Just War Theory
Jus in Bello
The Jus in Bello aspect of the Just War Theory addresses how nations and states that initiate military intervention should act while in war. The Jus in Bello piece of the theory regulates and provides an ethical framework for judging whether actions whilst in war are ethical or unethical. One of the fundamental aspects of the Jus in Bello theory is that the actions taken by the state initiating the war must be “proportional” and “non-combatants are immune from attack” (Calhoun 2001, 45).
The Kenyan intervention in Somalia is a relatively new conflict, and little is known in regard to its war practices. As the intervention progresses, whether it has complied with jus in bello will become much clearer and measurable.
Jus Post Bellum
The jus post bellum portion of the just war theory is the last stage of the morality metric. During the jus post bellum stage, the intervening state is required to provide a “restoration of a just order” (Amstutz 2008, 115). During the jus post bellum stage, Kenya will be required to help Somalia ensure that that a solid, effective government is installed, the breakdown in society has been overcome, and overall order is imparted. Given the failures of previous interventions held in Somalia, the success or failure of Kenya’s ability to complete jus post bellum will be one of the most telling ways to ultimately determine if the intervention was fully moral.
As discussed in previous sections, Somalia has been invaded on numerous occasions, with none of the incursions resulting in jus post bellum successfully. What seems to be a common theme is: intervening forces enter, there is a stalemate, and the intervening forces decide to leave. This is likely why for the last two decades; Somalia has been at a standstill politically, economically and developmentally. Only time will tell if the Kenyans are successful in fully completing the jus post bellum stage of moral and just war.
For the sake of Somalis, the East African region and the international community at large, it is in the best interest of everyone if the just post bellum stage is fulfilled in its entirety to prevent further regression of the Somali state and repeated failed interventions.
Opposing Views to Just War Theory
From the analysis of the components of just war theory, it is clear that Kenya did have reason or cause to intervene in Somalia and that it did so within the confines of the just war theory metric. Even so, the intervention did not go without criticism and disapproval from key members of the international community and leaders of religious groups. This section will identify and outline some of opposing arguments of just war theory, the incongruities between just war theory and religious teachings, pinpoint the likely challenges that the Kenyan’s may encounter in the future, and explain some of the failures thus far in the Kenyan intervention.
Pacifism
Pacifism is one of the most major arguments against the just-war theory tradition. Under the Pacifism framework, violence as a means of war is essentially never justified or acceptable as moral, even in cases of severe humanitarian crisis. The pacifist approach prohibits the threat and use of force because, in accordance with a rule-base ethic, it assumes that violence can never be a morally legitimate means to provide national security or to secure moral goods such as human rights, international justice and peace.” (Amstutz 2008, 110)
Under the Pacifist outline, pure pacifists would deem the armed Kenyan intervention in Somalia as unethical and immoral. This is a sharp contrast from just war theory which holds that war can be ethical under certain circumstances if specific criteria are met (jus ad bellum, jus in bello and jus post bellum). However, the pacifist argument supposes that this is not moral and even if there is just because it is absolutely immoral to engage in any violence or use force. Under pacifism the value of nonviolence and peace is higher than any other, so nations should never use force under any circumstances.
In lieu of force, under the pacifist model states are encouraged to use non-violent measures to address conflict and crises. With violence and force out of the question, it becomes essential that diplomacy and non-violent measures are undertaken and enforced. In the case of Kenya and Somalia, pacifists would likely argue that it was immoral for Kenya to enter Somalia with the use of force, as it is not ethical to use force under the pacifism approach. As we know, the Kenyan-Somali conflict is multi-layered and complicated in nature.
Even with the violent nature of piracy and the destruction that it poses to Kenyan national security and safety, under pacifism engaging in force to address this issue would be immoral. Rather, pacifists would argue that Kenyan authorities should engage in non-violent measures to address the issue.
