Symposium Introduction

Sung Jun Han

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.

  • Jordy Rocheleau

    Jordy Rocheleau

    Reply

    Reply to Han

    Sung Jun Han takes seriously the practical and principled objections that I raise to the human rights paradigm (HRP). He would defend the HRP by noting the possibility of intervention short of war and proposing tests of local consent through deliberative polling. I appreciate this engagement with my proposals and Han’s own pragmatic counterproposal.

    Han’s reference to interventions short of war is intriguing. My book is primarily concerned with the ethics of interventions that amount to war, defined as a large-scale violent struggle between groups over governance. I discuss measures that fall short of this by being either targeted and small scale or not infringing sovereignty (121-7). Perhaps in some instances targeted strikes could rescue groups of individuals or remove bad actors. Ideally humanitarian results could be achieved without violence altogether, such as by diplomacy or economic sanctions. It is consistent with my rule-utilitarian view that measures which could achieve human rights gains without large-scale harm can be justly attempted. However, systematic improvement of human rights against the will of the local government is probably going to require relatively large-scale armed intervention. This level of violence amounts to war and, I would argue, requires the atrocity just cause threshold (121-7).

    Since part of my argument is that war is apt not to be welcomed even by its intended beneficiaries (88, 90-91), the prospect of deliberative polling for a clear determination in this regard is a relevant objection. I am not familiar with the technology, but I think most potential interveners would have trouble gathering good data from the authoritarian, war-torn areas where they are inclined to intervene against the will of the authorities. Because of the difficulty of proving popular support, most HRP proponents would thus probably not accept such proof as a condition for intervention. However, it is fair to ask whether I should accept some such restrictive human rights paradigm. I would note that there is a concern about bias in any data that is proffered by an intervener to justify its own intended war. Ideally, the polls would be done by a neutral third party, but a disinterested body is not likely to undertake such a challenging endeavor. I am also uncertain how the proposed authorization solution interacts with Han’s intertwined objection that the main issue is the means and scale of intervention rather than intervention itself. The implication seems to be that for local authorization to be valid, individuals would have to weigh in on the means and likely effects of the intervention rather than giving a simple yes or no to intervention in general. But the various probable effects of intervention are not likely to be well-explained or understood in a public opinion poll. A final difficulty regards the level of popular support required to authorize an intervention. A mere majority of group support is probably not sufficient to justify endangering the lives and overthrowing the governing structures of (up to 49.99% of) the others, though unanimity would probably be implausibly demanding to require. This is not just a problem for Han, but I think the messiness of discerning that intervention is welcomed points toward retaining the high, atrocity threshold that would lend objective plausibility to claims of subjective support. These considerations are also reasons that legitimate authority is usually conceived in terms of approval by a representative body, as discussed in my exchange with Robert Hoag below, instead of polling individual citizens.

    I would emphasize that my objections to intervention are not just based on authorization deficits, but also on war’s tendency to be less successful and more destructive than forecast. Han terms these “practical,” as opposed to “moral,” considerations, but I would reject that contrast. In my view negative consequences, especially large scale killing and destruction, are morally relevant factors that presume against war. War’s tendency to cause such harms in excess of benefits is a reason to reject causes that might otherwise seem just (Chapter 5). I think it would be dangerous and bad policy to accept interventions to stop minor and moderate rights abuses, even in cases with evidence of a majority of local support. If we could identify a class of armed intervention which is likely to succeed in furthering basic rights at a relatively low cost, I would have to accept this as a just cause. However, I haven’t seen that class defined yet and I remain skeptical about its existence.

    Lastly, I take Han, along with Allen-Gunasekera, to argue, contrary to my view, that considerations of the magnitude of harm and typical expected consequences of intervention are not relevant to just cause. In his example of witnessing child abuse, it is suggested that any abuse is a just cause to intervene, while whether and how to intervene would depend on a consideration of proportionate consequences. By analogy, any human rights violations could be taken to be just cause for war, but whether and how to act on that cause depends on circumstances. I would quibble with the judgment in the analogue as well as its extension to war. In my view, not every form of abuse is just cause for intervention. Some wrongful treatment – overly harsh words or physical punishment – does not amount to just cause to forcefully intervene in another family’s affairs. The presumption against acting violently and interfering with the self-determination of others is not overridden so easily. In this sense, the just cause threshold for war is similar. Han might counter that by “child abuse” he is referring to the legal standard, which would normally warrant intervention, but this would be to acknowledge that magnitude is relevant and that there is a minimum threshold for just cause. In war, he might counter that the violation of human rights is akin to the grave violation of a child’s rights in abuse situations. However, I would disagree. Mobilizing to interfere with a separate state across borders, each state possessing armed forces with lethal weapons, requires a higher cause threshold than intervening to stop injustices by individuals in a domestic setting. Just as the magnitude of rights violations mattered, so does the magnitude of costs and harms involved in the sort of action undertaken. There is a proportionality component that must be satisfied for the act to be a just cause, before the proportionality of the specific action planned is considered in detail (94-6).

