Jürgen Habermas

a war on the border between law and morality

Jürgen Habermas, Bestialität und Humanität, published in Die Zeit, 54, 18, 29 April 1999; pages 1-8.

Translated by Franz Solms-Laubach.

2000

global library

With the first active participation of the Bundeswehr in a fighting mission the long period of careful self-imposed restraint which characterised the civil features of the post-war German mentality is coming to an end. There is a war going on. Certainly, the "air-strikes" of the Alliance are meant to be something different than a traditional war. In fact the "surgical precision" of the air-strikes, as well as the programmatic sparing of the civilian population have a highly legitimating effect. It entails a turn away from the total war strategy which has largely characterised the century which is now ending. Nevertheless, even we semi-participants, served by TV with the war every night, know that the Yugoslav population, who have to duck under the air-strikes, experience nothing but war.

Happily solemn voices are absent from the German public sphere. No longing for fate, no intellectual drumming for the good comrade in arms. During the Gulf War the rhetoric of war, the conjuring up of state pathos, of dignity, of tragedy and of manly maturity was directed against a very powerful peace movement. There is little left now of either of these tendencies. Here and there a little malicious sneering about subdued pacifism or the tough slogan: "We are descending from moral heights." But not even these tones are compromising, because the supporters, as well as the opponents of the intervention are using a crystal-clear normative language.

The pacifist opponents highlight the moral difference between acting and non-acting, and point to the suffering of the civil victims, who have to pay the price of military force, even if it is executed with surgical precision. Their appeal, however, is not directed against the good conscience of hard-bitten realists proclaiming raison d’état, but against the legal pacifism of the red-green government. In line with the old democracies, who are influenced much more than we are by a rational natural law tradition, foreign secretary Fischer and defence secretary Scharping are relying on the idea of a domestication by means of human rights of state of nature between states. This move puts onto the agenda the transformation of international law into a law for world citizens.

Legal pacifism wants not just to restrict the latent state of war between sovereign states by means of international law, but also to replace it with a cosmopolitan order based on law. From Kant to Kelsen this tradition also existed in Germany. Today, however, it is for the first time being taken seriously by a German government. Direct membership in an association of world citizens would protect any state citizen against the arbitrary actions of their own governments. The most important consequence of an international law that even bypasses the sovereignty of states is, as can be seen already in the case of Pinochet, the personal liability of leaders and officials for the crimes committed during their state and war service.

In Germany, the conviction pacifists on the one hand and the legal pacifists on the other dominate the public debate. Even the "realists" are hiding under the cloak of normative rhetoric. Naturally the statements - pro and con - reflect contrary motives. Those who think in terms of power politics, who mistrust the normative restraint of sovereign state power on principle, find themselves going hand in hand with the pacifists, while the "Atlanticists" - out of sheer faith in the alliance - suppress their anger against people who were not long ago publicly opposing the introduction of Pershing II rockets and against their new official state policy of enthusiasm for human rights. Dregger and Bahr stand alongside Stroebele, while Schäuble and Rühe stand next to Eppler. In short the left government, as well as the priority of normative arguments both help to explain not only the unusual constellation in the opinion-battle, but also the comforting fact that the public debate and mood are not different than in other Western European countries. No Sonderweg, no Sonderbewußtsein (special consciousness). Rather there are lines of disagreement emerging between continental Europeans and Anglo-Saxons, particularly between the ones who want to invite the UN General Secretary to their negotiations and who look for an agreement with Russia, and the hard-liners who trust only in the persuasive ability of their own weapons.

Naturally the United States and the member states of the European Union, who carry the burden of political responsibility, start from a unified position. After the collapse of the talks at Rambouillet the threatened military strikes against Yugoslavia are being carried out with the expressed intention of pushing through a liberal solution for the autonomy of Kosovo within Serbia. Within the framework of traditional international law this action would have counted as an interference in the internal affairs of a sovereign state, i.e. a violation of the principle of non-intervention. Under the premise of human rights policy, this intervention is now to be seen as an armed peace-creating mission, which is authorised by the association of nations (admittedly without a UN mandate). According to this Western interpretation the Kosovo war could turn into a leap from the classical conception of international law for sovereign states towards the cosmopolitan law of a world civil society.

