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Unjustified Harm

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This chapter examines the condition that, for a state to owe asylum as reparation to refugees, they must have suffered unjustified harm or be at risk of such harm. Given that this condition raises the possibility that some displacement may be caused justifiably, Souter questions what form states’ reparative obligations towards refugees would take if this were so. The chapter distinguishes between potential cases in which displacement may be straightforwardly just, and those in which it could conceivably be a tragically justified matter of ‘dirty hands’. Souter argues that, given the international normative context in which tragically justified displacement would occur, considerations of fairness would mean that reparative obligations for this kind of displacement should be attributed to the international society of states at large.


  • Asylum
  • Reparation
  • Refugees
  • Responsibility
  • Dirty hands
  • Humanitarian intervention

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  1. 1.

    Given the close relationship between human rights violations and forced migration, some have formulated a ‘human right not to be displaced’ (Stavropoulou, 1994). For discussion of a ‘right to stay’, see Oberman (2011).

  2. 2.

    Recent theoretical work has characterised the harms of displacement in various ways. For instance, Serena Parekh (2017: ch. 3) points to the ‘ontological deprivation’ of statelessness and refugeehood, while Jennifer Kling (2019: ch. 4) highlights forms of oppression faced by refugees. For a more general account of the harms of displacement, see Nine (2018).

  3. 3.

    In this chapter, I follow Joel Feinberg (1987: ch. 1), who understands harm as entailing a serious setback to one’s basic interests. Some applications of the concept in discussions of asylum and migration have been broadly similar to this approach, in seeing harm as involving a process in which one is rendered worse off than one otherwise would have been (Gibney, 2004: 49), or as a serious setback to one’s basic welfare interests (Wilcox, 2007: 279).

  4. 4.

    It is important to note that the notion of ‘justified displacement’ contains an ambiguity, for it could apply to cases in which the act of directly and intentionally causing displacement may be justified, or to cases in which displacement may be the unavoidable side-effect of a justified action. While I briefly discuss intentional displacement in the following section, my main concern in this chapter is with cases where displacement occurs as a by-product of other actions. The general phrase ‘justified displacement’ is intended as shorthand to refer to both kinds of case. I am grateful to an anonymous reviewer for prompting this clarification.

  5. 5.

    This has clear implications for the way in which the second condition of my theoretical framework—that the refugee must either have experienced unjustified harm or be at risk of unjustified harm—should be interpreted. Having denied that wrongdoing is a necessary condition for the bearing of a reparative obligation, it would not now be consistent to contend that a state must have caused harm to refugees through its unjustified actions in order to owe them reparation. Rather, I contend that states must have, whether or not they acted wrongly, harmed refugees by placing them in unjustified situations. Daniel Butt (2009: 85) makes a similar distinction.

  6. 6.

    As Matthew Gibney (2013: 116) has noted, the notion of ‘forced migration’ is highly value-laden and is often seen as itself morally impermissible, which may explain the reluctance to see practices such as deportation, which are often viewed as morally legitimate, as they really are, as forms of forced migration ‘par excellence’ (emphasis in original).

  7. 7.

    For a critique of liberal defences of violence more broadly along these lines, see Neu (2017).

  8. 8.

    One obvious resource for this discussion is the tradition of just war theory—which outlines conditions under which the recourse to and conduct of war may be just—and, indeed, I draw on some concepts and arguments advanced by just war theorists in this chapter where relevant. I do so, however, without endorsing this body of theory as an approach to the ethics of war overall. For relatively rare applications of just war theory to forced migration, see Banta (2008), Davidovic (2016, 2018), and Kling (2019: ch. 3).

  9. 9.

    This stands in contrast to harm that is only justified, a term I use to point to cases in which an action is permissible despite the pro tanto wronging it involves.

  10. 10.

    These two conditions very roughly mirror some of the principles, found within just war theory, of jus ad bellum (the justice of the resort to war), and jus in bello (the justice of the conduct of war) respectively (see Caney, 2005: 191–192).

  11. 11.

    I write ‘willingly’ because there are complications involved in viewing those coerced into warfare through conscription as liable for harm. For related discussion, see, for instance, Mapel (1998).

  12. 12.

    One limited exception here could be the strictly time-limited, ordered and dignified evacuation of civilians for their own safety as part of a fully justified intervention. As Michael Walzer (1977: 191) has suggested, ‘…in a conventional war, removing civilians from a battlefield is clearly a good thing to do’. However, I set aside this kind of case because, if the evacuation were undertaken humanely and justly, it is unlikely that asylum would be needed by the evacuees in question as a result of it.

  13. 13.

