Just War and Human Rights

Fighting with Right Intention

Todd Burkhardt

• Publisher: SUNY Press
• Year: 2017
• Print ISBN:
  9781438464022
  9781438464039
• eBook ISBN:
  9781438464046
• Topic: Politics & International Relations
• Subtopic: Ethics & Moral Philosophy
• Index: Politics & International Relations

Warfare in the twenty-first century presents significant challenges to the modern state. Serious questions have arisen about the use of drones, target selection, civilian exposure to harm, intervening for humanitarian reasons, and war as a means of forcing regime change. In Just War and Human Rights Todd Burkhardt argues that updating the laws of war and reforming just war theory is needed. A twenty-year veteran of the US Army, Burkhardt claims that war is impermissible unless it is engaged, fought, and concluded with right intention. A state must not only have a just cause and limit its war-making activity in order to vindicate the just cause, but it must also seek to vindicate its just cause in a way that yields a just and lasting peace. A just and lasting peace is motivated by the just war tenet of right intention and predicated on the realization of human rights. Therefore, human rights should not only dictate how a state treats its own people but also how a state treats the people of other countries, insulating them and protecting innocent civilians from the harms of war.

1

Right Intention and a Just and Lasting Peace

Historically, the norm of right intention has been a constitutive part of the ad bellum phase of just war theory, and “aims to overcome the possibility that a state may have a just cause, but still act from a wrong intention.”1 Wrong intentions aim or intend acts or effects (e.g., punishing the state one is at war with, using the resources of that state, causing more destruction than is needed, or pursuing a war longer than is necessary) that are not warranted by and do not serve to vindicate a state’s 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; the only right intention allowed is to see the just cause for resorting to war secured and consolidated”2 Without the condition of right intention, “the connection between one’s action and the reason that justifies it remains contingent, and this allows for the possibility that just cause could be only a pretext or excuse for bellicose action aimed at some further goal beyond that which one’s justifying reason supports, or at some completely independent goal that can be pursued using the justifying reasons as a rationalization only.”3

Having a just cause does not necessarily entail that the state’s leaders and citizens will not have ulterior motives. However, as Joseph Boyle posits, “This does not mean that one cannot engage in war in anticipation of benefits that go beyond one’s justified war aims. Those aims are goals that instantiate, often in a minimal way, the good of peace.”4 Moreover, “further goals that instantiate that good and that can be seen as possibilities if one’s war aims are realized are thus justified if the war aims are.”5 A state can have a just cause and yet (its leaders and/or citizens) still hope for, perhaps might even be moved by a desire for, many other results (improving political and economic ties and/or securing of other national interests: maintaining open sea lanes, stabilizing the world’s oil supply distribution, and having more influence in regional or global politics) in addition to vindicating its just cause. Achieving these other types of ends does not seem particularly problematic as long as these results and the means to achieve them are not inconsistent with the norm of right intention. If vindicating a just cause with right intention can possibly be expected to bring other goods, then those are acceptable. In a sense, “[t]hat intention was for actions and benefits that became real prospects once the normal international relationships were restored by the successful achievements of the war aims.”6

Although right intention has habitually been tied to just cause as a way to ensure that the fighting is only conducted long enough to vindicate the rights that were originally violated, this cannot be all that “right intention” entails. Fighting with right intention is not merely a matter of having a just cause and fighting with the intention to vindicate one’s just cause. On my view, right intention is a separate requirement from just cause, with its own content. In order permissibly to go to war, a state must not only have a just cause and limit its war-making activity to that necessary to vindicate the just cause, but it must also seek to vindicate its just cause in a manner likely to yield a “just and lasting peace,” which is the overarching result at which acts of war must be directed.

In this book, I try to articulate when states may resort to force justly and that those states must have a right intention. Before attempting to discuss right intention, I would first like to elaborate on what the concept of Just Cause entails because just cause undergirds right intention. That is, right intention doesn’t follow if there isn’t a just cause in the first place.

Just Cause is a foundational principle regarding the morality of war (jus ad bellum) and is a familiar and traditional principle of justice. It is a principal tenet that at least dates back to St. Augustine (a fourth-century theologian and philosopher). Just cause is what gives a political community the moral warrant or justification to use armed force. The reason a political community or state (I use the term state to refer to the governance of a country) has a just cause to resort to armed conflict is because the rights that a state possesses has been unjustly or wrongly violated.

