What Is a Just War?

Jus in Bello

The traditional theory of the just war covers three main topics—the cause of war, the conduct of war, and the consequences of war. Or, in the Scholastic tags: jus ad bellum, jus in bello, and jus post bellum. But most attention is given now to the middle term, the conduct of war. That is where clear offenses are most easily identified, though only occasionally reported and even more rarely punished. The two main rules of jus in bello have to do with discrimination between combatants and noncombatants, the latter to be spared as far as possible, and proportionality, so that violence is calibrated to its need for attaining the war’s end. The claims of morality here are recognized with difficulty in actual combat, and disputed when recognized. Why should that be?

In Tolstoy’s War and Peace, Prince Andrey is an enlightened, humane, reforming, disciplined man. He has had experience in war without becoming embittered—he was badly (almost mortally) wounded at the Battle of Aus- terlitz—and has tried to improve the military system. But by the Battle of Borodino, even this estimable man has snapped. After riding past his destroyed estate, he ruminates:

I wouldn’t take prisoners. What sense is there in taking prisoners? That’s chivalry. The French have destroyed my home and are coming to destroy Moscow; they have outraged and are outraging me at every second. They are my enemies, they are all criminals to my way of thinking…. Playing at war, that’s what’s vile; and playing at magnanimity and all the rest of it…. They plunder other people’s homes, issue false money, and, worse than all, kill my children, my father, and then talk of the laws of warfare…. If there were none of this playing at generosity in warfare, we should never go to war, except for something worth facing certain death for…. The object of warfare is murder.¹

Andrey has attained the state Clausewitz says is necessary to war—Hass, hatred for the foe. There is in all sane people a hesitation to kill, whether from timidity, disorientation, or scruple. That is why so many bullets are fired in war but not at the target, why so many bombs are dropped but not where they were supposed to be. It is the task of those in charge of war to override these hesitations, and the only sure way of doing that is to demonize the enemy, so that hating him is not only condonable but commendable.

Clausewitz says that war is fueled by emotion (Gefühl), which always outruns intent (Absicht). And once this begins there is a constant ratcheting-up (Wechselwirkung) of hatred. Hate produces atrocities, which provoke answering atrocities from the other side, and so on in a reciprocal upward spiral. This means, says Clausewitz, that war by its basic nature drives onward to extremes. Shakespeare was almost scientifically accurate when he had his Antony “let slip the dogs of war”—to outrun expectations and control.

Other students of war have their own versions of Clausewitz’s Wechselwirkung. Here is Thucydides:

War, depriving people of their expected resources, is a tutor of violence, hardening men to match the conditions they face…. Suspicion of prior atrocities drives men to surpass report in their own cruel innovations, either by subtlety of assault or extravagance of reprisal.

Abraham Lincoln’s version (predicting, in 1854, what would happen if the North and South went to war): “One side will provoke; the other resent. The one will taunt, the other defy; one aggresses, the other retaliates.”²

In war, the raping and robbing of civilians, the brutalizing and killing of prisoners, are not anomalies. War propaganda excites such extremes, with its emphasis on the vileness of the foe. That is why President Bush presents his war as a battle against evil itself. Hate is too valuable to be renounced. Often it is the only antidote to other emotions like cowardice or humanitarianism. The Swift Boat Veterans for Truth were, like Claude Rains in Casablanca, “shocked, shocked” at the idea that Americans could commit atrocities. But governments usually look the other way when their own provocations produce their natural result. When I was a high school student in the ROTC, the veteran sergeant instructing us, a man who had fought at the Battle of the Bulge, remembered being told by superiors to get rid of prisoners if they inconvenienced his own activity (“just pull the pin of a hand grenade and tell them to split it up among themselves”). In this atmosphere, what chance do reflections on justice have of prevailing?

Abraham Lincoln would not have been shocked to hear that Americans commit atrocities. He described, in the year of Gettysburg, the immoralities of the very war he was directing:

Thought is forced from old channels into confusion. Deception breeds and thrives. Confidence dies, and universal suspicion reigns. Each man feels an impulse to kill his neighbor, lest he be first killed by him. Revenge and retaliation follow. And all this, as before said, may be among honest men only. But this is not all. Every foul bird comes abroad, and every dirty reptile rises up. These add crime to confusion. Strong measures, deemed indispensable but harsh at best, such men make worse by mal-administration. Murders for old grudges, and murders for pelf, proceed under any cloak that will best cover for the occasion.³

Admittedly there are some checks on savagery, but these are less frequently moral than pragmatic. Mistreating the other side’s prisoners can lead to the mistreatment of one’s own prisoners. Calculation of that sort underlies the Geneva Conventions. But this reflects the “realism” that just war theory is supposed to improve on. So how useful are the arguments of jus in bello when one is actually in bello?

