A year ago this week, I gave a presentation at a conference organized by the Simone Weil Center at the Institute of Socio-Economic and Political Research in Moscow on the topic of ‘Human Rights Reasoning and Double Standards in the Rules-Based Order’. A Russian-language version has been published by ‘Russia in Global Affairs’, and I’ve decided to supplement that with the English version here. It is long, but I hope that you will find it worth the effort. Here goes:

Human Rights Reasoning and Double Standards in the Rules-Based Order

When seeking a solution for the current tensions between Russia and the West, we need first of all to determine what the root problem is. For many in the West, the root problem is Russian aggression, the dictatorial nature of the Russian regime, and even the evil character of President Vladimir Putin. For many in Russia, it is American hegemony and Western double standards. The tendency to see the cause of conflict as lying in the hostile nature of the other is fairly common, but international relations scholars have long since understood that conflict is very often a product not of aggression by one side or the other but of misperception and mutual misunderstanding. These in turn have their own causes, which are far too many to recount here, but one cause of misunderstanding is the fact that the same words or the same concepts mean different things to different people.

So, for instance, a few years ago Russia and NATO countries reached an agreement that security in Europe should be considered indivisible. But they understood this completely differently. The Russians thought that this meant that NATO had agreed that European security had to encompass all of Europe including Russia, with no divisions in a geographical sense. But NATO thought that Russia had agreed that security was indivisible in the sense that it should not be divided up into different types of security, such as military security and human security, and so accepted the idea that human rights were an inseparable part of security. This mutual misunderstanding meant that future discussions on the matter went nowhere.

Today, both Russia and Western countries claim to believe in a rules-based international order, and each accuses the other of breaking the rules of the international system; Russia by annexing Crimea and supporting rebellion in Ukraine; and the West by invading Iraq, toppling Muamar Gaddhafi, and supporting rebellion in Syria. What I want to show today is that part of the problem is that the two sides interpret a rules-based order very differently. For Russia, it is a system in which the same set of rules applies to everybody. To the West, it is a system in which one set of rules applies to the just and another to the unjust. This leads Russia to accuse the West of double standards. In a sense, this accusation is justified, but it isn’t just a case of hypocrisy but also a case of a different conception of what the rules are.

One of the most significant attempt to rewrite the rules of the international system in recent years was the unveiling a dozen years ago of the idea of the Responsibility to Protect. The Responsibility to Protect drew heavily upon the criteria of Western Just War Theory. For the sake of my argument today, I am going to take an element of Just War Theory and illustrate how understanding of it has been affected by human rights reasoning. The purpose isn’t to have a discussion about the ethics of war, merely to use this as an example to illustrate how reasoning based upon individual human rights leads to rules being rewritten in a way which ensures double standards. Through this, I will advance the thesis that the troubles between Russia and the West derive at least in part from the fact that Russia continues to view the idea of a rules-based order through a sort of rule-consequentialist lens which insists upon symmetry in terms of the application of rules, whereas the West has increasingly turned to a rights-based reasoning which insists upon asymmetry.

To illustrate this, I will start by referencing a couple of key concepts within Just War Theory. These are: the jus in bello/ad bellum divide, and the moral equality of soldiers. The first of these refers to the concept that the rules which determine whether one may wage war at all, jus as bellum, are entirely distinct from the rules which determine what one may do during a war, jus in bello. Whether one’s war is just or unjust, one must still follow the same rules. To take an example, when Germany invaded the Soviet Union, the Soviets were bound by the same rules of war as the Germans even though the Germans were the guilty party. Just as it was wrong for Germans to murder civilians, so too was it wrong for Soviets to murder civilians. There is symmetry in terms of the rules. From this it follows that individual soldiers aren’t morally or legally responsible for the wars they fight, in other words for ad bellum, only for their conduct during war, in bello. This means that soldiers on both sides are considered morally equal. The Soviet soldier has the right to shoot at the German soldier. But the German soldier also has a right to shoot at the Soviet soldier. As long as the German just shoots at other soldiers, then he is not considered to have broken any rules or to have behaved morally incorrectly. He can be a German soldier and still be an honourable soldier. The fact that he is fighting for an evil cause doesn’t affect his personal moral status. On the other side, the fact that the Soviet soldier is fighting for a just cause doesn’t permit him to do anything he pleases. He too must only shoot soldiers. Thus, again we have symmetry in the application of the rules.

