Week 10

Three issues:

• “Anticipations”
• Civil wars
• “Interventions”

Carefully enlarging the just cause condition of just war theory

“Pre-emptive” war
Problem: forcing states to wait to be attacked in spite of increasing risks is not a reasonable insistence
Major distinction: preventive vs. pre-emptive war
i) U.S. invasion of Iraq (2003); ii) Arab-Israeli war of 1967 (the ‘Six Day War’)

Civil war
Questions: Is it just to begin a civil war? Is it just to intervene on behalf of one of the factions?
Examples: i) U.S. Civil War (1860-1865); ii) U.S. war in Vietnam (1960-75)

“Humanitarian” war (i.e. interventions)
Definition: coercive military action not against previous aggression, but instead meant to protect civilians in a foreign country from abuse by their own government
Major distinction: U.N.-sponsored peacekeeping vs. ‘humanitarian military intervention’
Examples: i) war in Bosnia-Herzegovina (92-95); ii) Somalia (92-94); iii) Serbia/Kosovo (1999)

Carefully enlarging the just cause condition of just war theory
Two possible strategies / two interpretations of aggression:

• Orend’s human rights framework
• Walzer’s nonaggression framework

Orend’s human rights framework
Six jus ad bellum constraints

1. Just cause
2. Right intention
3. Public declaration by a legitimate authority
4. Last resort
5. Probability of success
6. Proportionality

• War is justified only if it satisfies the complete package
• War is unjustified if it fails any one

Aggression, ‘minimal justice’ and sovereignty rights
“Aggression” is the violent attack of basic human rights
Not all sovereign states have state sovereignty rights e.g., rights to territory and political independence
Societies which fail to uphold the “minimal moral code” forfeit all sovereignty rights

Content of the Minimal Moral Code:
Minimal moral code = protection of basic human rights
Basic human rights = Orend’s “foundational five”:

1. Security
2. Subsistence
3. Liberty
4. Equality
5. Recognition

This is the human rights-conception of ‘legitimacy’
Under Orend’s framework, “regimes which fail the conditions of minimal justice are not legitimate, and thus have no state rights, including the right not to be attacked or overthrown” (Orend, pp. 97)

Walzer’s theory of aggression

1. There exists a society of independent sovereign states
2. This society establishes basic rights of members—above all, rights to territory and sovereignty
3. The threat or use of force against the another sovereign state constitutes aggression, which is a crime
4. The crime of aggression justifies two responses: wars of self-defence, and wars of law enforcement
5. Nothing but aggression justifies war
6. Once the aggressor has been successfully resisted, it can also legitimately be punished

“Aggression” is a violent attack against a sovereign state
Under the theory of aggression, sovereign states enjoy protection via ‘the rule of non-intervention’

Sovereignty rights go to all recognized states
(i.e. those able to hold together a government, control and defend territory, speak to other governments
Under Walzer’s ‘nonaggression’ framework, we ‘presume’ that each ‘recognized’ state is legitimate
All recognized states are given the rights of territory and political independence

What is a sovereign state?
A political community

What are the foundations of sovereignty rights

• The rights of human beings (i.e. as individuals)?
• The rights of political communities (i.e. in groups)?

Pre-emptive war

• Pre-emption is armed attack where the victim strikes first in anticipation of an attack that is coming in the near future
• Example: Arab-Israeli war of 1967 (the ‘Six Day War’)

A. Orend: Human Rights Maximization
“Sufficient threat”:
Manifest intent to injure
Active preparation
A situation where waiting greatly magnifies the risks of being attacked

B. Walzer: Penalizing Aggression
“States may use armed force against threats of war whenever failure to do so would seriously risk their territorial integrity or political independence”
Under such circumstances, it can fairly be said that they have been forced to fight and are the victims of aggression”

Civil war

• Is it just to begin a civil war? Is it just for foreign countries to take sides on behalf of one faction?
• Example: i) U.S. Civil War (1860-1865)

A. Orend’s approach: Human Rights Maximization
Both questions are answered in terms of ‘minimal justice
When both sides are legitimate, we imagine a “no-fault divorce”
(one side desire to be separate, and thus divide assets, liabilities, and dependants according to the law)

B. Walzer: Maximizing Self-Determination
Walzer’s sole concern is whether foreign countries should intervene in a civil war
Inside a sovereign state, self-determination should prevail

“When, if ever, is taking sides justified?”

Only when a foreign country has prematurely intervened – i.e., only in situations of “counter intervention”

Humanitarian military interventions

• Coercive military action not against previous aggression, but instead meant to protect civilians in a foreign country from abuse by their own government
• Examples: i) Bosnia-Herzegovina (92-95); ii) Somalia (92-94); Serbia/Kosovo (1999)

A. Orend’s approach: Human Rights Maximization
Not all sovereign states have state sovereignty rights
Societies failing to uphold the “minimal moral code” forfeit sovereignty rights
When a state is found to be illegitimate, “it has no ethical reason to exist”
Becomes permissible for foreign countries to undertake an ‘invasive military response’

Emerging consensus on conditions for legitimate intervention:
When states are unwilling or unable to control and provide security portions of their territory
When state governments are culpable for massive or systematic human rights violations such as genocide
When the victimized population appeals to the outside world for assistance
When it is reasonable to believe intervention will succeed

--> The Responsibility to Protect (2001)

B. Walzer’s approach: ‘Presumptive Legitimacy’
We ‘presume’ each state to be legitimate
All states are entitled to rights to territory and political independence
Humanitarian military intervention is only permissible:

Against conflicts that ‘shock the collective conscience of humankind’
To deter genocide, massacre, or enslavement
Under Walzer’s ‘nonaggression’ framework, we ‘presume’ that each ‘recognized’ state is legitimate
All recognized states are given the rights of territory and political independence

What are Walzer’s arguments?

