I. Introduction

If violence perpetuates violence, how can using violence to curtail violence ever be justified? This paper will address this overarching question with a focus on arguments advanced by Kahn and Meister. Both Kahn and Meister speak of using violence in order to address violence. Kahn speaks of such violence in the context of using torture to combat terror. Meister addresses the R2P debate and the permissibility to use violence in specific humanitarian situations as an exception to the general rule prohibiting the use of force.

Meister repeatedly acknowledges that, “violence begets violence” (x; 37). Meister also argues that the meaning of evil has evolved since the twentieth century to mean “a time of cyclical violence that is the past” [25]. In fact Meister contends that the very reason why the Human Rights Discourse now views justice as reconciliation is in order to put an end to the previous cycle of violence. Transitional justice therefore aims to persuade beneficiaries that the victims of past injustices are now reconciled. Since it is only the unreconciled victims who are feared and who pose a threat to beneficiaries, once victims are reconciled the cyclical violence of the past can finally come to an end. [26-27] Therefore on the one hand, Meister seems to believe that the current Human Rights Discourse and ideas of justice are rooted in ethical notions of forgiveness and uniting against those still using force and willing to fight, thus ending the revolutionary ideology of justice as a struggle. [22]

On the other hand, while describing the twentieth century as the “century of genocide” [1], Meister believes the current Human Rights Discourse places a responsibility, and not just a right, on the world community to rescue innocent victims from humanitarian suffering: “If large-scale physical cruelty is the ultimate evil, it would seem to follow that rescue provides sovereign power with a legitimation that comes ahead of even democracy.” [2] Meister further contends that “[r]ecent humanitarians regard the cyclicity of violence – violence that begets violence – as itself the paradigm of evil and views the rescue of innocent victims as a break in this cycle rather than a continuation of it” [41]. Therefore Meister contends that while the primary focus of the current Human Rights Discourse is to stop evil (i.e. end the cycle of violence), there may be times when violence may be permitted as an exceptional measure to break the cycle of violence.

Kahn indirectly makes a similar argument about the cyclical nature of violence. Kahn contends that “[…] torture and terror are reciprocal phenomena.” [11] “A world of terror is a world of torture […]” [15]. The practise of torture is a consequence of terrorism and the use of torture results in even more terror. Terror and torture thus perpetuate each other. Without coming to an expressly stated ethical conclusion on whether terror justifies torture, Kahn argues that the political reality is that as long as terror exists so will torture.

Neither Kahn nor Meister purport to address the ultimate moral question, should the use of violence be justified in order to end violence; both simply state a realpolitik position that violence does lead to further violence. Both authors address three issues within the context of explaining how and why violence is used to end violence: 1) the relationship between fear and violence; 2) the establishment of the “us” versus “other” divide; and 3) varied approaches to justifying different forms of violence within the Human Rights Discourse. This paper attempts to examine these three topics in order to gain a broader understanding of the moral justifiability of using violence to combat violence, thus attempting to do what neither Kahn or Meister have i.e. to reach a moral conclusion on the overarching question: should violence justify violence?

II. Relationship between fear and violence

How exactly are human beings moved by fear? What is the relationship between fear and violence, and does fear ever justify using violence? Both Meister and Kahn argue the use of violence (however altruistic the intentions) is intrinsically linked with the psychological state of fear, and human beings’ responses to fear breeds violence.

Meister acknowledges that the concept of a humanitarian intervention demonstrates “[…] the underlying fear and insecurity on which global hegemony is now based.” [2]. Meister speaks of the “[…] priority of rescue over democracy […]” [2] and how the concept of humanitarian intervention has permitted “global superpowers” to ethically justify an invention based on this “underlying politics of fear” [2]. In fact Meister acknowledges that “[his] book addresses the turn-of-the-century politics of human rights as both ideal and ideology by relating the wish for human beings to the fears and powers it invokes.” [2] Therefore Meister acknowledges that the psychology of fear and society’s perception of a threat provokes the use of violence.

