Is the Just War Theory Obsolete?
Just War Theory Has Become Obsolete
by
James E. Sullivan
December 26, 2018
The just war tradition has evolved around the world for centuries, in an effort to address the ever-growing need for a set of concepts, beliefs, even a version of the rules of engagement to fight wars. Along the way, just war theory (JWT) has been applied to many conflicts that have been fought or averted from the ancient to the medieval, through both world wars and beyond. Unfortunately, these rules and their interpretations have grown increasingly dated in the face of the pace of change to the nature of warfare, during the 20th century and this young new one. Even beyond nuclear war and its aspect of mutually assured destruction, higher technology weapons systems, drone warfare and cyber warfare confront us-even the concept of space war is under the microscope, and meanwhile, just war theory has become obsolete. In our current climate of wars by proxy and limited border skirmishes, “by the very criteria of the just war theory, in our era, there is no such thing as a justified war.”[1] Prominent just war theorists Michael Walzer and Oliver O’Donovan have proposed important contributions towards updating the JWT principles to relevancy as it is clear that evolving issues, both technical and philosophical, call for a radical re-examination of the ethical possibility of a just war within our contemporary world.
I will contend that the just war theory needs to be modernized to account for the new ways war are conducted, as well as to include a strong ‘just peace’ statement that acknowledges and holds accountable centralized power and authority (which is particularly morally and ethically important to conflict resolution) while insisting upon valuing all human rights equally particularly in its Jus post bellum (see below) provisions. While new rules would obviously serve as guidelines more than international regulations, the objective would be to reach all those with legitimate authority to wage declared wars from presidents to dictators.
Just war theory serves to justify —or to condemn—how, why and by whose authority wars are conducted. The just war tradition, then, also grapples with the historical body of rules or agreements that have been applied in wars across the ages. Most recently the Geneva Convention of 1949 and the Hague Convention of 1899 have sought to govern future warfare justly. However, there does not seem to be any “just peace theory” on the table at present, with nothing in sight but continued wars and economic sanctions. Some ethicists have either tried to tinker with just war theory to account for the changing nature of warfare or insisted that the theory serves adequately in its original and traditional form. Other, self-included, would prefer to update the theory dramatically, by strengthening, in particular, the Just Cause, Legitimate Authority, and Last Resort principles (see below) and constructing jus pax initiatives into the 21st-century transformation of JWT.
The legacy of just war theory in the West began with the writings and teachings of one of the most important early philosophers, the theologian St. Augustine (354-430). Eventually, in the Middle Ages, Thomas Aquinas (1225-1275 codified Augustine's reflections into the distinct criteria that are still understood and applied by philosophers today.[2] Traditionally, three categories of endorsed principles, or requirements, judge the justness of warfare: jus ad bellum, the conditions required for justly going to war; jus in bello, whose conditions restrict the actions of aggressors during the war; and jus post bellum, processes required of the aggressors after the war is over. The principles phased simply, might produce these dozen dictums:
Jus ad bellum
1. Just Cause: The war must be fought for a just cause.
2. Right Intention: The intention of those fighting the war must conform to the just cause.
3.Legitimate Authority: The war must be waged by a legitimate authority
4. Last Resort: The war must be an option of the last resort
5. Chance of Success: The war must stand a reasonable chance of success
6. Ad Bellum Proportionality: The harm that the war causes must be proportionate to the good
that it brings about.
Jus in bello
1. Necessity: Combatants must carry out operations necessary to their legitimate military objectives.
2. In Bello Proportionality: The harms that any particular operation causes must be proportionate to the good that it brings about.
