The Legalist Paradigm represents the dominant thinking in the international law of armed conflict. It is an attempt to outline a theory of aggression, and a basis of judgment on the just or unjust nature of a war. It places its claim and is based on six fundamental principles: firstly, that there exists an international society of independent states made up of individuals, secondly that members of the international society have the right to political sovereignty in addition to territorial integrity, that any use of force or imminent threat of force by one state against another constitutes aggression and is criminal, that violence is justified to defend or as a means of law enforcement by a victim or any other member of the international society, …show more content…
that nothing but aggression can justify war, and lastly, the sixth principal states that once an aggressor state is militarily repulsed, it can be punished. The purpose in proposing such a paradigm is to starkly limit the occasions in which the legitimate use of military force is justified. Walzer in his Just and Unjust Wars offers five revisions to the Legalist Paradigm in which one can determine when one state can practice aggression against another and on what grounds such aggression can be constituted as immoral. I will outline the five revisions to the Legalist Paradigm then go further to explain in depth the fourth revision elaborating on my personal opinion in regards to such revision. This essay serves to focus on the revision which proposes that states can be invaded and wars justly begun to rescue people threatened with massacre and argues in favour of such revision. The first revision Walzer puts forward is that which states war is justified not only in response to actual aggression but when a sufficient threat exists. This is stated in the novel as “states may use military force in the face of threats of war, whenever the failure to do so would seriously risk their territorial integrity or political independence.” For Walzer, aggression constitutes the forceful violation of political sovereignty of independent states by one state to another. This must encompass three criteria in order to constitute a ‘sufficient threat’: a manifest intent to injure, a degree of active preparation on the part of the aggressive state that makes the intent a positive danger, and a general situation in which withholding would greatly augment the risk. Although the legitimacy of first strikes is not going to be determined at the point of imminent attack, the main principal for this revision lies in the sufficient threat. The proceeding three revisions Walzers puts forward in regards to the Legalist Paradigm all pertain to the concept of intervention. The strict non-interventionist policy encompassing the first second and fifth principles in the legalist paradigm are largely on the basis of self-determination of states. Walzer states however, that there are three occasions in which it is permitted, or even required, to intervene. The second revision therefore is “when a particular set of boundaries clearly contain two or more political communities, one of which is already engaged in a large scale military struggle for independence; that is, when what is at issue is session or ‘national liberation.’” This is only justified in the case that the political community has legitimate claim. The third revision states . “W]hen the boundaries have already been crossed by the armies of a foreign power, even if the crossing has been called for by one of the parties in a civil war, that is, when what is at issue is counter-intervention” This is largely to balance the powers of prior interventions. The fourth revision pertaining to intervention states that was can justly be begun “When the violation of human rights within a set of boundaries is so terrible that it makes talk of community or self-determination...seem cynical and irrelevant, that is, in cases of enslavement or massacre.” This is categorized as a humanitarian crisis or humanitarian intervention and will be the revision closely examined within this essay. The final revision of the Legalist Paradigm concerns the victory of a war. This fifth revision focuses on the conservative ends of war and the conception of punishment. Once a war has be fought and won, Walzer states that “the fighting should stop. Soldiers killed beyond this point die needlessly.” And to force them into such position is “a crime akin to aggression itself.” This thus implies that wars need to be limited and should value human life. In Walzers words “Just wars are conservative in character; it cannot be their purpose… to stamp out illegal violence, but only to cope with particular violent acts. Hence the rights and limits fixed by the argument for justice: resistance, restoration, reasonable prevention” It needs to be remembered that the object of war is a better state of peace. The primary revision concentrated on within this essay is the fourth revision, that of humanitarian intervention.
