the dominant requirements of a humanitarian intervention.

4)Was it reasonable to predict at the time that the Iraqi people would be better rather than worse off? At the time, it was difficult to predict how awful the Iraq war would turn out. Perhaps they naively thought that it was fair to assume that Iraq would be better off after a war toppling Saddam.

But in retrospect, was that a reasonable guess? Saddam killed about a quarter of a million people during the roughly twenty-five years of Baath Party rule, so a rate of about 10,000 deaths a year. There were huge peaks—100,000 killed in 1988 because of the Anfal campaign, 30,000 killed in 1991 because of the suppression of the uprisings. Remarkably, the death rate attributable to the war, according to Iraqi Body Count, which is the best estimate out there, is about 10,000 a year, 25,000 over the last two-and-a-half years.

It's far from clear that the Iraqi people have been better off. Yes, they got rid of a horrible dictatorship. But sometimes chaos is worse. And that is what they're stuck with, in large part because humanitarianism didn't dominate the motives of the interveners, and chaos has loomed.

5) Did the U.N. Security Council or a comparable multilateral body approve of the war? I don't believe that the Security Council should be the sole authority that can authorize such an intervention, but the advantage of requiring some kind of multilateral approval is that it gives legitimacy to the venture. That would have been particularly important in the case of the Iraq war, because it would have been much easier to bring in allies and to come closer to General Shinseki's several hundred thousand troops that were needed than, in fact, happened with the 150,000 or so that went in.

In this case, where there was no urgency, where there would have been time to convince the necessary majority on the Security Council to approve the war, you cannot justify having rushed in without that approval.

6) Finally, was there ongoing or imminent mass slaughter? Fernando asks, was there severe tyranny? I don't accept that severe tyranny is enough for war. War is going in and deliberately murdering people. Now, it may be murder that's justified under the Geneva Conventions; it may be just soldiers. Oftentimes, it's a lot of civilians.

Given the death involved, only large-scale killing can justify war. I differ from some of my more pacifist colleagues in recognizing that sometimes a little bit of killing is necessary to stop a lot of killing, that it's the lesser of two evils. But I don't feel comfortable advocating killing merely to stop repression. Advocating killing, which is what humanitarian intervention is about, is justifiable only to stop major killing, and that killing has to be either happening right now or very likely about to begin.

That is not what we had in March 2003. You could have justified humanitarian intervention in 1988 to stop the Anfal, in 1991 to stop the suppression of the uprising. But there was nothing even close to that level of killing taking place in March 2003.

Clearly, he had committed these crimes in the past. Does that make it justifiable to invade now? No, not unless that past slaughter suggests a likely resumption today. Does that mean that there is an incentive to speed up the killing? I don't think so. On the one hand, the more you accelerate the killing, the more likely you're going to be invaded; the easier it is to justify humanitarian intervention at that moment. But if you assume that there is a completed crime, and if there indeed is no reason to suspect a resumption of that crime—the likelihood of imminent mass slaughter—then you cannot justify killing. War cannot be justified simply for retroactive revenge, or even for retroactive justice. Much as I want to see Saddam arrested and prosecuted, mere justice, important as that is, is not a justification for killing today.

Was there reason to assume imminent resumption of mass slaughter? Fortunately, the answer was no.

To conclude, Bush claims that this was a humanitarian intervention, but there was no ongoing or imminent mass killing. War was not the last reasonable option to deal with Saddam's tyranny. There was not primarily a humanitarian motivation or intention. The war did not conform strictly with international humanitarian law. There was no Security Council or multilateral approval. The most you can say is that it was reasonable to assume at that stage that the Iraqi people would be better off. That one criterion out of the six is not enough to justify humanitarian intervention.

The Iraq war and Bush's efforts to justify it in humanitarian terms has been a disaster for the concept of humanitarian intervention. The people of Darfur are paying the price for that disaster. We have gone from a period when humanitarian intervention was running high, after the Bosnian, Kosovo, and East Timor invasions, to the point where today it is anathema. We need to redeem this important institution by clarifying that Iraq was not a humanitarian intervention, so that it will be there for the victims of prospective genocides tomorrow who are going to need it.

FERNANDO TESÓN: It is impossible to comply with the standards that Ken outlines for humanitarian intervention.

I have a problem with the question of humanitarian intent. From the beginning, there was a strong humanitarian component in what the Coalition did, the desire to fight tyranny.