3. Discrimination: Only combatants are legitimate targets of attack, non-combatants must not be deliberately harmed.
Ju Post Bellum
1. Reconstruction: Victorious belligerents must assist in the post-war reconstruction of the vanquished nations.
2. Compensation: Unjust belligerents must pay compensation to their victims.
3. Criminal Proceduralism: Victorious belligerents may subject wrongdoing individuals to fair criminal proceedings.[3]
War is an ugly endeavor of inevitable mayhem; its essence is the destruction of properties loss of historical artifacts and millions of lives lost. However, it is never waged without a purpose, even if that purpose is not clear or even overtly articulated. Since the end of the Second World war, the United States has never formally declared war, despite (to name some salient cases) a significant intervention in Korea from 1950-1953, a massive entanglement in Vietnam from 1963 to 1975, an invasion of Grenada in 1983, an incursion into Panama in 1989, an occupation of Iraq commencing in 2003, an attack upon Libya in 2011 (and as of late 2018), seventeen years of embroilment in Afghanistan. American soldiers continue to be killed in Afghanistan and lower intensity combat in Mali. Moreover, American involvements with the Saudi-led coalition in Syria and Yemen is sure to produce further American casualties. Perhaps an early precedent was set in the distant past, in a chapter typically neglected by history books; the United States did not even declare war on Tripoli in 1801 or on Algeria in 1815 when the Barbary Coast Wars began and ended.
In the just war tradition, the justification for initiating war, jus ad bellum, is clearly distinguished (in theory, at least) from the justification of tactics used during the war, jus in bello. Just Cause principle (see list above) is the principle most often invoked to legitimate a country’s use of force (a euphemism for violent aggression) in response to a wrong committed by another state or non-state (terrorist) actors. One of the leading just war theorists, Michael Walzer, states that; “War is often a form of tyranny. It is best described by paraphrasing Trotsky’s aphorism about the dialectic: “You might not be interested in war, but war is interested in you.” The stakes are high, and the interest that military organizations take in an individual who would prefer to be somewhere else, doing something else, is frightening indeed. International law’s consensus-essentially produces an overarching dictum of Armed Combat, where though civilians may not be directly targeted, all combatants are morally permitted to target one another, foreseeably and predictably harming innocents, especially women and children in the process of these wars.”[4]
Andrew Fiala demonstrates, in The Just War Myth,” that those in power intentionally manipulate the citizenry willingness to believe in the idea of a just war.”[5] Our faith in the just war myth has led to thousands of military casualties, creation of millions of refugees, outright killing of civilians and senseless destruction of infrastructures in Afghanistan, and Iraq, and now also in Yemen and Syria. One needs the just war theory as a barely basic guide through the tragic circumstances so that we do as little further wrong as possible in a situation that is already wrong and morally unethical.
Thus even in the era of the 1945 Charter of the United Nations, the world community is often ignored or trivialized, argues Daniel C. Maguire. “The JWT had an honest birthing: it was born of the recognition that any defense of it bears a huge burden of proof. It set up a series of six tests. For a war to “just,” it must pass not one or two, but all tests. Otherwise, the ‘war’ is a barbaric form of mass murder. However, we dignify it with national liturgies and patriotic mythology. Since war-makers pull out parts of JWT to hallow their wars, it serves peace well to remind them when their wars have failing moral grades. As ethicist Joseph Fahey says, ‘the “just war” model was never meant to justify war. It was meant to limit war, to control war and even to avoid war.” The allegedly “justified “ war is usually the mask of an unconscionable failure to do the advance work of peace and to hide the total embarrassment of statecraft that state-sponsored violence tends to exemplify.”[6]
Whereas building peace should bypass the need for military action, some utopian, just war theorists
state that the “aim,” “end,” or “object” of war should be the attainment of peace. Many just war
principles, especially those placed in the jus post bellum group can be understood as promotion just
such a “peace.” By stigmatizing powerful leaders who commit war crimes and minimizing the
denial of atrocities, adherence to this principle might be the best way to set the stage for mutually
respectful relations.[7]
Lieutenant General H.R. McMaster, when becoming National Security Advisor in 2017, made
Impassioned reference to JWT. “Every day in Afghanistan today, every day across the wars in Iraq,
our soldiers and Marines place themselves at a higher level of risk to protect the innocents. I think
that’s something that’s very important to understand about these kind of conflicts. Our soldiers are
warriors, but they are also humanitarians…ensuring ethical conduct goes beyond the law of war and\
must include a consideration of our values—our ethos…the Law of War codifies the principle tenets
of just war theory, especially jus in bello principles of discrimination and proportionality…however,
individual and institutional values are more important than legal constraints on immoral behavior;
legal contracts are often observed only as long as others honor them or as long as they are
enforced.”[8] For a war to be fought “justly” both sides would need to agree, proceed and continue
to conduct war in a principled manner, which rarely, if ever occurs.