• The forced to fight argument
• The self-determination argument

jus ad bellum #2 Non-Standard Wars
(...from Tuesday)

Strengths of both sides of just war theory:

• Clear moral distinctions
• Clear assignment of moral responsibility
• Setting incentives & and promoting deterrence

---> Carefully enlarging the just cause condition of just war theory

Growing consensus on legitimacy of military intervention:

• When states are unwilling or unable to control and provide security portions of their territory
• When state governments are culpable for massive or systematic human rights violations such as genocide
• When the victimized population appeals to the outside world for assistance
• When it is reasonable to believe intervention will succeed

--> The Responsibility to Protect (ICISS, 2001)

Orend’s human rights framework

Not all sovereign states have state sovereignty rights e.g., rights to territory and political independence
Societies which fail to uphold the “minimal moral code” forfeit all sovereignty rights
Orend says: “regimes which fail the conditions of minimal justice are not legitimate, and thus have no state rights, including the right not to be attacked or overthrown” (Orend, pp. 97)

Six jus ad bellum constraints:

Just cause

Humanitarian military intervention
(Anticipatory war)
(Civil war)

Right intention
Public declaration by a legitimate authority
Last resort
Probability of success
Proportionality

• War is justified only if it satisfies the package
• War is unjustified if it fails one constraint

Incidents of humanitarian military intervention:

Bosnia-Herzegovina (92-95);
Somalia (92-94);
Kosovo (1999)

Walzer’s nonaggression framework
Under the theory of aggression, sovereign states enjoy protection through ‘the rule of non-intervention’
“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations" (U.N. Charter, Ch. 1, Art. 2, #4)

Sovereignty rights go to all recognized states
(i.e. those governments which can hold together a central government, control their territory, communicate diplomatically with other governments)

‘Presumptive Legitimacy’
Humanitarian military intervention is only permissible:
Into conflicts that ‘shock the collective conscience of humankind’
Wherever genocide, massacre, or mass enslavement are occurring

Under Walzer’s ‘nonaggression’ framework:
We ‘presume’ each state is legitimate
But, we ‘disregard’ the rule of non-intervention whenever genocide, massacre, or enslavement are occurring

What are Walzer’s arguments?
The forced to fight argument
The communal integrity argument

What are the foundations of Walzer’s sovereignty rights?
The rights of human beings?
The rights of political communities?

jus in bello p. 1: “Just Conduct in War”
“A legitimate target is anyone or anything which is engaged in harming”
Non-combatants (civilians) retain their human rights
Soldiers (until surrender) forfeit their human rights
Legitimate targets should be attacked with appropriate force

Components in Orend’s jus in bello discussion

1. Discrimination
2. The doctrine of double effect (DDE)
3. Non-combatant immunity
4. Benevolent quarantine (for captured POWs)
5. ‘Due care’ (for innocent civilians)
6. Proportionality
7. Military methods which are ‘evil in themselves’
8. Reprisals

Two standard jus in bello principles:

1. Discrimination
2. Proportionality

Five major controversies:

1. Non-combatant immunity
2. Responsibilities of soldiers
3. ‘War rights’ of soldiers
4. Benevolent quarantine (torture of captive POWs)
5. Reprisals

Discrimination

• Non-combatant immunity
• Responsibilities of soldiers
• ‘War rights’ of soldiers
• Benevolent quarantine (torture of captive POWs)

Proportionality

• Reprisals

1. Discrimination
Non-combatant immunity

• Why should we discriminate between soldiers and civilians? Why is a soldier a justified target? Why is a civilian not a justified target? How do we mark the distinction in battlefield situations?
  

Responsibilities of soldiers

• Shouldn’t we also hold soldiers responsible for the justice of their wars?

‘War rights’ of soldiers

• Why do soldiers have the ‘right to kill’ enemy soldiers? Are all soldiers liable to be killed?

Benevolent quarantine (torture of captive POWs)

• Why shouldn’t we torture captured enemy combatants?

2. Proportionality
Reprisals

• Should just war theory sanction deliberate violations of jus in bello that respond to prior violations by the enemy side?

Non-combatant immunity

• Why should we discriminate between soldiers and civilians?

• How strict should we be about non-combatant immunity?

• Absolute prohibition (i.e. never kill innocent civilians)

• The Doctrine of Double Effect (DDE)

• Walzer’s ‘due care’ principle

Responsibilities of soldiers

• Why shouldn’t we hold soldiers responsible for the justice & legality of their wars?
• Is there a clear distinction between jus ad bellum and jus in bello?

‘War rights’ of soldiers

• Why do soldiers have the ‘right to kill’ enemy soldiers?
• Where do they acquire such a right?
• What enables us to say that soldiers have ‘given up’ their right to life

Torture of prisoners (benevolent quarantine)

• Why shouldn’t we torture enemy combatants (if the payoff is positive)?
• When (if ever) is physical torture of POWs acceptable?
• Which of the two approaches to JWT (Orend’s or Walzer’s) best explains benevolent quarantine?

The doctrine of reprisal

• Should just war theory tolerate deliberate violations of jus in bello that respond to prior violations by the enemy side?

• Should reprisals be justifiable within jus in bello?

Walzer’s answer: in extraordinary circumstances
Orend’s answer: not in any circumstances