”The Ethics of War”
8.forelesning
Jus ad bellum: When is resort
to war morally justified?
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Just cause
Right intention
Legitimate authority
Last resort
Reasonable hope of success
Proportionality
Open declaration
UN charter article 2 (4)
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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 othre manner
inconsistent with the purposes of the
United Nations
UN Charter cont.
Paragraphs 42 and 51 of the UN Charter outline the conditions for when use of
military force may be legal.
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§ 42 states that: Should the Security Council consider that measures provided
for in Article 41 would be inadequate or have proved to be inadequate, it may
take such action by air, sea, or land forces as may be necessary to maintain
or restore international peace and security. Such action may include
demonstrations, blockade, and other operations by air, sea, or land forces of
Members of the United Nations.
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§ 51 states that: Nothing in the present Charter shall impair the inherent right
of individual or collective self-defence if an armed attack occurs against a
Member of the United Nations, until the Security Council has taken measures
necessary to maintain international peace and security. Measures taken by
Members in the exercise of this right of self-defence shall be immediately
reported to the Security Council and shall not in any way affect the authority
and responsibility of the Security Council under the present Charter to take at
any time such action as it deems necessary in order to maintain or restore
international peace and security.
The Legalist Paradigm
(Walzer)
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There exists an international society of independent states
This international society has a law that establishes the rights
of its members – above all the rights of territorial integrity and
political sovereignty
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
Aggression justifies two kinds of violent response: a war of
self-defence by the victim or a war of law enforcement by the
victim and any other member of international society
Nothing but aggression can justify war
Once the aggressor state has been militarily repulsed, it can
also be punished
(Wars: 61-63).
The UN definition of just cause
(Luban)
1)
A war is unjust if an only if it is not just
2)
A war is just if it is a war of selfdefence (against aggression)
The Domestic Analogy
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State’s rights are analogous with
individual rights
State’s rights to terrorial integrity and
political independence are analogous
with individual rights to life and liberty
Hohfeldian relations
1)
2)
3)
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5)
6)
Wesley Hohfeld: Rights are relational concepts
The right to life and liberty/independence and territorial
integrity are claim-rights
Claim-rights are always correlative with duties (Luban: ”Twoplace predicate”: Claims are always against someone)
”P has a claim-right to X” means the same as ”Q has a duty
not to deprive P of X”
To say that a state has a right to political independence and
territorial integrity means that other states have a duty of not
interfering
To say that other states have a duty of not interfering means
that a states has a right to political independence and
territorial integrity
The duty of Non-intervention
A sovereign state has a claim against other states
against intervention, thus by implication, there is a
duty of non-intervention
”When state A recognizes state B’s sovereingty, it
accepts a duty of non-intervention into B’s internal
affairs” (Luban p.165)
Any breach of the duty of non-intervention
constitutes an act of aggression and is illegal
Aggression
”Aggression is the use of armed force
by a State against the sovereignty,
territorial integrety and political
independence of another State, or in
any other manner inconsistent with the
Charter of the United Nations.”
(UN definition of aggression 1974)
Sovereignty
Bodin: ”There can only be one ultimate source
of law in a nation, the sovereign. Explains
why intervention is a crime because
dictatorial interference of a state in another
state’s affairs establishes a second
legislator” (Luban 164)
- But why is the duty of non-intervention a
moral duty?
In other words, what is the
moral standing of states?
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Can any state have a claim-right
against others to not intervene?
Or only legitimate states?
What does it mean that a state is
legitimate?