But the ultimate failing of just war theory might be that, while it attempts to cover all aspects of a conventional war—for example, the manner in which World War II was fought by the Allies against the Axis nations (at least, until the atomic bombs were dropped on Japan)— it nevertheless overlooks or even undermines, alternative approaches, whether to limit wars or as responses to terroristic acts. Relying on militarism, nations so often ignore the power of non-violence. In his 2017 World Day of Peace message to the world, Pope Francis called upon the Catholic Church to shift to a “Just Peace” framework for guiding responses to violence and injustice.[9] Yet if we discard JWT, we have nothing to replace it with, except staunch pacifism (a principled stance but unrealistic moral theory) or pragmatic realism (which demands no morality of wartime conduct at all). Just war theorist David K. Chan states that “the just war is a myth, in that no actual war satisfying the conditions for war has ever been fought nor is there likely to be one.[10]
Meanwhile, the just war theory embodies traditions—or more accurately, routinely violated standards—of combat developed during the early period of Christianity. In those ancient times, captured soldiers were compelled to fight for conquering armies, mercilessly slain, or sold as slaves and even ensnared women and children, while conquered cities were often completely razed. In modern warfare, the distinction between fighters and civilians has become further blurred. As Fiala points out, ”the just war ideal works best when there is a clear battlefield and when it was easy to distinguish combatants from noncombatants. However, such ideal conditions do not hold in contemporary wars. For example, there is an extreme moral difficulty in a counterinsurgency war, such as American and coalition forces are currently fighting in Iraq. One the one hand, to “win” such a conflict, the easiest thing to do would be to ‘take off the gloves’ and employ the tactics used by the Romans, the Nazi and everyone else who has effectively suppressed the insurgency. The easiest solution is to kill or imprison as many of the male population as possible and to severely punish villages and neighborhoods that support insurgent operations, punishing the women and children of insurgents and sympathizers. However, the problem with this imperial approach is that it is obviously immoral. It requires a sort of brutality that we should rightly condemn… The difficulty is that forces that are constrained by just war morality cannot compete with the coercive power of the insurgents and thus cannot gain the support of the population that is needed to defeat the insurgents.”[11]
According to Laurie Calhoun, “The just war paradigm is essentially a form of ethics by authority, where wars are waged by the wisdom of such action as interpreted by the people who achieve the status of legitimate authority within the group of the nation. In spite of massive public protests by millions of citizens in the United States, Britain and Spain (to say nothing of the rest of the world) U.S. President George W. Bush, along with prime minister Tony Blair and Spanish president Jose Maria Aznar, ordered the 2003 Iraq invasion in the name of their own professed beliefs. This action defied the directives of the world community and the international standards of conduct established by the United Nations. The Bush administration’s comportment, scandalous though it may have seemed at the time, was in complete conformity with the open-ended nature of the just war paradigm, according to which all of the jus ad bellum conditions are interpreted by none other than the legitimate authority himself.”[12] The primary moral authority, in this case, the 43rd president of the United States, who had already initiated the global but American-led “war on terror” only days after the destruction of the World Trade Center on September 11, 2001.
