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ISSN 0305-8298
Millennium:
Journal of International Studies
Volume 36 Number 1 2007
The Role of Rights in the Social Construction of Wars:

From the Crusades to Humanitarian Interventions
Tal Dingott Alkopher
Comparing Apples and Oranges?

Leading and Misleading Uses of Historical Analogies
Markus Kornprobst
29
The Siren Song of Geopolitics:

Towards a Gramscian Account of the Iraq War
Darel E. Paul
51
FORUM: Edward W. Said and International Relations

Introduction
Sheila Nair
77
Traveling in Paradox: Edward Said and Critical

International Relations
Raymond Duvall and Latha Varadarajan
83
Edward Said and Contrapuntal Reading: Implications

for Critical Interventions in International Relations
Geeta Chowdhry
101
Empire and Global Public Intellectuals: Reading Edward

Said as an International Relations Theorist
Shampa Biswas
117
Saids Exile: Strategic Insights for Postcolonial Feminists

L.H.M. Ling
135
List of Book Reviews
147
Book Reviews
149
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2
The Role of Rights in the Social Construction of Wars
The Role of Rights in the Social

Construction of Wars: From
the Crusades to Humanitarian
Interventions
Tal Dingott Alkopher*
How did rights become something that people are ghting for, and
are willing to die for, in the international arena? This article seeks to
answer this question through the lens of social constructivism, by
exploring the constitutive impact of intersubjective ideas and norms
concepts of rightson the social construction of wars. By doing so
the article challenges realists main focus on Power in interpreting
human conict, as well as the English Schools writing on war and the
use of force which is preoccupied with articulating normative theories
rather than treating normative structures as scientic analytical
tools in order to explain why and how norms (of a Hobbesian nature
included) matter. To illustrate the theoretical claim, the article examines
two distinct historical epochs: the medieval epoch, characterized
by conceptions of divine rights and by institutionalized practices of
crusade, and the late twentieth century, which witnessed the rise and
institutionalization of human rights as an international norm along
with the emergence of a new practice of humanitarian wars.
How did rights become something that people are fighting for, and are
willing to die for, in the international arena? This article seeks to answer this
question through the lens of social constructivism. For years, IR research
tended to view ideas and norms in general and rights in particular
as a constitutive factor of cooperation and peace rather than conflicts
and wars. Power was the concept most widely favoured in interpreting
human conflict. Political Realists, who dominated the research field of
____________
*
An earlier version of this article was presented at the annual meeting of the
International Studies Association, Montreal, March 17-20, 2004. I gratefully
acknowledge the Halbert Program at the Munk Centre for International Studies,
University of Toronto. I am also indebted to Emanuel Adler, Amir Alkopher,
Joshua Goldstein, Frank Grifth, Louis W. Pauly, David Welch, and the Munk
Centres Post-doctoral Forum, 2004. Finally, I would like to thank Millenniums
editors and three anonymous reviewers for their constructive suggestions. Of
course, I am solely responsible for any errors of substance or interpretation.
Millennium: Journal of International Studies, 2007. ISSN 0305-8298. Vol.36 No.1, pp. 1-27
1
Millennium
international security as well as the IR study of war, regard conflicts
and wars as a direct result of human nature and in terms of material
power alone, neglecting the importance of value calculations to states
actions. Neorealists also view war as a result of the systems anarchical
character, where the absence of a superior authority and a mechanism
of self-help leave the material distribution of power as the trigger of a
security dilemma and potential clashes between states. Neorealists even
maintain that actors behaviour in anarchy is not fundamentally altered
by variations in normative or historical context.1 This article, instead,
will explore the constitutive impact of intersubjective ideas and norms
concepts of rights on the social construction of wars. It will do so by
conceptualising a general constitutive relationship between rights and
war, and will show how this conceptualisation is contingent on the social
meaning attached to rights in different social and historical international
contexts, thus resulting in different realities of wars.2
Indeed, in recent years certain researchers have reminded us that
norms can also be bad, promoting conflicts in the name of justice.
These researchers come mainly from the English School tradition and
Constructivism. According to Hedley Bull, war is institutionalised by
certain orders, norms, and rules that include understandings about
the legitimate circumstances for going to war, as well as the legitimate
authority to conduct it. Bull, however, attributes to norms an impact on
the creation of order and cooperation within war while regarding war as
a natural product of anarchy in international relations.3 Thomas Ward, for
example, who deals with the impact of ethical norms on the use of force,
does not assign norms a constitutive influence on the very possibility
of the use of force but only a regulative one. This is significant since
constitutive norms, according to John Ruggie, specify what counts as a
certain activity rather than regulate an antecedently existing activity.4
In other words, Ward explains how evolving ethical norms restrict the
use of force by differentiating between what is right and wrong (i.e.,
international assassination, aerial bombing of civilians) in an already
____________
1. Marcus Fischer, Feudal Europe, 8001300: Communal Discourse and
Conictual Practices, International Organization 46 (1992): 42766.
2. Note that this article does not maintain that all wars can be seen as a construct
of conceptions of rights. International reality is compounded of various variables,
ideational as well as material, that can account for wars. In fact, sometimes, even
if rights do shape behaviour, they are not the only variable to inuence it, nor
the dominant one. Nonetheless, the article emphasises the impact of rights as an
enabling ideational and social setting or background for warlike interactions. In
that sense, they can be seen as logically prior to causal material and rationalist
explanations.
3. Hedley Bull, The Anarchical Society: A Study of Order in World Politics (London:
Macmillan, 1977).
4. J. G. Ruggie, Constructing the World Polity: Essays on International Institutionalism
(London: Routledge, 1998), 24.
2

existing realm of war. The possibility of war itself is not seen as socially
constructed, but rather as already part of the international system.5
Another example is Mervyn Frosts Ethics in International Relations:
A Constitutive Theory. Frost suggests possible constitutive relations
between norms of individuality on the one hand and violence in IR
on the other.6 However, his aim is not to present a constitutive theory
that explains violence per se, but rather one that will serve as an
alternative normative theory (to just war theory, for example) for judging
normatively problematic cases, such as unconventional uses of violence
(i.e., sabotage, indiscriminate terror, and even humanitarian wars), in
IR. In sum, the English School has yet to treat normative structures as
scientific analytical tools. It is still mainly preoccupied (important as it is)
with articulating normative theories that serve as a key frame for ethical
analysis rather than theories of norms that are interested in normative
and cultural structures in order to explain why and how norms (of a
Hobbesian nature included) matter.7
In Social Theory of International Politics, Alexander Wendt achieves this
by picturing a Hobbesian international system constituted by a culture
composed of violence-disposing norms, further leading scholars to view
the phenomenon of war through constitutive ideational and normative
prisms.8 A prominent example is the work of Martha Finnemore, who
shows that over the last four centuries interventions constituted different
perceptions of order maintained by leaders.9 Another example is N. J.
Wheelers work on the constitutive power of the legitimacy given to
humanitarian interventions in the 1990s.10
While continuing this line of thinking, this article seeks to theorise
about the constitutive impact of rights, as a special kind of normative
structure, on wars. And as opposed to the existing (vast) literature on
human rights and the use of force (including Frosts constitutive theory of
individuality), this article will discuss not only human rights but also the
more general concept of rights as conflictual norms by pinpointing the
various levels at which rights are constitutive of wars in the international
arena. Internationally defined rights will be seen as constituting the rules
of the game and as forming an enabling ideational and social setting or
____________
5. Thomas Ward, The Ethics of Destruction : Norms and Force in International
Relations (ithaca, NY: Cornell University Press, 2001).
6. Mervyn Frost, Ethics in International Relations: A Constitutive Theory
(Cambridge: Cambridge University Press, 1997).
7. See Emanuel Adler, Barry Buzans Use of Constructivism to Reconstruct the
English School: Not All the Way Down, Millennium 34, no.1 (2005): 171-172.
8. Alexander Wendt, Social Theory of International Politics (Cambridge: Cambridge
University Press, 1999).
9. Martha Finnemore, The Purpose of Intervention: Changing Beliefs about the Use
of Force (ithaca, NY: Cornell University Press, 2003).
10. N. J. Wheeler, Saving Strangers: Humanitarian Intervention in International
Society (Oxford: Oxford University Press, 2000).
3
Millennium
background for warlike interactions (rather than directly evoking them),
by endogenously defining their targets, legitimate steps, and the actors
involved.
This article will indicate the constitutive relationship between
conceptions of rights and wars with three lines of argument. According to
the first, the exclusive/inclusive nature of conceptions of rights embedded
in international social structures create a tendency to conflict within the
international system. On the second level, I argue that the very definition
of an outcome in the international arena as a rights-violation situation
emotionally promotes the use of violence by the rights-holders or those
aiming to protect those rights. Finally, I maintain that rules of just war
that have morally and legally legitimated and institutionalised practices
of international wars since the Middle Ages evolve in tandem with the
contemporaneous conceptions of internationally defined rights. All three
arguments thus emphasise the constitutive impact that internationally
defined rights have on wars within the international arena, and hence
help reveal (at least partially) how wars are socially constructed.
However, as is appropriate for a constructivist generalisation,
this constitutive theorising is by definition historically, culturally, and
socially contingent. In order to complete the theoretical argument, the
constitutive role of rights in the social construction of wars, the article
will then show how different normative structures of internationally
defined rights constitute different practices of war. Hence, it will not
be restricted to examining practices of war between states, but rather
will examine the premodern and post-Westphalian historical periods,
characterised as they were by different social orders. On the one hand,
this could be considered as added value to the English School literature
that is interested in and, in fact, ontologically dependent on states as the
constitutive units of the international society. On the other hand, owing
to the risks attendant on using cases from different historical contexts, the
case studies chosen should be seen as illustrative examples rather than
full historical accounts of the episodes in question.
The article, then, takes snapshots of two disparate epochs of
European history, which clearly differ from one another with regard
to their intersubjective conceptions of international rights11 as well as
their practices of war: the medieval epoch and specifically the eleventh
to thirteenth centuries, characterised by conceptions of divine and
natural rights and by institutionalised practices of Crusades to the Holy
Land;12 and the late twentieth century, which witnessed the rise and
institutionalisation of human rights as an international norm along with
____________
11. Although language of rights is a modern concept; an underlying assumption
of this study is that concepts of rights and duties were present in the relevant
historical periods. At the same time, it is recognised that each period contains a
different understanding with regard to rights, and that rights are conditioned and
contingent on historical circumstances.
12. Wars other than the Crusades took place on European soil during that
period, i.e., feudal wars. Moreover, this period witnessed more specic and
4

