Institutionalizing the just war

Philosophy and Public Affairs

Volumn 34, Issue 1, 2006, Pages 2-38

  Buchanan, Allen ^a  

^a DUKE UNIVERSITY   (United States)

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EID: 33645977484     PISSN: 00483915     EISSN: 10884963     Source Type: Journal    
DOI: 10.1111/j.1088-4963.2006.00051.x     Document Type: Article

References (30)

1. I am indebted to Robert O. Keohane for many insights that helped stimulate me to write this article and to Keohane, Jeff McMahan, Christopher (Kit) Wellman, and the Editors of Philosophy & Public Affairs, for valuable comments on earlier drafts.
2. I proceed on the assumption that the dominant stream of contemporary Just War Theory endorses this norm. In its earlier versions, Just War Theory included the idea that war could be waged to punish wrongs. However, in recent times the idea of war as punishment has fallen into disfavor, for good reasons. Nonetheless, one might argue that what I have called the Just War Norm includes an exception: War may be waged (as a last resort) to rectify wrongful conquest. Whether this is an exception depends upon how one construes "armed attack"in the JWN. If this includes an unjust occupation as an ongoing attack on the people of the unjustly conquered state, then war to rectify wrongful conquest is not an exception to the JWN but rather is encompassed by it. If one believes that this is an implausible construal of "armed attack," then the JWN can be reformulated to include this exception. The two justifications I am concerned with in this article, the Preventive Self-Defense Justification and the Forcible Democratization Justification, are challenges to the JWN regardless of whether it is understood to cover war to rectify unjust conquest or not.
3. An exception is Allen Buchanan and Robert O. Keohane, "The Preventive Use of Force: A Cosmopolitan Institutionalist Perspective, "Ethics & International Affairs 18 (2004): 1-22.
4. David Luban, "Preventive War, "Philosophy & Public Affairs 32 (2004): 207-48,
5. Richard Miller's valuable discussion of humanitarian military intervention is a notable exception. Richard W. Miller, "Respectable Oppressors, Hypocritical Liberators: Morality, Intervention, and Reality,"in Ethics and Foreign Intervention, ed. Deen K. Chaterjee and Don E. Schied (Cambridge: Cambridge University Press, 2003), p. 215.
6. "National Security Strategy of the United States of America September 2002,"p. 6; available at . This document misleadingly uses the term 'preemptive,' which in standard international legal usage refers to efforts to thwart an imminent attack, to cover preventive self-defense, that is, defensive action against a temporally distant anticipated harm.
7. Luban's view of justified preventive war, which I critique below, incorporates something like the notion of a dire harm, but does not include the crucial requirement that the risk of harm must be wrongfully imposed.
8. Arnold H. Lowey, "Conspiracy,"in Criminal Law in a Nutshell (St. Paul, Minn.: West Group, 2000), p. 260; and Joshua Dressler, "Inchoate Offenses,"in Cases and Materials in Criminal Law, 2nd ed. (St. Paul, Minn.: West Group, 1999), p. 765.
9. Russell Powell, "The Law and Philosophy of Preventive War: An Institution-Based Approach to Collective Self-Defense in Response to Mega-Terrorism" (unpublished manuscript), builds on the Institutionalist approach to preventive force developed in Buchanan and Keohane and argues that the law of attempts is the more useful analogy because, unlike the law of conspiracy, it does not require two or more parties working in concert. Powell's paper provides valuable critical overview of the international legal issues regarding preventive force.
10. It might be argued that there is still a problem: At least some of the enemy soldiers who may be targeted by the preventive action may not, in any significant sense, be part of the conspiracy. I argue that there are two distinct conditions under which such individuals may be legitimate targets: When they are culpable for putting themselves at the disposal of governments whose behavior indicates that are likely to engage in conspiracies to commit aggression or when the unjust harm that will occur if preventive action is not taken is so great that it is justifiable to attack them in spite of their lack of culpability, given that reasonable efforts have been made to apprise them that the action about to be taken against them is not an unjust attack but rather a justified preventive action and that they have been given the opportunity to surrender or step aside. Allen Buchanan, "The Justification of Preventive War,"in Preemption: Military Action and Moral Justification, ed. Henry Shue and David Rodin (Oxford: Oxford University Press, forthcoming, 2006).
11. David Luban, "Preventive War,"p. 230.
12. Ibid., pp. 229-31.
13. I thank Jeff McMahan for this example.
14. Buchanan and Keohane, "The Preventive Use of Force: A Cosmopolitan Institutionalist Proposal."
15. Ibid., pp. 10-16.