“The morning of September 11, 2001, started like any other. The Twin Towers stood tall in the Financial District, as they had for more than 30 years. At 8:45 a.m., American Flight 11 crashed into the North Tower of the World Trade Center. At first, newscasters were not sure whether it was an accident or a deliberate attack. At 9:03 a.m., United Flight 175 crashed into the South Tower, leaving no doubt that this was an attack. Some channels captured the moments on live television. The second plane exploded upon impact caused by the ignition of its fuel. Now both buildings were burning. People stared from the windows of the Towers, trapped by smoke and flames and destroyed staircases. At 9:40 a.m., American Flight 77 crashed into the Pentagon. Five minutes later, for the first time in history, the FAA ordered all aircraft to land at the nearest airport. At 9:59 a.m., the South Tower collapsed. People fleeing the scene by foot were covered in dust and ash. At 10:03 a.m., hijacked United Flight 93 crashed into a field in Shanksville, Pennsylvania. The plane’s target was believed to be the US Capitol. The passengers on board tried to gain control of the flight and divert the hijackers after hearing of the other attacks…. 2,753 people were killed in the New York attack. Another 40 people died in Pennsylvania, and 184 died in Washington D.C. for a total of nearly 3,000 people. Rescue efforts at Ground Zero continued until October 9th, and the flames from the collapse burned until December 20th. In the months after 9/11, the nation came together to help those affected by the attacks. Blood banks were overwhelmed with donations, and hundreds of volunteers arrived to sift through rubble at Ground Zero. After the terrorist attacks, President Bush declared a “War on Terror,” targeting the AL Qaeda terrorists responsible for the attack. Al Qaeda’s leader, Osama Bin Laden was killed ten years later. The national response included a large expansion of America’s security efforts.[13]
At 9 pm, on September 11 in his first televised address in response to the attacks, President Bush gave to the world the eventual U.S.military response declaring, “We will make no distinction between the terrorists who committed these acts and those who harbor them.”[14] At that moment, by definition just war theory—specifically the principle of Discrimination— had fallen into obsolescence: “now all options are on the table,” including the killing of non-combatants, women, and children. James Der Derian proposed ten years later that under such forced circumstances, of being beyond experience, outside of history, and between wars, 9/11 does not easily yield to philosophical, political or social inquiry. The best that academicians can do is to describe, robustly interrogate and directly challenge the authorized truths and official actions of all parties who are positing a worldview of absolute differences in need of solutions. 9/11 was an exceptional event beyond history and theory.[15] Remarkably, eight years earlier than 9/11 the far less consequential 1993 terror attack on the World Trade Center had inspired a journalist to declare, “The explosion shook more than the building: it rattled the smug illusion that Americans were immune, somehow, to the plague of terrorism that torments so many countries.[16]
Moreover, so, as Fiala characterizes the historical contrast: “At one extreme, we have total wars in which alliances and countries mobilize en masse against one another such as World Wars I and I, and indirectly with the Cold War…”The era of total war is, for the most part over; one hopes that it will remain extinct. At the other end of the spectrum, we have a variety of smaller wars: terrorism and counterterrorist war, asymmetric warfare, counterinsurgency warfare, and so-called fourth generation warfare. There will be no total wars so long as American hegemony and the U. N. system hold together. Rather, there will be civil wars, border conflicts, terrorist attacks and occasional interventions by American, NATO, or U.N. forces that will seek to keep the peace, provide humanitarian relief, destroy terrorists and neutralize insurgencies.”[17]
Although the just war theory has displayed tremendous staying power to survive nine revolutions in warfare practices, the future (which may have already arrived) threatens to overwhelm it into obsolescence. If a new version of just war theory is to arise and take hold, it must provide convincingly moral guidance to the entire world; otherwise, its compass will prove irrelevant to all political /military (state and nonstate) leaders. The emerging revolution in military affairs, characterized by advancing weapons technology, information warfare and the proliferation of weapons of mass destruction, is drastically transforming military strategy and operations. States will continue to wage conventional warfare based on informational, industrial, or workforce paradigms, but their monopoly on political motivations for violence has come to an end. Describing this de facto deregulation of war, General Gordon Sullivan, former Army Chief of Staff, in the 1970’s described the sorts of conflicts not seen since the Middle Ages:
“We will no longer be able to understand war simply as the armies of one nation-state
fighting another. This definition is too narrow. Nation-States do not have a monopoly on
warmaking; a variety of entities can wage war—corporations, religious groups, terrorists,
tribes, guerilla bands, drug cartels, crime syndicates, and clans. The net result is a
blurring of the distinction between war and operations other than war.”[18]
Questions raised by the smearing of the scope of JWT certainly include determining what category suicide bombings fall under. Michael C. Horowitz discusses the role that religion plays in the suicide bomber and deems this is a topic for future scholarship.[19] Ongoing research into the nature and origins of terrorism continue to suggest that just war theory is obsolete and needs a major re-alignment of its medieval values into relevance to the new faces of contemporary warfare. Meanwhile, coercive diplomacy, such as sanctions or other economic strangleholds, impede, in the long run, a country’s abilities to better care for its citizens' long term. Such forms of paramilitary aggression can inspire youths to riot or to leave their country to seek fortunes elsewhere—whether for legitimate work or to serve “irregular forces,” for example-as proxy soldiers in the conflicts such as those ongoing in Yemen and Syria.