    I appreciate Han’s questions and challenges to my view, and the opportunity to reassess and reapply my own argument in this context.

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.

  • Jordy Rocheleau

    Jordy Rocheleau

    Reply

    Reply to Allen-Gunasekera

    I am glad that Crystal Allen-Gunasekera chose to focus on Chapters 4 and 5. My defense of a legalist paradigm of just cause with a strong presumption of non-intervention, against a more permissive human rights paradigm, is central to my conception of jus ad bellum and illustrative of my just war approach. Allen-Gunasekera presents a fair characterization of my view and raises challenging objections to my approach and conclusions. I am happy to be pushed to explain and defend the view further here.

    Allen-Gunasekera’s question whether I am laying out the “international law and norms” of war or its “deep morality” gets at fundamental issues. I am concerned with the norms of war as action-guiding principles. Many of these are or should be enshrined in international law, but I agree that ethical norms and their defense do not reduce to law. However, I am skeptical about the distinction between war’s norms and its “deep morality.”  This is in part because I am skeptical about the existence and value of any overarching moral theory. In the Introduction, I embrace a constructivism in which morality is the norms we can justify to one another based on a plurality of considerations, which include deontological principles such as human rights as well as consequentialist concerns of overall utility. There are well-known counterexamples to the major moral theories such as Kantianism and utilitarianism, and the fundamental arguments for any of these as exclusive accounts of right action are questionable. If the ethics of war were asserted to rest on any one moral theory, it would be on dubious grounds which many would have good reason to dismiss. We have a better chance of finding agreement on rules of conduct, such as the prohibition of aggression and acceptability of defense, than underlying rationales (Rocheleau 2022A, 5-12).

    The ethics of recourse to war is particularly complex, and involves balancing several principles including harm prevention, non-maleficence, autonomy, and utilitarian security and stability. Particular moral judgments and action-guiding principles have to be tested against each other in a reflective equilibrium without deductive certainty. I suggest that my pragmatic, pluralist view ultimately yields more plausible results than approaches which are more unitarian in their foundation. I would also question the value of a deep morality of war that isn’t normative and thus not meant to be practical and action-guiding. It would be odd to articulate a just war theory that did not intend to guide actual judgments about war. In any event, my theory aims to be practical. If other thinkers have successfully given a deeper morality of war, while I merely give the norms that should actually be followed in the real world, I would be content with this lot.

    Allen-Gunasekera is right that what I call the “human rights paradigm” as a just cause threshold is not synonymous with “individualism” as a reduction of the morality of wars to a morality of individual conduct. Sometimes individualist arguments are used to justify the lowered rights threshold. I happen to disagree with individualism methodologically as well as in its typical normative implications. I don’t think the morality of war between groups can be well conceived of as so many defenses of individual rights. Individualists tend to base their arguments about the justification of the use of force on stylized abstract examples (McMahan 2009; Frowe 2011). I generally find these inconclusive, as I think the intuitions they rely on and their extension to general cases of war between groups are both doubtful. Among the individualists, I find Rodin’s view (2014), which amounts to a sort of contingent pacifism, to have considerable plausibility; indeed, the main difference in our conclusions is that I think sometimes war might be a justified collective response to aggression or rights violations where he would replace war with individual defensive actions.