the emergence of a new practice of humanitarian war in the form of
NATOs war in Kosovo. It is important to note that in considering these
distinct periods this article shows in a rather static manner the nature of
the constitutive relationship between normative structures of rights and
wars. As Wendt noted elsewhere:
Unlike causal theories, which explain events through time, constitutive
theories are static. Their goal is to show how the properties of a system
are constituted. The systems whose properties they explain may be
dynamic, [but] constitutive theories abstract away from processes
and take snapshots instead, in an effort to explain how systems are
constituted.13
Before the empirical illustrations, however, the next section sets forth a
conceptual framework that establishes a constructivist view of rights and
introduces a constitutive relationship between rights and wars. Next,
two empirical sections briefly demonstrate the constitutive relationship
between rights and wars in the context of each historical period by
identifying the specific historical periods structure of rights, that is,
the conceptions of law, rights, and obligations embedded in its social
structure, as well as the constitutive relationship between the periods
conceptions of rights and the characterising wars. Finally, concluding
remarks will suggest the main contributions of the article.

It would be difficult in an article of this length to develop a comprehensive
and detailed concept of rights. Thus, my intention in this part of the article
is first to introduce a brief general definition of rights, one that captures
____________
particularistic concepts of rights, which sometimes can be described as the
reasons for those feudal wars. However, I chose to focus on the medieval concept
of the divine law and its inuence on the Crusades for three major reasons. First,
though in the Middle Ages there was no notion of abstract rights, but only specic
rights, the only constant guiding principles were eternal justice and divine and
natural law, and despite the fact that those principles were articulated in terms
of law, they nonetheless implied a general form of rightsduties relationship
between man and divinity. Second, the eleventh and thirteenth centuries were
characterised by an appeal to wars outside the borders of Christendom, and by a
constant preaching of domestic peace between feudals. Third, during the Middle
Ages the Crusades were the phenomena most similar to international wars. R. S.
Lopez, The Birth of Europe (Tel-Aviv: Devir, 1996), 188; R. Alvarado, The Right to
Resist: Chapter 3, http:/www.wordbridge.net/ccsp/reso3.htm (1991), 23; Max
Weber, The Sociology of Religion (London: Methuen, 1966), xxxi; Walter Ullmann,
Law and Politics in the Middle Ages: An Introduction to the Sources of Medieval Political
Ideas (Ithaca, NY: Cornell University Press, 1975), 33.
13. Alexander Wendt, On Constitution and Causation in International
Relations, in The Eighty Years Crisis: International Relations 19191999, eds. Tim
Dunne, Michael Cox and Ken Booth. (Cambridge: Cambridge University Press,
1998), 105.
5
Millennium
an essentialist logical feature of any concept of rights, i.e., human rights,
states rights, as well as divine rights. Second, I emphasise the social
dimension of rights such as in the writing of Frost14 and Flathman15 (both
of which refer only to human rights) and present rights as constituting as
well as constituted by social reality. Finally and most importantly, I wish
to present a three-fold constitutive relationship between rights and wars
in the international arena.
The literature on rights does not offer a consensus on how to
define rights that is, what it means to assert that someone has a right
to something. Or, as Pierre Schlag put it, rights do not ensure an easy
identification.16 H. J. McCloskey, for example, maintains that the most
common feature of rights is the element of entitlement that they contain.
That is, even if rights are different from each other, what is common and
unique to all of them is the element of entitlement.17 The meaning of
entitlement is the judgement that a certain subject(s) or some category of
subjects is entitled to a particular set of outcomes by virtue of who they
are or what they have done.18 Accordingly, a subject is entitled to an
outcome regardless of a relational other.
Nonetheless, a large number of studies of the concept of rights, such
as the one made by the well-known jurist W. N. Hohfeld, have advanced
the view that a right is a claim against someone, thus that rights and
duties are correlatives. This is a different understanding of a right from
the one advanced by McCloskey. While, according to McCloskey, rights
as entitlements do not entail duties, Hohfeld emphasises the relation of
rights-as-claims to duties. However, according to McCloskey himself,
a right does not necessarily entail a duty, but it might, especially when
violated.19 Moreover, those studies that advance the idea that rights entail
duties differ from each other regarding the nature of the connection.
Some believe every duty necessarily entails a right, and every right, a
duty (such as Hohfelds). Other research, however, has sought to prove
that not every right has a correlative duty, and vice versa.20 Since the
notion of a duty that is correlative to rights has a constitutive impact on
wars, according to this article, I tend to incorporate the notion into my
understanding of rights.
____________
14. Frost, Ethics in International Relations.
15. R. E. Flathman, The Practice of Rights (Cambridge: Cambridge University
Press, 1976).
16. P. Schlag, Rights in the Postmodern Condition, in Legal Rights: Historical
and Philosophical Perspectives, eds. A. Sarat and T. R. Kearns (Ann Arbor: The
University of Michigan Press, 1996), 2634.
17. H. J. McCloskey, Rights, Philosophical Quarterly 15 (1965): 11618.
18. M. J. Lerner, Integrating Societal and Psychological Rules: The Basic Task
of Each Social Actor and Fundamental Problem for the Social Science, in Social
Justice in Human Relations: Societal and Psychological Origins, ed. Rel Vermunt and
Herman Steensma (New York: Plenum Press, 1991), 13.
19. H. J. McCloskey, Rights, Philosophical Quarterly 15 (1965): 117.
20. R. Martin and J. W. Nickel, Recent Work on the Concept of Rights, American
Philosophical Quarterly 17, no. 3 (1980): 1667.
6