The main issue that this poses is, pacifists assume that “highest priorities are life and peace” and does not address how sometimes using force in extreme situations, such as Somalia, can actually preserve the very ideals that pacifists claim to defend. Pacifism is also somewhat problematic because the pacifism structure works best when engaging two sovereign states with central and effective governments. In the case of Somalia, it has an ineffective government, and many of the issues lie with non-state actors such as terrorists, clans, pirates or rogue states that are not legitimate and are destructive to global security and or its people. Traditional means of nonviolence such as sanctions, diplomatic engagements, etc. would be inappropriate for such actors. Also, when such actors are using violence as their means, it becomes increasingly difficult to preserve the notion of non-violence, as states need to defend themselves against such actors.
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While Pacifists may argue that the Kenyan intervention was immoral, it would be unrealistic and ineffective for Kenya to not use force as a means to intervene in Somalia due to the nature of the threats at hand and the nature of the actors involved.
Amoral Realism
Amoral realism is a somewhat more liberal perspective on the use of force, with pacifism being more conservative and just war being in the middle between pacifism and the amoral realism perspective. While pacifism suggests that war and the use of force is never an option, amoral realism not only suggests that it is moral and acceptable, but also proposes that there are no limitations to war whatsoever, and that “morality does not constrain war” (Amstutz 2008, 111). This is a somewhat extreme perception of war in comparison with the pacifist and just-war theory perspective, in the sense that it suggests that, “…morality is silent in wartime, denying that moral limits exist on the conduct of war” (Amstutz 2008, 111). The Jus in Bello aspect of just war theory has a direct conflict with this premise, as Jus in Bello proposes that there are constraints and regulations regarding wartime behavior and morality regarding such behavior. Under the amoral realism argument, is the cynical view (Amstutz 2008, 111). Under the cynical view, war is allowed and there are no moral limitations because they are seen as “subjective” and are irrelevant because, in the realists’ view, they believe overall goal and objective of war is to conquer and win regardless of the means (Amstutz 2008, 111).
Relating amoral realism to the Kenyan intervention, amoral realists would likely be divided over whether or not the intervention was moral and legitimate in the eyes of ethicists. Cynical amoral realists would likely view the intervention as moral because they do not believe in any moral limits on war and the use of force. If the Kenyans believed that war was in their interest, under the cynical perspective of amoral realism, they would be able to enter into Somalia with force without any obligations to morals or ethics. Following the belief of cynical amoral realism, the ultimate goal of the Kenyans would be to win and be successful in the intervention despite what its original intent or reasons for pursuing the intervention may have been. If the Kenyan intentions were purely altruistic and unselfish in nature, in that they were acting on behalf of the interest of Somalia and Somalia only, it may be admirable, but it would be irrelevant in determining its morality, as there are no constraints under the cynical perspective of amoral realism. If the Kenyan intentions were mixed, being somewhat altruistic and somewhat self-interested, that too would be irrelevant, as morals have no place in the decision.
Holy War
The holy war perspective is distinguished by its affiliation with religion and “divine will” (Amstutz 2008, 111). This perspective too, does not have moral limitations in regards to the use of force because of its association with the “divine will” and ultimate prevailing of religious values and the religion overall. If the Kenyan intervention is measured against the holy war position, it could be seen as immoral depending on the religious sect or group. For example, in Somalia, it is has been widely known and understood that one of the goals of the Islamic extremist groups, such as the Al-Shabbab is to instill Sharia law (Islamic law) and to push Islamic values and extremism into the mainstream, general society. The Al-Shabbab is known to have coordinated many terrorist attacks in Somalia and Kenya and has connections to Al-Qaeda and is even connected and coordinating with terrorists Yemen. In the view of the holy war perspective, morals in regards to the use of force and limitations on wartime behavior are irrelevant as the ultimate goal is to fight on behalf of the religion, even if undesirable deaths or destruction could occur. In this case, it is possible that the Al-Shabbab could view the Kenyan intervention as a direct threat to Islam or their goal of instilling Sharia law in Somalia.