Jus ad Bellum

If war, once embarked on, will of itself drive toward extremes, overriding concern with justice, then the real use of just war theory must rest mainly on the decision whether to go to war in the first place. The traditional norms for such a discussion are said to be competent authority for declaring war, as well as just cause, proper intent, last resort, and expectable success. When the norms were framed in the Middle Ages, most discussion turned on the authority for declaring war, since there were many competitors for that office—popes, bishops, feudal lords, kings, margraves, etc. With the rise of the nation-state, that debate faded away, since it was assumed that national leaders had the power to initiate war. This left the emphasis mainly on the just cause for war. But how useful was that norm in determining whether a just war was launched in Iraq?

The Vatican, reputed to be a principal custodian of the just war tradition, said repeatedly and emphatically that such a war would be unjust so long as inspections were still taking place under the aegis of the United Nations. John Allen, the Vatican correspondent of the National Catholic Reporter, writes that “the Holy See opposed the US-led war in Iraq with a ferocity that few issues in the recent past have aroused.”⁴ Vatican publications, Church diplomats, religious congregation heads, and the Pope himself all said that just war theory forbade the Iraq war. John Paul II sent Cardinal Pio Laghi, his personal peace representative, to make a last-minute appeal to President Bush on March 5, 2003.

But right-wing Catholics in America were certain that just war theory called for war. Michael Novak, of the American Enterprise Institute, said the war was not only defensible but mandatory. He went to Rome, summoned by the United States ambassador to the Vatican, James Nichollson, to convince the hierarchy of the need for war. When he failed to change the Vatican’s mind, Novak blamed this on “anti-Americanism.” A group of Catholics who are normally subservient to the Pope—Novak, Jean Bethke Elshtain, John Richard Neuhaus, George Weigel—became the defenders of a “just war tradition” they felt the Vatican had abandoned.⁵ It was even said that the Pope had turned pacifist—though the Vatican approved of the intervention in Kosovo and the invasion of Afghanistan. One may well ask, what use is just war theory if people supposedly steeped in it could reach such positive conclusions on opposite sides of the Iraq invasion? In truth, the criteria of a just war—the product mainly of late Scholasticism—have little power to determine an outcome. In fact, solemn talk of a just war “tradition” is misleading, since its history is full of anachronisms and contradictions.

“The Tradition”

The great names invoked in the tradition are Saint Augustine and Saint Thomas Aquinas. But Augustine never wrote systematically about war, his ad hoc comments were severely limited by the issue or person he was addressing, and his comments have been widely distorted.⁶ He began from the gospel texts against returning violence for violence, and denied the right that many make the very basis of just war argument—the right of personal self-defense.⁷ That would be an act of self-love, which is always evil in Augustine. But if one sees one’s fellows threatened by violence, one can defend them out of love—so long as one loves the aggressors, too.⁸ The latter condition means that any war driven by Clausewitzian Hass is unjust for Augustine. Also, even when defending others, one cannot act “on one’s own hook,” which might also come from selfish motives. One must wait for legitimate authority to command the action, and then one must not kill the innocent, or torture or kill prisoners.⁹

Augustine’s most extended discussion of war is in five long paragraphs of his Answer to Faustus. There, in opposition to Manichaean attacks on the Jewish patriarchs, he defends the morality of Mosaic and other wars by saying that they were directly ordered by God. One must obey a command from God, even if one does not understand it—as Abraham obeyed the command to kill his son.¹⁰ In today’s circumstances this teaching is better fitted to the jihadist “other side”—to those who wage holy war.

Thomas Aquinas is not much more helpful. He has three main norms for permissible war—declaration by competent authority, just cause, and proper intent.¹¹ The last is defined as acting “to promote good or prevent evil”—a thing that can justify war as a tool of social engineering (e.g., to spread democracy and rebuff tyranny). It is not surprising then that Aquinas approved of the social engineering of his day, the Crusades (to spread Christianity and rebuff Muslimism)—which again is more useful to current jihad than to a secular democracy.¹²

The most relevant of the just war theorists is less cited than Augustine or Thomas since he is less known—Francisco de Vitoria (1486–1546), a Spanish Dominican who bravely protested his countrymen’s conquest of the Americas. It was he who focused especially on discrimination and proportionality.¹³ But even when he is counted in the “tradition,” there is little more than a checklist of items to be ticked off, with some items as broad and vague as any warmaker could wish. That is why the tradition has had so little impact on the actual waging of war. Is just war theory, then, a meaningless exercise? Not if one is to believe Michael Walzer and the arguments of his new work.