According to Hohfeld, then, the term right is multiply ambiguous for
under that heading trade a number of quite distinct yet related deontic
normative conceptions. Every legal right is constructed by a complex
bundle of freedoms, claims, powers, and immunities that, in Hohfelds
view, are linked to legal duties because every legal right imposes one
or more legal duties on one or more sides. Thus, his contribution is
especially important in the context of the discourse on the correlation
between rights and duties.
Hohfelds contribution involves much more complex issues than
are presented here and that involve exposing the internal structure
of complex legal situations based on the thesis of fundamental legal
concepts formulated by him. According to Hohfeld, legal claim means
that one side X has a legal claim against a certain other side Y, that Y will
perform act A, if and only if Y has a legal obligation to X to perform A.
Legal freedom means that one side X has legal freedom vis--vis a certain
other side Y to perform act A if and only if X has no obligation to Y to
refrain from doing A. Legal power means that one side X has legal power
over a certain other side Y to impose specific legal consequences C on
Y, if and only if a certain wilful act by X will be legally recognised as
having these consequences on Y. Legal immunity means that one side X
has legal immunity vis--vis another side Y from a certain legal outcome
C, if and only if Y has no legal power to perform a certain act that will
be recognised by the law as having consequences C on X. In Hohfelds
view, only when the content of each legal right is expressed in terms of
these basic legal concepts will there be a full legal reality and will it be
characterised by sufficient precision.21
Whether the belief is that every duty necessarily entails a right, and
every right a duty, or that they might be correlative under circumstances,
what is most significant for the present work is the claim common to
all these studies that a right involves some sort of normative guidance
of behaviour of people other than those who hold the rights.22 In this
sense one may also say that duties provide, almost like rights, reasons
for action.23
Moreover, all this suggests that rights are meaningful within
relational normative positions and some form of social organisation.24
In this work, rights will be viewed generally as that which grants the
____________
21. For elaboration see clear presentation by David Rodin, War and Self Defense
(Oxford: Oxford University Press, 2002), 1723. W. N. Hohfeld Fundamental Legal
Conceptions: As Applied in Judicial Reasoning, ed. Walter Wheeler Cook (New
Haven, CT, 1964); C. Wellman An Approach to Rights: Studies in the Philosophy of
Law and Morals (Dordrecht: Kluwer Academic Publishers, 1997); Thomas Perry,
A Paradigm of Philosophy: Hohfeld on Legal Rights, American Philosophical
Quarterly 14 (1977): 4150.
22. Martin and Nickel, Recent Work on the Concept of Rights: 1667.
23. P. Montague, When Rights are Permissibly Infringed, Philosophical Studies,
53 (1988): 363.
24. Feinberg, The Nature and Value of Rights, 247; Flathman, The Practice of
Rights, 5; Frost, Ethics in International Relations, 1389.
7
Millennium
rights-holders a specific, positive power in the form of benefits, and
negative power (only semantically, however) in the form of responsibility
or obligation towards those against whom the right is claimed.25 They
establish a relationship between one party, which holds the right, and
another against whom the right is asserted, and sometimes also with a
third party that may intervene to defend the right.26 In the Middle Ages,
for example, only God could have claimed performance of duties as
his own due. In Modern International Society, it was the state that had
sovereign-right-monopoly vis--vis other states. Finally, the recognition of
human rights creates rights and obligations that compose moral relations
among all human beings. What is more, rights (and their correlative
duties or obligations) are meaningful not only because they create social
arrangements as suggested by Flathman, but also because they are
constitutive of the very agents that will be part of this setting by inviting
previously unknown agents into the game, while eliminating others.
Rights (and duties) have a constitutive impact on the expectations
of people, and in turn on peoples dispositions. Expectations define
the situation that people examine and in which they behave.27 Thus,
conceptions of rights conceptually enable reasonable, concrete, and
specific ideas about a possible and even essential, actual behavioural
option, thereby enabling the construction of real outcomes: reasonable,
because behaviour that could otherwise be considered arbitrary becomes
logical when it asks to exercise rights;28 essential, because rights also
construct conceptions about needs, conceived as legitimate.29 In other
words, the moment rights become widely acknowledged in a society, they
not only form part of the official belief system but also are acted upon,
and people are expected to modify their behaviour and to take account
of such rights held by others.30 However, rights not only enable a reality,
but they also restrict behavioural options. The constitutive character of
rights obliges the other to restrict itself and accept the powers of those
who possess the right.31 Thus, rights actually constitute the limits within
which a social choice is made, by excluding certain alternatives for action,
establishing others, and so forth.32
____________
25. Nicholas Onuf, Constructivism: A Users Manual, in International Relations
in a Constructed World, eds. Vendulka Kubalkuva, Nicholas Greenwood Onuf and
Paul Kowert. (Armonk, NY: M. E. Sharpe, 1998), 68.
26. Carl Wellman, A Theory of Rights: Persons under Laws, Institutions, and Morals
(Totowa, NJ: Rowman & Allanheld, 1985), 192 and 216.
27. R. J. Rummel, Understanding Conict and War (New York: J. Wiley, 1975
1981), 27.
28. Jeremy Waldron, A Right to Do Wrong, Ethics 92 (1981): 28.
29. David Miller, Social Justice (Oxford: Clarendon Press, 1976), 123.
30. Ibid., 70; Friedrich Kratochwil, Rules, Norms, and Decisions: on the Conditions
of Practical and Legal Reasoning in International Relations (Cambridge: Cambridge
University Press, 1989), 155 and 170.
31. Wendt, Social Theory of International Politics, 280.
32. L. A. Jacobs, Rights and Deprivation (Oxford: Clarendon Press, 1993), 35.
8

Finally, rights are themselves social constructs. Frost highlights this
mutually constitutive nature of rights when articulating his constitutive
theory of individuality according to which rights are not things possessed
by individuals prior to entering into social and political relationships.
Rather a person is constituted as a rights holder of a certain sort within
the context of a specific social relationship. At the same time institutions
are not prior to rights rights and institutions presuppose and imply
each other.33
It is important to emphasise not only the constitutive impact of
rights on social reality, but that they are being constituted as well. Rights
are or ought to be socially accepted, acknowledged, and defended.34 After
all, rights (as opposed to interests, for example) exist only if a critical
mass of people believe in their existence, in Xs entitlement to them. And
over time, they can also become rules or normative social structures at
the system level, when both mutual ideas of rights and social practices of
rights produce macro-features in individual behaviour and systematic
tendencies in international politics. This means that even if a right is
accorded to a certain person, it owes its existence to the social system within
which that person acts. Thus, the rights that are referred to in this article
are not specific rights (which tend to have a more regulative function)
but more abstract rights constituting the rules of the game and forming
the basis of other social, political, and economic interactions.35 This does
not mean practices of rights cannot be subject to debate and justifications.
Actors practices can perpetuate the structure, but also conceal it. The
obvious proof is the differentiation between social structures of rights
over time. As Coleman argues, the roots of rights cannot be found in a
given and fixed source of rights, such as God, or the individual person, but
rather in peoples minds; that is, they are the product of social acceptance
and of cultural and historical developments.36
The Constitutive Relationship between Rights and Wars

This article not only suggests that rights constitute reality but that
intersubjective rights have a unique constitutive impact on wars (at
least part of them) in the international arena.37 The constitutive impact
of rights on wars is expressed on three different co-existing levels.
According to the first argument conceptions of rights that are embedded
____________
33. Frost, Ethics in International Relations, 1389.
34. Rex Martin, Rights, Routledge Encyclopedia of Philosophy 8 (1998): 3267.
35. To elaborate on the nature of rights as rules see Richard Flathman, The
Practice of Rights. See also James S. Coleman, The Role of Rights in the Theory
of Social Action, Journal of Institutional and Theoretical Economics 149, no.1 (1993):
213 and 216.
36. Ibid., 216, 217, 222; See also Flathman, The Practice of Rights, 81 and 85.
37. In this study war is broadly dened as a conictual social behaviour
involving the legitimate, massive use of force by at least one social-political entity
against another.
9
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in international social structures create a tendency to conflict within
the international system. In Constructive Conflicts: From Escalation to
Resolution Kriesberg maintains that structural elements within a society
can sometimes compel its members to act in ways that create conflicts.
Those structural elements, he asserts, include cultural values, norms, and
institutions, which engender feelings that motivate members of social
systems towards aggressive behaviour.38
My claim is that an important feature of social norms that might
construct a tendency to conflict within a society is their subtracting
character. Conceptions of rights contain, in my view, this kind of feature; a
language of entitlement always presupposes one party that is found to be
just and another that is found to be wrong. In other words, conceptions
of rights give legal priority to the rights-holders in confrontations with
other parties.39
More specifically, the tendency towards conflicts within societies
depends on the degree of exclusivity of the conceptions of rights. The
argument here is that the more exclusive and absolute the conception
of rights, the more zero-sum the international relations. Constructing a
game as zero-sum (this time ideationally rather than materially) means
more aggression and violence.
Why do exclusive conceptions of rights bring a greater disposition
to conflict? The answer lies, I believe, in the non-acceptance and
differentiation that exclusive conceptions entail, and in the zero-sum
relationship they create. The parties interact within a social system that is
small and closed, thus increasing the prospects of collision.
A related argument is that the more inclusive the social structures of
rights, the less war-prone they will be. Inclusive social structures imply
acceptance and homogenising of differences within a society.
A societys degree of closure and openness is one explanation for the
conflictual or peaceful tendency of exclusive/inclusive social structures
of rights. Another explanation concerns the extent of social involvement
that these social structures foster. The assumption is that inclusive
conceptions of rights foster greater social activism and thus harmony
and peace, whereas exclusive conceptions of rights foster social passivity
and thus conflict. This assumption is based on the new communitarian
thinking,40 according to which inclusive communities should uphold
three principles: cooperative inquiry, mutual responsibility, and
citizen participation. Those principles encourage, in turn, a growing
responsibility among community members and the emergence of
common values, mutual support, and, eventually, cooperativity and
moral relationships. An opposite situation exists when individuals and
groups place their absolute and exclusive values or rights above others,
____________
38. Louis Kriesberg, Constructive Conicts: From Escalation to Resolution (Lanham,
MD: Rowman & Littleeld, 1998), 37.
39. Wellman, A Theory of Rights, 21112.
40. H. B. Tam, Communitarianism: A New Agenda for Politics and Citizenship (New
York: New York University Press, 1998).
10