Walzer on states’ rights
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The rights of states are derived from the
rights of its citizens
States’ rights are the collective form of
ind.rights
The metaphor of the contract: the rights of
states rest on the consent of citizens
When states are attacked, it is their
members who are attacked, not only their
lives but the sum of the things they value the
most, including the political association they
have made (Wars, 52)
Walzer/Mill on selfdetermination
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States should be treated as self-determining
political communities
The members of a political community must
seek their own freedom (just as the
individual must shape his own virtue)
Self-determination is the right of a people to
become ”free by its own efforts”, and the
principle non-intervention shall guarantee
that their success is not impeded or their
failure not prevented by foreign intrusion
Three exceptions
1)
2)
3)
Massacre and enslavement (Acts that
”shock the moral conscience of mankind”),
e.g. genocide. Justifies humanitarian
intervention
Secession: two or more political
communities contending within the same
territory (i.e, two-nation states)
If another foreign country has already
intervened
The legitimacy of the state
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We must explain how a violation of the
rights of a state is also a violation of
the rights of its citizens
The contract metaphor: bridging the
gap between collective and individual
in terms of more or less explicit
consent
Luban’s criticism
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Walzer (and Mill) makes a category-mistake of mixing
nations/political communities and states.
Political communities are essential part of individual’s rights
(shared ways of life, important values, what makes life worth
living etc)
But states (regimes) are not.
States are regimes institutionalised, nothing in their own right
The state may turn against its political communit(ies), consent
may be absent
In that case:
The state is illegitimate
The state has no claims against other states (because the
claims of states are derived from the citizen’s rights via
consent)
The Modern Moral Reality of
War (Luban)
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The identification of states with nations only
works in the historical context of the nationstate
When nations and states do not
(necessarily) coincide, a theory of jus ad
bellum which defines aggression in terms of
sovereignty of states, removes itself from
the moral reality of war
Most wars today are wars of liberation,
revolution, and civil wars
The UN definiton of just cause is outdated
Human Rights and the New
Definiton (Luban)
The UN definition should therefore be
replaced:
1)
A just war is (i) a war in defence of socially
basic human rights (subject to
proportionality); or (ii) a war of self-defence
against and unjust war
2)
An unjust war is (i) a war subversive of
human rigths, whether socially basic or not,
which is also (ii) not a war in defence of
other basic human rights
Basic Rights
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Socially basic rights are the rights that
serve as necessary conditions for the
enjoyment of other rights.
E.g., the rights protecting access to
basic needs to subsistence (food,
security)
Til diskusjon: krig for
basisrettigheter
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A og B er naboland, atskilt av en fjellkjede.
De er relativt like i styrkeforhold, men A er et
fruktbart land ved havet, og fjellet fører til
tørke i B. Et år blir det hungersnød i B, som
truer millioner av liv.
A nekter å gi B nødhjelp.
Har B rett til å gå til krig mot A for å sikre seg
mat?
Til diskusjon: hjelp til selvhjelp
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I et land hvor regimet kontinuerlig
undertrykker folket, kan man overlate
til folket å redde seg selv?
Hvilken rett til suverenitet har et
tyrannisk diktatur?
Synlig tegn på manglende samtykke?
Frihet som ikke-dominering?
Irak? (99,9% støtte til Saddam i valg..)
Hva kan vi si for Mill’s
selvbestemmelsesargument?
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Er Mill’s selvbestemmelsearg.
prudential?
Kan et folk frigjøres utenfra?/Kan
demokrati pålegges noen?
Irak! Frigjøring til hva? Svakhet i
Luban’s modell? Jus post bellum
fraværende!
Mangler realisme?
Human security and The
Responsibility to Protect
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Since Luban wrote his article (1980)
Bosnia, Kosovo, Rwanda… 9/11..Iraq…
Kofi Annan 1999: challenged the member states of the UN to
“find common ground in upholding the principles of the
Charter, and acting in defence of our common humanity.”
“If the collective conscience of humanity … cannot find in the
United Nations its greatest tribune, there is a grave danger
that it will look elsewhere for peace and for justice.”
2000 (Millennium Report) ”if humanitarian intervention is,
indeed, an unacceptable assault on sovereignty, how should
we respond to a Rwanda, to a Srebrenica – to gross and
systematic violations of human rights that offend every precept
of our common humanity?
Responses: New concepts, reinterpretations of ’just
war’/legalist paradigm in terms of Human Security
The Responsibility to Protect (ICISS 2001)
(1) Basic Principles
A. State sovereignty implies responsibility, and the
primary responsibility for the protection of its people
lies with the state itself.