I would like to comment on the very important issue of violations of humanitarian law. That standard is particularly misguided here, not because they don't have to comply with humanitarian law, but because it confuses jus ad bellum, the question of just war, with jus in bello, which is norms about conduct. If we apply Ken's standards, you have to say that World War II wasn't justified.

He has said that there should be more troops, yet had there been more, the critics of the administration would have been outraged. The president could not have done anything to please the critics.

A just war can still be justified even if there are, unfortunately, violations of humanitarian law. The International Court ought to bring those guilty to justice. But that does not affect the justice of the war.

People who say that the war is illegitimate sometimes do not carry that belief to its ultimate consequences. If we claim that this war was illegitimate, either on humanitarian or defensive grounds, then we must conclude that it was a war of aggression. If you think it was a war of aggression, you must say that the insurgency is fighting a justified war, a defensive war, against aggressors. Human Rights Watch should come out and praise the struggle of the Iraqi insurgents.

In international law, as the principle of first aggression, you should wipe out all the consequences of that aggression. We have to restore Saddam Hussein to power. That's even more ridiculous. Not even the worst critic of Bush says that. Yet that is what international law would have to say.

KEN ROTH: First, I don't agree that the six standards are impossible. Just to cite a few examples where it would be easy to justify the humanitarian intervention:

• The Bosnian intervention. At the time, the genocide was ongoing. It was perfectly justifiable. No one has found any serious problems with the means used -it was a fairly precise bombing campaign.

• An intervention in Rwanda would have been easily justifiable.

• But even to take an Iraq example, the no-fly zone created in 1991, which was a humanitarian intervention, was justified, in that it was a point where there was reason to suspect imminent genocide. The Kurds had just had 100,000 people killed. There was a new effort to suppress the uprising, and they fled for their lives, having every reason to believe that they would be slaughtered. A fairly clean intervention made it possible for them to come back in safety.

Ordinarily, Human Rights Watch stays completely away from jus ad bellum. The only exception we make to get into that is on the question of humanitarian intervention, because it's a human-rights question.

But you cannot completely separate the two. Let's imagine that, for the purest of motives, Bush wanted to go and remove Saddam, and decided that the best way to do so was to nuke Baghdad. We would never say that was justified.

You have to look at the way the war was fought, in part, in assessing the overall humanitarianism of the intervention. Was enough attention paid to jus in bello? The war wasn't the equivalent of nuking Baghdad, but a number of things have happened that shouldn't have happened if humanitarianism had been dominant.

As for the insurgents, we put out a report recently condemning the insurgents' methods. I have the easy way out on this question, because we don't take a position on the question of aggression. And we do that for a very unprincipled reason, which is that it minimizes our effectiveness in monitoring the way wars are fought. Human Rights Watch will never call somebody an aggressor or not, in any case in the world.

There are alternative ways of trying to justify the Iraq war, including the ones that Bush primarily gave back in 2003. If all those other justifications fall by the wayside, humanitarianism will not salvage it.

PAIGE ARTHUR: We'll take some questions from the audience.

Questions and Answers

QUESTION: You seem to be providing a rationalization for an act where we can argue that if you look at the situation in Sudan, or in Liberia, what glaringly stands out is Iraqi oil. In Sudan we already control the oil. You are providing a very well-reasoned, selective application of these principles.

FERNANDO TESÓN: That I am permitted to rescue Joe and I rescue Joe doesn't mean that I am obligated also to rescue Mary. There is no principle that says that anytime you wage war in one that you also have to wage war in another place with the same characteristics.

Having said that, I agree with Ken on the very important question of resources. If invading Iraq prevents us from helping in Darfur—I support intervention in Darfur—then it is a problem. It is not, however, a problem of justification of the war in Iraq, but rather one of statesmanship and mismanagement of resources. The selectivity question does not go against the justification for war.

QUESTION: There have been debates on responsibility to protect, citing cases like Rwanda and Darfur. What impact will this debate on humanitarian intervention as an excuse for the war in Iraq have on the overall international debates on humanitarian intervention?

What would be the contributions of Human Rights Watch and scholars like Fernando in salvaging the international debate on humanitarian intervention?

QUESTION: We have a completely cavalier view about national self-determination and the autonomy of a nation-state and its rights. Human rights has become an excuse to discuss not whether but at what point a state, whether it's a hegemonic one state or a group, through the auspices of the United Nations, goes in and interferes in other people's affairs.

