JUST WAR THEORY. Laurens van Apeldoorn. Introduction

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1 CHAPTER FOUR JUST WAR THEORY Laurens van Apeldoorn Introduction It is often said that just war theory is the dominant intellectual tradition in the ethics of war. The ethics of war is a subfijield of philosophy aimed at providing a systematic investigation of the normative principles that apply to conduct in warfare. In identifying just war theory as the dominant position in this fijield, the term is usually used to refer to a loosely connected body of philosophical reflection that can be traced back to philosophers of Greek and Roman antiquity, scholastic theologians such as Thomas A quinas ( ), Francisco de Vitoria ( ), Francisco Suarez ( ), Alberico Gentili ( ), and (early) modern philosophers such as Hugo Grotius ( ), Samuel von Pufendorf ( ), Emerich de Vattel ( ), and Immanuel Kant ( ). These thinkers stake out measured defenses of the permissibility of resorting to war, and for that reason, just war theory is often contrasted with realism and pacifijism realism, very roughly, being the view that moral concerns have no place in the subject of warfare that, in Thucydides words, the strong do as they wish and the weak sufffer as they must, and pacifijism being the view that resorting to war can never be morally justifijied. Between these extremes just war theory is thought to establish a middle ground. Like realism it recognises that warfare is a necessary evil and can therefore sometimes be morally justifijied. On the other hand it acknowledges, like pacifijism, that warfare has many morally reprehensible consequences and ought to only be pursued as a last resort. As several commentators have recently pointed out, however, the indiscriminate use of the term just war theory is potentially misleading (Haggenmacher 1992; Reichberg 2008). They argue that we should instead identify two general approaches or paradigms within the tradition, which they call the just war and the regular war paradigm respectively. Although authors in the tradition often do not fall neatly into either category, the internal consistency of the paradigms can be brought out clearly enough to help us better understand the nature of the debate. This is in 53-64_HWANG-CERNA_F6.indd 53

2 54 laurens van apeldoorn part due to a closely related distinction: the evaluation of warfare can be divided into two fundamentally distinct issues. On the one hand, there is a set of issues related to the decision to use force. Such considerations are commonly referred to with the Latin phrase jus ad bellum the rightfulness of resorting to war. On the other hand, there is a set of issues related to conduct in war. Once the fijighting has started one might ask what is permitted, required, or forbidden in the conduct of hostilities. These are so called jus in bello considerations rightfulness in war.1 The just war paradigm is centrally concerned with whether the resort to force is just or lawful and is therefore most closely associated with jus ad bellum. The regular war paradigm, conversely, primarily focuses on jus in bello. 1. The Just War Paradigm A canonical example of the just war paradigm can be found in the work of Thomas Aquinas, the thirteenth century Catholic theologian and philosopher. Aquinas identifijies just cause as one of three conditions that must hold to justify waging an offfensive war. A just war, Aquinas writes, is customarily described as one that avenges wrongs, when a nation or state has to be punished, for refusing to make amends for the wrongs inflicted by its subjects, or to restore what it has seized unjustly (Aquinas 1920: IIaIIae.40.1). A just cause for war is the redress of some past wrong by another party. In a just war there will therefore be always one party (a state or political community) that has acted unjustly and is therefore liable to an attack. The two other conditions for a just war are fijirst that the war is initiated by a legitimate authority and is publicly announced, and secondly that it is fought with the right intention. With regard to the former, Aquinas argues that this is so because war is aimed at redressing injustices. If an individual seeks to right an injustice it is possible to pursue his or her cause within the institutions of the state. Political communities themselves, however, have no such avenues open to them. That is why in order to secure justice and protect the common good, legitimate political authorities must have the right to declare war. With regard to the latter condition Aquinas argues that a war is unjust if waged with 1 One can also distinguish a third set of issues, jus post bellum, justice in the peace settlement but that falls outside of the scope of this introductory chapter. See for example Bass (2004) _HWANG-CERNA_F6.indd 54

