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

February 11, 2025, 1:00 am

Robert Hoag

Response

February 18, 2025, 1:00 am

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