St. Thomas Aquinas (a thirteenth-century theologian and philosopher) in his work Summa Theologica posits, “Namely that those who are attacked, should be attacked because they deserve it on account of some fault.”7 Aquinas’s point is that a state is just in responding to a wrong—the aggression—it has suffered. Acts of force that are unwarranted constitute aggression, and, “Aggression is the name we give to the crime of war.”8 Michael Walzer asserts that “[w]e know the crime because of our knowledge of the peace it interrupts—not the mere absence of fighting, but peace-with-rights, a condition of liberty and security that can exist only in the absence of aggression itself.”9 Acts of aggression “involve the infliction of serious and direct physical force,”10 which violates not only a state’s rights to political sovereignty, self-determination, and territorial integrity but also the basic human rights of that state’s citizens.

Acts or wars of aggression not only interrupt the victim state’s autonomy and governance but also wrongly jeopardize if not completely infringe upon the victim state’s citizens’ basic human right to physical security (as well as possibly the human right to subsistence and basic liberties). The wrongness of aggression is that it “forces men and women to risk their lives for the sake of their rights,”11 which men and women should not have to fight for because, fundamentally, men and women are entitled to these rights. However, aggression confronts these men and women “with a choice: your rights or (some of) your lives!”12

And so, men and women unduly forced into such a position of confronting an act of aggression have to respond. “Groups of citizens respond in different ways to that choice, sometimes surrendering, sometimes fighting, depending on the moral and material condition of their state and army, but they are always justified in fighting.”13 States have both legal and moral rights to resort to actual, intentional, and widespread acts of self-defense (physical resistance/force) or collective self-defense (come to the defense of an ally or coalition partner who is being attacked) when the victim of aggression.14 St. Augustine declared: “A just war is wont to be described as one that avenges wrongs, when a nation or state has to be punished [stopped], for refusing to make amends for the wrongs inflicted by its subjects, or restore what it has seized unjustly.”15 Now, granted, punitive wars (or wars of punishment) are no longer seen as just, but St. Augustine’s words remain prevalent because we still recognize today that a state that makes no amends for its violations or does not restore what it has seized unjustly needs to be stopped. And using force to stop those acts of aggression is justified.

Although “[w]ar should be understood as an actual, intentional, and widespread armed conflict between political communities,”16 there may be acts of aggression that are actual and intentional but are not actually widespread. These can constitute a just cause of allowing military armed response but based on other jus ad bellum factors (proportionality, reasonable chance of success, last resort, etc.), it is determined that full-blown war is not the best option and so limited force or jus ad vim (justified force short of war) such as incorporating special forces units, drone strikes, security forces assistance, or a combination thereof is a reasonable and justifiable course of action in a given circumstance.

In order permissibly to go to war, a state (no matter how large or small it is) must not only have a just cause and limit its war-making activity to that which is necessary to vindicate the just cause. This suggests that war as an act of self-defense or collective defense should only be waged until the rights that were violated by the aggression are secured and no longer threatened. So the proper aim of a just war “is the vindication of those rights whose violation grounded the resort to war in the first place”17 This does not necessary mean that State A successfully defends itself against an offensive operation from aggressor State B and then must stop fighting. In a sense, it depends on the magnitude, scope, and intention of the aggressor state. In one particular instance that might be enough, but in another, extensive offensive operations into State B might be warranted in order to actually secure State A’s political sovereignty and its right to exercise its self-determination, to maintain its territorial integrity, and to protect the human rights of its citizens. However, “The principle of rights vindication forbids the continuation of the war after the relevant rights has, in fact, been vindicated. To go beyond that limit would itself become aggression: men and women die for no just cause.”18 That is, that men and women—both soldiers and civilians from both sides—would continually be subjected to the harms of war, even though the state that resorted to war justly as an act of self-defense no longer is warranted to continue the fight because the victim state’s rights are no longer violated, threatened, or in jeopardy of being threatened.