Just war theorist Nicolas Fotion emphasizes the ambiguities that arise when states conduct military operations against “irregular forces, entities which are incompletely embraced by JWT paradigms.” For terrorist organizations, even more of the standard principles of just war theory is inapplicable, seemingly justifying either applying a more permissive version of those principles or disregarding them altogether. One JWT principle that Fotion insists should be upheld regardless is that of Last Resort.”[20] It has generally been interpreted by modern proponents of the just war tradition, the only legitimate cause for going to war as an only option response to aggression, specifically aggression that threatens the integrity of sovereign and humanitarian interventions to prevent large-scale human rights abuses within foreign states. Most just war theorists do allow that preemptive attacks—those aimed at averting, rather than responding to acts of aggression—can also be justified; however, full-scale preventative wars—which seek to correct conditions that may lead to aggression at some point in the medium-to-long-term are often deemed illegitimate applications of the just war theory.[21]
After all military leaders, whether presidents or dictators, ought to be continually reminded that a just war is permissible because it is a lesser evil, but it is still an evil.[22] The Just War Theory has endured around for over 1600 years without meaningful change to its basic principles; meanwhile evolving interpretations by just war theorists, philosophers, military leaders have provided endless justifications to go war. Notably, by now, jus in belllo principles needs to be significantly refurbished to become relevant to 21st century dimensions of warfare, including cyber warfare, state and non-state sponsored terrorism, proxy wars and drone warfare. Furthermore, key jus ad bellum principles, such as Legitimate Authority and Just Cause must be recast to reflect the changing dynamics of fourth generation warfare led by despots and religious fanatics, while the nature of the Last Resort Threshold may need to be modified.
The tragic attacks of 9/111 and their aftermath have clearly changed the dynamics of war for combatants and non-combatants alike. All options for responsive and preventative measures are squarely on the war table. On the other hand, the new frontier of just war theory should also entail more structure designed to contain, limit, or even prevent wars. Non-violence and peacebuilding should become additional, mandatory hallmarks of JWT. To that end, an enhanced framework of tools for assessing compliance with JWT, including just post bellum principles where war is not avoided, will enable peaceful outcomes to acquire a better grip in a future conflict. Where war is unavoidable, aims must be achievable; strategies, policies, and campaigns must be executable toward achieving those aims. Finally, change is the only constant in war. Those responsible for waging war both politically and militarily must therefore commit themselves to constant adaptation which requires sets of ongoing, reality-based dialogues. All of this takes time. Under the current administration, none of this appears to be happening, regrettably.[23]
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BBC News 2014 https://www.bbc.co.uk/ethics/war/just/introduction.shtml (accessed December 12, 2018)
Brunstetter, R. Daniel, Cian O’Driscoll de., (2018). “Just War Thinkers: From Cicero to the 21st Century” (New York: Routledge), p.4.
