Ethics, Authority, and War: Non-State Actors and the Just War Tradition

Ethics, Authority, and War

Also by Eric A. Heinze Waging Humanitarian War: The Ethics, Law, and Politics of Humanitarian Intervention

Also by Brent J. Steele Ontological Security in International Relations: Self-Identity and the IR State Defacing Power: The Aesthetics of Insecurity in Global Politics

Ethics, Authority, and War Non-state Actors and the Just War Tradition

Edited by

Eric A. Heinze and Brent J. Steele

ethics, authority, and war Copyright © Eric A. Heinze and Brent J. Steele, 2009 All rights reserved. First published in 2009 by PALGRAVE MACMILLAN® in the United States - a division of St. Martin’s Press LLC, 175 Fifth Avenue, New York, NY 10010. Where this book is distributed in the UK, Europe and the rest of the World, this is by Palgrave Macmillan, a division of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throught the world. Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN: 978–0–230–61674–5 Library of Congress Cataloging-in-Publication Data Ethics, authority, and war : non-state actors and the just war tradition / edited by Eric A. Heinze and Brent J. Steele. p. cm. ISBN 978–0–230–61674–5 (alk. paper) 1. International relations—Moral and ethical aspects. 2. Just war doctrine. 3. Humanitarian intervention—Moral and ethical aspects. I. Heinze, Eric. II. Steele, Brent J. JZ1306.E878 2009 172 .42—dc22 2009012782 Design by Integra Software Services First edition: December 2009 10 9 8 7 6 5 4 3 2 1 Printed in the United States of America

Contents

List of Tables

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Preface and Acknowledgments

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Notes on Contributors 1 Introduction: Non-state Actors and the Just War Tradition Eric A. Heinze and Brent J. Steele

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2 From Versailles to 9/11: Non-state Actors and Just War in the Twentieth Century Cian O’Driscoll

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3 Authority and the Problem of Non-state Actors Anthony F. Lang, Jr.

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4 What Happened to Punishment in the Just War Tradition? Harry D. Gould

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5 War Crimes Trials and the Just War Tradition Michael J. Struett 6 Private Military Companies, Just War, and Humanitarian Intervention Eric A. Heinze 7 Gender, Just War, and Non-state Actors Laura Sjoberg

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123 151

8 “Justice is Conscience”: Hizbollah, Israel, and the Perversity of Just War Brent J. Steele and Jacque L. Amoureux

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9 Jus Post Bellum, Peacebuilding, and Non-state Actors: Lessons from Afghanistan Melissa Labonte

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10 Conclusion: Elusive Distinctions, Epochal Changes Nicholas Onuf

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Bibliography

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Index

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List of Tables

9.1 A Compilation of Emergent Principles of Jus Post Bellum 9.2 Jus Post Bellum Goals and Corresponding Peacebuilding Modalities

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Preface and Acknowledgments

The idea for this book came about from a conference panel that the present editors organized on “Just War and Non-state Actors” at the 2008 International Studies Association (ISA) conference in San Francisco, CA. In addition to the original participants on this panel, we are extremely lucky to have been able to locate such a fine group of scholars to contribute to this volume. It should be mentioned at the outset that most of the contributors to this volume took their formal academic training as political scientists, or were otherwise trained in the fields of politics and international relations. We therefore approach the just war tradition not only as a philosophical doctrine or ethical tradition about armed conflict, but also as a political process, wherein certain acts and actors in international relations may or may not be granted some degree of legitimacy. This volume thus construes “the just war tradition” in the broadest of terms to include not only the ecclesiastical writings associated with early Christianity, but also ethical traditions that flow from Modern natural law theory, various strands of political and international relations theory, contemporary positivist international law, and indeed the broader normative conversation about the legitimacy of war, which now spans over two millennia. While we invoke the just war tradition in the title of this volume, and employ it because it provides a familiar moral vocabulary about the legitimacy of war, few of the contributors to this volume actually consider themselves “just war theorists.” Rather, we are mainly scholars of international relations who are engaging in normative theorizing about a particularly salient issue in contemporary international affairs. In this sense, the volume before you is a synthesis of normative theory, international relations, ethics, philosophy, and international law, but is perhaps best understood as an exercise in international political theory. The reader may also notice that many of the contributors to this volume resemble what one reviewer referred to as “rising stars” in the field, rather than “established authorities.” We embrace this label wholeheartedly. It goes without saying that we are extremely grateful to have

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outstanding chapters written by our more senior contributors, which are excellent contributions in their own right and undoubtedly add to the quality and erudition of this volume. Yet for the purpose of this book, the aforementioned reviewer’s choice of words speaks directly to what we hope to achieve with this volume. As the title indicates, this book is very much about “authority”—specifically, who is said to have the proper authority to initiate and participate in armed conflict. The just war tradition can be said to contain many different “theories of authority” that prescribe who may or may not legitimately engage in war, though with an unequivocal focus on the territorial state. States have been considered to be the “established authorities” when it comes to war fighting, which has traditionally been considered both an empirical and normative observation. This volume contests such conventional wisdom—certainly on empirical grounds but correspondingly, therefore, on normative grounds. Nonstate actors are participating in war and have been for some time. But many non-state actors today possess few, if any, of the state-like attributes that previously led international society to make exceptions for their war undertakings (e.g., control of territory, desire to participate in governance, etc.), and are increasingly challenging this statist paradigm. New actors outside of the “established authorities” of the states system—terrorist organizations, militias, private military companies—are fighting wars that increasingly have global consequences. We believe that such developments necessitate looking beyond the usual “established authorities” of an academic field for answers to such challenges, and turning toward scholars who bring new thinking, fresh ideas, and original scholarship to bear on these questions. We hope that this volume leads its readers to think outside the box when it comes to who is said to have the authority to do what, and for what purpose, and to perhaps consider different views— besides only those of the putative “established authorities”—that include new ways of thinking by scholars from an emerging generation about the challenges that confront the world today. As with any book project, the editors are extremely thankful for all the help we have received along the way in making this volume come to fruition. We especially want to thank the staff at Palgrave Macmillan— especially Toby Wahl and Asa Johnson—for moving quickly to get the manuscript reviewed and for procuring some very helpful and thoughtful external reviews of the project, and to Farideh Koohi-Kamali and Robyn Curtis for seeing it to production in such a timely fashion. We also want to express our deep gratitude to Nick Onuf, not only for writing the concluding chapter, but also for performing beautifully as the discussant on the original ISA panel that was the catalyst for this volume. We are thus

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very thankful to scholars like Nick, who take the time to help younger scholars find direction in the profession and challenge us to think through our ideas. One could just as easily say the same of our friend, colleague, and contributor Tony Lang, who has helped both of us immensely in the early stages of our careers. And, of course, we are extremely grateful to all our contributors, both for coming on board the project when there was no guarantee of publication, and for all their hard work on their chapters since that time. All of the contributors have been extremely responsive to our suggestions, very patient as we worked out the details of the project, and, most importantly, very attentive to deadlines. Brent Steele would like to thank the following: Several of my colleagues at the University of Kansas and elsewhere provided professional advice and moral support which helped to bring this project to an edited book, including but not limited to Ryan Beasley, Hannah Britton, Don Haider-Markel, and Juliet Kaarbo. Several individuals attended the ISA 2008 panel in San Francisco and provided insightful comments that helped the project as a whole, including my good friends Jon Acuff, Jon D. Carlson, and Jeremy Youde. I want to thank my family, most notably my grandfather, Eldon Akers, my brother-in-law Michael Strohman, and my brother Kyle Steele, who each in their own unique ways helped to take my mind away from work through chats about the more enjoyable things in life. Kyle’s family—Lisa, Brenan, and Kaleb—have been immeasurable sources of support and encouragement for me throughout my career. My wife, Mindy, has been a basis of encouragement, love, and assistance for me even when I didn’t deserve it. During the last few months of writing, where I was consumed with some late nights at the office, she was especially helpful, all while being very pregnant with our second child. Speaking of which, and most importantly, there is my baby boy, Joseph Eldon, and my wonderful daughter, Annbelle Kathleen, who both remind me that the same world I study which produces violence and heartache can also, through its children, bring about so much beauty, joy, laughter, and love. Eric Heinze would like to thank the following: The University of Oklahoma College of Arts and Sciences for providing generous summer salary support while working on this project, as well as the International Programs Center for providing additional funding. I especially want to thank the support staff in both the School of International and Area Studies and Department of Political Science for their competence and professionalism, and for making my life that much easier. I would like to thank Justin Morris, Abby Wadley, and Nancy Peterson for their research and/or editorial assistance, and Jacque Braun for her work on the cover design. I am especially grateful to my friends and colleagues

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here at OU who have supported me in this project intellectually, morally, and emotionally. These people include, but are not necessarily limited to, Greg Russell, Bob Cox, Zach Messitte, Suzette Grillot, Greg Miller, Paul Goode, Justin Wert, Jon Havercroft, Ariel Ahram, and Bob Franzese. I also want to thank my parents, Greg and Kathy Heinze, for their love and for all their encouragement, both personal and professional. I especially want to thank my wife, Missy, for her love, patience, understanding, and constant support as I worked long evenings on both the research for my contribution and getting the final manuscript in shape.

Notes on Contributors

Eric A. Heinze is Assistant Professor of Political Science and International Studies at the University of Oklahoma. He is the author of Waging Humanitarian War: The Ethics, Law, and Politics of Humanitarian Intervention (2009). His research has most recently appeared in Global Governance, Political Science Quarterly, the Journal of Military Ethics, and the Journal of International Political Theory. He teaches courses on international relations theory, international law, and international human rights. Brent J. Steele is Assistant Professor of Political Science at the University of Kansas. He is the author of Ontological Security in International Relations (2008) and is currently working on a book manuscript titled Defacing Power: The Aesthetics of Insecurity in Global Politics. His research has most recently appeared in International Relations, International Studies Quarterly, International Studies Review, and the Journal of International Relations and Development. He teaches courses on international relations theory, international ethics, U.S. foreign policy, and Critical Security Studies. Jacque L. Amoureux is a Ph.D. Candidate at Brown University and does research in the areas of international ethics, international organizations, foreign policy, and critical social theory. Amoureux’s dissertation proposes a practice of ethical reflexivity for foreign policy and international organizations. Amoureux’s work has been published in Millennium: Journal of International Studies. Harry D. Gould is Assistant Professor of Politics and International Relations at Florida International University, School of International and Public Affairs. He has recently completed a book manuscript titled Punishing Nations, and has begun work on another, a conceptual history of prudence. His research has appeared in Review of International Studies,

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International Legal Theory, and several edited books. He teaches courses on international relations theory, international ethics, international law, and political theory. Melissa Labonte is Assistant Professor of Political Science at Fordham University. Her research has most recently appeared in Global Governance, the Journal of Peacebuilding and Development, and several edited volumes. She is currently working on a book manuscript entitled Bringing Influence to Bear: Humanitarian Actors and the Politics of Intervention. She teaches courses on international law and organization, humanitarianism and human rights, the international politics of peace, and conflict resolution. Anthony F. Lang, Jr., is Senior Lecturer in the School of International Relations at the University of St Andrews. He has taught at the American University in Cairo, Yale University, Bard College, and Albright College and served as a program officer at the Carnegie Council on Ethics and International Affairs. He has written two books, Agency and Ethics: The Politics of Military Intervention (2002) and Punishment, Justice, and International Relations: Ethics and Order after the Cold War (2008), and edited or coedited five others. He has also published a number of articles and book chapters on political responsibility, the just war tradition, punishment, intervention, and international political theory. His current work focuses on global constitutionalism. Cian O’Driscoll is Lecturer in the Department of Politics at the University of Glasgow. He is the author of The Renegotiation of the Just War Tradition and the Right to War in the 21st Century (2008). His research has recently appeared in the Journal of International Political Theory, Millennium: Journal of International Studies, International Relations, Journal of Military Ethics, and the Cambridge Review of International Affairs. He teaches courses on international relations theory and Critical Security Studies, and is the recipient of the Snell Visitorship to Balliol College, Oxford, for 2009–10. Nicholas Onuf teaches a seminar in International Relations theory at the University of Southern California. From 1966 to 2005, he taught at Georgetown University, American University, and Florida International University. He has also been visiting professor at Columbia University, Columbo University (Sri Lanka), Ritsumeikan University (Japan), and Pontifícia Universidade Católica do Rio de Janeiro. He is the author of

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five books (two with his brother Peter Onuf ), and has edited or coedited two others. Laura Sjoberg is Assistant Professor of Political Science at the University of Florida. She is author of Gender, Justice, and the Wars in Iraq (2006) and Mothers, Monsters, Whores: Women’s Violence in Global Politics (with Caron Gentry, 2007), and editor of Gender and International Security (2009) and Rethinking the 21st Century (with Amy Eckert, 2009). Her work has been published in International Relations, International Politics, International Studies Quarterly, International Studies Review, and the International Feminist Journal of Politics. She teaches courses in international security and international relations theory, as well as gender in law and politics. Michael J. Struett is Assistant Professor of Political Science in the School of Public and International Affairs at North Carolina State University. He is the author of The Politics of Constructing the International Criminal Court: NGOs, Discourse, and Agency (2008). The book analyzes the role of nongovernmental organizations in establishing the International Criminal Court. He has also published in journals such as Peace Review, Chapman Law Review, and Perspectives on Politics. He teaches courses on International Relations Theory, International Law, International Organizations, and the United Nations.

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CHAPTER

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Introduction: Non-state Actors and the Just War Tradition Eric A. Heinze and Brent J. Steele

This volume is about the ethics of war in an era in which non-state actors are playing an increasingly prominent role in armed conflict. While the notion that nation-states have a monopoly on the use of organized violence has proved analytically useful in the field of international relations, it is becoming clear that this is no longer an empirically airtight observation, if it ever was. From the July War of 2006, when Hizbollah launched some 150 rockets per day into the territory of Israel, to the ongoing war in Iraq, where the United States Department of Defense employs some 100,000 private military contractors (30,000 of them armed) that operate largely independent of the sovereign jurisdiction of a state, non-state actors are demonstrating a striking array of state-like military capabilities and judicative capacities.1 How can these twenty-first-century non-state entities be accommodated by prevailing normative frameworks that seek to place moral limitations and requirements upon those who seek to use armed force? Given that our moral vocabulary about war is primarily equipped to apply to the conduct of states, how are these state-centric normative frameworks impacted by the presence and practices of these non-states? The fact that the United States and many of its allies are currently fighting a war with no end in sight against non-state terrorists is yet another testament to the relevance of these concerns. This “global war

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on terror” was declared after the terrorist attacks of 11 September 2001 (9/11), and was the basis for the United States-led military campaign against the al Qaeda terrorist network sponsored by the Taliban regime in Afghanistan. This same military struggle against obscure, non-state terrorists has since continued—as the George W. Bush administration would have many Americans believe—in the form of the preemptive invasion of Iraq in 2003. These two armed conflicts have specific and discrete strategic (and legal) justifications—self-defense against terrorism in the case of Afghanistan, and host of arguments for Iraq, including, inter alia, weapons of mass destruction (WMD), terrorism, and democratic reform.2 Yet the moral discourse that has been advanced in support of these two conflicts is broad, portraying them as two fronts in the same conflict. “Good versus evil” and “a struggle against violent extremism” are among the language used to describe this broad conflict in moral terms, and which allegedly justifies not only the present wars in Iraq and Afghanistan, but also any and all future military campaigns against violent extremists.3 Thus, the question of whether the global war on terror is a “just war” has profound implications; for what is at stake is whether a war, or series of wars, against an ill-defined enemy, anywhere in the world, and for all time, is morally justified. We seek to elucidate this discussion by systematically applying what one might call “just war principles” to armed conflict that involves nonstate actors. The wars in Afghanistan and Iraq, as well as the broader war on terror, have indeed sparked a renewed scholarly interest in the ethics of armed conflict, as evidenced by several recent books that claim to reappraise, revisit, or otherwise rethink just war theory in light of these developments.4 While what is broadly understood as the just war tradition predates the advent of the states system, these and other contemporary analyses of the just war nevertheless remain undeniably state centric, or only tangentially touch upon how just war principles apply to non-state or nongovernmental participants of armed conflict. Given the fact that a substantial portion—if not a majority—of contemporary armed conflicts involve at least one non-state actor, we take this to indicate that the role of specifically non-state participants in warfare has been under-studied in the recent literature on the ethics of armed conflict. Therefore, the purpose of this volume is to engage the ethical dilemmas posed specifically by non-state actors to the conduct of armed conflict. Do non-state actors have the right to go to war at all? If not, how does this implicate just war theory as a theory of authority? What are the parameters for seeking the punishment of non-state actors? How might non-state actors be held accountable under relevant international law? How do assumptions about gender subordination in the just war tradition affect how the tradition

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approaches the problem of non-state actors? What are the problems posed by the alleged trend toward privatizing the conduct of war? How are nonstates to be incorporated into post-conflict peacebuilding efforts? The chapters in this volume will explore these questions and more. While the global war on terror and the challenges that it presents were the catalysts for this and other projects that seek to reexamine just war theory, the contributors to this volume go beyond the concern of terrorism to examine problems raised by various non-state actors that purport some degree of authority to use armed violence to achieve their aims. Much of the recent research on just war and non-state actors has been guided by the central question of how international society should go about expunging these entities, and which rules (if any) should govern those attempts.5 While a good deal of this literature has usefully analyzed some of the difficult issues inherent in fighting terrorism, certain studies have suffered from conflating all forms of “terrorism” into monolithic and analytically problematic categories.6 In contrast, the chapters in this volume are not case studies on different non-state actors, but rather narratives that flesh out, apply, and critique certain ethical principles in light of the increased salience of various non-state actors, while using examples from contemporary non-state armed conflicts. It is not our intent to document the historical evolution of the just war tradition as it has evolved over the past two thousand years. Nor do we claim to have “reinvented” just war theory to satisfactorily account for different non-state actors. Rather, this volume intends to explore the ethical dilemmas posed by non-state actors that engage in armed conflict amidst an international normative order that undeniably reserves the right to wage war to states only, and the rules of which were intended apply primarily to states. This volume is therefore perhaps more about ethics, war, non-state actors, and, ultimately, the constitution and future of international and world society, than it is an exercise in just war theory. But since the just war tradition provides a set of concepts and principles that supposedly enable moral judgment about war—and indeed, comprises much of our common vocabulary about the ethics of war—it is this body of ideas that we invoke to explore the ethical dilemmas presented by non-state actors in contemporary armed conflict. The Just War Ideal There is much cynicism about the idea of a just war. If one is abhorred by war, why outline principles that seek to morally justify it? It is true that most just war theorists dislike war, yet the persistence of war as a central feature of human civilization throughout history has led to a great deal of

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concern with its moral justifications. In this sense, the very idea of a just war emerges from the ontological bedrock of realist thought in the shared assumption that international life is essentially anarchic and dangerous, and that war is going to occur despite our best efforts to prevent it.7 Given this tragic reality, the prudent statesman is always preparing for war, as realism would dictate. But for those who want the actual resort to war to be undertaken as infrequently and humanely as possible, though still undertaken when necessary, such a reality makes it absolutely imperative to have moral guidelines on when to actually go to war and how to go about it. The just war tradition is therefore said to place moral limitations on war for those who would undertake it. In his seminal book Just and Unjust Wars, Michael Walzer conceptualizes these limitations as “the war convention”—that is, “the set of articulated norms, customs, professional codes, legal precepts, religious and philosophical principles, and reciprocal arrangements that shape our judgments of military conduct.”8 This body of ideas about moral judgments in war is commonly referred to as the “just war tradition,” and has a rich history that has developed and evolved over the centuries and crystallized around several core principles, ideas, and theories. Before getting to the substance of these core principles, however, it is important to distinguish between two different but often conflated terms: just war theory and the just war tradition. Alex J. Bellamy offers a conception of these two ideas that we find largely persuasive. For Bellamy, the just war tradition is the protracted normative conversation about the legitimacy of war, which began in antiquity and has been adopted and refined by numerous subsequent commentators, each advancing related but distinct normative theories about the ethics of war. In this sense, the idea of an overarching “just war theory” misses the point, as what we really have are many different just war theories—secular, divine, legal, moral, and so on—that are united by certain common factors that all just war theories share to constitute the broader just war tradition.9 As such, when the term “just war theory” is used to denote a moral doctrine about war that is associated with Christianity, it is actually a reference to a particular branch of the broader tradition that originated with the writings of St. Augustine of Hippo and later Thomas Aquinas. As Bellamy writes, “[t]he tradition is fragmented, comprising many different sub-traditions . . . none of which permanently prevail.”10 Yet the various theories and sub-traditions that constitute the just war tradition share three common factors: (1) they contend that the resort to war should be limited and that the conduct of war should be as humane as possible; (2) they all originated in Western philosophical, theological, or legal traditions; and (3) they advance a set

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of principles that purport to govern the resort to war (jus ad bellum), the actual conduct of war (jus in bello), and, increasingly, the cessation of war (jus post bellum).11 What emerges from this two-thousand-year-old conversation is the following set of principles, first concerning jus ad bellum: 1) Just cause: A war may only be waged for one or more just causes, which must be sufficiently grave to warrant the resort to war. Just war theorists differ on the justness of certain casus belli, which have at various points included the punishment of evil, recovery of stolen property, and righting a wrong.12 The most widely agreed upon just cause is that of self-defense against aggression, though more controversial just causes in the debate include protecting civilians from massacre by their own government (humanitarian intervention) and averting imminent aggression (preemptive self-defense). 2) Right authority: One must be a duly constituted authority that is widely recognized as having the right to wage war. Today, this generally refers to sovereign political entities (states). Some attach to this principle the requirements that the authority have the ability to control and cease the use of force, and that the war be publicly declared.13 There is also controversy over whether political authorities have the right to wage war regardless of their moral status or whether their political institutions must meet certain minimal standards of justice.14 3) Right intention: The war must be waged in pursuit of the objective just cause and not for some other ulterior or hidden reason, such as territorial aggrandizement or intimidation. The controversy over this principle concerns whether mixed motives are permissible and whether it is required that the just cause only be the primary (but not exclusive) reason for going to war. This concern is particularly salient in the debate over humanitarian intervention.15 4) Proportionality of ends: The overall anticipated good of going to war must outweigh the expected harm the war will bring. In other words, the war must bring about more good than harm. Thus, a certain wrong sustained may be a just cause for war, but if the war is likely to produce harm that exceeds the good to be obtained, then it is unjust. The central debate over this principle is whether one considers the universal (versus only selfish national) costs and benefits of the war. Likewise, measuring and comparing different kinds of good and harm is profoundly difficult. 5) Last resort: War should only be pursued after nonmilitary alternatives to solving the dispute have been pursued within reasonable

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limits. This does not mean that every possible nonmilitary alternative be literally tried and failed before resorting to force. If this were the case, war would never be just, as one can always continue to negotiate. Rather, most just war scholars share the view that there must be reasonable grounds for believing that diplomacy, negotiations, sanctions, and other noncoercive measures will not be successful.16 6) Reasonable prospect for success: A war should not be waged unless there is a reasonable hope that the goals the initiator hopes to achieve (those goals embedded in the just case) can, indeed, be achieved. This prudential criterion serves to essentially ban lethal violence that is known in advance to be futile.17 Political leaders have a responsibility to their citizens (and combatants) to not sacrifice their welfare by going to war if military victory is unlikely. More controversially, some scholars add to this requirement that the war must have a reasonable prospect for creating an enduring peace.18 Concerning jus in bello: 1) Proportionality of means: The means used to wage a war must be proportionate to the ends pursued, thus prohibiting destruction that goes beyond that which is required to achieve the military goal. This criterion, codified in numerous conventions, serves to prohibit certain means and methods of warfare that cause unnecessary suffering to both combatants and noncombatants (e.g., wanton destruction of infrastructure), as well as prohibit the use of certain weapons that cause such unnecessary suffering (e.g., chemical and biological weapons).19 2) Noncombatant immunity: Also referred to as the principle of “discrimination,” this principle dictates that only combatants and “legitimate military objectives” may be deliberately targeted. What Walzer calls the “moral equality of soldiers,” the idea here is that soldiers may only legitimately kill enemy soldiers, subject to proportionality restrictions.20 There is some controversy, however, about how one defines “combatants,” particularly concerning fighters that are not members of the armed forces of a state. Likewise, this principle is almost always qualified by the “doctrine of double effect,” which essentially means that harm to noncombatants can be permissible (though regrettable) if it is not intentionally inflicted and if reasonable precautions are taken to minimize harm to civilians.21 Proportionality considerations enter into this principle

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when facing the dilemma of attacking so-called “dual-use” targets, which are sites that have both a civilian and military purpose, or are primarily military sites that are known to be occupied by significant numbers of civilians. Concerning jus post bellum there is less agreement, since far fewer commentators have wrestled with justice after war than with the justice of war’s initiation and its actual conduct.22 The important work of Brian Orend, following Walzer, reveals the following principles: 1) Rights vindication: Insofar as the cause of a war is just (i.e., the resistance of aggression), then once aggression has been successfully resisted, it is the duty of the victor to return the state of affairs to a condition whereby individuals and political communities enjoy a more secure possession of their fundamental rights. This duty goes beyond the conventional assertion that the just goal of a just war should be to simply return to the status quo ante bellum. Rather, as Michael Walzer puts it, the just goal of a just war is “restoration plus.”23 2) Elimination of unjust gains: If the aggression involved invading and taking over territory or property that did not previously or rightfully belong to the aggressor state, then the secure borders should be reestablished, property rightfully returned, and the victim of aggression reestablished as an independent political community.24 3) Punishment: There are two dimensions of the requirement that the aggressor be punished. First, because aggression violates rights and causes damage, the aggressor owes some duty of compensation to the victim for at least some of the costs incurred during the war.25 Second, individuals who played prominent roles in planning and initiating aggression, as well as violating the rules of jus in bello, should be brought to trial before a fair and public tribunal and accorded full rights of due process, subject to proportionality constraints.26 4) Demilitarization and political rehabilitation: Depending on the nature and severity of the aggression committed, the aggressor may be required to demilitarize to a degree that it will not pose a threat to the victim or to the international community for the foreseeable future, yet not so weakened that it cannot maintain law and order within its borders. More controversially—and certainly in the more extreme of cases, such as that of Nazi Germany—the aggressor may have new domestic political institutions imposed upon it that are more peaceable, orderly, and rights respective.27

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This brief sketch of the principles and criteria that flow from the just war tradition is intended to illustrate the particular meaning of each principle as shaped and transmitted by the tradition. As indicated, the content of these principles remains contested and their meaning, relevance, and specific requirements are constantly in flux. As James Turner Johnson observes, there are indeed differences, and even tensions, among the various theories and discourses that constitute the tradition and how they each conceptualize these principles.28 For instance, at certain points in the history of the tradition, the just cause requirement permitted waging war as a means to punish wrongdoers, which has since been legislated out of existence by positive international law as “unlawful reprisals.”29 Furthermore, as the chapters of this volume illustrate, many of these principles are challenged by the advent of non-state actors as belligerents in armed conflict, particularly the ad bellum requirement of right authority and the in bello principle of distinction. Nevertheless, this is our general conception of just war principles as we understand them to have evolved in the just war tradition over the past two millennia, and it is this general framework that the contributors to this volume apply, critique, and analyze in order to achieve a greater understanding of the ethics of war as it pertains to non-state actors. None of the foregoing is to suggest that the language of “just war” is the only way to talk about the normative aspects of war, as other traditions have also contributed to ethical and legal norms that seek to govern armed conflict. The liberal tradition, for instance, has well-developed views on the ethics of war that have informed the trajectory of the contemporary law of armed conflict. The ideas of nonintervention, the nonuse of force enshrined in the UN Charter, the individual rights of combatants found in the Geneva Conventions, and the contemporary debate about humanitarian intervention can each be traced, at some level, to the writings of liberal thinkers such as Locke, Kant, Bentham, and Mill.30 Likewise, the Marxist tradition has long investigated the manner in which the private sphere of economic relations swamps the nationstate, and therefore how a particular conglomerate of non-state actors— corporations—both captures the state (making the latter do capital’s bidding by creating a “business-friendly climate”), and largely elides its control.31 The Marxist critique also explicates the grievances of those who do not benefit from this global system of capitalism: deprived of socioeconomic prosperity some of these groups may turn toward violence. And the seemingly recent decision by nation-states to turn toward private security contractors, and the difficulty of holding such actors accountable to democratic or legal institutions, seems almost anticlimactic when viewed through a Marxist critique. In like fashion, the Gramscian

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articulation of hegemony focuses us on the epistemic context—how the neoliberal championing of privatization made possible a context where the privatization of security seemed “natural,” cast by “dominant groups [as a] vision which claims to serve the interests of all,” and how the means for resistance must come from civil society groups who can effectively articulate a counter-hegemonic vision of legitimacy, a “war of positioning.”32 And as we discuss briefly in the following section, the English School’s current debate regarding international and world society has been a ground zero for the legitimacy of the use of force—by both state and non-state actors. Yet we contend that all of these traditions—insofar as they make ethical prescriptions about war—can be considered as partially constitutive of the just war tradition, broadly construed. For example, this assertion would help illuminate the manner in which liberal feminists like Jean Bethke Elshtain, and liberal democratic peace scholars such as Bruce Russett, have turned to the just war tradition to help clarify and extend previously developed theoretical assertions.33 States, Non-States, and War As mentioned, the just war tradition predates the advent of the modern states system, which only emerged in the past four hundred years. When undertaking an essentially just war analysis of non-state actors, therefore, one might intuitively proceed with the assumption that the just war tradition should be well equipped to address the ethical dilemmas presented by non-state actors, given that it was alive and well prior to the emergence of states. We resist this temptation, although readily admit that the various ways in which war has been, and is currently, defined is likely to make conceptions of legitimate authority particularly problematic. Nevertheless, the idea of authority figures prominently in this volume, as how one understands it in relation to the three foundational concepts of state, non-state, and war is critical. As understood in contemporary international law, states must possess a permanent population, a defined territory, a government, and the capacity to enter into relations with other states.34 While not a formal criterion for statehood, most legal and international relations scholars also add to these objective criteria some sort of official recognition by other states.35 As a corollary—and usually associated with Weberian conceptions of political authority—the essence of statehood almost always entails the ability to claim a “monopoly on the legitimate use of physical force within a given territory.”36 States, thus understood, are those political entities that have met this fairly stringent set of objective and subjective requirements

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for membership in the international legal community. It is this narrow understanding of statehood to which we ascribe for the purposes of this volume. Whether or not only states should have the right to wage war— which is the presumption of much contemporary just war scholarship—is not necessarily shared by the present authors or the contributors to this volume. It is nevertheless true that even contemporary debates about the authority to participate in war have included discussions of non-state actors. For instance, the 1977 Protocols Additional to the Geneva Conventions suggest that anticolonial movements, as well as other territorially based armed groups, indeed have rights and duties under the laws of war.37 Yet such groups seemingly acquired such legal personality precisely because they either resembled states, or aspired to become states. The non-state groups under consideration in this volume do not necessarily resemble the national liberation movements of the decolonization period, and, in many cases, have no desire whatsoever to statehood. Furthermore, to say that an armed group has rights and duties when it participates in war (an in bello consideration) is not the same as saying that it has the authority to initiate a war (an ad bellum consideration). Thus, even though one might argue that certain non-state actors have the right to use force to resist colonial oppression, it remains unclear how such a right would or should apply to different kinds of non-states who wage war in dramatically different contexts than that of anticolonialism. Yet the idea that the right to wage war should be restricted to certain organized social or political entities—be they states or some other authority—is characteristic of the just war tradition, even in its premodern conceptions. As St. Augustine noted, just wars are those that are “in obedience to God or some proper authority,” and that it is part of the order of nature that monarchs have the authority to make war.38 The entities perceived by commentators as having the proper authority to wage war have evolved throughout history commensurate with evolving conceptions of political authority. Tautological as it sounds, the proper authority to wage war, while never achieving perfect consensus, has typically been the purview of whatever conception of legitimate authority has prevailed at a given time—be it Greek-like city-states, empires, monarchs, territorial states, and so on. While these authority structures vary dramatically in form, they are functionally similar in that they all refer to the machinery of governance that organizes societal relations among certain people living in particular territories. Thus, to say that war today is the exclusive purview of states is not that terribly different than saying it was the exclusive purview of monarchs ruling by divine right sometime prior to the advent of the states system, as both represent the prevailing

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organizational machinery of governance during their time. The idea was, and still is, to prohibit the waging of war by “just anybody.”39 Our understanding of non-state actors for the purposes of this volume, quite simply, refers to any political or institutional entity that is not widely considered to be a state, as defined above and understood as the prevailing organizational governing entity of our time. Yet if one is to conceptualize the possibility of non-state actors potentially having a right to wage a just war, as we do in this volume, yet still resist the claim that “just anybody” can claim this right, one needs an account of what it is about states that merits their status as the prevailing organizational governing entity, and by extension, their purported exclusive right to wage war. While such an account is clearly beyond the scope of this introductory chapter, Michael Walzer provides a useful starting point that helps us develop our conception of war for the purposes of this volume. For Walzer, states are morally valuable because it is only within states that men and women can build a political community they can call their own, whereby the state provides an “arena within which freedom can be fought for and (sometimes) won.”40 This is the moral basis for states’ right to nonintervention, and presumably also their right to resort to war—that is, to protect the political community that thrives within the state. While Walzer was concerned less with the intrinsic value of states and more with their instrumental value, his logic suggests that if nonstate entities can provide this same possibility for meaningful political community, then such entities may also at times have the right to wage war, at the very least in defense of their political community. Following this Walzerian conception, Orend argues that war should be understood not in the classical sense of international war between sovereign states, but rather as armed conflict between political communities.41 This not only makes room for civil war, but also allows “wars” to be fought by and between other non-state actors and for non-state-based goals, which, as Mark Evans notes, is something that the just war tradition is widely thought to have been incapable of addressing.42 We therefore agree with Orend that war is ultimately about governance—a violent means of deciding who gets what, when, and how in the quintessential Clausewitzian fashion of a continuation of politics by other means.43 This notion of war thus consists of the actual, organized, and widespread use of armed force to compel an enemy to submit to one’s will. But what distinguishes war from other forms of violence is the actors who are said to undertake it, which we understand as political communities, defined as organized associations of people with a political purpose, who may aspire to statehood, or at least wish to influence governance in a particular territory.44 This broadens the understanding of war as an

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activity undertaken not just by states—or whatever organizing governing authority prevails at a given time—but also by non-state entities that are potentially emerging as challengers to that prevailing authority, or who are filling a void where such authority is weak or contested. This allows us to include a host of non-state actors as participants in war, including substate rival communities (e.g., the Confederacy during the American Civil War), organized armed groups who claim to fight on behalf of a larger community (e.g., the armed wing of Hizbollah), and potentially even terrorist organizations (e.g., al Qaeda), insofar as they use organized armed violence to try and affect a political order. This is not to legitimate the actual political aims of such actors, but to simply recognize the reality that they can be participants in war insofar as they engage in armed violence in order to influence governance within a particular territory. Violence between individuals, gang violence, and violent criminal activity, however, do not normally count as war. Positing the concept of political communities as the agents that undertake war is analytically helpful in two further ways. First, investigating the nature of political communities, their similarities, and their differences allows us to understand how they may potentially transform or otherwise affect certain international norms and principles, such as just war categories. Therefore, forecasts about the international community over the next century as an arena still governed largely by nation-states,45 or one that is transitioning toward a world society of “peoples,”46 or a multilayered polity with “different types of actors operating at different levels,”47 have implications for future iterations of just war principles that constitute the broader tradition. A multilayered understanding of the global polity would presumably transform the meaning, if not also the explicit content, of principles established by a more homogeneous community of sovereign states. In this sense, this volume develops from and feeds back into the current debates in the English School. If international society (IS) was constructed by states as an arrangement to encapsulate the values of its members, to establish an international order for bringing about “the elementary or primary goals of the society of states,”48 the next logical step is that by their mere presence, non-state—or “world society” (WS)—actors are filling or seeking to fulfill some default void for certain groups that cannot find an outlet for their grievances in IS. This does not mean that relations between IS and WS must always be either adversarial or accommodative. They will be both. Yet when the level of grievance for non-state political communities rises to the point when certain actors (e.g., transnational terrorist organizations, corporate entities, insurgencies, international organizations) use force or punish other actors, they are being given sanction to perform those actions by

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someone for some reason. How will an emerging community accommodate these new members and their reasons for action? How are those non-state actions justified or legitimated? How are they delegitimized and by whom? Second, a more critical investigation into the purpose behind the just war tradition explicates the disciplinary intent of IS, to demarcate not only who might use force, but how and for what purposes.49 Here, the superior capabilities of that society’s members are extenuated and reinforced— thus, “rules” lead to “rule.”50 Underlying notions of authority in the international system, the role of the just war tradition, and indeed that of just war theorists, are therefore exercises of power. The manner in which just war can be used to provide a veneer of legitimacy for certain members of IS to use violence, and to exclude others as illegitimate, is a disciplinary exercise much more covert and effective than the outright use of force. The right to wage war having been established for members by members, the actual conduct of war by societal members becomes anticlimactic. The effect, then, is that while certain “nonmembers” are tolerated (human rights NGOs, for example), others such as the Barbary pirates of the past or al Qaeda of the present are constituted as predators or parasites—that is, predatory or parasitic upon IS’s rules, institutions, and, most importantly, its members’ well-being.51 Taken from this more critical perspective, an investigation into the manner in which the just war tradition is impacted by non-state actors and new conceptions of “community” must also be cognizant of the role of the theorist and the production of knowledge s/he participates in to help reify these rules of international order. In this vein, certain contributions to this volume engage more explicitly the manner in which just war principles, as rules of IS, differentiate certain international actors from others, as well as the role of the theorist in establishing and reinforcing the just war tradition. Overview of the Chapters In a volume that seeks to address ethical concerns about non-state actors as participants in war, it goes without saying that the ad bellum principle of “right authority” will be a prominent theme engaged by the contributors. While current formulations of the just war tradition continue to invoke the problem of authority, they rarely use the tradition as a whole to reflect upon what constitutes a just authority in the current international order. If others agree with us that the proper authority condition is one of the most prominent in the just war tradition, and that for several centuries the sovereign state has been the main unit of that authority to wage war, then the reemergence in recent years of non-state actors

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deploying organized force represents an important challenge not only to one condition of just war, but to the broader tradition as well. Thus, the contributions to this volume confront this issue front and center. In the following chapter, Cian O’Driscoll examines the period following the First World War and surveys the debates that the salience of non-state actors in international politics has prompted within the just war tradition. Looking at the challenges posed “from above” by intergovernmental organizations (IGOs), “from below” by substate actors, and “from nowhere in particular” by terrorist entities, O’Driscoll challenges the reader to rethink the idea of a political community as something ontologically rooted in spatial territory and concludes that such a rethinking is necessary if the just war tradition is to adapt to the challenges posed by the myriad characteristics of political communities today. In Chapter 3, Anthony Lang addresses the broad concern of authority by examining specifically the thought of Hugo Grotius, who wrote at a period of history when the question of political authority was undergoing radical shifts. For Lang, Grotius’s insights on the relationship between violence and authority have much to teach us about which actors can use force and for what reasons. Rather than assume that the modern nation-state can use force simply because it is the modern nation-state, Lang reviews the natural law arguments of Grotius and others, arguments which he asserts point to a rather different set of criteria for justifying authority—that is, whether or not an authority structure advances the good of the community as a whole. In Chapter 4, Harry Gould explores how punishment fell from the categories of jus ad bellum. Gould proposes that just uses of war that were characterized as punitive took two primary forms in the history of the doctrine—retaliatory uses of force, in which a party injured by another uses force to inflict reciprocal injury; and a more expansive notion of punishment, in which there need not be a link between the party administering the punishment and the party receiving it. He notes that the former case is now generally treated under the heading of “reprisals” in international law and has been more or less directly legislated out of both jus ad bellum and positive international law. The latter case is much more interesting in Gould’s view because of its link to a network of practices that have evolved in ways that made punishment in this form conceptually problematic and normatively troubling. Gould explicitly addresses to what extent non-state actors have been the source of such punitive resorts to war and the extent to which they have affected subsequent codifications of this proscription into international law. Chapter 5 by Michael Struett examines the recent rapid developments in the field of international criminal law, exploring how these

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developments have the potential to remake the just war tradition by institutionalizing criminal accountability for the most egregious violators of just war norms, to the extent that those norms are codified by international criminal law. Contributing to the emerging just war category of jus post bellum, Struett reviews several cases that have been brought forth to the recently constituted International Criminal Court. In keeping with the general theme of authority, he asserts that classical debates in the just war tradition about the nature of proper authority for waging a just war will now need to cope with the reality that judges also will have a role as the “proper authorities”—not for waging war, but for determining whether or not particular decisions by war makers and war conductors were legal and ultimately moral ones. In Chapter 6, Eric Heinze probes the possibilities for and problems with private military contractors (PMCs) as agents of armed humanitarian interventions in an era in which states are frequently unwilling or unable to do so. While contracting certain military functions out to private firms by states is not a new phenomenon, the use of PMCs as agents of humanitarian intervention nevertheless raises a number of legal and ethical concerns—most notably, issues concerning lawful combatancy, the motive of those undertaking force, and, of course, proper authority. He ultimately argues that using PMCs as agents of humanitarian intervention raises a set of ethical dilemmas that are distinct from those pertaining to how PMCs are currently used (such as in Iraq). Such dilemmas arise primarily (but not exclusively) from concerns about the removal of important “transaction costs” that have historically reduced war’s frequency, the profit-driven nature of PMCs, and issues concerning their accountability under international law. Chapter 7 by Laura Sjoberg argues that just war theory’s blindness to the gender subordination inherent in its theoretical assumptions is related to its difficulty adapting and producing standards for the non-state actors of twenty-first-century warfare. Sjoberg argues that the gendered assumptions of just war theory perpetuate the public/private dichotomy in ethical thought about war, which excludes non-state actors and their agents as belligerents. This chapter proposes a feminist reinterpretation of just war theory based on relational autonomy, political marginality, empathy, and care. First introducing some feminist standards for considering the morality of war, Sjoberg applies them to some contemporary scenarios that involve non-state actors in war— namely terrorist groups. The chapter concludes by arguing that the added normative strength and explanatory power coming from a feminist perspective is something just war theory sorely needs, now more than ever.

