Jus ad bellum (II): Why should war be waged?

Question 1

War as last resort

Answer 1

“Although the prince will never make any decision hastily, he will never be more hesitant or more circumspect than in starting a war […] The good prince will never start a war at all unless, after everything else has been tried, it cannot by any means be avoided. If we were all agreed on this, there would hardly ever be a war among men” (Erasmus of Rotterdam, The Education of a Christian Prince, 1516)
Last resort: strategic and moral reasoning/calculus Aristotelian phronesis?
No other choice= imminence of the danger

Question 2

Last resort in recent just war theory

Answer 2

Walzer: “if there are potentially effective ways of avoiding actual fighting when still confronting the aggressor, they should be tried” (Arguing about War, 2004, 88-89)
Coady: last resort “enjoins us to make serious efforts at peaceful resolutions of our political problems before resorting to the sword” (Morality and Political Violence, 2008, 91)

Question 3

Alternatives to war

Answer 3

 Diplomacy (treaty, international mediation)
 Economic sanctions: example of Germany (1919), Rhodesia (1965),
Iraq (1990s)
 Legal sanctions: the case of lawfare (USA vs Iran)

Question 4

The issue with temporality

Answer 4

 What constitutes an imminent danger?
 Example of the US drone strikes in Pakistan/”drone war” (2000s- 2010s) – Disposition Matrix

Question 5

II. Proportionality

Answer 5

“Care must be taken to ensure that the evil effects of war do not outweigh the possible benefits sought by waging it” (Francisco de Vitoria, On the Law of War, 1532)
 Assess the good vs the evil of war
 Addition to the “probability/chances of success”

Question 6

Just benefits vs evil effects

Answer 6

Just benefits:
 Peace
 Defeat of an unjust opponent

Evil effects:
 Killings
 Political/economic collapse
 Environmental destructions
=> A need for continual reassessment of proportionality during the conflict

Question 7

The doctrine of double effect

Answer 7

“Nothing hinders one act from having two effects, only one of which is intended, while the other is beside the intention. … Accordingly, the act of self-defense may have two effects: one, the saving of one’s life; the other, the slaying of the aggressor.” (Aquinas, Summa Theologica (II-II, Qu. 64, Art.7)
 Difference between intended and accidental effects
 “if a man in self-defense uses more than necessary violence, it will be unlawful, whereas, if he repel force with moderation, his defense will be lawful.”

Question 8

Fighting for a just cause

Answer 8

“As it belongs to sovereign princes to undertake and carry on wars and battles, we must now consider the causes by which, according to lawful means, they may be initiated and pursued. […] Five grounds are commonly held to be the basis of war, three of which rest on law and the remaining two on will […] maintain law and justice, counteract evildoers who befoul, injure and oppress the land and the people […] and recover lands, lordships stolen and usurped for an unjust cause. As for the two of will, one is to avenge loss or damage incurred, the other to conquer and take over foreign lands or lordships”
Christine de Pizan, The Book of Deeds of Arms and of Chivalry, pt.I, chaps. 2-5, 7, 20, 1410
Just cause in chivalric times = law, justice, defense, vengeance and conquest = defensive wars vs punitive wars

Question 9

The problem of “simultaneous ostensible justice”

Answer 9

Medieval context: If each side claimed to have justice on its side, how was one to determine where justice lays? => problem of relativism
“It if it agreed that both parties have right and justice on their side, they cannot lawfully fight each other, either defensively or offensively” (Vitoria, On the Law of War, 1532)
=> We must find the right criteria

Question 10

Walzer vs Rodin, traditionalists vs revisionists

Answer 10

Walzer (2006) identifies only two just causes: national defense and humanitarian intervention (punitive war?)
Why? => states protect the human rights of their citizens (individual security, the life of the community, the social contract)
Rodin (2002): “bloodless invasion objection” => no threat to security

Question 11

A. Legitimate self-defense

Answer 11

“They [the Utopians] loathe war as positively bestial […], and unlike almost all nations they consider nothing more inglorious than glory won in warfare. Therefore, […] they are reluctant to go to war and do so only to defend their territory, or to drive an invading enemy from the territory of their friends, or else, out of compassion and humanity” (Thomas More, Utopia, bk II, 1516)
Self defense = territorial/national defens

Question 11

A. Legitimate self-defense

Answer 11

“They [the Utopians] loathe war as positively bestial […], and unlike almost all nations they consider nothing more inglorious than glory won in warfare. Therefore, […] they are reluctant to go to war and do so only to defend their territory, or to drive an invading enemy from the territory of their friends, or else, out of compassion and humanity” (Thomas More, Utopia, bk II, 1516)
Self defense = territorial/national defens

Question 12

Case study Gulf War, 1991: from national to collective self-defense?