Meister argues that the aim of transitional justice is to reach a point of reconciliation i.e. the point at which beneficiaries do not fear the threat of terrorism or counter-reprisals from unreconciled victims; hence putting the cyclical violence in the past and therefore ending evil [26-27]. Thus the aim of transitional justice, according to Meister, is to eradicate this fear of violence from society by convincing beneficiaries that victims of past violence have moved on and have decided to forgive past atrocities. To Meister, what is at stake for justice is to ensue the process of reconciliation occurs. Therefore justice is no longer perceived “as struggle” [21], rather “as reconciliation” [23. Justice as reconciliation aims to reach a point in society where fear is no longer prevalent thereby minimising the risk of violence from unreconciled victims and increasing the citizens’ sense of security.

Meister further describes Judith Shklar’s notion of the “liberalism of fear”. According to Shklar, “[…] to have political purchase liberalism needs enemies” [37]. Therefore Shklar contends (similar to Roosevelt) that the true enemy of liberalism is “fear itself” [37]. The question is not whether we have enemies, but who the right enemies are. [37] During normal times we fear fear and hate hatred; in exceptional times “we fear and hate the enemy that is spreading fear and hate” [38]. Therefore Meister admits that our reaction to violence is motivated by fear.

Similarly, Kahn suggests the “[fear] generated by the terrorist threat may be nothing more than the product of wild imaginaries, perhaps manipulated for political purposes.” [9] Therefore “[t]errorism creates a disproportionate fear because it combines a moderate physical threat to the society with the high drama of entertainment” [9]. Terror creates a sense of paranoia in society as it undermines our sense of security [11]. Moreover given advancements in weapons of warfare, including the availability of weapons of mass destruction, society is threatened by “an imagined threat of total annihilation” [11]. Therefore the fear of violence is worse than the actual violence itself, and so human beings are moved to react to fear by using violence.

However even if we agree that using violence is a result of fear, is it still morally justifiable to use violence as a response to fear? Neither Meister nor Kahn purport to justify that fear should justify violence; both simply argue a realpolitik view that these two notions are related to each other. In fact Kahn argues that using torture to justify terror is oxymoronic, as such policies are contradictory and counterproductive [10]. Using torture to combat terrorism does not address the root causes of the terror (i.e. 1) economic exploitation, support for illegitimate regimes, and 3) neglect for the law). Thus rather than defeating the enemy it creates new ones. Instead of using torture, Kahn suggests practical anti-terrorism policies including development aid and stressing the need for adherence to the law. [10] Hence Kahn questions the usefulness of using torture as a respond to terror.

Kahn also acknowledges that a disproportionate reaction to fear leads the international community to breach fundamental rules of law. The international community not only violates the foundational humanitarian law principle of proportionality, but also violates rules of jus cogens (a peremptory norm of international law). [6] Both the prohibition against torture and use of force are widely regarded as rules of jus cogens. The International Law Commission in their final report to the Vienna Conference included the prohibition against the unlawful use of force as and example of “[one] of the most obvious and best settled rules of jus cogens […]”[1]. The United National International Criminal Tribunal for the former Yugoslavia’s decision in the case Prosecutor v. Furundžija not only established the prohibition against torture as a rule of jus cogens, but also entitled every state “to investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction”; therefore permitting universal jurisdiction over torture.[2] Widespread acknowledgement of terrorism as a rule of jus cogens does not currently exist. Therefore arguably the international community’s breach of humanitarian law is far more serious than their opponents’ infringements of the law. This increases suspicion about whether using violence to end violence is morally justifiable.

Thus both Kahn and Meister acknowledge that violence in certain circumstances is a reaction to our sense of fear. Neither author purports to advance an argument justifying violence as a response to fear. The realpolitik assessment of the world, according to Meister and Kahn, suggests that (whether justified) such a relationship between fear and violence does exist and the effects of fear on a society therefore must be considered in our discourse on torture and the R2P doctrine.

III. The “us” versus “other” divide

Both Meister and Kahn suggest that the discourse concerning the use of violence to end violence and more broadly, the entire Human Rights Discourse (according to Meister), is shaped around our understanding of an “us” versus the “other” divide. Both Meister and Kahn suggest there is a common “good” and “bad” defined by the world/international community, and which side of the coin you fall on determines your status as either being one of “us”, or the enemy and therefore being the “other”.

How do Meister and Kahn use this differentiation between “us” versus the “other” to develop their interpretations on using violence within the Human Rights Discourse? How does the international community use this divide to justify the legitimacy of using violence in certain situations, and what practical consequences result from creating such a distinction?