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Brent Steele and Jacque Amoureux likewise advance a critical assessment of the just war tradition in Chapter 8, using the 2006 war between Israel and Hizbollah to demonstrate the myriad of ad bellum and in bello conditions that require revisiting during a time when state sovereignty’s inadequacies as an organizing principle are being made apparent, and when new arrangements of sovereignty are emerging and consolidating. Steele and Amoureux review several bodies of scholarship—both within the just war tradition and outside of it—to reveal some of its shortcomings. These authors are primarily concerned with the possibility that just war principles have become a “doctrine” for the powerful to continue to consolidate their dominance of international politics. Steele and Amoureux conclude by suggesting criteria for alternative ethical practices and traditions that may ultimately prove more satisfactory for navigating international politics. In Chapter 9, Melissa Labonte turns attention to the emerging just war category of jus post bellum by exploring the role of non-state actors in post-conflict peacebuilding. For Labonte, peacebuilding in post-conflict situations can only proceed through interaction with both state and nonstate actors. Examining peacebuilding efforts in Afghanistan, she reveals the disparate actors that have been incorporated into peacebuilding strategies, which include local governance structures, provincial warlords, and even international narcotics traffickers. Utilizing these case studies, she offers suggestions for how the overarching architecture of just war theory can or should accommodate jus post bellum frameworks that place nonstate actors on significant or even equal footing with states. Admitting that there are numerous challenges that must be worked through in order for peacebuilding strategies to have a chance of being effective, Labonte ultimately advances a descriptive and explanatory typology to examine the impact that different types of non-state actors may have on the development of jus post bellum frameworks and uses it to offer prescriptions for peacebuilding policy making as appropriate. A final word is provided in Chapter 10 by Nicholas Onuf, who takes up the themes that were introduced in this chapter, and observes no fewer than three paradoxes embedded in the broader discussion of non-state actors and the just war tradition. Following the work of Pierre Bourdieu, Onuf incorporates the insights of Aristotle, Grotius, and others to argue that the contemporary discussions of just war—including those in the present volume—can be described as “paradoxes of logic and language.” In other words, the just war tradition provides old distinctions—between just and unjust, state and non-state, and so on—but that epochal change has rendered these distinctions elusive, denying them the force they once possessed.

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Notes 1. Augustus Richard Norton, Hezbollah: A Short History (Princeton, NJ: Princeton University Press, 2007), 135–136; T. Christian Miller, “Contractors Outnumber Troops in Iraq,” Los Angeles Times, 4 July 2007. 2. It is now well known that the public justifications for the invasion of Iraq—which were primarily that of Iraq’s possession of WMD and alleged links to terrorist networks—were misguided, if not deliberately exaggerated. See Scott McClellan, What Happened: Inside the Bush White House and Washington’s Culture of Deception (New York: Public Affairs, 2008). 3. For the most sustained defense of the war on terrorism from a just war perspective, see Jean Bethke Elshtain, Just War against Terror: The Burden of American Power in a Violent World (New York: Basic Books, 2004). 4. See, for example, Oliver O’Donovan, The Just War Revisited (Cambridge, UK: Cambridge University Press, 2003); Mark Evans, ed., Just War Theory: A Reappraisal (Basingstoke, UK: Palgrave Macmillan, 2005); Michael Brough, John W. Lango, and Harry van der Linden, eds, Rethinking the Just War Tradition (Albany, NY: State University of New York Press, 2007). 5. Michael W. Brough, John Lango, and Harry Van der Linden, “Introduction,” in Brough, Lango and van der Linden, eds, Rethinking, 4; Carl Ceulemans, “The Military Response of the U.S.-Led Coalition to the September 11 Attacks,” in Bruno Coppieters and Nick Fotion, eds, Moral Constraints on War (Lanham, MD: Lexington Books, 2002), 265–292; Neta Crawford, “Just War Theory and the U.S. Counterterror War,” Perspectives on Politics 1 (1) (2003): 5–26; Alex Bellamy “Is the War against Terrorism Just?,” International Relations 19 (3) (2005): 275–296. A notable exception (in looking at how the practice of terrorism could be defensible) is Andrew Valls, “Can Terrorism Be Justified?,” in Andrew Valls, ed., Ethics in International Affairs: Theories and Cases (Lanham, MD: Rowman and Littlefield, 2000), 65–79. 6. See especially Jean Bethke Elshtain, “Terrorism,” in Charles Reed and David Ryall, eds, The Price of Peace: Just War in the Twenty-First Century (Cambridge, UK: Cambridge University Press, 2007), 118–135; Elshtain, Just War against Terror; Terrence K. Kelly, “The Just Conduct of War against Radical Islamic Terror and Insurgencies,” in Charles, Reed and David Ryall, The Price of Peace (Cambridge: Cambridge University Press, 2007), 201–216. 7. Anthony Burke, “Just War or Ethical Peace? Moral Discourses of Strategic Violence after 9/11,” International Affairs 80 (2) (2004): 337. 8. Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 3rd edition (New York: Basic Books, 2000), 44. 9. Alex J. Bellamy, Just Wars: From Cicero to Iraq (Cambridge, UK: Polity, 2006), 4. 10. Ibid., 3. 11. Ibid., 4.

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12. James Turner Johnson, Morality and Contemporary Warfare (New Haven, CT: Yale University Press, 1999), 28. 13. Brian Orend, The Morality of War (Peterborough, ON: Broadview, 2007), 50; Mark Evans, ed., “Moral Theory and the Idea of a Just War,” Just War Theory (New York: Palgrave Macmillan, 2005), 13; and Johnson, Morality, 28. 14. Brough, Lango and Van der Linden, Rethinking, 245; and Orend, Morality of War, 52. 15. Alex J. Bellamy, “Motives, Outcome, Intent, and the Legitimacy of Humanitarian Intervention,” Journal of Military Ethics 3 (3) (2004): 216–232. 16. International Commission on Intervention and State Sovereignty (ICISS), The Responsibility to Protect (Ottawa, ON: International Development Research Centre, 2001), 36. 17. Orend, Morality of War, 58. 18. Johnson, Morality, 29; Andrew Rigby, “Forgiveness and Reconciliation in Jus Post Bellum,” in Mark Evans, ed., Just War Theory: A Reappraisal (Basingstoke, UK: Palgrave Macmillan, 2005), 177–179. 19. Ingrid Detter, The Law of War, 2nd edition (Cambridge, UK: Cambridge University Press, 2000), 211–276. 20. Walzer, Just and Unjust Wars, 34–37. 21. See Orend, Morality of War, 115–118. 22. While Walzer does address jus post bellum at various points in Just and Unjust Wars, perhaps the most sustained analysis of this component of the just war is by Brian Orend, “Justice after War,” Ethics and International Affairs 16 (1) (2002): 43–56; and Orend, Morality of War, Chapters 6–7. Other research relevant to this concern comes from the conflict resolution literature, including Paul R. Pillar, Negotiating Peace: War Termination as a Bargaining Process (Princeton, NJ: Princeton University Press, 1983); and A.J.P. Taylor, How Wars End (London: Hamilton, 1985). 23. Walzer, Just and Unjust Wars, xx, 119; Brian Orend, Michael Walzer on War and Justice (Cardiff, UK: University of Wales Press, 2000). 24. Orend, “Justice after War,” 47. 25. Orend, Michael Walzer, 139. 26. Walzer, Just and Unjust Wars, 287–296; Orend, “Justice after War,” 53. See also Patrick Hayden, “Security beyond the State: Cosmopolitanism, Peace and the Role of Just War Theory,” in Mark Evans, ed., Just War Theory: A Reappraisal (Basingstoke, UK: Palgrave Macmillan, 2005), 169. 27. Orend, “Justice after War,” 50. Importantly, Immanuel Kant argued that the civil constitution of a vanquished “unjust enemy” could be forcibly changed if the defeated nation “displays a maxim which would make peace among nations impossible and would lead to a perpetual state of nature if it were made into a general rule.” See “The Metaphysics of Morals,” in H.S. Reiss, ed., Kant’s Political Writings, 2nd edition (Cambridge, UK: Cambridge University Press, 1991), 170. 28. Johnson, Morality, 27.

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29. See Chapter 4. 30. See Eric A. Heinze, “The New Utopianism: Liberalism, American Foreign Policy, and the War in Iraq,” Journal of International Political Theory 4 (1) (2008): 105–125. 31. Mark Rupert, “Marxism and Critical Theory,” in Tim Dunne, Milja Kurki, and Steve Smith, eds, International Relations Theories: Discipline and Diversity (Oxford, UK: Oxford University Press), 154. 32. Rupert, International Relations Theories, 157; and Robert Cox, “Social Forces, States and World Orders: Beyond International Relations Theory,” Millennium 10 (2) (1981): 126–155. 33. See Elshtain, Just War against Terror; and Bruce Russett, “Bushwhacking the Democratic Peace,” International Studies Perspectives 6 (4) (2005): 399–402. 34. Montevideo Convention on the Rights and Duties of States, 26 December 1933, 49 Stat. 3097; TS 881, Article 1. 35. This is why Taiwan, for instance, which meets all four of the Montevideo criteria, is not considered to be a state. 36. Max Weber, “Politics as a Vocation,” in H.H. Gerth and C. Wright Mills, eds, From Max Weber: Essays in Sociology (London: Routledge, 1948), 77. 37. See Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 U.N.T.S. 3, Article 1(4); and Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-international Armed Conflicts (Protocol II), 8 June 1977, 1125 U.N.T.S. 609, Article 1(1). The authors thank Ian Hall for bringing this point to our attention. 38. Quoted in David Rodin, War and Self-Defense (Oxford, UK: Oxford University Press, 2002), 168. 39. Evans, Just War Theory, 78. 40. Walzer, Just and Unjust Wars, 89, 61. 41. Orend, Morality of War, 2. 42. Evans, Just War Theory, 78. 43. Carl von Clausewitz, On War, ed., Anatol Rapoport (London: Penguin, 1982/1832), 119. 44. Orend, Morality of War, 2. See also Martin Shaw, War and Genocide: Organized Killing in Modern Society (Cambridge, UK: Polity, 2003), 18. 45. Robert Jackson, The Global Covenant (Oxford University Press, 2000), 424. “If I had to place a bet on the shape of world politics at the start of the twenty-second century, my money would be on the prognosis that our great-great-grandchildren will live in a political world that would still be familiar to us, that would still be shaped politically by state sovereignty.” 46. See Barry Buzan, From International to World Society (Cambridge, UK: Cambridge University Press, 2004); and Barry Buzan, “The English School: An Underexploited Resource in IR,” Review of International Studies 27 (3) (2001): 471–88.

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47. Alex Bellamy, “Conclusion,” in Alex Bellamy, ed., International Society and Its Critics (Oxford, UK: Oxford University Press, 2005), 287. See also Ian Clark, International Legitimacy and World Society (Oxford, UK: Oxford University Press, 2007). 48. Hedley Bull, The Anarchical Society (New York: Columbia University Press, 1977), 8. 49. Examples of such critical investigations include Burke, “Just War or Ethical Peace?”; and Donald Wells, “How Much can the ‘Just War’ Justify?,” Journal of Philosophy 66 (23) (1969): 819–829. 50. “Of course people also use resources to their advantage, but never without rules being implicated. The paradigm of political society is aptly named because it links irrevocably the sine qua non of society—the availability, no, the unavoidability of rules—and of politics—the persistence of asymmetric social relations, known otherwise as the condition of rule.” Nicholas Onuf, World of Our Making (Columbia, SC: University of South Carolina Press, 1989), 22. 51. See Oded Lowenheim, Predators and Parasites: Persistent Agents of Transnational Harm and Great Power Authority (Ann Arbor, MI: University of Michigan Press, 2006). “When parasites, which ‘infringe’ on the ‘rights and duties’ of the international society’s members, become predators, which ‘overtly violate’ those rights, they challenge great power authority.” (14–16). See also, Barak Mendelsohn, “Sovereignty under Attack: The International Society Meets the al Qaeda Network,” Review of International Studies 31 (1) (2005): 45–68.

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From Versailles to 9/11: Non-state Actors and Just War in the Twentieth Century1 Cian O’Driscoll

The just war tradition is often derided for its excessive emphasis on the state.2 Critics charge that it addresses the relation between force and justice solely as a question of state rights, without proper regard for the possibility that contemporary conflict often involves actors other than states. If this is the case, it stands to reason that the tradition must be in danger of lapsing into desuetude as non-state actors assume a greater role and visibility in the rough and tumble of international politics. Terrorist organizations, intergovernmental organizations, secessionist and national liberation movements, private military firms, and paramilitaries have all increasingly assumed stakes in the so-called “new wars” of the post – cold war era.3 The question arises, then, as to whether the just war tradition possesses the resources to treat the moral questions that must accompany the appearance of an increasingly wide and differentiated array of actors on the battlefields of the twenty-first century. That is, does it have the capacity to address the rights and obligations of a new generation of international actors that fall beyond the rubric of state sovereignty? Can it speak to the question of proper authority as it pertains to national liberation movements or intergovernmental organizations? Related to this,

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can it offer any guidance regarding the obligations organizations of this kind accrue toward international society, as well as toward those people in whose name they purportedly act? This chapter will argue that the just war tradition still provides a useful site from which to address these questions, but that a hard case arises in the context of the so-called “war on terror.” The hard case in point is the emergence of al Qaeda, a transnational terrorist organization that claims to act on behalf of the ummah, a religiously constituted, nonterritorial political community. Adopting a historical perspective that takes in the period from the First World War to the current “war on terror,” this chapter surveys the debates that the emergence of non-state actors in international politics has prompted within the just war tradition. In particular, it draws out the implications of these debates for our understanding of legitimate political authority as it pertains to the right of war. With this in mind, the first section of this chapter offers a brief background history of the just war tradition that demonstrates the historical connection between the right of war and the modern form of the territorially bounded community, the state. In the second section, the discussion moves forward to the twentieth century. It focuses on the questions raised by the emergence of intergovernmental organizations such as the League of Nations and the United Nations (UN) for traditional just war thinking, with particular attention to those matters pertaining to proper authority and the right to war. I argue that the creation of powerful intergovernmental organizations in the years following the First and Second World Wars challenged the state’s traditional monopoly on the right to war from above. The third section submits that a corresponding challenge from below occurred in the period from the 1950s to the 1970s. Driven by the decolonization movement, it was heralded by the proliferation of substate actors, including private military firms and national liberation and secessionist movements. The fourth section will address the “war on terror,” and the dilemma that the advent of al Qaeda’s brand of transnational terrorism poses for just war theorists today. Finally, the conclusion makes the case that the challenge posed by transnational terrorism must prompt contemporary theorists to reconsider traditional assumptions regarding the character of political community. Just War and Political Authority: The Emergence of the State This section aims to introduce the just war tradition and to demonstrate how its relationship to the state developed from medieval times to the outbreak of the First World War in 1914. The just war tradition is probably best introduced as the predominant moral language through which we

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engage questions pertaining to the right to war in international society. Though often traced back to Augustine and the sunset of the Roman Empire, it was not until medieval times that a recognizable doctrine of just war began to emerge.4 The requirement of “proper authority” lay at the heart of this doctrine.5 Proper authority refers to the principle that war may only be declared by an actor that is recognized as a duly constituted agent of rule.6 Abstract conceptual definitions aside, the essence of proper authority is probably best understood by reference to its historical development. With this in mind, a few words on the medieval development of the idea of proper authority may be beneficial here, for this will lay the groundwork for the remainder of this chapter. The precise meaning of proper authority was an acute source of contention in the Middle Ages, as canonical writers struggled to untangle it from the thickets of feudal society.7 While successive generations of medieval scholars (from the tenth to the twelfth century) could agree on the proviso that the right to war was conditional on its declaration by a proper authority, they encountered difficulties when identifying exactly who should qualify as such an authority.8 Should this honour be reserved for the Emperor alone, or should it also be extended to the Pope, and those lesser nobles of the Middle Ages, kings and princes? All of these actors conceivably had a plausible claim to the title or proper authority. A degree of resolution was achieved when Hostiensis cut through these debates with the pithy statement that only those with no secular or judicial superior had a right to declare war.9 This formulation reserved the right to war solely for those who occupied the highest office in the land. In effect, it excluded all actors other than the prince from the realm of war. In doing so, it invoked the classical Augustinian injunction that war may only be commenced by “a superior or lawful power.”10 Like all medieval canon lawyers, Hostiensis was deeply influenced by Augustine, and took on his mordant, pessimistic views on human political authority. For Augustine, and for those canonists like Hostiensis who came after him, political authority should be understood in minimalist terms as a remedial institution or curb for sin, a regrettable necessity required only because of the fall of man.11 It represents nothing more than a means for keeping man in check, by coercive means if necessary. This perspective is best captured by a famous passage from Augustine’s missive to Macedonius, in which he likens the role of government to a coercive regime founded on the power of sanction. What is government, asks Augustine, but “the might of the emperor, the judge’s power of the sword, the executioner’s hooks, the soldier’s weapons, the correction a master gives his slave, and even the strictness of a good father?”12 It is possible to discern traces of Pauline sentiment in this statement, most

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obviously St. Paul’s letter to the Romans (13:4): “[The prince] beareth the sword not in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil.” Writing shortly after Hostiensis, Thomas Aquinas both adopted and subverted this approach to proper authority. On the one hand, he endorsed the claim that the right to war falls only to princes—that is, to those with no judicial superior. As Aquinas puts it: For it does not pertain to a private person to declare war, because he can prosecute his rights at the tribunal of his superior; similarly, it does not pertain to a private person to summon the people together, which must be done in time of war. Rather, since the care of the commonwealth is entrusted to princes, it pertains to them to protect the commonwealth of the city or kingdom or province subject to them. And just as it is lawful for them to use the material sword in defence of the commonwealth against those who trouble it from within . . . so too, it pertains to them to use the sword of war to protect the commonwealth from enemies from without.13

On the other hand, Aquinas subtly undercut the Augustinian foundations of Hostiensis’s position. Appealing to Aristotle, Aquinas depicted political authority not as a punitive order that functions merely to keep the lid on human destructiveness by force and fear, but as a positive and natural institution that can contribute to man’s moral well-being and education. It carries out this positive function by directing the plurality of people in any community toward their common good. Understood in this light, political authority plays an essential and progressive (rather than merely remedial) role in ordering human life. “For it must be the task,” Aquinas claims, “of anyone who exercises rule to secure the wellbeing of whatever he rules.”14 Crucially, this task is understood in public, rather than private, and secular, not theological, terms. We will deal with these distinctions in turn. First, Aquinas is quite clear that the proper end of political authority is a matter of the common good, and not connected to the private interests or ambitions of the ruler.15 By disaggregating the rule of law from the private person of the ruler in this way, and presenting it as a public institution, Aquinas gestures toward a more modern conception of political authority. This gesture was lent further weight by the second distinction noted above, namely, Aquinas’s determination to follow Aristotle rather than Augustine and treat political authority in purely natural, rather than theological terms. This had the effect of detaching political authority from religious precepts relating to the fall of man and the economy of redemption. The implications of this are far-reaching. Political

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authority was seen to acquire positive moral worth purely on the basis of its capacity to provide for the common good of the polity, independent of any spiritual role the church fathers attribute to it. A number of commentators have subsequently identified this moment with the emergence of something resembling the modern idea of the state.16 This observation is corroborated by the development of new political formations and primitive bureaucracies in the Italian city-states during this period, as well as the emergence of the Latin term status and its vernacular expressions (estat, stato, and state) in general discourse.17 Without wishing to pursue this argument too far, it is possible to judge this moment as marking, at the very least, a turning point in the history of the just war tradition. From this point on, the matter of political authority was ever more closely related to the state, as it emerged as the dominant political institution in the late medieval to early modern period. This was particularly apparent in relation to the development of international law. Its early originators equated the legal right of initiating war with the authority of the sovereign state. Writing in the early seventeenth century, Grotius treated “lawful war” as the preserve of the sovereign state.18 Though he also defended the rights of select non-state actors to wage war, the connection Grotius drew between states and lawful war came to hold great significance. This was apparent in the influential writings of Grotius’s immediate heir, Samuel Pufendorf. Ostensibly following Grotius’s lead, Pufendorf commented that “the right of initiating war lies with the sovereign.”19 In a similar but more conclusive manner, Emmer de Vattel argued in the late eighteenth century that the rights of war and peace could properly be reduced to a matter germane to states and states alone.20 The association drawn between war and the state gathered further momentum in the eighteenth and nineteenth centuries, courtesy of the pluralist turn in international legal thought. The pluralist turn was characterized by three principal commitments. In the first place, it defined the state as the primary subject of international law. This was of great significance for the conception of war. The state occupied such a dominant role within extant legal thought that the very notion of a right to war—or even the concept of “war” itself—would have been unintelligible in its absence.21 Second, eighteenth- and nineteenth-century legal thought reflected a preoccupation with the codification of jus in bello constraints on war. Prompted by the introduction of a host of new military technologies—such as the metal screw-propelled ship, the machine gun, the chassepot, and the railroad—international lawyers perceived an increased need to rein in war’s destructive potential.22 This led, then, to a raft of legislation designed to curb the destructive capacity of modern

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war. The third commitment, the shift away from the jus ad bellum pole of analysis, emerged as a corollary of this process. During the eighteenth and nineteenth centuries, international legal theorists excluded the jus ad bellum from their purview so that they might more effectively pursue the codification of jus in bello restraints. As Hedley Bull explains, “The doctrine was proclaimed that international law sought only to regulate the conduct of war, regulating the controversy about the reasons for resorting to war to the sphere of morals or politics.”23 Consequently, the traditional jus ad bellum concern with just cause was largely abandoned, and, so long as they submitted to proper legal processes, states were presumed to enjoy a right to war solely by virtue of their status as sovereign entities. The development of international law along pluralist lines effectively empowered individual states to gauge for themselves the rights and wrongs of any particular use of force that pertained to their interests. This was an approach to the jus ad bellum that stressed the “self ” in self-limitation, self-judgment, and self-help. Acknowledging the fact that international society lacks a central governing institution, or even the capacity to impose central direction upon states, the law encouraged states to serve “as judges in their own causes.”24 This system was viable so long as war remained a relatively limited activity, constrained by technological and logistical primitivism. It was, however, exposed as a catastrophe waiting to happen when it became apparent that military activity was no longer a limited engagement, but had “become a menace to the welfare and happiness of humanity”25 —that is, when the First World War broke out. The Challenge from Above: Intergovernmental Organizations The horrific death toll of the First World War prompted the conception and development of the world’s first major intergovernmental organization: the League of Nations. This section will examine the challenge posed to traditional just war thinking by the League and its successor organization, the United Nations (UN). It relates this challenge to fading confidence in pluralist international legal thought, and a protracted effort to divest states of the right to war and invest it instead in intergovernmental organizations. This latter step reflects a shift toward a robust solidarist agenda, wherein war is conceived as an instrument of communal law enforcement that should optimally be wielded by intergovernmental organizations, such as the League and the UN, acting as supreme warmaking authorities on behalf of international society.26 This provokes two questions. First, has the emergence of intergovernmental organizations

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had any impact upon received understandings of the just war, especially with respect to the category of proper authority? Second, does the just war tradition provide us with a means to make sense of the shifting “legitimacy practices” that have attended the advent of intergovernmental organizations such as the League and the UN?27 This section addresses these questions. Conceived at the Paris Peace Conference in January 1919, the League was formally established on 28 April 1919.28 It represented the first major non-state actor to acquire a central role in the cut and thrust of high politics. With a membership comprising nearly all the major states of the time, the League reflected international consensus on two major points.29 First, wars like that which had just devastated Europe since 1914 were likely to recur if states retained the unfettered right to war they had enjoyed since the eighteenth century. Second, such wars might be avoided if institutional mechanisms were available to mediate interstate conflicts before they escalate to the use of force.30 Accordingly, the League was devised as both a safeguard against unnecessary and accidental war and a means for resolving international disputes and promoting cooperation among states. This was reflected in its design. The League provided a forum to which states could bring their disputes. It offered mediation and arbitration facilities, and required member-states to abstain from settling their conflicts by the recourse to force. More specifically, it bound member-states to submit disagreements to modes of pacific settlement, imposing upon them a period of abstention from fighting while the quest for a resolution occurred, restricting their right to war until pacific efforts have been exhausted, and permitting outsiders the licence to invoke community action to forestall the collapse of world peace in these instances.31 As J.P. Dunbabin notes, this was a “major departure” from the pluralist norms that obtained up to the outbreak of the First World War.32 This shift gained momentum in 1928 when the League was supplemented by the General Treaty for the Renunciation of War, more commonly known as the Kellogg – Briand Pact, which was a legal proclamation undersigned by 64 states. The pact formalized the prohibition on war as an instrument of national policy for all purposes other than self-defense. To this end, Article 1 of the pact stated that “[t]he High Contracting Parties solemnly declare war in the names of their respective peoples that they condemn recourse to war for the solution of international controversies and renounce it as an instrument of national policies in their relations with one another.” Despite these vaunted aspirations, history records the League as a failed enterprise. The proof of this failure lay in the League’s inability to enforce its mandate against aggressive states like Mussolini’s Italy and, ultimately,

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to forestall the Second World War. Assessed in gentler terms, the League enjoyed a modicum of success in the early 1920s. Most notable in this regard is the role it played in the resolution of crises in the Åland Islands, Upper Silesia, and Memel. Perhaps though, the League’s greatest success was its legacy. The League succeeded in establishing the principle that “the community of nations has both the moral right and legal competence to discuss and judge the international conduct of its members.”33 This principle would inform the constitution of the League’s successor organization, the UN.34 Formally established on 26 June 1945, the UN, like the League before it, was designed as a “limited organization” built around the institution of state sovereignty and “a frank acceptance of hierarchical power.”35 Initially comprising 51 member-states (now 192), it was intended to provide a court of approval for state actions, claims, and policies.36 As Ramesh Thakur explains: The UN was meant to be the framework within which members of the international system negotiated agreements on the rules of behaviour and the legal norms of proper conduct in order to preserve the society of states. Thus simultaneously the UN was to be the forum for mediating power relationships, accomplishing political change that is held to be just and desirable by the international community, promulgating new norms and conferring the stamp of collective legitimacy.37

Like its predecessor, the UN was procedural rather than revolutionary in its constitution. Yet the UN also reflected elements of a bolder solidarist agenda, particularly with regard to the right to war. The UN adopted the League’s proscription on the use of force for national policy ends, but buttressed it with the provision of collective security. Collective security stands for the principle “that aggressive and unlawful use of force by any nation against any nation will be met by the combined force of all other nations.”38 This principle is enshrined in the UN Charter. The Charter provides for collective security by restricting the right of states to use (nondefensive) force and assigning centralized decision-making and security functions to the UN Security Council. Accordingly, Articles 2(4) and 51 of the Charter stipulate that states may only resort to force for defensive purposes, while Chapter VII empowers the Security Council to determine when international peace and security is threatened, and to authorize all means including the use of force in order to restore order.39 In sum, the Charter revokes the right of states to wage war, except in cases of self-defense against armed attack, and designates sole responsibility to the Security Council to determine when force is appropriate, and to authorize it in these cases.40 Moreover, any

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decisions taken by the Security Council in this regard would be binding on all member-states, including those states that cast dissenting votes. This, then, was intended as a significant step toward divesting states of the right to war and rendering it the exclusive preserve of the UN, cast as a supranational authority and “master of all situations involving the use of coercive instruments.”41 As such, it promised a substantial shift away from a pluralist jus ad bellum and toward the institution of a solidarist conception of the right to war in international society.42 In practice, however, this promise remained largely unfulfilled, at least for the duration of the cold war. Intransigence between the US and the Soviet Union, both within and beyond Security Council chambers, ensured that the UN’s capacity to discharge its security provision function was severely hampered. It was against this backdrop that peacekeeping emerged. It offered a compromise solution that enhanced the UN’s capacity to take action in cases brought to its attention, without offending superpower sensibilities or risking global conflagration.43 It was generally understood in modest terms, encompassing the policing, monitoring, and verification of peace treaties and cease-fires. The United Nations Truce Supervision Organization (UNTSO) deployed to the newly created Israel in 1948 to supervise the cease-fire Israel had just agreed with neighboring Arab states marks a paradigmatic example of a peacekeeping operation. Over time, peacekeeping has developed as a signature function of the UN. In particular, its importance increased following the sudden collapse of the Soviet Union and conclusion of the cold war. The number of missions increased dramatically during this period: compared to just 16 missions undertaken between 1945 and 1990, 41 new missions were established from 1990 to 2003. These included operations in Angola, Cambodia, and El Salvador, among others. In March 2005, over 65,000 UN peacekeepers from 103 countries were deployed in 17 countries around the globe.44 Recent years have also witnessed the emergence of a more robust approach to peacekeeping, namely peace enforcement. Deployed in response to circumstances encountered in Somalia, the Federal Republic of Yugoslavia, and elsewhere, peace enforcement generally entails a more belligerent stance on the part of UN forces as they strive to establish the conditions for peace, rather than merely maintain a peace that’s already in place.45 Peacekeeping and peace enforcement comprise a major component of the UN’s global role—to the extent that the blue helmets worn by UN forces have found their way into the public consciousness as a global symbol of the organization. With a few exceptions, the solidarist promise has so far proved illusory. This is certainly the case with respect to both peacekeeping and collective security. Though the number of peacekeeping missions has increased

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dramatically since the abrupt conclusion of the cold war, there have been numerous instances where intervention was not forthcoming. The most flagrant recent example is Darfur, though a host of other cases (Rwanda, Kenya, Burma) could also be cited. Moreover, even in those cases where intervention did occur, it was often conducted in a half-hearted manner, as in Somalia and Bosnia. Collective security has an equally patchy record. As Claude notes, the UN system has been defined by “vacillation around the central point of collective security.”46 Indeed, excepting the 1950 Korean operation and the 1991 Gulf War, there are few shining examples of collective security. Though specific explanations could be offered for this, the underlying factor is that the UN lacks the means, most notably a centralized executive agency, to enforce its writ.47 As James Turner Johnson observes, the UN lacks the necessary cohesion, will, and muscle to carry out the role envisioned for it.48 In lieu of a working collective security system, states have claimed greater flexibility in determining when the right of national self-defense applies and interpreting the range of action it licences. This appears to mark an attempt, on the part of states, to expand (or subtly reinstate) their authority to declare war on their own behalf. This indicates a tentative reversion to pluralist norms, where states, rather than the UN cast as a supranational authority, determine when force may be employed in international society. It is in this light that we should interpret a recent series of cases where states have interpreted national self-defense in an expansive manner, stretching it to cover military actions that are not self-evidently of a defensive character. For example, Israel appealed to the right of national self-defense in order to justify the preemptive use of force it undertook in June 1967 against Nasser’s United Arab forces.49 More controversially perhaps, Israel and the United States invoked Article 51 in defense of, respectively, the 1981 and 2003 preventive strikes launched against Iraq.50 Finally, and in a similar fashion, India attempted to extend self-defense to cover Pakistani “refugee aggression” in 1971.51 These maneuvers indicate an attempt on the part of states to wrestle back some authority and licence for war from the UN Security Council. Such developments demonstrate the incomplete and partial nature of any shift we might discern toward a solidarist conception of the right to war in international society. With respect to the question of the right to war and proper authority, what we have seen in the twentieth century is a vacillation between pluralist and solidarist conceptions of the right to war. It would appear, then, that the advent of intergovernmental organizations like the League and the UN has had an impact upon contemporary just war thought. That is to say, it has introduced certain ambiguities and tensions into our understanding of just war, especially in relation to proper

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authority. At the same time, the just war tradition still provides us with a means by which to make sense of the shifts and reversals taking place. By calling our attention to the relation between proper authority and the right to war, and to the shifting “legitimacy practices” that have accompanied the rise and fall and rise of the League and UN, the just war tradition supplies us with a moral and conceptual vocabulary that sheds analytical light on the character of these developments. The Challenge from Below: Substate Actors If the just war tradition furnishes us with the resources to make sense of the advent of intergovernmental organization in the twentieth century, how does it fare with respect to the challenge it faces from below? This is the challenge posed by substate actors, such as national liberation movements, secessionist groups, and nationalist terrorist organizations. Does the just war tradition provide a site from which we can achieve critical purchase on the questions of what rights substate actors enjoy in relation to war, how we determine which among these actors possess the requisite authority to wage war, and what corollary rights and duties accrue to them? This section examines these questions in relation to guerrilla groups, nationalist terrorist organizations, and private military companies (PMCs). Before proceeding any further, however, it is necessary to consider exactly what is under discussion. Our focus is upon the 1960s and 1970s, that period of intensive decolonization following the UN Charter’s proclamation of a universal right of self-determination. George Andreopoulos has termed these decades “the age of national liberation movements,” and William V. O’Brien claims that they were “characterized by a proliferation of revolutionary war.”52 Both authors concur that this was a formative period in modern international society, and that it witnessed a profusion of militant substate actors, mostly secessionist and national liberation groups. The Front de Libération Nationale (FLN) in Algeria, Zimbabwe African National Union (ZANU) in Zimbabwe, the Movimento Popular de Libertação de Angola (MPLA) in Angola, the Irish Republican Army (IRA) in Ireland and the United Kingdom, the Liberation Tigers of Tamil Eelam (LTTE) in Sri Lanka, the Basque separatist group Euskadi Ta Askatasuna (ETA), and Vietnam’s National Liberation Front (NLF) all came to prominence during this period. Similar organizations, such as the Kosovo Liberation Army (KLA), emerged later. These organizations shared similar objectives and, quite often, similar tactics. They defined their struggles in terms of national liberation or secession, and employed the use of unconventional means such as terrorism and guerrilla warfare.

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A few words on both terrorism and guerrilla warfare may be appropriate here. Terrorism is a subject that has garnered much attention from scholars in recent years. The standard definition of terrorism is that it comprises politically motivated violence intentionally targeted at noncombatants with the aim of sowing fear within societies.53 Historically equated with non-state actors, many observers now acknowledge that states may also be perpetrators of terrorism.54 This usage treats terrorism as an act or tactic that may be employed by political organizations. By extension, it is also possible to speak about terrorist organizations as those actors that make “widespread and systematic use of terrorist tactics” their modus operandi.55 Guerrilla warfare is historically quite closely related to terrorism. It refers to a form of struggle, reliant on the elements of constant mobility and surprise attack, that provides weak forces with an effective way of confronting stronger ones.56 Inspired by the example of Napoleon’s Peninsular Wars (witnessed at first-hand by both Clausewitz and Hegel) and the writings of Mao Tse-Tung, guerrilla forces refuse to distinguish themselves from noncombatants, and use their civilian cover to wage a hit-and-run war against their enemies. The principal feature of this form of warfare is that it is waged by the “civilian soldier,” an iconic character representing the putative unity between the fighter himself, the movement of which he is a part, and the population on whose behalf the struggle is conducted.57 Cast in this light, one observer writes, the guerrilla fighter’s self-image is not of a solitary soldier hiding among the people, but of a whole people mobilized for war, himself a loyal member, one among many. If you want to fight against us, the guerrillas say, you are going to have to fight civilians, for you are not at war with an army but with a nation.58

Both terrorist organizations and guerrilla groups have historically provided a hard case for international lawyers. O’Brien comments that the legal regulation of irregular warfare involving substate actors is “primitive” when compared to the body of law governing more traditional interstate conflicts.59 This is evidently the case when one considers the 1899 and 1907 Hague Regulations and the 1949 Geneva Conventions. Only Article 3, which was common to all the 1949 Geneva Conventions, offered even rudimentary guidance on the subject of “armed conflict not of an international character.”60 The 1977 Geneva Protocol II was eventually formulated as a response to the challenge posed by irregular warfare, but was prone to charges of both “incompleteness and superficiality.”61 Consequently, international law is of limited help when it comes to ascertaining, first, how we ought to treat substate actors in the field of armed

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conflict, second, which organizations and groups possess the authority to declare war, and, third, the attendant rights and duties that accrue unto them. Might the just war tradition, more broadly understood, supply some traction on these issues? The remainder of this section will examine this possibility by working through these questions in this order. The first question is what rights should substate actors enjoy in relation to war?62 How should the international community respond to the use of force by these actors that do not constitute states? A legalist response to this question would be to argue that these actors can and should be treated as states, so long as they demonstrate the capacity to act like states.63 This response rather ducks the question, however, for it fails to deal with substate actors in their own right. Rather, it addresses substate actors as proto-states, or states-in-waiting. Consequently, it misses the point. Michael Walzer articulates a theory of just war that offers a more constructive response to the question. He argues that political communities, not states, should constitute the primary unit of analysis in just war thought.64 States still remain a part of the picture, but only contingently: communities may take the form of states, but not always.65 The real subject of the argument, then, “is not the state at all but the political community that (usually) underlies it.”66 This approach actually has much in common with classical Aristotelian approaches to the jus ad bellum, like that offered by Aquinas.67 What denotes a political community? Walzer refers to the community in Burkean terms, claiming that it represents a communion between past, present, and future generations, and the common life they have constructed.68 The community provides an arena within which basic human rights and needs can be met, and through which the “common life” that people have made together can acquire meaning and substance.69 As an arena, the political community necessarily assumes a territorial aspect. Demarcated by boundaries, political communities are tied to a “physical space” or “piece of land.”70 This land acquires meaning insofar as it supports the common life of the community it hosts.71 Political communities also tend to contain some governmental apparatus that functions to enforce law and order within the polity. As with the territorial aspects of the community, whatever governmental apparatus the community possesses is valuable only to the extent that it serves an instrument of the collective will. It is, in other words, a manifestation of the communal will, rather than constitutive of it.72 These, then, are the core attributes of a political community. By speaking in terms of political communities rather than states, Walzer’s approach is amenable to treating substate actors as legitimate subjects of just war theory. It is potentially inclusive of terrorist organizations

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and guerrilla movements (such as the IRA, ETA, the FLN, and the NLF) that claim to act on behalf of nations, or other forms of political community distinct from states. This leads to our second question: how do we determine which among these actors possess the requisite degree of legitimacy or authority to declare and wage war? Walzer’s response to this question follows the lead of John Stuart Mill in emphasizing the importance of self-determination. Mill’s approach supposes that only those political communities that can sustain themselves—socially, politically, and militarily—possess the authority and, by extension, the right to bear arms.73 This constitutes something approximating a “self-help test.”74 It stipulates that any substate actors that succeed in establishing control over a given territory, drawing support from a particular population, and maintaining itself by its own devices, should be deemed a legitimate and viable political community, and therefore imbued with the right to use force for its own ends. Walzer endorses Mill’s self-help test, and elaborates upon it in an extended discussion on the rights of guerrilla fighters. With specific reference to the NLF, Walzer writes that it is safe to assume that any guerrilla band that sustains itself among the people for a prolonged period of time, and through arduous fighting, must have some serious political support behind them. The people, or at least a significant portion of them, must be party to the guerrilla’s struggle. On this basis, the guerrillas acquire the right to force as instruments of a readily identifiable political community.75 As Walzer explains: The war rights the people would have were they to rise en masse are passed on to the irregular fighters they support and protect–assuming that the support, at least, is voluntary. For soldiers acquire war rights not as individual warriors but as political instruments, servants of a community that in turn provides services for its soldiers. Guerrillas take on a similar identity whenever they stand in a similar or equivalent relationship, that is, whenever the people are helpful and complicitous.76

Conversely, when the people do not bestow recognition and support upon the guerrillas, this must be taken as an indication that the guerrillas lack the backing of the political community they claim to represent, and therefore lack legitimacy.77 In these cases, the status of the guerrilla forces as agents of a particular political community should be denied, and their right to war rejected; instead, they should be designated as bandits or criminals and treated accordingly. To recap briefly, Walzer provides answers to the first and second questions enumerated earlier. By connecting the right to war to political

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communities rather than states, acknowledging that substate actors may represent non-state-based forms of political community, and stipulating criteria by which we can determine which substate actors fit this bill, he provides us with a frame for assessing the relation between substate actors and the right to war. Of course, this approach is not without its blind spots. Most obviously, it omits the emergence of PMCs as significant actors in international conflicts in recent years.78 PMCs comprise private or nongovernmental actors—commercial companies, paramilitaries, vigilantes, and cartels—that engage in the provision of security and law enforcement functions. They are an important player in contemporary conflict. Their reach is “global,” and they have played a major role in many post – cold war conflicts.79 For instance, a 2006 census conducted by the Pentagon revealed over 100,000 military contractors based in Iraq, working alongside the 133,000 US troops stationed there.80 Where PMCs operate under the aegis of states, they do not pose a particularly difficult case for just war theorists.81 In these instances, PMCs should be understood as party to the military agency of the contracting political community, and treated accordingly.82 This, however, does not account for those instances where PMCs are contracted by commercial organizations, like Shell, Mobile, or De Beers. Nor does it account for those cases where PMCs are employed by weak or rogue governments to shore up their capabilities to dominate their populations—or, as was the case in Sierra Leone, to exploit national resources for private profit.83 In these cases, Walzer’s just war theory remains necessarily silent, save only (presumably) to condemn these mercenary bands as criminals or bandits. This leaves us with our third question: what rights and duties accrue to those substate actors that have title to the right to war? In other words, are substate actors under obligation to adhere to the rules of war, in the same manner that states are? Two arguments may be offered for the view that substate actors should not be expected to obey the rules of war to the same extent as states. The first is a pragmatic argument, the second principled. The pragmatic argument is that substate actors should not be held to the same standards as states because they are not sovereign bodies. This is a weak argument, however, for it permits a double standard by which substate actors may violate the rules of war while their opponents are bound by them.84 Such a setup is likely to undermine, rather than support, the rule of law. The principled argument relates to the tendentious character of the rules of war. It contends that the rules of war, designed for state actors, are prejudiced against weaker substate actors. Consequently, substate actors that attempt to play by the rules are placed at an enormous disadvantage vis-à-vis states. This reasoning has frequently been cited as an excuse for violating the rules of war, and engaging in

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terrorism.85 For example, this excuse was articulated by FLN activists in support of the bombing campaign they undertook during the Algerian War, and has also been regularly deployed in the service of Palestinian atrocities against Israeli oppression. The reasoning behind this excuse is simple: it posits that substate actors, including terrorist and guerrilla movements, do not possess sufficient strength or resources to challenge their oppressors or promote their own cause by means compatible with the established rules of war.86 It claims, in other words, that these substate actors are too weak to abide by the rules of war. There is good reason to be sceptical of such claims and of this line of argument more generally. Not only does it allow these movements off the hook too easily, it conflates two different kinds of weakness: first, the movement’s weakness vis-à-vis the opposing state, and, second, the movement’s weakness vis-à-vis its own people.87 As Walzer points out, it is usually this second kind of weakness—the inability of the organization to rally to its cause the political community it purportedly represents—that reduces the options available to the movement so that terrorism appears the only viable strategy. Accordingly, the fact that the movement perceives that it can only advance its cause by recourse to terrorism does not suggest a legitimate case of “needs must” or “desperate measures for desperate times.” Rather, it reveals the movement’s lack of legitimacy with respect to the political community it purports to represent. This weakness, then, does not support a case for terrorism; it is actually an argument for refraining from taking any form of military action whatsoever. The point is a simple one: where substate actors cannot fight fairly, they should not fight at all. The obvious corollary of this point is that when they do fight, they must fight fairly. In the final analysis, then, the just war tradition appears to provide a site from which we can achieve critical purchase on the challenge from below, that is, on the challenge posed by substate actors as they claim certain rights in relation to war. This section has demonstrated that there is good reason to believe that the just war tradition is broad enough in scope, and sufficiently independent of the state as a unit of analysis, to address issues relating to substate actors such as terrorist organizations, guerrilla groups, and national liberation movements. It has demonstrated, hopefully, that the crucial step for achieving this end is to broaden the locus of just war analysis beyond the state toward a more inclusive conception of political community. Furthermore, as the references to Aristotle, Aquinas, and Walzer attest, such a move should not be considered a departure from classical just war tenets, but as a revival of a core aspect of it that is often overlooked.

