Symposium Introduction
Response
Exploring a Role of Mini-Public in the Just War Theories
Comments for New Interventionist Just War Theory: A Critique by Jordy Rocheleau
In the thought-provoking book, “New Interventionist Just War Theory: A Critique,” Jordy Rocheleau expands upon the Walzerian just war theory by engaging with a wide array of just war theories, spanning from neo-traditionalism to cosmopolitanism. The primary thrust of Rocheleau’s work is to critique various traditions of just war theory while establishing his Walzerian argument that military interventions should be permitted in specific exceptional circumstances, such as national self-defense and mass atrocities. While Rocheleau delves into various just war theories, this commentary will primarily focus on what he terms the Human Rights Paradigm (HRP) and suggest a potential avenue for endorsing HRP while addressing some of the concerns he raises about it.
Rocheleau provides a comprehensive critique of the Human Rights Paradigm (HRP), contending that HRP can have adverse effects on the protection of human rights. His reasons for this assertion fall into two broad categories: practical and normative concerns. He presents various practical issues with HRP, including the potential instability it can introduce to both the intervened state and the global community (89) and the inherent difficulty of distinguishing varying degrees of rights violations (86). As a result, state legitimacy becomes precarious under HRP, as intervening states can arbitrarily gauge the severity of human rights violations to justify their interventions, ultimately leading to instability within the global society.
On the other hand, normative reasons against HRP encompass the absence of local authorization (91) and the presence of domestic support for governments that violate rights (88). Interventionists recognize the normative importance of the consent of the people to be liberated for justifying interventions. Nevertheless, it is rare for the local people to be consulted in part because of the practical hurdles. Furthermore, proponents of HRP argue that state legitimacy hinges on the safeguarding of human rights for its citizens. However, some individuals may advocate for their government’s actions, even in the face of human rights violations, if it provides material stability. This highlights a potential flaw in the HRP framework, rendering local autonomy meaningless (91).
However, it appears there may be a way to endorse HRP while mitigating these two categories of concerns. To achieve this, it is crucial to differentiate between the justification of humanitarian intervention and the justification of the means through which such intervention is carried out—mainly, war and other military operations. That is, while human rights violations normatively justify humanitarian intervention, authorizing a war is a separate matter. To see how this distinction works, imagine a situation wherein you saw that a child of your neighbor was being abused but the government of your country is corrupt and may not pay attention to such a relatively minor criminal situation. Upon observing the child abuse situation, you are normatively justified to intervene with the abuse situation. However, this does not mean that you are automatically justified in doing anything you like to do about it.
This distinction allows for the support of HRP with a reduced likelihood of encountering the aforementioned practical and normative worries. Rocheleau argues that while a state that violates human rights may forfeit its legitimacy, this does not automatically warrant intervention by other states (90). However, let us assume for now that HRP is correct. Then, human rights violations may warrant intervention as they forfeit the state’s legitimacy. However, this does not mean that foreign countries can arbitrarily intervene with the state in whatever military means they like—whether it is a war or other military operation. In other words, it can be argued that what is justified by human rights violations is humanitarian intervention using military force, but the form of military intervention deemed appropriate requires a distinct consideration.
With this distinction in mind, interventionists can give some answer to the practical concerns. At its crux, the idea is that even if the bar of normative justification of intervention is relatively lower on HRP, the negative practical consequences are less likely with a higher bar of authorizing the military means for intervention. If humanitarian intervention is normatively permitted but the authorization of war is difficult to arrive, the negative consequences associated with war could decrease, as the incidence of war itself becomes not so frequent as critics of HRP like Rocheleau himself are worried.