Answer 12

 1991: Iraq invades Kuwait
 US led a coalition legally justified by collective self defense (art. 51 – UN
Charter)
 No regime change => postwar: heavy sanctions aimed at dismantling WMD + use of limited force
 Ex: Desert Fox (Clinton): four day bombing campaign in 1998 targeted WMD dual use facilities
 Mixed results: key targets destroyed, setting back the program but further antagonized the regime => international agents = not allowed in the country anymore
 Collective self defense? Individual self defense?

Question 13

Preventive or preemptive self defense?

Answer 13

• Prevention vs preemption
• Counterfactual thinking
• Risk adverse societies (Ulrich Beck, Risk Society: Towards a New Modernity, 1992)

Question 14

Preventive self-defense: the Caroline Test

Answer 14

 Caroline, 1837: British forces burn and sink an American ship suspected of delivering weapons to the Canadian independence movement
 Caroline test: preventive self defense must be “instant, overwhelming, and leaving no choice of means, and no moment for deliberation”
 Last resort (necessity) + proportionality

Question 15

Cases of preventive strikes: the Begin doctrine

Answer 15

 Operation Opera, Osirak, 1981
 Condemnation by the UN: “clear violation of the Charter of the United
Nations and the norms of international conduct”
 Operation “Outside the Box”, Deir ez-Zor, 2007
 No international condemnation
 Use of cyberweapons vs Syria’s air-defense systems

Question 16

Ex: Changes of jus ad bellum from G.W. Bush to Barack Obama

Answer 16

2001: Afghanistan: Hunt down terrorists and overthrow Taliban regime
Bush administration recognized that “principles of traditional just war theory provide a framework for organizing critique of presumed US plans for Iraq” (2002)
National Security Strategy 2002: just cause includes regime change, preventive war
2010 National Security Strategy: emphasis on last resort

Question 17

B. Humanitarian intervention: from a punitive to a preventive conception of justice?

Answer 17

 Origin: theological, ok to wage punitive war?
 Justus hostis: the enemy is defined by the act he/she committed
 Grounded in a conception of retributive justice (war to enforce a conception of justice)
 Today: punition is not legitimate anymore because of moral pluralism
 Shift toward a preventive conception of Justice
 ID: to prevent a greater harm and enforce international Law

Question 18

Responsibility to protect (R2P)

Answer 18

 2001: Ad hoc international Commission on intervention and state sovereignty Report R2P
 2005 World Summit (para 138/139): “the responsibility to protect its population from genocide, war crimes, ethnic cleansing and crimes against humanity”
 Right to use military force by taking “collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including chapter VII, should peaceful means be inadequate and national authorities manifestly fail to protect their population from genocide, war crimes, ethnic cleansing and crimes against humanity”
 A success story in the history of norms?

Question 19

Michael Walzer on R2P, 2013

Answer 19

1. Protect from what? “Mass murder, ethnic cleansing on a large scale, mass rape, and state-sponsored terror (no civil war)”
2. Protect when? “As soon as the killing or the terror begins, the effort to stop it, by force if necessary (and it is usually necessary) must also begin”
3. Who should protect? “Anyone can, should”
4. What limits? “Chances of success + Proportionality”
5. When does responsibility end?
6. Regime change? Not necessarily: “Communism and democracy are political projects only - for what is involved is not the protection of lives but the promotion of an ideology. This may be the best ideology, but what is required in its promotion is political not military action. Protection, by contrast, requires whatever action is necessary”

Question 20

IV. The politics of just war: the West vs the rest

Answer 20

A normative change?
 Nature of conflict: civilians are more and more vulnerable (Susan Strange, “New Wars”)
 Sovereignty: from the sovereignty of the state to the sovereignty of the people + from nonintervention to moral responsibility?
 Individual rights prevail on collective rights/human rights prevail on the political rights of states
 Does it serve a cosmopolitan agenda?

Question 21

Cecile Fabre, Cosmopolitan wars

Answer 21

 The collective plays a central role in war since they are fought because of collective claims
 Political borders are arbitrary and irrelevant when we discuss rights
 How to reformulate norms from a radical individualist view?
 Cosmopolitanism = individuals all matter equally, irrespective of their membership in any political community

Question 22

Double standards for R2P?

Answer 22

 Clear intent of HR violations: Gaddafi: “we are coming tonight. There won’t be any mercy”
 US led coalition
 Consensus: SC + Arab League
 28 days
 Limited force: no fly zone + no
occupation forces

 Clear case of massacre (Un reports) US led coalition
 2011: first draft, ref. to R2P
 No consensus (4 vetos of Russia at
SC btw 2011 and 2014)  “Red line”?

Question 23

Mixed motives?

Answer 23

 Imperialism.
 Realism?
 The thought experiment – would it be justified for Sweden to launch a humanitarian intervention in the US for prisoners’ human rights?
 C.H. Wellman, “Is the US legal system a crime against humanity?” (2014 – video)

Question 24

Hannah Arendt, « Truth and politics », 1967

Answer 24

“No one has ever doubted that truth and politics are on rather bad terms with each other, and no one, as far as I know, has ever counted truthfulness among the political virtues”