and separate themselves from harmonious interactions with others. This
will presumably lead to isolation or, worse, to misunderstanding and a
tendency to conflict.
What if a societys structure of rights is multidimensional and
incorporates various concepts of rights? On the one hand, it seems that the
less one-dimensional the structure of rights, that is, the more varied the
conceptions of rights it contains, the larger the actors sphere of manoeuvre
will be, and the more it will allow mixed and even positive games
(that is, cooperative interactions). On the other hand, a multidimensional
structure can create a struggle between rights, especially if those rights
are conceived as absolute. The social construction of human rights, for
example, inclusive as they are, as natural rights, that is, absolute, can
make those rights become part of a rather enabling setting for wars. As
noted by A. I. Melden and J. W. Decew, absolute rights will always be just
regardless of the circumstances, other calculations or other rights. And
as maintained by K. Pennington, an absolute right is a right that can be
applied without limitation.41
The construction of human rights as absolute or holy could
construct a tendency towards conflict in the international social setting by
defining new forms of warlike behaviour, i.e., acting by force, if necessary,
to defend or restore those ultimate rights regardless of the circumstances,
other calculations, and other rights, i.e., the rights of the state.
According to the second argument on a constitutive relationship
between rights and wars, the very definition of an outcome in the
international arena as a rights-violation situation emotionally promotes
the use of violence by the rights-holders or those aiming at protecting
those rights. Here, the constitutive impact lies in intersubjective emotions
or feelings created by meaningful rights. According to Crawford, Feelings
are internally experienced, but the meaning attached to those feelings, the
behaviors associated with them and the recognition of emotions in others
are cognitively and culturally construed and constructed.42 My claim
here is that perceiving a situation as one of rights-violation produces
in a society an experience of threat and injustice emanating from an
intersubjective sense of entitlement.43 The sense of entitlement has such
a moral power, that when unsatisfied it induces intersubjective emotional
effects of distress, just anger, and aggression together with behavioural
____________
41. A. I. Melden, The Play of Rights, The Monist 56 (1972): 478502; W. J. Decew,
Moral Rights: Conicts and Valid Claims, Philosophical Studies 54 (1988): 6386;
K. Pennington, The History of Rights in Western Thought, <law. emory. edu>
(1998): 110.
42. Neta Crawford, The Passion of World Politics, International Security 24,
no.4 (2000): 125.
43. David Welch demonstrated the role of normative motivations in general,
and the justice motive in particular, in interstate conict. However, he focused
on the subjective conceptions of entitlement, and their function as indicators of
utility when expected utility theory is applied in practice, thus applying rather
a rationalist mode of explanation. Justice and the Genesis of War (Cambridge:
Cambridge University Press, 1993).
11
Millennium
outcomes of protest and sometimes even the use of violence aimed at
restoring justice and protecting what are conceived as essential needs.44
An influential theory in social psychology literature that deals with
the phenomenon of deprivation as leading to violence is the one focusing
on psychological states of relative deprivation and, despite the fact that
it deals with domestic violence, one can nonetheless learn from it about
similar behavioural processes in the international arena.
According to this theory, thus, psychological situations of anger
and resentment that cause popular civil uprisings are a product of a
contradiction between peoples valent expectations and the valent
capabilities of their surroundings. Valent expectations are the living
conditions people believe they are entitled to; valent capabilities are
the conditions that determine their chances to attain and preserve those
conditions.45 The state of frustration is caused when people confront a
physical or a social barrier when trying to attain or keep enjoying what
they are entitled to. It is important, of course, that people are aware of this
disturbance, that is, the emotional responses are in part based on peoples
evaluation of the situation. It is appropriate to cite Crawford in this regard
when writing that emotions, and behaviors associated with emotions
(e.g., aggression), are not natural but learned and reinforced through
social interactions.46 In sum, the constitutive impact of an intersubjective
recognition of rights or their violations on wars is partly revealed by
the constructed emotional reactions for rights-violations. Again, this
by no means insinuates a direct causal impact on wars, since the above
psychological behaviour constituted by the meaning attached to rights
or their violations will be experienced and expressed by the actors in
different forms depending on various variables.
The use of force depends on many other causal variables, especially
in the international arena. For example, the greater the injustice caused
by the rights-violation, the more radical the sense of distress and the
resulting reaction.47 Also, the experience of injustice has so strong an
impact not only because it involves a loss of outcomes or interests; rightsviolation also constitutes a threat to an important aspect of identity and
other values related to it, and, in fact, to the entire world that is built
on this conception of rights.48 It follows that the deeper and more solid
____________
44. Melvin J. Lerner, Integrating Societal and Psychological Rules: The Basic
Task of Each Social Actor and Fundamental Problem for the Social Science,
in Social Justice in Human Relations: Societal And Psychological Origins, eds. Rel
Vermunt and H. Steensma (New York: Plenum Press, 1991), 16; Michael Wenzel,
Justice and Identity: The Signicance of Inclusion for Perceptions of Entitlement
and the Justice Motive, Personality and Psychology Bulletin 26, no.2 (2000): 160.
45. J. B. Rule, Theories of Civil Violence (Berkley: University of California Press,
1988); T. R. Gurr and Charles Ruttenberg, The Conditions of Civil Violence: First Tests
of a Causal Model (Princeton, NJ: Center of International Studies, Woodrow Wilson
School of Public and International Affairs, Princeton University, 1967).
46. Crawford, The Passion of World Politics: 128.
47. Wenzel, Justice and Identity: 170.
48. Wenzel, Justice and Identity: 161 and 170.
12

the intersubjective identity, the more severe the reaction to the rightsviolation. The very identity of the conceived rights is also important;
the fact that human rights are also moral rights narrows the conditions
justifying the use of violence in a society holding such rights, even if the
aim is to defend those rights. Similarly important is the identification of
the agent responsible for the violation of rights (non-identification of that
agent can stem from the fact that the violation results from structural
variables or a new game in which the actors and their role are yet to be
identified), the expected outcome of the use of violence, and the perceived
coping capability; and finally, the broader normative context, that is, the
legitimacy of the use of force within the international society.
The last variable leads us to our third argument according to which
rules of Just Wars that have institutionalised practices of international
wars since the Middle Ages are viewed here as corresponding with
contemporaneous conceptions of rights. This argument in fact contains
two assertions. According to the first one, rules of Just Wars help wars
come into being by morally and legally legitimising certain wars within
the normative social structures. This is a different assertion from the one
made by English School writers such as Bull, for whom the rules of Just
Wars, instead, limit wars. Accordingly, just war theory and discourse
has also a permissive impact on agents and practices when articulating
which wars are just. Thus, although Just War discourse does not cause
wars directly, it constitutes peoples imagination regarding what type of
violence is eligible in international relations.
Hence, the article focuses especially on the jus ad bellum criterion
rather than the jus in bello criterion, because the former concerns the
conditions justifying the resort to war. In this context, two aspects are
examined: the perceived just cause of war, and the perceived legitimate
authority to conduct a war.
The second assertion maintains that throughout history, societies
perceptions about the legitimacy of a war and about the legitimate authority
for conducting it are formed according to the prevalent conceptions of
rights, thus emphasising the constitutive relationship between rights
and wars. Herein also lie two arguments. First, perceptions of Just War
have changed and will continue to change in tandem with social context.
Second, there is a constitutive relationship between conceptions of rights
and perceptions of Just Wars. A close investigation of the discourse of
the Just War theory indeed exposes this relationship according to which
Just War conceptions are constructed on the basis of broad conceptions
of rights. According to James Childress, the traditional criteria for Just
War emerged because war involves a conflict between basic, prima facie
obligations not to assault others. An assault means an unjust/sudden
damage or a violation of a right. A just cause of war is, accordingly, to
restore right wrongfully denied.49
____________
49. James E. Childress, Just-War Theories: The Bases, Interrelations, Priorities,
and Functions of their Criteria, Theological Studies 39 (1978): 427 and 436.
13
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In sum, intersubjective concepts of rights may have, according to this
article, constitutive effects on wars in the international arena. They
account for wars not in terms of the immediate choices that bring leaders
to decide to launch a war, i.e., why a certain war happened, but rather
by becoming part of an enabling ideational and social setting for wars.
However, this constitutive theorising is also historically, culturally
and socially contingent. The next step is then to show how different
normative structures of internationally defined rights constitute different
practices of wars by illustrating the constitution of wars by rights in the
context of two historical periods and ask not why, but rather how could
conceptions of rights shape practices of wars such as the Crusades, and
NATOs humanitarian intervention in Kosovo, thus helping them come
into being?
The Divine Right and the Crusades

