Just War Theory Based on Human Rights
Contact: Dr. Jan Garrett Revised October 28, 2004
Introduction Just war theory is a moral theory, or set of similar if somewhat diverse moral theories, that has been developed by moral thinkers in various religious and philosophical traditions. It aims to sort out problems that arise from the activities of states and sometimes non-state actors that violate human rights and could conceivably justify defensive war, or intervention up to and including war, as a response.
I. Conceptual Framework I
A. Basic goods
B. The role of human rights in relation to basic goods
C. The role of the state in relation to human rightsII. Conceptual Framework II
A. Just War Theory is not Pacifist
B. Just War Theory disagrees with Prescriptive Political Realism
1. What is political realism?
2. How do descriptive and prescriptive PR differ?
3. Why is JWT compatible with qualified descriptive PR?
4. Why is JWT incompatible with prescriptive PR?
5. Why is utilitarianism an inadequate basis for JWT?
C. Just War Theory qualified:
1. The traditional parts of JWT, jus ad bellum and jus in bello, are necessary not sufficient
2. They should be complemented by a theory of jus post bellum.
3. JWT should be understood as part of Just Intervention Theory
III. The concept of a minimally just state (for the remaining parts, see handout)
IV. Rights of minimally just states
V. Duties of minimally just states
VI. Jus ad bellum
VII. Jus in bello
VIII. Jus post bellum
Further Reading Donnelly, Jack, 2003[?]. Universal Human Rights, Cornell University Press.
Moellendorf, Darrel, 2002. Cosmopolitan Justice.
Rawls, John Rawls, 1999. The Law of Peoples, Harvard University Press.
Orend, Brian, 2002. War and International Justice, Wilfrid Laurier University Press.
I. Conceptual Framework I
A. Basic goods
The list of basic goods is a list of positively valuable things that are arguably objects of vital human need. The lists that have been offered by various authors (The Stoics, Thomas Aquinas, John Rawls, John Finley, Martha Nussbaum, and Alfonso Gomez-Lobo, et al.) differ but overlap extensively:
a. life (in terms of duration of life or physical security)B. The role of human rights in relation to basic goods
b. human social existence
(e.g. family, friendship, participation in a cultural community)
c. self-determination, individual and collective
(e.g., freedom of conscience, fr. to participate in making of political choices)
d. equal basic value of persons
e. integrity understood as internal harmony or consistency
f. awareness and knowledgeHuman rights are moral tools that have been developed to recognize the equal basic claim that human beings have to these objects or to the opportunity to acquire them.C. The role of the state in relation to human rightsHuman rights protect a baseline below which human beings should not be allowed to fall insofar as possible, and especially below which they should not be pushed.
The state is a second-level tool developed to secure human rights for its own citizens while being a responsible state member of the international community and supporting the human rights of others.
II. Conceptual Framework II
A. Just War Theory is not Pacifist
Pacifism (in relation to war) is the view that under no conditions would fighting in a war be just. Pacifists are opposed in principle to participating in a war. JWT holds that sometimes warfare is justified.B. Just War Theory disagrees with Prescriptive Political Realism1. What is political realism?C. Just War Theory qualified:Political realism incorporates the idea of national self-interest in explaining state action or providing a justification for state action, including resort to war.2. How do descriptive and prescriptive PR differ?Descriptive PR is the view that nation states act only in their own perceived self-interests. There is a qualified form of DPR, which holds that states normally act in their own perceived interests but occasionally act for moral reasons in ways that may not optimize their own self-interest.3. Why is JWT compatible with qualified descriptive PR?Prescriptive PR is the view that nation states should only act in their own self-interests. PPR entails that it would be wrong to advocate an approach to international relations that appeals to moral values (apart from one's own nation's interests).
JWT is compatible with qualified DPR because JWT appeals to moral reasons apart from national interests to justify state action or non-action. For a moral theory to be compatible with a descriptive theory, the descriptive theory cannot imply that action on the basis of moral reasons is impossible. A qualified DPR does not imply that such action is impossible. Therefore it is compatible with JWT.4. Why is JWT incompatible with prescriptive PR?JWT implies that moral reasons apart from self-interest may be decisive in determining what a state should do or not do. PPR essentially denies this, so the two perspectives are incompatible.5. Utilitarianism is not a clear basis for JWT.The foundation for a modern JWT is human rights, but utilitarianism occasionally seems to justify the sacrifice of human rights of a vulnerable group for the sake of the greater satisfaction or happiness of a small privileged elite or a large but already relatively privileged group. Utilitarianism, it seems, could be used to justify certain wars of conquest to provide cheaper raw materials for already well-off nations.1. The traditional parts of JWT, jus ad bellum and jus in bello, are necessary not sufficientIII. The concept of a minimally just state (see handout for fuller explanation)2. They should be complemented by a theory of jus post bellum.
3. JWT should be understood as part of Just Intervention Theory
a. Just Intervention Theory (JIT) entertains a number of steps:i) state-to-state relations (this list is not meant to be exhaustive, only suggestive)b. A set of criteria for just interventions at each level should be developed on analogy with the criteria for jus ad bellum below. (Obviously, most forms of nonmilitary intervention would have less demanding criteria to meet than military intervention.)a. (relatively mild) criticism
b. denunciation
c. collective denunciation
(e.g., UN resolutions)
d. limited economic sanctions
e. total economic boycott
f. embargo
g. small-scale violent interventions
h. invasion
ii) support for internal change
a. verbal encouragement of reform movements
b. material support for reform movements
c. material support for nonviolent single-issue movements
d. material support for opposition parties
e. material support for violent oppositional forcesTo be a member in good standing in the international community, i.e., to have a full set of state rights, states must meet the following conditions:IV. Rights of minimally just statesInternal:
* They must provide their people with domestic law and order.External* They must provide their people with reasonably secure domestic access to what they are entitled to, in terms of their human rights.
* They must protect their peoples from outside attack and other harmful interference by non-members.* They must represent their people in relation to outsiders in a just way. (This means that they are obliged to respect human rights of persons and the state rights of states that have not forfeited their rights.)
1. States have rights linked to political sovereignty.V. Duties of minimally just states. For the most part, these are the mirror image of state rights listed above. But note:They should be free from force and fraud by other states. They should be permitted to govern themselves without harmful interference from outside.2. States have rights linked to territorial integrity . .They have ownership of land and resources contained within the territory, subject to qualifications however.3. States have rights based on need to benefit from resource transfer.Resource-poor states have the right to be provided with resources from countries that have a surplus, when such transfer does not deny donor countries the means to fulfill their human rights obligations to their own members.4-5. They have the right to equal treatment and recognition in the international system.6. They may form binding contracts between states unless the contracts themselves lead to violation of the principles of international justice.
7. They have a right to defend themselves and to receive support in so doing from the international community if their state rights are violated.
8. Their nationals traveling abroad have a strong prima facie right to be protected.
9. They have a right to receive aid during disasters (see #3 for rationale).
* They may not use force unless it is justified by IV.7 (just above).VI. Jus ad bellum* They are not permitted to invade another country or permanently seize territory.
* They have duties of resource transfer to burdened societies and reasonable aid to disaster-stricken states.
* They have duties of hospitality. The human rights of foreigners on a state's soil may not be violated by that state.
VII. Jus in bello
VIII. Jus post bellum