ALLIES IN TENSION: IDENTIFYING AND BRIDGING THE RIFT BETWEEN R2P AND JUST WAR

Abstract

It has become almost commonplace to regard the concepts of Responsibility to Protect (R2P) and Just War as not only compatible but rather closely connected. Contrary to this position I argue here that some Just War criteria are in significant tension with R2P. This tension results from the fact that Just War only makes war permitted while R2P prescribes an obligation. But R2P and Just War not only are in significant tension, but also suffer from inverted weaknesses: R2P is too demanding while Just War is not demanding enough. Granting that R2P implies a duty to protect, I argue that such a duty is too demanding since it conflicts with the principle of ‘ought implies can’, whereas Just War is arguably not far-reaching enough as ‘duties-talk’ does not fit into its structure. I finish by proposing an interpretation of R2P and Just War which not only eliminates the tension but also compensates for these weaknesses.

Keywords:

• responsibility to protect
• just war
• duty
• permission
• ought implies can

Notes

1. However, in contrast to my argument in this paper, he does not consider the relationship between R2P and the Just War criteria.

2. Fully compatible with my argument, Thomas Weiss states that the ICISS does not claim that there are ‘legal obligations’ to protect (2006: 744).

3. ‘Should’ as well as ‘ought’ are so-called ‘obligation markers’ (Myhill 1997).

4. Here I focus on the responsibility to protect by military means despite the fact that the concept of R2P includes other responsibilities as well, such as the responsibility to prevent and rebuild (ICISS 2001). However, my argument applies in principle to these duties too.

5. It is sometimes argued that the concepts of permission and obligation are not exhaustive since an action can be judged as desirable without being obligatory. This class of actions, beyond the call of duty, is sometimes called supererogation, but its status is quite controversial since such a class of actions gives rise to a paradox: ‘How can the moral good not be required as a duty?’ (Heyd 2006: 22). It is outside the scope of this article to discuss whether or not supererogation exists. However, considering that R2P so far mainly has been discussed in terms of obligation rather than in terms of desirability and that my aim here is to discuss and evaluate the prevalent interpretations of R2P, I will restrict myself to the concepts of permission and obligation.

6. This fundamental difference between an obligated and a permitted action remains even if the distinction between imperfect and perfect duties is introduced. While it sometimes might be unclear to whom a specific duty should be assigned (which, according to some, make it imperfect), it is still good to do a (imperfect) duty and bad to not to do it. As Terry Nardin notes, the mere concept of an optional duty is incoherent since a duty by definition is obligatory (2006b). The difference between permission and duty consequently remains, even if the duty in question is imperfect.

7. See also Fixdal & Smith (1998) for the same conclusions. Also, Jean Bethke Elshtain argues that the ‘obligations of caritas in Christian Theology are defining features of the just war thinking of such theologians as St. Augustine and St. Thomas Aquinas’ (2003: 69).

8. However, also in a specific Christian and/or natural law context, where the normative ground for a duty to intervene exists, the structure of the criterion approach must be adapted to duties-talk.

9. According to Gregory Mellema, this principle is widely accepted (2001: 425), but this does not mean that the principle of ‘ought implies can’ is undisputed (see for example Widerker 1991; Mellema 2001; Stern 2004). Robert Stern argues, ‘it is rarely that the principle of “ought implies can” has been rejected altogether; rather, it is usually claimed that while there are clearly some arguments in its favor, these nonetheless establish the principle in a fairly weak form, so that, in fact, it cannot be used to do what it is being asked to do by one side or another in the dispute’ (2004: 42).

10. A more radical conclusion would be to claim that a duty does not even exist if the ability to fulfill the duty is lacking. Peter B.M. Vranas claims that it is possible to argue that the ‘obligation expires once the inability sets in’ (2007: 176). From my point of view, when the ability to fulfill duties is lacking, it does not matter whether duties are considered non-existent or ‘only’ unfair.

11. For a defense of the analogy between states and persons, see Beitz (1979), referred to in Nardin (2006b).