The Justification of The Justification of WarWar

Pre-emptionCounter-terrorismCollective SecurityHumanitarian Intervention

Great Moral Questions

Principles: avoiding harm, doing good Issues: truth, duty, rights, liberty, justice, virtue

and character Problems – Moral dilemmas

-- abortion, euthanasia & allocation of scarce medical resources-- retributive justice & capital punishment-- equal opportunity & affirmative action-- WAR (collective security; protecting the peace)

Overview

Jus ad bellum – discuss the views of St. Thomas and Michael Walzer on justification of use of force

Jus in bello – distinguish this from next week’s topic, “honor on the battlefield”

Counter-terrorism, Humanitarian Intervention & “Virtual War” (jus ad pacem) – how do these new developments fit into the classical and modern discussion?

St. Thomas Aquinas: When is it permissible to use force?

Natural Law offers three basic criteria

(1) declared by a legitimate authority

(2) just cause

(3) right intention (to do good, like restoring peace, and to avoid evil, like the deliberate killing of noncombatants)

Four Additional Qualifications

War is a last resort; exhaust all other options

Likelihood of success Proportionality of ends – “the value of the

benefits sought or the harms redressed must be proportional to the sacrifice and damage to be incurred”

Just means – a just end pursued via an unjust means loses its moral force (CWO Hugh Thompson at My Lai) – “Honor on the Battlefield”

Two Modes of Discourse

Note that this so-called “classical Just War Tradition” (JWT; not a “theory”) has its roots in Plato, Cicero, St. Augustine

Sustained philosophical reflection about the necessary conditions on the use of lethal force

A second, very distinct “legalist tradition” arises in the 16th-17th Centuries

International Law & the “Legalist Paradigm”

Reformation Wars & Peace of Westphalia (1648) – “Just War” doctrine permits too much

The “Domestic Analogy:” Nation-states as “individuals” with rights of Sovereignty and Territorial Integrity (cf. J.S. Mill “On Liberty”)

Wars of Self Defense against aggression Wars of Law Enforcement (Collective Security)

The Legalist Tradition

In Just and Unjust Wars, Michael Walzer outlines the general features of what he terms “the legalist paradigm” (Ch. IV)“…since it consistently reflects the conventions of law and order. It does not necessarily reflect the arguments of lawyers, though legal as well as moral debate has its starting point here.” (p. 61)

Walzer’s own purpose is to evaluate the limitations of this paradigm, and propose important revisions to this so-called “baseline” model

His original preface (p. xvii-xx) suggests that his is a summary of a moral, and not a purely legal, argument with a lengthy history which it is not his explicit intention to discuss (though he makes reference to this history and its major figures from time to time)

Baseline Model: Legalist Paradigm (Walzer, pp. 58-63)

International society of independent states International law protects territorial integrity (self

determination and a “common life”) Aggression/use of force = criminal act Aggression justifies two responses: self defense

and law enforcement (allies) NOTE: very sharp limitation on use of military;

aggressor states may be repulsed and punished

Hugo Grotius 1583-1645

The locus classicus for this paradigm is Hugo Grotius, De Jure Belli ac Pacis (On the Law of War and Peace), which was published in 1625

“I saw in the whole Christian world a license of fighting at which even barbarous nations might blush. Wars were begun on trifling pretexts or none at all, and carried on without any reference [to] law, Divine or human."Hugo Grotius -- Prolegomena

Other Sources of Legalism

Francisco di Vitoria’s earlier De Juri Belli (1539), likewise sets out principles of jus gentium, [Law of Nations] in the form of law-like moral principles that civilized peoples everywhere recognize as binding concerning the use of force

– “the sole and only just cause for waging war is when harm has been inflicted” (therefore no wars of religious conversion!)

– Direct targeting of noncombatants or killing enemy prisoners is prohibited (jus in bello)

Kant, in “To Perpetual Peace,” (1795, which he labels a “philosophical sketch”) sets forth a list of law-like or treaty-like principles designed to foster what he terms “a federation of free states” by restricting the main sources of conflict among them, e.g.