There is a very good reason for this. If you have asymmetrical rules, and you say that jus in bello is dependent upon jus ad bellum, so that different rules apply to the just side as opposed to the unjust side, then who is to say who is the just side? Everyone will claim to be the just side and so will claim the extra rights which come with that, while denying any rights to the other side. Consequently, mutual respect will collapse, there will no sense of reciprocity, and no incentive to abide by rules. Restraint will become much harder. Harsh experience has shown that it is necessary to treat each side as equal, because that’s the only way to get them to abide by the rules. So, in essence, the traditional system is one based on rule-consequentialist logic. We create a rule of symmetry, because a rule of asymmetry produces terrible consequences.

Just War Theory is, of course, much more than just rule consequentialism. It isn’t really a coherent theory at all. It’s a hodgepodge of different ethical systems thrown on top of each other over the centuries. So, it contains a bit of Christian theology, some deontological reasoning, some consequentialist reasoning, some rights-based ethics, some virtue ethics, and so on. This reflects the fact that it is attempting to regulate what is a very complicated phenomenon, which cannot properly be encompassed within a single ethical system.

Or at least, that’s what it used to be. In the past few decades, there has been an increasing tendency to re-evaluate just war theory using the foundation of human rights logic alone. So philosophers have taken human individual human rights as their starting point, and then said, ok, let’s look at the issues of the rules of war from scratch, and see what they should be if we work from the assumptions of human rights. And it’s taken philosophers into some odd territory.

The most notable of these philosophers is Jeff McMahan of Rutgers University, who wrote a really important book called Killing in War. McMahan has very good intentions. He wants to reshape the ethics of war so as to make war in effect impossible. The reason wars happen, he argues, is that people believe in this separation of jus ad bellum and jus in bello and they believe in the moral equality of soldiers. As a result, they don’t think that the justice or injustice of the wars they fight in are their business, and are quite happy to fight in what are unjust wars. McMahan wants to make this impossible, to make people realize that they can’t fight justly in unjust wars. He therefore sets about dismantling the ad bellum/in bello divide and the moral equality of soldiers using human rights reasoning.

McMahan asks the question: why are people allowed to kill other people in war? From a human rights perspective, everybody has a right to life. The only justification for killing people, therefore, is if they have done something to forfeit that right. So what have they done? The usual answer is that they are engaged in harming others, if not directly then at least as part of a large apparatus which is engaged in harming others. Because they are doing harm, they forfeit their right to life. Therefore, you can kill them. This is nonsense, says McMahan. If I hit you for no good reason, and then you hit me back, you don’t then lose your right not to be hit by me again. Similarly, if a policeman shoots an armed criminal, the policeman doesn’t lose his right not to be shot by the criminal. That’s because he is serving a just cause, whereas the criminal is serving an unjust one. Rights, therefore, cannot be disassociated from issues of justice. The rights of the just are not the same as the rights of the unjust. There is an asymmetry of rights. Consequently, jus in bello is in fact dependent on jus ad bellum, and there is no moral equality of combatants. If I am a German soldier and you a Soviet soldier, the fact that you are shooting at me does not give me a right to shoot at you.

Taking this further, McMahan then argues that the unjust side loses pretty much all of its rights. It’s not even allowed to shoot at other soldiers, as the soldiers on the just side have done nothing to forfeit their right to life. Thus, all soldiers on the unjust side are murderers, pure and simple. On the other hand, the just side gains extra rights. There are a host of people on the enemy side, including many civilians working in industries and offices supporting the war effort, who are in effect aiding and abetting the unjust cause. To defend its own right to life, the just side may, says McMahan, attack these civilians who are behaving unjustly. The distinction between soldiers and civilians on the unjust side disappears. They are all legitimate targets. So, whereas before one had a situation where the rights of both sides were in effect level, now the rights of one have gone down, and those of the other gone up.