At the same time, normative concerns can be at least partially answered if the authorization process involves some democratic means for collecting the opinions of the people of the intervened state. There may be other means to listen to the local people’s opinions, but deliberative polling may be a way to give local people some power in the authorization process. Deliberative polling involves ascertaining popular opinions on a particular issue through random sampling of participants and their in-depth deliberations. The outcome of deliberative polling is considered to have a stronger democratic basis, as the randomly selected participants constitute a microcosm of the populace, and their internal deliberations enhance the quality of their final decision. The suggestion here is to conduct deliberative polling among the populations of both the intervened and intervening states, providing a basis for popular authorization in addition to the existing authorization processes within the intervening state. This would elevate the standards and democratic quality of the authorization processes because its decision is not solely based on the interests of intervening states but also inclusive of the views of the people of the intervened state.
Based on this explanation of deliberative polling, adopting deliberative polling could address the normative concern regarding the absence of local authorization processes. Rocheleau argues that local authorization for intervention is lacking and, consequently, the intervention is unjustifiable to the affected people (90-91). While practical limitations may make mass consent difficult under a rights-violating regime, deliberative polling can generate a representative local opinion without requiring extensive mass participation, thereby making local authorization practically attainable.
Undoubtedly, obstacles may arise when conducting deliberative polling under an authoritarian regime, such as difficulties in bringing local participants across borders or limitations on online participation due to a lack of internet access. However, intervening states should be willing to allocate resources to overcome these challenges, as they are the entities seeking to intervene in a foreign state, and they must recognize the importance of successfully completing the war authorization process through deliberative polling to justify their military intervention. Consequently, intervening states may be more willing to shoulder the burden of authorization, unless they opt for taking an unjustified military means for intervention. These practical challenges, in turn, raise the bar for war authorization, making it more difficult to authorize military intervention as a means to address rights violations, giving a partial answer to the practical concern.
In summary, endorsing an authorization process that incorporates deliberative polling would render the decision to go to war less arbitrary as it partly includes local authorization, contributing to the stability of the global community. At the same time, practical burdens associated with conducting deliberative polling would raise the bar of authorizing a war, making a just war more difficult to happen. One of the key concerns regarding intervention is that decisions can be made arbitrarily based on the political interests of the intervening state. Such arbitrariness can lead to global instability, including instability within the intervened state, as the intervention may not genuinely aim to rectify specific human rights violations and, therefore, the intervening states might fail to convincingly justify their actions to the global community. However, with an authorization process that includes deliberative polling, intervening states can obtain local authorization, albeit not through mass participation, in addition to their existing authorization processes. This would enhance the overall authorization process and make it more effective in assessing the justifiability of military intervention, thereby garnering greater acceptance from other states within the global community and contributing to the stability of the global community. In this way, HRP can answer the normative and practical worries that Rocheleau raises.
Furthermore, as the authorization processes extend over a longer duration and the military intervention itself is justified under HRP, the diplomatic strategies employed by intervening states become more effective. Given that the rights-violating state has already committed human rights violations, it is susceptible to pressure from other states, which can be leveraged to improve diplomatic approaches. Intervening states could enhance their negotiating position by proposing alternatives to address human rights violations presented as preferable solutions to avoid military intervention once the authorization process concludes, even though it may take time. Moreover, the intervening states can bolster the justifiability of their intervention through diplomatic efforts, demonstrating that they have explored all other options before resorting to military means.
In conclusion, this commentary has focused on a potential approach to endorsing the Human Rights Paradigm (HRP) while addressing some of Rocheleau’s concerns. This approach is based on the crucial distinction between the justification of humanitarian intervention and the authorization of the means employed for that intervention. By incorporating deliberative polling into the authorization process, we can strive for a more robust and democratic foundation for decisions related to military intervention, ultimately contributing to the stability of the global community.
2.11.25 | Crystal Allen-Gunasekera
Response
Comments on New Interventionist Just War Theory
It is my pleasure to present comments on Professor Jordy Rocheleau’s book, New Interventionist Just War Theory: A Critique. In his thought-provoking and densely argued book, Rocheleau argues against individualist perspectives that base the ethics of war on human rights and (he contends) make war easier to justify. I share Rocheleau’s belief that the purpose of the law and ethics of war should be minimize conflict, as well as his desire to safeguard the stability of the international system. I agree that some individualists are too permissive in what they allow to count as a just cause for war. I also feel that Rocheleau does an admirable job of highlighting the strengths and virtues of what he calls the “modified legalist national defense paradigm.”