Meister describes the current Human Rights Discourse as a “declaration of war against a new enemy” [32]. Meister acknowledges that the post-twentieth century Human Rights Discourse was the first time a world community emerged that defined itself around human rights principles. Meister speaks of how “[t]he denunciation of physical atrocity as such became an essential element of the fin de siècle conception of what it means to be human […]” and that “[b]y the turn of the twenty-first century, lifelong advocates of human rights were celebrating the emergence of a world community that defined itself as being against such atrocity, always and everywhere” [1].

This world community, united against a common “evil”, establishes a good versus bad divide. The concept of a humanitarian intervention emerged as “[…] a war cry of a self-described international community” [7]. “[P]otential rescuers […] could now regard their humanitarian intervention as legitimated by the physical suffering already occurring on the ground” [1-2]. Interventions by a “monolithic humanity” [21] could now be justified. Those who resist or attack the rescuers are considered “[…] an enemy of all mankind […]” [44].

Meister further describes this “us” versus “other” split in the context of a change in our notions of justice since the twenty-first century. While justice was previously seen as a struggle, it is now viewed as reconciliation [27]. This resulted in “increasing hostility towards social movements that might once have been described as struggles for the Rights of Man and the Citizen” [21]. Such revolutionaries are “[…] no longer considered to be freedom fighters but rather are seen as enemies […] insofar as they engage in acts of “terror” or hesitate to condemn such acts elsewhere” [20-21].

An interesting tangential point related to the above paragraph is the effect Meister’s argument that justice as a struggle is no longer justified has on the right to self-determination in international law. If we agree with Meister’s idea that the post-twentieth century Human Rights Discourse no longer views justice as a struggle, and therefore since 1989 the revolutionary struggle was no longer acceptable; how does this analysis fit in with our understanding of the right to self-determination in international law? How does this evaluation impact labelling issues and the differentiation between a “terrorist” and a “freedom fighter”? Does Meister’s interpretation of the Human Rights Discourse provide any room for freedom fighters to be included in the conversation? Are freedom fighters immediately branded as the enemy, regardless of contextualization?

Moving back to the main issue, the “us” versus “other” divide, Meister describes how the existence of this new world community is founded on certain common universal humanitarian ideals (for example, the prohibition of genocide – “Never again” [48]) and a “hatred for purveyors of hate” [36]. Meister describes Carl Schmitt’s argument that the Kellogg-Briand Pact of 1928 (“The solemn declaration outlawing war”) “does not abolish the friend-enemy distinction, but, on the contrary, opens new possibilities by giving an international hostis declaration new content and new vigor.” [32]. “The adversary is thus no longer called the enemy but a disturber of peace and is thereby designated to be an outlaw of humanity” [33]. Therefore a world community united against a so-called common enemy of humanity creates this “us” versus “other” split.

Similar to Meister, Kahn acknowledges that the international community “[…] assumes an underlying transnational community of interest.” [7] To Kahn, terror has emerged as a means of warfare and “[…] the war on terror is indeed imagined as a war.” [8]. There are always at least two sides to any war. This produces the “us” versus “other” divide. Kahn described the emergence of this international community in the context of explaining the raison d'être of humanitarian law. “Humanitarian law assumes a minimal common morality and a shared ethical point of view that can be separated from the adversaries’ conflicting political beliefs” [7]. Certain humanitarian rights are therefore treated as universal, and those who infringe these universal rights are viewed as an adversary, the enemy or the “other”.

Kahn further speaks about the emergence of the liberal nation-state and that a “[…] vision of security, respect and mutual-wellbeing [has] been at the heart of this project […]” [7]. Kahn goes on to describe that, after the fall of the Soviet Union, the West assumed to “[…] see an increasing global convergence on a common morality” [8] – a common morality based on notions of liberalism. However “[i]instead of a new global reign of liberalism, the new technology of mass destruction” created “the terrorist threat” [9]. Therefore within the context of the war on terror, where terror is perceived as “a means of warfare” [5], opponents who challenge the vision of peace and security of the liberal nation-state are treated as enemies. Those who uphold values of liberalism are seen as “us” and those who spread terror are viewed as the “other”.