    Many proponents of a human rights paradigm do see it as a new norm that should be implemented. Fernando Teson (1988) and Allen Buchanan (2010) would either change law to make it more permissive or, if law is to be kept the same, normalize breaking the law. As I alluded to above, I’m not sure what it would mean to lay out a concept of just cause without thinking this should normatively guide conduct. In any case, it is normative proposals that human rights violations are sufficient to provide just cause for war that I am centrally concerned to oppose.1

    Allen-Gunasekera doesn’t point to counterexamples where my theory gets it wrong – cases of a just cause which doesn’t involve national defense or atrocity crimes – but she does note a couple areas of questionable coherence. She finds not two, but three just causes for war, as I add local revolution against systematic injustice to national defense and humanitarian atrocity prevention (97-99). My initial glib response is to say that three still seems like a reasonably small number of just causes. I take the objection to be that there should be one core principle underpinning all just causes. As I alluded to above, I don’t know what that principle would be. In the Introduction I say that a utilitarianism of rights or a rule utilitarianism, and ultimately a contractualism, are as close as we can get (5-12). Anyway, I think it makes sense to list causes that seem defensible given an array of reasons and see if they can survive objections and satisfy reflective equilibrium. I acknowledge that my conception of just cause is “contingent” on the world as it is and is not an eternal truth. In a different stateless world or one with disarmed states and a robust world police force, it might make sense to adopt interventionist norms to stop lingering human rights abuses. For now, I am content if I have offered defensible norms for the actual world and not all possible ones.

    On the seeming contradiction where I defend unjust parties as retaining legitimacy but then say that systematically unjust parties can be justly rebelled against, I would emphasize three things. First, not all injustice causes loss of legitimacy (86-90). Second, not all loss of legitimacy is warrant for war (90-94). Third, illegitimacy and injustice can be a warrant for revolutionary war without justifying foreign intervention (97-99). I acknowledge that there is more work to be done on specifying the extent of systemic injustice required to justify civil war, as opposed to the atrocity standard for interstate war. My discussion in the text and a recent article criticizing the so-called symmetry thesis regarding just cause for intervention and insurrection (Rocheleau, 2022B) seek to advance this discussion.

    Finally, Allen-Gunasekera holds that considerations of consequences and pragmatics don’t play a role in just cause and should be cabined within a separate, subsequent proportionality assessment of the practicality of fighting for an in-principle just cause. As I discuss in my response to Han below, I would defend the significance of the consequences of the type of action one is considering for whether one has sufficient cause to consider undertaking it at all.

    I appreciate Allen-Gunasekera and other individualists, as well as cosmopolitan human rights proponents, engaging with the text to find our places of disagreement and possible areas of agreement.

     

    Works Cited:

    Buchanan, Allen. 2010. “Institutionalizing the Just War.” In Human Rights, Legitimacy, and the Use of Force, edited by Allen Buchanan, 250-279. Oxford: Oxford University Press.

    Frowe, Helen. 2011. The Ethics of War and Peace: An Introduction. London: Routledge.

    McMahan, Jeff. 2009. Killing in War. Oxford: Clarendon.

    Rocheleau, Jordy. 2022A. New Interventionist Just War Theory: A Critique. London: Routledge.

    Rocheleau, Jordy. 2022B. “In Defense of Insurrection/Intervention Asymmetry: Why Democratization is Just Cause for Revolution but not Intervention.”

    Rodin, David. 2014. “Rethinking the Responsibility to Protect: The Case for Human Sovereignty.” In The Ethics of Armed Humanitarian Intervention, edited by Don Scheid, 243-260. Cambridge: Cambridge University Press.

    Teson, Fernando. 1988. Humanitarian Intervention: An Inquiry into Law and Morality. Dobbs-Ferry, New York: Transnational Publishers.


    1. I take it that in denying that individualism and human rights foundationalism has legal or normative implications, Allen-Gunasekera is thinking especially of McMahan’s (2009) caution that his moral inequality of combatants does not necessarily require any change of law. However, even McMahan ultimately gives a normative proposal that is to guide some judgments and actions and further stipulates that institutional changes could allow his norms to be enforced.

Robert Hoag

Response

Right Authority, Armed interventions

Professor Rocheleau’s new book defends a conservative cautionary corrective to some recent applications of “just war” principles to justify outsiders using armed force to address domestic violations of basic human rights. The book challenges as unwarranted or dangerous some supporters of armed humanitarian interventions – interventionist “hawks,” he calls them – who invoke interpretations of currently common ad bellum criteria for justifying the recourse to war1 – right authority, just cause, right intention, proportionality, last resort, and likelihood of success.2 These recent interpretations are found to be indefensible departures from Michael Walzer’s more restrictive “legalist paradigm.”3 The discussion is well done – thoughtful, thorough, rigorous, informed, nuanced and complex. There is much worthy of attention and comment, much beyond my very limited focus here.