This development emerged with the foundation of the UN and was, after stagnation during the Cold War, accelerated by the Gulf War as well as other interventions. Humanitarian interventions since 1945, however, were always executed in the name of the UN and always depended on the formal agreement by the government in question (as long as there was a clearly identifiable and functioning state apparatus). During the Gulf War the Security Council established no flight zones over Iraqi territory and safe havens for Kurdish refugees in northern Iraq and thereby in fact interfered with the internal affairs of a sovereign state. This move, however, was not explicitly justified by reference to the protection of a minority from persecution by its own government. In Resolution 688 of April 1991 the UN justified its actions with reference to the right of intervention that was accorded to the UN "in cases of a threat to international security". Today the situation is a different one. NATO is acting without a mandate from the Security Council, but justifies its intervention as emergency aid to a persecuted ethnic (and religious) minority.

Even before the allied air strikes started 300000 people were subject to murder, terror and expulsion. In the meantime the horrific pictures of refugee movements en route to Macedonia, Montenegro and Albania provide the evidence of an ethnic cleansing campaign that was minutely planned beforehand. The fact that refugees are also being kept as hostages does not make the situation any better. Even though Milosevic uses the NATO air campaign to force his wretched policy to its logical conclusion, the depressing images from refugee camps make the true causal connection clear. It was precisely the aim of the talks and negotiations to end this murderous ethno-nationalism. Whether the basic positions of the genocide convention of 1948 apply to the actions taking place on the ground in the shadow of the air strikes, is controversial. But there can be no doubt about the facts that have emerged as "crimes against humanity" out of the principles laid down by the war crimes tribunals in Nuremberg and Tokyo and which have made their way into international law. Recently the Security Council has been treating these facts too as "threats to peace", which might under certain circumstances also justify the use of force. But without a mandate by the Security Council the allied intervention forces can only refer to the erga omnes obligations of international law to empower a relief action.

However that might be, the claim of the people of Kosovo to equal co-existence and the outrage caused by the unjust and brutal expulsions have earned the military intervention a broad, if differentiated approval throughout the West. The foreign policy spokesman of the CDU, Karl Lamers, has best expressed the ambivalence which has tended to go hand in hand with this approval right from the start: "Our conscience can be at ease. At least that is what our reason dictates, but our heart does not really want to listen. We are insecure and not at all at ease ..."

There are multiple sources for this disquiet. Over the last weeks serious doubts have emerged with regard to a negotiation strategy that has provided no other alternatives than armed intervention. While the Yugoslav people in general and even much of the opposition are slowly but surely switching to an outright support of the tough and hard-necked course pursued by Slobodan Milosevic, the unsettling consequences of war are accumulating around them. The bordering nations of Macedonia and Albania and the federated republic of Montenegro are being sucked for various reasons into the downward spiral of destabilisation; in the nuclear super-power Russia, widespread solidarity with the Serbian "sister people" is putting the government under increasing pressure. In particular, doubts about the appropriateness of the military means are increasingly emerging. Every incident of "collateral damage", every train that goes down with a bombed Danube bridge, every tractor laden with Kosovo Albanian refugees, every Serbian settlement, every civil target that is unintentionally hit by a stray bomb, does not highlight just another contingency of war, but a suffering, which "our" intervention has on its conscience.

Questions about the justification of means are hard to answer. Shouldn't NATO have announced the pending destruction of the national television service half an hour beforehand? Even the intentional destruction - burning tobacco factories, the flaming inferno of the gas factory, the bombed out skyscrapers, streets and bridges, the ruining of the economic infrastructure of a country that was already suffering due to a UN embargo - all these increase the disquiet. Every child that dies while on the run leaves us in a state of despair. Because despite the clearly visible causal connections the threads of responsibility get entangled. In the midst of the disastrous effects of the mass expulsions, the ruthless policies of a state terrorist combined with the side-effects of military strikes, which were to serve as deterrents to stop him, but in the end only gave him a pretence to continue, the consequences of each of these factors become a Gordian knot hard to distentangle.