3 just war theory 55 an intention other than to correct the wrong that has been committed. Personal enrichment or vengeance can never be an appropriate aim in warfare (Aquinas 1920: IIaIIae 40.1). Aquinas is not very explicit about the kinds of wrongs that constitute a just cause. He distinguishes obliquely between requirements of defensive and offfensive war. Defensive war, or self-defence, is legitimate and can be pursued by individuals as well as the state. For if his sole intention be to withstand the injury done to him, and he defend himself with due moderation, it is no sin (Aquinas 1920: IIaIIae.41.1). Offfensive war, however, does not merely consist of the defending one s interests against an attack, but aims for the punishment or rectifijication of some wrong. This distinction between defensive and offfensive war is taken up by Thomas de Vio, better known as Cajetan ( ), in his commentary on Aquinas. He maintains that while a private person is free to repel force by force, only the state is also allowed to exact revenge for injuries to itself or its members not only against its subjects, but also against foreigners (Cajetan 2006: 242). This punitive right forms the basis for the legitimacy of offfensive wars, for, as he points out elsewhere, if this were not the case, since an equal has no empire (imperium) over his equal, all wars would be unjust with the exception of defensive ones (Cajetan 2006: 248). The Spanish philosopher and theologian Francisco de Vitoria also follows Aquinas distinction between defensive and offfensive war. In his work On the law of war we fijind an explicit discussion of the kinds of considerations that are a just cause for offfensive wars. A diffference of religion cannot be a just cause, and neither can the enlargement of empire or the personal glory or convenience of the prince (De Vitoria 2006: 313). Harm or injury, in the form of physical injury, stolen or damaged property, or breach of territorial integrity, is the only just cause for offfensive warfare. But the response must be proportional; it is not lawful to persecute those responsible for trivial offfenses by waging war upon them (De Vitoria 2006: 314). This is what in more recent times has come to be known as the proportionality condition, which can be summarised by the idea that the good to be achieved by war must outweigh the harm. In more recent restatements of the just war paradigm, the emphasis has come to lie squarely on one particular wrong, namely the act of aggression. Whereas the above-mentioned philosophers are primarily concerned with analysing and justifying offfensive wars, modern day just war theories generally identify defence against aggression as the only just cause for war. The prime example of this tendency is Michael Walzer s famous Just and unjust wars (1977), which will be discussed in greater detail below _HWANG-CERNA_F6.indd 55

4 56 laurens van apeldoorn Regardless of the way in which just cause is characterised, what is particular about just war theories is that waging a war is seen as analogous to the imposition of a punishment for a crime. In a war combatants are considered to be in a morally asymmetrical relationship, with one party fijighting a just war and another party acting unlawfully by being guilty of a crime. On this conception, the unrighteous adversary was not even deemed a belligerent; he was merely the rebellious object of armed coercion (Reichberg, Syse & Begby 2006: 227). This has consequences for the way in which jus in bello considerations are treated. The rights of combatants in bello are directly derived from the justness of their cause. The party who acts unjustly in fijighting a war, conversely, has no right to conduct hostilities, not even in self-defense. The asymmetric characterisation of jus in bello is reflected in the writings of the above mentioned philosophers. Aquinas does not say much about how to conduct hostilities although he intimates that even fijighting a just war binds one to observing some principles, as there are certain rights of war and covenants, which ought to be observed even among enemies.2 However, those who go into battle against a party that has just cause have no in bello rights, they have no recourse to self-defense and are guilty of strife and commit sin (Aquinas 1920: IIaIIae.41.1). De Vitoria engages more extensively with the question what may be done in the conduct of a war, setting out various jus in bello conditions. A warring party that has justice on its side may do everything that is necessary to secure the public good; it may also reclaim all the losses caused by the perpetrator as well as the costs of the war, and perhaps above all, it may do everything in a just war which is necessary to secure peace and security from attack (De Vitoria 2006: 315). Further he maintains that one may plunder and enslave innocent persons in so far that this may be necessary to ensure victory. And he also allows for the execution of enemy combatants if they would otherwise form a threat. But these rights and obligations are only meant to apply to the actions of just parties. Others have no in bello rights due to the injustice of their cause. 2. The Regular War Paradigm While the just war paradigm focuses primarily on identifying jus ad bellum, the regular war paradigm focuses on jus in bello considerations. 2 While discussing the permissibility of ambushes in a just war (Aquinas 1920: IIaIIae.40.3) _HWANG-CERNA_F6.indd 56

