Self-Defense in International Law and Rights of Persons
Teson, Fernando R., Ethics & International Affairs
In War and Self-Defense David Rodin uncovers many flaws of current thinking about war. (1) Rodin correctly points out that the justification of national self-defense goes beyond the justification of individual self-defense. He accurately rejects the standard notion of moral symmetry--the accepted view that both just and unjust warriors can permissibly kill enemies as long as they observe the laws of war. Rodin vindicates the right view: if a war is unjust, each and every injury caused by the unjust warrior is a criminal act. There are no morally justified killings by those who fight unjust wars. Further, Rodin rightly rejects various holistic theories of self-defense. Last but not least, he correctly denounces what I have called the Hegelian Myth, (2) the idea that tyrannical governments are worth defending against interventions aimed at deposing them because they are protected by the principle of sovereignty.
Despite these important achievements, which Rodin articulates in clear and penetrating prose, his rejection of a plausible version of national self-defense ultimately fails. (3) I will concentrate on liberal arguments for self-defense--those for which the end of self-defense is the protection of vital rights or interests of individuals.
THE LIBERAL VIEW OF NATIONAL SELF-DEFENSE
Rodin rightly rejects the attempt to reduce self-defense to a collection of individual rights of self-defense. His main reason is that armies acting in self-defense cannot abide by the proportionality rules of individual self-defense. Soldiers in a defensive war can do more than individual self-defense would allow (for example, they can kill enemy soldiers who are sleeping or marching, whereas under criminal law people are not allowed to kill those who do not threaten them). Yet I believe that some of those extra permissions to kill in a defensive war can be grounded in a richer version of liberalism, one that, unfortunately, Rodin overlooks. This is the view that wars in self-defense are carried out by the government as an agent of the citizens. (4) The idea is simple. Citizens create a state to protect their rights against potential internal and external threats to those rights. Let us assume that there is a philosophically sound account of social contract theory that tells us when and how a state is legitimate in this way. Respect for the autonomy of persons requires foreigners to respect that social contract. If this is sound, then it follows that citizens are bound to one another to defend not just one another's lives but the social contract itself. Let us call this the liberal view.
The liberal view indeed relies on more than individual self-defense, as Rodin says. Citizens defend not merely one another but also the just institutions that they have created together and under which they live. The government is simply their instrument. The justification of self-defense thus combines principles from political as well as moral philosophy. This account, I believe, is neither purely reductionist nor does it resort to the spooky communitarian views that Rodin rightly discards. The army of a justified state defends the citizens' lives and property threatened by the aggressor, but it also defends the liberal state itself, notably its institutions. It also defends its territory, morally understood as the locus for the exercise of liberal rights and the functioning of liberal institutions. This requires use of coercion that is not permitted in individual self-defense simply because individual and national self-defense cover quite different situations--despite the similarities in terminology. National self-defense is mediated by the concept of a legitimate state.
While Rodin concedes that the liberal view is an improvement over the pure reductionist view, he still rejects it. He gives two reasons. The first is that the liberal view, he thinks, treats humanitarian intervention (that is, war to defend human rights) as a form of self-defense. …