I will be commenting on Chapters 4 and 5 of Professor Rocheleau’s book, with a particular focus on Chapter 4. In this chapter, Rocheleau defends what he calls a “modified national defense paradigm” of just war similar to that of Michael Walzer (1977) against what he calls the “human rights paradigm” (77). On the modified national defense paradigm, only the defense of state rights or the prevention of mass atrocities can qualify as a just cause for war. On the human rights paradigm, preventing human rights violations (of a sufficient severity and magnitude) is considered to be necessary or even sufficient for a just cause for war. Rocheleau argues that this is too permissive, undermines group self-determination or sovereignty rights, and would have negative consequences for human rights and international stability if adopted as an international norm. He also argues against humanitarian intervention qualifying as a just cause for war except in cases of mass atrocities.
While I cannot address all Rocheleau’s arguments in these chapters, I will focus on a few big-picture questions as well some points that were of particular interest to me. One of the bigger-picture questions I have is whether Rocheleau wants to retain the modified national defense paradigm at the level of international laws and norms, or at the level of basic morality, or both.
If he is focusing on the law of war or even the public norms, then his concerns about pragmatics and what we might call the acceptance value of many norms are appropriate and well-placed. However, it is then unclear to what extent those who advance the human rights paradigm actually disagree with him. Theorists such as Jeff McMahan, Cecile Fabre, David Rodin, and Fernando Teson, who appears to be one of Rocheleau’s main targets, make a distinction between the morality of war and the law of war, and they are primarily focused on analyzing the morality of war. Their primary project is to figure out what moral principles govern the ethics of killing at the level of deep morality. Furthermore, they do not hold that the laws of war should always reflect the deep morality of war. (See, for detailed discussion, McMahan 2008 and 2009). Thus, McMahan and other revisionists are at liberty to adopt a rights consequentialist framework like what Rocheleau appears to be advocating for at the level of the laws of war.
If, however, Rocheleau is attempting to give an account of the deep morality of war, then there is substantive disagreement between him and the human rights theorists. However, the worry then is that Rocheleau’s account is less plausible as an account of the deep morality of war. As Rocheleau acknowledges, the human rights paradigm has deep intuitive appeal, and the majority of his objections to it point towards the practical dangers of adopting it as a publicly acknowledged norm of international relations – that is, as international law. But a deep moral truth does not stop being true because it would be unwise to use it as a public norm governing international relations.
Furthermore, Rocheleau’s account has some internal tensions and a lack of unity that make it less attractive as an account of the deep morality of war. For example, he argues that just cause should be reserved for cases of defense of sovereignty or interventions to stop mass atrocity. However, he then admits a third class of just causes when he grants that groups within a state can have a just cause for revolution, civil war, or secession in response to systematic rights violations. There does not appear to be a clear theoretical unity between these various potential just causes for war. To the extent that there is one, it is a rights consequentialist framework – he takes these to be just causes for war because he believes that publicly accepting these, and only these, as just causes for war would best protect human rights. But this is contingent and could change over time.
Furthermore, his account of why intervention is not permissible in response to systematic rights violations is in tension with his acknowledgement that internal groups have a just cause for war in response to such violations. One of the key reasons he gives for why intervention is impermissible in such cases is that states do not lose their legitimacy by committing systematic rights violations. He writes, “A government that is a frequent rights violator or systemically fails to protect some human rights may, on balance, protect the rights and welfare of its population. If it does, it is justified – perhaps even obligated – in continuing to exercise power and thus is legitimate” (88). However, in discussing revolution, he writes, “As a general theory, following Locke and Orend, I would argue that systemic injustice in the form of any rights violations is necessary and sufficient for just cause for revolution” (98). These two statements are in clear tension. It should not be possible for an internal group to have a just cause for war against a legitimate government, because legitimacy means that the state has a right to govern and that internal groups have a duty to obey. This is incompatible with them having a just cause for war.