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The Challenge from Nowhere in Particular: Transnational Terrorism In many ways, however, the challenges from above and below sketched in the preceding pages are relatively tame. Neither contests the idea that war is an interstate phenomenon in any meaningful way. Intergovernmental organizations such as the League and the UN are the product of state relations, while the substate actors discussed in the final section are party to the state system insofar as they acknowledge it as legitimate framework for world politics. Motivated by aspirations for statehood and the preservation or recapture of national territory, even terrorist organizations like the IRA or the LTTE reinforce rather than challenge the dominant Westphalian political imaginary of international society.88 Although they force us to adopt a more flexible approach to the jus ad bellum—one that extends our understanding of proper authority beyond the state to the political community more broadly understood—they still suppose that the right to war is the preserve of territorially defined sites of political authority. As such, these cases have proven tractable to relatively standard modes of just war analysis. For instance, the challenge posed by the advent of international organization can be captured by reference to the tension between pluralist and solidarist “legitimacy practices” in international society, while Walzer’s work demonstrates that the profusion of substate actors in the latter part of the twentieth century is easily treated within the just war framework. The “war on terror” has thrown up some hard cases though. In particular, the emergence of al Qaeda and the phenomenon of global or transnational terrorism offers a serious dilemma for contemporary just war theorists. There are three main reasons for this; all relate to the deterritorialized character of groups such as al Qaeda, and the revolt against international society that they represent. First, unlike the IRA or ETA, al Qaeda does not claim to represent a nation questing for statehood. As Olivier Roy notes, al Qaeda and its affiliates “are not related to a state [and] have no state agenda.”89 They do not claim to act in the name of a national group seeking self-determination. They act instead on behalf of the ummah, that figurative global community of Muslims that should be understood in abstract or imaginary, and not territorial or spatial, terms. The borders attached to the ummah are spiritual, discursive, and transitory, and “do not correspond to any geographical area or territory.”90 Second, al Qaeda’s objectives are defined in global rather than national terms. Generally speaking, it targets symbolic Western targets, such as the World Trade Center, not state authorities. In this sense, “they act from the local to the global, ignoring the state.”91 Third, al Qaeda’s membership

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reflects a cosmopolitan constitution. Members hail from different parts of the world, and their individual biographies often relate a disdain for national boundaries. Zacarias Moussaoui, for example, is a French citizen of Moroccan descent who settled in London, where he became a born-again Muslim.92 His story is indicative of a general pattern among al Qaeda militants: most travel widely and have little connection with their homelands. Furthermore, individual members of al Qaeda tend to identify themselves not as agents of a collective will or community, but as individuals pursuing jihad as an individual and personal decision. This is evident in Osama bin Laden’s portrayal of the duty to jihad as a personal (fard ‘ayn) rather than collective (fard kifaya) calling, and in the decision of members to cut their links with kith and kin (friends, family, and nationality) so that they can fight “beyond the sphere of any real collective identity.”93 In sum, al Qaeda represents a hard case for just war theorists because it suggests the possibility of a de-territorialized and nonspatial political community, that is, a political community not demarcated by borders or tied to some physical space or piece of land. It is immediately possible to see the shortcomings of Aquinas’s treatment of proper authority or Walzer’s just war theory in relation to this challenge from nowhere in particular. For instance, how can we conceive of the rights and duties of the nonterritorial community (ummah) that al Qaeda claims to represent? Do these rights extend to a licence to war? Should al Qaeda be treated as representative of this community? How would we go about making such a determination? What rights should accrue to al Qaeda militants as putative agents of this community? The diffuse, nonterritorial, and nonspatial character of the community that al Qaeda claims to represent renders it very difficult to engage these questions in any substantive way. As John Williams comments, traditional just war analysis fails to problematize the “relationship between space, territory, borders, and authority,” with the result that it cannot account for scales of violence that extend beyond the state, such as that perpetrated by al Qaeda.94 Consequently, it is difficult to avoid the conclusion that the just war tradition does not possess the resources to address the hard case that looks set to define the twentyfirst century security environment—the challenge posed by transnational terrorism. Conclusion The challenge facing just war theorists as we face into the twenty-first century is to adapt the tradition so that it might achieve some purchase on the challenge posed by de-territorialized, nonspatial political actors,

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such as al Qaeda. In particular, this will require contemporary theorists to reconsider traditional assumptions regarding the character of political community. Promising work on these issues has already been undertaken by scholars such as John Williams and Toni Erskine, indicating that the tradition may be renewed by the incorporation of new approaches to political community drawn (respectively) from political geography and feminist theory. Williams submits that contemporary just war theorists must adopt a more imaginative approach to political community, and contends that political geography offers us a lead in how to do this by forcing us to think about politics occurring in different spaces and on differentiated scales.95 Erskine’s work also seeks to disaggregate the notion of political community from its territorial moorings. She argues that political communities need not be understood as monolithic and exclusive structures rooted in a commitment to “place,” but may be usefully reconceived in terms of “dislocated” and “overlapping” identities.96 The work of Williams and Erskine map two distinct but related ways in which the just war tradition may be regenerated or renewed so as to address contemporary challenges, whether they come from above, below, or nowhere in particular. Notes 1. I am very grateful to John Williams and Tony Lang for reading and commenting on drafts of this paper. I would also like to thank the editors of this volume for inviting me to participate, and for instructive editorial advice. 2. For example Cecile Fabre, “Cosmopolitanism, Just War Theory and Legitimate Authority,” International Affairs 84 (5) (2008): 964; Anthony Burke, “Just War or Ethical Peace? Moral Discourses of Strategic Violence after 9/11,” International Affairs 80 (2) (2004): 331–332. 3. This is not an exhaustive list of non-state actors, but it reflects the parameters of this essay. For more on the idea of “new wars,” see Mary Kaldor, New and Old Wars: Organized Violence in a Global Era (Cambridge, UK: Polity, 2001). 4. For a comprehensive account of the historical development of the just war tradition, see James Turner Johnson, Ideology, Reason, and the Limitation of War (Princeton, NJ: Princeton University Press, 1975); and also his Just War Tradition and the Restraint of War (Princeton, NJ: Princeton University Press, 1981). 5. Authority is a difficult concept to grasp, or at least pin down in definitional terms. As elaborated by contemporary commentators, authority denotes rightful rule or, put differently, legitimate power. For the purposes of this discussion, “legitimate power” can be taken to mean power that is widely deemed to be properly constituted and binding in character. This discussion draws on Ian Clark, Legitimacy in International Society

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6. 7. 8. 9.

10. 11.

12.

13. 14. 15. 16. 17.

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(Oxford, UK: Oxford University Press, 2005); Ramesh Thakur, The United Nations, Peace and Security: From Collective Security to the Responsibility to Protect (Cambridge, UK: Cambridge University Press, 2006), 6; and also Anthony F. Lang’s discussion of authority in Chapter 3 of this volume. Also of interest is Ian Hurd, After Anarchy: Legitimacy and Power in the United Nations Security Council (Princeton, NJ: Princeton University Press, 2007); and Corneliu Bjola, “Legitimacy and the Use of Force: Bridging the Analytical – Normative Divide,” Review of International Studies 34 (4) (2008): 627–645. I would like to thank John Williams for drawing the importance of legitimacy, as it relates to this discussion, to my attention. This omits the difficult question of whose recognition counts. I will sidestep this question for the moment. See John B. Morrall, Political Thought in Medieval Times (London: Hutchinson University Press, 1971), 61; and Alex J. Bellamy, Just Wars: From Cicero to Iraq (Cambridge, UK: Polity, 2006), 30. Bellamy, Just Wars, 33. Hostiensis, “Summa Aurea: On Truce and Peace,” in The Ethics of War: Classic and Contemporary Readings, ed. Gregory M. Reichberg, Henrik Syse, and Endre Begby (Oxford: Blackwell, 2006), 163. Bellamy offers commentary on this juncture: see Just Wars, 36. My treatment of these debates is grossly simplified. For a more comprehensive treatment of these debates, please see: Frederick Russell, The Just War in the Middle Ages (Cambridge: Cambridge University Press, 1975). Augustine, Contra Faustum 22:70, cited by Thomas Aquinas, “Summa Theologiae IIaIIae 40: On War,” in Aquinas: Political Writings, ed. R. W. Dyson (Cambridge, UK: Cambridge University Press, 2002), 241. Morrall, Political Thought, 68; R. W. Dyson, Normative Theories of Society and Government in Five Medieval Thinkers (Lewiston, NY: Edwin Mellen, 2003), 196; Herbert A. Deane, The Political and Social Ideas of Saint Augustine (New York: Columbia University Press, 1963), 117. Augustine continues: “They inspire fear and thus put a check on the bad, so that the good may live peacefully among the bad. . . . [T]here is certainly much value in restraining human foolhardiness by the threat of law, both so that the innocent can live in security among the unscrupulous.” Augustine, “Letter 153: To Macedonius,” in Augustine: Political Writings ed. E. M. Atkins and R. J. Dodaro (Cambridge, UK: Cambridge University Press, 2001), 80. Aquinas, “Summa Theologiae IIaIIae 40”, 240. Aquinas, “De Regimine Principum,” in Aquinas: Political Writings, 10. “If, however, the government is directed not towards the common good but towards the private good of the ruler, rule of this kind will be unjust and perverted.” Aquinas, “De Regimine Principum,” 8. See Morrall, Political Thought, 72. Quentin Skinner, “The State,” in Terence Ball, James Farr, and Russell L. Hanson, eds, Political Innovation and Conceptual Change (Cambridge, UK: Cambridge University Press), 91.

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18. Richard Tuck, ed., The Rights of War and Peace (Indianapolis, IN: Liberty Fund, 2005), 250. For a more nuanced treatment of Grotius, see Chapter 3 of this volume. 19. Samuel Pufendorf, On the Duty of Man and Citizen According to Natural Law, ed. James Tully (Cambridge, UK: Cambridge University Press, 1991), 169. 20. Emer de Vattel, The Law of Nations: Or Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, ed. Joseph Chitty (Philadelphia: T. & J. W. Johnson, 1853). 21. This calls to mind the writings of Rousseau. For a brief account, see: Stanley Hoffmann, “Rousseau on War and Peace,” American Political Science Review 57 (2) (1963): 317–333. 22. Geoffrey Best, Humanity and Warfare (New York: Columbia University Press, 1980), 159. 23. Hedley Bull, “The Importance of Hugo Grotius in the Study of International Relations,” in Hugo Grotius and International Relations, ed. Hedley Bull, Benedict Kingsbury, and Adam Roberts (Oxford, UK: Clarendon, 1990), 89. 24. Inis L. Claude, Jr., Swords into Plowshares: The Problems and Progress of International Organization (New York: Random House, 1959), 22. 25. Ibid., 20. 26. Hedley Bull, “The Grotian Conception of International Society,” in Diplomatic Investigations: Essays in the Theory of International Relations, ed. Martin Wight and Herbert Butterfield (London: George Allen and Unwin, 1966), 57. See also Hans J. Kelsen, Law and Peace in International Relations (Cambridge, MA: Harvard University Press, 1942), 34. It is worth noting, however, that not all solidarists insist on an important role for intergovernmental organizations in their vision for international society. Jason Ralph and Nick Wheeler, for instance, allow that states may be the primary enforcers of communal norms in international society. See Nicholas J. Wheeler, “Pluralist or Solidarist Conceptions of International Society: Bull and Vincent on Humanitarian Intervention,” Millennium: Journal of International Studies 2 (3) (1992): 468; and Jason Ralph, “International Society, the International Criminal Court and American Foreign Policy,” Review of International Studies 31 (1) (2005): 27–45. However, there is a branch of thought within solidarism that places intergovernmental organizations at the center of the picture. This branch can be traced back to the second definitive article elaborated by Immanuel Kant in 1795, in “To Perpetual Peace: A Philosophical Sketch,” in Perpetual Peace and Other Essays, trans. Ted Humphrey (Indianapolis: Hackett, 1983), 115. 27. The term “legitimacy practices” is drawn from Clark, Legitimacy, 1. 28. J. P. Dunbabin, “The League of Nations’ Place in the International System,” History 78 (254) (2007): 421–442. 29. There were a few notable absentees from the League, chief among them the United States. However, though the United States took no formal part

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30. 31. 32. 33. 34. 35. 36. 37. 38. 39.

40.

41. 42. 43. 44. 45.

46. 47. 48.

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in the League, it played a formative role in the construction of the League regime. Dunbabin, “The League of Nations’ Place,” 426–428. Claude, Swords into Plowshares, 223–228. Dunbabin, “The League of Nations’ Place,” 432. Thakur, The United Nations, 29. Claude, Swords into Plowshares, 250. Andrew Hurrell, On Global Order: Power, Values, and the Constitution of International Society (Oxford, UK: Oxford University Press, 2007), 169. Thakur, The United Nations, 8. Ibid. Claude, Swords into Plowshares, 251. The latter clause is contained in Articles 42 and 43, which respectively authorize the Security Council to “take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security,” and require members to make available to the UN such “armed forces, assistance and facilities” as may be necessary for the purpose. Thakur, The United Nations, 30. See also Thomas Franck, Recourse to Force: State Action Against Threats and Armed Attacks (Cambridge, UK: Cambridge University Press, 2002), 20–44. Of course, attention to state practice—and, some would argue, customary international law—reveals a different picture, one which assigns greater authority to states at the expense of the Security Council. I will address this issue momentarily. Again, thanks are due to John Williams for bringing this to my attention. Claude, Swords into Plowshares, 260. Bull, “The Grotian Conception,” 55. Thakur, The United Nations, 48. I would like to thank Eric Heinze for a helpful discussion of these issues. Figures taken from Thakur, The United Nations, 46–47. Mary Kaldor explains the distinction between peacekeeping and peace enforcement: “Peacekeeping is based on the assumption that an agreement has been reached between two sides in a war; the task of the peacekeeper is to supervise and monitor implementation of the agreement. The principles of peacekeeping . . . are consent, impartiality and the non-use of force. Peace-enforcement, on the other hand, which is authorized under Chapter VII of the UN Charter, is basically war-fighting; it means intervening in a war on one side.” Kaldor, New and Old Wars, 124. For more on the “crossing of the Mogadishu line,” alluded to here, see Nicholas J. Wheeler, Saving Strangers: Humanitarian Intervention in International Society (Oxford, UK: Oxford University Press, 2000), 172–208; also William Shawcross, Deliver Us from Evil: Warlords and Peacekeepers in a World of Endless Conflict (London: Bloomsbury, 2000), 102. Claude, Swords into Plowshares, 269. Ibid., 267–268. See also Franck, Recourse to Force, 21–31. James Turner Johnson, Morality and Contemporary Warfare (New Haven, CT: Yale University Press, 1999), 60–61.

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49. Avi Shlaim, The Iron Wall: Israel and the Arab World (London: Penguin, 2000), 242. 50. On the Israeli action, see Shai Feldman, “The Bombing of Osirak Revisited,” International Security 7 (1982): 14–42. On the 2003 invasion of Iraq, see Cian O’Driscoll, Renegotiation of the Just War Tradition and the Right to War in the Twenty-First Century (New York: Palgrave Macmillan, 2008), 27–51. 51. Wheeler, Saving Strangers, 60–61. 52. George J. Andreopoulos, “The Age of National Liberation Movements,” in The Laws of War: Constraints on Warfare in the Western World, ed. Michael Howard, George J. Andreopoulos, and Mark R. Shulman (New Haven, CT: Yale University Press, 1994), 191; William V. O’Brien, “The Jus In Bello in Revolutionary War and Counter-insurgency,” Virginia Journal of International Law 18 (2) (1978): 206. 53. Bellamy, Just Wars, pp.136–138. Andrew Valls, “Can Terrorism Be Justified?” in Ethics in International Affairs: Theories and Cases, ed. Andrew Valls (London: Rowman and Littlefield, 2000), 67. 54. Robert A. Pape, “The Strategic Logic of Suicide Terrorism,” American Political Science Review 97 (3) (2003): 345. 55. Bellamy, Just Wars, 135. 56. Andreopoulos, “The Age,” 193. 57. Ibid., 195. 58. Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books, 1992), 180. 59. O’Brien, “The Jus In Bello,” 204. 60. Ibid., 205. 61. Ibid., 206. 62. For a related discussion, see Chapter 8 of this volume. 63. Andreopoulos, “The Age,” 197. 64. His terminology though often slips between the state, the community, and the nation. For example, Walzer slides between the use of “nation,” “state,” and “community” in his discussion of aggression. See; Walzer, Just and Unjust Wars, 51–53. 65. As Walzer writes, “the state is not the only or necessarily the most important arena of our moral (or even our political) life. Churches, movements, sects, and parties can have similar rights and powers similarly derived.” Michael Walzer, Obligations: Essays on Disobedience, War, and Citizenship (Cambridge, MA: Harvard University Press, 1970), xvi. Also “The state is presumptively, though by no means always in practice, the arena within which self-determination is worked out and from which, therefore, foreign armies have to be excluded.” Michael Walzer, “The Moral Standing of States: A Response to Four Critics,” in International Ethics, ed. Charles Beitz, Marshall Cohen, Thomas Scanlon, and John A. Simmons (Oxford, UK: Princeton University Press, 1985), 218. 66. Walzer, “The Moral Standing of States,” 218.

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67. Walzer references Aristotle in the closing passages of “The Moral Standing of States,” 236. 68. Walzer, “The Moral Standing of States,” 219. 69. Walzer, Just and Unjust Wars, 57; Walzer, “The Moral Standing of States,” 218–219, 236. 70. Walzer, Just and Unjust Wars, 55. 71. Ibid., 57. 72. “Though the community requires a government, it is not the case that the citizens are bound to the government to defend it against foreigners. . . . The citizens defend one another and their common life; the government is merely their instrument.” Walzer, “The Moral Standing of States,” 219. 73. John Stuart Mill, “A Few Words on Non-intervention,” in The Collected Works of John Stuart Mill, Volume XXI (Toronto, ON: University of Toronto Press, 1989), 111–124. See also Georgios Varouxakis, “John Stuart Mill on Intervention and Non-intervention,” Millennium: Journal of International Studies 26:1 (1997): 57–76. 74. Walzer, Just and Unjust Wars, 96. 75. The phrase “readily identifiable political community” belongs to Bellamy, Just Wars, 138. 76. Walzer, Just and Unjust Wars, 185. Emphasis added. 77. Walzer elaborates upon these views in “The Moral Standing of States,” 220–223. 78. Here I would direct the reader to the more comprehensive and sophisticated discussion of PMCs (and the issues they raise for just war theorists) supplied by Eric Heinze in Chapter 6 of this volume. 79. Peter Singer, “Corporate Warriors: The Rise of the Privatized Military Industry and Its Ramifications for International Security,” International Organization 26 (3) (2001/02): 188. See also James Pattison, “Just War Theory and the Privatization of Military Force,” Ethics and International Affairs 22 (2) (2008): 143. 80. Renae Merle, “Census Counts 100,000 Contractors in Iraq,” Washington Post, 5 December 2006, D01. 81. For example, Kellogg Brown and Root (a Halliburton subsidiary) supplied service personnel in Somalia, Haiti, and Bosnia, but operated under the umbrella of the United States. 82. Pattison, “Just War Theory and the Privatization of Military Force,” 151. 83. Indeed, Schreier and Caparini assert that “PMCs have worked for . . . rebel groups, drug cartels, and before 9/11, two al Qaeda-linked jihadist groups.” Cited in Pattison, “Just War Theory,” 151. 84. O’Brien, “The Jus In Bello,” 218. 85. For example: Richard Falk, “A Program for the Left; Thinking about Terrorism,” The Nation (242), 26 June 1986, 283–287. 86. Michael Walzer, “Terrorism: A Critique of Excuses,” in Arguing about War (New Haven, CT: Yale University Press, 2004), 54. 87. O’Brien, “The Jus In Bello,” 218; Walzer, “Terrorism,” 55.

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88. Barak Mendelsohn, “Sovereignty under Attack: The International Society Meets the al Qaeda Network,” Review of International Studies 31 (2005): 54. 89. Olivier Roy, Globalised Islam (London: Hurst, 2004), 290. 90. Ibid., 19. 91. Ibid., 321; see also Benjamin J. Barber, Jihad Vs McWorld: Terrorism’s Challenge to Democracy (London: Corgi, 2003). 92. Roy, Globalised Islam, 304. 93. Ibid., 42. 94. John Williams, “Space, Scale and Just War: Meeting the Challenge of Humanitarian Intervention and Trans-national Terrorism,” Review of International Studies 34 (2008): 582. 95. Ibid. 96. Toni Erskine, Embedded Cosmopolitanism: Duties to Strangers and Enemies in a World of Dislocated Communities (Oxford, UK: Oxford University Press, 2008), 161–175.

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CHAPTER

3

Authority and the Problem of Non-state Actors1 Anthony F. Lang, Jr.

In 1609, Hugo Grotius published Mare Liberum, a short text extracted from a longer work he had written a few years earlier. This work argued that the seas were not the property of any state and, as a result, were governed by a natural law that existed prior to any positive legal structure. The work became the foundation for his more famous De Jure Belli ac Pacis, published in 1625, in which he drew upon natural law to consider the morality of war. The work is divided into three books, with the first establishing the reality of natural law, the second establishing reasons for war, and the third establishing what can and cannot be undertaken in war. Many argue that Grotius was the “father of international law” and that he played a central role in shifting the just war tradition from one grounded primarily in the Christian scriptures to one that drew on a wider range of political philosophy and historical practices. Because he wrote of states as having rights and responsibilities, Grotius has been read by many as a key figure in the construction of a society of states.2 This reputation might lead one to think that Grotius has nothing to say about war and non-state actors, the subject of this volume. Such a reading fails to appreciate the intellectual and political context in which Grotius wrote. First, Grotius was a central figure in the early modern construction of natural law. This moral and political theory arose from the medieval scholastic context but combined with an emerging humanism, resulting in radically new conceptions of authority, politics, and ethics. Grotius’s role in this theoretical development was crucial.3 In terms of this chapter,

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the concept of natural law arose in response to questions about authority, both intellectual and political. Second, Mare Liberum was written not simply to make a case for the freedom of the seas in the abstract, but in response to a violent encounter between a non-state actor and a state—and Grotius was defending the non-state actor. The text of Mare Liberum originated as a legal defense of merchants who were in conflict with the Portuguese crown in the South Pacific region surrounding the spice trade. In effect, Grotius was arguing that states are not the only agents that could use military force; instead, any agent whose rights had been violated was authorized by natural law to use force. Third, the conflicting political structures of the Netherlands that resulted in Grotius himself being imprisoned for a short period are central for understanding Grotius’s conception of political authority. As a result of an encounter with a leading political figure in the Netherlands, Johan van Oldenbarnvelt, Grotius became enmeshed in the political conflicts of his home region. These conflicts revolved around attempts by the Spanish Empire to control the region as a whole. This conflict eventually became part of the larger Thirty Years War that ravaged Europe, although its origins were prior to its outbreak. This chapter will use these different contexts of Grotius’s life to develop the following point: The just war tradition, qua tradition of thought, is not necessarily statist, although it is fundamentally about political authority.4 As a result, it can provide insight into the role of non-state actors in the international system, even in terms of those actors using military force. This does not mean, however, that a just war theory can definitively assert that either states or non-state actors are justified in using force. Rather, the tradition demonstrates that purely procedural conceptions of authority— such as labeling one agent a state and another a non-state, by which the determination of who can use force is set—will simply not do for any one interested in the just use of military force. Instead, according to Grotius, whether or not particular agents can justifiably use force results from the interaction of just cause and right authority. Other “criteria” of the tradition are important for Grotius, but these two are paramount and cannot be divorced from each other. So, whether or not a cause is just or an authority is legitimate will be the defining features of whether or not a particular violent encounter contributes to a just world order. Put differently, the just war tradition is a political theory that does not simply accept the state as a given, but interrogates how various political structures can or cannot use military force and how the use of force fundamentally defines what constitutes legitimate authority. Grotius wrote in a context in which there were not “states” as we understand them

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today. He was, however, writing at a moment when the modern state system was coalescing around the link between religious belief and political authority as formalized in various treaties before and after the Thirty Years War. Because of his links with the Dutch East India Company and Oldenbarnvelt, Grotius was personally involved in conflicts surrounding what constitutes just authority and whether or not those authorities can use force in pursuit of their aims. On top of all these political contexts, Grotius was developing a theoretical construct, natural law, which disconnected morality from any single political authority structure. In other words, Grotius was not simply writing about war, but was engaging in international political theory. The chapter will proceed as follows. The first section reviews some modern political theory on the question of authority, providing a few basic conceptual categories within which to understand it. The next section reviews debates about political authority and the state in current writings on the just war tradition. It then turns to Grotius and explores the intellectual context of natural law. It next turns briefly to the political contexts identified above, exploring briefly how they can inform our understanding of authority and violence. The final section will examine how this rereading of Grotius on political authority can inform debates about the use of force by non-state actors in the current international order. Political Authority Authority is an inherently contested concept. It is intimately connected with legitimacy, justice, consent, and coercion—i.e., it is one of the core questions of politics. What justifies the position of an authority and what obligates individuals to obey that authority have been at the heart of political theory and philosophy since the Ancients. Before exploring the role of authority in the just war tradition, the broader question of authority deserves some attention. Authority can be understood through four concepts: power, rules, history, and agency. One way to understand political authority is by distinguishing practical from theoretical authority. Practical authority means being “in authority,” or the sense that one gives individuals reasons for action based on an agreed convention. Theoretical authority comes from the expertise or knowledge of the authority figure, what some might call being “an authority.”5 Plato presented a theoretical form of political authority, i.e., the philosopher king. Most modern democratic theory assumes practical authority, i.e., it is the procedure by which an individual comes to office that gives him or her authority.

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Power

Power is itself a contested concept, but for our purposes here it can be defined as the ability to control another individual, usually against the will of that individual. This control can be either physical or psychological, but it is control that is exercised such that it does not necessarily require formal legitimacy. Hans Morgenthau provided the discipline of International Relations (IR) with a widely accepted understanding of power when he defined it as “man’s control over the minds and actions of other men. By political power we refer to the mutual relations of control among the holders of public authority and between the latter and the people at large.”6 A coercive relationship that is disconnected from authority is one that lacks any legitimacy or foundation in a normative basis. The use of violence, while associated with political authority, can be read as a breakdown in a proper authority relationship; that is, once violence needs to be used to control, the subject of violence no longer feels obligated to obey the agent of violence, but must be forced to do so. Authority, in other words, should not be reduced to violence. Authority, however, does require power, for the ability to convince others to act in certain ways requires a capacity to make such actions happen.7

Rules

Authority is based on rules, both procedural and substantive. One way of understanding the relevance of rules for authority relations is through the idea of legitimacy. Max Weber linked authority to legitimacy in his description of the three different sources of legitimate authority: charisma, tradition, or bureaucracy.8 The first corresponds somewhat to the theoretical authority identified above, although it rests upon a different foundation. The latter two, tradition and bureaucracy, are closer to practical authority in the philosophical sense because they are based on an agreed-upon process by which authority comes about and by which individuals agree to follow such authority. Legitimacy has a wide range of meanings, but many coalesce around a link between a substantive basis and a procedural one.9 Substantively, legitimacy means having a basis in some normative foundation. Procedurally, legitimacy derives from widespread agreement amongst those who are governed by the authority. These differing conceptions of authority can be understood as a set of rules that define the relationship of the ruler to the ruled. Some rules are procedural, defining the process by which an individual comes to be an authority. If those rules are not followed, authority becomes suspect. The other set of rules are substantive ones. These rules reflect the

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normative bases that define identities and proper modes of behavior in a community. Flathman describes such rules as “authoritative” in his analysis of authority: . . . there must be values and beliefs that have authoritative standing among the preponderance of those persons who subscribe to the authority of the rules. These values and beliefs do not take their standing as authoritative from the adoption or promulgation by any agent or agency possessed of authority. Rather, the acceptance (however it came or comes about), by a preponderance of subscribers to authority, of the values and beliefs as authoritative is one of the conditions of authority.10

The rules that structure what counts as authoritative values may not be explicitly stated in a legal form, but they are usually stronger than simply shared norms. Hence, rules help to clarify what counts as a legitimate authority. History

As noted in the quote from Flathman, the rules that define authority do not derive from a fiat issued by an authority figure, for this would make their legitimacy questionable. Nor are such rules always found in a clearly written constitutional text (although such texts do exist and help to clarify the rules). Rather, the rules that define what constitutes legitimate authority, both the procedural and substantive, derive from historical evolution, a process that can be rediscovered through investigation but which is usually simply accepted by agents as “the way things have always been.” Hannah Arendt argues that authority ultimately is about tradition. She notes that authority must exist between pure coercion and verbal persuasion, leaving it in a rather precarious position.11 She argues that the Roman conception of authority, one that links back to the foundations of the state, provides the best understanding of what provides authority. For the ancient Roman writer, the act of founding Rome and the consequences thereof defined the authority of the Senate, even as that authority slipped away to the populace and to the emperor. Authority relies on a history that produces certain procedures and norms that constitute the reality of political life. If authority relies upon history, then the recitation of that historical evolution will be an important part of how such authority is established. History, however, is not a set of “facts” about how a community goes from Point A to Point B. Rather, history can be understood as a series of jumps and fissures, i.e., in a genealogical conception rather than an

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evolutionary one. The process of constructing authority out of history requires smoothing over those gaps, but they cannot be ignored. Indeed, revolutions are attempts to return to the past, to reconstruct a past that leads to a different configuration of political life. In other words, to say that history provides the basis of authority is not say that history is a clearly defined story; it is to highlight that contests over history are part and parcel of contests over authority. Agency

The final element of authority is the centrality of agency, or the ability of individuals to enact their lives in ways they see fit and have the freedom to engage in political life without unnecessary limits. Authority, unlike pure coercion or power, accepts that individuals must retain some level of agency, including the ability to consent to the control that is imposed on them by the authority. Flathman’s exploration of authority wrestles with this concept of agency.12 He argues that any theory of authority must provide some space for agency, but acknowledges that this space can quickly become constrained by the constant growth of power of those in authority. Agency captures a wide range of ideas, which can range from action to judgment to freedom. The central point is that authority cannot eliminate agency by pure coercion, but must accept, acknowledge, and respect the agency of those over whom it rules. These four elements of authority are very broadly defined and should not be seen as the end of a dialog of what constitutes authority. Rather, they set out some of the key principles that must be considered in constructing an understanding of political authority. The next section turns to the question of authority as it appears in the just war tradition. Just War and Authority This is not the place to elaborate on the history of the just war tradition or its various manifestations.13 Instead, in this section, I critically assess the centrality of the sovereign state in modern just war conceptions of authority. The sovereign state is, of course, the primary institution of authority in the current international order. Its prominence did not appear ex nihilo, however, but resulted from a historical development in both material and ideational terms. The traditional argument is that the sovereign state system came into being at the end of the Thirty Years War with the Treaty of Westphalia in 1648. This moment, and political developments in the seventeenth century more widely, are certainly central to this story, although

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the standard IR story about it fails to capture much of the complexity of the time.14 Others look to Max Weber’s definition of the state as the only political agency authorized to use violence as a defining moment in understanding the modern international system.15 Just war thinking in the twentieth century has accepted the statism of IR theory.16 This is partly as a result of writers and actors accepting the standards of international law, in which the sovereign state is the primary agent. But the revival of just war in the mid-twentieth century resulted as well from dissatisfaction with the international legal context. This dissatisfaction can be traced to three developments. First, the failure of international law to regulate the outbreak and conduct of both world wars led some to recognize the need for a return to alternative sources for the norms and rules that could moderate war. Second, the potential for nuclear war and the creation of a cold war climate led a number of thinkers to return to the tradition.17 A third development was the decolonization movement and military conflicts that resulted from revolutionary movements. These movements were a challenge to both the jus ad bellum side, as they fought for the norm of self-determination, and the jus in bello side, as they used strategies and tactics that did not conform to the ways in which international law had tried to structure combat. Partly in response to these developments, Michael Walzer published Just and Unjust Wars, which became a modern-day classic in the field. Walzer’s account of the tradition did not draw on the Christian tradition in any depth, but based its analysis on what he called the “legalist paradigm.” This approach found the primary justification for the use of force in the protection of the sovereign state.18 Walzer’s emphasis on the state as the primary agent to be defended means that the use of military force is only justified in defense. This argument maps on well with international legal norms, which stress that force can only be used in self-defense. This implies that the primary authority that can use force is the state. Such a claim mirrors quite well the authoritative values of the international order at the time Walzer first framed his work; he noted in the preface to the first edition that the book was written to provide a way of thinking about the Vietnam War. Preventing interventions and reaffirming the centrality of the state against the aggressions of great powers such as the United States and the USSR constituted the kind of critical political discourse in which Walzer was engaged. Moreover, Walzer’s political theory can be characterized as communitarian, which places a heavy emphasis on the value of political communities as sources of the rights and responsibilities of political life.19 Understanding this intellectual historical context is important for understanding why Walzer privileged the state and the crime of aggression

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as the central elements of the just war tradition. For Walzer, defending the state is the primary purpose of war, for it is in the state that political life can flourish in the modern world. But the world of 2009 is different from that of 1977. The differences are certainly not radical, for the sovereign state system still defines international relations in large part, and the crime of aggression and the principle of nonintervention continue to be central to international ethics and law. Yet, there are now new demands upon this framework, from both the local and the global. At the local level, the assumption that the sovereign state dominates the political life of all individuals can easily be demonstrated as empirically false. “New wars” have demonstrated that those using military force range from states to revolutionary movements to ethnic groups.20 The increasing prominence of private military contractors, who ostensibly work for governments but have begun to redefine the rules of warfare, suggests that state authorities may no longer control force.21 At the global level, the increasing role played by the Security Council in authorizing the use of military force, both in matters of collective security and in alternative forms of coercion such as economic sanctions and counterterrorism policy, has raised new questions about authority.22 Two scholars in IR have recently presented sophisticated critiques of the statist paradigm within just war theory. John Williams has argued that the acceptance of the territorial state prevents just war thinking from grappling with new modes of violence and the increasingly important role of human rights in international relations.23 Williams argues that not only does the territorial state define IR theory; it has also been accepted by those who seek to develop ethical responses to humanitarian crises and terrorism. This uncritical acceptance of the territorial state has hindered creative ethical reflection, because the tradition has accepted the fact that “the state is both the vehicle and source of authority for the just war against these ills and the basis for a lasting solution to them, especially when humanitarian crises and terrorism meld together.”24 As Williams points out in a critical engagement with the work of Jean Bethke Elshtain, the assumption that state uses of military force are the only possible response to terrorism or humanitarian crises hinders the ability of the international community to develop non-state-based responses, such as through international institutions or even the development of alternative security paradigms. Cécile Fabre pushes this critique of the sovereign state even further in her argument that the logic of cosmopolitanism renders legitimate authority problematic.25 Fabre argues that if we accept cosmopolitan theoretical assumptions, assumptions that underlie important international norms such as human rights, the assumption that a state—the institution that

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most often violates rights—should be the one to rectify rights through warfare is highly problematic. Especially as state sovereignty is becoming conditional on the basis of criteria concerning rights and support for democratic principles, “they [states] do not hold the right to wage war simply by being states.”26 She draws on both classical and modern sources to argue that there is nothing illogical about individuals waging war, especially wars of self-defense (wars of punishment are more problematic on this account). Her claims rely on the fact that anyone can judge the justness of a cause, giving that capacity for judgment a central place in her understanding of what constitutes a just war. Fabre concludes not simply that the state is not necessary for a just war, but that there is no need for a legitimate authority to wage war, emphasizing the centrality of the individual in a cosmopolitan world order. Fabre’s argument is helpful in demonstrating how the protection of human rights cannot conceptually rely on the institutional framework of the sovereign state system. Yet, her conclusion that a just war does not need any authority denudes the tradition of its essentially political character. Perhaps this arises from the links between cosmopolitan theory and analytical ethical philosophy, which tend to privilege logics relying on individuals and not groups. It may also arise from what Nicholas Rengger argues is the “juridicalized” nature of just war theory today, a turn that he identifies in Walzer and which he sees in various attempts to make the just war tradition relevant for current public policy. Rengger’s critique is actually of those like Walzer who have made the tradition more permissive about the use of force, a permissiveness that I believe has motivated theorists such as Fabre to argue that there should be no authority in the just war tradition. In response, I agree with Rengger when he argues that . . . the tradition allows us to ask some very profound questions to do with the legitimacy of the use of force by any agent (individual or collective), in a way that does not start out with an already prior assumption of what constitutes “legitimate” agents that can “legitimately” use force in the modern world–the state. Rather, it asks questions about any use of force by any agent for any purpose: questions we must answer in terms of the basic categories of the tradition itself: Who has legitimate authority? In what context? To do what?27

So, while I find Fabre’s critique useful as a starting point, her dismissal of the centrality of authority is too apolitical for my understanding of the international order, which is, ultimately, a political order and not simply an ethical one, and one that must answer some of the questions Rengger poses concerning the use of force.

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Both Williams and Fabre present important critical readings of the centrality of the sovereign state. Their critiques, both empirical and normative, demonstrate that the state is not the only institution that can or should wage war. In response to these critical readings, the next section takes a step back to a particular thinker, Hugo Grotius, in the just war tradition to see whether or not the sovereign state should be the only legitimate authority to wage war. More importantly, Grotius’s natural law assumptions map onto the cosmopolitan critique of Fabre and his political context maps onto some of the empirical critiques of territoriality presented by Williams. Grotius, however, provides a reading of just war that does not undermine completely the centrality of authority, but rather reaffirms its importance.28 Hugo Grotius, Just War, and Authority Hugo Grotius (1583–1645) was a Dutch Renaissance thinker whose work spanned law, theology, politics, and statecraft. He published widely in these fields, but two publications are most relevant for international affairs: De Jure Praedae (1605) and De Jure Belli ac Pacis (1625). The former was not published in its entirety during Grotius’s lifetime, although a chapter appeared in 1609 as Mare Liberum. Grotius argued in De Jure Praeda, which became widely known through the publication of Mare Liberum, that the Portuguese had no exclusive rights to trade in the Indies, neither based on first trading there nor on the basis of authorization from the Pope. In making this argument, Grotius drew on a wide range of classical sources, but less on Biblical sources than other thinkers of his day, thus grounding his arguments in an emerging natural law tradition rather than divine law.29 Grotius is most well known for his De Jure Belli ac Pacis, which he wrote while a prisoner, the result of his political activities in the Netherlands. He had aligned himself with Johan van Oldenbarnvelt, a leading politician in the Netherlands, who was seeking to counter the extreme Calvinism of the political authorities of the day. Grotius and his ally lost in that battle, resulting in the beheading of Oldenbarnvelt and the imprisonment of Grotius in 1618, from which he escaped in 1621. De Jure Belli ac Pacis is divided into three books. The Prolegomena provides the basis for the text as a whole, building upon the natural law arguments of De Jure Praeda. Book I defines war, justice, and right, drawing upon a wide range of Christian and classical authors. Book II begins by extending the just causes of war introduced in Book I, but then explores the foundations of right, property, and punishment. These foundations result from the fact that Grotius, like the just war tradition within

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which he was writing, assumed that there were three just causes for war: self-defense, retaking of property unlawfully taken, and punishment of wrongdoing.30 Book III then examines what may be justly undertaken in war, or what is today called jus in bello.31 In this chapter, I do not intend to find in De Jure Belli ac Pacis an answer to the question of whether or not non-state actors can use force. Rather, in this section, I want to demonstrate that Grotius’s intellectual and political contexts resulted in a nuanced understanding of the relationship between political authority and war. That understanding can first be found in his natural law reflections on what constitutes just authority and the reasons for which a just authority can use force. It can also be found in the political context in which he wrote, one in which different kinds of agents fought to establish their rights to defense of life and property. The combination of a natural law framework that privileged the reasons for using force with a political context in which political authority was in a state of flux resulted in an understanding of just war that stands in stark opposition to the modern obsession with the state that characterizes just war theory and international law. My reading of Grotius is not intended to resolve the problem of states, authority, and the use of force, but to provide a new way of understanding the idea that only states can use force. Intellectual Context

Grotius is known as a theorist of natural law, in his day a relatively new approach to morality and politics. At its core, natural law proposes that the rules governing our social and political existence arise not from a divine or human command but from the natural state of the human animal.32 More specifically, natural law theorists argue that it is the ability to reason that is the defining feature of this human condition, so it is right reason that provides access to what is right and wrong in human conduct. The tradition stretches back to Aristotle, for whom the human person naturally tended toward being a rational and political animal. This core assumption was developed in the medieval period, primarily by Thomas Aquinas, who provided the most cogent articulation of what constitutes natural law.33 Grotius’s contribution to the natural law tradition was to explore morality in the context of one of the least law-bound human practices, war. Grotius’s contribution to natural law was controversial in his day because of one sentence, which later became known as the Impious Hypothesis. In establishing the reality of natural law in his Prolegomena, he argues that “And, indeed, all we have now said would take place, though we should even grant, what without the greatest Wickedness

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cannot be granted that there is no God, or that he takes no care in human affairs.”34 The challenge Grotius presented to the solely Christian conception of natural law did not rely only this sentence, but the fact that Grotius drew upon classical Greek and Roman writers and, most controversially, the practices of states both ancient and contemporary as evidence for the reality of natural law. His definition of natural law seeks to elide the conflict with divine law: “Natural right is the Rule and Dictate of Right Reason, shewing the Moral Deformity or Moral Necessity there is in any Act, according to its Suitableness or Unsuitableness to a reasonable nature, and consequently that such an Act is either forbid or commanded by GOD, the Author of Nature.”35 Rather than rely purely on God’s commands, however, Grotius also notes that as Cicero argued, “The Consent of all Nations is to be reputed the Law of Nature.”36 After establishing what grounds natural law, Grotius argues that this law does allow for the use of force. Beginning with every animal’s instinctual desire to defend itself, but then extending into reason, sacred history, and secular history, Grotius establishes the principle that defense of oneself is the primary reason for using force.37 This reason, however, is extended to the concept of a natural right to punish in Book II, a concept that raises important challenges to authority. For Grotius, punishment is a justified reason for using military force. But, unlike most conceptions of punishment, his does not rely upon a clearly defined sovereign undertaking that punishment. Rather, his justification relies on the nature of the wrong committed. Grotius does not simply list punishment as a potential cause for war.38 Rather, he develops a much larger and extensive analysis of the philosophical purpose behind punishment. It is in Book II, Chapters 20 and 21, “On Punishment” and “On the Sharing of Punishments,” that Grotius extends the argument that war can be waged for purposes of punishment. He begins his discussion of punishment by linking it to justice, in which he seeks to determine what kind of justice is being pursued through punishment. In Book I Grotius introduces the distinction that the justice relevant to punishment is called “expletive justice,” a concept he draws from Aristotle: Tis expletive Justice, Justice properly and strictly taken, which respects the Faculty, or perfect Right and is called by Aristotle sunalktika, Justice of Contracts, but this does not give us an adequate Idea of that Sort of Justice. For, if I have a Right to Demand Restitution of my Goods, which are in the Possession of another, it is not by vertue of any Contract, and yet it is the Justice in question that gives such a Right.39

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Whether or not Grotius accurately captures Aristotle’s idea of justice here is not my concern; rather, Grotius’s own understanding of this idea is important because it informs his idea of punishment. Expletive or restorative justice is close to, but not the exact same as a civil law approach to contract violations. That is, expletive justice seeks to restore a balance between two parties that has been disrupted, but that balance should not be understood purely in terms of business dealings. This distinction, while subtle, is important for understanding Grotius’s view on what punishment seeks to do. He points out that punishment “comes near to the Nature of Contracts” but avoids making punishment an attempt to simply enforce a contract.40 This fine line between enforcing a contract and restoring a balance informs Grotius’s next important point about punishment. Grotius does not assume the necessity of a single community headed by a sovereign who has the responsibility to punish. Rather than argue that the right to punish derives from the inherent dignity or authority of the sovereign, he posits that punishment derives from the character of the violation: But the Subject of this Right, that is, the Person to whom the Right of Punishing belongs, is not determined by the Law of Nature. For natural reason informs us, that a Malefactor may be punished, but not who ought to punish him. It suggests indeed so much, that it is the fittest to be done by a Superior, but yet does not shew that to be absolutely necessary, unless by Superior we mean him who is innocent and detrude the Guilty below the Rank of Men, which is the Doctrine of some Divines.41