B. Where a population is suffering serious harm, as
a result of internal war, insurgency, repression or
state failure, and the state in question is unwilling or
unable to halt or avert it, the principle of nonintervention yields to the international responsibility
to protect.
(2) Foundations
The foundations of the responsibility to protect, as a guiding principle
for the international community of states, lie in:
A. obligations inherent in the concept of sovereignty;
B. the responsibility of the Security Council, under Article 24 of the
UN Charter, for the maintenance of international peace and security;
C. specific legal obligations under human rights and human
protection declarations, covenants and treaties, international
humanitarian law and national law;
D. the developing practice of states, regional organizations and the
Security Council itself.
(3) Elements
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The responsibility to protect embraces three specific
responsibilities:
A. The responsibility to prevent: to address both the root
causes and direct causes of internal conflict and other manmade crises putting populations at risk.
B. The responsibility to react: to respond to situations of
compelling human need with appropriate measures, which
may include coercive measures like sanctions and
international prosecution, and in extreme cases military
intervention.
C. The responsibility to rebuild: to provide, particularly after
a military intervention, full assistance with recovery,
reconstruction and reconciliation, addressing the causes of the
harm the intervention was designed to halt or avert.
(4) Priorities
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A. Prevention is the single most important
dimension of the responsibility to protect:
prevention options should always be exhausted
before intervention is contemplated, and more
commitment and resources must be devoted to it.
B. The exercise of the responsibility to both prevent
and react should always involve less intrusive and
coercive measures being considered before more
coercive and intrusive ones are applied.
Principles for Military Intervention
(1) The Just Cause Threshold
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Military intervention for human protection purposes
is an exceptional and extraordinary measure. To be
warranted, there must be serious and irreparable
harm occurring to human beings, or imminently
likely to occur, of the following kind:
A. large scale loss of life, actual or apprehended,
with genocidal intent or not, which is the product
either of deliberate state action, or state neglect or
inability to act, or a failed state situation; or
B. large scale ‘ethnic cleansing’, actual or
apprehended, whether carried out by killing, forced
expulsion, acts of terror or rape.
(2) The Precautionary
Principles
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A. Right intention: The primary purpose of the intervention,
whatever other motives intervening states may have, must be to halt
or avert human suffering. Right intention is better assured with
multilateral operations, clearly supported by regional opinion and the
victims concerned.
B. Last resort: Military intervention can only be justified when every
non-military option for the prevention or peaceful resolution of the
crisis has been explored, with reasonable grounds for believing
lesser measures would not have succeeded.
C. Proportional means: The scale, duration and intensity of the
planned military intervention should be the minimum necessary to
secure the defined human protection objective.
D. Reasonable prospects: There must be a reasonable chance of
success in halting or averting the suffering which has justified the
intervention, with the consequences of action not likely to be worse
than the consequences of inaction.
(3) Right Authority (selected)
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A. There is no better or more appropriate body than the United
Nations Security Council to authorize military intervention for human
protection purposes. The task is not to find alternatives to the
Security Council as a source of authority, but to make the Security
Council work better than it has.
C.The Security Council should deal promptly with any request for
authority to intervene where there are allegations of large scale loss
of human life or ethnic cleansing. It should in this context seek
adequate verification of facts or conditions on the ground that might
support a military intervention.
D. The Permanent Five members of the Security Council should
agree not to apply their veto power, in matters where their vital state
interests are not involved, to obstruct the passage of resolutions
authorizing military intervention for human protection purposes for
which there is otherwise majority support.
- kritisk punkt?
A slippery slope? Next time:
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Will the softening of the legalist paradigm
permit military intervention too easily?
The quest for a new institutional framework
(Buchanan)
Interpreting security: the Bush-doctrine
Humanitarian intervention: Bosnia and
Rwanda (Vetlesen) versus Iraq and
Afghanistan (Mellow)