Finally there are the doubts about the increasingly unclear political aims. Certainly, the five basic demands addressed to Milosevic follow the same clear principles according to which the liberally constructed Dayton agreement about a multi-ethnic Bosnia was set up. The Kosovo Albanians would have no right to secession, if only their claim to autonomy within Serbia was fulfilled. Greater Albanian nationalism, which would grow if a separation was to take place, is indeed no better than the Greater Serbian nationalism which this very intervention is to control. In the mean time the ethnic cleansing makes it all the more necessary with every day to revise the main objective of an equal co-existence between the different ethnic groups. But a partition of Kosovo would certainly mean a secession, which can be nobody's aim. The establishment of a protectorate would also entail a fundamental change to the overall strategy, in the sense of a land war and the presence of a peace keeping force for decades. If these unpredictable consequences occurred, the question of the legitimacy of the intervention would be posed retrospectively in quite other terms.

There is a shrill tone to the public announcements of our government, an overkill with questionable historical parallels - just as if Fischer and Scharping had to overcome an alternative inner voice with their blatant rhetoric. Is it the fear that the political failure of the military operation could put into question the whole intervention, and even set back by decades the whole project of a substantial reform of the legal basis of inter-state relationships? Would the grand "world police intervention", which NATO conducts in the name of world-civil-society then boil down to an ordinary war, indeed a dirty war, that only brought even greater suffering to the Balkans? Wouldn't that also mean to put wind into the sails of Carl Schmitt, who apparently always knew better: "Whoever uses the term humanity wants to betray."? Schmitt expressed his anti-humanism in the famous formula of: "Humanity, bestiality". The nagging doubt whether legal pacifism is itself in the end the wrong bet, is the most disturbing of the sources of disquiet.

The war in Kosovo touches upon a fundamental question which is hotly disputed in political science as well as in philosophy. Constitutional democracies have achieved the great civilisational task of the legal restriction of political force, based on the recognition of the sovereigny of subjects in international law, while a "world civil society" would definitely question this independence of nation states. Does the universalism of the enlightenment here collide with the stubbornness of political force, which is for ever entangled with the drive for collective self-affirmation of a particular community? This is the realist sting in the flesh of human rights policies.

Even the realist school of thought takes account of the structural transformation of the system of independent states that began with the Peace of Westphalia of 1648 - the interdependencies of a world society that is becoming ever more complex; the sheer scale of problems which can only be solved in a co-operative manner between the states; the growing authority and density of supra-national institutions, regimes and practices, not only in the field of collective security; the economisation of foreign policy in general, and the increasing blurring of the classical borders between domestic and foreign policy in particular. However, a pessimistic conception of humanity and a peculiarly opaque conception of "the" political form the background of a doctrine that clings more or less unrestrictedly to the international law principle of non-intervention in the internal affairs of a sovereign state. According to this doctrine, independent nation states should act freely, according to their own interests, because the security and survival of the collective are non-negotiable and unalterable values for its members, and because from the point of view of an observer, the best solution for the relations between collective agents remains the purposive rationality of self-affirmation.

Seen from this angle, the interventionist human rights policy commits a category mistake. It underestimates and discriminates against the somehow "natural" tendency of self- affirmation. It aims to impose normative standard on a potential for violence which escapes normative categories. Carl Schmitt sharpened this line of argument with his very peculiar and stylised Wesensbestimmung of the political. With the attempt of moralising an in itself neutral raison d'etat, Schmitt argued, it is precisely a human rights policy itself which causes the natural struggle between nations to degenerate into a hopeless "fight against evil".

Against this argument striking objections can be voiced. It is not at all the case in the post-national constellation that powerful nation-states might be hobbled by rules of the world community. It is more the erosion of state authority, civil wars and ethnic conflicts within disintegrating or dictatorially preserved states which call for interventions - not only in Somalia and Ruanda, but also in Bosnia and now in Kosovo. In the same way the critique of ideology finds no basis for its suspicions. The current situation shows that universalistic justifications do not always cover up the particularity of unacknowledged interests. What a hermeneutics of suspicion levels against the attack on Yugoslavia is pretty lightweight. For politicians who have little scope in domestic affairs, due to the globalisation of economies, a noisy show of strength in foreign affairs might offer some chance to improve their profile. But neither the motive of extending and securing the sphere of influence attributed to the United States, nor the motivation of finding a role attributed to NATO, nor even the motive attributed to "fortress Europe", of a precautionary defence against immigration movements, explain the decision to engage in such a weighty, risky and costly operation.