Rather than punishment being defined by the existence of a sovereign, it is instead defined by the objective fact of a criminal violation. In Section 37 of Chapter 20 Grotius turns to the question of war being waged to inflict punishment. He notes “the Desire for inflicting Punishment is often the Occasion of War.”42 He then turns to the question of whether a king whose subjects have not been harmed may launch a war to punish one who has harmed another community. He argues that yes, those who commit crimes “against nature” may be punished by any sovereign state through war. This claim, which he admits is not allowed by some of his predecessors such as Vitoria, leads him back to the law of nature and what justifies such actions.43 This expands the justification for war as punishment away from vengeance, i.e., punishing one who has wronged you, and more toward the types of punitive actions that can be seen as supporting the norms of an international community of sorts. Grotius argument that punishment is a just cause for waging war arises from his natural law framework. Instead of relying on an established

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authority to justify war, his framework allows for any agent to engage in a punitive war in order that injustice anywhere be countered. For the purposes of this volume, this suggests that in the current international order, it is not necessarily the case that only states should be authorized to use military force. More importantly, non-state actors may use force not simply for self-defense, which Grotius assumes, but also for punitive, or one might even claim, humanitarian reasons. To make this argument in more depth would require more space than this chapter allows. Rather, the point being made here is that according to a natural law framework, it is not necessarily the case that only sovereign states can engage in military action. Political Context

Having made the case that the cause underlying a use of force is central to ensuring justice, coupled with his account of any agent being able to punish, one might assume that Grotius has no space for authority. Indeed, the natural law account set out in the text might lead one to conclude that the cosmopolitanism of Fabre and others is parallel to Grotius’s account. But, Grotius does in fact develop an account of the state, one that relies on his conception of sovereignty. This conception draws not only from his natural law framework and theorists such as Jean Bodin, but also from the political context within which he was developing his ideas. It is to this context that I turn next. Grotius defines the State as “a compleat Body of free Persons, associated together to enjoy peaceably their Rights, and for their common Benefit.”44 He does not expand upon this basic idea, however, until Chapter 3 of Book I, entitled “The Division of War into Publik and Private: An Explication of the Supreme Power.” It is here that we begin to see Grotius’s conception of sovereignty, the state, and political authority. Sovereignty for Grotius is defined as that agent within the state whose “Acts are not subject to another’s Power, so that they cannot be made void by any other human Will.”45 The state, however, is not the sovereign, but rather the subject of the sovereign. He goes on to differentiate the state from the “Nations” that compose it, arguing that there can be a number of groups within the state that are subject to the power of the sovereign. He also notes that the sovereign is not necessarily either the many or the one, but is defined by the “Laws and Customs of each Nation (πρωτη αρχη), the first Power of the State. . . .”46 The Greek phrase used here translates roughly as first principle, but it is a concept that relates to a past, for it implies a foundational first principle, as suggested by the use of the word customs. In other words, sovereignty is really about authority—the authority to

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control the state, which might be composed of multiple actors which have come together through a historical process of negotiation and sometimes conflict. Grotius is borrowing the idea of sovereignty here from Jean Bodin, whose work he commented upon in an earlier text. As Jeffery notes, Grotius accepts Bodin’s conception of sovereignty being the ultimate power, but he argues that sovereignty can be divided, an argument that allowed him to support the Dutch Revolt against the Spanish Empire based on the latter’s failure to respect the powers of the Dutch nations in specific areas.47 The concept of divided sovereignty, especially sovereigns who ruled over more than one “nation,” resulted from the diverse patchwork of political communities of the sixteenth and seventeenth century in Europe. Indeed, as one historian argues, the concept of sovereignty can be seen as a theory that arose as a justification for political authorities seeking to control different nations in often far-flung empires.48 Understanding the political context within which Grotius wrote is central here. For the purposes of this chapter, two contexts matter: the political relationship of the United Provinces to each other and to the Spanish Empire; and the economic context of the Dutch East India Company as a quasi-political entity engaged in the use of military force against the Portuguese in the East Indies region. These two contexts shaped the background against which Grotius developed his ideas. Indeed, he was not removed from politics but rather served as an official state representative during a period of conflict amongst the United Provinces and later as an ambassador of Sweden to France. While these contexts helped shape the ideas of Grotius, my argument is not that they determined his ideas.49 Instead, especially in understanding his conceptions of political authority, appreciating the conflicts over political authority that defined the Dutch Republic and the questions about the authority of mercantile companies like the Dutch East India Company must be taken into account. While the Thirty Years War (1618–1648) is sometimes seen as the primary international context shaping the ideas of Grotius, the relevance of the conflict for understanding Grotius is really the Dutch Revolt against Spain that began in 1566.50 In 1551, Philip II of Spain inherited the 17 provinces of the Netherlands, which roughly correspond to the Netherlands and Benelux countries of today. The social and political conditions of the Northern provinces were based on a series of overlapping political structures, with a great deal of power remaining in the cities and villages of the different provinces. As statehood became more centralized in places like Spain, England, and France, the provinces retained political structures that were “medieval, political and administratively atomised”.51

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The Union of Utrecht in 1579 brought together the seven Northern Provinces, led by the wealthiest Holland, into a defensive alliance against the power of Spain.52 As a number of historians have emphasized, this union was not one that led to a single unified state. While there existed the office of Stadtholder, originally the lieutenant of the Hapsburgs in the region who became the military leader of the republic after the revolt led by William of Orange in 1566, the true power rested in the States-General, a meeting of the delegates of the seven provinces that took place in the Hague. One historian notes that rather than a parliament, this institution was more like a meeting of allies, with the requirement that any decision be unanimous rather than the result of the majority. This structure was even more surprising in light of the vast diversity of economic power between the leading provinces such as Holland and the smaller ones.53 This constitutional structure gave more power to “local liberties at the expense of central direction.”54 While the Dutch Republic was thus born as a loose federation in response to a need to defend against the Spanish Empire, it soon saw political and military struggles of its own, conflicts in which Grotius was enmeshed. Oldenbarnvelt, the delegate from the city of Rotterdam, one of the leading cities of Holland, had taken on Grotius as one of his protégés in 1601. Oldenbarnvelt became involved in the religious controversy that was surging through the region when he argued that the strict Calvinism of the Dutch should be modified to allow for less emphasis on predestination. This conflict resulted in a Synod of 1618 at which Oldenbarnvelt and the moderates were defeated, leading to his execution by the Stadtholder, Prince Maurice of Orange. Grotius ended up imprisoned as a result of his association with Oldenbarnvelt, escaping in 1621. Hence Grotius lived through a political experience in which his life was jeopardized by a religious-political conflict. More importantly for this chapter, however, is the position that Grotius originally took in the Dutch Republic. In 1601, Oldenbarnvelt asked him to be the official historian of Holland, a task that led him to write both some unpublished and eventually published accounts of the constitutional structure of Holland and the Dutch Republic as a whole. This historical work makes its way into De Jure Belli ad Pacis at various points, and appears in other published works by Grotius. The point to emphasize here is not that Grotius’s experience of both living through and writing about the history of his political community determined his theoretical output. Rather, the point is that the history of conflicting authority structures in the Dutch Republic is a history that was not one of a centralizing state structure, but of competing states and even cities asserting their power and using military force in

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response to the power of one of the quintessentially centralized states of the day. Referring back to the concepts that shape political authority, we have in Grotius someone who narrated a particular trajectory for political authority in his home, a history that includes the use of military force by a group of conflicting political authorities. The second political context is Grotius’s relationship to the mercantile company that dominated the expansion of Dutch trade throughout the world in the seventeenth century. Dutch economic power emerged in the late sixteenth century as a result of its location in a key trading route between the northern and southern regions of Europe. The Dutch became a pivot in the trade system of Europe, buying goods from the Baltic regions and selling them to Spain, France, and England. Not only did they trade in the north, however; the various Dutch republics soon expanded into the Mediterranean as well, again serving as middlemen in the trade system of Europe.55 Eventually, they expanded to Africa, the Caribbean, and the East Indies. It is their expansion into the East Indies that is most relevant for Grotius. In the 1590s, Dutch merchants realized the potential profits to be found in the spice trade from the region. The primary competitor was the Portuguese crown, which controlled most of the economic activity within the region. In contrast, Dutch merchants acted on their own, pursuing profits through investment companies that combined the interests of merchants, investors, and the political leadership. After competition among the Dutch merchants for the trade increased in the last years of the sixteenth century, they turned to the leaders of Holland for help. This resulted in the creation of the United Dutch East India Company in 1602. The company was unlike previous economic organizations, however: Never before had a joint-stock company been created which organized investment, and balanced the interests of different towns and regions, on the basis of a federal concept of management. Nor, clearly, could this have been attempted had the United Provinces not been a federal republic, organized to prevent the concentration of power at any one centre.56

As with the Dutch political structure, this mercantile company, which became the engine for Dutch economic expansion in the East Indies, was decentralized. Importantly, as well, it was a quasi-governmental structure. While not controlled by the Dutch republics, it was incorporated by the state of Holland that also invested in it. Even more important for the purposes of this chapter, the Dutch East India Company used military force in pursuit of its interests in the region.

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Oldenbarnvelt encouraged the company to establish military bases to counter the power of the Portuguese. As one historian puts it, As far as the States of Holland and Zeeland were concerned, the VOC [the Dutch acronym for the company] was an arm of the state empowered to deploy armies and navies in Asia in the name of the States General and to conduct diplomacy under the States General’s flag and seal.57

Grotius’s relationship to the company came in two phases. In 1602, he wrote a legal defense of a Dutch merchant who had captured a Portuguese ship carrying a significant amount of goods from the East Indies. The capture may have been a spur to the creation of the Dutch East India Company, which was created only months later. Grotius’s defense of this individual became the core of what he called De Indiis, but what has become De Jure Pradea. In 1605, the Dutch took over a Portuguese fort in the region, further stoking the conflict between the company, the republic, and the Portuguese crown. In 1608, the company requested that Grotius take this longer text and turn it into a shorter pamphlet in the context of the ongoing dispute between Portugal and the company. This request produced Mare Liberum, for which Grotius became quite famous in his day and which many believe influenced the ideas behind his De Jure Belli ac Pacis. This text formed the basis of Grotius’s ideas about the freedom of the seas, arguing that no state could control them as the Portuguese claimed. As Richard Tuck notes, Mare Liberum also included a discussion of jus gladii, or the right to punish, a right based not on sovereign authority but on the just cause for which an actor is fighting. This justification for punishment, as noted above, became a central part of his conception of what justified the use of military force by any agent, state or non-state actor alike.58 For the purposes of this chapter, the central point of this episode is that Grotius’s conception of what justified the use of force arose in the context of a largely economic actor using military force. While the Dutch East India Company was one of the first such mercantile companies, it was not the only one to emerge in Europe. As Janice Thomson describes it, these mercantile companies while at first created by states soon needed to be controlled by the state in order that they base their sovereignty on the control of violence. Comparing mercantile companies to mercenaries and pirates, Thomson presents a fascinating study of how the state system in Europe was only able to create truly sovereign states by limiting the capabilities of these quasi-public institutions to use military force.59 In other words, controlling these non-state agents became a central part of the creation of a sovereign state system.

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The federal nature of the Dutch Republic was also central to the construction of the company, a federal nature with which Grotius was clearly familiar. While a federal state can certainly be a sovereign state, the context of the Dutch Republic suggests that Grotius’s understanding of sovereignty was greatly influenced by a political system in which individual communities could come together for both defensive purposes as described above and for economic purposes. While the burghers, merchants, and political leaders who constituted the Dutch political context are not “non-state actors” as commonly understood in this volume, they certainly parallel such actors in important ways. I do not wish to argue here that the use of force by the Dutch East India Company was justified in this situation. Indeed, as Tuck notes, the use of force by the company was primarily offensive, in the sense that it was to increase the trade rights of the Dutch in a region that had previously been controlled by others. The fact that this incident may have influenced the development of Grotius’s thinking on just war should point to the centrality of non-state agents in the development of just war theory. We may not prefer the particular agent whom Grotius was defending on this occasion, but we cannot deny that both state and non-state actors were central for the creation of the natural law – based just war theory that we have inherited today. Conclusions This chapter has sought to demonstrate that the just war tradition leaves space for both state and non-state agents to use military force. By providing an alternative reading of Grotius’s ideas, especially the intellectual and political contexts within which he wrote, we can see that the determination of just uses of force need not depend on a slavish acceptance of the modern sovereign state as the only agent that can use military force. In this concluding section, let me turn back to the four elements of authority I proposed at the outset of this chapter as they relate to Grotius’s thought and the issue of non-state actors. The first issue is the nature of power. As described above, Grotius’s understanding of sovereignty was drawn from that of Jean Bodin, whose conception of sovereign power related to the ability of an agent to act without constraint. This individualized conception of the power of the sovereign certainly corresponds to current thinking in IR, in which the power of the sovereign is defined by its ability to control those around it. But Grotius’s political context also suggests a more nuanced conception of power. His role in the Dutch Republic, a political context defined by competing centers of power, with overlapping economic and political

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structures, suggests that power was not located in a single entity in the context of his life. This is not to say that the Dutch Republic was powerless; its economic expansion throughout the world indicates that dispersed power need not be weak. The authority of the Dutch Republic was not based on a magisterial sovereign power, but on the ability of groups to come together in pursuit of their interests, a power more akin to that described by Hannah Arendt than to that of Hans Morgenthau.60 In the current international system, what does this mean for the capacity of non-state actors? It means that perhaps a wide range of political entities should be engaged in joint action rather than relying on single states to completely control the political sphere. Certainly, Grotius was concerned with too many agents using force, for such a world could lead to chaos. Instead, one suggestion to be drawn here is that recognizing alternative political structures of authority does not necessarily have to lead to such chaos but could in fact harness the power of numerous agents in pursuit of common goals. The second element of power explored above is rules, both substantive and procedural. Grotius does not write in the context of purely procedural rules as they relate to authority, for the natural law tradition within which he constructed his theories placed more emphasis on the virtue of agents than on the construction of a contextual rules. Nevertheless, as a theorist of natural law, Grotius certainly believed in a set of rules by which human life should be lived together. The focus on the substantive rules over the procedural rules, however, seems clear in Grotius ideas. That is, rather than rely on a set of procedures to determine which agents should be in authority in a particular context, for Grotius the more important rules concern whether or not such agents are using force in pursuit of the dictates of natural law. For non-state versus state agents in the international system, this is directly relevant. As Steele and Amoureux describe in their discussion of how Hizbollah has been delegitimized as an agent in the context of Lebanon, important questions can be raised about its authority if we think outside of a purely procedural set of rules. In fact, similar questions could be raised about Hamas in the Palestinian context.61 For instance, one might make the case that Hamas deserves to have a more prominent place in the Palestinian political context because of its activities in various social and economic spheres. Of course, the same set of substantive rules could be used to delegitimize Hamas, for if it is determined that they have violated rules concerning the targeting of civilians, then they do not deserve a position of authority. This point raises a wide range of other problems, such as what “substantive” rules would legitimize particular authorities over others.62

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Indeed, here is where the complexity of a natural law approach becomes most problematic. I acknowledge these difficulties here, although I cannot resolve them here. My brief response would be that substantive rules have already started to make their way into various norms concerning human rights and legitimate political authority. I tentatively accept the argument of those who see human rights as arising from a revived natural law tradition of the mid-twentieth century.63 The third criterion is the centrality of historical narratives for determining authority. Grotius may not have understood his theoretical development in exactly the same way, but he certainly drew upon historical experiences to establish the rights of war and peace. Even more importantly, his role as the historian of the Dutch Republic suggests that he knew the importance of establishing a narrative about an agent that provides its authority in particular contexts. For non-state actors, their role in the history of the international system is not well understood. As Thomson describes, however, their use by states in the seventeenth century was later undermined by those same state authorities in an attempt to construct their sovereignty. Thomson’s genealogy is exactly the kind of story that needs telling to understand the places where non-state actors have been central to the creation of the current international system. Today, similar stories can be told about other non-state agents. William DeMars, for instance, argues that the role of various nongovernmental organizations (NGOs) in conflicts throughout the international system has been essential for the construction of war and peace around the world.64 Finally, the ability of an authority to provide space for agents to act is central for differentiating pure coercion from legitimate authority. Grotius does not theorize such agency directly, but again his political context suggests the way in which such agency might exist. As described above, the Dutch Republic was a diversified constitutional structure, in which not only the provinces, but cities, villages, and investors had some role in the governance of the realm. This kind of dispersed authority structure allowed for the exercise of agency by a wide range of agents. I would suggest that this points to the importance of a constitutional framework for the international level. As I have argued elsewhere, in bringing together the natural law tradition of Grotius (and Locke) and the ability to live together in a public realm, the role of judgment needs to be privileged.65 In constitutional political structures, the role of judges is to formulate responses to conflicts between agents, whether they are private or public. With the emergence of international criminal law and the creation of the International Criminal Court, the international system has created a structure by which not simply states but non-state

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actors, both individuals and groups, can be subject to judgment concerning their role in the use of violence. Rather than accepting that states can use force without question, this new structure is moving us closer to Grotius’s conception of authority and violence—a system in which judgments are made about whether or not violence can be used on the basis of a set of rules drawn from substantive law. This evolution leaves space for non-state actors to use force, but also to be judged as to how and for what reasons they use force. One point to emphasize is that my reading of Grotius on these issues is not to promote a world in which every individual and agent can use military force. Indeed, to imagine such a world is difficult to say the least. Nor is my argument that every organization that claims legitimacy should be constituted as a military force. Rather, my genealogical reading of Grotius is designed to prise the just war tradition away from its adherence to a single form of political authority, the sovereign state. By seeing within the tradition resources for how we might make judgments about different agents using force, we begin to see how an international political theory of authority and violence may lead to new outcomes. In conclusion, I would suggest that a careful reading of Grotius opens up the state system in terms of the justification for using military force. Rather than accept a state system in which only a few privileged agents can use force, Grotius emphasizes that judgments about war and peace should be drawn from a more nuanced understanding of power, rules, history, and agency. Developments in the international system are moving toward Grotius’s natural law framework. It is up to theorists of the just war to construct a more nuanced story of their own tradition to see that such developments may well lead to new structures of authority. Notes 1. For insightful comments on this chapter, I thank the editors, Cecile Fabre, Renée Jeffrey, Cian O’Driscoll, Ward Thomas, and John Williams. 2. In International Relations (IR), Hedley Bull is in large part responsible for this interpretation of Grotius; see Hedley Bull, Benedict Kingsbury, and Adam Roberts, eds, Hugo Grotius and International Relations (Oxford, UK: Clarendon, 1990). In International Law (IL), it is difficult to identify a single theorist as being responsible for this reputation, in light of it being so widespread. Edward Keene uses Grotius and his participation in colonialism to critique Bull’s wider notions of international relations; see Edward Keene, Beyond the Anarchical Society: Grotius, Colonialism, and Order in World Politics (Cambridge, UK: Cambridge University Press, 2002). Renée Jeffery provides an insightful genealogy of Grotius’s reputation in both IR and IL, exposing a number of ways in which he has been

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3.

4. 5.

6.

7.

8. 9.

10. 11. 12. 13.

14.

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misinterpreted; Renée Jeffery, Hugo Grotius in International Thought (New York: Palgrave Macmillian, 2006). See Knud Haakonssen, Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment (Cambridge, UK: Cambridge University Press, 1996) and Richard Tuck, The Rights of War and Peace: Political Thought and International Order from Grotius to Kant (Oxford, UK: Oxford University Press, 1999). As I argue here, it has become a statist theory, but the tradition of thought is not statist. See Richard Flathman, The Practice of Political Authority: Authority and the Authoritative (Chicago: University of Chicago Press, 1980) and Thomas Christiano, “Authority,” Stanford Encyclopedia of Philosophy, July 2004, available at http://plato.stanford.edu/entries/authority. Hans J. Morgenthau, Politics among Nations: The Struggle for Power and Peace (New York: W.W. Norton, 1948), 13. This first edition of Politics among Nations has been through many revisions, but the definition of power has remained the same; see, for instance, the sixth edition, p. 32. Other conceptions of power certainly exist, from theorists as diverse as Hannah Arendt to Michel Foucault. Morgenthau’s conception captures the basic contours of the idea and places it in relation to the idea of political authority. Max Weber, “Politics as a Vocation,” in H. H. Gerth and C. Wright Mills, eds, From Max Weber: Essays in Sociology (New York: Oxford University Press, 1946), 77–81. Jean Marc Coicaud, Legitimacy and Politics: A Contribution to the Study of Political Right and Political Responsibility, trans. David Ames Curtis (Cambridge, UK: Cambridge University Press, 2002). Coicaud draws extensively on Weber, although provides a more political reading of his theories of legitimate authority. Flathman, The Practice of Political Authority, 6–7. Hannah Arendt, “What Is Authority,” in Hannah Arendt, ed., Between Past and Future: Eight Exercises in Political Thought (New York: Penguin Books, 1968), 91–142. Flathman, The Practice of Political Authority, 213–224. For my own conception of that history, see Anthony, F. Lang, Jr., “Ethics, Justice, and Security,” in Theo Farrell and Michael Williams, eds, ISA Compendium Project: International Security Studies Section (New York: Blackwell, forthcoming). For an excellent book-length treatment, see Alex Bellamy, Just War: From Cicero to Iraq (Cambridge, UK: Polity, 2006). This assumption is widespread throughout the discipline of IR; almost any introductory textbook includes a brief discussion of it. For a realist critique of this assumption see Stephen Krasner, Sovereignty: Organized Hypocrisy (Princeton, NJ: Princeton University Press, 1999). For a constructivist reading of Westphalia as central, but reliant on the ideational context of

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18.

19. 20. 21. 22.

23. 24. 25. 26. 27. 28.

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the Protestant Reformation, see Daniel Philpott, Revolutions in Sovereignty: How Ideas Shaped Modern International Relations (Princeton, NJ: Princeton University Press, 2001). Some argue that Weber belongs in the cannon of realist IR thought; see, for instance, Michael Joseph Smith, Realist Thought from Weber to Kissinger (Baton Rouge, LA: Louisiana State University Press, 1986). Although not all just war theorists have, as contributions to this volume suggest. See Paul Ramsey, The Just War: Force and Political Responsibility (New York: Scribner, 1968) and Robert W. Tucker, The Just War: A Study in Contemporary American Doctrine (Westport, CT: Greenwood, 1978). For an attempt to address the issue of nuclear weapons and reread the tradition from within the Catholic Church, see United States Conference of Catholic Bishops, The Challenge of Peace: God’s Promise and Our Response (Washington, DC: Orbis, 1983). Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 2nd ed. (New York: Basic Books, 1992). For extensions of his argument, see Michael Walzer, Arguing about War (New Haven, CT: Yale University Press, 2004). For a critical account of Walzer’s approach to just war, see Brian Orend, Michael Walzer on War and Justice (Cardiff, UK: University of Wales Press, 2000). See Michael Walzer, Spheres of Justice: A Defense of Plurality and Equality (New York: Basic Books, 1983). Mary Kaldor, New and Old Wars, 2nd ed. (Cambridge, UK: Polity, 2006); and Chapter 8 of this volume. Sarah Percy, Mercenaries: The History of a Norm in International Relations (Oxford, UK: Oxford University Press, 2007); and Chapter 6 of this volume. See Bruce Cronin and Ian Hurd, eds, The UN Security Council and the Politics of International Authority (London: Routledge, 2008); and David Malone, The International Struggle over Iraq: Politics in the UN Security Council, 1980–2005 (Oxford, UK: Oxford University Press, 2006). John Williams, “Space, Scale, and Just War: Meeting the Challenge of Humanitarian Intervention and Trans-national Terrorism,” in Review of International Studies 34 (4) (2008): 581–600. Williams, “Space, Scale and Just War,” 593. Cecile Fabre, “Cosmopolitanism, Just War Theory, and Legitimate Authority,” International Affairs 84 (5) (September 2008): 963–977. Fabre, “Cosmopolitanism, Just War Theory and Legitimate Authority,” 964. Nicholas Rengger, The Judgment of War (Cambridge, UK: Cambridge University Press, forthcoming), 7. Readers of an early draft of this chapter have queried whether or not Grotius’s insights have any relevance to the dilemmas facing the current international order. I agree that there are problems with dipping back into

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historical contexts and resurrecting theorists for current purposes. For the purposes of this chapter, however, I would argue that my reading of Grotius is designed (1) to critique the standard IR reading of Grotius as the theorist of international society and state sovereignty and (2) as a theorist whose conception of natural law can provide important insights into how we might conceptualize international political theory today. I am not making the case that we need to adopt Grotius’s natural law formulations, but I do think the way in which he moved natural law from a purely Christian foundation to a more (but not completely) secular formulation can give us new ways of seeing the problem of contested authority and the use of force. Hugo Grotius, Commentary on the Law of Prize and Booty, ed. Martine Julia van Ittersum (Indianapolis, IN: Liberty Fund, 2006); and Hugo Grotius, The Free Sea, ed. David Armitage (Indianapolis, IN: Liberty Fund, 2004). Hugo Grotius, The Rights of War and Peace, ed., Richard Tuck (Indianapolis, IN: Liberty Fund, 2005), Book II, chap. 1, sec. I, 393–396. All page references are from the Liberty Fund edition. The terms jus ad bellum and jus in bello were not used by Grotius, although his division of the work into these three sections mirrors the same conceptual distinction. See A. P. d’Entrèves, Natural Law: An Introduction to Legal Philosophy (London: Hutchinson, 1951); and Robert L. George, In Defense of Natural Law (Oxford, UK: Clarendon, 1999). See R. W. Dyson, ed., Aquinas Political Writings (Cambridge, UK: Cambridge University Press, 2007). Grotius, The Rights of War and Peace, 89. Ibid., 150–151. Ibid., 161. Ibid., chap. 2. This discussion of punishment in Grotius is drawn from Anthony F. Lang, Jr., Punishment, Justice and International Relations: Ethics and Order after the Cold War (London: Routledge, 2008), 36–39. Grotius, The Rights of War and Peace, 142. Ibid., 953. Ibid., 955. Ibid., 1018. Ibid, Book II, chap. 20, secs 40–51. Ibid., 162. Ibid., 259. Ibid., 260. Renée Jeffery, Hugo Grotius in International Thought, 5–6. Geoffrey Parker, Europe in Crisis, 1598–1648, 2nd ed. (Oxford, UK: Basil Blackwell, 2001), 29–34. Jeffery has argued that the theological ideas that Grotius developed were more important for understanding his ideas about war and peace; see Jeffery, Hugo Grotius in International Thought, 25–26.

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50. For documents arising from the political context of the Dutch revolt, see Martin van Geleren, ed., The Dutch Revolt (Cambridge, UK: Cambridge University Press, 1993). 51. Charles Wilson, The Dutch Republic and the Civilisation of the Seventeenth Century (London: Weidenfeld and Nicolson, 1968), 8. 52. For an overview of how the provinces came together and their confederated relationship, see James D. Tracy, The Founding of the Dutch Republic: War, Finance, and Politics in Holland, 1572–1588 (Oxford, UK: Oxford University Press, 2008). 53. K. H. D. Haley, The Dutch in the Seventeenth Century (London: Thames and Hudson, 1972), 67. 54. Ibid., 74. 55. For an overview of Dutch economic growth during the sixteenth and seventeenth centuries, see Jonathan I. Israel, Dutch Primacy in World Trade, 1585–1740 (Oxford: Clarendon Press, 1989). 56. Ibid., 69. 57. Ibid., 70. 58. Richard Tuck, “The Rights of War and Peace,” 79–89. 59. Janice E. Thomson, Mercenaries, Pirates and Sovereigns (Princeton, NJ: Princeton University Press, 1994). 60. For Arendt’s understanding of power, see On Violence reprinted in Crises of the Republic (San Diego, CA: Harcourt, Brace, and Jovanovich, 1970). Cian O’Driscoll has pointed out to me that Grotius’s conception of power should not be disconnected from his understanding of Christian concord. That is, Grotius’s understanding of power may be closer to an Arendtian one than a realist one because of his belief that political communities in a Christian context will ultimately come together in light of the Christian conception of love. I think this is quite certainly possible, although I do not have the space in this chapter to pursue this issue further. 61. Although, ironically, Hamas should have some status of authority in terms of procedural rules because of its election by the Palestinians in recent elections. 62. I am indebted to John Williams for pushing me on this point. 63. See, for instance, the edited volume that was organized by UNESCO in the mid-1940s that informed the drafting of the human rights instruments in the UN system. The project pulled together leading religious scholars and philosophers to articulate what constitutes human rights in the international order of the post – World War II system. See UNESCO, Human Rights: Comments and Interpretations, ed., Jacques Maritain (London and New York: Allan Wingate, 1949). 64. William DeMars, NGOs and Transnational Networks: Wild Cards in World Politics (London: Pluto, 2005). 65. Lang, Punishment, Justice and International Relations, passim.

CHAPTER

4

What Happened to Punishment in the Just War Tradition? Harry D. Gould

Although realists characterize international relations as having essentially always been a self-help system in which states use force to promote, defend, or vindicate their own interests, we need not read it has always been that way. Alongside the self-interested self-help ethos and its attendant practices, a punitive ethos operated for a period of centuries. Unlike the self-help regime—and it is indeed a congeries of rules—that requires only more-or-less like units in interaction, the punitive ethos was predicated upon a very specific legal-normative context. International punishment, both as idea and as practice, evolved in a context unlike that of the current international system, and as we will see in the coming sections, each move from that context toward our own undermined the legitimacy of invoking punishment as a grounds for the just use of force. International punishment was rooted in and legitimated by a particular understanding of sovereignty and specific understandings of the source and character of obligation; in their absence, punishment could no longer serve to satisfy the jus ad bellum criterion of “just cause.” The contingent products of a unique intellectual setting, as these understandings were superseded, international punishment lost its coherence and became indefensible. These transformations, and the ultimate rejection of the legitimacy of punishment in international society, correlate very closely with the rise of positivism in law, the displacement of natural law, and the parallel but related move toward a more rigid conception of sovereignty and the sovereign equality of states.

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The story of punishment’s place in the just war tradition cannot be told without devoting careful attention to sovereignty as both concept and practice. Nonetheless, there is no need for another history, deconstruction, or genealogy of sovereignty.1 Punishment and sovereignty are mutually dependent terms in much the same way that Cynthia Weber demonstrated the co-constitution of intervention and sovereignty.2 Classical international punishment was only able to take the form it did because of a still inchoate conception (and practice) of sovereignty; as the idea and related practices became more formalized, institutionalized, and ritualized, punishment became theoretically insupportable and politically unpalatable. Conversely, “sovereign” came to be identified as that which is subject neither to external judgment nor to punishment. In the place of punishment, reprisal, which is tied closely to selfhelp and had operated alongside punishment, came to the fore, but it also has largely fallen from favor both doctrinally and in practice. Punishment connotes relations of authority and subordination; reprisal is suited precisely to interactions among juridical equals—perhaps because it was originally a practice involving individuals and other of what we would currently call non-state actors. Both punishment and reprisal have historically involved non-state actors, but as will be shown below, neither practice provides much by way of precedent for conceptualizing the place of modern non-state actors in just war doctrine. There are two primary reasons why there is little analogy between modern non-state actors’ assertions of the right to use force and historical examples. First, if working from a comparison with Grotian thought on the authority to punish possessed by individuals and corporations, one immediately runs into a problem deriving from Grotius’s predicate understanding of the natural rights of individuals in the state of nature, an understanding long disavowed, and playing no part in the self-understandings of modern non-state actors. Alternately, if one were to attempt to create space for non-state actors building upon a comparison with reprisal, different obstructions arise: those reprisals that were not undertaken by states, but were undertaken by private parties, could only be legitimately undertaken by express grant of authority from their state, and as time went on, these reprisals were increasingly “nationalized,” and the private parties were increasingly clearly agents of the state. To classify an entity as a nonstate actor should entail their not being an agent of their state; if they act as agents of their state, they are not non-state actors in any meaningful sense. In the remainder of this chapter, I look more closely at the roles played by punishment and reprisal in just war doctrine; after briefly analyzing the original sets of arguments for and against punishment as a just cause

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of war, I will look more closely at the pivotal relationship between punishment and sovereignty. That discussion will set the stage for a close examination of the role of reprisal, in the just war tradition. Both practices are of particular interest because, as mentioned previously, they have historically extended to grant non-state actors “right authority” in the jus ad bellum, in one interest rooted in natural rights of individuals, and in the other by the fairly straightforward positivist method of direct grant of agency and authority by the sovereign.

Debating Punishment “Justifiable causes [of war] include defense, the obtaining of that which belongs to us or is our due, and the infliction of punishment.”3 Borrowing heavily from classical Roman jurisprudence, Hugo Grotius asserted that any violation of natural law entailed a right to punish.4 There was no question of standing, interest, or injury; any individual had the right to punish any violator of the laws of nature in the state of nature, humanity’s pre-social condition. When we first entered into society, we transferred that right to those who governed us.5 . . . Kings and those who are invested with a power equal to that of Kings, have a right to exact punishments, not only for injuries committed against themselves, or their subjects, but likewise, for those which do not peculiarly concern them, but which are, in any persons whatsoever, grievous violations of the Law of Nature or Nations. For the liberty of consulting the benefit of human society, by punishments, which at first . . . was in every particular person, does now, since civil societies, and courts of justice, have been instituted, reside in those who are possessed of the supreme power.6

In Grotius’s account, there was a universal right for any nation to punish any violator of the natural law. “Grotius effectively recasts natural law precepts in terms of rights and correlative duties by calling upon the Roman law conception of cause of action and remedy. . . .”7 Punishing violators of the law of nature was a right erga omnes, that is a right held by all; the right of punishment was predicated upon the prohibition against these proscribed acts being an obligation erga omnes, an obligation owed to all. In Grotius’s understanding, because natural law was universally binding, if it prohibited an act, the obligation not to commit that act was owed by all and owed to all. Because the obligation was owed to all others, each of them had an interest in seeing the obligation met; therefore all had a

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corollary right either to ensure that the obligation was met, or to mete out punishment for violating the obligation. As discussed in Chapter 3, Grotius asserted a right for nations (and, in fact, corporations such as the United Dutch East India Company) to punish parties over whom they had neither political nor legal authority. In Grotius’s account, a nation’s right to punish a violator of the natural law, any violator of the natural law, stemmed from the individual’s antecedent right to punish violators of the natural law in the state of nature.8 In the state of nature, in our pre-social condition, punishment was necessarily carried out by men (and in Grotius it was men) who did not—and definitionally could not—possess authority over those whom they punished, but he held that it is a requirement of natural law that “Evil deeds must be corrected”.9 There was by definition no sovereign to enforce the law, but allowing violations of natural law was intolerable; therefore Grotius concluded that in the state of nature, the power to “correct” must have been held by all persons equally.10 The right to punish was held not just by the injured, but was “a right vested in every inhabitant of the state of nature. . . .”11 As Straumann carefully notes, there is no necessary criminality to the violation of natural law, but punishment is still to be issued. “The right to punish arises out of a wrong. Since for Grotius such a wrong can—true to his Roman law terminology—be both a simple private delict and a behavior that is criminally relevant. . . .”12 Grotius “simply” translated the individual’s right to punish in the state of nature into the nation’s identical right, because for him there were no important conceptual distinctions between individuals in the state of nature and nations in their own minimal society. Nations had no powers that individuals had not had in the state of nature; in his understanding, they could not. Individuals had transferred their right to punish upon the creation of society, and as Ulpian noted in D.50.17.54, it is a general rule of law that “No one can transfer greater rights to someone else than he possesses himself.”13 Among the transferred powers were both the right to return any wrong done to oneself (reprisal) and the right to avenge any wrong—entailing a violation of the law of nature—done to anyone (punishment).14 Grotius argued that in the state of nature (and hence in international relations) there was the right to undertake what we, borrowing from Roman law, call an actio popularis, or what Grotius, following Seneca, called the “right of the private avenger.”15 “Translated to a world where commonwealths have come into existence, the natural right to punish entitles every sovereign to punish severe violations of the legal order, even if neither the sovereign himself nor the citizens within his jurisdiction have been injured by the violation in question.”16 This becomes one of the cornerstones of Grotius’s thought on jus ad bellum, and sets the

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stage for discussion of just causes for war during the following two and a half centuries. The amenability of Grotius’s position to European imperialism is obvious and well known: if you are cannibals, force may be used to punish you. If you kill people who come to settle on your “unused” land, force may be used against you.17 If you do not allow people to settle on your “unused” land as the Law of Nature says that you must, force may be used against you. If you refuse to allow people (us) to trade with you as the Law of Nature says that you must, force may be used against you. If you refuse to allow passage through the seas, force may be used against you. Punishment might likewise be inflicted for “offenses against God,” but not merely for rejecting Christianity, and for conducting human sacrifices.18 Under then contemporary understandings of the jus ad bellum, the infliction of punishment was considered to be a just cause for the use of force. Of course, the idea predated Grotius, and he was careful to demonstrate the classical roots of this understanding in inter alia Cicero and Augustine. His contribution was unique, however, in a number of respects; the classical authors tended to use the term in a more narrow sense with implications closer to reprisal (a requirement of prior injury to the punishing party), and, as has been noted, Grotius asserted that the right was still held by private parties as well as nations.19 As Lang carefully noted in Chapter 3, this entailed a clear-cut expansion to another of the jus ad bellum criteria: right authority. Grotius considered non-state actors (to stick with modern parlance) to be “duly constituted” authorities. Individuals had transmitted their right to punish to nations upon their creation, but had not done so exclusively or exhaustively. For Grotius in other words, individuals apparently still retained the natural right to punish, but not the political right to exercise the right to punish; they were therefore able to transfer or delegate it a second time to non-state actors. In this understanding, the authority in question in the jus ad bellum formulation of “right authority” was always derivative of our original natural rights. What is also important theoretically about Grotius’s position is that besides the existence of a generalized right of punishment, the locus of punishment was not understood to be the political abstraction we call the state; as we will see below, it could not have been for him. It might be individuals, as was the case with the “punishment” carried out by Dutch privateers against Portuguese shipping, or it might be an entire society. In practice, punishment might entail conquest and subjugation of the entire nation.20 Although discrete individuals were the material perpetrators of crimes, the public at large bore collective responsibility for them, presumably because they were either collectively complicit, themselves

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guilty of the same crimes at other times, or the instant perpetrators were unidentifiable. Conversely, liability could flow upward as well; Grotius insisted “a nation and its magistrates incur guilt when they fail to curb the openly shameful conduct of their people. . . .”21 Grotius started with the individual responsibility of the ruler, but very quickly slid over to the punishment of the community at large. He first asserted that the whole will not be responsible for the acts of individuals unless they concur with those acts, but offered an expansive understanding of “concur” that only required having knowledge of a crime and not preventing it. He did qualify the stringency of this position by making the power to prevent the crime a precondition of responsibility, but then immediately vitiated this by insisting that the public will know of the acts of those who rule them.22 It is universally admitted that acts which have taken place because of the nation’s decision, and even those which have been decreed by a major part of the whole nation or by magistrates, are acts of the whole community. . . . [T]he subjects of a state that is shown to have inflicted an injury are liable, as such, to warlike attack. . . .23

Samuel Pufendorf was fundamentally averse to Grotius’s claim that one state can punish another for violating natural law. This was, in part, the result of Pufendorf ’s skepticism about Grotius’s underlying claim that punishment was a right held by individuals in the state of nature. In Pufendorf ’s understanding, in the state of nature we could at most retaliate for a wrong done to us.24 For Pufendorf (following Thomas Hobbes) punishment is by its very definition administered by a superior, by one who has legal or political authority over the perpetrator. Authority relationships require established laws recognized by the subjects, promulgated and enforced by a sovereign, but definitionally (and here Pufendorf again hews closely to Hobbes), there were neither laws nor (earthly) sovereigns in the state of nature, therefore there can be no punishment in the state of nature, only retaliation.25 Of course, this points to a larger disagreement with Grotius for whom we are already fully rule bound in the state of nature by the laws of nature. By contrast, Pufendorf took a line much closer to that of Hobbes, positing that natural law was a minimal code for coexistence.26 In terms of international relations, Pufendorf was willing to countenance the legitimacy of the use of force by one state against another that had not harmed it only in the particular circumstance of intervention at the request of people suffering “insupportable Tyranny and Cruelties.” Because of the requirement for a specific request for aid, this is conceptually distinct from punishment, and more akin to modern ideas of humanitarian intervention.27

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Pufendorf neither supported punishment as a “just cause” nor supported the extension of “right authority” to non-state actors. Writing with a fully fledged concept of the state as a discrete, sovereign entity—indeed a moral person—non-state actors, while also moral persons, were not to be treated as having the same rights as states.28 Most important for our purposes, they did not possess the right to use force; they could theoretically possess this right only by grant from their state, but even in this scenario, unless they were to wield it as agents of the state (and thus no longer be non-state actors per se), it would be illegitimate for them to use it against states which Pufendorf had set above all other earthly forms of association as “the most perfect society.” Pufendorf ’s challenge was answered by John Locke in the Second Treatise and in the “Essays on the Law of Nature”, which offered what amounted to restatements of Grotius’s position.29 Locke’s position is Grotian, as is his argument; as he states in the Second Treatise in what he describes as what “will seem a very strange Doctrine”: . . . all Men may be restrained from invading others Rights, and from doing hurt to one another, and the Law of Nature be observed, which willeth the Peace and Preservation of all Mankind, the Execution of the Law of Nature is in that State, put into every Mans hands, whereby every one has a right to punish the transgressors of that Law to such a Degree as may hinder its Violation. For the Law of Nature would . . . be in vain, if there were no body that in the State of Nature had a Power to Execute that Law, and thereby preserve the innocent and restrain offenders, and if anyone in the State of Nature may punish another . . . everyone may do so . . . what any may do in Prosecution of that Law, everyone must needs have a right to do.30 In transgressing the Law of Nature, the offender . . . becomes dangerous to Mankind . . . [the offense] being a trespass against the whole Species, and the Peace and Safety of [the Species] . . . every man . . . may restrain, or where it is necessary destroy things noxious to them, and so may bring such evil on anyone, who hath transgressed that Law. . . . And in this case, and upon this ground, every Man hath a Right to punish the Offender, and be Executioner of the Law of Nature.31

At least Locke’s leap of reasoning in moving from the state of nature to sovereign rights in international relations was more apparent if no more compelling: he asserted rightly that a sovereign may exercise authority over a visiting foreigner, but when he then slid directly from there to a purported corollary right to punish persons for crimes against nature that they commit in their own lands he returned to familiar Grotian argumentation.