This is not just philosophical musings. This is in effect what has happened during the American War on Terror. When the Americans invaded Afghanistan, captured Taleban were not treated as prisoners of war, but as criminals. Take, for instance, the case of Omar Khadr, which is well known in Canada. He was 15 years old when he allegedly threw a grenade at an American soldier, killing him. This happened in the midst of combat. According to the traditional concept of the moral equality of soldiers, Khadr had a perfect right to throw the grenade after the Americans attacked the house in which he was living. But he was tried and convicted of murder. According to the new American interpretation of the law, the unjust side does not have the right to shoot back. On the other hand, the Americans and their allies have extra rights. This has not been taken to the extent of saying that it’s all right directly to target civilians, but the concept of proportionality has been stretched fairly far, so that a very large number of civilian deaths as so-called collateral damage is permitted. In one interesting case, two Israelis, Amos Yadlin, the former head of Israeli military intelligence, and Asa Kasher, a prominent ethicist, have argued that the life of an Israeli soldier is worth just as much as that of an Israeli civilian, and that soldiers shouldn’t therefore have to put themselves at great additional risk of harm in order to protect Palestinian civilians. Israeli soldiers don’t lose their right to life, as they are fighting in a just cause, whereas the same is not true of Palestinians. When judging what is proportional, therefore, Palestinian lives aren’t worth as much as Israeli ones.

To illustrate where we’ve ended up, let’s take another World War Two example. According to McMahan’s human rights-based logic, a British bomber crew dropping bombs on a German city would have been actly justly. But a German night fighter pilot trying to shoot down the bomber would not have been. This is despite the fact that the bomber crew is carrying out an act which will kill civilians whereas the night fighter is defending civilians and only shooting at combatants.

You can see, therefore, where this is heading. When you cease viewing things in terms of rule consequentialism, and jettison the complex mixture of ethical systems built up over time, and instead start viewing matters purely in terms of human rights, you end up in a position in which double standards are not only permissible but are even correct. The fact that there are double standards doesn’t mean that this isn’t a rules-based system; it’s a just a system which classifies people into two different categories and applies different rules to each of them.

This applies not only at the level of individuals, but also at that of states. Brian Orend is an ethics professor at the University of Waterloo in Canada, and he has written a number of books on the ethics of war, including one called The Morality of War, which looks at the subject through the logic of human rights reasoning. Orend argues that certain basic, core human rights are universally valid. Everybody is entitled to them. He is careful to limit these rights to a few, such as the right to life, but nonetheless he is quite categorical that these are universal. A state which does not protect these rights, says Orend, in other words a state which is not, as he puts it, minimally just, does not have sovereignty. Sovereignty derives from the people. It’s not something that the state has. States don’t have rights. People do. If a state is not minimally just because it abuses human rights, it does not therefore have sovereignty, therefore it has no right not to be attacked. Orend is quite blunt about this. A state which is not minimally just has no right not to be attacked. Following this logic, Orend supported the invasion of Iraq. Saddam Hussein’s regime was not minimally just. Invading Iraq was not therefore an immoral or criminal act, because the regime had no sovereignty, and was fair game for invasion.

The unjust state not only can be attacked, but also has no right to defend itself when attacked. David Rodin of Oxford University has pushed the argument even further to argue that no state has a right to self-defence. Again, he bases this proposition on human rights reasoning. But it’s clearly an utterly impractical conclusion. No state would ever accept it. The example shows the absurdities to which human rights reasoning has taken people. And yet, the reasoning itself isn’t poor. In fact, it’s very good, if you accept the basic assumption that ethics are all a matter of human rights and you therefore throw out all the conclusions previous derived from centuries of practical experience. It’s a bit like a picture by Claude Monet, but inverted. You know how if you stand close to a Monet picture it doesn’t look like anything, but if you step back you realize that it’s London bridge in the fog. While this is the same, but the other way around. Close up, it’s all completely logical. The reasoning is impeccable. But take a step back, and you realize that it’s crazy.