This strong mindset of prohibition initiated Walzer relaxation of the moral code it stands by, thus leading to his revisions of aspects one, two and five of the Legalist Paradigm. The revision is in regards to the second principal of the legalist paradigm placing the internal societal law of territorial integrity and political sovereignty above all, the third aspect proposing that the use of threat against the political sovereignty and territorial integrity of another state constitutes aggression, and fifth principal which paramoutly states that nothing but aggression can justify a war. Together these values create a strict non-interventionist policy in which it would always be unjust for a member of the international community to involves themselves in the affairs of a sovereign nation not directly pertaining to them. Walzer revises the legalist paradigm to allow for the intervention on behalf of the international community. The concept of humanitarian intervention is disputed, with Walzer defining it as a response “against the enslavement or massacre of political opponents, national minorities, and religious sects” for if the international community does not intervene, “there may well be no help unless help comes from …show more content…
outside.” When it comes to intervening within a sovereign state on humanitarian grounds, it is important to assess the intervention carefully. There is a conjecture in favour of sovereignty stating the intervention must be justified as ‘an exception to the general rule, made necessary by the urgency or extremity of a particular case’. This then places the burden on the intervening states of justifying that the intervention was in fact exceptional and the victim could not be protected in other ways. Such burden becomes especially heavy when the intervention is violent, however with the requirement of proof lying solely in the political leader whose decision it was to intervene. Indeed “When a people are being massacred, we don’t require that they pass the test of self-help before coming to their aid. It is their very incapacity that brings us in.” It has become apparent that the international sphere is far more willing to aid in some humanitarian interventions than others. Humanitarian Interventions are often criticized for the intervening states having ulterior motives for which on its own is not an argument against the concept of interventions on humanitarian grounds. Walzer states that “It requires that the intervention involves military action on behalf of the oppressed people, and it requires that the intervening state enter, to some degree into the purposes of those people.” Due to the eagerness of states to invade on another, such interventions must be assess with great care. It must to the greatest degree be for the benefit of those threated with massacre or endangered through large scale violations of human rights. Walzer makes a point of mentioning that there have been very few (if any) humanitarian interventions committed with wholly pure motives. Multilateralism is often evoked as an argument however with Walzer specifying that this does not necessarily less selfish. An aspect of humanitarian interventions that still must be adhered to are the rules of jus ad bellum- the rules governing the initiation of war. These rules encompass just cause, proper authority, proportionality, last resort, and the prospects for success. The aspect of just cause seems rightfully met due to the extremity of the actions against the oppressed sect of society. The second condition of right authority is attempted to be negotiated on international terms through the UN security council.
In order for a state to be allowed intervention into a conflict on the international sphere, they must first gain approval from all the members of the United Nations Security Council. Through this it is assumed that the reasoning for intervening are assessed, and legitimate. It should be noted however that This however has been proven to be a cumbersome mechanism to adhere to the right authority aspect as permission has never been granted by the UN Security Council to intervene in the conflict of a sovereign nation. The international community is largely hesitant to label a conflict a ‘humanitarian conflict’ as this would imply the necessity of international intervention.
The concept of proportionality of an intervention as stated by Walzer, must be balanced insofar as the intervention is as much like a nonintervention as possible and should be treated as a rescue of the affected persons. For example, treating a genocide with a genocide of the oppressors would defy the concept of proportionality. In once case the goal is balance, and in the other it is rescue. This therefore is stating that no political prerogatives should be taken on behalf of the intervening state as this suggests that ulterior motives were the goal from the
start.
In “On the American Indians” Vitoria argues that there are few situations that justify a country to use humanitarian intervention. Humanitarian intervention is defined as military force, publicly stated to end the violation of human rights, against another state. Vitoria discredits the justification of humanitarian intervention in every case, unless you are intervening for an ally or a friend. In this paper, I will argue that his view is more plausible than it may at first appear.
The purpose of this essay is to inform on the similarities and differences between systemic and domestic causes of war. According to World Politics by Jeffry Frieden, David Lake, and Kenneth Schultz, systemic causes deal with states that are unitary actors and their interactions with one another. It can deal with a state’s position within international organizations and also their relationships with other states. In contract, domestic causes of war pertain specifically to what goes on internally and factors within a state that may lead to war. Wars that occur between two or more states due to systemic and domestic causes are referred to as interstate wars.