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This seventeenth-century debate began over the question of non-state actors’ right to wage war. Although it hinged upon theoretical questions regarding the existence and character of authority in the state of nature, these questions are direct precursors to the concerns of this volume: under what circumstances, if at all, may non-state actors exercise violent force internationally? Grotius was not solely concerned with punishment in De Jure Belli, but it provided the specific “just cause” for the use of force by the United Dutch East India Company whose “right authority” derived from that of individuals in the state of nature. Such an understanding of the authority of non-state actors rapidly fell away, as did the larger views of punishment. Par in Parem Non Habet Imperium With that brief introduction to the Grotian/Lockean understanding of international punishment and Pufendorf ’s theoretical challenge to it, I now turn to the role that changing conceptualizations of sovereignty played in removing punishment from the list of just causes of war. We have already seen some hints of the role, but it remains to trace the specific elements of sovereignty as concept and practice that stripped punishment of its claim to be a jus ad bellum “just cause.” As stated at the beginning of this chapter, there is no need for another detailed history of sovereignty, but some conceptual clarification and conceptual history of particular components of what is actuality an assemblage of rules and associated practices is in order. It is really Emer Vattel whose thought represents the fundamental changes from Grotius to the beliefs and practices dominant through 1945. Vattel provided a rigid formulation of sovereignty; he also drastically diminished the role of natural law and increased the role of positive law.32 In Vattel’s work, natural law, those rules individuals and nations violated at their peril in Grotius’s system, was considered only hortatory in function and weight. Natural law was no longer humanly enforceable at all. For Vattel, all obligation—all meaningful obligation—was voluntary, and as such, only the violation of these obligations is liable to sanction. Of equal importance, sanction can only be sought or imposed by an injured party. The actio popularis, the last of the foundations of the right of punishment, had now vanished from international law altogether. For the next two centuries, what might be described as the “absolute sovereignty – voluntarism – positivism complex” dictated the fundamental rules of international society. Under these rules, states could not legitimately interfere in the domestic affairs of one another; they

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were not understood to be subject to any obligation they had not voluntarily undertaken; states could not legitimately be violently coerced into fulfilling their obligations, and there was no hierarchy among norms or obligations.33 There are a number of elements that made the idea of sovereign states punishing their fellows conceptually different from inchoately sovereign nations punishing their fellows. Foremost among them was the idea of the state as a rights-bearing and duty-bearing sui generis entity separate and distinct from the people and the rulers. As we have seen, to the extent that this idea was present in Grotius’s work, it was extremely diffuse; we really owe Hobbes and Pufendorf for this concept. Hobbes’s “artificial man” was possessed of rights, and Pufendorf ’s emendation of Hobbes’s account added consideration of the duties a state has distinct from those of the populace or the ruler, but Vattel really solidified things.34 With this development, no natural person or persons were responsible for an internationally wrongful act; it was the state that was responsible. It was an abstract, juridical (and stricto sensu fictitious) entity that was responsible, and even this was the exception during this period. In this period there was generally no issue of wrongdoing, responsibility, or punishment because of the way in which sovereignty and positivist voluntarism were framed, allowing states largely to decide for themselves whether and to what extent to honor their obligations.35 Concern had moved to the acts and harms a state might inflict upon another state; one state might respond to a harm inflicted upon it by another, but the idea of a general right of any state to “correct” the behavior of another member of international society in a matter which did not materially concern it was becoming progressively more difficult to justify. This is not to say that state behavior changed entirely, but states had to go through more contortions to justify punitive action taken against another state, sometimes by legislating the other outside the bounds of international society, and increasingly by reference to what would become humanitarian intervention. The dominant doctrinal understanding of sovereignty during the postVattelian period is well summed up by Pollock: 1. States cannot be bound by any rule of international law to which they have not given either their specific or their tacit consent. 2. States have the right to be the judge in their own case; that they are subject to no court or tribunal for the interpretation of the rights conferred upon them by international law. 3. States have the right to take the law into their own hands to secure the execution of what they believe to be just. . . .”36

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Along similar lines, Oppenheim elaborated: “according to the rule par in parem non habet imperium no State can claim jurisdiction over another full-sovereign State.”37 Pollock’s first rule is really a restatement of the doctrine of legal voluntarism, “no State can be legally bound without or against its will.”38 Voluntarism progressively restricted state obligations to rules created by states for themselves rather than rules exogenously imposed.39 By rejecting exogenously imposed rules, voluntarism as part of the modern understanding of sovereignty essentially stripped away most of the bases for international punishment. If states had not agreed to particular rules, they could not be bound by them; if they were not bound by them, they could perforce not violate them; if they had not violated them, they certainly could not be punished for their violation. Not bound by the rules prohibiting the acts in question, states committed no wrong by their commission, thereby creating no cause of action. Because states determined for themselves whether they were bound by any given rule, the sort of categorical pronouncements Grotius had made about certain acts being unconditionally subject to punishment could no longer hold, thereby removing a lengthy catalog of purely internal acts from legitimate casus belli. Pollock’s second rule represents a much greater impediment to international punishment; if we take seriously the idea that states are entitled to be their own judges, the idea of international punishment becomes utterly implausible. Under this rule, if a state does not consent to be bound by another party, correlatively it cannot be judged by any other party. Classical international punishment was built upon the idea that any nation, as a logical precondition of being able to punish any other in the absence of a tribunal, was entitled to judge the acts of any other. Under the new rule complex, if a state did not consent to be judged, its acts could not be judged, and there could not be legal consequences. On its face, Pollock’s third rule appears to moot the consequences of the second. It leaves it up to every state to “take the law into their own hands.” This sounds not at all different from the system Grotius advocated, and it appears to make the second rule wholly irrelevant, and, in fact, to endorse international punishment. Closer scrutiny does not bear this out. It is plain that Grotius did not hold nations to be equal.40 “States taking the law into their own hands” was not practiced during this period along the lines of classical international punishment, but was (with the exception of humanitarian interventions) undertaken by states to vindicate their own rights (or the rights of their nationals abroad which were not distinguished from those of the state at that time). No state could be judged by another without its consent, because states as legal equals could not have authority or jurisdiction over each other that had not

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been granted. If another has legal authority over you, the reasoning went, you are not sovereign.41 In this system, sovereignty is autonomy, which is equality; as Westlake put matters, “the equality of sovereign states is merely their independence under a different name.”42 As we can see in this series of constituent rules of sovereignty, one by one, all of the pillars upon which international punishment was articulated as a just cause for the use of force were eliminated. Natural law-bound nations were no longer the relevant focus; rights-bearing states defined the era. Although there was no longer any meaningful suggestion that the source of law was anything other than state consent, International Relations (IR) was still rule governed in the post-Vattelian period. In fact, since Pufendorf it had been insisted that natural laws of any sort gave rise only to imperfect obligations—this was a key move in weakening the hold of natural law reasoning. As such, they did not allow for coercion in cases of nonperformance. It was only positive law that gave rise to perfect obligations, and it was thus only positive law that could be enforced. That done, the only grounds left for the just use of force were self-defense and reprisal. Returning to Grotius’s theory, we find that one pivotal fundament that it contained was no notion of the state as an entity sui generis separate from the ruler and populace that bore rights and responsibilities. Grotius was able to make the claims he did, in part, because he did not yet have a notion of state sovereignty entailing immunity from outside scrutiny or sanction like we later find in positivism. This is not to say that he altogether lacked a notion of sovereignty. Setting aside additional lexical questions of the fidelity of treating summum imperium, summum potestatem, and regnatrice imperium as Latin equivalents of sovereignty, nearly his entire discussion of “sovereignty” is focused domestically.43 That said, there is a rather mystifying passage at I.II.VI.2 and .3 of De Jure Belli in which—if we read him in Aristotelian terms—he might be construed as asserting that the “state” is sovereign: The subject of power is either common or special. Just as the body is a common, the eye a special subject of the power of sight, so the state (civitas) . . . is the common subject of sovereignty (summae potestatis). It may be granted that the common subject of sovereignty (summae potestatis) is the state (civitas). . . . The special subject is one or more persons according to the laws and customs of each nation (gentium).

Building upon this ambivalent basis Goebel rather baldly asserts, “Grotius conceived of the subjects of the law of nations as being completely independent of the political control and consequently of the will of

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each other.”44 This is hard to reconcile with their authority to punish one another unless he either had a radically different (or incomplete) conception of the term, or one subscribes to Grotius’s inversion of the punishment relationship; many of his critics did not. Accompanying these shifts in the ways that states conceptualized their relationship to one another was the restriction in the recognition of international legal personality. As ably detailed by Spruyt, throughout the period, the sovereign state was eclipsing other rival forms of political organization during this time, but it was also reigning in private actors.45 States were asserting their sole right to use force both internally and externally; organizations like the United Dutch East India Company or its British counterpart were no longer regarded as having the authority to wage war in furtherance of their commercial aims. Although this shift was no doubt politically motivated rather than theoretically driven, it is clear that Grotius’s justifications could serve non-state actors of this sort no better in the normative context of the time than they could states. There is likewise nothing in this to lend support to modern claims of the right of non-state actors to use force. While Grotius’s conception of sovereignty differs from ours, and while he was willing to extend (or acknowledge) the right of non-state actors to use force, the beliefs upon which he predicated these conclusions are no longer accepted.

Punishment by Any Other Name? an injury done to the Rights, stricti juris, of a State, may be vindicated by the employment of a kind of force, which nevertheless falls short of war, and the use of which has always been held to be compatible with the maintenance of general good relations.46 It of course remains true that reprisals are acts of war in fact, though not in intention . . .47

To this point in the chapter, we have focused on the broad right of international punishment as articulated by Grotius, the debates it engendered, and its apparent demise; however, at the outset of the chapter, we mentioned that self-help operated alongside international punishment. Punishment, as a just cause for the use of force, was treated as available both to states and non-state actors. Realists, of course, treat self-help as a state practice, but one manifestation of self-help, reprisal, has historically been as closely associated with non-state actors as with states. While conceptually distinct from punishment, reprisal is often spoken of in punitive terms. “. . . reprisals are punitive in character: they seek to impose reparation for the harm done, or to compel a satisfactory

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settlement of the dispute created by the initial illegal act, or to compel the delinquent state to abide by the law in the future.”48 While historically satisfying the jus ad bellum criterion of “just cause,” and generally taking the same form as punishment, reprisal does not comport with the classical just war tradition’s idea of international punishment, and is not necessarily punitive in the sense used previously. The distinction between punishment and reprisal is subtle. Confusion between the two practices presumably comes from the overlap in their functions. The relevant difference is standing. Punishment, both generically and in the instant context, entails certain rules applicable to all relevant agents. The semantics of punishment implies rules and the violation of rules. Agents are bound by these rules—presumably, rules that all parties know exist. In the case of states (but perhaps not nations historically), these are rules to which all concerned parties have consented. If an agent violates one of these rules, he, she, or it (in the case of juridical persons) is liable to sanction. In some instances, this sanction is violent. All of this holds for reprisal. Punishment, however, is administered on behalf of the community to which the agents belong. The party inflicting the punishment (even Seneca’s “private avenger”) is acting as an agent (even if self-appointed) of the community, and not as a party to the dispute. In particular, this was Grotius’s vision of international punishment. By comparison, reprisal is the use of force by an injured agent against the party who injured them. Specifically, a reprisal is an otherwise unlawful use of force that is tolerated because of the prior injury.49 . . . the injured party [is authorized] to seek full redress and to use force to obtain it if necessary . . . the injured party has the right to provide for its security in the future and to punish the offender in such a way as to prevent a recurrence of such attacks, and give warning to any others who may be tempted to make similar attacks.50

While both punishment and reprisal involve the use of force against parties who have broken rules, the difference lies in the predicate understanding of agency, authority, and standing. International reprisal is not a general right to correct any malfeasant’s behavior like international punishment, but is rather a right to act against a party that specifically harmed you. Therefore, unlike punishment (Grotius’s assertions notwithstanding), reprisal does not presume a relationship of authority. Reprisals are specifically within the domain of the interactions of agents of formally equal status. Reprisal is a retrospective practice like punishment, but again, there must be a direct link of affected interests between the two parties. Reprisal

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is not solely retrospective, however; reprisal might be taken coercively to induce the malfeasant into ceasing their injurious behavior while it is still underway, and like punishment, reprisal can serve a deterrent function. Whether reprisal need bring about any outcome other than the infliction of harm is a matter of some confusion. Punishment is usually characterized as performing either a deterrent, rehabilitative, or retributive function.51 Reprisals can certainly serve a deterrent function. Deterrence is indeed probably implicit in the very idea of reprisal: “If you do that again, we will do this again.”52 This is distinct, however, from the community per se sending the message (even if through an individual agent). Likewise, reprisals are retributive by their very nature. One looks in vain, however, for assertions of a rehabilitative function to reprisal. The history of reprisal as a practice is far better documented than that of international punishment; conversely, punishment has at least been, if not better theorized historically, more extensively theorized. Woolsey, in his treatment of ancient Greek and medieval European reprisal practices, articulates what has come to be one of the defining categorizations of reprisals: The Greeks here present to us two forms of reprisals, the one where the state gives authority to all, or in a public way attempts to obtain justice by force, which is called general, and the other, where power is given to the injured party to right himself by his own means, or special reprisals . . . [special reprisal] was a recognized method of redress in the middle ages; nor was it strange that a private person, by the leave of his superior, should wage a war of his own, when private wars were a part of the order of things.53

A number of things are immediately striking about this formulation; the focus is on the injuries suffered by private parties and state grants to use force to vindicate them; it is not solely or even primarily a matter of interstate violence.54 Nor was there any suggestion of a natural right inhering in individuals to undertake reprisals sua sponte. This was indeed the norm for most of history prior to the eighteenth century.55 Tellingly, in Clark’s immensely detailed history of English legal practice with regard to reprisals, purely domestic reprisals are treated alongside those of an international character.56 Kelly sees the practice arising from “notions of equity—if one was wronged by another’s illegal action, then the wronged individual was vested with a right of redress (forcible if necessary) against the wrongdoer. . . .”57 Right authority in all instances was held by domestic authorities and only legitimately wielded by non-state

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actors by express grant from those authorities; on their own, private parties did not have authority to engage in international acts of violence. In this light for example, Julius Caesar’s reprisal against the Cilician pirates would fail to pass jus ad bellum criteria.58 The sometimes international character of the injuries meant that rulers sometimes granted their citizens the right of reprisal against foreign nationals.59 In simple cases, reprisal could be carried out in the victim’s home state. If the party that injured you happened to be in your state, you could seize their assets or indeed seize their person until you were compensated.60 More common, however, was the grant to a private citizen to seize the person or possessions of foreign nationals on the seas. As it was often impossible to act directly against the parties who had committed the injury, the right to take reprisals was granted (with certain limitations) against all those of the perpetrator’s nationality. In rather Grotian terms, the liability for the initial delict was collective: “The group as a whole— the King and his subjects—was responsible for the acts of its individual members and hence liable for claims resulting from individual acts.”61 Colbert elaborates: “membership in a community may imply responsibility for the actions of that community. . . . The foreign sovereign who authorized the taking of reprisals was not punishing the alleged criminal; he was penalizing the community for what he regarded as its failure to provide redress.”62 While rather far from our modern understanding of non-state agents, the granting of a right to use force internationally to individuals raises an immediate question: can we then sensibly speak of private reprisals against states? As configured in the post-Vattel period, it would seem that international society’s fundamental normative complex would not allow this. Nonetheless, it is clear that groups like Hizbollah and Hamas consider themselves to be engaged in reprisal series with Israel, and Israel certainly conducts itself against them (as it did earlier with the Palestine Liberation Organization [PLO]) as if it were engaged in a reprisal series.63 Woolsey rather muddies things with the formulation “private wars”; referring to the “middle ages” and its feudal system, it is not clear that there was as finely grained a distinction between the public and the private as Woolsey’s usage implies. Feudalism involved a great deal of violent conflict at the subnational level, but it is difficult to assert categorically that feudal nobles, suzerains over their own territories but not sovereigns of not yet extant states, and owing fealty to others, were acting in a distinctly private capacity in any modern sense. The well-known pairing of “marque” with reprisal grows out of the practice of private reprisal. Clark traces the etymology of the former term to a series of Latinate terms “associated with borders or frontiers,”

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and traces a cognate of “marque” to terms related to “pillage” and “plunder.” A “letter of marque,” in its earliest usage, was a document granting authorization “solely for seizures to secure compensation for loss.” Reprisal is linked etymologically by Clark to “prize,” in the sense that the term was used by Grotius in De Jure Praedae, and, as Clark notes, in admiralty courts. “Others having unlawfully made prize of an Englishman’s goods, he might, subject to certain conditions, make re-priz-al.” Over time, the conjoined term gained the connotations it carries in the U.S. Constitution, where it signifies the grant by the state to a private party to seize “enemy property primarily for the purpose of inflicting injury . . . ‘commissions to private men of war’. . . .”64 Privateering, which grew out of the ideas of marque and reprisal, was— unlike reprisal (except belligerent reprisal)—a wartime activity.65 There was again only an adventitious link; previous grants to use force to take prize from the citizens of another state as a response to an injury to a specific individual expanded to general grants to all citizens to take prize from any citizens of that other state, but still in response to an antecedent injury. From there, it was a short trip to removing the injury requirement, and employing what had been previously a matter of private law as a tool of statecraft by employing merchantmen not quite as combatants, but giving them general license to take prize from vessels of the enemy state. One should not however hope to find especially close parallels between privateers operating under letters of marque and reprisal and modern nonstate actors; the very act of commissioning constitutes them as agents of the commissioning state. Although they do not fit neatly within contemporary international legal typologies, for legal purposes they are conceptually closer to regular military, the levée en masse, or private contractors than to the privateers’ congeners pirates or substate militias like Hizbollah. The linking of marque and reprisal joined two distinct threads of non-state actor involvement in the jus ad bellum. International punishment, which for Grotius extended to non-state actors such as the United Dutch East India Company, was predicated upon a right that inhered in individuals, and therefore did not require governmental grant. Marque and reprisal, if they had an advocate like Grotius, might have been asserted to be rooted in an inherent right, but as a matter of practice, they required explicit grants of authority from the state, and were strictly limited in their scope by those same grants.66 While we alluded earlier to confusions between punishment and reprisal stemming in part from the inconsistent but related uses of “reprisal” in “forcible” reprisals and “belligerent” reprisals, this distinction only speaks to acts of reprisal carried out between states. The

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categorization we saw in Woolsey—extrapolated from Greek practice— complicates matters further. Unlike the previous schema, it addresses private reprisals; notably, however, both of Woolsey’s categories of reprisal, as well as forcible reprisal are peacetime measures—“private reprisals, properly speaking, were not acts of war but were a recognized method of securing justice in time of peace.”67 Even forcible, i.e., interstate, reprisal, which may take the form of military assaults, and which is certainly hostile, does not constitute a condition of war. Reprisals “constitute a state of war, and are yet considered to be without the pale of the law applicable to war.”68 This distinction raises questions both of a jus ad bellum character, and of a jus in bello character. By trying to enact a strict separation between reprisal and war, Clark and Phillimore muddied matters unnecessarily. If the distinction does bear out, the other ad bellum criteria might not need to be satisfied, and in bello limitations might not apply. We need not be concerned; the demands of jus ad bellum and jus in bello are normative morally, and are operative without regard to the foreign positivist notion of a “state of war.” Wheaton offered something of a hybrid categorization scheme; using the same dichotomy of general and special that Woolsey would later use, Wheaton classified general reprisals as “when a state which has received . . . an injury from another nation, delivers commissions to its officers and subjects to take the persons and property belonging to the other nation, wherever the same may be found.”69 Special reprisals share the same characteristics as Woolsey’s account. The transition from the Greek usage to that identified by Wheaton was simple enough—originally a general reprisal authorized any and all citizens to take reprisals; eventually that corporate right was strictly retained and solely exercised by the “personated” state.70 Like Grotius’s theoretical account of punishment, states took over the practice of reprisal from individuals. In this case, the state took the power to engage in reprisals not because it was delegated by individuals upon entering society, but because the practice of private reprisal was causing complications for states: “as private reprisals led to more public warfare involving the state, governments increasingly took control of this doctrine, and it eventually became a recognized right that could only be exercised by the state.”71 “[G]eneral reprisals now developed into a political instrument, into a weapon for forcing an adversary to change his policy, into a sanction against another State.”72 Through these developments of policy and conceptualization, we can see a number of related threads. In his treatment of reprisal, Clark implicitly relegates interstate reprisals to the ignoble category of retaliation. “Retaliation involves the use of force to inflict an injury in return for an injury inflicted; reprisal

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involves the use of force to secure compensation for a loss by the taking of property.”73 In none of the various international (state – state) reprisals surveyed in the literature is force used to secure compensation by the taking of property.74 Governments “authorized unlimited seizures as a sort of punishment of the offending state. In other words, compensation ceased to be the object of reprisals when they became public; retaliatory seizures became instead a sanction, a weapon to enforce a change in the opponent’s policy.”75 There are demands for redress for the initial violation of international law, but those failing, the reprisals are taken so as to hurt the other party and dissuade them from repeating the violation. If we do not want to disqualify state practice from counting as reprisal, we are led to another categorization of reprisals: compensatory reprisals or requitative reprisals. The definitive modern statement about the role of reprisals in International Law (IL) and the rules governing resort to reprisal is found in the arbitral decision of the 1928 Naulilaa case. In it, the three Swiss arbitrators delineated three requirements for an act of (in this case violent) revenge to constitute a legitimate act of reprisal: 1. A prior unlawful act; 2. An unsatisfied request for redress; 3. The proportionality of the response.76 Despite the customary status the arbitrators accorded them, some commentators question whether the second criterion has been the norm historically.77 Clark’s extensive historical survey would appear to indicate that it was generally the norm in the case of private reprisals, but to their discredit, the Naulilaa arbitrators left their assertion of the customary law status of the requirement undocumented and did not show that states had adopted the requirement they had applied to their nationals to themselves. Tucker insists that the arbitral decision should not be read as requiring attempting to “obtain redress by peaceful means if it is clear that in the circumstances such attempt will prove unavailing.”78 While the first and second criteria are quite clear cut empirically— either there was or was not a prior unlawful act, either there was or was not an unsatisfied request for redress—it is proportionality that has proved a more vexed requirement.79 In the case of private reprisals, the injury could be monetized, and the grantee was given authority to seize that value from the co-nationals of the malefactor. In the case of international reprisals, injury is not immediately quantifiable, and the proportionality of the response depends on the purpose of the reprisal. Seeking retaliation— as the Portuguese had in Naulilaa—entails one level of appropriate force; seeking to deter the other state from repeating their violation may require

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a greater amount of violence.80 “Securing redress suggests that proportionality must be measured by the extent of the damage stemming from the delict, whereas preventing recurrence (deterrence) suggests a more indeterminate standard based on a calculation of what might be necessary to ‘teach a lesson’.”81 There is no way to rigorously gauge the amount of force necessary to “teach a lesson.” Currently, many hold that because of the deliberately narrow framing of Article 2(4) of the UN Charter, violent reprisal is no longer countenanced by IL.82 “The provisions of the Charter relating to the peaceful settlement of disputes and non-resort to the use of force are universally regarded as prohibiting reprisals which involve the use of force.”83 Principle 1.6 of the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the UN (inasmuch as it has legal force) reinforces this sentiment: “States have a duty to refrain from acts of reprisal involving the use of force.” A reading of the International Court of Justice’s (ICJ) dictum in The Legality of the Threat or Use of Nuclear Weapons advisory opinion (inasmuch as it has legal force) further bolsters this view: “armed reprisal in time of peace . . . are considered unlawful.” Nonetheless, the U.S. strikes on Libya (1986) and Iraq (1993) can be read as reprisals, even if they were not presented as reprisals, but rather as legitimate acts of self-defense under Article 51 (as might the 1998 strikes on Afghanistan and the Sudan). In each case, we have a tit-for-tat exchange of violence for violence. There were demands for redress, and in both cases the attacks were more or less proportionate to the predicate wrong.84 To briefly recap the differences: international punishment in the classical tradition was the right of any nation to use violence against any other for the violation of a fundamental rule of law—in that context, the Law of Nature. The punishing nation did not need to have been injured by the violation, nor did it need to have any specific link to the crime or the perpetrator or victim. The punishing nation was alleged to have been acting on behalf of the public good, on behalf of international society, in what would now be called an actio popularis. International reprisals, by contrast, are not conceptualized as community responses to wrongdoing, but rather one state (note the shift) inflicting proportionate injury upon another state that has previously injured it, or private persons from one state seizing the possessions or persons of the co-nationals of the party who injured them. International punishment and reprisal were very similar practices empirically. What enabled the latter to survive the change in normative context was its fit with positivism. Reprisal did not merely survive,

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however; by some accounts it was pivotal in establishing international law’s bona fides as law. States acknowledge no common arbitrator or judge, except such as are constituted by special compact . . . Every state has therefore a right to resort to force as the only means of redress for injuries inflicted upon it by others. . . . Each state is also entitled to judge for itself what are the measures which will justify such a means of redress . . . [including] by exercising the right of vindictive retaliation (retorsio facti) [and] by making reprisals upon the persons and things belonging to the offending nation until satisfactory reparation is made. . . .85

Hans Kelsen built upon this line of thought, showing that reprisals provided a working system of sanction in the absence of a formal hierarchy.86 . . . it is a principle of general international law that a state which considers some of its interests violated by another state, is authorized to resort to reprisals against the state responsible for the violation. . . . Since reprisals are admissible only as reactions against the violation of certain interests of one state by another, they have the character of sanctions; and the violation of interests conditioning the reprisals have the character of a violation of international law, that is, the character of an international delict.87

Kelsen was responding to the assertion that international law was not law because it lacked a centralized system of sanctions for violation of norms; he showed quite effectively that reprisals provided an adequate substitute for sovereign-administered sanctions (in one sense, of course, they were sovereign administered, but not in the sense that followers of John Austin had meant). The question we must now face, however, is whether by this point the distinction between reprisal and punishment becomes factitious. While still structurally a bilateral relationship, for Kelsen reprisal performed the same community order function that punishment had for Grotius. Although reliant upon an antecedent wrong to give standing, Kelsen conceptualized reprisals as providing in the aggregate for a comprehensive system of punishment. In terms of the primary axis of differentiation: punishment presupposes authority and reprisal does not, Onuf holds that Kelsen has delineated an “as-if ” system of authority whereby states (perhaps self-interestedly) are acting on behalf of the legal order wielding “as-if ” authority granted by the legal order’s grundnorm.88 If correct, this would utterly collapse the distinction operative throughout this chapter. Ultimately, however, it still remains clear that punishment

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(at least as conceptualized by Grotius) was the product of one ethos, and reprisal the product of another. Conclusion Modern non-state actors might seek theoretical support for their claims to legitimately wage war in Grotius’s theory of international punishment, but doing so would rapidly prove untenable. That theory was predicated upon a view of the rights of individuals in the state of nature that is no longer espoused, and upon the correlative idea that individuals had passed those rights to their states, and could do the same to other artificial persons. Were these grounds insufficient to debar non-state actors from finding justification in Grotius, using that theory would still depend on a return to something like the inchoate understanding of sovereignty Grotius held. While the absolute view of sovereignty that dominated from the eighteenth until the mid-twentieth centuries has been supplanted, international society has not yet moved so far as to demonstrate widespread and representative support for the suggestion that non-state actors have the right to judge and inflict punishment upon states.89 If we turn to reprisal, there is similarly little basis for non-state actors to find precedent for asserting the legitimacy of their uses of force. Reprisals undertaken historically by non-state actors were always required to have authorization. In other words, in the absence of a state granting a nonstate actor the right to use force, in the absence of a state delegating that right, there was no right to use force. “Right authority” was never conceptualized as inhering in the private party undertaking reprisals; they could only ever exercise by delegation their state’s right according to the terms dictated by the granting state. Perhaps unlike international punishment, however, there is some (as yet uncertain) change afoot; perhaps the reprisal series alluded to above between Israel and Hamas on the one hand, and Israel and Hizbollah on the other, preliminarily indicate a shift in attitudes. Clearly Hamas and Hizbollah consider themselves duly authorized to use force, but it remains an unanswered empirical question as to whether any states concur. Notes 1. See inter alia F.H. Hinsley, Sovereignty, 2nd ed. (Cambridge, UK: Cambridge University Press, 1986); Nicholas G. Onuf, “Sovereignty, Outline of a Conceptual History,” Alternatives 16 (4) (1991): 425–446 (reprinted in expanded version in Nicholas G. Onuf, The Republican Legacy

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2. 3. 4.

5.

6. 7. 8. 9. 10.

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in International Thought (Cambridge, UK: Cambridge University Press, 1998), 113–138; Jens Bartelson, A Genealogy of Sovereignty (Cambridge, UK: Cambridge University Press, 1995); Hideaki Shinoda, Re-examining Sovereignty: From Classical Theory to the Global Age (New York: St. Martin’s, 2000); Thomas J. Biersteker and Cynthia Weber, State Sovereignty as Social Construct (Cambridge, UK: Cambridge University Press, 1996); Daniel Philpott, Revolutions in Sovereignty: How Ideas Shaped Modern International Relations (Princeton, NJ: Princeton University Press, 2001). Cynthia Weber, Simulating Sovereignty (Cambridge, UK: Cambridge University Press, 1995), 11–29. Hugo Grotius, De Jure Belli ac Pacis Libri Tres (Buffalo, NY: W.S. Hein, 1995 [1646]), II.I.II. Emphasis added. Benjamin Straumann, “ ‘Ancient Caesarian Lawyers’ in a State of Nature: Roman Tradition and Natural Rights in Hugo Grotius’ De Jure Praedae,” Political Theory 34 (3) (2006): 328–350; Benjamin Straumann, “Is Modern Liberty Ancient? Roman Remedies and Natural Rights in Hugo Grotius’ Early Works on Natural Law,” International Law and Justice Working Papers IILJ2006/11 (2006a). Hoag demonstrates similarly the way in which Grotius relied heavily in Augustine—not noting the latter’s reliance on Roman jurisprudence. Robert Hoag, “The Recourse to War as Punishment: A Historical Theme in Just War Theory,” Studies in the History of Ethics 2 (2006): 5–8. When discussing Grotius, I use “nation” rather than “state” for a number of reasons: it is not clear that the Latin terms he used carried the full signification of our modern term. Writing in Latin, he used “civitas” and its cognates, “communis” and its cognates, “respublica” and its cognates, and “gentium.” Translations of Grotius do not agree with each other, and are internally inconsistent in the translation of these terms; sometimes a term is rendered “state,” sometimes “nation,” at other times “country,” and even occasionally “commonwealth.” Some of the problem lies in Grotius’s text itself; it is not always clear contextually whether he sought to signify different things with the differing Latin terms, or if he was using them simply as synonyms. De Jure Belli ac Pacis. II.XX.XL.1. Quoted also in Richard Tuck, The Rights of War and Peace (Oxford, UK: Oxford University Press, 1999), 102–103. Hoag, “The Recourse to War as Punishment,”15. Hugo Grotius, De Jure Praedae Commentarius (Buffalo, NY: W.S. Hein, 1995 [1604]), XII, 274. Tuck, The Rights of War and Peace, 86, quoting Grotius, De Jure Praedae Commentarius, I, 21. De Jure Belli ac Pacis, II.XX.VII.5; II.XX.IX.1–2; II.XX.XII.1. Tuck, The Rights of War and Peace, 82, also quotes from Grotius’s De Jure Praede: Is not the power to punish essentially a power that pertains to the state? Not at all! On the contrary, just as every right of the magistrate comes to him from the state, so has the same right come to the state

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from private individuals . . . since no one is able to transfer a thing that he never possessed, it is evident that the right of chastisement was held by private persons before it was held by the state. Grotius, De Jure Praede, 91–92 11. Benjamin Straumann, “The Right to Punish as a Just Cause of War in Hugo Grotius’ Natural Law,” Studies in the History of Ethics 2 (2006): 7, italics in original. 12. Ibid., 5. 13. Digest, 50.17.54, quoted in Straumann, “The Right to Punish,” 6. On p. 8, Straumann notes that the right to punish has not passed from the individual’s hands completely; it is retained residually in situations in which there is no government present. This is noted as well by Brown. Christopher Brown, Sovereignty, Rights and Justice: International Political Theory Today (Cambridge, UK: Polity, 2002), 30–31. 14. On reprisal see De Jure Belli ac Pacis, III.II, passim. 15. Tuck, The Rights of War and Peace, 88; Straumann, “The Right to Punish,” 8, 12–14. 16. Straumann, “The Right to Punish,” 10. 17. Grotius, De Jure Belli ac Pacis, II.XX.XL.3. 18. Ibid., II.XX.XLIV, II.XX.XLVIII, and II.XX.XLVII.4, respectively. 19. In this Grotius also broke with some of his more recent predecessors such as Suarez John Finnis, “The Ethics of War and Peace in the Catholic Natural Law Tradition,” in Terry Nardin, ed., The Ethics of War and Peace: Secular and Religious Perspectives (Princeton, NJ: Princeton University Press, 1996), 21. 20. Grotius, De Jure Belli ac Pacis, III.VIII, III.XV (subsidiary discussions at III.IV, III.V, III.VI, III.XI–XIII. 21. Grotius, De Jure Praedae, XII, 271, 376 of Liberty ed. 22. Grotius, De Jure Belli ac Pacis, II.XXI.I–II. 23. Grotius, De Jure Praedae, XII, 272–273, 377–379 of Liberty ed. 24. Tuck, The Rights of War and Peace, 158. 25. Ibid., 159. 26. Jerome B. Schneewind, The Invention of Autonomy (Cambridge, UK: Cambridge University Press, 1998), 126–131. None of this is to imply that Pufendorf held that the state of nature was anomic; there were rules of natural and divine law promulgated by a divine sovereign, but it was not the place of humans to take it upon themselves to enforce them. 27. Tuck, The Rights of War and Peace, 161. 28. On this matter see Chapter 8 in this volume. 29. Tuck, The Rights of War and Peace, 171–180; James Farr, “Locke, Natural Law, and New World Slavery,” Political Theory 36 (4) (2008): 500–504. 30. John Locke, Second Treatise of Government. Peter Laslett, ed. (Cambridge: Cambridge University Press, 1988), §7. Quoted in part in Tuck, The Rights of War and Peace, 170–171. 31. Locke, Second Treatise, §8, italics in original.

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32. Emmer de Vattel, Le Droit des Gens. Ou Principes de la Loi Naturelle Appliqués à la Conduite et aux Affaires des Nations et des Souverains (Buffalo, NY: W.S. Hein, 1995 [1758]), Introduction §§24–27. 33. Bear in mind, however, that not all states were members of this society, and those on the outside were not afforded this respect or these protections. Once, however, a state became a member of this society, they were more or less free to act as they pleased. By comparison, the fundamental rules of international society during the period from Grotius to Vattel might be characterized as a complex of inchoate sovereignty, adjurationism, and naturalism. In it, sovereignty was not considered indefeasible, obligation was not necessarily limited to voluntary acceptance; natural law was considered to outweigh any positive obligation, whether stemming from treaty or state practice (customary international law). It was this constellation of fundamental rules that allowed for international punishment; change any and the claim to justly punish another state is that much weaker; change all three in the directions I have shown, and international punishment is no longer a justifying cause for the use of force. 34. Thomas Hobbes, Leviathan (Cambridge, UK: Cambridge University Press, 2003 [1651]), I.XVI; Samuel Pufendorf, De Jure Naturae et Gentium Libri Octo (Buffalo, NY: W.S. Hein, 1995 [1688]), I.1.12; Vattel, Le Droit des Gens. Introduction §§2, 4, 15, 16, 18–20; I.I.§1, 4; II.III. §35, 36; cf. Harry D. Gould, “International Criminal Bodies,” Review of International Studies,35 (3) (2009): 701–721. 35. Vattel, Introduction §§18–20; II.IV. §54, 55. 36. Distillation from P.J. Baker, “The Doctrine of Legal Equality of States,” British Yearbook of International Law 4 (1923): 11. 37. Lassa Oppenheim, International Law: A Treatise, 2nd ed., Volume 1 (New York: Longmans, 1912), 169. Quoted in Baker, “The Doctrine of Legal Equality of States,” 12. 38. Hans Kelsen, “The Principle of Sovereign Equality of States as a Basis for International Organization,” The Yale Law Journal 53 (2) (1944): 209. 39. There are holes in this, obviously, such as the principle that new states are “born” fully encumbered by existing customary legal obligations to which they never had the opportunity to consent or object. Michael Byers, Custom, Power and the Power of Rules (Cambridge, UK: Cambridge University Press, 1999), 77–78; Humphrey Waldock, “General Course on Public International Law,” Recueil des Cours 106 (2) (1962): 49–53. 40. Baker, “The Doctrine of Legal Equality of States,” 6. 41. Hans Kelsen, “The Principle of Sovereign Equality of States,” p. 208. 42. John Westlake, International Law (Cambridge, UK: Cambridge University Press, 1910), 308. Quoted in Baker, “The Doctrine of Legal Equality of States,” 4. Fowler and Bunck reach much the same conclusion: “Thus sovereignty came to denote the independence of a state interacting in a system of states. . . .” Michael Ross Fowler and Julie Marie Bunck, Law,

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Power and the Sovereign State: The Evolution and Application of the Concept of Sovereignty (University Park, PA: Penn State Press, 1995), 5. 43. Maritain captures the matter nicely: Just as the words polis or civitas are often translated by “state” (though the most appropriate name is “commonwealth” or “body politic,” not “state”), so the words principatus and suprema potestas are often translated by “sovereignty” and the words kurioz or princeps (“ruler”) by “sovereign.” This is a misleading translation, which muddles the issue from the start. Principatus (“principality”) and suprema potestas (“supreme power”) simply mean “highest ruling authority,” not sovereignty. . . .

44.

45. 46. 47. 48.

49.

Jacques Maritain, “The Concept of Sovereignty,” American Political Science Review 44 (2) (1950): 344. Goebels goes on to claim that Grotius “had a clear notion of the state as the possessor of sovereignty,” but his invocation of the passage cited immediately supra is hardly as definitive as he supposes. Julius Goebels, “The Equality of States,” The Cambridge Law Journal 2 (1925): 270–280. Tuck asserts of strong notion of sovereignty in Grotius as well. Tuck, The Rights of War and Peace, 82, 96. Hendrik Spruyt, The Sovereign State and Its Competitors (Princeton, NJ: Princeton University Press, 1994). Robert Phillimore, Commentaries upon International Law, volume 3 (New York: Fred B. Rothman Publishing, 1985 [1857]), IX.II.VIII. Westlake, International Law, 434. Quoted in Arnold McNair, “The Legal Meaning of War and the Relation of War to Reprisals,” Transactions of the Grotius Society 11 (1925): 36. Derek Bowett, “Reprisals Involving Recourse to Armed Force,” American Journal of International Law 66 (1) (1972): 3. Nearly identical descriptions are given in Tucker and Taulbee and Anderson. Robert W. Tucker, “Reprisals and Self-Defense: The Customary Law,” American Journal of International Law 66 (3) (1972): 589; James L. Taulbee and John Anderson, “Reprisal Redux,” Case Western Journal of International Law 16 (3) (1984): 312. Further confusion is engendered by the multiple uses of the term “reprisal”; broadly speaking they might first be divided into “forcible” reprisals and “belligerent” reprisals. The former is the retaliatory/punitive use of force by one state against another for a violation of an international obligation that has not been redressed, and is thus subsumed under the jus ad bellum. The latter are a part of the jus in bello. They deal with reprisals by one belligerent against parties from their adversary (historically civilians or prisoners of war) for antecedent violations of the laws of armed conflict. Although not banned outright, the scope of belligerent reprisal has been greatly narrowed in the last century by a succession of treaties Annex to the Convention Respecting the Laws and Customs of War on Land, 1907, Article 50; Convention Relative to the Treatment of Prisoners of War, 27 July

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50. 51. 52. 53. 54. 55. 56.

57. 58.

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1929; Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31, Article 16; Geneva Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 UNTS 85, Article 47; Geneva Convention (III) Relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135, Article 13; Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287, Article 33; Henry W. Halleck, “Retaliation in War,” American Journal of International Law 6 (1) (1912): 107–118; Francoise Hampson, “Belligerent Reprisals and the 1977 Protocols to the Geneva Conventions of 1949,” International and Comparative Law Quarterly 37 (4) (1988): 818–843; Ingrid Detter, The Laws of War (Cambridge, UK: Cambridge University Press, 2000), 299–303; Philip Sutter, “The Continuing Role for Belligerent Reprisals,” Journal of Conflict and Security Law 13 (1) (2008): 93–122; Richard Hyde and Robert Kolb, An Introduction to the Law of Armed Conflict (Oxford, UK: Hart Publishing, 2008), 173–177. Vattel, Le Droit des Gens, II.IV.51–52; he revisits the matter in nearly identical terms at II.IV.65–69. List distilled from Anthony Lang, Punishment, Justice and International Relations: Ethics and Order after the Cold War (London: Routledge, 2008), 11–19. This is the essence of belligerent reprisals. Theodore Woolsey, Introduction to the Study of International Law, 4th edition (Littleton, CO: Fred B. Rothman, 1999), 174. Emphasis in original. Wilhelm Grewe, The Epochs of International Law, trans. Michael Byers (New York: Walter de Gruyter, 2000), 201. It is noteworthy that Wolff held the right to engage in reprisal to be limited strictly to nations. Christian Wolff, Jus Gentium Methodo Scientifica Pertractum (Buffalo: W.S. Hein, 1995 [1764]), §589. Grover Clark, “The English Practice with Regard to Reprisals by Private Persons,” American Journal of International Law 27 (4) (1933): 694–723. Indeed, domestically, reprisal could be carried out at the level of towns: “As late as the quarter of the 13th century, it was legal, in England, for the authorities of one town, on behalf of the private citizens of the town, to take reprisals on the citizens of another. . . . It will be observed, however, that the reprisals were not taken by the private persons who had suffered, but by the authorities of the towns on behalf of those persons.” Clark, “The English Practice with Regard to Reprisals by Private Persons,” 704–705. Michael Kelly, “Time Warp to 1945—Resurrection of the Reprisal and Anticipatory Self-Defense Doctrines in International Law,” Journal of Transnational Law and Policy 13 (1) (2003): 4. Suetonius, “Julius”, The Twelve Caesars (New York: Penguin Books, 2003), 2–3; Plutarch, “Caesar”, Plutarch’s Lives, volume 2 (New York: Barnes and Noble, 2006), 217–218.