The focus on human rights as the source of ethical reasoning is fairly widespread in the West. A couple of years ago I was writing a piece which required me to think about where duties come from. So I spoke to my colleague who teaches the course we offer our graduate students on moral reasoning, and I asked her, “Why do people have duties?” She replied words to the effect that nowadays all ethical reasoning is based on human rights, and therefore if you have a duty to somebody it must be because that somebody has a right to something. I found this reply interesting because of my colleague’s conviction that it was all a matter of human rights.

The prevalence of this point of view has led us in the West to the sort of reasoning that I have described so far, which in effect jettisons systems of rules applying to all and replaces them with asymmetrical systems in which perceptions of justice and injustice determine what rules apply to whom. If America provides aid to rebels in Syria, that is ok, because the regime of Bashar al-Assad is not a minimally just state and so has forfeited its right not to be attacked, and because the Americans are just, and so are entitled to act as world policemen. But, if Russia provides aid to the Syria government, then that is wrong, because it is aiding an unjust state which abuses human rights. Similarly, if Russian bombs kill civilians in Aleppo, that is wrong, because it is in support of unjust cause. But if American bombs kill civilians in Mosul, that is regrettable but acceptable, because it’s in a just cause. What appears to be a double standard is a logical and probably inevitable consequence of basing moral judgements exclusively on human rights.

This creates many problems, one of which is that those who are classified as being in the unjust category will obviously reject this reasoning. It helps to increase Russian-Western tensions because, as far as I can see, Russians for the most part don’t adhere to the same rights-based approach to moral reasoning. The Russian approach remains more traditional and in line with the rule consequentialist logic. We thus end up with two protagonists saying that they want the same thing, but meaning very different things by it. When Russia says it supports a rules-based order, it means one in which the same rules apply to everybody. All states are sovereign and equal. When the West says it supports a rules-based order, it has in mind one in which the West is enforcing the rules, and is therefore rather like the police, while its enemies are rather like criminals. And as McMahan has pointed out, the police are allowed to shoot at the criminals whereas the criminals are not allowed to shoot back. Thus the Western rules-based order is inherently unequal.

So far, I’ve focused on the deficiencies of human rights reasoning, but it’s worth mentioning that the rule consequentialist view isn’t without problems too. Rule consequentialism can be seen as quite callous. It requires people to ignore injustice in order to abide by the rules. Part of the reason why human rights reasoning has become so prevalent in Western thinking on foreign affairs in the past 20 years is precisely that in the aftermath of the Rwandan genocide and the war in Yugoslavia many intellectuals felt that it was intolerable to sit around doing nothing because the rules of the international system forbade it. They therefore started to demand that the rules be changed. So my point in this presentation is not to say that one view of affairs is better than the other and to point the finger at one side or other for the poor state of Russian-Western relations. Rather, it’s to determine the problem, and the problem it seems is that there are differing interpretations of what a rules-based system means. This leads to misunderstanding and mutual distrust. If we wish to make relations better, therefore, we must overcome this misunderstanding and reach a common interpretation of the rules.

There are really only three ways that this can be done. 1) Russia abandons its current mode of thinking and fully adopts that of the West. I don’t think that this is going to happen. 2) The West abandons its mode of thinking and fully adopts that of Russia. I’m certain this isn’t going to happen. Or 3) Some way is found of reconciling the two perspectives, producing a new synthesis which is satisfactory to all. I’m not at all sure whether this can be done, but it seems to me to be a slightly more promising way out of our difficulties than options 1) or 2). What this synthesis could consist of, I’m not in a position to say, but it is worth pursuing. Thus, at the end of my presentation, I admit that I haven’t discovered a solution to our current difficulties, but I have at least identified a task for philosophers and political thinkers. Much may hinge on whether the task is successfully completed.