Therefore both Meister and Kahn acknowledge that within the context of violence as part of the Human Rights Discourse, the international community is currently split between projections of which side of the debate (whether for ethical reasons, according to Meister, or political reasons, according to Kahn) with which one agrees. This analysis seems reasonable given that both Meister and Kahn acknowledge some form of on-going global “war” or conflict. For Kahn, the current international law discourse is affected by the “war on terror” [5]. Meister similarly accepts that arguments attempting to theorize human rights in the twenty-first century are largely framed around specific dates, including 9/11 [11]. Therefore the current Human Rights Discourse is “[…] an equation of human rights with a war on terror.” [11]. For Meister, the conception of human rights in the twenty-first century is centred on the notion that “[…] cruelty towards physical bodies is the worst of all […]” [16] and so anyone who opposes such suffering is deemed “[…] an enemy of all mankind […]” [44].

Having an “us” versus “other” split is hence logical in the contextualization of any war or conflict. There will always be a perpetrator of violence and a party towards whom the violence is intended, and so the existence of at least two sides to the Human Rights Discourse seems only rational consequence. This “us” versus “other” divide has been present in every war throughout history – whether religious, political or ethical.

However, regardless of whether using such a divide is the only natural way of perceiving the current Human Rights Discourse; is such a split between the “us” versus the “other” useful in reaching a resolution to a human rights issue?

In the context of describing why unreconciled victims are perceived as bad victims and thus viewed as the enemy, Meister acknowledges that “[a]s an emergent ideology of the “world community”, Human Rights Discourse does not move beyond the paranoid stance of demonizing all demonizers to a state in which we realize that our aggression towards the split-off bad victim might destroy the good victim.” [36]. Therefore my interpretation of this passage is that Meister alludes to the counterproductive role of “demonizing the demonizers”. This may eventually result in resentment by the entire victim population of the post-war society. If we demonize even a certain class of victims in a society, given the range and subjectivity of ideological beliefs within the general class of victims, it may eventually lead to so-called good victims eventually identifying their beliefs more with the bad victims than with the beneficiaries of past hostilities in the society. This may increase the treat of extremism and violence in society, and hence perpetuating the “us” versus “other” divide may have counterproductive results in relation to any aims directed at ending the ultimate humanitarian suffering.

Moreover Kahn describes terrorists as being “hard-pressed” from the start [7]. “One way of looking at the terrorist’s relationship with humanitarian law is to consider him “hard-pressed” from the beginning. He has no capacity to fight a conventional war. If he is to use violence effectively, he must disregard the law. This is surely the lesson that observers of the Palestinian deployment of terror against Israel have learned over the last generation.” [7]. Terrorists are not recognized under the Geneva Conventions and thus are not protected by humanitarian laws. Terrorists therefore have no incentive to follow the laws of war given that they do not benefit from them.

Meister also speak of how violence is a tool used to dehumanize the enemy. Meister describes Carl Schmitt’s argument that “by invoking humanity you are denying the enemy the quality of being human” [33]. The “other” is seen to have “forfeited their claims to a common humanity” [33]. Kahn further asserts that, “torture and terror are reciprocal phenomena […]” aimed at “[…] violent degradation […]” [11]. “Torture and terror are linked forms of communication: they speak to each other in the language of degradation and humiliation” [6]. Therefore if this divide forces us to disregard the foundational moral prerogative of human rights i.e. the protection of human dignity, it is dubious how effective this divide is in solving the ultimate aim of ending “evil” [25] as Meister describes.

Hence not providing your enemy the dignity of being a human being is not only ironic within our defence for using violence to end violence to begin with, but may also lead to further ostracizing our enemy and hence detracting from our primary purpose of ending the original violence and hostilities.

Therefore the significance of this “us” versus “other” divide is to create a common enemy the world community can unite against. It forms a comradery between States who share a common ideology and helps the international community understand its common moral goals and ambitions. The “us” versus “other” divide therefore provides the international community with a form of moral justification for pursuing humanitarian goals. This divide permits the international community to identify with a common side – a side that is predominantly viewed as being “good”. Without the “us” versus “other” divide the international community would lose its moral compass.

