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liberty and subsistence. States failing any of these criteria have no right to govern or to go to war. We can speak of states satisfying these criteria as legitimate, or “minimally just”, political communities.
Why do we need to talk about these rights? First, to give state rights moral legitimacy and to avoid fetishizing state rights for their own sake. Second, to describe what is wrong about aggression and why it justifies war in response. Aggression is so serious because it involves the infliction of physical force in violation of the most elemental entitlements people and their communities have: to survive; to be physically secure; to have enough resources to subsist at all; to live in peace; and to choose for themselves their own lives and societies. Aggression thus attacks the very spine of human civilization itself. This is what makes it permissible to resist with means as severe as war, provided the other jus ad bellum criteria are also met. Third, talk of legitimacy is essential for explaining justice in a civil war, wherein there isn't classical, crossborder aggression between competing countries but, rather, a vicious fight over the one state between rival communities within a formerly united society. The key to discerning morality in such cases revolves around the idea of legitimacy: which, if any, side has minimal justice? Which side is defending—or is seeking to establish—a legitimate political structure in our three-fold sense? That's the side which it is permissible to: a) be part of; or b) if you're an outsider, to support.
How does this conception of just cause impact on the issue of armed humanitarian intervention? This is when a state does not commit cross-border aggression but, for whatever reason, turns savagely against its own people, deploying armed force in a series of massacres against large numbers of its own citizens. Such events happened in Cambodia and Uganda in the 1970s, Rwanda in 1994, Serbia/Kosovo in 1998-9 and in Sudan/Darfur from 2004 to the present. Our definitions allow us to say it's permissible
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to intervene on behalf of the victims, and to attack with defensive force the rogue regime meting out such death and destruction. Why? There's no logical requirement that aggression can only be committed across borders. Aggression is the use of armed force in violation of someone else's basic rights. That “someone else” might be: a) another person (violent crime); b) another state (international or “external” aggression); or c) many other people within one's own community (domestic or “internal” aggression). The commission of aggression, in any of these forms, causes the aggressor to forfeit its rights. The aggressor has no right not to be resisted with defensive force; indeed, the aggressor has the duty to stop and submit itself to punishment. If the aggressor doesn't stop, it is entirely permissible for its victims to resort to force to protect themselves – and for anyone else to do likewise in aid of the victims. Usually, in humanitarian intervention, armed aid from the international community is essential for an effective resistance against the aggression, since domestic populations are at a huge disadvantage, and are massively vulnerable, to the violence of their own state.
Terrorists can commit aggression too. There's nothing to the concept which excludes this: they, too, can deploy armed force in violation of someone else's basic rights. When they do so, they forfeit any right not to suffer the consequences of receiving defensive force in response. Indeed, terrorists almost always commit aggression when they act, since terrorism is precisely the use of random violence—especially killing force—against civilians, with the intent of spreading fear throughout a population, hoping this fear will advance a political objective. On 9/11, the alQaeda terrorist group clearly used armed force, both to gain control of the planes and then again when using the planes as missiles against the targets in The Pentagon and The World Trade Center. This use of armed force was in violation of America's state rights to political sovereignty and territorial integrity, and to all those people's human rights
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to life and liberty. The terrorist strikes on 9/11 were aggression – defiantly so, deliberately modelled after Pearl Harbor. As such, they justified the responding attack on the Taliban regime in Afghanistan. The Taliban had sponsored and enabled al-Qaeda's attack, by providing resources, personnel and a safe haven to the terrorist group.