There are points in Chapters 4 and 5 where Rocheleau seems to equate individualism, and certainly the human rights paradigm, with interventionism, and I would caution against this. Nothing about the paradigm itself necessitates an interventionist approach, even at the theoretical level. For example, an individualist could hold that preventing the massive violation of human rights in mass atrocities is necessary and sufficient for a just cause for war. This would be no more interventionist than Rocheleau’s approach (as he also allows prevention of mass atrocities to qualify as a just cause for war) and would be more restrictive overall (as it would hold that states do not automatically have a right to defend their sovereignty/territorial integrity). Some individualists, such as David Rodin (2002), are quite dovish, as Rocheleau acknowledges.
I think part of the challenge comes from viewing the human rights paradigm as a suggested international law or norm, when it is not always intended to be such. Furthermore, even those who might believe that defense against systemic violations of basic human rights is a just cause for war would add other constraints, such as legitimate authority, proportionality, and probability of success. These constraints would forbid most cases of intervention, for many of same reasons that Rocheleau wants to forbid them.
For example, Rocheleau argues that “…external intervention tends to escalate conflict and be unstable in its gains…It also undermines a non-intervention norm that has served to limit armed conflict and imperial domination around the world” (98). He also argues that, for these reasons, intervention tends to undermine rather than promote human rights. However, these concerns can largely be addressed by the separate proportionality and probability of success constraints. Proportionality would rule out going to war in cases where the intervention would cause more harm than good or have a negative overall impact on human rights, as well as cases where it would undermine international norms that are themselves central to protecting human rights. Probability of success would rule out going to war in cases where the intervention would not be successful in its attempt to protect human rights. Rocheleau also argues that intervention tends to undermine or at least be in tension with local sovereignty (98). However, the legitimate authority constraint would protect the sovereignty of the people by suggesting that intervention is only justified if the victims and/or the majority of the people in the country to be invaded invite the aid. Thus, the actual range of cases where individualists would say to intervene and Rocheleau would say not to, might be quite minimal indeed.
One area of difference that Rocheleau notes is that he thinks the considerations of proportionality, etc. need to be folded into Just Cause itself, either at the level of a moral principle or at the level of an international norm. At the level of a moral principle, this doesn’t seem to make sense. The considerations are conceptually different and his reasons for wanting to combine them are mostly consequentialist and pragmatic. At the level of international law, there might be some value to this, but if there is, individualists are at liberty to agree with him.
I will end by noting some points on which I agree with Rocheleau. I agree with him that it would be a serious mistake to allow any kind of rights violations to potentially qualify as providing a just cause for war, as theorists such as Jeff McMahan (2005, 2014) have sometimes seemed to suggest. I also agree that interventions to prevent human rights violations do sometimes undermine the self-determination of groups and that this is morally problematic. In general, I believe Rocheleau makes a convincing case that interventions are often unsuccessful and can undermine international norms, and that we should be extremely cautious about them as a result.
Works Cited
McMahan, Jeff. 2005. “Just Cause for War.” Ethics and International Affairs 19 (3): 1-21.
McMahan. 2008. “The Morality of War and the Law of War,” in Just and Unjust Warriors: The Moral and Legal Status of Soldiers, edited by David Rodin and Henry Shue. Oxford: Oxford University Press.
McMahan. 2009. Killing in War. Oxford: Clarendon.
McMahan. 2014. “What Rights May be Defended by Means of War?” In The Morality of Defensive War, edited by Cecile Fabre and Seth Lazar.
Rocheleau, Jordy. 2022. New Interventionist Just War Theory: A Critique. New York: Routledge.
Rodin, David. 2002. War and Self-Defense. Oxford: Oxford University Press.
Walzer, Michael. 1977. Just and Unjust Wars. New York, NY: Basic Books.