5 just war theory 57 Central to the structure of regular war theories is the idea that the relationship between warring parties is symmetrical that each party in the conflict has an equal status with corresponding rights and duties. These theories are called regular in the sense that war is understood to be conducted in accordance with certain accepted or adopted regulations, standards, or norms.3 Instead of focusing on the question who in a conflict has just cause, the warring parties are formally placed on an equal footing, as in a dual (Haggenmacher 1992: 435) and have therefore access to the same rights and prerogatives in bello. Raphael Fulgosius ( ) is sometimes said to have been the fijirst to state the regular war paradigm s central principles. The question Fulgosius asks is: how is it that the one who wages an unjust war acquires the ownership of the things he captures through his unjust action? (Fulgosius 2006: 228 9). Those thinkers working within the just war paradigm would deny that one acquires ownership of things captured unjustly. But F ulgosius asks this question in a commentary on ancient Roman law where the legal efffects of war did generally apply, irrespective of just cause. F ulgosius responds that this is due to the uncertainty about who is right and who is wrong in a war. There is no common judge to decide on the question. Instead, he writes, we must let war be the judge (Fulgosius 2006: 229). What matters, he reiterates is that the war is public, that is, that it was declared by someone who could do so, that is, an independent nation or an independent king. Besides that, there is no inquiry into the cause for which the war was begun, nor about whose cause is just (Fulgosius 2006: 229). Like Fulgosius, Alberico Gentili aims to draw out the implications of the conception of law found in the writings of Roman jurists, and like Fulgosius he accepts what just war theorists strenuously deny: that war may be waged justly on both sides. This claim seems to be based on epistemological considerations considerations that can also be found in De Vitoria, which shows the difffijiculty of neatly placing authors in either paradigm.4 Because it is often hard, if not impossible, to know whose cause in a conflict is just we must instead aim at justice as it appears from man s standpoint (Gentili 2006: 374). From our perspective it often 3 Regular as in conformable to some accepted or adopted rule or standard; or made or carried out in a prescribed manner; recognized as formally correct (Reichberg 2008: 16). 4 For example, de Vitoria writes that, it may happen that one side has justice on its side, and other side falsely, but in good faith, believes it is right: then the war is also just for the other side, because they wage war in good faith and are hence excused from sin (de Vitoria 2006: 322) _HWANG-CERNA_F6.indd 57

6 58 laurens van apeldoorn appears that both contending parties have a just cause. It is therefore best to grant the rights of war to both sides in all cases except those where the injustice of a cause is clearly evident. Emerich de Vattel is particularly noteworthy among the various thinkers that in subsequent centuries further elaborated this regular war paradigm. A Swiss philosopher and diplomat, Vattel develops a detailed theory of belligerent rights and obligations in his most famous work The law of nations. Like other proponents of the regular war paradigm he embraces the idea of a just cause but denies its practical relevance (Vattel 2006: 512). He advances a powerful consequentialist argument for the separation of jus ad bellum and jus in bello. If belligerent rights are dependent on having a just cause, and each Nation claims to have justice on its side, then the contest will become more cruel, more disastrous in its efffects, and more difffijicult of termination. Rather, while sovereigns are bound by considerations of just cause in conscience, in the public consideration war in due form, as regards its efffects, must be accounted just on both sides and all laws of war apply to belligerents in equal measure. This is the voluntary Law of Nations, embraced by the tacit consent of all, and established from necessity and for the avoidance of greater evils (Vattel 2006: 515). 3. Michael Walzer In contemporary debates about the ethics of warfare no other book has had the impact of Michael Walzer s Just and unjust wars. Written with the aim of bringing consistency to common sense moral judgements as well as drawing on established international law, it can be read as an attempt to combine elements of both the just war and the regular war paradigm. On the one hand, Walzer defends the importance of strong jus ad bellum requirements for legitimate warfare. He maintains that any use of force or imminent threat of force by one state against the political sovereignty or territorial integrity of another constitutes aggression and is a criminal act (Walzer 2006: 62). Conversely, it is the act of aggression, and the act of aggression only, that warrants taking up arms either by the victim in self-defence or any other member of the international community in aid of the assaulted party. More specifijically he identifijies the following jus ad bellum principles, which together amount to an account of what is a just cause for war: 53-64_HWANG-CERNA_F6.indd 58