While the usefulness of this divide in practical terms to achieve the overarching motive of ending the pre-existing humanitarian suffering is debatable; so long as “evil” exists, conflict exists, and wars exist, the “us” versus “other” divide must be viewed as a natural and essential component of any such discourse. Preferences regarding what we consider “good” or “bad” shape which side of the “us” versus “other” dichotomy we fall under and gives us our moral prerogative as a common humanity.

IV. Approaching human rights arguments from different realms

Meister and Kahn use different theoretical lenses to address the same point: namely, the use of violence to stop violence. Meister views the current Human Rights Discourse as being in the realm of peace, as opposed to justice; thereby mandating an ethical approach to justifying rescue missions [40]. To Meister, the current Human Rights Discourse is thus in the realm of ethics. Kahn views both torture and terror as political and reciprocal tools: “[…] terror invokes torture because terror moves us beyond law to sovereignty.” [12] Kahn perceives torture as “[…] a political phenomenon, not simply […] a legal violation […]” [4]. Therefore, to Kahn, in order to understand terror and torture, we must analyse these concepts in the political realm.

Given that terror, torture and the concept of humanitarian intervention broadly fall within the Human Rights Discourse, why do Kahn and Meister use different realms while approaching these human rights issues, and how does this difference affect both their conclusions about using violence to justify violence? Moreover, does Kahn’s description of torture as a “political practice” preclude torture from entering the ethical realm of the Human Rights Discourse? Would Meister consider it possible to examine the relationship between human suffering and intervention in the political realm? What is at stake in addressing the relationship between terror and torture, and also the relationship between human suffering and the R2P doctrine, in the field of politics as opposed to ethics?

Meister asserts that the current Human Rights Discourse favours the “primacy of ethics to politics […]” [48] and so the current Human Rights Discourse is in the ethical realm [see also generally, 40]. Why does Meister believe that the Human Rights Discourse is now in the realm of ethics, as opposed to politics? First what exactly does it mean to view a discourse in an ethical as opposed to political context? Second, why does Meister believe it is important to view the R2P doctrine as an ethical rather than political justification and what has led to this shift in approaches? Does Meister’s ethical approach to human rights necessarily preclude us from addressing the Human Right Discourse from a political perspective?

According to Meister, the political justifications that had previously legitimated revolutionary and counterrevolutionary struggles in the nineteenth and twentieth century do not exist anymore. Meister describes his starting point as “[…] the present character of the Human Rights Discourse [which] is distinct from the broader concept of human rights associated with 1789, which was the topic of debate and struggle between revolutionary and counterrevolutionary movements of the nineteenth and twentieth century […] The post-1989 politics of human rights is not meant to be contested in the same political way as its predecessors – rather, it presents itself as an ethical transcendence of the politics of revolution and counterrevolution […]” [7]. Hence Meister views the current Human Rights Discourse as an ethical, as opposed to a political, matter.

Importantly, just because Meister believes the Human Rights Discourse is now in the ethical realm does not necessarily preclude Meister from acknowledging that politics invariably plays a role in any discourse concerning human rights. First, the title of Meister’s book is “A Politics of Human Rights” [emphasis added]. Hence, regardless of whether the current Human Rights Discourse is in the ethical realm, Meister accepts that when we discuss human rights there is still a political element to the discourse.

Second, in his introduction, Meister acknowledges that the current Human Rights Discourse is “[…] an ethical transcendence of the politics of revolution and counterrevolution […]” [7]. Meister suggest the focus of the current Human Rights Discourse must be on ethical, as opposed to political, arguments. Meister does not, however, suggest that this ethical approach detracts from the inherent political nature of human rights in any way – Meister simply contends that the politics of the Human Right Discourse has now changed. Quoting an extract by Carl Schmitt, Meister acknowledges that […] this allegedly non-political… system cannot escape the logic of the political.” [33]. Therefore Meister acknowledges that we are still debating the politics of human rights, however, this politics is no longer “[…] contested in the same political way […]” [7]. The world community now accepts that ethical justifications may take priority over political ones.

Meister speak of the Human Rights Discourse as the “[…] ethical rejection of previous versions of the Rights of Man […]” and that “[…] Human Rights Discourse operates today in the realm of intervention and rescue.” [8] Thus while previously political arguments were predominant in the discussion, today it is ethical arguments that drive the Human Rights Discourse. So why does Meister believe that looking at the Human Rights Discourse from a political point of view is no longer useful?