In the year 1095, Pope Urban II announced the first Crusade in response to
the Byzantine Emperors call for help in the face of the Turkish invasion of
the Holy Land. From then to the thirteenth century, the Crusades became
an integral part of European life. Marcus Fischer gives a realist explanation
for this enterprise. Indeed, Fischer admits that many of the Crusaders were
inspired by a genuine religious motive next to their mundane concern
for a share in the spoils. However, it seems that their real interest, he
maintains, was to own new territories in the East and to implement their
self-interests (i.e., particular interests) as opposed to the universal idea
of the Christian Empire.50 Fischers explanation, however, takes interests
and warlike behaviour as already given in the Crusaders menu of choices.
It seems, according to his account, that what all Crusaders should do is to
decide where they want to gain some more profit/power, as if an armed
voyage to Jerusalem and against total strangers (the infidels) enters
naturally into their calculations. This section, on the other hand, aims to
demonstrate the constitutive impact of the cognitive social structure of
the medieval epoch, expressed in terms of the contemporaneous concepts
of rights, on the very feasibility of the Crusades.
In order to understand medieval cognitive structures, one should
start by acknowledging their divine content. The rules of behaviour in
the Middle Ages, according to Walter Ullmann, were not conceived as
legal or man-made; they were imagined to be transhuman, and above all,
eternal.51 It was the divine law that was considered the soul of the body
public, representing the pure idea of law and right, of norma recte vivendi.52
According to the latter, nature was a divine creation that should not and
could not be changed or dominated; the role of people was to adjust and
____________
50. Fischer Feudal Europe.
51. Walter Ullmann, St. Bernard and the Nascent International Law, Citeaux
10 (1961): 278.
52. Walter Ullmann, The Relevance of Medieval Ecclesiastical History (Cambridge:
University Press, 1966), 279.
14

identify with it.53 Violating the natural law was indeed perceived as a
violation of Gods rights.54
In the context of the new society promoted by the Christian doctrine,
a legal relationship between God and man was established, one involving
subjective rights55 and obligations. In this new society, the Christian was
to behave according to a new way of life, the novitas vitae, placing the
well-being of the Christian society ahead of his private interests. From
that day he could not conduct his life according to his natural human
wisdom; rather, he was obliged to behave according to the law dictated
by God.56 As a mere subject (sub/ditus), he had no role in creating laws
and no rights within or outside society; instead he had only duties: to
obey the divine and the natural law, to be fidelis.57
In sum, the concept of Divine Law and right not only constituted
the right way of life but also the functions and roles of individuals as
well as the question of governance. The early medieval king, from the
time of the Carolingians, was located at the top of the hierarchy of merits
among all men under his rule. His divine power was articulated by the
theory of the divine right of kings.58 Accordingly, the rulers role on
earth was to be Gods messenger. He had no rights, except to endow his
subjects with powers that could help him fulfil his duty to execute the
divine scheme.59
Yet, although the medieval kingship was indeed divine, the most
perfect articulation of the divine aspect of governance in the Middle Ages
was Gods vicar, the Pope.60 Since the twelfth century this recognition,
together with the secular authoritys inability to offer an alternative
____________
53. E. D. Nineham, Christianity Medieval and Modern: A Study in Religious Change
(London: SCM Press, 1993), 24.
54. Etienne Gilson, The Spirit of Mediaeval Philosophy: Gifford Lectures 19311932
(New York: C. Scribners Sons, 1936), 337.
55. The subjectivity of libertas (right), Hall claries, implied a reciprocal
relationship between the rights or privileges and duties or obligations associated
with ones estate or status in the natural hierarchy. R. B. Hall, Moral Authority
as a Power Resource, International Organization 51, no.4 (1997): 599.
56. Walter Ullmann, Law and Politics in the Middle Ages: An Introduction to
the Sources of Medieval Political Ideas (Ithaca, NY: Cornell University Press,
1975), 33 and 39.
57. Walter Ullmann, The Individual and Society in the Middle Ages (Baltimore:
Johns Hopkins Press 1966), 931.
58. Note that there is a difference between the medieval concept of divine right
and the modern one. Medieval monarchs were not judged sovereign in the
modern sense of possessing an unconditional right to rule. There was no sovereign
authority other than that of Christ. Kings were subject to the divine law, hence
to the Church and consequently to the bishops. See Hall, Moral Authority as a
Power Resource: 6001.
59. Walter Ullmann, The Cosmic Theme of the Prima Clementis and its
Signicance for the Concept of Roman Rulership, Studia Patristica 11 (1972):
8790.
60. Fritz Kern, Kingship & Law in the Middle Ages (Oxford: B.Blackwell, 1939), 8.
15
Millennium
truth, gave the Papacy great influence on European culture and politics.
So strong was its influence that, as Michael Mann puts it: Political class
struggles, economic life and even wars were, to a degree, regulated by an
unseen hand, not Adam Smiths but Jesus Christs.61
The medieval conceptions of divine law and rights not only created a
Christian Ecumene but also constituted the wars of this period, namely,
the Crusades. They constituted them, first, by creating exclusive and
absolute conceptions of law and rights, thus a tendency towards a total
conflict within the medieval international arena. Paul Rousset describes
medieval Christian society as enjoying an intimate union (lunion intime).62
And indeed, European people were reunited under the Catholic Church,
educated in the same traditions, and lived in a world of identical concepts
and attitudes.63 The conception of the law and the corporational elements
of medieval thinking fostered a sense of solidarity, as if the Christian
society was indeed a single whole.64
However, the same sense of intimate union implied an absolute
and exclusive centralisation of all aspects of life in one group; hence also
the creation of a sense of self-sufficiency, patriotism, and thus closure
and dogmatism.65 The situation of exclusive unity engendered a sense
of conflict with the other. Cognitive psychology researchers tend to
characterise the mentality of the Middle Ages as one that was unable to
accept other cultural or unorthodox truths and perceptions.66
In this regard, the status of infidels was perceived as being outside
both human and divine law, and this, according to Hostiensis, an important
canonist of the thirteenth century, was because with the coming of Christ
all jurisdiction and right were taken from the non-Christians and granted
exclusively to the faithful. Thus infidels, too, were subordinated to the
Church, and those who refused were subject to papal punishment that took
the form of inquisition within Christendom and of Crusades outside.67
The exclusive and absolute conceptions of law and rights constituted,
thus, the international wars of the era, the Crusades. They did not only
invite previously unknown agents into the game, i.e., milites Christi/
fideles Christi/ exercitus Dei versus the Infideles/ pagani/ Sarraceni, but
also constructed a zero-sum game in a social system that was small and
____________
61. Michael Mann, The Sources of Social Power (Cambridge: Cambridge University
Press, 198793), vol. 1, 398.
62. Paul Rousset, Histoire dune Ideologie: La Croisade (Lausanne: Lage dHomme,
1983), 18.
63. Joshua Prawer, The Latin Kindom of Jerusalem: European Colonialism in the
Middle Ages (London: Weidenfeld & Nicolson, 1972), 470.
64. Ullmann, The Cosmic Theme of the Prima Clementis: 88.
65. Gerhart B. Ladner, Aspects of Medieval Thought on Church and State, The
Review of Politics 9, (1947): 412 and 420.
66. Nineham, Christianity Medieval and Modern, 228.
67. W. L. Wakeeld, Heresy, Crusade and Inquisition in Southern France 11001250
(Berkeley and Los Angeles: University of California Press, 1974); J. Muldoon,
Popes, Lawyers, and Indels: The Church and Non-Christian World, 12501550
(Philadelphia: University of Pennsylvania Press, 1979), 16.
16