"Realism" is above all put in question by the fact that the subjects of international law and the trails of blood they have left behind in the history of catastrophes of the twentieth century have led the presumption of innocence in classical international law ad absurdum. The foundation of the United Nations and the declaration of universal human rights, as well as the threat of punishment for wars of aggression against other nations and crimes against humanity - including the consequence of an at least half-hearted limitation of the principle of non-intervention - these were necessary and rightful answers to the morally significant experiences of this century, the totalitarian unleashing of politics and the Holocaust.

In the final instance the reproach of a moralising of politics rests upon a conceptual unclarity. The desired establishment of a world civil society would mean that crimes against humanity would not be treated and dealt with according to directly moral standards, but like criminal acts in a state justice system. A fundamental juridification of international relations is not possible without reliance on established means of solving conflicts. It is precisely the institutionalisation of these processes which will presrve the legally restricted treatment of crimes against humanity from a moral de-differentiation of the law and thus prevent an over-sweeping moral discrimination against "the enemy".

This condition can be achieved without the introduction of the monopoly of force by a world state and a world government. But a necessary precondition is at least a well-functioning Security Council, the binding judgements of an international court of criminal justice and the complementing of the General Assembly of government representatives with a "second level chamber" composed of representatives of world citizens. Since these reforms of the UN are not yet in sight, the indication of the difference between a law-based discussion and its moralisation remains an important, if ambivalent proposition. Because as long as human rights are comparatively weakly institutionalised on a global scale, the border between law and morality can become essentially blurred, as in the current case. Because the Security Council is blocked, NATO can only rely upon the moral validity of international law - on norms for which there are no effective executives for the application and implementation of law that are recognised by the community of nations.

The lack of a proper institutionalisation of cosmopolitan aw expresses itself also for example in the gap between the legitimacy and the efficiency of peace-keeping and peace-creating interventions. Srebrenica was declared a safe haven, but the ground forces that were stationed there legitimately could not prevent the dreadful massacres that occurred after the Serbs had invaded the area. In contradistinction to this, NATO can now only face the Yugoslav government efficiently, because it started to act without the legitimation that would certainly have been denied by the Security Council.

Human rights policy aims to close the gap between these two opposite situations. In many respects it is sometimes forced to become a mere foreshadowing of a perceived future cosmopolitan condition, which it wants to help to establish; this is basically due to the insufficient institutionalisation of cosmopolitan law. How can one conduct a proper human rights policy, that aims to secure respect for these very rights, if necessary with military means, under these paradoxical circumstances? This question has also to be considered even if it is impossible to intervene everywhere: not on behalf of the Kurds, not for the Chechens or the Tibetans, but at least on our own doorstep in the war-riven Balkans. An interesting difference in the understanding of human rights politics is emerging between the United States and Europe. The United States are enforcing the global implementation of human rights as part of the national mission of a world super-power that pursues this aim under the premise of power politics. Most European nations on the other hand, regard the enforcement of a politics of human rights more as a project, aimed at establishing the rule of law in international relations, which is already helping to shift the parameters of power politics today.

The United States has adopted the policing role of a world super-power in a constellation of state co-operation which is only weakly regulated by the UN. In this respect human rights serve as moral value orientations for the assessment of political aims. There have, however, always been isolationist tendencies and, like other nations, the US is primarily concerned with the pursuit of self-interest, which does not always go hand in hand with its expressed normative aims. This was clearly shown by the Vietnam War, and again and again by its treatment of problems in its own "backyard". But the "new hybrid of humanitarian selflessness and the logic of imperialist power politics" (Ulrich Beck) has a strong tradition in the US. Among the motives for Wilson to enter the First World War, and for Roosevelt to enter the Second, was also an orientation to ideals that are strongly embedded in the pragmatist tradition. It is due to this fact that we, the nation that was defeated in 1945, were freed at the same time. Seen from this very American, i.e. national, perspective of a normative power politics, it must appear plausible that the fight against Yugoslavia has to be seen through, in a straightforward way without compromises and even, if necessary, with the help of ground forces, without regards to all further complications. This position has at least the advantage of being consistent. But what are we going to reply if one day a different military pact in a different region - let’s say Asia - also pursues a military human rights policy which is based on their own, different interpretation of international law or the UN Charter?