Meister describes how today the idea of a revolutionary raises too many questions about political motivation. The idea of today’s Human Rights Discourse is to isolate anyone that uses violence. The reason Meister gives for the change in this approach is because there is currently no longer a need for a revolution. [21] Meister argues that “[d]emands for free elections and civil liberties that were revolutionary in 1789 and 1848 have become uncontroversial in the twenty-first century: it no longer takes a revolution to accomplish them […]” [21]. Therefore in the twenty-first century these politically driven ideas of revolutionary struggle have become obsolete.

Today the premise of the Human Right Discourse is based on “rescue” and ideas of the alleviation of any kind of suffering (especially physical) in society. Thus rescue takes priority over violence, even if that violence is perpetrated with good intentions and as part of a revolutionary struggle. [20] Meister’s principle reason for why arguments advancing a humanitarian intervention must be viewed in the ethical realm is that “[…] politicizing rescue […] has always been an excuse for third parties to turn away from those who suffer.” [47]. Thus rather than looking at the politics of rescue, Meister believes that the current Human Rights Discourse focuses on ethical justifications for such a rescue mission.

Meister refers to the works of Emmanuel Levinas, crediting him as being the first philosopher to construct a notion that it is suffering, and not death, that moves us as human being to react to a situation. Thus rescue is viewed as an ethical response to physical pain. Humanitarian intervention has not yet been accepted as a defence under customary international law[3]. Calls for a humanitarian intervention cannot be justified in a political sense (especially considering the fundamental international legal norm prohibiting any unlawful use of force [44]); thus arguments concerning humanitarian intervention must be based on ethics [43] and the intervener must defend the use of force based on viewing themselves as an “ethical rescuer” and ending some kind of human suffering [44]. Meister contends that “[a]n ethics that makes security its prime directive is also a political justification for third parties to use exceptional violence to stop violence […]” [40]. Thus Levinas’ argument is based on the notion that ethical responsibility supersedes political responsibility – it is not about what the international community does but what they are morally responsible to do. [45]

At the same time though, Meister acknowledges Levinas’ argument about ethics in that today “[e]thical responsibility has nothing to do with either virtue or justice […] [46]. The reason why politics cannot be the primary realm of the discourse is because today the aim of the Human Rights Discourse is to prioritize peace over justice. Thus “ […] a politics that puts good (or justice) first would be inherently unethical […]” [46] and the Human Right Discourse is based on the view that “[…] stopping evil (rather than bringing justice) has become the ethical basis for all politics […]” [40]. Therefore today motives for acting on human rights violations must be ethical and not political. I don’t believe Meister ever argues that politics does not play a role in the Human Right Discourse; rather Meister’s contention is that ethical arguments must take priority over political ones within the Human Rights Discourse.

Kahn, on the other hand, questions whether “[t]he contemporary torture debate raises […] question about the character of the achievement of modern politics, about whether there is a political practice of violence beyond the reach of law, and about citizens’ relationship to these practices.” [4]. Kahn describes torture as a “political practice” [4] and describes torture as “[…] a political phenomenon [...]” [4]. Therefore, does Kahn think that the practice of terror and torture can only be examined within the political realm?

Kahn describes torture as “a political practice beyond law” [4]. Kahn justified this contention with the example that the U.S. has signed and ratified the Convention Against Torture, and has “enacted domestic legislation that flatly prohibits torture” [4] yet incidents of torture by U.S. officials still occur (most evident by the publicly criticised treatment of detainees at the Guantanamo Bay detention facility). Kahn thus asserts that “[p]olitics is an exercise not of reason but in imagination” [10]. It is therefore the idea of terror within the political realm of the discourse, based on interpretations of perceived threats, that creates a fear of the “other” [please see Sections 2 and 3]. This perceived fear of violence (and therefore terror) is the precursor for any justification for torture [10]

Kahn makes this argument within the context of describing why arguments justifying the use of force as a response to terror may be an exception to the social contract. When citizens have breached the social contract by using violence, it violates notions of liberalism and security, and the values that are the cornerstones of any liberal society. Therefore violence may be a legitimate response to this breach of the social contract (and thus as a response to terror).

