The Ethics of War

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The Ethics of War

• 8.forelesning

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Jus ad bellum When is resort to war morally
justified?

• Just cause
• Right intention
• Legitimate authority
• Last resort
• Reasonable hope of success
• Proportionality
• Open declaration

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UN charter article 2 (4)

• 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

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UN Charter cont.

• Paragraphs 42 and 51 of the UN Charter outline
  the conditions for when use of military force may
  be legal.
• 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.
• 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.

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The Legalist Paradigm (Walzer)

• 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).

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The UN definition of just cause (Luban)

• A war is unjust if an only if it is not just
• A war is just if it is a war of self-defence
  (against aggression)

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The Domestic Analogy

• States rights are analogous with individual
  rights
• States rights to terrorial integrity and
  political independence are analogous with
  individual rights to life and liberty

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Hohfeldian relations

• 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 Two-place 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

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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 Bs sovereingty,
  it accepts a duty of non-intervention into Bs
  internal affairs (Luban p.165)
• Any breach of the duty of non-intervention
  constitutes an act of aggression and is illegal

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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)

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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 states
  affairs establishes a second legislator (Luban
  164)
• But why is the duty of non-intervention a moral
  duty?

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In other words, what is the moral standing of
states?

• 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?

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Walzer on states rights

• 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)

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Walzer/Mill on self-determination

• 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

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Three exceptions

• 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
  

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The legitimacy of the state

• 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

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Lubans criticism

• Walzer (and Mill) makes a category-mistake of
  mixing nations/political communities and states.
• Political communities are essential part of
  individuals 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 citizens rights via consent)

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The Modern Moral Reality of War (Luban)

• The identification of states with nations only
  works in the historical context of the
  nation-state
• 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

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Human Rights and the New Definiton (Luban)

• The UN definition should therefore be replaced
• 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
• 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

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Basic Rights

• 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)

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Til diskusjon krig for basisrettigheter

• 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?

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Til diskusjon hjelp til selvhjelp

• 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..)

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Hva kan vi si for Mills selvbestemmelsesargument?

• Er Mills selvbestemmelsearg. prudential?
• Kan et folk frigjøres utenfra?/Kan demokrati
  pålegges noen?
• Irak! Frigjøring til hva? Svakhet i Lubans
  modell? Jus post bellum fraværende!
• Mangler realisme?

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Human security and The Responsibility to Protect

• 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

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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 non-intervention yields to
  the international responsibility to protect.

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(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.

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(3) Elements

• 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 man-made 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.

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(4) Priorities

• 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.

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Principles for Military Intervention (1) The
Just Cause Threshold

• 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.

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(2) The Precautionary Principles

• 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.

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(3) Right Authority (selected)

• 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?

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A slippery slope? Next time

• 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)