In the second chapter of The Morality of War, Brian Orend argues that a state forfeits its rights if it has committed an act of aggression against another state. This stipulation is necessary to satisfy Orend's Core Principle on Aggression, which allows a state to defend itself with lethal force only if such means do not violate human rights. However, Orend begs the question in the argument he uses to justify this stipulation. Fortunately for Orend's theory, however, we can find sufficient justification for it elsewhere in the chapter.
Orend's assertion that an aggressor state, A, must forfeit its rights when it attacks a victim state, V, is necessary for the logical integrity of Just War Theory as a whole. Were this not the case, it follows logically from Orend's acknowledgement of state rights that V would be committing a moral wrong - violating another state's rights - in going to war even to defend itself. This prospect, a central part many interpretations of pacifism, is completely opposed to the concept of just war theory, which explicitly allows wars of self-defence. Furthermore, V's choice to make war against A, resulting in a violation of A's rights, would evidently justify A in going to war as well to defend against this violation. Though Vitoria indeed accepted this “comparative justice” as feasible, Orend does not allow for such an eventuality to occur in his theory. Clearly, the stipulation that an aggressor forfeits its rights is vital to Orend's case.
The reasons Orend gives to justify this stipulation are intrinsically based in V's right to defend itself. Orend writes that “the weight of reasons in this case must draw on those just offered in defence of V's entitlement to resort to force in the first place.” Orend's arguments earlier in the chapter for these reasons are compelling. Briefly summed up, it is “unreasonable, unfair, oblivious of responsibility, and at odds with implicit entitlement” to declare that V cannot resist A's aggression with lethal force. Based on these reasons, Orend thus feels able to argue further that, since V has the right to defend itself, A must therefore not have the right for this not to be done. Thus, Orend declares, A must have forfeited its rights. Despite his compelling reasons, however, Orend does not employ any independent justification for this declaration. In fact, he appears to beg the question: he argues that V may defend itself because A gave up its rights, and that A must have given up its rights because V has the right to defend itself. This form of argument is not ideal at best and completely baseless at worst.
For other reasons, as well, Orend's argument does not seem to hold up against criticism. One example follows. According to Orend, humans have the right to be socially recognised as people. Now, let us introduce Andreu, who refuses to accept the validity of human rights. Andreu, thus, is unwilling to recognize anyone else as a person. Of course, it does not necessarily seem to follow that we must reject Andreu's right to be recognized as a person. Similarly, Orend's refusal to ascribe rights to a state does not follow simply because this state violated the rights of another.
Despite Orend's dubious justification for his view that an aggressor does indeed give up its rights, it nevertheless follows from other arguments in the same chapter that this principle is valid. We must merely accept Orend's argument that states which are not “minimally just” do not have the right to go to war. A minimally just state is, Orend explains, one that is generally recognized by its own people and by the international community, avoids violating the rights of other countries, and make every reasonable effort to satisfy the human rights of its citizens. If A violates the rights of V through an unjust invasion, then A no longer may be considered a minimally just state, and can by Orend's argument therefore be deprived of its rights. This line of reasoning compliments Orend's explicit argument that A forfeited its rights, and is not subject to any of the same pitfalls: it does not justify V's right to defence with circular logic.
Thus, the validity of Orend's principle that an aggressor forfeits its rights may derived not from his own explicit reasoning, but instead from his arguments concerning minimally just states.
Some may argue that this situation is not entirely analogous. Refusing to recognize Andrew as a person does not help the rest of humankind become recognized as a person by Andrew. In Orend's case, however, refusing to give the aggressor any rights actually allows the victim to preserve its rights (through defence). However, to argue that a rejection of someone's rights based on their refusal to accept another's rights is valid in one case (an aggressive state) and not in another (Andreu) purely based on the usefulness of doing so in the one case does not seem ideal. The argument I have put forward represents legitimate cause for concern.