Kahn describes the Hobbesian concept of the “social contract”, which prompts citizens to respect fundamentals rules of society (such as the prohibition against torture) [11]. However when citizens of that society perceive terror to be a real threat to their security, this undermines their obligations under the social contract. The primary reason, according to Hobbs, for why citizens respect the social contract is for mutual respect and security by the State [11]. Once this mutual respect and security is undermined (by say a terrorist threat), society no longer has an incentive to adhere to the social contract and the legitimacy of the prohibition of torture in such situations becomes moot. Therefore, according to Kahn, while there is a general prohibition against the use of unlawful violence in society there is an exception in situations where individual have broken the social contract (by using violence).

In conclusion Kahn’s idea of the political predominance of the social contract in the context of using violence as a response to terror does not contradict Meister’s argument that the only way to justify the R2P doctrine is within an ethical context. Meister believes that in order to justify the R2P doctrine, human rights advocates must rely on ethical notions. Kahn does not purport to justify either terror or torture. Kahn agrees that ethical notions regarding the Human Rights Discourse are important; however in order to actually understand the current human rights debate we must perceive torture and terror as reciprocal phenomena and view them in the context of the political realm [12]. At no point do Meister and Kahn’s arguments contradict each other; rather they reflect different perceptions of a viable defence, therefore depicting different perspectives (based on different issues) for why it may be possible to justify the use of violence in situations concerning violence.

V. Conclusion

The fact that violence does perpetuate further violence is a point I believe Meister, Kahn and I would agree on. Whether such violence as a response to violence is morally justified is a separate issue. Neither Kahn nor Meister explicitly state any kind of moral conclusion on the justifiability of using violence to end violence. Kahn asserts that the use of torture to combat terrorism will always exist so long as terror exists: “A world of terror is a world of torture” [15]. Meister similarly asserts that “[r]ecent humanitarians regard the cyclicity of violence – violence that begets violence – as itself the paradigm of evil and views the rescue of innocent victims as a break in this cycle rather than a continuation of it” [41]. Therefore, without coming to a moral conclusion, both Kahn and Meister state their assessment that in practise violence is indeed used to end violence.

Both Kahn and Meister acknowledge that violence in certain circumstances is a reaction to our sense of fear. Moreover both authors acknowledge that the “us” versus “other” divide must be viewed as a essential aspect of any human rights discourse, and preferences regarding what we consider “good” or “evil” shape which side of the “us” versus “other” dichotomy we fall under and gives us our moral prerogative as a common humanity. Finally whether arguments for why violence begets violence are based in the ethical or political realm, both authors reach a similar conclusion: in practical terms, the use of violence results in further violence. However, neither the ethical nor the political realm is useful for either author to reach a moral conclusion on the justifiability of using such violence to curtail violence.

Admittedly, while the issues mentioned above have helped me understand why violence begets violence; similar to Kahn and Meister, I am yet to reach a moral conclusion on whether violence should beget violence. My personal opinion is that contextualising an incident of violence is inescapable from reaching a conclusion on the moral justifiability of using further violence as a response, and so a case-by-case analysis of such situations is imperative. A broad, overarching, doctrinal view on the morality of the using violence to end violence in every situation, to me, seems impossible.

[1] Vol. II, ILC Yearbook (1966), p.248 cited in Rafael Nieto-Navia, “International peremptory norms (jus cogens) and International Humanitarian Law”, ICC Now, The Hague (March 2001), available at http://www.iccnow.org/documents/WritingColombiaEng.pdf (accessed on 24 November 2014).

[2] Prosecutor v. Furundžija, Case No. IT-95-17/1-T (10 December 1998), available at http://www.icty.org/x/file/Legal%20Library/jud_supplement/supp1-e/furundzija.htm (accessed on 24 November 2014).

[3] The only time humanitarian intervention has ever been advanced as a legal defence was during NATO’s case before the International Court of Justice (“ICJ”) against the former Yugoslavia in 1999 as a justification for their bombing campaign in Kosovo. The ICJ decided that NATO’s intervention was “illegal, but legitimate”, therefore casting doubt on whether a humanitarian intervention, and subsequently the R2P doctrine, can be considered a binding legal rule.