Rocheleau’s discussion of all the ad bellum principles attends especially to interpretations of the “just cause” and “right authority” requirements, the latter he rightly recognizes as oft neglected. The merits of ad bellum principles are challenged and defended with various deontological considerations to buttress a fundamental rule-utilitarianism as moral justification for armed interventions. Thus, much attention is paid to the consequences of various interpretations of principles, especially their effects on international stability, peace, order, and on current international institutions, norms, and law. The consequentialism invoked is more akin to a Humean conservatism – current conventions are to be sustained now as better than risking their loss – than to the robust reformers of a Bentham or Mill – current norms need change now to best promote the general welfare.  A distinctive feature of the book is evaluating principles to justify the recourse to war as also action guiding rules for prospectively deciding whether an intervention is warranted in today’s world as it is. Ad bellum requirements need to be practical, it is assumed. Thus, various interpretations of ad bellum principles are sometimes supported or challenged with respect to their clarity, ambiguity or vagueness, “epistemic confidence,” susceptibility to multiple interpretations, or idealistic departures from the realities of today’s international norms, institutions, laws.

Among several distinctive contributions of this book is attention to the “right authority” ad bellum requirement. This flows naturally from the book’s concern with the practicality of “just war” principles. Assuming “the mass atrocity standard” for the “just cause” requirement (Ch. 4 passim), I here offer thoughts about Rocheleau’s discussion of “right authority” for armed humanitarian interventions, which also illustrates the rule-utilitarianism and practical, real world, action-guiding perspective of this book.

A common focus of the ad bellum requirement of “right authority” is who or what has the authority to employ armed force, especially to distinguish justified wars from private or criminal violence, among other possibilities. “Right authority,” then, is commonly seen as a matter of specifying a status, standing, or kind of entity warranted in using armed force. The book takes a distinctly different tack by considering what constitutes legitimate authority to employ armed force and by emphasizing institutionalized, rule-governed procedures which currently accord legitimacy. A reasonable concern is problematic, unilateral state decisions to wage war, including armed humanitarian interventions (205).

In a typically nuanced discussion, Rocheleau argues that, in most all cases, “right authority” to intervene militarily requires international authorization by “the UNSC [United Nations Security Council] as the decision-making body for uses of force that are not immediately defensive” (201), to be bypassed for decision by an alternative, subsidiary body only if the UNSC “fails to exercise its authority” (210), makes an irrational decision (211), “the authorities get it wrong” (209) or are “clearly and disastrously mistaken” (210). Thus, an individual state “could gain authority to act independently” (210) only if, subsequent to processes of consultation, petitioning, etc., the state judges all relevant international and subsidiary bodies to “have failed in exercising their authority” (211; 212). This requirement, in effect, “serves to generally condemn unilateral state action in contravention to international law as well as force by private, sub-state groups” (216).  The discussion does acknowledge one very limited exception:  supreme humanitarian emergencies where the magnitude of atrocities and extreme urgency erase entirely the procedural requirements, and an agent – state, private army, non-government organization (NGO) – has legitimate authority to decide unilaterally to intervene. The Rwandan genocide in ’94 may have been such a case (209; cf. 199)

The book defends this nuanced procedural authorization requirement with numerous considerations, both consequentialist and deontological:

  • following procedural rules’ effects on international order, stability, sustaining of extant international institutions, norms, laws, etc.
  • a domestic analogy supporting a “deference to authority” principle
  • the enhanced quality of decisions to intervene that flow from consultation, petitioning, discussion, making one’s case internationally
  • member states’ consent to UN authorization and procedures
  • the “representative” character of the UN and UNSC

Among the benefits of the rule-governed procedures, the book suggests, is not only reducing the quantity of interventions, but also enhancing the quality of decisions and armed interventions to address mass atrocities.