You come in and say, "He's a terrible person, and he's committed" genocide." We have to be careful with "genocide," but let's say we all subscribe to that view. It's like saying, "There has been an act of terror down the street, so we have to impose all these new measures on people at home."

When you start using something that seems very terrible as a pretext for intervention, and stop having a discussion about people's autonomy to make their own rules and govern themselves, then you have a problem. Rather than arguing for human rights and intervention, and when the United States, European countries, Japan and other states intervene, perhaps the question should be less intervention, less propping up of corrupt regimes for a series of years, so that then people in their own countries can take measures to assure that tinpot dictators aren't kept in power.

QUESTION: In light of the protests in Washington recently, what is the responsibility and the potential for civilians in responding to the problem of tyranny?

KEN ROTH: What is the effect of trying to justify Iraq as a humanitarian intervention? It's a disaster for humanitarian intervention. Why is the AU [African Union] stuck doing Darfur by itself? There are no other troops around. Intervention has become a dirty word.

I wrote the article to try to redeem humanitarian intervention by distancing it from Iraq, because we cannot justify Iraq in those terms.

Let's take Saddam and Iraq. I don't accept that the people of Iraq had any autonomy over their fate. This was a ruthless dictator. To say that the world should leave them alone and let the Iraqi people determine their own lives is advocating abandoning the Iraqi people to this ruthless tyrant.

That doesn't mean that you militarily intervene, because you can only justify the war if there is a level of killing that wasn't present in 2003. But that doesn't mean that you turn your back on Iraq and say, "Human rights is just an interventionist concept, and so we're going to leave the people to their fate." We have to recognize the reality of power, that people can't often have much control over their lives, and we have a responsibility to try to protect them from tyranny—ideally, using non-militaristic means in a situation short of mass killing.

When China or the Soviet Union said, "Don't interfere in our internal affairs," my view is, we are trying to allow the Chinese or the Russian people to have a say in their affairs, by somehow weakening the hand of this tyrant.

FERNANDO TESÓN: Africa, before now, of all the regions of the world, was the one that had made the most progress in trying to deal with these regimes.. It's a very important precedent, but the Africans themselves did it with the blessing of the Security Council.

I differ with Ken about whether the Iraq precedent is a disaster, for the following reason. He says it is a disaster. What does he mean by that? Apparently, because we cannot intervene in Darfur now. But it's not clear why that is so. What happens is that this U.S. president is not particularly popular in the world, and the fact that he wants to make a humanitarian rationale cannot alienate everybody else on that rationale.

Ken Roth is a very principled person, and I don't think he's being partisan at all. But I'm saying that, curiously, the way in which it might be bad for humanitarian intervention is that because someone who, rightly or wrongly, is disliked used it, and gave it a bad name.

I urge all of my friends in the human-rights community to separate their aversion for a particular leader from the justice of the act of getting rid of this horrible dictator.

In the 1980s, Ronald Reagan did nothing that anyone who was a good liberal wanted to hear about. I'm an Independent. I liked Bill Clinton a lot. I supported Kosovo. I supported everything he did in international affairs. But it would be unfair to suggest that Reagan had nothing to do with the end of the Cold War.

Human Rights Watch should say that helping to defeat the Soviet Union was a very good thing for human rights. Yet Reagan got zero credit for it. If you want to dislike him, that's fine. But Human Rights Watch's origin is the Soviet dissidents. You know better than all of us what that tyranny was about.

PAIGE ARTHUR: Do you have any comment on civic actions?

FERNANDO TESÓN: This is an ethical dilemma. Someone might say, in America, "Why are we sending our kids to die, plus our tax dollars and resources? We need them for education, health care, for improving social problems here. Why are those going to be devoted to saving others?" That is a very legitimate concern, and any responsible democratic leader has to balance the fiduciary duty that he or she has for his people, the civilians, the public of his own country and the help that he may give to others.

That also speaks to the question of proportionality. Like all moral matters, it depends. I have to care for my children first, but if I can, I will help someone else's children as well.

But there are some moral constraints on humanitarian intervention related to the resources that the government can muster to save others from tyranny.

QUESTION: First, Fernando, I'm wondering if motive in your argument can bear the weight the considerable weight you give it in determining whether an act is ethical and justified.

In talking about the motives behind the action, you separated out motives from the reasons that could be given for justifying an act.