Walzer

Walzer avoids a checklist approach to the so-called tradition, ticking off the items on a fixed program. In fact, in his 1977 book, Just and Unjust Wars, as well as in his new work, Arguing About War, he denies the universal validity of some of the most revered items on the list. Concerning the Gulf War he writes:

The move [toward pacifism] involves a new stress upon two maxims of the [just war] theory: first, that war must be a “last resort,” and second, that its anticipated costs to soldiers and civilians alike must not be disproportionate to (greater than) the value of its ends. I do not think that either maxim helps much in making the moral distinctions that we need to make.

If he quarrels with the tradition, why does he bother with it at all? He says that his protest against the Vietnam War made him realize that a way had to be found to object to actions as basically immoral, not just ineffective in terms of “realism.” This meant asking basic questions all over again, including Augustine’s initial one—when (if ever) is it permissible to kill other human beings?

Walzer is, in a perhaps unconscious way, very Augustinian in his belief that no theory of justice can free warriors from guilt. They may have to kill, but they give rein to atrocities all the same, since even a just war is a fountain of evil. Augustine puts it this way:

Anyone who looks with anguish on evils so great, so repulsive, so savage, must acknowledge the tragedy of it all; and if anyone experiences them or even looks on at them without anguish, his condition is even more tragic, since he remains serene by losing his humanity.

Walzer, in similar vein, says that all war overrides certain moral rules; but even when they have to be overridden, they remain moral rules: “Overriding the rules leaves guilt behind as a recognition of the enormity of what we have done.” “The tradition” often implies that belligerent acts in a just war are themselves moral—which is the basis of triumphalism and patriotic smugness. Walzer denies the right to such self-congratulation. Even a just war, he says, “invites—and then only insofar as it also requires—an immoral response: we do what we must (every legitimate alternative having been exhausted).” Paradoxically, then, a person who tries to act morally in war sees his own immorality.

Is this an impossible ideal to expect? One might think so but for the example of Lincoln. While most war leaders ratchet up hatred, he tried to ratchet it down, in recognition of the evil being done on both sides. That was the theme of his Fast Day proclamations, asking people to wage a repenting war, “in sorrowful remembrance of our own faults and crimes.”¹⁴ During the Vietnam War, Senator Mark Hatfield introduced a resolution calling on the nation to repent its own war crimes. He was attacked as unpatriotic, as treasonously giving aid and comfort to the enemy—till he revealed that he had been directly quoting Lincoln.

Walzer’s moral sensitivities have one special source (among others). Though he says that he wrote his 1977 book on just war in response to the immoral acts committed in Vietnam (napalm, Agent Orange, etc.), he was also disturbed by the Israelis’ increasing need to use force. He weighs the rationales offered for the raid on Khibye (1953), for the Six-Day War (1967), for the attack on Beirut’s airport (1968) and on Entebbe (1976). He found all but Khibye justified, but he clearly saw the dangers of moral obtuseness in the others.¹⁵ In his new book, he condemns Israeli overreaction to the first intifada:

As even Yitzhak Rabin has recognized, it is not terrorist in character. The youngsters who do the everyday work of the uprising are not a specially trained cadre of killers. They are everyone’s children, and they are supported by a full-scale popular movement and by an extraordinary network of local committees…. Terrorists cannot claim a right to self-determination; a popular movement can, and the Palestinians have finally produced a popular movement…. Israelis of roughly my age remember throwing stones at British soldiers. It is a useful, if also a disturbing, memory.

Walzer says that Israel, instead of using the sense of pride bred in Palestinians to work with a popular movement, felt humiliated by having children as enemies and “aimed not only to defeat the uprising but to force the Palestinians to acknowledge defeat—’to wipe the smile off the Palestinian face.'” Israelis preferred to dictate a peace rather than negotiate it—which made it harder for them to get negotiations when they wanted them.

But sympathy for the first or children’s intifada does not affect Walzer’s harsh condemnation of Palestinians’ later terror tactics, like suicide bombing. In fact, he argues that terrorism—the killing of innocent people as a way of making a political statement—is never justified. Yet he sees as well the danger in fighting terror with terror, turning a nation into the mirror image of its foes. “First oppression is made into an excuse for terrorism, and then terrorism is made into an excuse for oppression. The first is the excuse of the far left; the second is the excuse of the neoconservative right.”