7 just war theory 59 1) Any use of force or imminent threat of force by one state against the political sovereignty or territorial integrity of another constitutes aggression and is a criminal act. 2) Aggression justifijies two kinds of violent response: a war of self-defense by the victim and a war of law enforcement by the victim and any other member of international society. 3) Nothing but aggression can justify war. 4) Once the aggressor state has been militarily repulsed, it can also be punished. (Walzer 2006: 60 61) Walzer admits that several amendments must be made to the equation of just cause with self-defense against the crime of aggression. In particular he argues that the very values that underlie the principles above seem to require that we sometimes disregard the territorial integrity and political independence of states. The prime example of this is what is often called humanitarian intervention. When states are involved in massive violations of human rights the appeal to political independence seems to lose its force, and waging a war to aid those in need can be considered just (Walzer 2006: 101). Another example is assistance to secessionist movements, which Walzer takes to be appropriate if the democratic character of the movement is established. In short, while Walzer allows exceptions to the general rules, he approvingly quotes De Vitoria who maintains that there is a single and only just cause for commencing a war, namely, a wrong received (Walzer 2006: 62). Walzer grounds these claims ultimately in the rights of individuals. States have these rights of territorial integrity and political sovereignty because their citizens have the right to defend themselves, freely associate and determine their lives as they see fijit. On the other hand he also embraces a number of jus in bello principles largely taken from international law. In particular he defends the moral equality and symmetrical rights of combatants and the inviolability of non-combatant immunity. These are what he calls principles of the war convention (Walzer 2006: 151). He further emphasises the principles of necessity and proportionality in the conduct of hostilities that demand that the harms are necessary means to the victory and the end of hostilities that are appropriately weighed against the contribution that mischief makes to the end of victory (Walzer 2006: 129). Echoing Vattel, and in conformity with the structure of the regular war paradigm, Walzer maintains that these in bello rules of war are made obligatory by the general consent of mankind. They are the answer of human kind to the realities 53-64_HWANG-CERNA_F6.indd 59

8 60 laurens van apeldoorn of warfare: Only because there is no escape from hell, it might be said, have we laboured to create a world of rules within it (Walzer 2006: 47). Walzer thus identifijies the following jus in bello conditions: 5) Symmetrical liability of combatants ( symmetry thesis ) 6) Non-combatant immunity 7) Utility and proportionality The jus ad bellum and jus in bello principles are strictly independent ( independence thesis ), so that in bello considerations apply regardless of the justice or injustice of the belligerent s cause for resorting to war. As Walzer writes: Jus ad bellum requires us to make judgements about aggression and selfdefense; jus in bello about the observance or violation of the customary and positive rules of engagement. The two sorts of judgement are logically independent. It is perfectly possible for a just war to be fought unjustly and for an unjust war to be fought in strict accordance with the rules. (Walzer 2006: 21) For example if a soldier fijighting in an aggressive (and therefore unjust) war kills another soldier, it is not considered murder, even though his side of the conflict has no just cause. Much of the subsequent work on the ethics of war has grappled with the implications of Walzer s view. Walzer has been criticised both on historical and on systematic grounds. With regard to the former, Walzer has been faulted for claiming that the independence thesis and the symmetry thesis are central elements of traditional just war theory (Reichberg 2008: 193). Indeed, the previous discussion has shown that many important proponents of the just war paradigm explicitly denied both. With regard to the systematic aspects of his view it can be argued that Walzer brings together elements of the just war paradigm and the regular war paradigm in a marriage that is not an altogether happy one. Accordingly, several contemporary theorists have shown the fragile stability of Walzer s theory. David Rodin argues that the independence thesis leads Walzer to a striking paradox: An aggressive war as a whole is a crime (given Walzer s principle 1), but each individual act in the conduct of hostilities that together makes up this crime are entirely lawful (given principle 5). Such a war, the just war theory seems to be saying, is both just and unjust at the same time (Rodin 2002: 167). Jefff McMahan follows the proponents of the just war paradigm in denying the symmetry thesis. He argues that one only becomes liable to an attack if one is responsible for 53-64_HWANG-CERNA_F6.indd 60 5/22/2013 5:03:51 PM