That's a rather dangerous position to take. It is exactly the stance that some people in the Bush administration want to take, which is to open up the idea that our leaders are somehow morally superior to us. They have motives that don't need to be defended; their motives are somehow pure enough and good enough that they don't have to provide reasons, or the reasons that they give can be duplicitous, false, simply wrong, and that's okay because we trust them to be morally superior.

The second question touches on some of the issues about the prior support that the U.S. had given to Saddam Hussein, that Saddam Hussein was our ally at one time, and that many of our actions in the context of supporting him as an ally made it more possible for him to do the things that he did, which we then turned around and termed tyrannical.

The other set of issues that would be relevant in determining what our ethical position towards Iraq and humanitarian intervention should be: the conditions that the international system has set up that had made it perfectly rational and reasonable to create and to support state regimes like Saddam Hussein's. Might an ethical judgment need to take into account that actions like this intervention are likely to reinforce the conditions under which states like the United States will choose sides, and will give support to states that will continue to pursue these kinds of acts?

QUESTION: As a Nicaraguan, I am very uncomfortable sitting here, after living my entire childhood in a war, and hearing that the U.S. government gets to decide how to liberate people, and that we grant this international community the honor of defining that liberation, when it should take place, and the price that the people in the country pay.

Ronald Reagan cannot be a hero for me. Fifty thousand Nicaraguans died. I remember the war, and the suffering of children in that war. What is liberation? Why do we get to define liberation?

QUESTION: My question is more for Mr. Roth. I was a bit dissatisfied with what you defined as the consequences of defining a war like the war in Iraq as essentially "intervention fatigue," and that the problems that you cite could easily be solved if you were to reverse the decision to define the U.S. intervention as an actual humanitarian effort that would bring greater international assistance. Maybe U.S. troops have run out for Darfur, but there are plenty of German and French troops.

Would you elaborate on what the risks actually are? While I'm no fan of the Bush administration, there are many extra problems created for possibly solving and coming up with ways to deal with a real crisis in Iraq. Some critics argue that it is impossible to define the intervention as a humanitarian effort.

KEN ROTH: On the Contra war, this is a perfect illustration of the danger of justifying humanitarian intervention in the name of simply fighting tyranny. There was a debate over whether the Sandinistas were really tyrannical, but the Reagan administration said that they were, and it's impossible to justify the Nicaragua war in humanitarian terms. When you start lowering the bar, when you allow mere tyranny, even serious tyranny, to justify intervention, you will get Nicaraguan wars, whereas if you keep the bar high and say you can't justify killing unless it is to stop major killing, that high bar helps us at least avoid humanitarian justification for the Contra war. There were other elements like the Cold War as well. But it makes it impossible to sell it as a humanitarian conflict.

What would have happened if you had not tried to justify Iraq as a humanitarian war? In the case of Darfur, it would have been harder for Sudan to enlist Algeria and Egypt in avoiding a more forceful intervention, which they were very successful in doing, saying, "This is just America going after oil again. This is America being imperialistic." I recognize, because the Iraq war wasn't about humanitarianism, that it was much harder to use the humanitarian comeback and say, "No, no, no, there are no ulterior motives here. This is just about saving the people of Darfur," when that argument was viewed with such suspicion, because it had been used so disastrously in Iraq.

Where are the Germans and the French? The Germans are in Afghanistan; the French are in Côte d'Ivoire and in eastern Congo. But the argument of humanitarianism has been much more difficult to make since Iraq, because people who might have thought of it in terms of East Timor or Bosnia now think of it in terms of Iraq.

Let me quickly touch on your three points. One, can we ignore what people say and just look at the underlying motive? Particularly in an issue as big as war, leaders have a duty to state what they intend, what their motive is, to allow for public debate, which is particularly important on an issue of war. So while I grant the theoretical point that you can say something is different and still have pure motives, I would be reluctant to credit that approach.

I differ, though, on your other points. Let's concede that the U.S. had dirty hands when it came to Iraq, that Saddam had been our ally, that we had helped to create Saddam. That said, if Saddam were committing genocide in March 2003, I would have had no qualms about urging the U.S. to intervene. "Dirty hands" is not much of an answer when people are being killed. The dirty-hands argument or policy does not matter that much.

Does humanitarian intervention encourage the U.S. in its imperialistic views, and therefore encourage it to back tyrants around the world? You could just as easily argue the opposite, which is that attacking somebody who is a tyrant suggests that the U.S. doesn't support tyrants. That policy argument does not play out.