    For an individual to be ‘innocent’ in this context, all is meant is that they pose no unjust threat to other parties to a conflict, rather than being morally unblemished in all respects. This stands in contrast to some humanitarian discourse, which at times implicitly bases individuals’ entitlement to aid on a broader, somewhat inchoate notion of innocence (see Ticktin, 2016: 257).

  14. 14.

    Kling (2019: 33) establishes this conclusion by using an analogy with the hypothetical case of a confrontation between two mobsters involving innocent bystanders.

  15. 15.

    Given my view that, possible cases of humane and temporary civilian evacuation aside, only willing and unjust aggressors could be displaced in a straightforwardly just manner, I do not engage with the question of what forms of reparation would be owed for just displacement in this chapter. This is because those unjust aggressors, if displaced justly, would not be owed reparation at all according to the principle of reparation proposed in this book. Unlike innocent bystanders, such aggressors would neither have been displaced by unjust actions nor placed into unjust situations, given that any ensuing hardship would be the result of a just response to their willing aggression. This, however, is not to rule out that they may be entitled to humanitarian assistance, provided this would not enable them to engage in further acts of unjust aggression.

  16. 16.

    For the related argument that ‘justified wars are tragic…in the broad sense of inescapably involving moral wronging’, see Neu (2013: 461). However, Neu (2013: 477) assumes the possibility of justified wars ‘for the sake of the argument’, and states in his later work that he does ‘not think that wars that kill innocents can be, or ought to be attempted to be, morally justified’ (Neu, 2017: 124, emphasis in original).

  17. 17.

    In this chapter, I use the notions of ‘tragically justified action’ and ‘dirty hands’ interchangeably.

  18. 18.

    For a tentative discussion of moral remainders in relation to war refugees, see Kling (2019: 38–39).

  19. 19.

    Discussions of dirty hands often focus on conflicts between political and personal morality and between deontological and consequentialist moral considerations. Dirty hands cases involving the production of refugees could involve both kinds of conflicts, where politicians order refugee-producing actions that would be clearly wrong if undertaken in a personal capacity, or where they are undertaken given consequentialist considerations of what is the lesser evil. These forms of conflict do not exhaust dirty hands cases, however, for such cases can also be seen as stemming from conflicts among plural values (de Wijze, 2018: 131).

  20. 20.

    For discussion of the appropriate emotional reactions to dirty hands, see, for instance, de Wijze (2005).

  21. 21.

    More broadly, as Michael Neu (2013: 474–475) has effectively demonstrated, the simple act of imagining that you are presenting a theoretical justification of violence to an actual victim of that violence can be enough to reveal the fundamental ‘monstrosity’ of that justification.

  22. 22.

    It could be objected that traditional deontological moral theory also appropriately takes into account the interests and perspectives of the victims of harm, for these accounts give ‘agent-relative’ reasons not to use persons merely as means to ends (Nagel, 1986: 175). However, a purely deontological perspective can be faulted for ignoring the reality of exceptionally urgent situations in which basic individual interests need to be set aside for the sake of overridingly important outcomes. The dirty hands thesis, in contrast, captures the importance of both individual interests and the potential need to override them by claiming that this overriding can be justified overall while nevertheless leaving a moral remainder given the impact on the victims created in the process.

  23. 23.

    If, however, one rejected these general reasons in support of the dirty hands thesis, then one may be disposed to view the cases of tragically justified displacement that I envisage in this chapter as instead being straightforwardly just, and as causing harm without being wrong. Recognising that the dirty hands thesis is controversial within contemporary political theory, the argument of this chapter can be seen as taking the form that ‘if one accepts the dirty hands thesis, then there is reason to view cases where civilians are displaced as tragically justified’.

  24. 24.

    For instance, while some theorists see fairly run-of-the-mill immoralities in ordinary political life as creating dirty hands, others—such as Walzer in his later work (1977; 2004)—see dirty hands as a possibility only in much more extreme cases, such as conditions of ‘supreme emergency’ (see Coady, 2018). In de Wijze’s view, ‘[g]enuine DH [dirty hands] scenarios lie on a continuum ranging from those involving relatively minor infractions to cases where there is the commission of terrible moral crimes’ (de Wijze, 2018: 132).

  25. 25.

    While there are other forms of military intervention (such as that undertaken in self-defence), and other kinds of state policy (such as development-induced displacement) that could conceivably involve tragically justified displacement, I use humanitarian intervention as my key example here.

  26. 26.

    The following features of dirty hands cases are not intended as a comprehensive account of formal conditions, and may need to be supplemented in order to fully capture the nature of such cases.

  27. 27.