– “standing armies shall be gradually abolished” (#3)– “no nation shall forcibly interfere with the constitution and government

of another” (#5)

Military Ethics in the New Millennium

Terrorism: cyber, nuclear, conventional “Rogue” states (Iraq, North Korea) & law

enforcement “Failed” states (Rwanda, Liberia) & humanitarian

intervention Force Protection and “Virtual” War (dramatic rise in

proportion of noncombatant casualties) Dangerous proliferation of Weapons of Mass

Destruction (WMD -- Chemical, biological warfare) Technological innovations (“Star Wars”)

                                                                                                                                                                                                           WANTED FOR                                        

MURDER OF U.S. NATIONALS OUTSIDE THE UNITED STATES; CONSPIRACY TO MURDER U.S. NATIONALS OUTSIDE THE UNITED STATES;

ATTACK ON A FEDERAL FACILITY RESULTING IN DEATHUSAMA BIN LADEN

The Problem of “Failed” States

Somalia, Rwanda, Haiti, Bosnia, Kosovo, Liberia States “fail” when they are unable (or unwilling)

to provide routine protection and enforce the rule of law

For the foreseeable future, the greatest threat to individual citizens will come not from foreign powers or “enemy” nations, but from their own government and fellow citizens

Dilemma of the International Community

Often no clear political motivation for intervention in failed states

Intervention is technically a violation of international law (Article 51, U.N. Charter, limits use of force only to protection of national sovereignty)

Political prospects for intervention bear no clear relationship to principles of justice

Humanitarian missions often challenge military forces to operate in new and unfamiliar ways

Jus ad Pacem

Under what conditions do we engage in pre-emptive counter-terrorist or humanitarian intervention? (See Table 2, JME)

“Interventionist imperative:” “When a clearly recognizable injustice is in progress, and when we as international bystanders are in a position to intervene to prevent it, then it follows that we have a prima facie duty to intervene.”

Essential features: objectives are by definition unclear, mission, success, and “exit strategy” are invariably poorly defined

The Problem of Preemption

President Bush’s “West Point Commencement Address” (June 1, 2002)

Cold War strategies are obsolete Conventional deterrence and MAD strategies

don’t work against terrorists and non-state actors Must be prepared to undertake “preemptive

action” against potential adversaries to protect lives and liberties

John Stuart Mill“A Few Words on

Nonintervention” (1859) [T]here assuredly are cases in which it is allowable to go

to war, without having been ourselves attacked, or threatened with attack; and it is very important that nations should make up their minds in time, as to what these cases are. There are few questions which more require to be taken in hand by ethical and political philosophers, with a view to establish some rule or criterion whereby the justifiableness of intervening in the internal affairs of other countries, and (what is sometimes fully as questionable) the justifiableness of refraining from intervention, may be brought to a definite and rational test (my emphases).

The False Dilemma of Defensive War

There is no explicit limitation in classical JWT of war to self-defense or repelling aggression

St. Thomas (STh II-II, Q:40) discusses bellum offensivum, “to regain stolen goods, to thwart and to punish organized evildoing, or to protect innocents from harm.”

Preventive Wars & Pre-emptive Strikes

Michael Walzer, Ch 5: cites Edmund Burke, Francis Bacon, utilitarian arguments favoring defense of balance of power

“Not merely present ill-wishers, but states and nations…that are already engaged in harming us” (p. 81)

Pre-emption & “Legalist Paradigm”

Walzer argues that (his) “Legalist paradigm” needs to be revised w/these criteria:

Manifest intent to injure A degree of active participation that makes

this intent a positive danger A general situation in which waiting, or

doing anything other than fighting, greatly magnifies the risk

Conclusion

As a “theory,” the legalist tradition is severely strained by recent developments

Classical or “philosophical” JWT encounters no such fundamental, conceptual dissonance; instead, it merely confronts the difficult question of whether intervention to prevent terror, avert humanitarian tragedy, halt “organized evil-doing” (Aquinas), enforce justice, protect vulnerable rights and liberties, or repair the ravages of injustice constitute just causes for war

And if so, who or what in each case needs to be deputized to carry this out, whether non-violent or less destructive alternatives have been sufficiently explored and exhausted, whether the ends justify the means, whether such means can succeed in realizing their stated ends, and toward those ends, enforcing limitations on combatants that will ensure that the use of force will indeed promote, rather than frustrate, the cause of peace and liberty, or further the ends of justice