Calhoun, Laurie. (2013) “War and Delusion: A Critical Examination.” (New York: New York,
Palgrave Macmillan,), pp.171-173.
Chan, K., David. (2012) “Beyond Just War: A Virtue Ethics Approach.” (New York: New York, Palgrave Macmillan), p.177.
Der Derian, James. “9.11: Before, After and In Between.” Social Sciences Research Council
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[1] Terence Rynne, as quoted in Andrew Latham (2016)., “Is Just War Theory Obsolete?” Crisis Magazine, May 24, 2016. Retrieved from: https://www.crisismagazine.com/2016/just-war-theory-obsolete
[2] Daniel R. Brunstetter and Cian O’Driscoll, ed. “Just War Thinkers: From Cicero to the 21st Century” (New York: Routledge, 2018), p.4.
[3] Isaac Taylor. (2017). “Just War Theory and the Military Response to Terrorism,” Social Theory and Practice Vol. 43 October 2017. p. 718.
[4] Michael Walzer (2006)., “Just and Unjust Wars: A Moral Argument with Historical Illustrations” (New York: Basic Books), p.29
[5] Andrew Fiala (2008)., “The Just War Myth: The Moral Illusions of War.” (New York: Rowman and Littlefield), Preface.
[6] Daniel C. Mcquire. (20102011) “The Just War Theory: Application to United States and Israeli Militarism.” Social Justices, p.3
[7] Gary J. Bass. (2004) “Jus post bellum,” Philosophy & Public Affairs 32 (4), pp.288-412.
9 Gerard W. Schlabach. (2017). “Just War: Enough Already” Commonweal Magazine, June 16, 2017.
https://www.geraldschlabach.net/2017/06/02/just-war-enough-already/
10 David K. Chan. (2012) “Beyond Just War: A Virtue Ethics Approach.” (New York: New York, Palgrave MacMillan), p.177.
[11] Fiala (2008), op.cit., p.6.
[12] Laurie Calhoun. (2013). “War and Delusion: A Critical Examination.” (New York. Palgrave Macmillan), pp.171-173.
[13] Pamela Engel. (2018). “What Happened on 9/11, 17 Years Ago.” Business Insider, September 11, 2018.
https://www.businessinsider.com/what-happened-on-911-why-2016-9#that-number-includes-343-firefighters-and-paramedics-and-60-police-officers-who-rushed-to-help-in-the-aftermath-13
[14] History.com editors (2018). “9/11 Attacks.” History Channel. Retrieved from,
https://www.history.com/topics/21st-century/9-11-attacks
accessed November 30, 2018.
15 James Der Derian. (2011). “9/11: Before, After and In-Between.” Social Sciences Research Council. Retrieved from https://essays.ssrc.org/10yearsafter911/9-11-before-after-and-in-between/
[16] Newsweek (March 22, 1993), p.22.
[17] Fiala, (2008), op. cit., p.5.
[18] Thomas Nagel. (1979). “War and Massacre,” ed. Malham M. Wakin, War, Morality and the Military Profession
(Boulder: Colorado, Westview Press), p. 375.
[19] Michael C. Horowitz. (2015). ‘The Rise and Spread of Suicide Bombers” Annual Review of Political Science vol 18: 69-84 Volume Publication date of May 2015.
https://www.annualreviews.org/doi/pdf/10.1146/annurev-polisci-062813-051049
[20] Nicolas Fotion. (2013) “Is Just War Obsolete?” Religious Inquiries Vol. 2 No. 3, Winter/Spring 2013, pp.47-62.
[21] Michael Walzer. (2006) “Just and Unjust Wars: A Moral Argument with Historical Illustrations” (New York: Basic Books), pp 74-85.
[22] BBC News 2014 https://www.bbc.co.uk/ethics/war/just/introduction.shtml (accessed December 12, 2018)
[23] James M. Dubrick. (2018) “Just War Reconsidered: Strategy, Ethiics, and Theory.” (Kentucky: University of Kentucky). P.121.