Each of these considerations has some merit, but I think less than needed for the conclusion drawn. It’s a stretch to suggest the UNSC is “representative,” given its small size, 5 permanent members each with veto power, etc. I also wonder whether states’ consent to UN membership morally obligates invoking the UN as the deferred authority about interventions, given the absence of viable options to membership, the consequences of non-membership, and the attenuated distance between choosing to join the UN and procedures implemented only years later. These considerations parallel David Hume’s and others’ challenges to Lockean invocations of tacit consent as ground for obligations to obey established authorities now, even if parties initially obligated themselves by explicit consent.4

I doubt that the deliberations of the UNSC do much to enhance the quality of any decision whether to intervene. In fact, international law does not clearly, nor explicitly permit armed humanitarian interventions. The UN Charter includes very restrictive provisions about armed force (A. 51, 2 (4), 2(7));  the Charter explicitly allows UNSC authorizing uses of armed force only as a necessary last resort “to maintain or restore international peace and security,” not to address domestic violence (A. 39; also A. 41, 42); and the UN has never implemented Title VII provisions for members’ “armed forces, assistance, and facilities” to be available for immediate use under the direction of the UNSC (i.e., via the Military Staff Committee, A. 43-47). The recent adoption of the Responsibility to Protect5 (R2P) norm broadens only marginally the legal space for the UN authorizing interventions (33, 81).

Furthermore, I doubt UNSC authorization decisions do or would emerge from assessing the moral merits of a proposed intervention, i.e., to establish whether all the ad bellum requirements are satisfied by the proposed use of armed force. Nor would the UNSC likely pursue a reasoned vetting process about the competence of an intervener, i.e., the quality of command and control structures, of intelligence gathered, of operational and logistical plans, of the discipline and training of armed forces to be deployed, of assets and capabilities, as well as whether the intervener has a good exit strategy, experience of interventions conducted well, etc.6 Any quality enhancements from a UN authorization procedure for armed interventions will be marginal, at best.

Though rightly admitting the UN’s flaws (204) and the impracticality of amending the Charter (A. 108), the book’s argument does assume “the relative reliability of authorities” (199), like the UN, and invokes a “deference to authority” principle. The idea is that in the domestic arena non-state actors properly defer to established authorities regarding uses of deadly force in defense of attacks on self or others. By analogy, deadly force used internationally to address mass atrocities requires deferring to established authorities, the UN.  But the domestic analogy may actually point a different direction. In the domestic arena, persons’ rights to unilaterally employ deadly force in defense of self or others expands in scope as authorities – police, sheriff, etc. – are reasonably seen as unresponsive due to, e.g., poor staffing, distance in rural areas, reluctance to engage certain neighborhoods, poor training or police practices, prejudices, suspect policies, etc. Thus, by analogy, then, when mass atrocities occur, a right to intervene unilaterally may be more expansive, given reasonable doubts about the quality and timeliness of UNSC deliberations, decisions, and responses.

Rocheleau’s proposed authorization requirement does allow for a unilateral decision that neither the UNSC nor any subsidiary body has “made the right call” about a proposed intervention (209-212). Consider some consequences of this provision. An effect might be for states to engage in “authorization shopping,” analogous to “judge shopping” by some civil litigants. Furthermore, it might be that such thwarting of an authorizing body’s decision is more corrosive of international institutions and norms than the occasional unilateral state decision to intervene without the anointment of the UNSC or other rule-governed procedures for authorization. Consider Socrates’s argument in Crito (50a-c): disobeying a mistaken court decision threatens the institution, the rule of law, the polity itself, far more than merely disobeying even an unjust statute or procedural rule to which one, even in theory, has consented.

It also seems that multi-lateral procedures and interventions not involving the UN at all might address Rocheleau’s considerations: consultation, deliberations, accountability, even substantive vetting of a proposed intervention’s moral merits could be effected by various multi-lateral arrangements. Such sub-UN venues might take the form of ad hoc coalitions or formalized federations of like-minded democracies committed to human rights7 or even a well-run NGO trained and committed to conducting interventions, “Defenders Without Borders” it might call itself. Such venues for authorization procedures would, as least as effectively as the UNSC deliberations, mitigate reasonable concerns about “groupthink,” “planning fallacy,” self-deception, confirmation bias, and other distorting tendencies of unilateral decision-making (114-115).

Furthermore, illegitimate armed interventions can be a way to effect change in international norms or law, indeed, may even be necessary to reform those rules. Explicit international norms – the UN Charter and the R2P norm – effectively prohibit unilateral armed interventions, even to address supreme humanitarian emergencies. Amending the Charter is impractical, even if desirable. There is no central legislative body for international law. International norms oft develop over time as practices become customary and seen as law (129).8 Thus, the initial stages of developing a new norm regarding armed interventions requires illegal or illegitimate actions. An illegitimate intervention now then also be an act of civil disobedience (211), a necessary means to effecting reform of extant intervention norms.9 Rocheleau rejects revising intervention norms this way as producing “considerable harm” to “the rule of law and international reciprocity” (129). Proponents argue any harmful consequences to the international order would be warranted by the reforms that take universal rights seriously, by the “amendment” of international norms to allow armed interventions to better address gross violations of basic human rights.10