9 just war theory 61 an unjustifijied act of aggression. Simply by posing a threat to someone, for example, one does not give others the right to self-defense. Otherwise the police would forfeit their right not to be attacked by criminals they justifijiably threatened. The correct criterion of liability to attack in these cases is not posing a threat, nor even posing an unjust threat, but moral responsibility for an unjust threat (McMahan 2008: 21 2). Thus, McMahan denies that the symmetry thesis can be defended and instead follows Aquinas, Cajetan and others in maintaining that jus in bello is dependent on the justice of one s cause. Conclusion The selected reading include extracts from Michael Walzer s Just and unjust wars. In the passage from chapter four we fijind a defense of the jus ad bellum conditions summarised above. In the extracts from chapters eight and nine Walzer outlines the jus in bello conditions. This introduction has shown that jus ad bellum and jus in bello considerations can be understood as deriving from two intellectual traditions the just war paradigm and the regular war paradigm respectively. It is this division that explains the difffijiculty at the heart of Walzer s theory. The dualism of jus ad bellum and jus in bello, Walzer rightly points out, is at the heart of all that is most problematic in the morality of war (Walzer 2006: 21). Guiding Questions a. Why can only aggressive war create a just cause for war? Or, in W alzer s words, why does the concept of aggression have a special place in the theory of war? b. How does Walzer derive the rights and obligations of states? Do you think his argument is successful? c. Walzer denies that the killing in war of one soldier by another is analogous to killing in society. Why? According to Walzer, what are the diffferences? d. Simply by fijighting, whatever their private hopes and intentions, they have lost their title to life and liberty, and they have lost it even though, unlike aggressor states, they have committed no crime (Walzer 2006: 136; see also Walzer 2006: 144 footnote). Why? Do you agree? e. Do you think that Walzer s jus in bello and jus ad bellum requirements can be consistently unifijied in one theory? 53-64_HWANG-CERNA_F6.indd 61 5/22/2013 5:03:51 PM