closed, thus increasing the prospects of collision, i.e., the Crusades, which
aimed in Urban IIs words for no less than the extermination of the vile
race, i.e., the pagans, from the lands of the Christians.68
Moreover, the Crusades were also constructed as a social-emotive
response to the violation of the divine law and rights. The Muslim
occupation of the holy places and Holy Land was perceived by Christians
as a violation of the divine order and rights,69 and thus as an offence, an
act disgracing God.70
It seems that a real sense of humiliation engendered feelings of hate,
anger, and resentment in the West as evidenced by many statements.71 For
example, Urban II, in preaching to the Crusaders, averred: you restrain
with righteous hatred the insolence of the infidels, who are trying to
subjugate kingdoms, principalities, and powers72; and St. Bernard, the
great preacher of the Second Crusade, encouraged the lively resentment
that was felt for the loss of church buildings used as mosques.73
The Crusades were perceived as a way of correcting the state of
things, of restoring order by rescuing the Christians legacy from usurpers.
The struggle for the restoration of the divine right was represented, on the
one hand, as a battle for liberation (of the Holy Land),74 and on the other
as a battle for revenge75 triggered by strong emotive reactions described
by researchers as collective spirituality,76 pseudo-mystic enthusiasm,77
total emotive involvement,78 and even as childish in the sense of
irrational, affective, and instinctive.79
Finally, as suggested by our third theoretical proposition of the
constitutive relationship between rights and wars, the Crusades were
constructed as just wars that actually received their legitimacy from the
existing conception of divine law and rights. Moreover, those conceptions
also constituted the legitimate agent to execute them; a prince and a
knight acting in the name of God, in the name of Christendom.
____________
68. H. G. Kenigsberger, Medieval Europe 4001500 (Addison-Wesley
Publishing Co., 1989), 163.
69. F. M. Stratmann, The Church and War, a Catholic Study (New York:
Garland,1971), 56.
70. Gilson, The Spirit of Mediaeval Philosophy, 340.
71. Prawer, The Latin Kindom of Jerusalem, 507.
72. Guilelmus, Archibishop of Tyre, twelfth century, A History of Deeds Done
beyond the Sea: By William, Archibishop of Tyre (New York: Columbia University
Press, 1943), 92.
73. Norman Daniel, Islam and the West: The Making of an Image (Edinburgh:
Edinburgh University Press, 1960).
74. Paul Alphandry, La Chrtient et lIde de Croisade (Paris: A. Michel, 1954
59), 27, 40, 93.
75. Rousset, Histoire dune Ideologie, 18.
76. Alphandry, La Chrtient et lIde de Croisade.
77. tienne Delaruelle, Essai sur la Formation de lIde de Croisade, Bulletin de
la Littrature Ecclsiastique 55 (1995): 5063.
78. J. F. Michaud, The History of the Crusades (New York: Ams Press, 1973).
79. Rousset, Histoire dune Ideologie.
17
Millennium
Muslim and Hungarian invasions of Europe as well as religious reforms
initiated by the Papacy in the tenth and eleventh centuries brought the
Church to transform the Just War theory, originating in the fourth century,
into a holy war conception. The reformist Popes who dominated
the discourse of the liturgics of wars, and of the sacraments, began
presenting the war as one aimed at protecting the common homeland,
namely, Christianity. The enemies came to be represented not as barbaric
invaders and robbers disrupting the domestic order, but as pagans. The
war in the service of the Church, either in its defensive form or as an
offensive war against the pagans in the Holy Land, became, indeed, holy,
and was eventually described as a crusade by Urban II.80 Furthermore,
the identity and role of the agents to perform the crusade began to centre
on Christianity, the divine law, and the related conceptions of rights and
duties. Although knighthood and chivalry marked Europe throughout
history, the Christian knights vocation was transformed, and his first
public obligation was to fight the enemies of the Church. Kings and
princes, as well, acquired a new function that transcended any national
affiliation and made possible the military expedition of various national
armies under one flag the flag of St Peter.
Pope Innocent IV (12541243) further elaborated the justification
for the Crusades when he asserted that the Pope had the right to ordain
a Christian invasion of the Holy Land so as to defend Christian rights
against an unjust Saracen occupation. In other words, he legitimised the
Christian invasion of pagan lands in terms of the Popes responsibility
towards non-Christians. According to this theory, the Pope was obliged
to punish non-Christians even by war in case they had violated the law
of nature or legitimate papal dictates.81
Individual jurists of the eleventh and twelfth centuries, such as Ivo of
Chartres, Anselm of Lucca, Gratian, and later St Raymond of Pennaforte
and Hostiensis, maintained that the aim of just wars was to preserve the
right way, or rights, and that they were to be conducted by the right
authority, that is, the king or the prince acting in the name of the Church.82
Thus, in such wars both ecclesiastical and secular authorities legitimised
violence against and killing of anyone considered to be violating divine
rights. Both Popes and jurists, on the other hand, repudiated other wars
until then considered just, such as the feudal wars on Christian soil.
To conclude, the medieval intersubjective conceptions of rights were
not the cause for the Crusades. Causal explanations for the Crusades
that explain how or why the Crusades came about include, for example,
economic accounts, according to which the Crusades are the result of a
____________
80. Carl Erdmann, The Origin of the Idea of Crusade (Princeton, NJ: Princeton
University Press, 1977).
81. James Muldoon, Popes, Lawyers, and Indels: the Church and Non-Christian
World, 12501550 Philadelphia: University of Pennsylvania Press, 1979), 510.
82. G. I. A. D. Draper, Grotius Place in the Development of Legal Ideas about
War, in Hugo Grotius and International Relations, ed. H. Bull, B. Kingsburg and A.
Roberts (Oxford: Clarendon Press, 1992), 182.
18

process of expansion aimed at gaining control of new regions and material
resources that characterised the eleventh and twelfth centuries. They
could have a realistic or strategic character and explain the crusading
enterprise as an act to protect the Byzantine Empire against the Turkish
occupation of Asia Minor, and sometimes as simply an act of conquest of
the holy places from Muslim hands.83
The above analysis is rather a constitutive one. It captures the
ideational and social elements that become part of an enabling setting or
background for the Crusades. Those elements are the medieval structure
of law and rights. They constituted a tendency towards a militant
institution such as the Crusades by their very definition as absolute and
exclusive, thus helping shape absolute wars that de-legitimised the other.
Second, they constructed in international social structures intersubjective
emotions of frustration and just anger when the divine law and order
were violated, and thus emotionally constituted a violent reaction. Third,
the medieval structure of law and rights promoted the development of
the Crusades by legitimising as just this type of war and the agents who
performed them.
Finally, one should ask whether in the absence of those constitutive
structures of rights the Crusades would have existed. After all, wealth,
new territories, and strategic and political assets could have been gained
elsewhere than Jerusalem. This article suggests that causal accounts
of the Crusades depend on the existing medieval structure of law and
rights that constructed reasons for actions, expectations, needs as well
as agents that, in turn, formed the basis of other social, political, and
strategic interactions. Those structures also allowed the consolidation of
meaningful concepts and discourse of security (of Christendom), religious
chivalry, messianic emperorship and monarchy that were embedded
with the very notions of rights and duties, and made the Crusades an
imaginable strategy available to the medieval man and ruler, even if it
was expressed as economic or political initiative.
Human Rights and NATO Intervention in Kosovo

NATOs military humanitarian intervention in Kosovo is not the first in
which states sought to protect minority rights. Yet, it is rightly viewed
as substantially different from past practices. It marked the first time
that an international organisation intervened because of intersubjective
norms rather than subjective or personal ideas that are embedded in
the international political social structure and are capable of placing the
protection of human rights before the preservation of a states political
and territorial sovereignty. This section will examine the constitutive
relationship between the current social structure of rights that incorporates
both perceptions of international human rights and state rights and the
use of force by revealing the way those perceptions define the cognitive
____________
83. J. A. Brundage, The Crusades: Motives and Achievements (Boston: Hodder &
Stoughton, 1966).
19
Millennium
horizons for practices of humanitarian interventions as demonstrated in
Europe by NATOs intervention in Kosovo.
Human rights are generally regarded in the West as a set of
claims for individual liberties, and for spaces in which individuals can
realise their plans.84 They are also considered universal in two respects.
First, since human rights are human in nature, all human beings are
considered eligible to have them; second, human rights are believed to be
internationally agreed upon.85
One of the UNs impressive achievements during its first fifty
years of existence is the promotion of an encompassing set of standards
for international human rights. This set of international standards of
behaviour is generally known as the International Bill of Human Rights.
The central documents are first and foremost the Universal Declaration of
Human Rights in which the international community recognises human
rights such as the right of every individual to freedom of movement
without the fear of harm, the right to physical security, the right not to be
subject to slave trade, the right not to be subject to torture, the right not
to be subject to genocide or apartheid, and the right not to be subject to
war crimes or crimes against humanity (these rights are the subject of the
Genocide Convention of 1948, and Geneva Conventions of 1949).
Moreover, there are two detailed and encompassing covenants on
human rights from 1966: the International Covenant on Civil and Political
Rights and the International Covenant on Economic, Social and Cultural
Rights, as well as many other treaties and regional covenants on human
rights that are already agreed upon or in the process of being ratified.
With regard to this evolution, it is important to note that while the idea
that a state should respect human rights is not new and can be dated back
to the eighteenth century, the idea that human rights are an integral part
of foreign affairs and international relations marks a new development in
the post-WWII period.86
This cognitive and social development is crucial because it invites
new actors, i.e., individuals, into the international arena. After all,
until recently only states were the subjects of rights and duties in the
international system. Moreover, the discourse of human rights also
____________
84. Alan Gewirth, Common Morality and the Community of Rights, in
Prospects for a Common Morality, ed. Gene Outka and John P. Reeder (Princeton:
Princeton University Press, 1992), 36.
85. Jack Donnelly, Universal Human Rights in Theory and Practice (Ithaca, NY:
Cornell University Press, 1989), 1.
86. H. K. Jacobsen, The Global System and the Realization of Human Dignity
and Justice, International Studies Quarterly 26, no.3 (1982): 3212; W. J. Dacyl,
Sovereignty versus Human Rights: From Past Discourses to Contemporary
Dilemmas, Journal of Refugee Studies 9, no.2 (1996): 150; P. Magnarella, Universal
Jurisdiction and Universal Human Rights: A Global Progression, Journal of Third
World Studies 12, no.2 (1995): 1689; K. K. Pease and D. P. Forsythe, Human
Rights, Humanitarian Intervention, and World Politics, Human Rights Quarterly
15 (1993): 2947.
20