All this raises the importance of another ad bellum requirement, “right intention” – or “right purpose,” as I prefer to call it – and a host of questions about reform and change in the international order.  Even wars of self-defense raise more difficult questions of right purpose, as illustrated by the First Gulf War in 1991 and now Israel’s aims in responding to Hamas’s armed attack from Gaza in 2023. In focusing on “just cause” and “right authority” requirements for armed interventions, Rocheleau offers a thoughtful, reasoned discussion that challenges “new interventionists.”  He invokes a cautious conservative consequentialism about international stability, order, and institutions to ground a restrictive interpretation of the “right authority” to intervene militarily in response to mass atrocities. His cautious conservatism similarly grounds limiting the authority to effect reforms of international norms: “To make international institutions pursue justice more effectively, well-meaning parties should attempt to work constructively within the system…” (232). Rocheleau’s conventional rule consequentialism, in effect, eschews armed interventions to address mass atrocities, while also leaving little practical way to improve international law, norms, or institutions to license more robust defenses of the most basic rights of all persons everywhere.


  1. The book does not discuss post bellum issues or in bello requirements for waging a just war, either in general or as they apply to the conduct of armed humanitarian interventions.  It is assumed throughout that the plurality of ad bellum requirements are each necessary for and jointly sufficient for justifying the use of armed force.

  2. This list of six ad bellum principles is common. But there is, in fact, great fluidity in the number, individuation, as well as specific interpretations of the requirements for justifying uses of armed force, both historically and in the contemporary literature. The book intermittently wrestles with such taxonomic issues, dismissing “likelihood of success” as an independent requirement (28), advocating the addition of “public declaration” as required (28), and, following some others, incorporating proportionality considerations into the preferred interpretation of the “just cause” principle (95-96).

  3. Just and Unjust Wars (Basic Books, 1977), now in a fourth edition (2006). In a “Preface to the Third Edition” (2000) Walzer specifically addresses and amplifies his earlier views on armed humanitarian interventions.

  4. See John Locke, Second Treatise of Government (1688), Sections 119 ff.; David Hume, “Of the Original Contract” (1777); A. John Simmons, “Tacit Consent and Political Obligation,” Philosophy & Public Affairs 5 (1976), 274-291, and Moral Principles and Political Obligations (Princeton, 1979), Chapters III and IV.

  5. The Responsibility Protect: The Report of the International Commission on Intervention and State Sovereignty. 2001. https://www.globalr2p.org/resources/the-responsibility-to-protect-report-of-the-international-commission-on-intervention-and-state-sovereignty-2001/

  6. Not only would the UNSC not likely evaluate interventions in this way, interveners, especially states, would understandably eschew sharing such information with the UNSC, as it could compromise interveners’ own security by divulging information about its military, intelligence capabilities, etc. Interveners would not or cannot be fully transparent, as needed, even if the UNSC sought to explore such competency requirements.

  7. Allen Buchanan has promoted such proposals. See “Institutionalizing the Just War,” in Human Rights, Legitimacy, and the Use of Force, edited by Allen Buchanan (Oxford, 2010), 266-276. Rocheleau briefly discusses such proposals, dismissing them largely for lack of development (129-130).

  8. Per Article 38, of The Statute of the International Court of Justice, annexed to the UN Charter (A. 92), which specifies among four sources of law “international custom, as evidence of a general practice accepted as law.” The R2P norm, now adopted by the UN, emerged slowly in accordance with this provision about the sources of international law.

  9. A reasonable and cautious intervention norm might parallel the “right of self-defense if an armed attack occurs” in Article 51 of the UN Charter: “There is a right of individual or collective use of armed force in defense of others when a supreme humanitarian emergency occurs,” situations where the magnitude of mass atrocities and urgency of intervening are both great.

  10. See essays in Humanitarian Intervention: Ethical, Legal and Political Dilemmas, ed. J. L. Holzgrefe and Robert O. Keohane (Cambridge UP, 2003), especially “Rethinking humanitarian intervention: the case for incremental change,” by Jane Stromseth (232-272), and “Reforming the international law of humanitarian intervention,” by Allen Buchanan (130-173). I develop a similar line of reasoning in “Violent Civil Disobedience: Defending Human Rights, Rethinking Just War,” in Rethinking the Just War Tradition, edited by Michael Brough, John Lango, and Harry van der Linden (Albany: SUNY Press, 2007), 223-242.