16. In saying that preventive self-defense is justifiable only if the decision to use it is made within such institutional constraints, we were not endorsing the view that preventive force is only justified if the decision to use it receives Security Council authorization. On the contrary, we argued that the Security Council does not satisfy the accountability requirements we outline, chiefly because there is no effective accountability for the exercise of the permanent member veto.
17. I am indebted to Rachel Zuckert for making this point clear to me.
18. Some might object to this assumption, contending that nondemocratic states can do a creditable job of protecting basic human rights, in spite of the fact that the most massive violations of citizens' basic human rights by their governments in modern times have been perpetrated by dictatorships, not democratic governments. The plausibility of this objection depends in part upon how high one sets the bar for being democratic. If one's definition of 'democracy' includes the requirement that major government officials are subject to accountability through periodic elections, then a strong case can be made that even basic human rights are insecure where democracy is not present. See, for example, Amartya Sen's empirically based argument that famines do not occur in democracies. Amartya K. Sen, Poverty and Famines: An Essay on Entitlement and Deprivation (New York: Oxford University Press, 1981);
19. "Development: Which Way Now? "Economic Journal 93 (1983): 745-62;
20. Amartya K. Sen and Jean Dreze, Hunger and Public Action (Oxford: Clarendon Press, 1989).
21. See David Beetham, Democracy and Rights (Cambridge, England: Polity Press, 1999), pp. 89-114.
22. (It may not be an accident that Rawls's example of a nondemocratic state that protects basic human rights is an imaginary society, Kazanistan. See John Rawls, The Law of Peoples [Cambridge, Mass.: Harvard University Press, 1999], pp. 5, 64.) In my judgment, the view that basic human rights are insecure without democracy is sufficiently plausible to make worthwhile the project of trying to ascertain the conditions under which forcible democratization would be justified
23. Jeff McMahan, "The Ethics of Killing in War," Ethics 114 (2004): 693-733.
24. Any attempt to determine whether the Antipaternalism Principle is satisfied is complicated by the fact that the costs of successful forcible democratization are likely to be disportionately borne by the present population, while the benefits largely will accrue to later generations. Notice, however, that this problem is not unique to forcible democratization from without. It also arises for revolution. Furthermore, support for democratic revolution is not likely to be anywhere near unanimous even among those now living. These reflections raise an interesting question whose exploration must await another occasion: Is forcible democratization from without significantly more morally problematic than democratic revolution? I am indebted to an Editor of Philosophy & Public Affairs for prompting me to consider this issue.
25. An Editor of Philosophy & Public Affairs suggested this idea to me.
26. In particular, it would be important not to allow the goal of democratization to be replaced with that of creating a particular kind of democratic society that the forcible democratizer happens to favor, for example, one that features relatively unregulated markets or one that cooperates in the forcible democratizer's geopolitical projects or is willing to sell the forcible democratizer oil at favorable prices. The difficulty of specifying, without overspecifying, the notion of democracy should not be underestimated. The institutional arrangements would have to avoid two errors: Making the goal of democracy so indeterminate as to invite goal substitution, on the one hand, and making it so determinate ex ante as to deprive the forcible democratizers of the ability to make reasonable revisions of their initial plans for how to achieve democracy during the process of implementation, on the other. I thank Christopher Griffin for this point. In addition, there is the thorny problem of how the democratization should take into account input from the people themselves as to what particular form of democracy they want, independently of whether what they want is in fact judged to be optimal by the democratizing force.
27. John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971), pp. 415-16.
28. The literature on democratization indicates that there is a great deal of uncertainty as to the conditions under which democracy is likely to occur. For contrasting prominent views, see the following works: Fareed Zakaria, The Future of Freedom: IIliberal Democracy at Home and Abroad (New York: W. W. Norton & Co., 2003); Samuel P. Huntington, The Third Wave: Democratization in the Late Twentieth Century (Norman, Okla.: University of Oklahoma Press, 1993); Adam Przeworski, Michael E. Alvarez, Jose Anonio Chibub, and Fernando Limong, Democracy and Development: Political Institutions and Well-Being in the World, 1950-1990 (Cambridge: Cambridge University Press, 2000).
29. Detlef Junker, ed., The United States and Germany in the Era of the Cold War, 1945-1990, A Handbook, Vol. I: 1945-1968. John W. Dower, Embracing Defeat: Japan in the Wake of World War II (New York: W. W. Norton & Co./New Press, 1999).
30. I am grateful to Robert O. Keohane for suggestions about what should be included in the list of "counting principles."