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59. Kelly, “Time Warp to 1945,” 4. 60. Christian Wolff treated the capture of individuals as part of reprisal under the heading of “androlepsy.” While he did not allow captives of this sort to be killed if compensation was not forthcoming, he did permit their being “kept in prison forever as captives, or where slavery is practiced, to become slaves.” Wolff, Jus Gentium Methodo Scientifica Pertractum, §§ 592–595. 61. Clark, “The English Practice with Regard to Reprisals by Private Persons,” 698. 62. Evelyn Colbert, Retaliation in International Law (New York: Kings Crown Press (Columbia University Press), 1948), 42. 63. The term “reprisal series” is taken from Nicholas Onuf, “Reprisals: Rituals, Rules Rationales” in Onuf, ed. International Legal Theory: Essays and Engagements, 1966–2006 (New York: Routledge, 2008). 64. Clark, “The English Practice with Regard to Reprisals by Private Persons,” 700–701, italics in original. 65. Grewe, The Epochs of International Law, 203. 66. Clark, “The English Practice with Regard to Reprisals by Private Persons,” 695–698, 720. As Woolsey, 195, presents the matter: Every authority in those times could make war, could grant letters of reprisals. But when power began to be more centralized, the sovereign gave to magistrates, governors of provinces and courts the right of issuing them, until at length this right was reserved for the central government alone. 67. Clark, “The English Practice with Regard to Reprisals by Private Persons,” 711. Emphasis added. 68. Phillimore, IX.II.X. Emphasis added. 69. Henry Wheaton, Elements of International Law (Buffalo, NY: W.S. Hein, 1995 [1866]), IV.I.291. Also cited in Kelly, “Time Warp to 1945,” 5. Of reprisals of this type, an author only recorded as B.F. stated, “A commission of general reprisals is stronger that even a declaration of war, authorizing the seizure of the goods of the foreign subjects everywhere and immediately . . .” B.F., “The International Law of Embargo and Reprisal,” Law Magazine or Quarterly Review of Jurisprudence 24 (1) (1840): 74. 70. Thomas Hobbes, Human Nature (Oxford, UK: Oxford University Press, 1994 [1640]), XIX.7; De Cive (Cambridge, UK: Cambridge University Press 1998 [1641]) V.7; Leviathan, Introduction. 71. Kelly, “Time Warp to 1945,” 5. 72. Grewe, The Epochs of International Law, 369, 525. 73. Clark, “The English Practice with Regard to Reprisals by Private Persons,” 702. Emphasis in original. 74. Bowett analyzes a series of 20 reprisals involving Israel and its neighbors spanning the years 1953–1970, as well as a British action against Yemen, and Portuguese reprisals against Zambia, Senegal, and Guinea. Kelly looks more narrowly at the British Yemen reprisal, Israel’s 1972 reprisals against Lebanon, its 1985 raid on Tunis, the 1986 U.S. action against Libya and

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83. 84. 85. 86.

87. 88. 89.

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its 1988 reprisal against Iranian oil platforms. Bowett, “Reprisals Involving Recourse to Armed Force,” 4–17, 33–36; Kelly, “Time Warp to 1945,” 14–19. Colbert, Retaliation in International Law, 55. Falk offers a significantly more detailed list consisting of 12 items. Richard A. Falk, “The Beirut Raid and the International Law of Retaliation,” American Journal of International Law 63 (2) (1969): 441–442. Tucker, “Reprisals and Self-Defense,” 592; Taulbee and Anderson, “Reprisal Redux,” 312. Tucker, “Reprisals and Self-Defense,” 593. Colbert, Retaliation in International Law, 77. Tucker, “Reprisals and Self-Defense,” 591–592; Myers S. McDougal and F. P. Feliciano are noteworthy for holding the latter view, Law and Minimum World Public Order (New Haven, CT: New Haven Press, 1961), 682. Taulbee and Anderson, “Reprisal Redux,” 314. Falk, “The Beirut Raid and the International Law of Retaliation,” 429; Bowett, “Reprisals Involving Recourse to Armed Force,” 1–2; Tucker, “Reprisals and Self-Defense,” 586–587; Taulbee and Anderson, “Reprisal Redux,” 309–310; Jeffrey A. McCredie, “The April 14, 1986 Bombing of Libya: Act of Self-Defense or Reprisal?,” Case Western Journal of International Law 19 (2) (1987): 237; Detter, The Laws of War, 87–88; Kelly, “Time Warp to 1945,” 12–13. Ian Brownlie, International Law and the Use of Force by States (Oxford, UK: Oxford University Press, 1963), 281. Quoted in Falk, “The Beirut Raid and the International Law of Retaliation,” 428. For an extended analysis of the raid on Libya as a reprisal, see McCredie, passim. Wheaton, Elements of International Law, IV.I.290. Hans Kelsen, “The Essence of International Law,” in Karl W. Deutsch and Stanley Hoffmann, eds, The Relevance of International Law (Rochester, VT: Schenkman Books, 1968), 85–89; see also Hans Kelsen, Principles of International Law (Clark, NJ: The Lawbook Exchange, 2003), 19–25; Hans Kelsen, Law and Peace in International Relations (New York: W.S. Hein, 1997), 31–34. Kelsen, “The Essence of International Law,” 85–86. Personal correspondence 13 December 2008; interview 7 February 2009. There is, however, mounting evidence of a nascent punitive ethos limited strictly to relations among states. Lang (2008), passim.

CHAPTER

5

War Crimes Trials and the Just War Tradition Michael J. Struett

The discourses surrounding the development of the just war tradition and the discourse surrounding the development of international criminal law have long influenced one another.1 Walzer reminds us that Grotius and Pufendorf deliberately incorporated just war theory into international law.2 Still, the international criminal law and just war discourses are conceptually and practically very distinct, and few participants in either discourse directly utilize the terms of the other.3 In what follows, I argue that each discourse needs the other. Recent rapid developments in the field of international criminal law have the potential to remake the just war tradition by institutionalizing criminal accountability for the most egregious violators of just war norms. That is only possible, however, to the extent that international criminal law tends to codify norms that reflect the moral principles of the just war tradition. The classical debates in the just war tradition about nature of proper authority for waging a just war will now need to cope with the reality that judges also have a role as the proper authorities not for waging war, but for determining whether or not particular decisions by war makers and war conductors were legal and ultimately moral ones. International criminal court judges now have an institutionalized authority that will reverberate back and impact discussions about the nature of just war. Viewed from the other side, the community of international criminal law experts and state leaders now engaged in the process of fleshing out the new institution of the International Criminal Court (ICC) could benefit tremendously

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from revisiting the major teachings of the just war tradition. For instance, the ICC member governments must address the issue of the crime of aggression. The just war tradition has long recognized that even just wars could be fought unjustly, but there is no just way to fight an unjust war. Accordingly, it is a central pillar of the just war tradition that aggression is the foremost international law crime.4 Some potentially disturbing trends have emerged in the early work of the ICC and the ad hoc tribunals, suggesting that war crimes prosecutions may serve only to sanitize or “make more humane” the business of war fighting, while not fundamentally challenging the practice of war fighting, particularly when it serves the political ends of established states. The treatment of non-state actors by international criminal courts is a crucial concern for the overall ethical and legal legitimacy of the war crimes trial movement. This is true because thus far, the majority of investigations at the permanent ICC have focused on non-state actors, including militia groups from the civil wars in the Democratic Republic of the Congo (DRC), and the Lord’s Resistance Army (LRA) that has been at war with the Government of Uganda. Indeed, one of most compelling reasons to work toward an effective definition of the crime of aggression is to ensure that individuals who commit crimes on behalf of states can be brought to face international criminal justice as readily as non-state war fighters. In the traditional view of customary international law, aggression is almost always thought of as a crime committed by states, and not by non-state actors.5 But what should we make of a case where a state sponsors a non-state group to undertake acts of violence that constitute aggression, or if such non-state groups act on their own? Certainly state leaders should not be able to avoid charges of aggression by delegating to non-state actors. Consider the case of Sudan’s government sponsoring attacks by the Janjaweed militia that reach across international boundaries into Chad or the Central African Republic. If in all other respects, these attacks qualify as aggression, the fact that non-state groups acting at the behest of the Sudanese state committed them should not relieve the leadership in Khartoum from criminal liability. In fact, both international criminal law and the just war tradition of moral reasoning about the use of force in war are critiqued by some, particularly by pacifists, as consciously or unconsciously legitimizing war fighting in a way that is counterproductive to the broader goal of delegitimizing war altogether.6 In what follows I will focus on two trends in the contemporary implementation of international law, which, if allowed to continue, could put the international criminal legal system in sharp conflict with the moral precepts of the just war tradition. Each trend has

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implications for the legal and ethical status of non-state actors as war fighters. First, the contemporary wave of war crimes tribunals has not yet included a prosecution of aggression—the crime of war initiation. The just war tradition distinguishes between the transgression of starting war illegitimately and that of waging a just (or unjust) war inhumanely. As Walzer emphasized, a complete effort to bring moral judgments to bear on the business of war fighting must deal with both the legitimacy of beginning a war and the means used to prosecute that war once it has begun.7 International criminal law, too, recognizes the distinction between jus in bello crimes and the crime of war initiation. Still, none of the hundreds of international criminal trials held since the early 1990s in a variety of international courts have dealt with the crime of aggression. While the ICC is scheduled to revisit the issue of defining the crime of aggression in 2009, there is as of yet little evidence that states are prepared to grapple definitively with this issue. If war crimes trials ignore the question of war initiation, they may be used as a tool to label guerilla groups as unlawful war fighters, while failing to address the merits of their political causes. Also, to the extent that aggression is defined in a way that it requires action by a state, then the failure to prosecute aggression contributes to the tendency of the ICC to focus on prosecuting non-state actors rather than states themselves. A second trend in the practice of international criminal law can also be addressed from the perspective of the just war tradition. Of the jus in bello cases that have been investigated by the ICC, most focus on non-state actors such as rebel groups or militias.8 This trend has been halted with the issuance of an ICC arrest warrant for President al-Bashir of Sudan on 5 March 2009. Nevertheless, the bulk of the ICC’s investigations have targeted non-state actors. For the jus in bello norms to maintain their place as a part of a larger code that justly limits war fighting, ultimately they must be part of an international criminal justice system that applies to state conduct as well as that of non-state actors, and which addresses culpability for war initiation as well as violations of the norms regulating war prosecution. Thus, in the early practice of the ICC and the UN ad hoc war crimes tribunals, the vast majority of prosecutions have targeted individuals who were non-state actors. Only a few of the prosecutions in the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) and at the ICC have focused on state officials. More generally, the international trials thus far have entirely failed to address the conduct of powerful established states. This chapter explains how such trends put international criminal law in

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an uncomfortable relationship with the tradition of just war theory. Moreover, I will argue that if the states, judges, and prosecutors now engaged in the development of international criminal law were to take the just war tradition more seriously, it could provide a moral grounding for a more balanced approach to institutionalizing the criminalization of wanton acts of force. As long as we have an international criminal code that aims to restrict the means of fighting legitimate wars, while failing to punish the unlawful and immoral initiation of war, we have an international criminal legal system that is deeply morally flawed. Without minimizing the difficulties of the political challenges involved, I argue below that the just war tradition offers some meaningful guidance for how states could go about defining the crime of aggression in a way that will make it both politically and morally feasible for the ICC to prosecute that crime. One of many good reasons to ensure that the ICC has the capability to prosecute the crime of war initiation is to increase the likelihood that the emerging international criminal law regime can bring individuals to justice whether they violate international law fighting for non-state groups or on behalf of states. On the Relationship between Law and Morals I wish to be clear about one conceptual problem from the beginning. I am generally persuaded by H.L.A. Hart’s well-known views on the relationship between law and morals.9 This is to say, that I understand the two as conceptually distinct. Laws can be criticized as being more or less moral. A legal order manifestly not in line with prevailing views of morality will be sharply limited in its ability to constrain and regularize human interactions. The just war tradition is about moral reasoning, and war crimes trials are ultimately about legal reasoning. Rengger notes that modern militaries have tended to emphasize the constraints and assumptions of the laws of war, rather than thinking in terms of the moral and ethical reasoning of the just war tradition.10 The two social conventions must sit alongside one another—they influence each other, but they cannot be understood as coterminous. This leads to the possibility of moral theorizing and legal theorizing reaching distinct conclusions with respect to particular cases. Much of the early criticism of the work of the ICC has centered on concerns that the effort to impose legal justice could actually have morally repugnant results. This is thought to be a danger if people like Joseph Kony, the leader of the LRA in Uganda, or President al-Bashir of Sudan choose to continue fighting rather than make peace precisely because they face arrest warrants issued by the ICC.

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The basic observation that the strict application of an international legalist paradigm could lead to morally repulsive results is not a new issue for the just war tradition. Walzer, citing Julius Stone, memorably makes this point clear. Stone’s hypothetical example considers the case of a genocide, carried out by a sovereign government of state against its own people, at the behest of a great power, presumably with a veto on the UN Security Council.11 In such a case, strict application of UN Charter law clearly seems to block humanitarian intervention, as neither the charter’s provisions for self-defense, nor the maintenance of international peace and security power of the Security Council can be effectively used under these circumstances. What I am proposing in this chapter is precisely such a critique of the developing legal norms for punishing international law crimes in terms of their morality if we accept the major premises of just war theory as a legitimate ethical discourse about when and how it is appropriate to wage war.12 I am further suggesting that the development of such legal institutions will ultimately feed back, and have an independent impact on, our moral judgments about war, or at least, these legal institutions and their officers will become central actors in that long-standing discourse. If the practices of the ICC and other tribunals tasked with enforcing international criminal law diverge too greatly from the moral premises of just war theory, I wish to suggest that they could be criticized as being unjust laws on the those grounds.13 Of course, I would favor modifying such legal practices to bring them in line with moral reasoning, not abandoning international criminal processes all together.

How Routine War Crimes Trials Change the Just War Debate For centuries, persons engaged in the debate about just and unjust wars have been focused on three specific purposes. Perhaps most importantly, the few leaders who were privy to war plans before their execution from time to time made arguments about whether or not a proposed military action was just or unjust with a view to promoting or preventing the proposed military action in the first place. Such leaders knew that for the most part, once the action had been taken or avoided, the positions they took with respect to justice in advance of the conflict would be of little importance, the key would be whether or not they were politically successful in achieving their goals. Accordingly, the moral discussion they engaged in was almost entirely directed toward impacting the policy choice in the first place.

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A much broader group of participants in the just war debate are external observers, who rarely if ever find themselves in the position of authorizing or choosing not to authorize the use of force by states. They are, like Walzer suggests in the subtitle to his classic work, primarily concerned with discussing the morality of historical decisions to use force for the purpose of guiding the decision making of people who will have to make such decisions in the future. They seek to develop elaborate decision rules to give as much specific guidance as possible to the decision makers who will ultimately have to respond to as yet indeterminate situations brought on by a crisis. From time to time, participants in the just war discourse might also have had as a third objective a more immediate goal of bolstering or undermining a particular set of leaders and/or their policies, but such consequences are relatively short lived. Most just war discourse participants have been broadly interested in establishing for the future some general principles about the morality of decisions to use force. I want to suggest that these just war discussions, and particularly the debates by policy makers involved in conflict situations, are likely to be substantially altered by the existence of the international criminal court and the emerging reality of routine trials for international criminal law violations. The existence of effective international criminal tribunals is likely to give a new sense of urgency to policy discussions about whether or not a particular proposed military action is legal and/or moral.14 The reason for the additional urgency of course is the possibility that planners or initiators of military action may one day find themselves on trial for their liberty.15 This is over and above whatever motivations statespersons have to do the right thing, which I imagine is more or less constant before and after the contemporary developments in international criminal law. Statespersons in past have likely conflated to some extent the distinction between legal and moral constraints on the use of force. Indeed, in a world where there was little if any effective enforcement of international law, the distinction between the law and morality may have been less meaningful. As an effective international legal system emerges however, statespersons may be motivated to focus more on the legal rather than moral issues, to the extent there are any significant differences between the two standards. This is one important reason that international criminal law should work to develop standards that have the broadest possibility of being defended on moral grounds. Walzer argues in his 2004 book that one motivation for increased concern with fighting wars morally may be born out of a recognition by Vietnam-era military leaders that in order to “win the hearts and minds” of civilian populations, it is necessary to fight wars in a way that minimizes

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the impact on civilian populations. He takes as evidence for the change the frequency with which Western military leaders now describe their operations in the categories of just war. He says “It is now easier than ever to imagine a general saying, ‘No, we can’t do that; it would cause too many civilian deaths; we need to find another way.’ ”16 It is likely that within the U.S. military, and perhaps more broadly amongst the advanced industrial democracies, there is a utilitarian motivation for attempting to fight wars in just terms (or at least to be seen as fighting wars, in just terms). But these developments also correspond with the growing strength of the international criminal law regime. The growing attention to war crimes and crimes against humanity gives military and political leaders another powerful incentive to pay attention to the ethics of their war fighting decisions, namely that they might be held to account for criminal activity. In addition to the added motivation to pay attention to legal criteria for justifying the use force, it is also possible that the impact of institutionalized international war crimes trials will be to truncate the frankness of advisors engaged in the debate about whether or not to use force. Statements made by individuals about why they think a particular military action is a good or bad idea now have the potential to become evidence of individual’s intent and therefore of material significance in a trial to determine the guilt or innocence of the individuals involved in the conversations. Like persons being questioned by the police when it is not clear whether they are merely witnesses or targets of a criminal investigation, such high-level advisors may now prefer silence rather than frankness, and before they offer any direct advice, they may want to first consult their own legal counsel. I fear this dynamic has the potential to chill the just war discourse precisely at that point where it matters most—in the halls of power where use of force decisions are being made. Individual Responsibility, International Criminal Law, and the Just War Debate

Just war theory has centered on states (or sovereigns) as the bearers of moral responsibility. In contrast, international criminal law is explicitly focused on individuals as bearing responsibility for violations of international legal rules limiting the use of force. Accordingly, the international criminal justice movement actually opens up space to assess the conduct of both state and non-state actors on a more equal plane, because the legal regime focuses on individual responsibility for norm violations. The just war tradition has long struggled with the question of individual versus state responsibility for transgressions of moral and legal limits on the use of force. On one level, it is obvious that it is individuals who

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make judgments about the morality of fighting wars. Still, war has long been understood as a conventional practice of states, and so accountability for wars is attributed to states as actors.17 In consideration of this relationship between individuals as agents and “war” and “international politics” and “international law” as social practices, I am persuaded by Mervyn Frost’s argument that the ethics of individual’s action cannot be separated from the ethics of the ongoing social practices in which they are embedded.18 Accordingly, the very purpose of developing institutions for the prosecution of the individual crime of aggression is to embed ethical norms in evolving social practices. The move toward the institutionalization of war crimes tribunals over the last decade has given some support to the idea that individuals can routinely be held criminally responsible for conduct that violates international law restrictions on the use of armed force in combat. This has some dramatic consequences. Just war theory will now need to grapple more directly with the question of the morality of the conduct of particular individuals who play a role in decisions by states to go to war or not to go to war. Accordingly, one possible consequence for international norms governing the use of force may be a declining importance to the question of whether states or non-state actors are responsible for carrying out acts of violence. In both cases, international criminal law takes the view that individuals have responsibility. Michael Walzer articulated the useful perspective that war can best be understood as a social convention.19 The convention governs who can fight, for what purposes, the rights and obligations of winners and losers, and the means to be used in the conduct of waging war.20 But according to Walzer, the war convention also focuses on states as the main bearers of rights and duties regarding aggression. The first proposition of Walzer’s theory of aggression is that “there exists an international society of independent states, and that private men and women are not members of this society, only states are.”21 Accordingly he defends the idea of the principle of nonintervention, and says that while human rights can be recognized, “they cannot be enforced without calling into question the dominant values of [international] society.”22 After noting that states are the dominant actors in war fighting, he goes on to state: Once the aggressor state has been militarily repulsed, it can also be punished. The conception of just war as an act of punishment is very old, though neither the procedures nor the forms of punishment have ever been firmly established in customary of positive international law. Nor are its purposes entirely clear. . . . Whether the state as a whole or only particular persons are the proper objects of punishment is a harder question, for reasons I will

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consider later on. . . .” “But the implication of the paradigm is clear: if states are members of international society, the subjects of rights, they must also be (somehow) the objects of punishment.23

Here of course, the contemporary practice of international criminal law has much to offer in order to address Walzer’s conundrum. The efforts by the international criminal court to define and some day prosecute the crime of aggression hold out the possibility that individuals can be made accountable for the ultimate crime. The Special Working Group on the Crime of Aggression, established by the Assembly of State Parties of the ICC, has been struggling to specify exactly under what conditions individuals could rightfully be convicted as being personally responsible for the crime of aggression.24 The issues are complex. Below, I want to suggest some ways that just war theory might contribute to those efforts, but first, we need to establish why it is so essential from the perspective of just war theory, that the international criminal legal system be equipped to deal with the crime of aggression.

Prosecuting Aggression, International Criminal Law, and the Just War Tradition The just war tradition will necessarily be profoundly critical of any international criminal justice system that routinely fails to prosecute the crime of aggression. After all, aggression is, for just war theorists, the preeminent international law crime. Still, unless aggression can be defined in a way that is sufficiently specific as to apply to individuals, courts cannot be given standing authority to prosecute that crime. The problems with defining aggression are legendary. But they mostly start from a criticism raised by U.S. President Truman when he explained in 1950 why the United States had not favored specifically defining aggression in the UN Charter. Because no definition can perfectly foresee all future cases, Truman said, “Any definition of aggression is a trap for the innocent and an invitation to the guilty.”25 This is a critical reason why the UN Charter gave the Security Council discretion and the political authority to determine what constitutes aggression and what not for the purposes of collective security on a case by case basis. The relationship between that authority and the authority of ICC judges to prosecute the crime of aggression is now one of the most contentious issues in the international criminal law debates. But one thing must be clear—if the ICC cannot prosecute aggression, it is significantly morally bankrupt from the perspective of the just war tradition, because waging aggressive war leaves victims no choice but to fight and die or suffer injustice.

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In 1974, the UN General Assembly (GA) passed a resolution defining aggression and recommending that states and the Security Council employ that definition. The crucial Article 1 reads, “Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition.” In Article 3, the definition lays out specific acts to be understood as acts of aggression, including invasion, bombardment, blockade, attacking another state’s armed forces, using armed forces extraterritorially without the permission of the host state, aiding another state to engage in aggression against a third state, or sending irregular armed militias to another state.26 While this resolution is not by itself international law, it does form the basis of efforts by the ICC working group to define the crime of aggression. The central problem is to make clear how individuals commit the crime of aggression by leading states to commit these acts. From the perspective of authors in this volume, the traditional definition of aggression also leaves unaddressed the potential culpability of non-state actors for the crime of aggression. Defining the Crime of Aggression: Insights from the Just War Tradition Legal efforts to define the crime of aggression focus on detailing the specific conduct of individuals that amounts to the crime of initiating an unjustifiable war. Thus far, negotiations within the Special Working Group on the Crime of Aggression have determined that three elements will need to be included in a criminally enforceable definition of aggression. They are a clause that establishes that leaders are primarily responsible for the crime of aggression, not their subordinates; a clause that lays out specific individual conduct required to be guilty of aggression; and a clause that links the individual conduct to an act of state (or possibly a non-state actor?) that itself qualifies as aggression.27 Because there is a presumption of innocence when an accused person stands charged with the crime of aggression, the prosecutor must prove that the accused has in fact committed a series of acts that amount to the crime of aggression. Negotiations to define the crime of aggression for the purposes of the ICC thus focus, rightly, on specifying the criteria that must exist for a particular use of force by the leadership of a state to be considered criminal.28 Typically, the just war tradition starts from the exact opposite perspective, attempting to outline criteria that tell us when the use of force should be considered justified. Perhaps for that reason, I have seen little direct

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evidence that the just war tradition has played into contemporary debates about defining the international law crime of aggression. If the just war tradition is to speak to the aggression debate, as I believe it meaningfully can, a reversal of perspectives is in order. The easiest way to do that I think is to conceptualize the just war tradition as offering a series of conditions that if met would constitute an affirmative defense for persons accused of aggression. The political challenge of providing effective enforcement for the crime of aggression remains immense. That fact is highlighted by the decision of the United States to refrain from even participating in the discussions of the Special Working Group on the Crime of Aggression, even though all states have been invited to do so. The United States, and other states, fear that allowing for institutionalized prosecutions of aggression could so constrain the willingness of state leaders to use force that it might ultimately jeopardize their own security. This is, I think, an unfortunate view, because a clear definition of aggression holds out the possibility of making clear in the abstract when using force is criminal, and when it can be viewed as legitimate (for instance, in the case of self-defense). Accordingly, if the guidance of the just war tradition can help states to find a consensus about when the use of force should be definitively decriminalized, it might help states to be more willing to accept the criminal punishment of individuals responsible for organizing war when it clearly cannot be so justified. So what happens if we apply the just war criteria to the problem of drafting a workable definition to the crime of aggression? The just war tradition lays out six criteria, all of which must be met, before the waging of war can be considered morally justified. They are that the war be fought for a Just Cause, by the Right ( or Proper) Authority, with Right Intention, a Reasonable Chance of Success, with an expectation of Proportionality of Ends (meaning that the total expected good outweighs the total harm), as a Last Resort. Of course, in general, the just war tradition has sought to limit the number of circumstances where a war might be justified, in order to minimize the use of the practice of war. For reasons that I hope to make clear, I think that some of these traditional criteria would be almost totally unworkable in a court of law charged with determining the guilt or innocence of a particular individual for the crime of aggression. However, most of the criteria I do think could rationally be tested by court officers examining issues of fact, including prosecutors, judges, and defense attorneys. Accordingly, I suggest they could be considered as mitigating circumstances, or even as an affirmative defense against a charge of aggression, if an individual would otherwise appear to meet the criteria for being guilty of aggression. Such a “just war defense” against the charge of aggression could be laid out in the elements of the

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crime of aggression at the ICC, or could simply be employed by judges in determining the guilt of particular defendants. In proposing such a “just war defense” it is not my intention to make it more difficult to prosecute guilty individuals for the crime of aggression. Instead, my argument is that by making clear to leaders of states that effective prosecutions of the crime of aggression will not create criminal liability for leaders who use force for clearly just purposes, such as humanitarian intervention or self-defense, it will make it easier for such leaders to accept that aggression can be fairly tried by the ICC or other properly constituted courts with jurisdiction over international law crimes. I also hope that such a development would help to bring moral reasoning about whether or not to use force in the future more in line with legal reasoning about whether or not such uses of force will create criminal liability. As I have suggested, it only makes sense to apply the just war criteria for determining whether or not a person who otherwise appears to be guilty of the crime of aggression, deserves consideration as being innocent of the most horrific of all crimes, on the grounds that in waging war, the individual did so justly. This presupposes that we have some preexisting criteria for what constitutes aggression in the first place. Proposals for this language remain contested, but they center around some core concepts, and will likely parallel the approach of the 1974 GA resolution quoted above. The key element of aggression thus might be along the lines of the language from the 1974 resolution, namely that “Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State.”29 The problem that the leaders of responsible states want to address is to make it clear that if individuals authorize the use of force against other states for legitimate purposes they should be innocent of the crime of aggression. In what follows I argue that the traditional criteria for waging a just war provide us with outlines of criteria that could be met by persons who otherwise appear to be guilty of the crime of aggression, in the sense of having ordered the use of force against another state. Of course, the challenge for my argument is to demonstrate that these criteria for a “just war defense” against an accusation of the crime of aggression are sufficiently clear that they could be meaningfully litigated by a tribunal such as the ICC. I begin with the issue of having a just cause. Finally, the logic of a “just war defense” requires that a person allegedly guilty of aggression acted in a way that was consistent with all of the criteria for a just war that are relevant to the issue of aggression. Obviously it would not make sense for courts to allow a “just war defense” if a person acts with a just cause, but without right authority, or if they act as last resort, but without a just cause.

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Just Cause

In order to qualify for a finding of innocence from a charge of aggression, a person relying on the “just war defense” would have to affirmatively demonstrate that they used force, or ordered the use of force for a just cause. The just war tradition’s criteria for a just cause in war are notably broader than the stringent rules of the UN Charter. Military operations in recent years, most notably in Kosovo, but in other cases as well, have made clear that wars waged for the best of intentions may find themselves outside the black letter law of the UN Charter. Historically, the just war tradition recognized three types of just cause: defense against aggression, recovery of something wrongly taken, or punishment of evil.30 While contemporary discussion has focused almost entirely on the defense against aggression, the punishment of evil category might be elaborated to provide that persons engaged in a legitimate effort at humanitarian intervention could be presumed innocent of aggression. Of course, this language would need to be modernized. Most contemporary discussion of humanitarian intervention does not view it as motivated by punishing the wrongdoers so much as it is by a responsibility to do what is possible to bring an end to massive atrocities caused by violence.31 This contemporary discussion about the legitimacy of humanitarian interventions could be developed into some specific criteria for humanitarian intervention. If individuals showed that in fact they acted for humanitarian purposes, they would meet the criteria for having acted with a just cause and therefore would be innocent of the crime of aggression if they met the other major just war criteria as well. No writer in the just war tradition doubts that self-defense provides an adequate just cause for fighting a war. The complexities arise in the case of preventive military actions. Here the issues are well worn—the threat must be immediate, overwhelming, and with no other means of being avoided before an action in self-defense could be considered justified. Walzer’s discussion of the Israeli first use of force in 1967 in response to the military buildup by Egypt’s Nasser and his allies, and his criteria for demonstrating that Israel really had no choice but to put its national survival in grave risk,32 suggest that it would be possible for a court of law, after the fact, to make a determination about whether or not a particular first use of force could be justified as a legitimate case of preemptive self-defense. The just war tradition also provides well-defined criteria for military action that is morally justified because it is an intervention undertaken primarily for humanitarian reasons. Walzer writes that “[h]umanitarian intervention is justified when it is a response (with reasonable expectations

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of success) to acts ‘that shock the moral conscience of mankind’.”33 Of course, the international legal community has long been skeptical of socalled “humanitarian interventions” because of the real danger of states cloaking less meritorious goals in the logic of fighting evil.34 But this is really only particularly a problem when states and their leaders are judges in their own case. States would be much less likely to rely on trumped-up claims to be engaged in humanitarian intervention rather than other goals if they knew that their claims could be subject to examination by a court of law after the fact. After all, the ICC judges could hear evidence about additional goals that states pursued, and weigh for themselves whether or not the humanitarian goals were really the ones pursued by the state leaders who would otherwise be guilty of aggression. Once the elements of aggression are clearly specified for the purposes of the ICC, it seems plausible that specific categories of just cause could be developed to include at a minimum self-defense and legitimate humanitarian intervention. If alleged perpetrators of aggression could show they acted for a well-recognized just cause, they could be legally found innocent of the crime of aggression. Neutral judges should be much more able to sort through the competing motivations for decisions to use force, and decide in a relatively objective way whether or not the just cause was in fact the main motivation for the use of force. This section has not exhausted all of the just cause issues, but it demonstrates the promise of thinking about trials for the crime of aggression in just war terms. Of course, to qualify for the “just war defense,” alleged perpetrators would have to do more than simply show they acted for a just cause. They would also have to meet at least most of the other tests of just war theory. Proper Authority and the Role of UN Security Council

States must be responsible agents. Indeed, just war theory has as one of its seven core tenants that just war can only be waged by “competent authorities.” Historically this meant that established states and their legitimate governments were the only agents that could wage a just war. In the contemporary world, some have considered that perhaps only the Security Council can confer “legitimate authority” on war fighters. George Weigel has recently reiterated the crucial point that “legitimate authority” cannot simply mean wars that are authorized by the UN Security Council.35 One reason that this is so, as Weigel points out, is that self-defense, whether authorized by the Security Council or not, is considered just. It is also of course legal under the UN Charter’s Article 51. I concur with this judgment. One of the most contentious issues dividing the ICC’s working group on defining the crime of aggression is the role of the UN Security Council

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in determining the existence of unlawful aggression by a state.36 Some states feel strongly that no prosecution for aggression should ever occur unless the Security Council has first made a formal finding that aggression has occurred. Other states have sought to remove the Security Council totally from the process of prosecuting the crime of aggression at the ICC, out of fear that a Security Council role ensures that different states and leaders guilty of the same underlying acts will be treated differently. Their argument has likewise been based not only on legal analysis of the UN Charter, but also on policy considerations, here linked to the history and procedure of the Security Council, notably the low rate of determinations of aggressions in the past and the unequal impact of the veto power of the Permanent Members of the Security Council.37

Legal commentators have argued that as a political body, it is not appropriate for the Security Council action to be required before a prosecution of the crime of aggression could proceed.38 According to observers of the Special Working Group, there has been some movement toward a shared understanding of the proper role of the Security Council. First, most participants now recognize that in defining the crime of aggression for the purposes of the ICC, the ICC cannot effectively change the existing powers of the Security Council under the UN Charter. That means that even if the ICC is empowered to find persons guilty of aggression without any prior act by the Security Council, the Council will retain its existing powers, and so may have already found that a particular use of force was an act of aggression before the ICC makes a determination about an individual’s guilt. Second, the negotiators recognize that such a determination by the Security Council cannot by itself be seen as prejudicial to an individual’s case; the court would have to make an independent judgment about whether or not a particular act was criminal in terms of the court’s own rules of procedure and evidence. So what can be gained by viewing the Security Council as a proper authority for authorizing a just war from an international criminal law perspective? While the Security Council need not be viewed as the only arbiter of what should count as a “legitimate authority” with the right to fight a just war, it clearly does have the moral authority to grant such legitimate authority under existing international law. Indeed, there is considerable evidence that states are often willing to pay a large price to secure the endorsement of the Security Council when they engage in the use of force. Even further, many powers, including India, Australia, Japan, and Germany, restrict their contributions to military interventions if there is no Security Council authorization of the mission.39 Such authorizations should be understood as being bounded in time and limited to achieving

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the specific ends laid out by the Security Council given the circumstances under which the initial authorizing resolution is passed. If the Security Council is accepted as creating proper authority in this sense, individuals who stand accused of aggression should be able to insist on their own innocence if they acted in a way that was clearly authorized by the Security Council. In other words, if any government or military leaders can affirmatively demonstrate that their use of force was undertaken with the authorization of the UN Security Council, such a person would clearly meet the criteria for having acted with proper authority and the Security Council’s authorization would go a long way toward demonstrating the individuals acted for a just cause as well if they could affirmatively demonstrate that their use of force was in furtherance of a legitimate Chapter VII Security Council resolution. There are several advantages to this approach. One important one is that it would allow the Security Council to remain primarily focused on its political task of addressing any threats to international peace and security, rather than requiring the Security Council itself to take on quasijudicial functions of determining the guilt or innocence of particular individuals. Second, it would encourage the leaders of any state which intends to engage in a use of force to seek out authorization by the Security Council in advance, since by successfully doing so, such persons would dramatically lessen the likelihood of their being prosecuted for the crime of aggression. It would also create pressure on the Security Council itself to authorize the use of force when it is really desirable that such military actions take place, as without such authorization, reputable states will be increasingly unwilling to act. Could the ICC itself, or other courts tasked with enforcing international law, be viewed as “legitimate authorities” for determining whether or not a war should be fought? Actually, that seems to me an unprofitable line to take. Courts are better viewed as independent arbiters after a conflict has been waged, irrespective of whether or not the war was begun and fought justly. The “legitimate authority” issue in the just war tradition refers to people actually doing the fighting, and we would not want to think of courts as being war-making authorities. Other Just War Criteria as Part of a Defense against Charges of Aggression

What about the just war criteria of right intention and a reasonable chance of success, proportionality of ends, and last resort? Should these issues also be included as requirement for asserting a just war defense against a charge of aggression? Could these issues be raised and adjudicated in a court of

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law? The question of intention is difficult to establish empirically.40 Since we contemplate these criteria as necessary for an affirmative defense, not as criteria for establishing the defendant’s guilt in the first place, we can assume the burden of proof has in effect shifted to the defendant. In such a situation, the defendant could produce witnesses or documents showing the moral intent of the military action undertaken, but then the prosecutor would be free to rebut with evidence that suggested other motives also came into play. This issue should not be viewed as determinative, but it would provide a moral way for a defendant to assert that his use of force was justified, and therefore ought not be treated as criminal. Similarly, if the defendant could show that the military planning had analyzed that the military action had a reasonable chance of success, and that the war fighting would likely lead to more good then to harm at the time the war was begun, this would help to establish the moral nature of the war initiation. The value of inserting these criteria into a formal legal document, like the ICC’s elements of crimes, would be to ensure that policy makers give full consideration to these issues long raised in the just war tradition. The question of whether or not force was employed as a last resort is something that might be relatively straightforward to determine in a court of law after the fact. If persons accused of aggression can demonstrate that they exhausted diplomatic channels, and made every effort to resolve their grievance without a resort to force, given the time pressures of imminent or ongoing harm being done by the targets of the alleged aggressions, then this would be strong evidence that they should not be found guilty of aggression. Of course, acting as a last resort would only help to establish an individuals innocence of aggression if it could also be shown that they acted with a just cause and right authority, at a minimum. Conclusions In the forgoing, I have briefly tried to outline what the implications would be of establishing a “just war defense” against a criminal accusation of aggression before an international tribunal. Of course, in the just war tradition, a conflict has to meet all six criteria before it can be considered a just war. Because what is contemplated here is a situation where a defendant would be trying to prove their innocence after a presumption of guilt, it might be appropriate to relax the requirement that all six criteria need to be definitively established. Instead, a defendant who could prove they acted for a just cause, with proper authority, with careful consideration of the proportional effects of their actions, and as a last resort ought to be found not guilty of the international law crime of aggression. Whether or not a person acted with right intention, and a

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reasonable chance of success are not issues that a court will be able to establish conclusively, but they could be considered on a preponderance of the evidence-type basis. The more evidence there is that a person acted with right intention and a reasonable consideration of their likely success, the more their guilt on a charge of aggression could be considered mitigated. But this would only be true if they affirmatively demonstrated they acted for a just cause, with right authority, consideration of proportionality, and as a last resort. I argue that if efforts were made to codify such a defense against the charge of aggression, it might make it more palatable to states to allow effective ICC jurisdiction over that crime. It also would have desirable effects in focusing the leaders of states on the moral issues involved when they contemplate the use of force. International criminal law judges will now have an after-the-fact role in determining whether or not particular uses of force qualify as “just wars.” As such, judges and prosecutors will now act as a new sort of “non-state actor” in just war debates. We should indeed expect that the well-reasoned decisions of such judges will carry an unusual weight in the ethical discourse about just and unjust wars. However, their word will not be the last word, and observers and subsequent commentators will have to make judgments about the ethical implications of particular decisions, as well as of the ethical implications of the entire institution of international criminal law as it functions in practice. Such judges will not be the only participants, or even the only recognized authorities engaged in making such determinations. Indeed, the Security Council, and the leaders of governments and militaries that consider engaging in such military actions will continue to need to participate in the dialog about the practical application of just war principles. Still, the introduction of after-the-fact, third-party dispute resolution, on the grounds of international law (hopefully in a way that is consistent with just war theory), will introduce some fundamentally new elements into the just war dialogue.

Notes 1. Larry May, War Crimes and Just War (Cambridge, UK: Cambridge University Press, 2006). 2. Michael Walzer, Arguing about War (New Haven, CT: Yale University Press, 2004). 3. The recent book by Larry May, War Crimes and Just War, is an important exception. May engages in a philosophical project to lay out the moral and normative justifications of war crimes prosecutions, particularly international war crimes prosecutions. In so doing, he draws out the interplay of

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influences between writers in the just war tradition and modern elements of international criminal law. P. C. Jessup, “The Crime of Aggression and the Future of International Law,” Political Science Quarterly 62 (1) (1947): 4. For example, see the discussion of the prevailing definition of aggression under customary international law by Meron, who argues that the Nuremberg precedent has had the most influence on actual state practice: Theodor Meron, “Defining Aggression for the International Criminal Court,” Suffolk Transnational Law Review 25 (1) (2001): 1–15. Meron dismisses the 1974 UN General Assembly resolution defining aggression as not indicative of customary international law, but it too makes clear that only states (and presumably not non-state actors) can commit aggression. Resolution on the Definition of Aggression, GA Res 3314 (XXIX), 14 December 1974, Annex (Hereafter “Definition of Aggression”). For a discussion of various pacifist critiques of just war theory, see Brian Orend, Michael Walzer on War and Justice (Cardiff: University of Wales Press, 2000). See also Kennan Ferguson, “Three Ways of Spilling Blood,” in François Debrix, ed., Language, Agency and Politics in a Constructed World (Armonk, NY: ME Sharpe, 2003), 87–98, on the use of linguistic claims about intentional, deliberate, and purposeful acts in justifying war. Ferguson notes that the just war tradition, international law, human rights morality, and religiously based natural law claims are all used to provide justifications for war that make mass violence seem “moral, legal, rational, and necessary” (96). Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books, 1977), 21–33. Even in the ICC arrest warrant for Ahmad Harun, former Minister of State for the Interior of the Government of Sudan, the alleged crimes were carried out by an irregular militia, although, in this case, a state-sponsored one. H. L. A. Hart, “Positivism and the Separation of Law and Morals,” Harvard Law Review 71 (1958): 593–629. Nicholas Rengger, “On the Just War Tradition in the Twenty-First Century,” International Affairs 78 (2) (2002): 355–356. Walzer, Just and Unjust Wars, 107–108. I do not mean to suggest that the just war tradition should be accepted uncritically; only that as a well-established series of propositions on the morality of war, it offers us a starting point for assessing the morality of contemporary international efforts to criminalize some aspects of war fighting. Alternatively, of course, one could take the view that the moral premises of the just war tradition are themselves unjust or immoral. See for instance, Anthony Burke, “Just War or Ethical Peace? Moral Discourses of Strategic Violence after 9/11,” International Affairs 80 (2) (2004): 329–353. There is, as I have suggested elsewhere, growing evidence that this is already the case, from high-level discussions with the British government

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19. 20. 21. 22. 23. 24. 25. 26. 27. 28.

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prior to the 2003 invasion, and from other cases as well. See Michael J. Struett, The Politics of Constructing the International Criminal Court: NGOs, Discourse, and Agency (New York: Palgrave Macmillan, 2008), 180–182. It is important to point out that this legal exposure for the highest political leaders exists even if it continues to be the case that there are no effective trials for the crime of aggression, because they could equally be held accountable for the way in which they carry out war or acts of mass political violence, putting them on the hook for jus in bello crimes. Consider the recent examples of Slobodan Milosevic, Charles Taylor, Saddam Hussein, and Jean Kambanda. Walzer, Arguing about War, 12. Walzer, for instance, thought of the right to be free from aggression as belonging to states, and the duty to refrain from it as belonging to states as well, though he acknowledged these rights were derived ultimately from the rights and duties of individual citizens; Walzer, Just and Unjust Wars, 51–53. Mervyn Frost, “Constitutive Theory and Moral Accountability: Individuals, Institutions, and Dispersed Practices,” in Toni Erskine, ed., Can Institutions Have Responsibilities: Collective Moral Agency and International Relations (New York: Palgrave Macmillan, 2003), 84–99. Walzer, Just and Unjust Wars, 44. Stephen C. Neff, War and the Law of Nations: A General History (Cambridge, UK: Cambridge University Press, 2005). Walzer, Just and Unjust Wars, 61, emphasis added. Ibid., 61. Ibid., 62–63, italics in original. Michael O’Donovan, “Criminalizing War: Toward a Justifiable Crime of Aggression,” Boston College International and Comparative Law Review 30 (2007): 507–524. Cited in Jordan J. Paust, International Criminal Law: Cases and Materials (Durham, NC: Carolina Academic Press, 2000), 774. United Nations General Assembly, Definition of Aggression, Articles 1 and 3. Coalition for the International Criminal Court, CICC Background Paper on the Crime of Aggression, ASP 5, Resumed Session, 29 January – 1 February 2007 (New York, 2007). For a summary of the 2007 informal discussions being held by the ICC’s Special Working Group on the Crime of Aggression, see International Criminal Court – Assembly of State Parties, “Informal Inter-sessional Meeting of the Special Working Group on the Crime of Aggression, held at the Liechtenstein Institute on Self-Determination, Woodrow Wilson School, Princeton University, United States, 11–14 June 2007” Doc. # ICC-ASP/6/SWGCA/INF.1, pp. 1–39, 27 July 2007. United Nations General Assembly, Definition of Aggression, Article 1.