  • Jordy Rocheleau

    Jordy Rocheleau

    Reply

    Reply to Hoag

    Robert Hoag carefully enumerates the combination of deontological and rule-utilitarian arguments that I draw on to defend the necessity of proper authorization to justify war, including primarily authorization by the UN Security Council according to international law. I had not thought of my view as a Humean conservatism, but I am happy to embrace such an additional source. Despite my plurality of arguments, Hoag remains unconvinced that proper authorization procedure in general, and consultation of international institutions in particular, is necessary to justify war. I will take up key points that he raises.

    First, Hoag questions the legitimacy of international legal authority, including the bindingness of its rules, its representativeness, and the quality leant by its decision-making. In terms of bindingness, I point out that agreement to international treaty law is explicit, in contrast to the implicit “social contract” that citizens are sometimes argued to have with their governments (201-2). The difficulty of leaving one’s society and the length of time since constitutional founding is not usually thought to undermine the legitimacy of domestic law, so I don’t see why it would international law either. Moreover, states universally benefit, on balance, from the rules of the international system. As Hoag notes, international law can be altered through changed custom; absent such alteration, the consent to obey the law is ongoing and thus not outdated. Many states, including the U.S. after 9/11 invoked Article II of the Charter condemning aggression and Article 51 stating a right of self-defense. It would be odd for them in turn to deny the standing of this framework that they expect others to observe.

    I share some of Hoag’s concerns about flaws in the UNSC. However, in addition to its five permanent members the UNSC has 10 members elected by the UN General Assembly, representing continents from around the world and inevitably providing distinct perspectives and interests. Authorization by a majority of this body, avoiding any vetoes, undeniably provides a more thorough vetting than unilateral self-authorization. Indeed, despite its flaws the Security Council has a good track record of refusing to authorize unjust interventions including, for example, the U.S. invasions of Vietnam and Iraq, the Soviet invasion of Afghanistan, and the Russian invasion of Ukraine. Deference to the UN would have avoided numerous unjust wars and vast unnecessary bloodshed. Moreover, the Security Council has authorized interventions in many of the worst cases, including in Rwanda (201-6). Although pro-unilateralist writers such as Hoag suggest that the U.N. is preventing well-meaning liberal states, especially the U.S., from intervening around the world to stop genocides, the failure to intervene more robustly in cases like Rwanda and Darfur was largely due to the unwillingness of the U.S. and other democratic powers to commit to supporting and engaging in such an operation. The flaws of the U.N. are introduced precisely by the self-interested actions of individual states to whom Hoag would give authorization prerogative.

    Hoag argues that sufficient testing could be provided by “ad hoc coalitions or formalized federations of like-minded democracies.”  However, a party interested in intervention might always find some partner with a confluence of views and interests, such that this procedure – which I take to be recommended as optional – could almost always be satisfied even in morally dubious interventions. A coalition or alliance will not necessarily involve testing of the justifiability of claims, and if the deliberations are done privately without formal procedures, it is easy for them to avoid addressing skeptical questions about justification. Hoag notes that I would allow formal regional governing bodies to authorize wars in the case of failure at the UN to respond in situations where intervention appears clearly justified and then allow unilateral state action only if that body also fails. He thinks that this process is open to authorization shopping, appealing to authorities until one finds one that fits. However, since the process would be fixed by the legal procedures established in international law, rather than according to coalitions of the intervener’s choosing, the system I advocate is much less ad hoc and open to bias than the coalition-shopping that his alternative would allow.

    I take Hoag’s central concern, like other opponents of an authorization requirement in jus ad bellum, to be that the ultimate moral point is right action rather than good decision procedure. I don’t disagree, but I would caution that, first, we can’t be confident of taking right action without rational, accountable procedures. We should be suspicious of unilateral, vigilante action taken by governments, and leaders should be suspicious of their own inclination to such action. Hoag appears to have confidence that democratic states will tend to act morally of their own accord. However, democratic states have a history of fighting unjust wars; they are liable to put self-interest ahead of morality, be subject to irrational fears and vengeful impulses, and fail to recognize the moral and practical complexity of the international situation. Democratic states, especially those pondering intervention, are relatively wealthy and lack experience with the challenges of war-torn and developing nations. Deliberation within belligerent democracies about war plans is apt to exclude the concerns of the foreign people who are centrally affected. Moreover, military decisions are generally undertaken in secret by administrative authorities, bypassing public discussion, such that the accountability and deliberation that democracy potentially provides as a check on injustice, fails to operate in wartime.