10 62 laurens van apeldoorn Selected Reading Walzer, M., 2006, Just and unjust wars (4th ed.), Basic Books, New York. 1. Chapter 4 (pp , 58 59, 61 64) 2. Chapter 6 (pp , ) 3. Chapter 8 (pp , ) 4. Chapter 9 (pp , ) Further Reading Haggenmacher, P., 1992, Just war and regular war in sixteenth century Spanish doctrine, International Review of the Red Cross, Luban, D., 1980, Just war and human rights, Philosophy and Public Afffairs 9(2), McMahan, J., 2008, The morality of war and the law of war, in D. Rodin & H. Shue (eds), Just and unjust warriors, pp , Oxford University Press, Oxford., 2009, Killing in war, Clarendon Press, Oxford. Nagel, T., 1979, War and massacre, in M. Cohen, T. Nagel & T. Scalon (eds), War and moral responsibility: A philosophy and public afffairs reader, pp. 3 24, Princeton University Press, Princeton. Norman, R., 1995, Ethics, killing and war, Cambridge University Press, Cambridge. Reichberg, G.M., Syse, H., & Begby, E. (eds), 2006, The ethics of war, Blackwell, Oxford. Reichberg, G.M., 2008, Just war and regular war: Competing paradigms, in D. Rodin & H. Shue (eds), Just and unjust warriors, pp , Oxford University Press, Oxford. Rodin, D., 2002, War and self-defense, Clarendon, Oxford. Rodin, D., 2008, The moral inequality of soldiers: Why jus in bello symmetry is half right, in D. Rodin & H. Shue (eds), Just and unjust warriors, pp , Oxford University Press, Oxford. Walzer, M., 2006, Just and unjust wars, 4th edn., Basic Books, New York. Case Study Guiding Questions a. Which justifijications were used to justify the resort to arms? Did they conform to Walzer s jus ad bellum conditions (conditions 1 4)? 53-64_HWANG-CERNA_F6.indd 62 5/22/2013 5:03:51 PM

11 just war theory 63 b. Identify the various actors in the conflict. Do you think that their resort to warfare was morally justifijied? Why? c. Which justifijications were used to justify the conduct in war? Did they conform to Walzer s jus in bello conditions (conditions 5 7)? d. For each of the actors in the conflict, do you think that the conduct of the hostilities was morally justifijied? Why? References Aquinas, T., 1920, Summa theologiae, transl. The English Dominican Fathers, Burns, Oates, and Washburne, London. Bass, G.J., 2004, Jus post bellum, Philosophy and Public Afffairs 32(4), Cajetan, 2006, Summula, in G.M. Reichberg, H. Syse & E. Begby (eds), The ethics of war, pp , Blackwell, Oxford. De Vitoria, F., 2006, On the law of war, in G.M. Reichberg, H. Syse & E. Begby (eds), The ethics of war, pp , Blackwell, Oxford. Fulgosius, R., 2006, In primam Pandetarum partem Commentariam, in G.M. Reichberg, H. Syse & E. Begby (eds), The ethics of war, pp , Blackwell, Oxford. Gentili, A., 2006, On the law of war, in G.M. Reichberg, H. Syse & E. Begby (eds), The ethics of war, pp , Blackwell, Oxford. Haggenmacher, P., 1992, Just war and regular war in sixteenth century Spanish doctrine, International Review of the Red Cross, Luban, D., 1980, Just war and human rights, Philosophy and Public Afffairs 9(2), McMahan, J., 2008, The morality of war and the law of war, in D. Rodin & H. Shue (eds), Just and unjust warriors, pp , Oxford University Press, Oxford. McMahan, J., 2009, Killing in war, Clarendon Press, Oxford. Nagel, T., 1979, War and massacre, in M. Cohen, T. Nagel & T. Scalon (eds), War and moral responsibility: A philosophy and public afffairs reader, pp. 3 24, Princeton University Press, Princeton. Norman, R., 1995, Ethics, killing and war, Cambridge University Press, Cambridge. Reichberg, G.M., Syse, H., & Begby, E. (eds), 2006, The ethics of war, Blackwell, Oxford. Reichberg, G.M., 2008, Just war and regular war: Competing paradigms, in D. Rodin & H. Shue (eds), Just and unjust warriors, pp , Oxford University Press, Oxford. Rodin, D., 2002, War and self-defense, Clarendon, Oxford. Rodin, D., 2008, The moral inequality of soldiers: Why jus in bello symmetry is half right, in D. Rodin & H. Shue (eds), Just and unjust warriors, pp , Oxford University Press, Oxford. Vattel, E., 2006, Law of nations, in G.M. Reichberg, H. Syse & E. Begby (eds), The ethics of war, pp , Blackwell, Oxford. Walzer, M., 2006, Just and unjust wars, 4th edn., Basic Books, New York _HWANG-CERNA_F6.indd 63 5/22/2013 5:03:51 PM

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