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30. George Weigel, “The Development of Just War Thinking in the Post – Cold War World: An American Perspective,” in Charles Reed and David Ryall, eds, The Price of Peace: Just War in the Twenty-First Century (Cambridge, UK: Cambridge University Press, 2007), 27. 31. See for instance, International Commission on Intervention and State Sovereignty, The Responsibility to Protect (Ottawa, ON: International Development Research Centre, 2001). 32. Walzer, Just and Unjust Wars, 82–85. 33. Ibid., 107. 34. See for instance, several of the contributions to J. L. Holzgrefe and Robert O. Keohane, eds, Humanitarian Intervention: Ethical, Legal, and Political Dilemmas (Cambridge, UK: Cambridge University Press, 2003). 35. Weigel, “The Development of Just War Thinking,” 28–29. 36. The debate about defining the crime of aggression has focused in part on the Security Council role for decades, and while discussion in the last few years has clarified some of the issues, considerable divergence of opinion about the relationship between the Security Council and an ICC trial on the crime of aggression remains. Coalition for the International Criminal Court, CICC Background Paper on the Crime of Aggression, ASP 5, Resumed Session, 29 January – 1 February 2007, 6. See also International Criminal Court – Assembly of State Parties, “Informal Inter-sessional Meeting of the Special Working Group on the Crime of Aggression,” pp. 5–7, 11–12, and 18–20. 37. Report of the CICC Team on Aggression, “Informal Inter-sessional Meeting of the Special Working Group on the Crime of Aggression held at the Liechtenstein Institute on Self-Determination, Woodrow Wilson School, Princeton University, United States, 11–14 June 2007,” published by the Coalition for the International Criminal Court, November 2007, 60p. Available at http://www.iccnow.org/documents/CICC_Princeton_Team_ Report_2007.pdf, Downloaded on 3 September 2007, p. 9. 38. Troy Lavers, “(Pre)Determining the Crime of Aggression: Has the Time Come to Allow the International Criminal Court Its Freedom?,” Albany Law Review 71 (2008): 302–303. 39. Erik Voeten, “The Political Origins of the UN Security Council’s Ability to Legitimize the Use of Force,” International Organization 59 (2005): 532. 40. Indeed, prosecutors at international courts have found it very difficult to demonstrate the mental intentionality element of the crime of genocide, as in order to be guilty individuals must intend to destroy a group in whole or part. See William Schabas, Genocide in International Law: The Crime of Crimes (Cambridge, UK: Cambridge University Press, 2000). But for the opposing view that proving mental intent is not essential to a genocide charge see Andrew T. Cayley, “The Prosecutor’s Strategy in Seeking the Arrest of Sudanese President Al Bashir on Charges of Genocide,” Journal of International Criminal Justice 6 (5) (2008): 829–840.

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CHAPTER

6

Private Military Companies, Just War, and Humanitarian Intervention1 Eric A. Heinze

The practice of humanitarian military intervention has been a component of the just war tradition for centuries, though it has allegedly acquired increased legitimacy since the end of the cold war. Within the past decade or so, NATO’s campaign against the Federal Republic of Yugoslavia in 1999 over the ethnic cleansing of Kosovar Albanians has spurred perhaps the most systematic and sustained scholarly discussion of this general topic. Until recently, however, scholarly treatments of this morally, legally, and politically controversial topic have mainly dealt with the conditions under which humanitarian intervention would be morally desirable, as well as when, if ever, it would be permissible under international law.2 An unspoken assumption of much of this literature is that some actor would be willing and able to undertake this operationally and politically demanding task when and where it was needed.3 However, even during the 1990s—the supposed heyday of the legitimacy of humanitarian intervention—numerous cases of gross human rights violations were allowed to occur with little meaningful response by the international community. Many of these cases have been considered by scholars to constitute moral, and even legal, grounds for armed intervention to stop such suffering. The 1994 genocide in Rwanda is perhaps the most dramatic example of the consequences of inaction in the face of such blatant massacre. While the questions of when intervention is morally and legally

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permissible still remain contested, perhaps the most pressing concern today in the discourse on humanitarian intervention is whose responsibility is it to undertake these military missions. More precisely, how does one address the supposed reality that those states who are the most capable interveners are not always or frequently willing to actually intervene, lest doing so fulfills some other more compelling national security imperative? It seems that given international realities today, states have little to gain and much to lose by deploying their militaries to save strangers in other countries. This concern is even more pronounced given the fact that the world’s most militarily capable actor, the United States, is tied down in protracted counterinsurgencies in Iraq and Afghanistan. It has therefore become almost commonplace for advocates of humanitarian intervention to argue that the most tragic victims of the U.S. preoccupation with the “war on terror” have been the people of Darfur, Sudan, who have suffered immensely at the hands of the Sudanese government and the Janjaweed militias. As former U.S. Secretary of State Madeleine Albright put it, “many of the world’s necessary interventions in the decade before the invasion [of Iraq] would seem impossible in today’s climate.”4 That the international community has failed to live up to its promise of “never again” because its members cannot muster the political will to decisively intervene to stop these killings is therefore a gross understatement. Yet it is now well known that the war on terror and the stretching of especially U.S. military resources have been accompanied by an increased reliance on the private sector to provide a host of services in support of military efforts, particularly in Iraq. So-called “private military contractors” (PMCs) are not new features of armed conflict, as civilian supply contractors have played an important role in American military operations since the nation’s founding. What is new, however, is the proliferation of these companies, the degree of states’ reliance on them, as well as the range of services they now offer and undertake, which include not only support services like food preparation, laundry, supply transport, training, and logistics, but also actual military services such as personnel and site security and even actual combat.5 Indeed, of the 100,000 contractors operating in Iraq alone, some 30,000 provide some form of armed military services.6 The role of PMCs in Iraq has been particularly controversial, yet with a shortage of resources to undertake quasi-military activities like peacekeeping and post-conflict stabilization, as early as the 1990s high-profile personalities like Kofi Annan countenanced the hiring of such firms to assist in UN peace operations.7 Thus, predictably, in the context of the lack of political will by states, there is now a burgeoning debate about

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whether PMCs might possibly help fill this void by assisting in—or even themselves undertaking—humanitarian intervention in places like Darfur.8 It nevertheless seems to be the case that the advantage PMCs pose for overcoming the lack of political will by states to undertake humanitarian intervention is precisely their danger: They reduce the political and material costs of justifying and going to war, therefore making the resort to force in general easier to contemplate. Such a reality sits uneasy with the just war tradition, a central component of which is to provide moral bases for limiting (though not eliminating) the occurrence of war. In this sense, the use of PMCs for specifically humanitarian military intervention presents a unique set of moral circumstances that challenge important principles of the just war tradition. The purpose of this chapter is to examine the ethical dilemmas inherent in PMCs acting as agents of humanitarian intervention, under the assumption that states today largely lack political will because of either the lack of resources or the absence of a compelling interest to incur the risks involved in military intervention. I begin by arguing that humanitarian intervention presents a unique dilemma when it comes to the use of PMCs in armed conflict, potentially making their use more acceptable than for other causus belli. I then apply what I take to be the most relevant just war principles concerning this unique ethical dilemma: “right motive” and “legitimate authority.” I argue that the guidance provided by these criteria under conventional jus ad bellum thinking would mainly serve to prohibit the use of PMCs, but that the unique problem of humanitarian intervention leaves room for their use. I ultimately suggest that PMCs can be morally acceptable agents of humanitarian intervention under certain conditions, and that the best option for their use in overcoming state reluctance to intervene is for the UN Security Council to contract with PMCs to undertake these military operations. While the concerns raised in terms of the dubious motives and uncertain authority of PMCs are indeed morally relevant, I argue that such concerns can be outweighed by the urgency and severity of the humanitarian crisis at hand. Humanitarian Intervention, PMCs, and the Agency Dilemma Before beginning, it is important to define concepts and lay out certain assumptions in the argument. First, I define humanitarian intervention as “the use of military force by actors whose purpose is to halt or avert large-scale and egregious human suffering or abuse.” While the concern of this chapter is that of PMCs potentially being used to guard and protect vulnerable populations in a defensive capacity, I proceed under the

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assumption that PMCs (or any agent of humanitarian intervention, for that matter) will actually engage in more offensive military operations against the tormenters who bring about extreme suffering of innocent people. In other words, humanitarian intervention as I define it goes beyond traditional peacekeeping and entails broader rules of engagement that include more proactive military operations—the so-called “tip of the spear,” to use P.W. Singer’s apt terminology.9 While prudence may dictate that any military effort to alleviate human suffering be deployed initially and primarily to defend those vulnerable to abuse, any agent considering doing so must be prepared to actively participate in hostilities and not just act in a defensive or deterrent capacity, as is normally the case with traditional peacekeeping. This does not mean that offensive force will always be required, but if it is ruled out at the beginning of an attempt to rescue an imperiled population, then the intervening agent may find itself unprepared do what it takes to achieve the objective of saving lives when realities change on the ground in such a way that might require such extreme measures. I thus assume that the PMCs under consideration for this task will be military provider firms whose personnel would be actively engaging in hostilities. I also proceed under the assumption that in certain circumstances, active participation in military hostilities can indeed be morally permissible (and even desirable) to rescue imperiled and vulnerable populations. In other words, I assume humanitarian intervention to be a “just cause” in very extreme situations of human suffering.10 Thus, if we assume that the exceptional measure of armed conflict can be a morally permissible remedy to halt or avert such extreme abuses, and that states will not always (or frequently) be willing to do so, then the debate over humanitarian intervention is at an impasse that is not easily overcome. I refer to this problem as the “agency dilemma,” which is simply another way of asking: who should intervene, why do they merit this task, and what is to be done when there is no capable actor willing to do so? This dilemma arises for a number of reasons having to do with the fact that there is not an institution that is widely accepted as the legitimate agent of humanitarian intervention.11 Some might argue that the United Nations (UN) is the most appropriate agent, but the UN does not really behave as an agent in such contexts as much as it acts as a framework. In the practice of the UN, a humanitarian intervention as understood here would require a Chapter VII enforcement operation, which would entail approval by the Security Council—a body made up of 15 states that each has their own particular interests, five of whom possess veto power. More importantly, when such operations are authorized, it has always been state militaries that have carried them out in the name of

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the UN, as the provision found in Article 43 of the UN Charter calling for UN command over state-donated military forces never came to fruition. Thus, granting this duty to the UN—or any other international organization, for that matter—is to still require that the material burden be borne by one or more states, with the added difficulty of getting the members of the Security Council to agree. While I revisit below the possibility for the UN to play a role in organizing humanitarian interventions that utilize PMCs, given that states possess the vast majority of the world’s military resources, successful UN enforcement operations are at present almost entirely predicated on states’ willingness to undertake them, and recent state practice suggests states are not frequently willing to bear such a burden.12 The crux of the agency dilemma is therefore twofold. First, the world’s military resources are finite and there may not always be the resources readily available. Second, those agents who control the majority of these resources may not often be willing to use them for such tasks. The purpose of this chapter is to explore the possibilities of PMCs as a potential solution to the agency dilemma. This chapter approaches this question by examining the ethical considerations surrounding the identity and character of the agent undertaking humanitarian intervention, as well as the overall moral consequences of allowing non-state, corporate entities to wage humanitarian war. That said, it is important to understand the nature of the actor at issue and distinguish PMCs from their more insidious cousin—mercenaries. There are, of course, many similarities, most notably that both provide military services for financial gain. While this is not the place for a longish digression on the history and evolution of mercenarism and the privatization of military force,13 suffice it to say that there are important differences. For instance, unlike mercenaries, PMCs have a clear corporate structure with a board of directors and shareholders, trade openly in the marketplace, offer a broader variety of services, and are legal entities that are bound to their employers by contracts, and, at times, their state of incorporation.14 While some individual employees of PMCs might meet the definition of a mercenary under international law,15 therefore engaging in unlawful activity, that is not the concern of this chapter. I thus adopt Simon Chesterman and Chia Lehnardt’s definition of PMCs as “firms providing services outside their home states with the potential for the use of lethal force, as well as training and advice to militaries that substantially affects their war-fighting capacities.”16 Again, however, the focus of this chapter is on military provider firms that would actually undertake combat operations. The ethical problems and possibilities for PMCs in contemporary armed conflict are becoming more well known, yet their use as agents of

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humanitarian intervention alters the ethical calculus somewhat. For example, it is common in the growing literature on PMCs for scholars to raise concerns about the degree to which states contracting PMCs to wage war on their behalf are engaging in what Martin Shaw has called “risk transfer warfare.”17 Especially in today’s casualty-averse Western democracies, war must entail minimal risk to troops, must be discreet, and therefore minimize the electoral risks to politicians. As Michael Walzer has put it, “using private soldiers makes policy invisible and so reduces (or eliminates entirely) its political costs.”18 A well-known instance of such risk transfer warfare took place during the Balkan wars in 1994–1995, when the Croatian army had been repeatedly routed by the superior Serb forces and sent into headlong retreat. While the Clinton administration wanted to assist the Croatian army, doing so with U.S. military assets would have violated a UN arms embargo and been a particularly tough sell to the U.S. Congress, thus entailing substantial political transaction costs. Instead, the U.S. administration referred Croatia to the Virginia-based PMC, Military Professional Resources Incorporated (MPRI), a military consulting firm that was allowed by the United States to help train the Croatian forces, who subsequently drove the Serbs out of their territory. While the details of MPRI’s involvement are disputed, there has been speculation that MPRI did more than just train the Croat forces, possibly taking part in hostilities themselves.19 Either way, a private contract between the Croatian government and MPRI allowed U.S. military expertise to flow to Croatia without direct U.S. involvement, therefore circumventing both the UN embargo as well as Congressional approval. There is thus a strong incentive for politicians to “outsource” war in such situations, since it allows them to bypass many of its political costs—not the least of which is the public criticism when men and women of the national armed forces return in body bags. PMCs are thus potentially extremely morally problematic when used in this way, because it makes it easier for politicians to countenance war (therefore possibly increasing its frequency), undermines parliamentary oversight of armed conflict and democratic control of armed forces, and allows governments to evade responsibility and accountability if things go wrong. Regardless of what one thinks of the desirability of U.S. policy during this particular event, that PMCs provide a convenient way to pursue foreign policy ends without the appearance of state involvement is clearly morally problematic. In the context of humanitarian intervention, however, the movement of such decisions away from the whims of public opinion could actually be seen to be desirable. According to Theodore Lowi, avoiding public debate over every deployment of military assets allows elected officials to approach such situations more “rationally,”

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without undue influence from the whims of public opinion.20 Consider the tragedy in Rwanda in 1994, when members of the international community clearly lacked the political will to intervene to stop the genocide. Many observers now retrospectively agree that such an intervention would have been morally acceptable and desirable.21 There is now much research suggesting that after the botched arrest attempt by U.S. forces in Somalia in 1993, in which 19 American servicemen lost their lives, it was the potential political and electoral costs of “yet another” U.S. military intervention in Africa that led to the Clinton administration’s reluctance during that tragedy.22 As I have argued elsewhere, “no public official wanted to again explain why American soldiers were dying in faraway Africa, where the United States had no compelling security interest.”23 Yet, lessening the political costs of intervening by countenancing an intervention without the appearance of state involvement, the danger of combat casualties, and all at a reasonable cost, would seemingly have served a higher moral purpose, at least in this particular case. Again, an important aspect of the agency dilemma when it comes to the use of PMCs is that their advantage in helping overcome the political barriers to humanitarian intervention when it would otherwise be morally desirable is precisely their danger, as in other contexts, the availability of PMCs can encourage military adventurism by disrupting the Clausewitzean trinity between the government, military, and the people.24 On the other hand, disrupting the Clausewitzean trinity by using PMCs can potentially be an ethically desirable thing, at least when it comes to humanitarian intervention. How can the just war tradition help us resolve this ethical dilemma? I now turn attention to how the just war principles of “right intention” and “proper authority” address this unique dilemma. Right Intention: Solidarity with Victims and Profit Motive In the context of right intention, one way in which the problem of humanitarian intervention slightly alters the ethical calculus of using PMCs has to do with the objection that PMCs are morally problematic because the private warrior is not motivated by a close association to the population on whose behalf he is fighting. As C.A.J. Coady argues, “someone who is not a citizen of the state being defended against attack may be presumed unlikely to have the sort of solidarity with and stake in the well-being of the community under threat that would provide appropriate motive for killing on its behalf.”25 For Coady, organized violence that is centered on strong group identification is somehow more morally

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acceptable than that which is not. This would not only rule out the use of PMCs in general—to the extent that they have different citizenship than their employers and those who they are rescuing—but would also completely rule out humanitarian intervention, whether it is undertaken by a state military or a PMC. Coady’s argument—which apparently flows from an assumption that self-defense is the only just cause for war—is nevertheless morally suspect in that it would permit war by a tyrannical state in self-defense, but rule out a humanitarian intervention (by anyone) to rescue an imperiled population from imminent massacre (insofar as humanitarian intervention entails rescuing people who are of a different citizenship and nationality than one’s own). While perhaps this argument is more about the justice of certain causus belli than it is the moral appropriateness of certain agents of war, it is far from clear that such strong group identification would be morally better. Not only does it rule out humanitarian intervention, one can just as plausibly argue that fighting on the basis of national pride or group identification is more dangerous, in that it may lead to dehumanization of the enemy and violating the rules of jus in bello.26 Thus, this particular objection to PMCs on the basis of the alleged motives of the interveners, when applied in the context of humanitarian intervention, conflicts with the view that humanitarian intervention can ever be a just cause. Perhaps the most common objection to PMCs concerning the issue of motive is that PMCs violate the right intention principle because they are motivated by private financial gain. The principle of right intention essentially requires that the agent undertaking war must be motivated by the just cause—that is, alleviating human suffering—and not some ulterior motive such as financial gain, bloodlust, territorial aggrandizement, or revenge. If we permit agents motivated by financial gain to undertake armed conflict, this would potentially create a situation where the desire for profit would lead PMCs create a market for force where one did not exist before, thus increasing the frequency of armed conflict, a development that is anathema to just war thinking, which seeks to limit the frequency and severity of war. As Herbert Wulf put it, “[c]ontractors seem to create their own demand or at least have influence on shaping the demand for security services when security is purchased commercially.”27 There are thus persuasive moral reasons why one should want to prohibit profit-driven agents from waging war. There a number of replies to this objection to PMCs. First, epistemic problems abound in determining motives. As Tony Lynch and A.J. Walsh point out regarding mercenaries, there is no guarantee that they will always be motivated by financial gain,28 even though this seems

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intuitive regarding PMCs, given their corporate structure and raison d’être of turning a profit for their shareholders. Furthermore, if we focus the analysis on the motives of the individual soldier/contractor, as opposed to the state/corporation, this objection would also apply to national militaries, which tend to promote themselves to potential recruits as a “career option.”29 While the right intention principle is typically applied to decision makers and not individual soldiers, the point remains that there will probably always be a variety of reasons on which the decision to go to war is based. In the context of humanitarian intervention, the influential report of the International Commission on Intervention and State Sovereignty (ICISS), The Responsibility to Protect, admits that requiring purity of motive on the part of the intervener is too stringent a criterion, requiring instead that the humanitarian concerns be the primary, but not exclusive, motive of the intervener.30 But even this ostensibly presents a problem for the use of PMCs, which, for the moment, I shall assume are motivated primarily by financial gain at both the individual and institutional level. It seems that when states go to war—even ostensibly for humanitarian purposes—there are always other considerations at hand. For instance, during the 1999 United States – led NATO intervention during the Kosovo crisis, reports indicate a variety of reasons for the decision to resort to force, including not only humanitarian concerns, but also concerns about refugee flows disrupting regional stability, preventing the war from spilling over into neighboring states, saving the reputation and demonstrating the resolve of NATO, and even the desire on the part of the United States to “test” some of its recently developed high-tech air assets.31 The point is that rarely, if ever, will states go to war purely for humanitarian concerns, and if there is no other compelling (selfinterested) reason in addition to humanitarianism for a state to deploy it military assets, it is not likely to do so, as evidenced by the indifference over Rwanda in 1994 and Darfur today. Thus again, the agency dilemma for humanitarian intervention presents itself: How does one motivate actors to take military action where there is essentially nothing in it for them? Here again is where the cause of humanitarian intervention slightly alters the ethical calculus on the moral appropriateness of PMCs as agents of intervention. The problem with warfare in general is that states tend to resort to it too frequently and for the wrong reasons, but the problem in humanitarian intervention is that there are few actors willing to incur war’s high costs unless there is something in it for them, which is, of course, the logic behind the ICISS’s allowance of mixed motives. Consider what both a state and a PMC would stand to gain by undertaking

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humanitarian intervention. For the PMC the answer is clear: financial gain, and if the job is done efficiently and successfully, the promise of future lucrative contracts. Given what international relations theory tells us about what motivates states, governments will likewise not be inclined to incur the political and financial costs of war unless it is also fundamentally self-serving. If the just cause for a war is a humanitarian one, there are not always or often additional compelling reasons to take the risk, thus leaving the likes of Rwandans and Darfurians to their fate. While the perhaps dubious motives of the United States and NATO during the Kosovo war were compelling enough to induce intervention in that crisis, the ulterior motives during other ostensible humanitarian interventions have not been so benign. In a study on humanitarian intervention in international law, Simon Chesterman examined 11 interventions by states commonly classified as “humanitarian” and found little evidence of interveners being substantially motivated by humanitarian concerns.32 Notably, India did invoke humanitarian claims for its intervention in East Pakistan in 1971, but even these genuine concerns commingled with its primary concern of self-defense against “refugee aggression.”33 The other interventions also had a mix of motives, and while a few did result in positive humanitarian outcomes, they were nevertheless undertaken primarily for self-serving reasons. Vietnam’s 1979 intervention in Cambodia, for instance—which overthrew Pol Pot’s murderous Khmer Rouge regime and had a desirable humanitarian outcome—was almost certainly an attempt at regional hegemony, wherein Vietnam only criticized Pol Pot’s human rights violations when it became politically expedient to do so.34 More recently, of course, there is still a great deal of uncertainty as to what motivated the U.S. invasion of Iraq in 2003, which has arguably yet to achieve a positive humanitarian outcome. Was it “preemptive” self-defense, an attempt to gain a foothold in the Middle East, or some sort of liberal intervention?35 The point is that the ulterior (sometimes primary) motives of states can be equally or more “insidious” than the profit motives of a PMC, though in the case of the latter at least we are reasonably certain of the “real” motive behind the desire to employ deadly force. The same cannot be said for states, which go to war for a variety of reasons that are not always clear and rarely actually intend to alleviate human suffering—even if that is sometimes the incidental outcome. This raises the question of whether the PMCs would actually be preferable agents of humanitarian intervention compared to states. States will probably not intervene militarily for purely humanitarian reasons, and one can never be sure of the nature of their ulterior motives for doing

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so. And if no compelling motive is present, then no intervention will be forthcoming. With PMCs, there will always be a motive to intervene— that of financial gain—even if there is not always willingness to do so. Both cases, however, seem to prima facie violate the principle of right intention, which requires that the agents be motivated by the just cause. Yet there is a crucial distinction that perhaps militates in favor of PMCs for this task—the distinction between motive and intent.36 Regardless of what motivated an agent to resort to war, one can reasonably conclude that its intent in fighting is to prevail militarily. To use a common analogy, if I dive into the water to rescue a person in danger of drowning, I have the intent of saving that person, though I might be motivated by a variety of factors. Perhaps I care deeply about that person, or perhaps that person owes me money that I will not receive if she or he drowns. Thus, the underlying reasons for my action in this case—my motive, which may vary—seem less important than my intention to save the imperiled swimmer. As such, the underlying motive of a potential agent of intervention—whether it is profit or some other reason—matters less than its intent to achieve the military objective. Of course, it is well known that one’s underlying motive for acting can affect how one behaves, even if the intention is objectively just (e.g., removing a brutal tyrant from power). For example, some have advanced the above distinction between motive and intent to justify the 2003 Iraq invasion as a humanitarian intervention.37 That is, the United States was perhaps not motivated by humanitarian concerns, but it intended to end the tyrannical rule of Saddam Hussein, which, regardless of why the United States wanted to do this, has a certain moral value. Yet the fact that once the United States had vanquished the Iraqi military, forces were apparently sent to guard the Iraqi Oil Ministry and precious oil infrastructure38 —as opposed to defending vulnerable populations or setting up safe havens for those displaced by the war—tells us something very important about U.S. motives, which seem to have affected the means by which the U.S. military was ordered to carry out the regime change. In this case, the dubious motives of the U.S. intervention affected the degree to which its actions were consistent with trying to achieve a humanitarian outcome. Since it was not (primarily) motivated by humanitarian concerns, its subsequent actions were not consistent with a true humanitarian intervention, even though removing a brutal tyrant from power has definite humanitarian value. Applying this logic to a PMC, we again have an agent motivated by something besides humanitarian concerns (profit), yet its intent is to prevail militarily, and, depending on exactly what the PMC was contracted

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to do, actually rescue imperiled people. The crucial question is whether or how the profit motive of a PMC affects the manner in which it acts in order to achieve its intent. There are a couple of possible scenarios. First, one might conclude that the profit motive may adversely affect the performance of the PMC, for if it sees a particular crisis as too dangerous or not a profitable venture, it may simply decline the contract, regardless of any “moral imperative.” There is also a concern that once a PMC accepts a contract for a humanitarian intervention, then it may either violate the contract and cut and run if the venture becomes too risky or if unforeseen eventualities arise that render the operation unprofitable. While the market may act as a disincentive for a firm to deviate from or repudiate its contract—as doing so might make potential employers reluctant to award it contracts in the future—there have been instances where PMCs subsequently won lucrative deals after having breached contractual obligations.39 While profit-driven humanitarian intervention does potentially lead to such problems, each of these issues is regularly pointed out about state-based military forces as well. The United States cut and ran out of Somalia in 1994, as did “the UN” (namely, the United States and Belgium) out of Rwanda later that year, as the perceived costs in both crises began to exceed the benefits of staying. And, of course, examples abound of humanitarian crises that states simply perceived as “too risky” to become militarily involved at all. So while employing PMCs as agents of humanitarian intervention may ostensibly violate the just war principle of right intention, if states require some other compelling reason to involve their militaries besides that of humanitarianism, state-based humanitarian interventions likewise violate this principle. The difference is that whereas states may frequently lack a compelling motive to intervene, PMCs will always have profit motive as a reason to get involved, which may be better than no motive at all in those situations that cry out for intervention. Furthermore, while motives do appear to affect how an agent behaves and the outcomes it intends to achieve, a profit motive seems to be more congruent with a humanitarian intent than those factors that motivate states to deploy their military assets, particularly insofar as firms are specifically contracted to rescue imperiled populations. In sum, while the motives of actors do matter in warfare, one must seriously consider the overall moral desirability of ruling out private firms as agents of humanitarian intervention because their primary motive is morally objectionable, particularly when (1) the cause for waging war is a just one, (2) other capable actors are unwilling to intervene, and (3) the intent of the PMC is to rescue the imperiled populations, even though its underlying motive is financial gain.

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Proper Authority: Do PMCs Have the “Right to Fight”? The second principle of the just war tradition relevant to PMCs is that of legitimate authority. Private organizers of violence have existed since before the emergence of the states system, yet even the earliest just war theorists recognized the advantages inherent in war being the exclusive purview of some sort of legitimate authority.40 According to St. Augustine, “[t]he natural order conducive to human peace demands that the power to counsel and declare war belongs to those who hold the supreme authority.”41 Yet what one might call “military entrepreneurs” both predate, and played a key role in the generation of, the institution of state sovereignty.42 As Mark Evans aptly observes, this criterion evolved into its modern manifestation largely because states sought to prohibit and delegitimate the waging of war by “just any group (for example, mercenaries).”43 Such an arrangement is compelling for at least two reasons. As James Turner Johnson observes, only allowing states to wage or otherwise authorize war will restrict the number of agents that may legitimately undertake it, thereby making the international system more peaceful and orderly.44 Second, such an arrangement increases opportunities for democratic control over the use of force and other institutional mechanisms for holding those who authorize it accountable.45 But PMCs do not authorize and undertake missions on their own accord. When PMCs are considered as a cost-effective strategy to achieve certain goals by means of military violence, it is necessarily undertaken on behalf of some other actor (even though the firm does have in interest in achieving this goal for purposes of fulfilling the contract and getting paid). It goes without saying that the corporate structure of PMCs today necessitates that there be some actor with whom to contract—that is to say, to pay the firm for its services. Insofar as the service is to wage war (even for humanitarian purposes), the institutionalization of the “legitimate authority” criterion in contemporary international law requires that the entity giving the contract be state based. Accordingly, a PMC may only undertake humanitarian intervention on behalf of a state (or potentially a state-based intergovernmental organization [IGO]), and therefore may only be said to be operating under “legitimate authority” to the extent that there is a sufficient nexus between the PMC and a state-based authority. This is not to say that other non-state actors could not contract the services of private security firms, such as corporate actors or nongovernmental organizations (NGOs), who may hire them to provide site or personnel security. It is simply to rule out allowing these actors to hire a PMC to engage in proactive military

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operations. Thus, at least ostensibly, it would seem to be morally desirable to limit those agents who may contract with PMCs for purposes of humanitarian intervention to states or state-based IGOs. Granted, this does not take us very far in resolving the problem that the use of PMCs as agents of humanitarian intervention was said to address in the first place—that is, to assuage the material and political burden on states that may be unwilling to intervene because of cost or competing strategic imperatives. However, it is worth examining the precise nature of the nexus that is required between the PMC and contracting state in order for the former to operating under the “legitimate authority” of the latter. International Humanitarian Law and Lawful Combatancy

As suggested above, there are compelling reasons to require that nonstate actors such as PMCs operate under the “legitimate authority” of a state, but perhaps the most important reason is the fact that most states presumably have mechanisms for the internal discipline of those said to be acting on their behalf on the battlefield, and can thus hold them accountable for any unlawful or immoral conduct. If those undertaking hostilities are members of the armed forces of a state, such accountability is generally not problematic, as virtually all state-based professional militaries have internal disciplinary systems as well as the legal mechanisms to hold individual combatants accountable. If those undertaking hostilities are not part of the armed forces of the state—but rather are profit-motivated contractors—then it would seem particularly important to have such accountability mechanisms. Herein lies the logic behind the concept of lawful combatancy, which is essentially that only those individuals who fall within this accountability framework may lawfully participate in combat. Lawful combatancy also contributes to the jus in bello principle of “distinction,” such that opposing forces know who is and is not a legitimate military objective and can be lawfully targeted.46 Under international humanitarian law (IHL), one is either a combatant or a civilian. Combatants are the only ones who may legally participate in hostilities and therefore be lawfully attacked. If they are captured they are entitled to prisoner-of-war (POW) status and cannot be prosecuted for having taken part in hostilities. Civilians, on the other hand, are immune from attack, but are prohibited from participating in hostilities and can be prosecuted if they do so (e.g., for murder). Likewise, if they “actively participate in hostilities,” they become “unprivileged combatants,” lose their protected status and may be lawfully targeted, and are not entitled to POW treatment.47 Thus, the double-edged sword of PMCs begins to

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reemerge, which is that the advantage for states to use them is precisely because they fall outside these accountability mechanisms that are present for members of the armed forces. The example from Iraq shows that states hiring PMCs tend to emphasize that these individuals are civilians, and not members of the armed forces, which allows them to operate in a less regulated environment and to eschew responsibility for their conduct should their activities prove to be legally or morally problematic.48 A fairly recent issue of the International Review of the Red Cross dealt specifically with the status of private contractors under IHL, wherein the question was considered as to what the legal status of such contractors is if they actively engage in hostilities.49 According to these analyses, PMC personnel are prima facie civilians and do not have the right to actively participate in hostilities, although there are two ways in which private contractors could be considered combatants, and therefore legally participate in hostilities. According to Additional Protocol I of the Geneva Conventions, one way would be for PMC personnel to be formally incorporated into the armed forces of a state that is party to the conflict.50 This, of course, would solve many of the problems with regulation of PMC personnel outlined above, but again, this seems at variance with the whole point of outsourcing, which is to devolve to the private sector what was previously the purview of government authorities. Unfortunately, IHL does not outline the steps for formal incorporation of “irregular forces” into a state’s armed forces, so it would be a matter for the domestic laws of different states, although it would presumably require that individual PMC personnel go through that particular state’s set procedures for enlistment or conscription. The other way that PMC personnel could achieve lawful combatant status would be for them to be considered “militias or volunteer corps forming part of such armed forces,” pursuant to Article 4(A)(1) of the Third Geneva Convention.51 But even this route suggests a requirement of some sort of formal affiliation with the armed forces beyond a mere contract (i.e., they must “form part of ” the armed forces), even though such groups might be clearly distinct from a particular branch of a state’s military (e.g., the French Foreign Legion). While these formal requirements for lawful combatancy that designate who or what has the right to fight perhaps seem somewhat legalistic, they exist to ensure that those engaging in combat do not operate beyond the reach of military discipline and legal accountability, which would seem particularly important if considering the use of PMCs for humanitarian intervention. It therefore seems that unless PMCs are incorporated into the armed forces of a state or are otherwise subject to the same regulations as the armed forces of states, they are not lawful combatants and could be individually prosecuted for participating in humanitarian intervention.

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Furthermore, if any individual members of the PMC are not nationals of the state that is party to the conflict, then they may fall under the legal definition of a mercenary and again would not have the right to engage in hostilities and could be prosecuted if they do.52 Insofar as it is desirable to hold PMCs accountable to the legitimate authority of a state, it requires a stronger nexus between the firm and the contracting state than can be provided by a justiciable contract between the two. While a contractual relationship between a PMC and a state is “perhaps sufficient for purposes of state responsibility, it is not sufficient to render an individual contractor part of a state’s armed forces,” which is what must be the case for PMCs to rise to the level of lawful combatants and be held appropriately accountable for their conduct.53 Again, if states are going to be held responsible for the behavior of PMCs and for holding them legally accountable, then this substantially undercuts the advantages that they bring in terms of overcoming the reluctance of states to spearhead humanitarian interventions. Thus, using PMCs as agents of humanitarian intervention—but requiring that they be incorporated into the armed forces of a state for purposes of legal accountability—does little to alleviate the agency dilemma. The United Nations as a PMC Client Having said that, it is interesting to examine the possibilities for a state-based international organization—namely the UN—to contract the services of a PMC for a humanitarian intervention. First of all, it seems fairly clear that if a military provider firm is going to be engaging in hostilities on behalf of the UN, then it would require approval by the Security Council, presumably under its Chapter VII enforcement powers. Current practice of UN Chapter VII enforcement operations requires one or more states to be willing to use their militaries on behalf of the UN when the Security Council authorizes enforcement action. But instead of reverting back to the problem, as outlined above, of states being unwilling to act as the UN’s agent in humanitarian emergencies, the present proposal would be for the Security Council to essentially hire a PMC to do so, possibly under the direction of the Military Staff Committee, the subsidiary body within the Security Council whose role under the UN Charter is “the strategic direction of any armed forces placed at the disposal of the Security Council.”54 This would, in effect, allow the Security Council to have a military force at its disposal to undertake enforcement operations (including humanitarian interventions) without having to rely on states’ willingness to contribute their own forces to do so. This would alleviate to an extent the problem of there not being any state willing to use its own military resources on behalf of the UN, though it would still require action by the Security Council.

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There are at least two problems with this proposal in practice. First, it is unclear at best whether states would embrace the idea of the UN having a significant military force under its command that is independent of the national armed forces of its member-states. Such an arrangement would certainly give the UN more autonomy in implementing its policies without having to rely on states to carry out its will. This could help overcome the agency dilemma to an extent, but the idea of a UN with military capabilities independent of those of its member-states would undoubtedly make at least some states uneasy. The current “sheriff ’s posse” arrangement for enforcement operations is entirely dependent on states’ militaries, thus putting exclusive control over these operations in the hands of those states who have “volunteered” to act as the UN’s agent.55 If such a force were provided by a PMC, then the Security Council could authorize, as well as carry out, humanitarian interventions and not be limited by the (un)willingness of states to act on its behalf. However, given that the provisions of the UN Charter calling for states to make military resources available to the UN on a permanent basis (namely, Article 43) have never been implemented suggests that states prefer that strategic and operational command of military forces remain with states, even when acting on behalf of the UN. Of course, one can always argue that we can never accurately predict exactly how states would respond to such a proposal, even if there is evidence that many would oppose it. Furthermore, it is not the case that the Security Council is a body devoid of control by states, or that the UN Secretary-General would somehow arbitrarily use this military force against member-states for dubious reasons. If a PMC came under the control of the Security Council’s Military Staff Committee (MSC), then it would be under the strategic direction of the defense ministers of the individual members of the Security Council. So it would be less of a “UN force” and more of a collective force that is under the joint strategic control of the states who sit on the Security Council. This would therefore remove a substantial obstacle to Security Council reluctance to authorize enforcement operations—namely, the lack of states willing to use their military on behalf of the UN. At least, with the present proposal, it would be less plausible for states who sit on the Security Council to use the lack of state-based military resources or state unwillingness to donate forces as excuses for not taking action. The second problem with the UN contracting with PMCs for humanitarian intervention is similar to the main problem of states hiring PMCs for this purpose, which is essentially that the personnel of these PMCs would not be formal members of the armed forces of a state, and as such, would seemingly not be subject to the same accountability mechanisms as

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state militaries. At least as present international law and regulations stand, it is not clear whether a PMC contracted by the UN Security Council to undertake a humanitarian intervention in fulfillment of a Chapter VII mandate could be held accountable under international humanitarian law. Thus, the advantage that placing a PMC at the disposal of the UN Security Council presents for overcoming the agency dilemma is potentially undercut by questions concerning the accountability and regulation of such a force. Furthermore, if we assume that these personnel would be actively engaging in hostilities, are they lawfully engaging in armed conflict since they are not members of a state military that is bound by relevant IHL? At least when the Security Council “contracts” with states to use their militaries on its behalf, these are militaries of states that have their own accountability and disciplinary mechanisms and are party to the Geneva Conventions. It is thus not clear what the accountability mechanism would be in such a scenario, since the personnel are not members of the armed forces of a state that is party to the Geneva Conventions, or even if the personnel constituting such a force could be considered lawful combatants. An analysis of past UN practice regarding the applicability of IHL to UN peacekeepers proves to be instructive for locating a regulation regime that could apply to PMCs contracted by the UN. It should first be noted, however, that peacekeeping has traditionally not involved direct participation in hostilities, and since enforcement operations entailing such participation in hostilities have been undertaken on behalf of the UN by states’ militaries (vs UN “blue helmets”), until fairly recently, UN officials have seen little need to recognize the applicability of IHL to specifically UN-commanded forces.56 This changed in the 1990s, however, as UN forces increasingly found themselves caught up in armed exchanges, resulting in two important instruments: the 1994 Convention on the Safety of United Nations and Associated Personnel, and the 1999 Secretary-General’s Bulletin on the Observance by United Nations Forces of International Humanitarian Law.57 The 1994 Convention sought to outlaw and criminalize attacks on UN personnel, and in doing so, implicitly recognized the applicability of IHL to UN peacekeeping operations by classifying peacekeepers as noncombatants with protected status. It remained unclear what would happen to this status if UN peacekeepers actively participated in hostilities, raising the question of whether doing so would render them “unlawful combatants.” The 1999 Secretary-General’s Bulletin provided some clarity in this regard. The bulletin was designed to be the core set of regulations for UN forces during situations of armed conflict by applying the most fundamental principles of the laws and customs of war, the four Geneva

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Conventions, and their Additional Protocols to peace operations conducted under UN command and control.58 According to the text of the bulletin, the rules enshrined therein are applicable to “United Nations forces when in situations of armed conflict they are actively engaged as combatants,” and that the bulletin is “applicable in enforcement actions, or in peacekeeping actions when the use of force is permitted in selfdefence.”59 The instructions in the bulletin do not, however, seem to be applicable to UN-authorized enforcement operations conducted under the command and control of national or regional forces (the aforementioned “sheriff ’s posse” arrangement), in which case the combatants would be bound in their capacity as members of the armed forces of a state under relevant treaty or customary law. While the bulletin is binding on all forces under UN command and control who are actively engaged as combatants, personnel found to have violated its principles would be subject to prosecution by their own states’ courts, or potentially the ICC. The implications of this are manifold. First, pertaining specifically to UN peacekeepers, the bulletin seems to have settled the question posed above concerning whether UN peacekeepers could ever lawfully engage in hostilities, implying that personnel under UN command and control are lawful combatants so long as they are acting within the parameters of their mandate.60 For instance, UN peacekeepers are still noncombatants with protected status equivalent to that of civilians. But if they actively engage in hostilities in fulfillment of their mandate (e.g., in self-defense), then they become lawful combatants with all the legal protections this entails, but may lose their status as protected persons (i.e., immune from attack). Insofar as PMCs would be concerned, there is no reason why this bulletin would not apply to PMC personnel under contract with the UN insofar as they are under the command and control of the UN MSC. As such, employees of a PMC engaging in a humanitarian intervention pursuant of a Chapter VII mandate are not only lawful combatants, but are bound at least by those principles of IHL found in the bulletin, which does not purport to be exhaustive of the rules of IHL.61 A potential problem surfaces, however, when it comes to prosecuting PMC personnel for potential violations of IHL. As stated above, prosecution of accused individuals would be in the courts of that individual’s home state. Thus, while the bulletin is binding on members of UN forces in the same way as are all other instructions issued by the UN Secretary-General, the source of the actual legal obligation, as well as the statutory basis for any criminal prosecution, “lies within the [IHL] provisions incorporated in the respective national laws . . . or in customary international law provisions that are independently binding on them.”62 This raises some potential problems.