    Second, even if a party is confident in its judgment, one owes respect to the community and its laws and thus should at least petition authorities and acknowledge their arguments and rulings. Hoag questions my argument by domestic analogy for the importance of consulting and deferring to law, noting that we might have sympathy for vigilante action in cases where law enforcement is absent, weak, or unjust. In response, if legal authorities are serving the good, and there is time to petition them, then one should do this, reserving the right to act unilaterally if no assistance is forthcoming. There may be cases where law enforcement is so absent or corrupt that it has forfeited its right to consultation. Although international authorities and international law are frequently derided, they have developed to serve the good and have taken effective action and imposed effective sanctions. They present the best possibility of an international order preventing or limiting unjust force. Parties can strengthen the legal system by petition and general deference rather than weakening it through rule-breaking, further encouraging rule breaking by others. As world powers, including democracies, themselves appeal to the norms of international law, it would be inconsistent and hypocritical for them to deny its legitimacy.

    Distrusting legal authority and procedures, Hoag recommends renewed attention to the principle of right intention. I do not disagree that it is important for potential belligerents to have and act on good intentions. However, I don’t think the right intention criterion cannot bear much justificatory weight. It is difficult to discern intentions, especially of others, but potentially even one’s own. This is particularly true when speaking of the intentions of a state actor encompassing numerous individual plans. Interventions are apt to have mixed motives with various aims, including achieving strategic, self-interested goals alongside (perhaps) stopping human rights violations. Just war theory lacks clear grounds for discerning when moral motives sufficiently outweigh non-moral motives to speak of a war as rightly intended. The subjectivity of unilateral assessments of one’s own cause are another reason for the necessity of a decision procedure in which claims are formally tested (28-31, 147, 150).

    As Hoag notes, I would allow self-authorization at the end of the day if international institutions fail. He thinks it might be better to just act unilaterally from the beginning. I disagree. Petition shows respect for the international system. It also can lead to rational persuasion and make it more difficult for a rejected petitioner to legitimize unilateral action. The US recognized the need for legitimacy in its invasion of Iraq, though it failed to be deterred by the reasonable rejection of its petition by the Security Council. Admittedly, scrupulous observance of international norms by well-intentioned parties won’t automatically reform bad actors, but it would make aggression more difficult to legitimize and thus more costly and harder to undertake. It is an odd reading of Socrates’ argument for obeying the law that it would be preferable to renounce any intention of observing rules than to disobey rulings as a last resort. Hoag’s point that change in international law comes about through law-breaking, forming new conventional international law, such that disobedience is sometimes necessary, is good. However, establishing new common law requires the action to be recognized as morally justified, an acceptable norm for others. This is more likely if the moral case for the action and change in norms were presented to the international community rather than the party simply acting unilaterally. Serious engagement with the system is more likely than its disregard to lead to desirable reforms such as doing away with the five permanent members’ vetoes.

    Finally, I would note that there is an interesting symmetry in my critics’ objections. Allen-Gunasekera and Han both argue that my strict just cause threshold isn’t necessary if authorization procedures (and proportionality) are strictly followed, while Hoag argues that authorization procedures aren’t necessary if my strict cause threshold is adopted. It may be that if my view in either area became dominant and generally observed, flexibility in the other would be less problematic. My book, like the work of Wittgenstein (1922), could be discarded if it came to be generally followed. However, the reality is that for now, neither of my proposals is likely to be thoroughly observed, so the advancement of both remains important. In the meantime, interventionists are pushing on both ends for loosening the just cause threshold and any procedural testing, leaving the justification of force dangerously and unwarrantedly subjective.

    I appreciate Hoag engaging with my argument and deliberating with me about an ethical posture toward international intervention. I would continue to defend a restrictive view with a procedural authorization requirement as well as a high threshold of just cause. Continual reflection on how to respond to international injustice without causing more harm than good unfortunately remains necessary.

     

    Works Cited:

    Ludwig Wittgenstein, 1922. Tractatus Logico-Philosophicus. New York: Harcourt, Brace and Company.

Shares
Verified by ExactMetrics