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International Justice as Equal Regard and the Use of Force

  • Jean Bethke Elshtain

Abstract

Elshtain presents a case for the primacy of politics if one would argue persuasively about international justice. Without political stability, all attempts to assist developing states, or to sustain persons caught in the chaos of “failed states,” must fail. A concept of justice lies at the heart of this discussion and revolves around the fundamental questions of to whom justice is owed and in what justice consists.

Have we any obligations beyond our own borders? If so, what form do these take? These questions are addressed by developing a concept of comparative justice indebted to the just war tradition and tying it to the equal moral regard of persons. This leads, in turn, to two further difficulties. First, what does it mean to make a claim under the equal regard norm? Just war criteria posit certain universal claims in a political universe in which particular bodies politic either respond, or do not, to such claims in light of their own principles and interests. The article develops a citizenship model for cases of humanitarian intervention, rejecting any and all approaches that involve an asymmetrical valuing of human life.

Second, who can be called upon to use coercive force in behalf of justice? Elshtain argues that all states have a stake in creating and sustaining an international system of equal regard. But, at present, there is no universal body that can be turned to with any confidence in situations of catastrophic violence, like ethnic cleansing. UN Peacekeepers are effective only after a measure of order is restored. As a result the state, or states, with the greatest capability to project power bears the lion's sharer of responsibility for enforcing an equal regard norm. Elshtain acknowledges the difficulties of articulating a strong universal justice claim while assigning a particular state, or states, and their people a disproportionate enforcement burden. But that best describes the present moment and it is better by far that those with power deploy that power within a framework of principles and constraints rather than solely along the lines of classic realpolitik.

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1 It is, of course, true that conflict over resources may exacerbate political tension and invite unrest. That said, without a structure of law and a mailing address and phone number for what could reasonably be called a “state,” tensions over economic maldistribution are likely to erupt into the anomic violence from which so many human beings now suffer. Unless responsible structures of government are in place, it is not possible to foster greater economic equality. The political question precedes the economic one, despite the fact that there is a form of economic determinism embedded in many perspectives that put markets prior to law and politics.

2 The instability I refer to is not the disturbance to civic peace attendant upon social and political contestation. In such cases, including those involving widespread civil disobedience, a structure of laws and accountability is in place—and it is precisely this structure that becomes a target for protesters to the extent that they believe the law encodes specific injustices. I am referring to lawless situations of cruelty, arbitrariness, violence, and caprice, and these abound at present.

3 Thucydides, it must be noted, did not lift up the Melian dialogue as a depiction of exemplary behavior on the part of the Athenian generals; indeed, it presaged disaster for Athens. Oddly enough, however, this extreme case of the use of force is often located by contemporary realists as a case in point for their perspective.

4 Nye, Joseph S Jr.U.S. Power and Strategy after Iraq,” Foreign Affairs 82 no. 4 (July/August 2003) p.68. As Nye points out, “the UN is torn between the strict West-phalian interpretation of state sovereignty and the rise of international humanitarian and human rights law that sets limits on what leaders can do to their citizens. To complicate matters further, politics has made the UN Charter virtually impossible to amend” (p. 68).

5 I would not use U.S. military personnel to respond to authentic natural disasters, like floods. International humanitarian relief agencies, including nonmilitary U.S. personnel and NGOs, should be deployed in such instances. In light of the current war on terrorism, deploying our military to respond to the aftermath of hurricanes and the like will stretch us too thin. Humanitarian relief and coercive force must be kept distinct, in part in order to limit coercive force rather than to bury it under the humanitarian rubric. At the same time, U.S. military personnel deployed in the aftermath of a coercive military operation to help restore civic order, repair or build up an infrastructure, police chaotic situations, and the like makes enormous good sense. Given our likely continuing obligations in this regard, the U.S. military will require additional person power both for the near and the long term.

6 Here precision-guided weaponry has rolled back many arguments that modern war and the just war tradition are by definition incompatible. This is surely true of a total war absent restraint. It is not true of a limited war with restraint and fought in order to punish egregious aggression, to interdict terrible violence, to prevent further harm.

7 Power, SamanthaGenocide and America,” New York Review of Books(March 14, 2002) p.17.

8 It is fascinating that the decision of the Clinton administration to bypass the United Nations entirely passed by largely without notice—certainly without the denunciations that were routine fare in op-eds and anti-war arguments in the run-up to the war in Iraq. It is as if the Bush administration and its allies were punished for attempting to act through the UN and finding their way blocked, this despite the fact that Iraq was in material breach of the terms of the 1991 truce concluding the Persian Gulf War.

9 Kahn, Paul WWar and Sacrifice in KosovoPhilosophy & Public Policy 19 (Spring/Summer 1999); available at http://www.puaf.umd.edu/IPPP/spring_summer99/kosovo.htm.

10 Let me be clear that this was not in any way an explicit policy aim; rather, it is one attendant upon what is now the tradition of so-called humanitarian intervention.

11 This is a complex cultural development. But something has happened over the past four decades that drains the Judeo-Christian tradition, for Christians or “post-Christians,” at least, of the powerful images of God as sovereign, as the instigator and enforcer of justice, central to the Old Testament and absorbed, therefore, into New Testament teaching. I grapple with this issue in my book, recentJust War against Terror: The Burden of American Power in a Violent World (New York: Basic Books 2003); see especially chs. 7 and 8.

12 Power, “Genocide and America” p.18.

13 One of my grandsons is a Marvel and DC Comics addict so I am very well acquainted with superheroes at the moment.

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Ethics & International Affairs
  • ISSN: 0892-6794
  • EISSN: 1747-7093
  • URL: /core/journals/ethics-and-international-affairs
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