I attempt to articulate and illuminate the jus ad bellum tenet of Right Intention throughout this book. However, I do recognize that the in-depth analysis of what right intention entails might not always fit a given scenario. Although all just wars should be waged with right intention, the level of commitment might be less than others, which doesn’t mean that right intention is not present or that its absence is somehow excusable. Although every state has the moral responsibility to vindicate its just cause in a manner likely to yield a just and lasting peace, there is a comparable difference, for example, between actions such as the 2003 U.S. invasion in Iraq and the 1944 uprising against the Nazi occupation army in Warsaw, Poland. The former example and ones similar to it will be my focus, whereas the latter example of attempting to repel an unjust occupation force will not. Understandably, Poland’s sole focus was on expelling the Nazis from their country in order to restore its boundaries, its state’s right to governance, and its citizens’ basic human rights, without worrying about developing a just and lasting peace per se. It seems unreasonable to suggest that Poland—whose existence was in serious jeopardy due to Nazi brutality, subjugation, and extermination—should have had to worry about setting the conditions for developing a just and lasting peace when it teetered on the verge of annihilation. That being said, the Polish home army and its partisan forces still were subject to the moral responsibility to engage only legitimate enemy combatants, offer quarter to those that surrendered, and limit collateral damage. Doing so would have been consistent with Poland vindicating its just cause in a manner that would have been likely to yield a just and lasting peace. That is, Poland did not conduct acts of aggression, but rather defended itself justly. Poland acting in this way set the conditions for a possible just peace once the Nazi regime was removed from power. I am aware, though, that other particular states (in a given situation) might only attempt to defeat the aggressor state’s offensive strike force as it rolls across its border because, given the strength of such an aggressor, the goal of achieving a just and lasting peace might be unrealizable. Yet a defensive war is just, even though the victim state only attempts to secure or vindicate its own rights, which have been violated, instead of trying to achieve a just peace but rather only a cessation of hostilities (its state has stopped the attack and expelled aggressor forces from its state). Although the war is over, the regime of the aggressor state still remains in power because the victim, or a coalition of states, is/are too weak or is/are currently unable to remove the outlaw state’s regime.

Although these are possible scenarios—among many types of scenarios—I do not plan on covering them all. Rather, my focus throughout this book remains in the vein of first world powers or other states that are not on the verge of destruction or capitulation but rather have the means (political, military, informational, and economic resources) to realize and actualize what right intention entails, as opposed to the example cited above of Poland in 1944, in which the main concern—quite legitimately—was the nation’s own existence.

In order permissibly to go to war, a state must not only have a just cause and limit its war-making activity to that which is necessary to vindicate the just cause, but it must also seek to vindicate its just cause in a manner likely to yield a just and lasting peace, which is the overarching result at which acts of war should be directed. In order to establish conditions for a just and lasting peace, two elements must be addressed: peace and justice.

That is to say, the intended goals of waging war are (1) those that derive from the requirement that a state aim to achieve peace (by fighting with restraint, immunizing civilians from the harms of war, and educating its military); and (2) those that derive from the requirement that a state aim to achieve justice (by fighting only until the rights that were violated have been vindicated, respecting human rights, leaving the enemy in a position to secure human rights, allowing for political self-determination, tolerating regimes that honor basic human rights, and supporting a public political culture that adheres to just war).

Before moving farther, I think some historical context is not only necessary in order to illuminate but to also gain an appreciation for the concept of right intention, which has been a part of the just war tradition since at least the fourth century. Although right intention has been a guiding principle in just war, it has lost some traction throughout the centuries. With this in mind, my aim is to give the concept of right intention the prominence it deserves.

St. Augustine (AD 354–430) is commonly referred to as the father of the just war tradition because of his works, as found in his sermons, writings, pastoral letters, and in particular his book De Civitate Dei (The City of God). It is not that Augustine wrote solely on war; rather, he wrote about war while discussing other critical ideas in society: politics, governance, Christianity, peace, etc. Augustine, through his writings, attempted to set parameters that allowed for only just reasons to resort to war. He also declared that military acts should only be pursued out of necessity, and that the harms of war should be restricted as best as possible. Augustine’s work privileges the concept of right intention as a fundamental principle of just war that spans all phases of war. However, through the centuries, Augustine’s perspective and influence regarding right intention, though it still has momentum, has been reduced to that of addressing merely one phase of war, as a principle that can only be consistent with a state’s reason of when to resort to war.

Yet, there is much more to St. Augustine’s concept of right intention. This be...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Preface
• Acknowledgments
• Introduction
• Chapter 1. Right Intention and a Just and Lasting Peace
• Chapter 2. Reasonable Chance of Success: Analyzing Postwar Requirements in the Ad Bellum Phase
• Chapter 3. Post Bellum Obligations of Noncombatant Immunity
• Chapter 4. Negative and Positive Corresponding Duties of the Responsibility to Protect
• Chapter 5. Justified Drone Strikes are Predicated on Responsibility to Protect Norms
• Chapter 6. Updating the Fourth Geneva Convention
• Conclusion
• Notes
• Bibliography
• Index
• Vita
• Back Cover