emphasises the idea of accountability within the international society.87
This also has a tremendous constitutive impact on international practice,
since it incorporates not only individual agents but, by promoting
conceptions of communal responsibility, brings communal responders
other than states into the game as well.
While the development of a notion of international responsibility
took place after the end of WWII and was expressed in the development
of the International Criminal Law Regime and in the activity of several
international governmental organisations (IGOs) and non- governmental
organisations (NGOs), it was the discourse of the new interventionism
and subsequent General Assembly and Security Council resolutions
during the conflicts in northern Iraq in 1991, in Somalia in 1992, and in
Bosnia-Herzegovina in 19925 that laid the ground for it. In fact, these
constituted a breakthrough in which human rights discourse took root,
and the practice of military humanitarian interventions emerged. The UN
declaration from January 1992 asserting that the non-military sources of
instability in the economic, social, humanitarian, and ecological fields
have become threats to peace and security was especially important
in transferring the right - indeed the sovereignty - of the state in the
international arena in favour of international representatives such as the
UN and the Security Council in cases where a government fails to fulfil
its basic obligations towards its population.88
How, then, did this development in perceptions of rights and duties
in the international arena become an enabling environment for practices
of humanitarian interventions in general and for NATOs intervention in
Kosovo in particular?
With regard to the nature of rights embedded in the international
social structure, it seems that the inclusive character of human rights
affects not only the actors taking part in the international game but also its
very nature. On the one hand, the inclusive model of cultural behaviour
constituted by human rights can lead to social openness, social solidarity,
and harmonious practices resulting from respect for the heterogeneity of
cultures and social groups, and to a communitarian concept of human
relations entailing the ideas of reciprocity and acceptance.89 On the other
hand, however, the current structure of rights harbours the possibility of
war, resulting, first, from a process of absolutisation that conceptions
of human rights are undergoing, and second, from a possible conflict
between different conceptions of rights embedded in the social structure.
Specifically, the universal and inclusive principles of human rights may
____________
87. Kate Raworth, Measuring Human Rights, Ethics & International Affairs 15,
no.1 (1999): 115.
88. S. M. Makinda, Sovereignty and International Security: Challenges for
the United Nations, Global Governance 2 (1996): 153; D. P. Forsythe, The UN
and Human Rights at Fifty: An Incremental but Incomplete Revolution, Global
Governance 1 (1995): 310.
89. Donnelly, Universal Human Rights in Theory and Practice, 112 and 116; Gewirth,
Common Morality and the Community of Rights, 43.
21
Millennium
come to be conceived as absolute some would even say religious or
holy in that they represent a worldview that gives people an ultimate
definition of their function in the world by positing a set of final goals.
This process could construct a tendency towards conflict in the social
setting by defining new forms of warlike behaviour, i.e., acting by force,
if necessary, to defend or restore those ultimate rights.
Also, since human rights were embedded in the international
social structure along with the rights of the state, the result is a
complex, multidimensional structure of rights enabling a new kind of
humanitarian war. After all, existing concepts of the rights of the state
did not vanish once human rights were placed on the agenda; they exist
side by side in a very fragile balance, which can be disrupted anytime
that human rights undermine the traditional organisational structures of
territorial sovereignty. In fact, this tension is the focus of Mervyn Frosts
Ethics in International Relations. According to Frost, it seems that there is
an antipathetic relationship between norms relating to the preservation
of the system of states and sovereignty on the one hand, with those
norms relating to the protection of individual rights on the other.90 The
existing doctrine of the right to intervene (based on the Contractarian
rights-based theory) gradually challenged the international traditional
and legal structure, and the idea of sovereignty on which it was based.
According to this doctrine, the states power should be subordinated
to the principle of an extreme emergency situation the necessary
minimum for protection of human rights.91 This process constructs new
reasoning for conflicts and wars in the social background.92
NATOs war in Kosovo was in fact, according to such a view, a
microcosm of the events taking place in the larger international social
structure and to a great extent a by-product of them. Human rights were
conceived by leaders as universal and inclusive, thus encompassing
the Albanian population as well; they were also conceived as absolute,
thus justifying to put a stop to ethnic cleansing the violation of
the exclusive right of the state, in this case Serbias right to political and
territorial independence. As Jacques Chirac asserted: human rights is
a notion which today has imposed itself and has opposed the normal
____________
90. Frost, Ethics in International Relations, 135.
91. Olivier Corten, Humanitarian Intervention: A Controversial Right, http:/
www.unesco.org/courier/1999- 08/uk/ethique/txt1.htm (1999), 2.
92. In fact, Frosts aim is to develop an alternative theory to the Contractarian
rights-based theory that will reconcile the will to preserve the society of states and
sovereignty together with the will to preserve human rights, a constitutive theory
of individuality. This theory shows the mutual constitutive relationship between
human rights and sovereignty, thus assigning neither of them an ontological
precedence. In any case, this new cognitive structure continues to imply the
possibility of violence as constituted by those norms. Its added value is rather a
new normative tool to judge cases of violence in the international arena. See Ethics
in International Relations.
22

centrifugal forces in the life of nations and the relations they might
have.93
At the same time, the intersubjective recognition of international
human rights constructed intersubjective emotions of aggression in
the reality of international relations in general, and within Europe
in particular, aiming to avenge and repair those rights when violated.
NATOs humanitarian intervention in Kosovo was enabled, according
to this view, by this structural emotional environment. Frequently, in
fact, humanitarian interventions are described as stemming from a
sense of humanitarian urgency or shock of conscience experienced by
those who witness the travails of a defenceless population. Backing for
NATO action (in Kosovo) appeared also to be emotional, inspired by the
news and pictures of massacres and the stream of refugees, rather than
political.94
One of the explanations for these sentiments is our ability to
understand others to enter into their minds, identify with their pleas;
in short, the ability to empathise. Such empathy is based on the respect
we feel towards other people and their rights. Our response to violations
of that respect is not general or faceless. Even though human rights is an
abstract idea, the conditions under which peoples live, their experiences
of repression, torture, hunger, and the like, are transmitted to us in
concrete images.95
The humanitarian impulse is not, however, the result of shocking
images alone, but also of the threat that human rights violation poses
to an evolving common identity, the identity of the (global) culture of
human rights. This identity stems from an education of sentiments in
which the focus of emotion passes from the national community to the
international community, when rights are given priority over the state.96
That is why ethnic cleansing in Europe was seen as a threat to the new
European order represented by European institutions, NATO included.
This article suggests, then, that NATOs strong reaction in Kosovo
was also promoted by intersubjective emotions of anger and aggression
emanating from a sense of injustice when basic human rights were
violated in the heart of Europe. Those emotions were socially constructed
____________
93. Jacques Chirac, A Press Conference, http:/www.info-france- usa.org/
nato50/chi2399a.htm (23 April 1999).
94. Alexander McCleod, France: Kosovo and the Emergence of a New European
Security, in Alliance Politics, Kosovo, and NATOs War: Allied Force or Forced Allies,
eds. Pierre Martin and Mark R. Brawley (Basingstoke: Palgrave Macmillan, 2000),
124.
95. Nancy Sherman, Empathy, Respect and Humanitarian Intervention, Ethics
& International Affairs 12 (1998): 10912, 117.
96. Nicholas J. Wheeler, Agency, Humanitarianism and Intervention,
International Political Science Review 18, no.1 (1997): 925, 19; Amir Pasic and
Thomas G. Weiss, The Politics of Rescue: Yugoslavias Wars and the Humanitarian
Impulse, Ethics & International Affairs 11 (1997): 105.
23
Millennium
and became part of an enabling setting for the use of force in order to stop
human rights violation.
Finally, NATOs military humanitarian intervention in Kosovo was
enabled by its construction as a Just War that received its legitimacy
from contemporary conceptions of human rights. According to modern
international law, states are the subjects of rights and duties in the
international system. Until recently, they had the exclusive right to
defend their claims by force based on the statist theory of just and unjust
wars.97 Although rights of individuals gained international recognition,
no one could have imposed them by force since this would challenge the
predominant norm of the international society, the sovereignty of states.
Over the past decade, however, the rules favouring the rights of states
have made room for other rights, namely, those of human beings.
According to the literature on humanitarian intervention and just
war proliferating in the 1990s, not only states but also individuals have
rights in international law. Scholars identifying with this discourse, such
as David Luban, grant states the right to conduct a war against other states
so as to impose basic human rights.98 Mervyn Frost, although referring to
an alternative normative theory to just war theory, nonetheless justifies an
outsiders intervention in cases where the constitutive institutions of the
international and civil society are being violated.99 This literature asserts
that in light of the multiplying rare cases where the United Nations has
approved intervention, the right of humanitarian military intervention is
becoming institutionalised. Based on the Genocide Convention of 1948
and Geneva Conventions of 1949, some writers use the terminology of
genocide to justify intervention; some use broader definitions, maintaining
that massive human rights violations fit the category of just cause. As
to the question of the legitimate authority, most writers agree that the
international community is the proper agent.100
Not only has the academic discourse, however, testified to the
change in the concept of just war. In recent years heads of government
have discussed the sufficient conditions to justify an international action,
the agents to perform it, and the different causes of such an action.
Furthermore, in a reflection adopted in 1993 by the American bishops
entitled The Harvest of Justice Is Sown in Peace, they summed up the
principles of the just war tradition. According to those principles, the
use of force is just only in order to repair damage or some public evil,
that is, an aggression or a massive violation of basic rights of entire
____________
97. Walzer, Just and Unjust Wars.
98. David Luban, Just War and Human Rights, in International Ethics, eds.
Charles R. Beitz, Marshall Cohen, Thomas Scanlon and A. John Simmons.
(Princeton, NJ: Princeton University Press, 1985), 238.
99. Frost, Ethics in International Relations.
100. Martha Finnemore, Constructing Norms of Humanitarian Intervention,
in The Culture of National Security; Norms and Identity in World Politics, ed. Peter J.
Katzenstein (New York: Columbia University Press, 1996), 1812.
24