The Legalist Perspective and Point of View
Another method of determining ethics and morality in regard to war is the legalist paradigm (Walzer 1977, 118). The legalist perspective or paradigm is somewhat similar to the pacifist point of view in that intervention or invading another sovereign state is immoral and unacceptable, but not because it prioritizes peace and non-violence as an ethical priority. Rather, it prioritizes the notion of the state and states’ legal right to sovereignty, and values international order.
Under the legalist perspective, Michael Walzer argues, there is a fundamental observation that is particularly salient to interventions; specifically, interventions based on humanitarian reasons. Walzer notes the following about the legalist paradigm, “Though states are founded for the sake of life and liberty, they cannot be challenged in the name of life and liberty by any other states” (Walzer 1977, 61). This directly contradicts interventions based solely human rights or other humanitarian bases.
The legalist paradigm also proposes that generally the use of force is only to be used in defense against other parties when they have exercised the use of force, or there is reason to believe that it is a possible threat and if it is used in any other circumstance it is viewed as “criminal” (Walzer 1977, 61). This is expressed when Walter explains, “Any use of force or imminent threat of force by one state against the political sovereignty or territorial integrity of another constitutes aggression and is a criminal act” (Walzer 1977, 62). Though it is clear that the legalist perspective values these beliefs, it does somewhat lend itself to compromise and interpretation in a way that the pacifism perspective does not. Under the legalist paradigm, states do have the right to intervene in certain instances (as in just war theory) if certain criteria are met: there is a viable threat or if aggression or force has been used against that particular state. This is demonstrated when Walzer explains the following in regards to the legalist point of view, “Nothing but aggression can justify war” (Walzer 1977, 62).
In applying the legalist perspective to the humanitarian intervention in Kenya, it is unclear and somewhat uncertain if legalists likely would approve the intervention as being morally acceptable. While it is clear that acts of aggression have been taken against Kenya on several occasions through terrorist attacks, piracy incidents among others, it is not clear whether such attacks should be attributed to the Somali state itself or to actors (terrorists or pirates) who are not necessarily state-sponsored but are able to conduct such activities due to the lack of state or governance. This is a complicated notion and one that seems to be a recurring theme as we discuss morality and state actors. Moving forward, it will be critical that we re-think diplomacy and even morality in a new age and time where the emphasis on the state is becoming devalued and the emphases is more on individual actors or groups are more emphasized.
Ultimately, the legalist paradigm emphasizes the concept and notion of the state. In the case of Kenya, legalists could argue that because of the aggression of pirates or terrorists by individuals who were housed in Somalia or somewhat facilitated by the collapse of Somalia, it is therefore the Somali who is ultimately responsible and therefore deserving of intervention or the use of force. On the other hand, as aforementioned, legalists could argue that the state and main government, which in this case would be the Somali TFG, cannot be held accountable for individual actors and is therefore under serving of armed interference.
Religion and the Just War Theory Perspective
One of the major issues between just-war theory and Islam is the sense that just war theory is foreign and seen as a “western concept” (Mirbagheri 2012, 128). This would essentially discredit the metric of just-war theory as well as the credibility of the overall theory itself. In the book, War and Peace in Islam, S.M. Farid Mirbagheri details some of the perceptions of just war in the Muslim community. These beliefs and perceptions may essentially discredit the ultimate argument that the Kenyan intervention in Somalia was indeed moral, per the requirements and composition of just war theory.
According to Mirbagheri, not only is just-war theory closely associated with the West, it is also closely associated with Christianity and the Crusades (Mirbagheri 2012, 129). The Crusades, a series of wars fought between Muslims and Christians during the Middle Ages, is still a sensitive issue between Muslims and Christians today. Mirbagheri notes, “The concept of just war may also hint at the notion of holy war in Christendom, reminiscent of the Crusades” (Mirbagheri 2012, 129). It is quite likely that the mere association of just war with Christianity and the Crusades may completely undermine and delegitimize the credibility of just war theory and its ability to serve as a metric for just war within some in the Muslim community.
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