The idea of intervention is either favoured or in question due to multiple circumstances where intervening in other states has had positive or negative outcomes. The General Assembly was arguing the right of a state to intervene with the knowledge that that state has purpose for intervention and has a plan to put forth when trying to resolve conflicts with the state in question. The GA argues this because intervention is necessary. This resolution focuses solely on the basis of protection of Human Rights. The General Assembly recognizes that countries who are not super powers eventually need intervening. They do not want states to do nothing because the state in question for intervening will continue to fall in the hands of corruption while nothing gets done. The GA opposed foreign intervention, but with our topic it points out that intervention is a necessity when the outcome could potentially solve conflicts and issues. In many cases intervention is necessary to protect Human Rights. For instance; several governments around the world do not privilege their citizens with basic Human Rights. These citizens in turn rely on the inter...
First, in the long run the negative effects of a military international intervention, even if against oppressive governments, could actually outweigh the positive ones. Moreover, coercive policy could, in fact, aggravate a conflict by providing grounds for long lasting hostility, aggression, or ev...
Since this is true, states are less restrained by the potential risk of humanitarian consequences of their actions. However, global human rights norms do make a difference, but to what extent? This article explains that the U.S violated the fundamental norm to not target civilians on multiple occasions during the Iraq war, however it was not blatantly done; the targeting was done indirectly, and more secretive. The ability for the United States to commit these international crimes discretely, without repercussions displays the level of influence the United Nations has. However, when civilian targeting is discovered this is the point where international humanitarian norms come into play; states fear being shamed or illegitimated. Since the establishment of an international court there has been a reduction in this type of crimes against humanity. Actions such as torture during war has been significantly reduced because of its
Walzer understands that his ideas are theoretical and probably idealistic in some ways but he also understands that to allow wars to be anything but just is to legalize and encourage aggressive and self serving wars of conquest. Walzer is interested in the development of the idea of what it is for a war to be just. He writes, “Some political theories die and go to heaven; some, I hope, die and go to hell. But some have a long life in this world, a history most often of service to the powers-that-be, but also, sometimes, an oppositionist history. The theory of just war began in the service of the powers” (Walzer 3). The rise of a modern state and the idea of state sovereignty have clouded and wrongly employed the idea of “just war” in using
As states in the United Nations Charter, article 2(4) outlines the general prohibitions on the use of force. It provides that all member states shall refrain from the threat of use of force against the territorial integrity or political independence of any state or in any other manner inconsistent with the purposes of the UN. The charter additionally outlines exceptions to article 2(4): force used in self-defense the attack must be an armed attack; security council enforcement actions under chapter VII-The security council is authorized under article 39 to determine the existence of any...
The principles of just war are useful and practical for the world of today. However, as globalization increases and continues to hone in on states’ affairs, the principle may begin to lose efficiency. If states continue to do their best to abide by international and set a standard for other states, the possibility could result where all states will begin to do so—anything is theoretically possible. The proficiency of the just war doctrine has been has been proving beneficial in keeping states safe, and protecting states’ sovereignty. The just war theory is presently proving beneficial, though through globalization it could become damaging.