Things look quite different, when human rights are not just regarded as a moral guide for one's own political actions but as rights which have to be implemented in a legal sense. Disregarding their moral content, human rights essentially display the structural features of subjective rights, which naturally have to be framed by some form of obligatory law in order to gain any positive value. Only if human rights enter the legal sphere of a worldwide democratic legal order, similar to the basic human rights embedded in our national constitutions, will we be able to say that the addressees of these rights can see themselves also as their authors.

The institutions of the UN are on their way to completing the circle between the enforcement of obligatory law and democratic legislation. Where this is not the case, norms, even if they are as moral as can be in their content, remain forcibly applied restrictions. Certainly, in Kosovo the allied intervention force aims to secure the justified claims of those whose human rights are being trampled upon by their own government. However, the Serbs who dance in the streets of Belgrade are, as Slavoj Zizek says, "not pseudo Americans, waiting to be freed from the curse of nationalism". A political order that guaranties equal rights for all citizens is being imposed upon them by the force of weapons. This is also true from a normative perspective, just as long as there is not at least a mandate by the UN to implement sanctions against its member Yugoslavia with the help of military force.

Even nineteen undoubtedly democratic states remain a partial actor, if they legitimate their intervention for and by themselves. They exercise a power of interpretation and decision making which could, if everything was already operating properly, only be lawfully exercised by independent institutions. To this extent they are acting paternalistically. There are good moral reasons for that. But anyone who acts consciously on the basis of an unavoidable temporary paternalism, knows that the violence he exercises does not hold the quality of an obligatory rule legitimated by the framework of a democratic world civil society. Moral norms, which appeal to our better judgement, should not be enforced like established laws.

Despite the dilemma of having to act as if there were already a fully institutionalised cosmopolitan condition, when its achievement is the ultimate aim, it does not follow that the victims have to be left at the mercy of their persecutors. The terroristic use of state power turns a classic civil war into mass murder. If there is no other way out, democratic neighbour states have to intervene in an emergency based on a legitimisation by international law. In just such a case, however, the incompleteness of the pre-conditions for a world civil society require a particularly sensitive approach. The real existing institutions and procedures can be the only means of control for the fallible judgements of a partisan actor who aims to act on behalf of all.

One source of misunderstandings is for example the historical non-simultaneity of political mentalities that clash with each other. It is not that there is a time lag of four hundred years between the NATO air strikes and the Serb ground offensive, as Enzensberger argues. Greater Serbian nationalism evokes memories of Ernst-Moritz Arndt rather than of Grimmelshausen. But political scientists have argued that there is a new sense of difference emerging between the "first" world and the "second". Only the peaceful, and well-off OECD societies can afford to bring their own interests more or less well into line with the cosmopolitan expectations of the UN.

In contradistinction to this position the "second" world (in the new sense of the term) has inherited the power politics of European nationalism. States like Libya, Iraq or Serbia seek to balance their domestic instability by authoritarian means as well as the politics of identity, while they react very sensitively to questions of borders, almost neurotically insist on their sovereignty and are expansionist towards their neighbours. Facts of this kind make interaction even harder. Today they justify the demand for reinforced diplomatic efforts.

It is one thing when the USA plays the role of a hegemonic guarantor of order aiming to protect human rights, based on its own remarkable political tradition. It is an entirely different thing altogether, however, if we try to understand the current precarious transformation from classical power politics towards a cosmopolitan world order, beyond the trenches of the current military conflict in the Balkans, as a learning process to be worked through together. The broader perspective demands even greater caution. NATO’s self-empowerment should not become the rule.