populations.101 The Security Council, too, has broadened its definition of
threats to peace since the war in northern Iraq in 1991 so as to justify
the increasing willingness to ignore states claims of sovereignty in order
to protect by force massive violations of human rights.102 Such was the
case in Somalia when in December 1992 the Security Council adopted
Resolution 794 calling for a secure environment for humanitarian
organisations asking Member States and the UN to assist, and in BosniaHerzegovina when a UN resolution of July 1992 referred to the need to
ensure the security of Sarajevo. The latter broadened NATOs mandate to
take all necessary measures, including the use of air power, to safeguard
the secured zones.103
In sum, the concept of rights on which international society in
general, and European society in particular, is based has now changed
the context in which war is perceived to be just, thus constituting an
enabling institutional setting for a new kind of war. One of the bases
for NATOs justifications for the intervention in Kosovo was the legal
framework, formal and customary, that has developed since 1945, which
justifies military humanitarian interventions. This rhetoric was not merely
a rationalisation for the action; on the contrary, it expressed developing
constitutive norms in the international system. As Chancellor Gerhard
Schroeder stated in explaining the legitimacy of NATOs war in Kosovo
at a meeting with Kosovar refugees in May 1999:
we have to tell our people why it is that we are ghting our people
are opposed to war and theyll only understand this is necessary if
we manage to persuade them and to convince them that we have to
help, because its a matter of preserving very important rights the
right to live in freedom, the right to live in safety.104
In conclusion, several explanations for NATOs intervention in Kosovo

adduce NATOs crisis of identity and credibility in the post-Cold
War era.105 Other arguments emphasise neorealist and neo-Marxist
____________
101. Hugh Beach, Secessions, Interventions, and Just War Theory: The Case of
Kosovo, http://www.pugwash.org/reports/rc/beach.htm (2000).
102. D. Smith, Interventionist Dilemmas and Justice, http://www.nupi.no/
UN/Chapter1.html (1999): 17.
103. I. Osterdahl, By All Means, Intervene!: The Security Council and the Use
of Force Under Chapter 7 of the UN Charter in Iraq (to protect the Kurds), in
Bosnia, Somalia, Rwanda and Haiti, Nordic Journal of International Law 66 (1997):
248, 2545.
104. Gerhard Schroeder and Bill Clinton. Remarks and Discussion with Kosovar
Refugees, http:/www.usembassy.de/clinton99/schroeder.htm (1999).
105. Bryony Fox and David Hudson, Social Constructivism Applied: Kosovo
and Its Implications for the Global Order in the New Millennium, http:/www.
ukc.ac.uk/politics/erwp/Koso.htm (2000); Adam Wolfson, Humanitarian
Hawks? Why Kosovo but not Kuwait? Policy Review, 98 (2000): 98; Joyce P.
Kaufman, NATO and the Former Yugoslavia: Crisis Conict and the Atlantic
Alliance, Journal of Conict Studies (Autumn, 1999): 27; Adam Roberts, NATOs
Humanitarian War over Kosovo, Survival 41, no.3 (1999): 108.
25
Millennium
explanations, such as NATOs willingness to impose a Western diktat
in the Balkans, military and ideationally, while using the rhetoric of
human rights hypocritically; along with realistic security concerns to
NATO and Europe.106 It appears, however, that an evolving normative
background and social structure in the form of conceptions related to
human rights were essential to constructing intervention even if that
intervention aimed at restoring NATOs credibility, exporting some sort
of Western imperialism or aiming at achieving security.
Last but not least, one should also note that the social structure of
rights can be evoked only to account for what actually did happen and
could not have happened if not for those structural conditions. Questions
of why human rights lead to intervention in one instance but not in others
require other kinds of explanations and causal theories.
Conclusion
What is the role of intersubjective perceptions about rights in the
international arena in the social construction of wars? The article lays the
ground for a constitutive theoretical framework in order to account for this
question. Furthermore, the article illustrates via two cases from different
social and historical international contexts the Crusades in premodern
Europe and military humanitarian interventions in post-Westphalian
Europe not only the general constitutive impact of rights on wars,
but also how this impact is contingent on the different social meanings
attached to rights, the results of which are different realities of war.
The empirical examination reveals that in both epochs rights become
part of an enabling setting for wars by creating a tendency to conflict
within the international system because of their subtracting character.
Moreover, in both societies an emotional and social-psychological reaction
to the violation of perceived rights was constructed, and in both, rights
played a role in legitimising the use of force via the institutionalisation
of just war discourse. Nonetheless, the discussion also demonstrates the
differentiation between the two periods resulting, inter alia, from different
perceptions of rights.
The article shows that the different nature of the conception of
rights promotes the development of different wars. Christian medieval
society, for example, believed in divine rights that were perceived as
____________
106. Tariq Ali, Springtime for NATO, New Left Review 234 (1999): 6272: 64;
Noam Chomsky, The New Military Humanism (Monoroe, ME: Common Courage
Press, 1999), 14; Edward Said, Protecting the Kosovars? New Left Review, (1999):
735; Arthur Paecht, Kosovo as a Precedent: Towards a Reform of the Security
Council?: International Law and Humanitarian Intervention, NATO Parliamentary
Assembly Report. http:/www.naa.b/publications/comrep/1999/as244cc-e.html
(1999), 7; Kim Nossal and Stphane Roussel, Canada and the Kosovo War: The
Happy Follower, in Alliance Politics, Kosovo, and NATOs War: Allied Force or Force
Allies, ed. Pierre Martin and Mark R. Brawley (Basingstoke: Palgrave Macmillan,
2000), 192.
26

natural, sacred, and absolute. The fulfillment of the divine command was
regarded as necessarily total, and thus also the enemy was portrayed in
demonic terms. The Crusades, as wars that de-legitimise the other, could
have been imagined due to the claim that there is one true faith and it
necessarily exists in conflict with other religions. Moreover, conceptions
of divine law and rights in the Middle Ages were used by the Church
to translate Just War thinking into Holy War ideas that constituted an
enabling institutional background for the Crusades. Moreover, those
conceptions also constituted the legitimate agents to execute them: a King
and a Christian knight acting in the name of God and of Christendom.
In a post-Westphalian society that believes in universal human
rights, the inclusive nature of rights can facilitate a more harmonious
international arena. However, the fact that international human rights
exist side by side with conceptions of rights of the state in a very fragile
balance constructs new reasoning for conflicts and wars into the social
background, such as NATO humanitarian war in Kosovo 1999. This
article also shows that over the past decade rules favouring the rights of
states have made room for other rights, namely, those of human beings,
resulting in the justification of humanitarian wars. Furthermore, the war
in Kosovo manifested the legitimacy of the new actors in international
relations to conduct wars. This was a humanitarian war that was waged
by an international security organisation, whose legitimacy to use force
stemmed from its being an agent of the defence of human rights.
In conclusion, this articles main contribution is its theoretical
framework of the constitutive impact of rights, as a special kind of
normative structure, on wars and its discussion of the more general
concept of rights as conflictual norms. Second, the choice of the above
cases further develops a constructivist generalisation according to which
constructivist theorising must by definition be historically, culturally, and
socially contingent.107 Finally, a selection of broad historical examples
disproves neorealists claim that actors behaviour in anarchy is not
fundamentally altered by variations in normative or historical context.
Tal Dingott Alkopher is Lecturer at The University of Haifa.
____________
107. Christian Reus-Smit and Richard Price, Dangerous Liaisons? Critical
International Theory and Constructivism, European Journal of International
Relations (1998): 2712.
27
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The Role of Rights in the Social Construction of Wars

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