One of most crucial aspects of humanitarian intervention is the lack of proper motives. As noted by Bush, Martiniello, and Mercer, in the case of Libya and Côte d’Ivoire the Western nations were pursuing their own economic imperial interests under the guise of humanitarian intervention (Bush). The lack of pure motives to help decrease crimes against humanity resulted in an increased number of human rights violations in both Libya and Côte d’Ivoire (Bush). In order
People’s ideas and assumptions about world politics shape and construct the theories that help explain world conflicts and events. These assumptions can be classified into various known theoretical perspectives; the most dominant is political realism. Political realism is the most common theoretical approach when it is in means of foreign policy and international issues. It is known as “realpolitik” and emphasis that the most important actor in global politics is the state, which pursues self-interests, security, and growing power (Ray and Kaarbo 3). Realists generally suggest that interstate cooperation is severely limited by each state’s need to guarantee its own security in a global condition of anarchy. Political realist view international politics as a struggle for power dominated by organized violence, “All history shows that nations active in international politics are continuously preparing for, actively involved in, or recovering from organized violence in the form of war” (Kegley 94). The downside of the political realist perspective is that their emphasis on power and self-interest is their skepticism regarding the relevance of ethical norms to relations among states.
Humanitarian intervention involves the coercive action of states intervening in areas for the sole purpose of preventing or halting the killing or suffering of the people there. (1, 9, 5) It is an issue argued fervently amongst restrictionists and counter-restrictionists, who debate over whether humanitarian intervention is a breach of international law or a moral requirement. (10) Restrictionists argue that Articles 2 (7) and 2 (4) of the United Nations (UN) Charter render forcible humanitarian intervention illegal. The only legitimate exception to this, they claim, is the right to self-defense, as enshrined in Article 51 of the UN Charter.
Although, within the U.N. Charter of 1945, Article 2(4) prohibits the use of force against ‘the territorial integrity or political independence of any state’ (U.N. Charter, art.2 para.4), it has been suggested by counter-restrictionist international lawyers, that humanitarian intervention does not fall under these criteria, making it legally justifiable under the U.N. Charter (e.g. Damrosch 1991:219 in Baylis and Smith 2001: 481). However, this viewpoint lacks credibility, as it is far from the general international consensus, and unlikely the initial intentions of the draftsmen of the charter. In more recent times, one can examine the emerging doctrine of the ‘Responsibility to Protect’(RtoP), which was adopted unanimously by the UN in 2005, as a far more persuasive example of modern legitimacy of humanitarian intervention. While not consolidated within international law, RtoP, which promotes humanitarian intervention where sovereign states fail in their own responsibility to protect their citizens, does use legal language and functions as a comprehensive international framework to prevent human rights
The international system is an anarchical system which means that, unlike the states, there is no over ruling, governing body that enforces laws and regulations that all states must abide by. The International System in today’s society has become highly influential from a number of significant factors. Some of these factors that will be discussed are Power held by the state, major Wars that have been fought out in recent history and international organisations such as the U.N, NATO and the W.T.O. Each of these factors, have a great influence over the international system and as a result, the states abilities to “freely determine their political status and freely pursue their economic, social, and cultural development”.
The Responsibility to Protect (R2P) doctrine is an emerging principle, developed after catastrophes such as the Rwandan genocide to ensure such a large-scale tragedy would never happen again. It presents the idea that sovereignty is not a right, and that states should allow international intervention during acts of genocide, ethnic cleansing and war crimes. Under the R2P, the international community has the right to defend other nations from these tragedies; however, many nations will not be obliged to be bound by an agreement, due to opposing and conflicting views and objectives. This has been demonstrated in various instances when nations are in disagreement with the planned course of action and abstained as a result. The doctrine serves as a pathway for the world’s leading powers to invade another state’s sovereignty, which could divide the members of the Security Council. Furthermore, if enacted regularly, the R2P would cause more harm than good, leading to destruction and exploitation Due to this, not all of the international community are in disagreement and thereby not obliged to act. Many states will not consider acting when a tragedy occurs, due to distrust and ongoing suspicions with these plans. This ultimately devalues the authenticity and objective of the R2P. Firstly, my paper will outline the definitions of the R2P doctrine. Secondly, the effectiveness of the R2P and its relationship with different UN members, followed by case studies. Lastly, short analysis will conclude the paper.
Many controversies have arisen nowadays as to whether international law is “natural law”, international law now faces considerable criticism as to its effectiveness as law and doubts as to its actual existence, and its power to bind countries .