FERNANDO TESÓN: I agree with that.

For the past twenty years I have been saying that what we did in the Nicaraguan war was not humanitarian intervention. The Sandinistas were an ordinary authoritarian regime and did not qualify as severe tyranny. The actions taken by the Reagan Administration were disproportionate.

But I don't make the jump that the fact that the Reagan administration tried to make a humanitarian justification for that should preempt us from using the same justification when it is appropriate, when it is not just ordinary authoritarian regimes, but rather what I call severe tyranny.

Politicians are not, to put it mildly, truth-sensitive. They gather together in smoke-filled rooms with Madison Avenue advisers and ask, "Hey, guys, what do I have to say to get the public behind me?"

"Just tell them weapons of mass destruction."

Are we going then to pin the justification of anything on what politicians say? This is a big mistake.

Suppose that I rescue someone held hostage by a villain. Then you ask me, "Why did you do it?" "Because the person was threatening my life. He had a weapon there, and he was about to kill me." "That is not true. He didn't have any weapons there." So my justification was completely mistaken, did not justify my action. Yet I would contend that that rescue was just, which is again going back to the theme of separating what leaders say—number one, persons from actions; and number two, ethical justification from what the agent says is the justification.

I agree that they have a moral duty. It's just that they don't fulfill that duty. Therefore, if we think about ethics in international relations, then all we'll just check to see what Nestor Kirchner, Putin, Chirac or George W. Bush says. That would be a big mistake.

KEN ROTH: Let me give you a more apt analogy. I'm a shopkeeper. You come into my shop and I see you steal a candy bar. I quietly pick up my cell phone. Then I realize, when I call the police, they won't bother coming if you're just stealing a candy bar. So I say, "Somebody's got a gun in here. They're about to shoot. They're holding me hostage." So the SWAT teams come, and they arrest you. So we have done a service by arresting a criminal. But it was a complete overreaction, and the reasons I gave were a wrong justification, and consequences came from that in terms of the waste of resources that couldn't be justified, even though the end of the arrest of the thief was a good end.

So what people say prospectively, particularly around something as big as war, matters.

QUESTION: I have two questions for Professor Tesón. What is severe tyranny versus just a little bit of tyranny?

What if all the people who live under tyranny perceive it as severe tyranny? Does that give the U.S. the justification to intervene under the guise of humanitarian intervention?

My second question is, you're quite skeptical of the Security Council as a source of justification for these interventions. What you propose is, instead, that the Western democracies or democracies in general, should give the justification for intervention. How do you reconcile that with the fact that before the Iraq invasion, two of the most prominent examples of Western democracies, Germany and France, were very opposed to the intervention?

FERNANDO TESÓN: The question of what is severe tyranny is a line-drawing question. I will define it as a severe pattern of gross violations of human rights, the most basic rights of life, security, and subsistence.

I agree with you that there are problems of line drawing. That makes it permissible to jump in, if other things fall into place. I would argue that the conditions that he mentioned are only necessary but not sufficient to justify it. Even if you thought China was a severe tyranny, it would be crazy to jump in.

On the second question: My dislike of the Security Council is for different reasons than others offer. They object to its domination by the West, which is precisely one of the points in its favor.

I dislike it because of the veto problem that Ken mentioned, but also for a more profound reason. They are not perfect guardians of human freedom and human rights, when you have one of the permanent members that is, itself, a tyranny and the nonpermanent members often are inimical to freedom and human rights, and are themselves illegitimate regimes.

Bob Keohane of Princeton and Allen Buchanan of Duke published an article in Ethics & Iinternational Affairs recently, some council of democracies to be added to the Security Council. I would have a wide net to include India and the Latin America democracies. Only dictators would be left out. But I would not have dictators vote on whether people ought to be saved.

KEN ROTH: Briefly, on severe tyranny: Fernando, the test you are alluding to is the consistent pattern of gross violations, which is a U.S. law standard. It's codified in Section 502 of the Foreign Assistance Act.

The problem is that that includes not only summary executions, but also torture or prolonged arbitrary imprisonment. I will not urge war because a bunch of people happen to be in prison. I'd use other means to try to stop that, short of invasion. Even something as awful as torture cannot justify the killing inherent to war. We must use other means to stop it. Severe tyranny is too low a bar.

PAIGE ARTHUR: Thank you very much.