An important issue in just cause is whether, to be justified in going to war, one must wait for the aggression actually to happen, or whether in some instances it is permissible to launch a pre-emptive strike against anticipated aggression. The tradition is severely split on this issue. Vitoria said you must wait, since it would be absurd to “punish someone for an offense they have yet to commit.” Others, like Walzer, strive to define the exceptional criteria, stressing: the seriousness of the anticipated aggression; the kind and quality of evidence required; the speed with which one must decide; and the issue of fairness and the duty to protect one's people. If one knows a terrible attack is coming soon, one owes it to one's people to shift from defense to offense. The best defense, as they say, is a good offense. Why let the aggressor have the upper hand of the first strike? But that's the very issue: can you attack first and not, thereby, yourself become the aggressor? Can striking first still be considered an act of defence from aggression? International law, for its part, sweepingly forbids pre-emptive strikes unless they are clearly authorized in advance by the UN Security Council. These issues, of course, were highlighted in the run-up to the 2003 U.S.-led pre-emptive strike on Iraq. The U.S. still maintains, in its National Security Strategy, the right to strike first as part of its war on terror. Many other countries find this extremely controversial.
2. Right intention. A state must intend to fight the war only for the sake of its just cause. Having the right reason for launching a war is not enough: the actual motivation behind the resort to war must also be morally appropriate. Ulterior motives, such as a power or land grab, or irrational
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motives, such as revenge or ethnic hatred, are ruled out. The only right intention allowed is to see the just cause for resorting to war secured and consolidated. If another intention crowds in, moral corruption sets in. International law does not include this rule, probably because of the evidentiary difficulties involved in determining a state's intent.
3.Proper authority and public declaration. A state may go to war only if the decision has been made by the appropriate authorities, according to the proper process, and made public, notably to its own citizens and to the enemy state(s). The “appropriate authority” is usually specified in that country's constitution. States failing the requirements of minimal justice lack the legitimacy to go to war.
4.Last Resort. A state may resort to war only if it has exhausted all plausible, peaceful alternatives to resolving the conflict in question, in particular diplomatic negotiation. One wants to make sure something as momentous and serious as war is declared only when it seems the last practical and reasonable shot at effectively resisting aggression.
5.Probability of Success. A state may not resort to war if it can foresee that doing so will have no measurable impact on the situation. The aim here is to block mass violence which is going to be futile. International law does not include this requirement, as it is seen as biased against small, weaker states.
6.Proportionality. A state must, prior to initiating a war, weigh the universal goods expected to result from it, such as securing the just cause, against the universal evils expected to result, notably casualties. Only if the benefits are proportional to, or “worth”, the costs may the war action proceed. (The universal must be stressed, since often in war states only tally their own expected benefits and costs, radically discounting those accruing to the enemy and to any innocent third parties.)
Just war theory insists all six criteria must each be fulfilled for a particular declaration of war to be justified: it's all or no justification, so to speak. Just war theory is thus
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quite demanding, as of course it should be, given the gravity of its subject matter. It is important to note that the first three of these six rules are what we might call deontological requirements, otherwise known as duty-based requirements or first-principle requirements. For a war to be just, some core duty must be violated: in this case, the duty not to commit aggression. A war in punishment of this violated duty must itself respect further duties: it must be appropriately motivated, and must be publicly declared by (only) the proper authority for doing so. The next three requirements are consequentialist: given that these first principle requirements have been met, we must also consider the expected consequences of launching a war. Thus, just war theory attempts to provide a common sensical combination of both deontology and consequentialism as applied to the issue of war.
2.2. Jus in bello
Jus in bello refers to justice in war, to right conduct in the midst of battle. Responsibility for state adherence to jus in bello norms falls primarily on the shoulders of those military commanders, officers and soldiers who formulate and execute the war policy of a particular state. They are to be held responsible for any breach of the principles which follow below. Such accountability may involve being put on trial for war crimes, whether by one's own national military justice system or perhaps by the newly-formed International Criminal Court (created by the 1998 Treaty of Rome).
We need to distinguish between external and internal jus in bello. External, or traditional, jus in bello concerns the rules a state should observe regarding the enemy and its armed forces. Internal jus in bello concerns the rules a state must follow in connection with its own people as it fights war against an external enemy.
There are several rules of external jus in bello:
1. Obey all international laws on weapons prohibition. Chemical and biological weapons, in particular, are