    It is, however, debatable as to whether this should be seen as a necessary condition for a dirty hands case, as it may be that natural phenomena could place individuals in situations in which they dirty their hands. I am grateful to Christina Nick for this point.

  28. 28.

    If, however, it could be shown that the need for wrongdoing is the result of the states’ own culpable actions, this would not be a genuine case of dirty hands, but would rather be what Michael Neu (2013: 461) has dubbed an ‘inauthentic’ tragedy. As Anthony P. Cunningham (1992: 240) has put it, ‘[i]f a serious moral failure on my part places me in a moral tight spot, then this is something that I brought on myself; hence, it is not a case of dirty hands’.

  29. 29.

    There is notable overlap here with some criteria of just war theory, such as the requirement that ‘the war has a reasonable chance of meeting its objectives’ (Caney, 2005: 192). However, whereas just war theorists often view the harms of war within a ‘neat binary moral structure of right and wrong’ (Neu, 2013: 461), dirty hands theorists believe that, even if such criteria were fulfilled, a moral remainder would persist.

  30. 30.

    It could be objected that, given the chaotic nature of warfare, there will be deep epistemic problems involved when seeking to determine whether a putative case of justified displacement is just, tragically justified, or simply unjust. In such cases, the political and deliberative approach suggested in Chapter 4 could also serve as a means of justifiably assigning reparative obligations to refugees in these kinds of case.

  31. 31.

    The question of whether reparation is owed in dirty hands cases does not appear to have been given any sustained theoretical attention. In a partial exception, de Wijze (2005: 460) includes ‘the desire to do reparations’ in his conception of ‘tragic-remorse’, which he sees as an appropriate response to ‘the anguish of dirty hands’ and has argued that reparation in dirty hands cases can be a means ‘to uphold the inviolability of certain central and cherished moral values’ (de Wijze, 2013: 891). For similar assertions, see, for instance, Digeser (1998: 709), Levy (2007: 50) and Nussbaum (2000: 1009).

  32. 32.

    The notion of the ‘international society of states’ has been developed by the influential English School of international relations (see e.g. Linklater & Suganami, 2006).

  33. 33.

    As Walzer (2004: 20–21) has written in the context of humanitarian intervention more broadly, requiring the interveners to rebuild seems to imply that ‘[t]he work of the virtuous is never finished’, which ‘does not seem fair’. Nevertheless, he goes on to assert without argument that, despite this appearance of unfairness, this is an ‘accurate account of the distribution of responsibility’.

  34. 34.

    Although my focus in this section has been on reparative obligations that would arise from tragically justified humanitarian intervention, similar conclusions could be reached concerning other dirty hands cases involving forced migration. For instance, a version of this argument from fairness may also hold in the case of tragically justified displacement resulting from wars of self-defence, given the particular international normative context in which they would occur. This is because the self-defending state need not be thought of as merely protecting its own commanding interest in engaging in such a war, but also as discharging a collective responsibility by defending the international norm of self-determination in which all states have an interest. If this is the case, then reparation to those uprooted would also be owed by international society in this kind of scenario as well.

  35. 35.

    However, there is at least one scenario in which reparative obligations should rebound back to the dirty-handed actor. It may be that, if non-intervening states continued to behave unfairly and refused to contribute to reparation for tragically justified displacement, then the moral need for reparation to be provided means that the intervening state should step in and take up the slack. For debate over states’ duties to ‘take up the slack’ in the context of refugee protection, see Miller (2007: 226, 2016: 83–93) and Owen (2016b).

  36. 36.

    For analysis of factors determining which states should intervene, see Pattison (2010).

  37. 37.

    It may be that some states would genuinely be unable to welcome refugees displaced by a tragically justified intervention either. However, all but the most debilitated states would be able to make some contribution to the realisation of reparative justice for refugees in line with their capacity, whether in terms of monetary contributions to their protection in other states, or policies to facilitate the creation of the conditions that would allow for their safe and voluntary repatriation.

  38. 38.

    It could be objected here that this would be to ask too much of dirty-handed states, given that they would have done the right thing by acting in ways that created refugees, and that only an acknowledgement of the harm would be required. However, this would underestimate the extent to which dirty hands cases involve uncancelled wrongdoing despite this justification, which require rectification in line with the severity of the harms caused. For the view that reparative obligations in cases of justified harm are weaker than in cases of unjustified harm, see Fabre (2016: 153).

  39. 39.

    I am grateful to Christina Nick for prompting this point.


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Souter, J. (2022). Unjustified Harm. In: Asylum as Reparation . International Political Theory. Palgrave Macmillan, Cham.

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