Just War Theory and Self-Determination
by Dr. Jan Garrett
December 1996; modified October 18, 2001
We are going to try to reason about international conduct, esp. getting into wars.
First, we must agree to follow reason wherever it leads. If our emotions or feelings run counter to what is reasonable, it is our emotions that should change. This is important on three levels; in discussing the principles that ought to apply; in trying to determine the relevant facts; and in applying the principles to the facts.
Secondly, while politicians may have to persuade their constituents by appealing to their collective self-interest, mere collective self-interest of a group (in abstraction from others affected) cannot give an ethical justification for supporting participation in a war. Neither can individual self-interest. Wars of conquest may make the winners powerful, rich, or famous, but that does not make these wars right; wars may make wealthy those who sell armaments to the belligerents, but that is no ethical justification.
Thirdly. Wars are not justified by minor injustices or even major injustices to a handful of people. The reason for this is that any war is massively destructive of social order; by making people desperate, it tempts them to act in morally demeaning ways; it puts a strain on on the habit of lawful behavior, thus likely to increase unjust behavior in the world. Wars are counterproductive where relatively minor injustices are concerned.
According to traditional just war theory, two sets of conditions govern just conduct in war: (1) jus ad bellum (right to go to war) and (2) jus in bello (just means).
This discussion centers on jus ad bellum.
Jus ad Bellum (Right to Go to War)
Jus ad bellum includes (a) competent authority; (b) just cause; and (c) right intention. Let us discuss (a) and (c) first, since (b) is considerably more complex.
Is the official or governmental organ that initiates the war competent to do so, according to, say, an established constitution? Problems: Is a formal declaration really required (as our constitution suggests) if the Congress (which alone has the power to declare war) goes along informally with a Presidential initiative? Is a formal declaration required for every external military initiative? (It can be time-consuming when time makes a great deal of difference in effectiveness.)
A second problem relates to revolutionary groups that initiate armed struggle against an unjust or oppressive regime? What does it take to constitute a competent authority to launch a revolutionary war? If, as in South Africa until very recently, any Africans attempting to organize to express the wishes of the African majority are jailed or beaten or, in some cases, killed, the very possibility of organizing fully representative political procedures is ruled out; the initiation of armed struggle, even as a last resort, must be done by a minority of the oppressed.
(1) "The belligerent is limited to the pursuit of the avowed just cause. That pursuit may not be turned into an excuse to pursue other causes that might not meet the conditions of just cause." If a war is justified for one reason only, it is wrong to pursue it in a way which that reason would not justify. (If country A is responding to the incursion of country B across its borders, it is wrong for A to turn its victory over B for purpose of protecting its borders into a war of conquest over B.)
(2) The just belligerent must always bear in mind that the ultimate object of war is a just and lasting peace. (Historians suggest that the victors in World War I failed to bear this in mind and World War II was the price paid for this failure.)
(3) "Charity and love" must exist even between enemies. It must not be forgotten that even one's enemies are human beings with rights. Gratuitous cruelty would indicate that this principle has been forgotten.
JUST CAUSE. Just cause has four divisions, according to William O'Brien:
(1) substance of just cause;
(2) forms of pursuing just cause;
(3) proportionality of means and ends;
(4) last resort
Because the first point is most difficult, let us leave it until we have discussed the other three points.
Forms of pursuing just cause. These are offensive and defensive wars. There is a strong presumption in favor of defensive wars. (They are responses to aggression.)
Just war theory was in the past used to permit "offensive wars to protect vital rights unjustly threatened or injured" (O'Brien, p. 34) Today, there is a strong tendency among theorists about wars to oppose offensive wars generally. "A war of vindictive justice wherein the [fighting country] fights against error and evil as a matter of principle is no longer condoned by just-war doctrine" (O'Brien). The reference is to military projects like crusades and holy wars. And offensive wars to enforce justice for oneself are also "now seemingly prohibited by positive international law." (One should use instead international courts, the UN, etc.)
Proportionality. This requirement includes the following:
There must be a just cause of sufficient importance to warrant its defense by recourse to armed coercion.
The probable good to be achieved by successful recourse to armed coercion in pursuit of the just cause must outweigh the probable evil that the war will produce.
The calculation of proportionality between probable good and evil must be made with respect to all belligerents, affected neutrals, and the international community as a whole before initiating a war and periodically throughout a war to reevaluate the balance of good and evil that is actually produced by the war.
O'Brien adds that with respect to the second criterion, "a war of self-defense may be engaged in irrespective of the prospects for success, particularly if there is a great threat to continued existence and to fundamental values."
Last Resort. War should be used only as a last resort after exhaustion of peaceful alternatives. A rule of thumb: "the state that fails to exhaust the peaceful remedies available before resorting to war is prima facie an aggressor." (p.36)
The Substance of the Just Cause.
We now return to the first point under just case. William O'Brien says, "the substance of the just cause must . . . be sufficiently 'serious and weighty' to overcome" the justifiable assumption that killing in general and war in particular are usually wrong. O'Brien quotes James F. Childress as mentioning the following as 'serious and weighty' general obligations: "to protect the innocent from unjust attack, to restore rights wrongfully denied, to re-establish a just order."
