On the Justice and Justification of Just War

POLITICAL AND SOCIAL CHANGE

Edited by Martin Bak Jørgensen and Óscar García Agustín

VOLUME 7

1Introduction

In the years after the attack on the World Trade Center on September 11, 2001 and in the subsequent War on Terror, it did not escape the attention of political theorists and scholars in political science and international relations that “just war” had returned as a political concern in the Western world.² Political leaders’ references to the battle between “good and evil,” the triumph of “justice” and the emphasis on the importance of humanitarian intervention made this sound like a reasonable conclusion.³

There were by and large two just war traditions to which politicians and scholars of political science and international relations referred. While the good and evil vocabulary of, for example, George W. Bush could be analyzed in terms of the Augustinian just war tradition, which perceives of war as a legitimate means of expelling evil,⁴ the vocabulary of humanitarian intervention of, for example, Tony Blair⁵ could be interpreted within the revisionist paradigm of just war theory, which, among other things, tried to address the increased use of humanitarian intervention and the importance of jus post bellum strategies that could deal with the problems of civil society after the military operations had ended.⁶ ←11 | 12→

Scholars argued that the renewed academic and political interest in the just war tradition, and the criticisms made of the tradition in the process, should be seen as a response to the changing nature of warfare and the role of the state in war since the end of the Cold War.⁷ According to just war ←12 | 13→theorists, the wars of the 1990s and 2000s challenged what one of the most important just war theorists of the twentieth century, Michael Walzer, had termed the legalist paradigm. In his seminal work, Just and Unjust Wars (1977), Walzer defines the legalist paradigm by a domestic analogy: the legalist paradigm assumes that state rights are based on and analogous to individual rights, and that the sovereign state is to the international community what the individual is to the political community of which he or she is a member. According to Walzer, the violation of the integrity of a sovereign state is therefore equivalent to an aggressive attack on the individual in civil society and should be treated accordingly. This renders just war equivalent to law enforcement, which seeks to do justice to the victim by reaffirming the order of the political community and by repairing the damage done to the “way of life” of the political community by an act of aggression. The justice of just war therefore presupposes the justice of the political community of the sovereign state. Thus, the legalist paradigm sees war as something that goes on between sovereign states, and the only clearly just cause of war is aggression against the sovereignty of a state, which is analogous to aggression against the rights and liberties of the individual within the state itself.⁸

While the domestic analogy applies to the just cause of jus ad bellum, it has no bearing in the battlefield. Walzer assumes that war is like nothing else, and therefore moral sentiments of right and wrong in civil society cannot be applied to the soldier at the frontline. Hence, Walzer posits “the moral equality of soldiers”: although the soldier is morally and legally responsible for his or her acts in the battlefield, he or she is not responsible for the justice or injustice of the war itself. As long as the soldier complies with the rules of jus in bello, for example, by treating prisoners of war according to the rules and regulations of international law or by not murdering civilians indiscriminately, (s)he is neither morally nor legally culpable.

According to just war theorists of the post–Cold War world, there were three assumptions of the legalist paradigm, which did not seem to fit the ←13 | 14→picture of the increasing use of humanitarian interventions since the 1990s, the war against international, cell-organized terrorist groups like al-Qaeda or local insurgencies like the Palestinian Intifada. The first assumption is that war goes on between states, which can be held legally accountable;⁹ the second that war ends with the closing of military operations;¹⁰ and the third that the behavior of combatants can be subsumed under the legal terms of jus in bello, which are for all effects and purposes disconnected from the principles of jus ad bellum, which remain the prerogative of the state.

To just war theorists writing in the aftermath of the Cold War and especially The War on Terror, these assumptions seemed to be flawed on a number of accounts.¹¹ For example, the role of the nation-state embedded in the first and third assumption seemed to be flawed considering the global nature of the terrorist networks that were targeted in the War on Terror, and local insurgencies based on national or religious affiliations. These defied official state boundaries and could not easily be subsumed under the heading of state. In a similar way, the upsurge of humanitarian intervention since the 1990s under the aegis of the UN Security Council set new standards for military intervention in local conflicts and civil wars that were going on within the borders of a sovereign state. For example, the NATO bombing of Kosovo in 1999 sanctioned by UN Resolution 1244 took place ←14 | 15→in the absence of any significant violation of the sovereignty of the intervening states. To some observers, this indicated that Western wars had become an ethical endeavor, the purpose of which was the construction of liberal states, which would uphold the basic standards of the international community and grant their subjects basic human rights.¹²

The idea that war would end with the conclusion of military operations embedded in the second assumption also seemed to be flawed considering the wars in Afghanistan and Iraq. These wars showed that military operations only constituted a minor part of the war effort. The problem was not winning in the battlefield, but rebuilding civil society, which seemed to require a maximalist account of the third pillar of just war theory, jus post bellum or just peace.¹³