Discriminating and painful honesty like this has made Walzer a respected judge of moral issues when it comes to war. That is why many people were looking to him for guidance as the Bush administration considered the invasion of Iraq. It was not clear beforehand what he would say. His first book had been considered “permissive” by some. George W. Bush was talking about a preemptive war, and Walzer had supported the preemptive Six-Day War of 1967 and Israel’s pre-emptive strike against Iraq’s nuclear reactor in 1981. He condemns pacifism as an abrogation of moral responsibilities. He supported the Gulf War and the Kosovo intervention. He signed a letter drafted by Jean Bethe Elshtain and the Catholic just war proponents defending the invasion of Afghanistan. Why, then, would he balk at a war many friends of Israel thought would be in their interest?

But balk he did. In five important lecture-essays written as the crisis unfolded—the culminating section of Arguing About War—he condemned the war while it was still in the offing, as it was being conducted, and after the occupation began. The United States conduct was, he concluded, injustum ad bellum, injustum in bello, injustum post bellum.

1. Ad bellum. Walzer is as critical as any Republicans have been of France and the Clinton administration for their weak policies toward Iraq during the 1990s. The time to threaten war, and to wage it if necessary, was when Clinton and the French let Saddam defy and, in effect, expel the weapons inspectors, who had found and destroyed many weapons. That course would have strengthened the UN’s mandate, rather than undermined it. But the “good guys” blinked. The way to repair that blunder was with sanctions, the no-fly zones, and demands for new inspections backed by force. This approach was working when inspectors were readmitted in 2002, and the combined pressures made it impossible for Saddam to deploy any threats he might have had in mind. Increased (though targeted) sanctions, and a no-fly zone over the entire country, combined with insistence that the inspections continue unimpeded, were obvious alternatives to the ultimate step of military attack. “For whether or not the inspectors find and destroy weapons of mass destruction (some of these are very easy to hide), they themselves are a barrier to any deployment of such weapons.”

But members of the Bush team did not want to support inspections. They ridiculed Hans Blix. They had decided, without adequate sources on the ground, that weapons of mass destruction existed, and did not want certainty to be questioned or undermined. They were looking for an excuse to adopt an anticipatory war strategy for dealing with terrorists everywhere. They misquoted Daniel Webster in order to justify preemptive war, citing a passage Walzer had carefully analyzed in his first book on just wars.¹⁶ Walzer rightly distinguishes preemptive from preventive war, and says Bush was adopting the latter (where a threat is not imminent) while talking of the former.¹⁷

Even humanitarian intervention was not justified in Saddam’s case, since his major human rights violations, against the Kurds and after the 1991 war, were over, not ongoing, and invasion to punish rather than prevent atrocities is very hard to justify. If Saddam had resumed his mass killings in the presence of inspectors and in defiance of flyovers, this would have provided a genuine casus belli. Walzer has condemned the lack (or the listlessness) of intervention to stop such killing in Rwanda and Haiti (and he would now add, no doubt, Darfur). But these cases do not offer true parallels to the Iraq war, where Bush made humanitarian motives the casus belli only after weapons of mass destruction failed to turn up:

Now that a zone of (relative) safety has been carved out for the Kurds in the North, there is no compelling case to be made for humanitarian intervention in Iraq. The Baghdad regime is brutally repressive and morally repugnant, certainly; but it is not engaged in mass murder or ethnic cleansing; there are governments as bad (well, almost as bad) all over the world.

Walzer wrote that in September 2002, before the inspectors were readmitted. Once they did reenter the country, his argument was obviously even stronger. He was unequivocal in saying that war at that time would be unjust:

If the dithering and delay go on and on—if the inspectors don’t return or if they return but can’t work effectively; if the threat of enforcement is not made credible; and if our allies are unwilling to act—then many of us will probably end up, very reluctantly, supporting the war the Bush administration seems so eager to fight. Right now, however, there are other things to do, and there is still time to do them. The administration’s war is neither just nor necessary.

1. In bello. On the very eve of war (March 7, 2003), Walzer already saw what many people would recognize only much later, that “the administration seems to have no exit strategy, no contingency plans to stop the march” to war. When the war began, he could say firmly, “America’s war is unjust…. A war fought before its time is not a just war.”
2. Post bellum. “Surely occupying powers are morally bound to think seriously about what they are going to do in someone else’s country. That moral test we have obviously failed to meet.” “A just occupation costs money; it does not make money.” Admittedly, war always has its peripheral scavengers, its opportunistic camp followers.

In the Iraqi case, however, President Bush and his advisers seem committed to profiteering at the center. They claim to be bringing democracy to Iraq, and we all have to hope that they succeed. But with much greater speed and effectiveness, they have brought to Iraq the crony capitalism that now prevails in Washington….