This formulation is misleading in our time when most talk about rights pertains to the rights of individuals. The historical function of jus ad bellum was to govern the conduct of states; the rights in question were above all rights of states (or monarchs); and the just order in question was the justice of the international order. The rights of individuals and the rights of nations, while related, are distinct.
The right of a nation is, above all, the right of its citizens to develop their collective life on their national territory without gross interference from other states. In that sense, country A's rights are the organic unity of the rights of individuals a1, a2, etc. as they interact with each other, mainly on A's territory. The rights of the whole are rooted in the rights of the parts, and generally protect the rights of the parts, but they are different from the rights of the parts considered as individual rights.
If country B attacks the citizens of country A while A people reside upon A's territory, that is aggression against A. But if country B nationalizes the property of a citizen of A, when that property is a piece of land or a mine within country B's territory, that action does not necessarily violate any rights of country A as such. Country A's territorial integrity has not been touched.
This is so even if country B's action violates the principles behind legal property rights respected in country A, or the A citizen's natural right to property, but it is not clear that country B's action violates any rights that country A itself has.
The substance of the just cause must be, it seems, a response to substantial aggression (cf. J. Sterba, Morality in Practice). "Aggression" here is something unjustified; for otherwise it would not be right to respond to it in a just war. Aggression is some sort of interference--in the clearest case, outright military intervention--on the part of one nation's government in the life of a comminuity over which that external government has no rightful control.
International aggression seems to be a violation of the right of genuine national communities to self-government, in short, the right to self-determination. But is there such a right, and how might it be defended?
We can look for some insights to a political philosophy called communitarianism. Communitarianism is a philosophy similar to care ethics: Communitarians claim that the human self is essentially social, that communities with shared experiences over time provide the framework in which the good life is worked out.
Reasoning as a communitarian, Michael Walzer describes the source of the rights of states as follows:The rights of states rest on the consent of their members. But this is consent of a special sort. State rights are not constituted through a series of transfers from individual men and women to the sovereign or through a series of exchanges among individuals. What actually happens is harder to describe. Over a long period of time, shared experiences and cooperative activity of many different kinds shape a common life.
'Contract' is a metaphor for a process of association and mutuality, the ongoing character of which the state claims to protect against external encroachment. The protection extends not only to the lives and liberties of individuals but also to their shared life and liberty, the independent community they have made, for which individuals are sometimes sacrificed. The moral standing of any particular state depends upon the reality of the common life it protects and the extent to which the sacrifices required by that protection are willingly accepted and thought worthwhile. If no common life exists, or if the state doesn';t defend the common life that exists, its own defense may have no moral justification. But most states do stand guard over the community of their citizens, at least to some degree: that is why we assume the justice of their defensive wars. (p. 54)
Communitarians may be as committed as holders of other ethical philosophies to justice in the procedures of community life. Communitarians may be as committed to democratic procedures as holders of other philosophies. Their devotion to civil liberties (the rights of free expression and assembly) will be as great as that of libertarians so long as those civil liberties promote political discourse in the society.
But communitarians believe that the citizens of a politically flawed society are the primary persons upon whom the task of correcting those flaws rest. (Democracy is not promoted by having an external power impose political forms upon a society.)
Communities are formed through a long period of living together, through shared communication, culture, political experience. Modern nation-states also are associated with a certain geographical territory, which are governed by political institutions evolved by the communities living there.
Because of the close connection between the ongoing collective life of the communities and the territory of the nation, territorial integrity is a value that deserves respect. It should not be violated unless for very good reasons. Territorial integrity is important because it provides a basis for the administration of justice. As Walzer argues, bad borders are better than no borders at all (which is the situation in war). Without them, no authority can exist to establish any legal enforcement of justice.
Libertarianism Cannot Provide a Right to Self-Determination
Libertarianism provides an extremely weak argument for the right of nations to self-determination. To be sure, legitimate governments have the right to pass and enforce laws for the protection of life, liberty and property within their national boundaries. But the libertarian thinks that they are illegitimate as soon as they fail to recognize these rights. The question is whether an outside power is justified in intervening in a nation's affairs as soon as that nation fails to live up to the libertarian ideal.
When Cuba nationalized United Fruit's plantations (offering to pay something but not what United Fruit thought it was worth), thus violating United Fruit's property rights (in the libertarian view of things, anyway), did that justify the United States' sponsorship of a military invasion of Cuba? Or should some other power have the right to intervene in the United States if a state, local, or the federal government uses the power of eminent domain to take over the property of the individual without his voluntary consent? Should a libertarian Canada be allowed to intervene to protect the residents of Poletown from Detroit's questionable use of eminent domain?
If there is a strong right of nation-states to self-determination, then we will need another basic ethical approach than the one provided by libertarianism.
Details on the Right to Self-Determination
On Walzer's reasoning (above), long inhabitation in an area by a given ethnic group is good reason for a right to national self-determination. But where a nation state owes its existence to conquest, its right to continued existence on its present territory is less than that of the original occupants. Still, the more generations pass, the greater the right tends to become. This is especially the case if there is no moral challenge to continued occupancy or if the original occupants or their direct descendents are not made second-class citizens or slaves in what was once their own land. For that reason, colonial occupation of African, Asian and Oceanic countries never totally negated the community-based rights of the native populations. And the moral status of Israel's right to exist in its present boundaries will remain an issue so long as Palestinians are second-class citizens in Israel or challenge its existence from camps in neighboring lands to which their parents or grandparents were expelled.
Violations of the strong prima facie right to self-determination.
These occur usually when the dominant motive is the subjugation of another people (or what comes to nearly the same thing, the attempt to make sure that they supply cheap raw materials for us or chaep labor for our corporations which invest there). They also occur when the motive is to eliminate a government which does not follow the intervening nation's policies towards other governments in the area.
1. unjustified military invasion.
2. unjustified financial support to, or military training of, mercenary or indigenous rebelions that would have no chance without external support.
3. unjustified obstacles to international trade with the country (blockades, embargoes).
4. massive financial support to otherwise weak indigenous oppositions designed to influence the direction of the foreign government's policy.
Limits on the de facto nation's right to self-determination.
(1) Colonial occupation by a small ruling minority does not negate the basic right of the majority if the latter has a historical right to the territory based upon continued historical existence and experience.
(2) When majority and minority communities have lived side by side for a long time without possessing separate nation-state status, the right of the minority community, based upon its communal life, does not necessarily extend so far as the right to a separate statehood. The minority community does have t he right to have its cultural institutions respected, and not to be subject to discimination and harassment by virtue of being a minority. Some form of community autonomy, as distinct from separate statehood, is recommended.
(3) A community's normally strong right to self-determination does not go so far as to include its immunity to international intervention against its massive, brutal, treatment of its own minorities or majorities. On very rare occasions, foreign nations may be justified in quickly intervening to restrain a thoroughly malicious regime (examples may include India's quick and decisive intervention in Bangladesh to put an end to Pakistan's genocidal war against the Bangladesh nationalist rebellion). Gorbachev understood how very rare such interventions are justified when he did not intervene in Roumania to dislodge the murderous Ceaucescu regime, although he probably would have liked to.
Also, if Hitler had undertaken to slaughter six million German Jews prior to the outbreak of hostilities in World War II, other nations may have been morally justified in using military means as a last resort to stop him.
(4) Is gross insensitivity to the material need of your neighbors ever a justification for weakening one's national right to self-determination and so allowing us to describe as a legitimate intervention what would normally be described as aggression? Saddam Hussein may have thought that Iraq was partly justified in invading Kuwait because Kuwait was materially very well off from its copious oil supplies and was not sharing its wealth with much poorer Iraq. In Hussein's case the argument would be weak because there are numerous other ways in which Iraq could have reasonably tried to improve its economic situation, and war is justified only as a last resort.
Jus in Bello (Just Means)
Just means is sometimes specified as follows:
1. The harm inflicted on the aggressor must not be disproportionate to the aggression.
2. Harm to innocents (noncombatants) should not be directly intended as an end or a means.
3. Harm to innocents (noncombatants) should be minimized by accepting risks (costs) to oneself that would not doom the military venture.
(#3 is somewhat more controversial than #1 and #2, which are widely accepted.)
The wrongness of terrorism essentially hinges on its violation of jus in bello. For more on this topic, see Terrorism.
My standard of selection for the following is essentially: Are these generally thoughtful items? Inclusion does not necessarily imply agreement in every particular.
For a longer bibliography on War and Terrorism, as well as other global justice issues, see my International Justice Bibliography.
"War and Peace, Ethics of" (under U-Z), on my Ethics Links website.
Perspectives on Terrorism and War, beginning from September 11, 2001: Stop and Think.
Charles Macksey, "War," in The Catholic Encyclopedia (1912).
Richard Falk, "Defining a Just War," The Nation, October 29, 2001.
Michael Mandel, "Say What You Want, But This War Is Illegal," originally printed in Toronto Globe and Mail, October 9, 2001. (Click on link, then look for "Illegal War.")
Books and Articles
Coady, C. A. J. "Terrorism," in Lawrence and Charlotte Becker, eds., Encyclopedia of Ethics (New York: Garland Publishing, 1992), 1241-44.
O'Brien, William V. "Just War Theory," in J.P. Sterba, ed., The Ethics of War and Nuclear Deterrence (Wadsworth, 1985).
Rawls, John. "Nonideal Theory," Part III in Rawls' The Law of Peoples, with "The Idea of Public Reason Revisited" (Harvard University Press, 1999).
Ruddick, Sara. "War and Peace," in Lawrence and Charlotte Becker, eds., Encyclopedia of Ethics (New York: Garland Publishing, 1992), 1297-1304.
Walzer, Michael. Just and Unjust Wars (New York: Harper Colophon, 1977).