The distribution of contracts to politically connected American companies is a scandal…. An international agency of proven impartiality would be best [in awarding contracts], but even American regulators, under congressional mandate, would be an improvement over no regulators at all.

On the other hand, Walzer says, a conquering nation is responsible for the chaos it has introduced into a conquered nation, and cannot leave when it suits the conqueror’s convenience. That would be adding a crowning injustice to all the prior injustices.

Walzer made very good arguments against the justice of the war’s commencement, conduct, and conclusion. But he was no more successful in his opposition than was the Vatican. So are his arguments as useless as those of the tradition? I hope not. We are not exempted from pressing moral claims even by defeat, and he supplies us with better moral claims than we have experienced in the past. Besides, his arguments over war go to many other concerns with democracy in the centralized modern state.

Democratic War

Perhaps the greatest service Walzer has performed is to reopen the question of competent authority for declaring war. That problem was prema-turely set aside by those who thought the nation-state had settled it. In a democracy, the people are supposed to be the ultimate authority. Should they be the judges of a war’s legitimacy? Even proto-democratic thinkers like Vitoria and Suarez thought that they should, and Nuremberg principles raise the problem of popular complicity in immoral wars.¹⁸ Walzer notes that the United States government, anticipating popular resistance to wars of choice, has tried to insulate warmaking from the democratic process. Abolishing the draft made influential citizens less concerned with service abroad. The promise of low-risk air strikes and technological “smart war” is meant to reduce the casualty rate and minimize the people’s stake in whatever wars their rulers might decide on. Walzer finds it repugnant to kill others with small risk of being killed in return—that is more the role of a sniper or assassin than of a combatant.

A more serious way of keeping citizens out of the decision process is the modern cult of secrecy. We must, we are told, trust our leaders to make decisions we are not qualified to evaluate. Lyndon Johnson said that if we knew what he did, we would approve his actions in Vietnam—but we could not know. The information was “classi-fied.” When a former chairman of the Joint Chiefs of Staff criticized the preparations for the Gulf War, Secretary of State James Baker said his comments should be disregarded because he was no longer cleared to read the latest intelligence reports. If a man with those credentials is dismissed, how can humble citizen I or humble citizen you have any right to an opinion? Secrecy is a shield against every other authority or challenge. When Secretary of Health and Human Services Tommy Thompson was asked how he, a Catholic, could defend a war the Pope condemned, he answered: “We have much better information than the Pope about what’s going on inside Iraq.”

The disqualifying of challenges to authority is furthered by the claim that the President is “our commander in chief,” to whom we owe a military obedience, not a citizen’s responsibility. The Constitution says that the president is “commander in chief of the army and navy of the United States, and of the militia of the several states when called into the actual service of the United States.” Putting the nation in a state of permanent war turns dissent into disloyalty and criticism into treason. The fear of being considered insufficiently deferential to the high priests of classified information leaves politicians and the public vulnerable to lies from the top. Even William Fulbright endorsed Lyndon Johnson’s lies when he voted for the Tonkin Gulf Resolution. Only Senators Wayne Morse and Ernest Gruening were courageous enough to defy the President and vote against it. You would think that this experience would make senators wary of George W. Bush—but, no, John Kerry and Hillary Clinton voted to give him authority to make war in Iraq. The role of Morse and Gruening was left to Senator Bob Graham and my own state’s sainted senator, Richard Durbin. Kerry later said he expected Bush to be responsible in his use of the authority given him. What on the record could have justified such an expectation?

Walzer argued in his 1977 book that much of the American intelligentsia abdicated its responsibility to challenge the assurances of the government during the Vietnam War.¹⁹ That charge applied to experts in and outside government. Robert McNamara should have told us he had doubts when that would have affected events—not thirty years later. I suppose we can expect a similar performance from Colin Powell—the loyal enabler turning at last into the ex post facto penitent. Democrats have been so chary of challenging the President that they have allowed the Bush administration to extend secrecy on an unparalleled scale. When the Democrats still had a majority in the Senate, they would not issue subpoenas to find out who was advising Vice President Cheney on energy policy. Health care statistics were kept secret.

Anything that might be embarrassing to a president is now treated as a national security issue—weakening him, it is said, will hamper his dealings with foreign powers. Unless we treat him as infallible, foes will see him as powerless. Since democracy is impossible without accountability, and accountability is impossible if secrecy hides the acts to be held accountable, making a just war may become impossible for lack of a competent democratic authority to declare it. A president who can make a war of choice, not of necessity, at his pleasure, on the basis of privileged information, treating his critics as enemies of the state, is no longer a surreal fantasy. Walzer has moved the concerns over just war from the periphery of political theory to the very center of our democratic dilemma.