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First, the substantive law under which accused personnel are prosecuted may vary substantially depending on the state of nationality of the accused and those aspects of IHL that have been incorporated into that state’s national laws. There is thus no universal standard by which UN forces of different nationalities are held legally accountable. Second, PMC personnel—who in contrast to peacekeepers are not members of the armed forces of a state—may not be bound by those principles of IHL that have only been incorporated into a state’s military law, which typically only applies to members of the armed forces. For example, in the United States, a good portion of the Geneva Conventions has been incorporated into the Uniform Code of Military Justice (UCMJ), which pertains primarily to U.S. military personnel.63 It is also very controversial which parts of the Geneva Conventions are considered to be automatically part of U.S. law (i.e., “self-executing”).64 It is true that portions of IHL have been incorporated into U.S. law via federal statutory law (e.g., the 1996 War Crimes Act), and thus applies to civilians and military personnel alike, regardless of association with the armed forces. The bottom line, however, is that since PMCs are not members of the armed forces, the statutory basis for their prosecution is potentially much narrower than that relevant to members of the military.65 Finally, while UN peacekeepers have indeed flouted the rules of conduct while deployed, the fact that it is the peacekeepers’ home state that has jurisdiction over their activity has led to an environment of impunity, whereby the home state refuses to prosecute or otherwise sweeps such incidents under the rug.66 One can envision a similar problem regarding the home states of PMC personnel that would refuse to prosecute. While the ICC could theoretically obtain jurisdiction if the state of primary jurisdiction is unwilling or unable to prosecute, it would only be able to do so if the act in question constituted genocide, crimes against humanity, or war crimes undertaken in a large-scale and systematic fashion.67 So where does this leave us regarding the “proper authority” of PMCs to engage in armed conflict, specifically humanitarian intervention? PMCs could be said to be operating under proper authority if they are either incorporated into the armed forces of state, or have been contracted by the UN pursuant to a Chapter VII mandate and operate under the command and control of the UN (specifically, the MSC). Insofar as alleviating the agency dilemma is concerned, and assuming that it would be particularly important that PMCs operate under a proper authority, it seems that formal incorporation into the armed forces of state achieves little aside from perhaps some increased cost-effectiveness. That is, if what makes states reluctant to use their own militaries in humanitarian intervention are the political costs of justifying and fighting a war that is

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perhaps not in the strategic interests of the state, then using a PMC for this still incurs many of these costs if the personnel have to be formally incorporated into the armed forces in order to be held properly accountable. But if the UN Security Council were allowed to contract with a PMC to carry out a humanitarian intervention, states would not have to incur the risks and costs of using their own militaries. And while there are still likely to be holes in the accountability framework, PMC personnel would be operating as lawful combatants (again, assuming they are, in fact, actively engaging in hostilities) and subject to at least the core principles of IHL via the 1999 Secretary-General’s Bulletin. Whether PMCs in this arrangement would be held sufficiently accountable to satisfy the “legitimate authority” requirement remains unclear, but it seems that this avenue does hold some promise in this regard. Concluding Observations So what have we learned about the prospects for PMCs to help alleviate the agency dilemma with regard to humanitarian intervention, specifically as this concern pertains to the just war categories of “right intention” and “legitimate authority”? With respect to right intention, it seems clear that PMCs are probably not going to be motivated entirely, or even primarily, by the just cause at hand—that of a desire to alleviate human suffering—but rather will be mainly motivated by profit. However, as argued above, state-based humanitarian interventions also seem to suffer from this problem in that they are motivated by a number of concerns besides humanitarianism, many of which are not knowable or made public by the state undertaking the intervention. At least with PMCs, one can be fairly certain what their motive actually is, which is not true for states. Furthermore, as argued above, there are good reasons to focus on the intent of the intervener rather than solely its motive. It thus seems more important that the agent intend to respond to a just cause (saving innocents), rather than be motivated by a desire to do so. Nevertheless, from the point of view of the “right intention” criterion of the just war tradition, both states and PMCs are problematic agents of humanitarian intervention. From the point of view of the agency dilemma, however, as long as the intent of the agent is to respond to the just cause, a PMC whose motive to intervene is the promise of financial gain could actually be seen to be preferable insofar as state actors lack a compelling motive to act. In other words, if state actors are not sufficiently motivated to intervene, and a PMC motivated by profit is willing and able to intervene and has the intent of achieving the just cause, then the lack of a proper motive can be outweighed by other moral considerations—namely, the need to rescue

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innocent people in the context of a supreme humanitarian emergency. While the motive of the intervener is a morally relevant consideration, it is arguably more morally important in cases of supreme humanitarian emergencies that there is a motivated agent actually willing to intervene, whose intention is to rescue imperiled people, and who is able to do so effectively and consistent with the rules of jus in bello.68 Concerning the issue of proper authority, the idea is for the agent of intervention to operate under the authority of a legal entity that can effectively regulate and hold military personnel accountable for their conduct. Again, this requirement would seem to be particularly important when considering employing a private corporate actor to execute a military operation. The interpretation of IHL offered above suggests that for a PMC to operate under such legitimate authority requires that it either be formally incorporated into the armed forces of a state, or to be contracted directly by a state-based international organization, namely the UN Security Council. The first option succeeds in providing the requisite legal accountability, as the activities in question would be attributed to the contracting state, but would not take us very far in overcoming the reluctance of states to intervene since they would be essentially incurring responsibility for the activities of the PMC. The second option holds more promise in that the intervention would not be associated with one single state, but rather the UN Security Council. The problem here lies with holding the PMC and its personnel accountable under IHL, as they are not members of the armed forces of a state. But given the applicability of IHL to forces operating under UN command pursuant to the 1999 Secretary-General’s Bulletin, it is not the case that PMC personnel would be operating in a legal vacuum, though admittedly such an accountability framework is imperfect, just as it is for UN peacekeepers. If PMCs are to be the humanitarian interventionists of the future, then ideally some sort of comprehensive multilateral convention should be procured to achieve improved regulation of such an inherently risky activity. Realizing the unlikelihood of this happening any time soon, I conclude that PMCs can nevertheless indeed be morally acceptable agents of humanitarian intervention under the circumstances outlined above, and that the best approach for pursuing this would be for the UN Security Council to be the contracting party. Particularly if there is no state actor willing to intervene, the problems associated with the imperfect accountability framework for PMCs and the fact that they are primarily motivated by profit should not be the most decisive factors in those situations when humanitarian intervention would otherwise be morally permissible.

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Finally, there are indeed broader implications of countenancing PMCs to undertake actual combat operations—be it in humanitarian intervention under the auspices of the UN, or by states seeking to advance their own security objectives. Either way, the proposal in this chapter has been for PMCs to act in a “military provider” capacity, in which their personnel would be providing much of the manpower and participating in hostilities as actual combatants. This is, in many ways, a novel proposal in that the vast majority of PMC contracts are in the sectors of military consulting and support services, not actual combat services, and when combat services are contracted, the clients are usually states with weak militaries that face immediate threats.69 I have thus not taken a position on the morality or legitimacy of states using PMCs to advance their own security objectives, which raises a different set of normative concerns than those on which I have focused. There may indeed be persuasive grounds for limiting the degree to which states are allowed to purchase military services commercially.70 However, using PMCs as humanitarian interventionists in the way I have proposed would take place in a much different institutional and moral context, with different force requirements and applicable rules than those relevant to state militaries engaged in national defense. I therefore leave for others to debate the question of whether PMCs should serve alongside state military forces, and conclude only that PMCs do and should have a legitimate role to play in UN-sponsored humanitarian interventions.

Notes 1. I would like to thank James Pattison, Jonathan Havercroft, and Brent Steele for providing helpful comments on earlier drafts of this chapter. 2. See, for example, Fernando Tesón, Humanitarian Intervention: An Inquiry into Law and Morality (Dobbs Ferry, NY: Transnational, 1988); Brian D. Lepard, Rethinking Humanitarian Intervention: A Fresh Legal Approach Based on Fundamental Ethical Principles in International Law and World Religions (University Park, PA: Pennsylvania State University Press, 2002); Simon Chesterman, Just War or Just Peace? Humanitarian Intervention in International Law (Oxford, UK: Oxford University Press, 2003); J.L. Holzgrefe and Robert O. Keohane, eds, Humanitarian Intervention: Ethical, Legal, and Political Dilemmas (Cambridge, UK: Cambridge University Press, 2003); and Terry Nardin and Melissa S. Williams, eds, Humanitarian Intervention (NOMOS 47) (New York: New York University Press, 2006). 3. See International Commission on Intervention and State Sovereignty (ICISS), The Responsibility to Protect (Ottawa, ON: International Development Research Centre, 2001), 47–56.

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4. Madeline K. Albright, “The End of Intervention,” New York Times, 11 June 2008. See also the various columns in the New York Times by Nicholas D. Kristof, perhaps the most vocal advocate for action in Darfur. 5. P.W. Singer, Corporate Warriors: The Rise of the Privatized Military Industry (Ithaca, NY: Cornell University Press, 2003), 40–48. 6. Christian T. Miller, “Private Contractors Outnumber US Troops in Iraq,” Los Angeles Times, 4 July 2007, A1. 7. James Cockayne, “Commercial Security in Humanitarian and Post-conflict Settings: An Exploratory Study,” International Peace Academy, March 2006, 1. 8. Rebecca Ulam Weiner, “As the International Community Dithers over Darfur, Private Military Companies Say They’ve Got What It Takes to Stop the Carnage, If Only Someone Would Hire Them,” Boston Globe, 23 April 2006. 9. Singer, Corporate Warriors, 93. 10. I deal with the precise nature of such human suffering in Eric A. Heinze, Waging Humanitarian War: The Ethics, Law and Politics of Humanitarian Intervention (Albany, NY: State University of New York Press, 2009), Chapter 2. 11. James Pattison, “Legitimacy and Humanitarian Intervention: Who Should Intervene?,” International Journal of Human Rights 23 (3) (2008): 397. 12. This is not to discount the fact that there are presently over 100,000 peacekeepers deployed throughout the world, which is an important indicator of the willingness of the international community to seek peaceful resolutions to conflicts and crises. However, humanitarian intervention as I understand it here is distinct from peacekeeping, far less common, and despite much rhetorical endorsement of a so-called “responsibility to protect,” has not been a routine response to those humanitarian crises in which such intervention would arguably be justified. 13. See Sarah Percy, Mercenaries: The History of a Norm in International Relations (Oxford, UK: Oxford University Press, 2007). 14. Singer, Corporate Warriors, 45–46. 15. On the question of mercenaries under international law, see Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3; International Convention against the Recruitment, Use, Financing, and Training of Mercenaries, 4 December 1989, UN Doc. A/RES/44/34. See also Louise Doswald-Beck, “Private Military Companies under International Humanitarian Law,” in Simon Chesterman and Chia Lehnardt, eds, From Mercenaries to Market: The Rise and Regulation of Private Military Companies (Oxford, UK: Oxford University Press, 2007), 122–123. 16. Simon Chesterman and Chia Lehnardt, “Introduction,” in Chesterman and Lehnardt, eds, From Mercenaries to Market: The Rise and Regulation of Private Military Companies (Oxford, UK: Oxford University Press, 2007), 3.

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17. Martin Shaw, The New Western Way of War (London: Polity, 2005), 71. 18. Michael Walzer, “Mercenary Impulse: Is There an Ethics That Justifies Blackwater?,” The New Republic, 21 March 2008. 19. Deborah D. Avant, The Market for Force: The Consequences of Privatizing Security (Cambridge, UK: Cambridge University Press, 2005), 101–105; Singer, Corporate Warriors, 126. 20. Theodore Lowi, “Making Democracy Safe for the World: On Fighting the Next War,” in G. John Ikenberry, ed., American Foreign Policy: Theoretical Essays (New York: HarperCollins, 1989), 258–292. 21. See especially Samantha Power, A Problem from Hell: America and the Age of Genocide (New York: Harper Perennial, 2002), 329–391; Romeo Dallaire, Shake Hands with the Devil: The Failure of Humanity in Rwanda (New York: Carroll & Graf, 2003). 22. Power, Problem from Hell, 377–380. 23. Eric A. Heinze, “The Rhetoric of Genocide in US Foreign Policy: Rwanda and Darfur Compared,” Political Science Quarterly 122 (3) (2007): 365. 24. Bruce Grant, “US Military Expertise for Sale: Private Military Consultants as a Tool of Foreign Policy,” National Defense University, Institute for National Security Studies, 1998, available at http://www.ndu.edu/inss/books/essaych4.html, cited in Avant, Market for Force, 156 no. 63. 25. C.A.J. Coady, “Mercenary Morality,” in A.G.D. Bradney, ed., International Law and Armed Conflict (Stuttgart, Germany: Franz Steiner Verlag, 1992), 64. 26. James Pattison, “Just War Theory and the Privatization of Military Force,” Ethics and International Affairs 22 (2) (2008): 146. 27. Herbert Wulf, “Privatization of Security, International Interventions and the Democratic Control of Force,” in Andrew Alexandra, Deane-Peter Baker, and Marina Caparini, eds, Private Military and Security Companies: Ethics, Policies, and Civil – Military Relations (London: Routledge, 2008), 195. 28. Tony Lynch and A.J. Walsh, “The Good Mercenary?,” Journal of Political Philosophy 8 (2) (2000): 136. 29. Ibid., 135. 30. ICISS, Responsibility to Protect, 35–36. 31. Bruno Simma, “NATO, the UN, and the Use of Force: Legal Aspects,” European Journal of International Law 10 (1) (1999): 12–13. See also Michael Ignatieff, Virtual War: Kosovo and Beyond (New York: Metropolitan Books, 2000); Earl H. Tilford, Jr., “Operation Allied Force and the Role of Air Power,” Parameters 29 (4) (1999/2000): 24–38. 32. Simon Chesterman, Just War or Just Peace?, 63–83. 33. Nicholas J. Wheeler, Saving Strangers: Humanitarian Intervention in International Society (Oxford, UK: Oxford University Press, 2000), 62. See also Chesterman, Just War or Just Peace?, 73. I am grateful to Brent Steele for bringing this to my attention.

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34. Wheeler, Saving Strangers, 105–110. 35. See the following competing views on this issue: George Packer, Assassins’ Gate: America in Iraq (New York: Farrar, Straus and Giroux, 2005); Douglas J. Feith, War and Decision: Inside the Pentagon at the Dawn of the War on Terrorism (New York: Harper, 2008). See also Eric A. Heinze, “The New Utopianism: Liberalism, American Foreign Policy, and the War in Iraq,” Journal of International Political Theory 4 (1) (2008): 105–125. 36. Fernando Tesón, “Ending Tyranny in Iraq,” Ethics and International Affairs 19 (2) (2005): 4–5; Terry Nardin, “Introduction,” in Nardin and Williams, eds, 10; Pattison, “Just War Theory,” 147. 37. See, for example, Tesón, “Ending Tyranny in Iraq,”. 38. Robert Fisk, “Untouchable Ministries,” The Independent, 16 April 2003. See also “US Shamed by Looting of Antiquities,” The Scotsman, 19 April 2003. 39. The most notable example is DynCorp, which was awarded several lucrative deals by the US even after it broke a contract with the State Department in Liberia amidst heavy fighting. See Christopher Spearin, “Between Public Peacekeepers and Private Forces: Can There Be a Third Way?,” International Peacekeeping 12 (2) (2005): 246. 40. See Chapter 3 in this volume. 41. Cited by Pattison, “Just War Theory,” 150. 42. James Cockayne, “The Global Reorganization of Violence: Military Entrepreneurs and the Private Face of International Humanitarian Law,” International Review of the Red Cross 88 (863) (2006): 462. 43. Mark Evans, “In Humanity’s Name: Democracy and the Right to Wage War,” in Mark Evans, ed., Just War Theory: A Reappraisal (New York: Palgrave Macmillan, 2005), 78. 44. James Turner Johnson, Can Modern War Be Just? (London and New Haven, CT: Yale University Press, 1984), 23. See also Cian O’Driscoll, “James Turner Johnson’s Just War Idea: Commanding the Headquarters of Tradition,” Journal of International Political Theory 4 (2) (2008): 101–193. 45. Pattison, “Just War Theory,” 153. 46. Lindsey Cameron, “Private Military Companies: Their Status under International Humanitarian Law and Its Impact on Their Regulation,” International Review of the Red Cross 88 (863) (2006): 582. 47. Michael N. Schmitt, “Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees,” Chicago Journal of International Law 5 (2) (2005): 519. Geneva Convention (Third) Relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135, Article 4. 48. Cameron, “Private Military Companies,” 584. 49. International Review of the Red Cross 88 (863) (September 2006): 449–691. 50. Additional Protocol I, Article 43.1. See also Cameron, “Private Military Companies,” 583; Schmitt, “Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees,” 524.

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51. Third Geneva Convention, Article 4(A)(1). 52. Article 47 of Additional Protocol I reads: “1. A mercenary shall not have the right to be a combatant or a prisoner of war. 2. A mercenary is any person who: (a) Is specially recruited locally or abroad in order to fight in an armed conflict; (b) Does, in fact, take a direct part in the hostilities; (c) Is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party; (d) Is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict; (e) Is not a member of the armed forces of a Party to the conflict; and (f ) Has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.” 53. Cameron, “Private Military Companies,” 584. See also Schmitt, “Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees,” 519. 54. Charter of the United Nations (UN Charter), 26 June 1945, Stat. 1031, Article 47. 55. Thomas G. Weiss, David P. Forsythe, Roger A. Coate, and Kelly-Kate Pease, The United Nations and Changing World Politics, 5th edition (Boulder, CO: Westview, 2007), 17. 56. Daphna Shraga, “UN Peacekeeping Operations: Applicability of International Humanitarian Law and Responsibility for Operations-Related Damage,” American Journal of International Law 94 (2) (2000): 406. 57. Convention on the Safety of United Nations and Associated Personnel, 1994, GA res. 49/59, 49 UN GAOR Supp. (No. 49) at 299, UN Doc. A/49/49. Observance by United Nations Forces of International Humanitarian Law, Secretary-General’s Bulletin, 6 August 1999, ST/SGB/1999/13. 58. Shraga, “UN Peacekeeping Operations,” 408. 59. Secretary-General’s Bulletin, Article 1.1. 60. Ibid. Such a conclusion is especially tenable in light of the Rome Statute of the International Criminal Court, which suggests that peacekeepers may or may not be entitled to protection as civilians, though the statute does not delineate specifically under what conditions a peacekeeper acts as a combatant. See Rome Statute of the International Criminal Court (Rome Statute), 17 July 1998, UN Doc. A/CONF.183/9, Article 8(2)(b)(iii). 61. Secretary-General’s Bulletin, 2.1. 62. Shraga, “UN Peacekeeping Operations,” 409. 63. The UCMJ potentially applies to individuals who are not, strictly speaking, members of the armed forces of the United States, such as certain individuals who, in times of war, accompany the armed forces in combat zones. See Uniform Code of Military Justice (UCMJ), 31 May 1951, 64 Stat. 109, 10 U.S.C. ch. 47, Article 2. Furthermore, attempts have been made to extend the application of the UCMJ to civilians contracted by the U.S. Department of Defense. See Military Extraterritorial Jurisdiction Act, 24 January 2000, 18 U.S.C. §3261.

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64. David Sloss, “Schizophrenic Treaty Law,” Texas International Law Journal 43 (3) (2007): 17. 65. Marc Lindemann, “Civilian Contractors under Military Law,” Parameters: US War College Quarterly 37 (3) (2007): 83–94. 66. “Who Will Watch the Watchmen? Peacekeeping and Sex Abuse,” The Economist, 31 May 2008, 63–64. 67. Rome Statute, Article 5. 68. Pattison, “Just War Theory,” 147–148. 69. Singer, Corporate Warriors, 93, 97. 70. See Paul R. Verkuil, Outsourcing Sovereignty: Why Privatization of Government Functions Threatens Democracy and What We Can Do About It (Cambridge, UK: Cambridge University Press, 2007).

CHAPTER

7

Gender, Just War, and Non-state Actors1 Laura Sjoberg

The era of the “war on terror” has seen a sharp increase in the use of the rhetoric of good and evil in global politics.2 In the post-9/11 era, leaders in international relations and those who study their actions have channeled new attention toward the words and standards of the age-old tradition of just war.3 These standards, outlined in the first chapter of this volume, hold a high profile in international political discourse.4 Still, while some see the increasing use of just war words as a sign of the increasing salience of questions of ethics and war,5 others see it as a result of the vagueness and susceptibility to political manipulation.6 Indeed, if just war theories are the pulse of our understandings of the ethics of war, they are often a pulse that is difficult to keep track of and measure effectively. Many scholars blame the inconsistency of just war theory on its difficulty adjusting to changes in the strategy and tactics of war.7 If the just war tradition has, in the past, had difficulty adapting to changes in warfare, the subject matter of this book, “non-state” actors, may be among the biggest challenges it has faced.8 Just war’s moral prescriptions have been state centric for centuries and perhaps even millennia.9 Feminist criticisms and reformulations of just war theory specifically and the ethics of war more generally have argued that the tradition’s vagueness, susceptibility to political manipulation, and difficulty in adapting to changes in warfare can be traced to the gendered narratives of the just warrior and the beautiful soul that the just war tradition relies on to

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simultaneously legitimate and (sometimes) restrain war making and war fighting.10 While these and other complaints have led some scholars to declare just war theory as intellectually irrelevant,11 others have suggested that a just war theory is indispensable to contemporary global politics.12 Feminist theorists have argued that “a new just war narrative should be based on a concept that deconstructs gender subordination rather than reifying it.”13 Such a narrative, feminist theorists have demonstrated, has the potential to clarify, sharpen, and humanize the principles of just war theory. In this chapter, I argue that a feminist reformulation of just war theory is not only generally beneficial but especially important to the just war tradition’s attempts to understand, account for, and monitor the “non-state actors” who have taken the making and fighting of twentyfirst-century warfare by storm.14 Specifically, feminist theory critiques and deconstructs the public/private dichotomy that permits just war theory to privilege the state and reify the state/non-state dichotomy in global politics. This chapter begins by reviewing feminist observations of the gendered nature of the just war tradition. Then, it introduces the “problem” of non-state actors from a feminist perspective, arguing that the gendered nature of just war theory can be identified as a key cause of just war theory’s difficulty dealing with these war makers and war fighters. It proposes a feminist reinterpretation of just war standards as the revitalization that the just war tradition needs. It explains this feminist just war theory in terms of breaking down the public/private and rational/emotional dichotomies in ethical thought about war, and replacing them with an approach centered around relational autonomy, political marginality, empathy, and care. It then explores the insights that these reformulations provide for dealing with the non-state actors that currently confound just war theorizing by analyzing the case of a major non-state force in twenty-first-century warfare—terrorism. The chapter concludes by arguing that the added normative strength and explanatory power coming from a feminist perspective is something just war theory needs now more than ever. Feminist Critiques of the Just War Tradition Feminists have pointed out that the just war tradition is structured around gender-stereotypical notions of what it means to be a man (citizenwarrior) and a woman (innocent and protected).15 In these narratives, women are “symbolically and literally, that which requires protection.”16 In other words, just warriors’ raison d’être is protection; what they protect is “their” women and children, who are seen as incapable of protecting

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themselves. Women (and, as I will argue later, the feminized other more generally), then, are excluded by definition from the class of decision makers in war.17 This story of gender roles in war justifies war with reference to those it appears to protect: men fight wars for women where women’s consent is not required.18 These gendered images of roles in war constitute and are constituted by cultural images of males and females predominant in the contemporary world.19 Women’s marginality in just war narratives is both actual and epistemological.20 Women’s actual marginality can be seen in the constructed narratives of the “just warrior” (man) and “beautiful soul” (woman) whose keeping to gender-stereotypical roles is not only desirable but essential to victorious just war stories.21 In just war stories, the (cautious but brave) state fights a war to protect its women/children/way of life22 using male (or masculine) citizen warriors whose actions are inspired by how much they value their (innocent and defenseless) families back home. In these stories, women are categorized as “beautiful souls” who are innocent, uninvolved in war (and thus unstained by its horrors), and protected by “their” just warriors. They are characterized as “frugal, self sacrificing, and, at times, delicate” valued because of their “purity of heart” which causes them to “flee” from the hard realities of war.23 In their roles as beautiful souls in just war stories, women are supposed to oppose war and violence but, at the same time, serve as that which inspires men’s war and violence.24 Although war could not exist without the feminized other to protect/ignore, women matter only in ways that narrow their identities, reify gender stereotypes, deny their agency, and marginalize their citizenship. The “type-cast” role of women as “protected” at once serves as a moral justification for war fighting, obscures women’s actual suffering in war, and props up gender subordination more generally.25 On the other hand, men as actors are central to the victorious tone of just war stories. While the just war tradition has been traditionally statist, it has been clear from the beginning that just warrior states rely on the cooperation of just warrior (individual) men to serve as combatants. In just war stories, “masculinity, virility, and violence have been linked together in political thought through the concept of the warrior-hero.”26 Masculinity is celebrated at least in part because it is tied to combatant status. The gendered foundations of the just war tradition, then, have important impacts on men and women: they at once valorize men and endanger them, and marginalize women in a discourse of honor and protection.27 This gendered organization of roles in war, however, is not the only impact of the gendered nature of the just war tradition. The other impact is epistemological: just war standards were built on, and continue to

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evolve based on, the perspectives of men and the privileging characteristics associated with masculinity, including rationality, strength, independence, bravery, competition, and the public sphere. As a result, feminists have argued that the just war tradition’s identification of war’s actors, calculations of war decision-making processes, and framing of war’s damages all rely on gendered conceptual understandings. Feminists have critiqued the just war tradition’s statist recognition of who counts as war decision makers. Feminists have critiqued the state centrism of International Relations (IR) theory generally, arguing that the very notion of the unitary state is gendered.28 First, feminists have argued that the state is not a monolithic entity, because gendered lenses reveal “people as actors, the system as multiple hierarchies, as characterized by multiple relations.”29 Spike Peterson calls on feminists to interrogate the sovereign rational subject both for its artificial boundaries and false objectives.30 Feminist critiques of the state system rely on critical readings of the public/private dichotomy in feminist political theory. Second, feminists have argued that privileging the state as an actor in global politics risks that “individuals will be viewed only instrumentally as means sacrificed to the end of the state’s winning the war,” when their work values individual security on its own merits.31 Third, feminists have critiqued state centrism as legitimating states as gendered actors, which treat women as “biological reproducers of group members needed for defense, signifiers of group identities, objects of political identity struggles, and members of sexist and heterosexist national groups.”32 As a result, the state militarizes and sexualizes personal lives and political relations.33 Finally, feminists argue that states relate in a gendered way, reliant on violence and domination, resulting in “a self-reproducing discourse of fear, suspicion, anticipated violence, and violence.”34 Instead of focusing on states, feminists argue that just war theory should focus on a broader array of actors, including those traditionally understood as “non-state” and therefore outside of the reach of just war theory. Feminists suggest alternative directions, focusing on individual safety and human security around the world, especially at the margins of global politics.35 In addition to critiquing the just war tradition’s understanding of who counts as war decision makers, feminist theorists argue that just war theory relies on a gendered understanding of war decision making. Just war theory assumes that actors’ decisions are made rationally and autonomously. Feminists note that the assumption of autonomy is not an accurate reflection of the empirical realities of global politics,36 and that rationality masks the political nature of knowledge.37 Feminist observations about autonomy come from the recognition that, in social and political life, women often have obligations that they did

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not voluntarily assume.38 Given this, feminist theorists have developed an understanding of political actors as relationally autonomous rather than reactively autonomous. This means that, when considering just war criteria, actors rely at least in part on the choices and actions of other actors. Also, actors in different positions hold different perspectives, based on differential freedom of choice based on power and divergent experiences. Therefore, the understanding of actors as independent is empirically inaccurate, and actors who fail to recognize their interdependence will make suboptimal decisions. Feminists have also noted that considering war decision making “rational” is empirically and normatively problematic. As Karen Jones notes, advocates of rationality and strategic thought assume: 1) “Available . . . conceptions of rationality and reason represent genuinely human norms and ideals; 2) The list of norms and ideals contained within available conceptions of rationality and reason are sufficiently complete; and 3) The external normative functions assigned to reason and rationality are unproblematic.”39 Feminists have revealed each of these assumptions as false. Feminists have argued that “the identity of the modern subject—in models of human nature, citizenship, the rational actor, the knowing subject, economic man, and political agency—is not gender-neutral but masculine (and typically European and heterosexual).”40 According to Margaret Atherton, the possibility of rationality has “been used in a disturbing fashion to mark a gender distinction. We have, for example, on the one hand, the man of reason, and, on the other, the woman of passion.”41 Karen Jones notes that “women’s assumed deficiency in rationality has been used to justify their exclusion from full ethical standing and from full participation in education, politics, and the profession,” as well as to exclude knowledge associated with women and femininity from accepted views of the world.42 The alleged gender neutrality of rationality, then, “is often a covert form of privileging maleness.”43 Therefore, assuming rationality “is problematic because of what it leaves out; our views (and our lives) are distorted by the failure to recognize and properly value what has traditionally counted as ‘feminine’.”44 In sum, feminists have pointed out that just war theory is structurally and fundamentally gendered in a way which excludes women from participation in war and causes just war theorizing to be epistemologically deficient for that omission. This is reflected in the just war tradition’s gendered understandings of who makes war decisions, how war decisions

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are made, and how war casualties are calculated. As such, “not only does a gender-based critique of the just war tradition demonstrate gender bias in the just war tradition, it also reveals that just war theory often fails on its own terms because of that gender bias.”45 Gender, Just War, and Non-state Actors The first two chapters of this volume point out that in addition to states, “political communities” make war, including substate rival communities, organized armed groups who claim to fight on behalf of a larger community, and potentially even terrorist organizations. Many scholars have suggested that the just war tradition needs to adapt its rules, and potentially adopt new rules, to respond to the “new” aspects of war, including the participation of non-state actors and the trend toward illicit funding for a number of those actors.46 Feminist theory argues that just war’s difficulties, generally and with non-state actors specifically, cannot be solved by simply adding new rules for new sorts of war; broader problems exist. The foundation of these broader problems is in the just war tradition’s statist bias, which reifies a false dichotomy between state and non-state, public and private. Just war theory’s statist bias, after all, can be traced to its gender bias. Feminists have been critical of the state-centric nature of just war theory even before the rise of non-state actors in twenty-first-century warfare. As such, feminist just war theorizing finds itself more prepared to deal with these new actors than much of mainstream just war theorizing, since feminists have recognized non-state actors as crucial to ethical discourses about the making and fighting of wars from the outset of feminist theorizing in this area. Feminists have argued that just war theory should pay attention to women as war’s victims and as its participants, as well as to people and groups at the margins of global politics. While these arguments have rarely addressed the non-state actors that have recently captured the attention of mainstream IR theory, they can be instructive in form and function for a way forward for just war theory to produce a more complicated understanding of war decision makers and how they decide. Specifically, as briefly noted above, the theoretical foundation of the feminist critique of the state centrism of the just war tradition is based on a critique of the gendered public/private divide in global politics. Feminists have noted that the content of global politics has often been divided into characteristics traditionally associated with masculinity and characteristics associated with femininity, where these characteristics are dichotomized and set in opposition to each other in IR theory.

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Gendered dichotomies in global politics include political/personal, rational/emotional, independence/interdependence, active/passive, outside/inside, and man/woman.47 As Amy Eckert explains, the public/private dichotomy is especially salient in just war theory, where it “permeates Western political theory and its intellectual heirs, including International Relations theory, marginalizing certain spaces seen as private by excluding them from public view.”48 The basis of the public/private dichotomy is the expectation that men’s realm is outside the home (in business and in politics) and women’s realm is inside the home (as homemakers). The public sphere, and thus men’s lives, is of concern to other members of the public sphere, while the private sphere, and thus women’s lives, is not of concern to the public sphere. As Hilary Charlesworth, Christine Chinkin, and Shelley Wright argue, the “public realm . . . where power and authority are exercised, is regarded as the natural province of men; while the private world . . . is seen as the appropriate domain of women . . . greater significance is attached to the public, male world.”49 In other words, “the things that happen in these private spaces (such as domestic violence or marital rape) have been treated as private matters beyond the control or authority of the state.”50 While “the terms of the public/private divide differ from domestic to international society,” it has a similar function, calling attention to the public sphere and shielding the private sphere from visibility.51 Though the private sphere in international politics is multilayered, and it includes a range of actors from non-state armed groups to terrorists to civilians, it shares marginalization in war theorizing generally and just war theorizing specifically. In just war theory, then, the “public” sphere of the state has been visible (perhaps even over-visible) while the “private” sphere in its various iterations (civilians who suffer in war, or “non-state” actors who make war) have been marginal or invisible. In addition to deconstructing the gendered foundations of just war theory, drawing attention to the feminized other in just war thinking, and reformulating its understandings of the rationality and autonomy of war decision making, feminist just war theory looks to denaturalize the public/private dichotomy that puts states on the “inside” of just war reasoning and non-state actors on the “outside.”52 As a result, feminist theory interrogates and deconstructs the dichotomized thinking that strictly separates state and non-state actors in just war thinking. Feminist approaches to studying security are, therefore, broader than traditional notions in just war theory. Fueled by the recognition that secure states often contain insecure women, feminists analyze the security of individuals and communities as well as of states and international organizations, without privileging a certain level of analysis.53

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Instead of focusing on one level, feminists have long argued that the levels are interdependent, where “the personal is international and the international is personal.”54 Feminist studies of international conflict have demonstrated how the security of individuals is related to national and international politics, as well as how international politics impacts the security of individuals at the local level. Feminists have argued that the state and the international system are privileged in IR theorizing because “the values associated with femininity and masculinity are awarded unequal weight in a competitive social order” where “social processes select for values and behaviors that can be associated with an idealized or hegemonic masculinity.”55 The security ideas that we take for granted, including the state, just cause, right intention, legitimate authority, and last resort, could not exist in their current form without these gendered hierarchies.56 As such, feminists argue that studying war making and war fighting, and the ethics of those phenomena in global politics, cannot be done effectively without taking account of gender (and therefore questioning and deconstructing gender hierarchies). Just war theory’s omission of gender does not make its work gender neutral or unproblematic. Instead, it makes it possible to hide the gendered concepts and genderhierarchical organization that underpins the logic of just war theory. These include, but are not limited to, just war theory’s reliance on the state/non-state dichotomy, where sovereign states are seen as necessarily “in” the group of actors that can constitute right authority, and nonstates are necessarily “out” of the group of actors that can constitute right authority. Feminist Just War Theorizing Feminist criticisms of the gendered foundations of the just war tradition and their manifestations in gendered just war analysis have inspired feminist theorists to reformulate theories of war ethics. Feminist just war theorizing is guided by the principles of relational autonomy, empathy, care, and political marginality. Understanding actors as relationally, rather than reactively, autonomous means that they have independent identity, but are circumstantially and constitutively interdependent with others.57 This also means that the conventional tendency to treat states, non-states, substates, and superstates as neatly conceptually and operationally distinguishable is oversimplified. Relational autonomy does not deny actors’ decision-making ability, it just complicates their capacity: “decisions can be made within constraints or with fellow constrainees, but never without constraints.”58 A feminist reinterpretation,

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then, stresses strategies for making decisions within constraints and with fellow constrainees. Empathy and care serve as foundational concepts to build such strategies. Empathy, or “the willingness to enter into the feeling or spirit of something and appreciate it fully—to hear others’ stories and be transformed by our appreciation of their experiences”—provides a tool for communication and community building within strong objectivity.59 As Christine Sylvester explains, “empathy enables respectful negotiations with contentious others because we can recognize involuntary similarities across difference as well as differences that mark independent identity.”60 Empathetic cooperation “moves away from reactive combativeness and focuses on intersubjective connections between persons.”61 If actors normally make their own determination of the question of justice and then act accordingly, an empathetic approach suggests that actors consider the perspectives of others in coming to a dialogical understanding of what the just action would be. Through empathetic cooperation, relationality can be transformed from a handicap to a tool for social emancipation. A feminist “ethic of care”62 is instructive to the project of humanizing just war theory. An ethic of care considers the issue of equity in participation and empowerment, accommodates subjectivity and value difference, values local knowledge, and prioritizes the positions of women.63 As Fiona Robinson explains, “to care for others and foster caring relations within and among families, social groups, and political communities involves the ability to recognize persons as concrete and unique (rather than idealized, independent agents) and to learn how to focus attention on others.”64 As such, “it means that those who are powerful have a responsibility to approach moral problems by looking carefully at where, why, and how the structures of existing social and personal relations may have led to exclusion and marginalization.”65 As applied to just war theory, an ethic of care changes the question of war making from one of abstract calculation to one of emotional attachment, from a political question to an interpersonal one. Relational autonomy changes just war theory from an actor-based model of independent decision making to a model of interdependence and interactive decision making. Empathy asks belligerents to, through emotional identification, feel the perspectives of their opponents, rather than speaking in a dichotomized framework where there is only good and evil, and nothing in between.66 Instead of capitalizing on just war theory’s vagueness for political gain, an ethic of care suggests that actors prioritize each other’s humanity and safety. I have used these principles to propose feminist guidelines for reformulating just war theory, including a dialogical approach to standards

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like just cause and right intent, emotional identification as a major component war ethics, an ad bellum principle that an actor should not engage a war that cannot be fought mainly against those who have created the just cause, special attention to the impacts of war on the political margins (especially women), and a broadened understanding of what counts as war.67 The central task of this chapter is to use those theoretical principles and the resulting guidelines to develop insights into the problem of non-state actors for just war theory. It does so using the example of just war analysis about terrorism. Feminist Just War Theorizing and Terrorism The attention that terrorism has received from just war theorists has been almost entirely linked to the 11 September 2001 terrorist attacks in New York and Washington, DC, and the corresponding “war on terror” pursued by the United States.68 The first lesson of feminist just war theorizing for thinking about ethics and terrorism suggests that thinking about non-state actors and war ethics should not rely on their macrostrategic importance. On the contrary, given the link that feminists see between the personal and international spheres, just war theorizing for and about non-state actors is crucial even when these actors have little or no impact on strategic balance in international politics. The tendency only to analyze ethics for or ethical responses to the non-state actors that manage to impact states is skewed in itself and leads to skewed ethical analysis. A similar bias in current just war theorizing about terrorism is that it tends to provide a guide only for state actors responding to terrorist attacks, not for their non-state actor opponents. Feminist just war theorizing has been based on deconstructing the privileging of the state in the just war tradition. As such, feminist just war theorizing tries to provide ethical analysis and ethical models not only for states but also for non-state actors that would challenge states. Given the ambiguous status of non-state actors (generally) in just war analysis, feminist just war theorizing can also serve as a guide to states about the (moral and actual) recognition of non-state actors. The remainder of this chapter explores three places where feminist just war theorizing offers a comparative advantage to current just war theorizing in dealing with issues that arise around the analysis of nonstate belligerents and responses to them. Feminist just war theorizing concerning terrorism forefronts those things previously marginalized as “private” in just war theorizing, uses an ethic of care to balance tensions between jus in bello standards of just tactics and jus ad bellum standards of last resort and reasonable chance for success for non-state actors, and

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reformulates the “reasonable chance for success” standard in terms of individual safety, human security, and structural violence. Terrorism and the “Private” Sphere

Feminist scholarship has been critical of the way that the gendered public/ private divide serves as a barrier between state and non-state actors, where attention is focused on states and non-state actors are marginalized or made invisible in global politics.69 In this framework, it is almost impossible to think of a non-state actor (even before the actor would use tactics that would classify it as a “terrorist”) as having a just cause, since the just causes of the public sphere or high politics are almost exclusively if not exclusively reserved for states. The causes that most terrorists fight for are firmly placed within the private sphere in most current just war theorizing, which does not ask whether terrorists have just causes because it defines non-state actors as outside of the public realm. In other words, just war thinking privatizes the problems that terrorism is used in response to, allowing states responding to terrorism to avoid serious ethical thinking about the causes of non-state actors fighting against states. The privatization of non-state actors’ actions goes further than ignoring questions about the justice of terrorists’ causes. It also permits differential classification of terrorists and states that violate traditional jus in bello standards in similar ways to terrorists. What separates state violators of in bello targeting rules and terrorists who are not mentioned in just war theorizing is states’ status as states. Because of this distinction, just war theorizing often defines non-state actors as terrorists and states as counterterrorists even for the same or similar behavior.70 The privileging of the state in just war theorizing also allows states to fail to distinguish between non-state actors who attack civilians (a key feature of many formal definitions of terrorism)71 and non-state actors who attack state militaries and state governments. Feminist just war theorizing has pointed out the problematic nature of the public/private dichotomy and the many marginalized actors in global politics that it has blinded. Feminists in IR have critiqued the assumption that the state can be seen as a protector of those inside of it—instead, states’ security is often won at the price of the security of its marginalized citizens.72 Given this, feminist just war theorizing has often emphasized the security of those people traditionally invisible in state strategic analysis in those locations traditionally understood as private.73 While a substantial part of the feminist project in that work is to denaturalize and deconstruct the public/private divide, this needs to be accomplished substantively, not just semantically. In other words, the

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same priorities cannot remain when the language has been changed. To that end, feminist just war theorizing can suggest that just war theorizing, both ad bellum and in bello, reverse its priorities to emphasize the needs of the “private sphere,” including women, minority groups, households, and others who lack political power in a traditional sense as they relate to political oppression, domestic violence, economic deprivation, and other structural violence.74 The link between the prioritization of the private sphere and just war theorizing is that many of the social and political problems that terrorists respond to are seen as in the private sphere. Just war theorizing can recognize the legitimacy of those causes without recognizing the legitimacy of the tactics used to advance them. In fact, a just war framework that recognized the legitimacy of private problems like state oppression of minorities might ultimately decrease the use of tactics of terrorism by encouraging nonwar solutions to those problems rather than ignoring the problems or understanding them as somehow less grave than the public grievances that states have against each other. After all, some of the greatest massacres in recent history have been intrastate conflicts, including the Russian Revolution and the Rwandan genocide. Yet just war discourse, with its state-centric view of sovereignty, has been reluctant to weigh in on these domestic conflicts (mirroring, perhaps, police reticence to interfere in domestic conflicts between spouses or domestic partners). Private problems like non-state belligerents become harder to ignore when they attack other states, but should be the subject of attention in global politics even when they do not. Prioritizing the private sphere would require the reformulation of three just war standards: right authority, just cause, and the noncombatant immunity principle. Feminist just war theorizing has critiqued the tendency of just war theorists to assume that “right authority” is synonymous with the sovereign state, since “state organizational practices are structured in relation to masculine values,” leaving women and feminized others without representation in the right authority standard.75 Instead, feminist work has suggested that the state-centric idea of right authority is based on gendered understandings of power as “power-over” or the power to coerce others to comply with one’s will.76 Instead, a feminist reformulation of right authority suggests that legitimate authority relies on the inclusive practice of power-with, “the human ability to act in concert” in a way that is “collaborative, not competitive; relational, not reactive,” emphasizing social justice principles, open communication, listening, understanding, developing trust, and legitimizing community issues.77 If power-with were the standard for right authority, institutional status (statehood) or lack thereof (non-state actors) would not be the determinant of the right

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to make a decision to go to war. Instead, process (who is included, who is consulted, and how opponents are treated) determines right authority or lack thereof. This standard holds both the non-state actors who may be potential terrorists and state actors who deal with those non-state contingencies to treat each other with recognition and respect in attempts to work out the conflict in nonviolent ways before resorting to war (in whatever form), and requires that such deliberative and dialogical political process occur previous to either side acting in a violent way. For state governments, this would mean taking the complaints and concerns of unsatisfied minority populations seriously; for revolutionary and terrorist groups, this would mean first trying to work through the established structures of government to achieve their goals before resorting to military conflict. A feminist reformulation of just cause would also make the dual move of foregrounding causes traditionally associated with the private sphere and encouraging cooperation between potentially opposing parties.78 Instead of focusing on traditionally accepted just causes in the political sphere (such as violations of sovereignty and trade disputes), feminist just war theorizing looks at social and political oppression, structural violence, and individual/human security. Feminist just war theorizing has an interest in proportional and distributive justice in the outcomes of disputes and conflicts, but criticizes the tendency of states and non-state actors to prioritize competition and dominance in their relations with other actors.79 Insofar as this is true, feminist just war theorizing can describe most (if not all) causes that come out of competitive political relations as at a deficit in terms of justice and legitimacy. This rereading of just cause would have implications both for state actors and for (potential) terrorists. For state actors, a sense of responsibility to citizens and inhabitants would be formalized in a standard which gave neglected, downtrodden, and abused citizens license to fight for their well-being. For non-state actors, just war theorizing would no longer be a group of standards they could ignore because they were excluded a priori from just war analysis. Instead, nonstate actors would be responsible not only for the inherent justice of their cause but also for complicity in the competitive game of global (previous interstate) politics. The third reformulation that privileges the private sphere is a rereading of the noncombatant immunity principle. Feminists have argued that the noncombatant immunity principle insufficiently protects civilians, at least in part because it is an in bello rather than ad bellum principle.80 In other words, the question of who will be affected by the war is left for strategists and tactical decision makers rather than the political and military leaders who choose to fight the war. The current noncombatant immunity

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standards do not require belligerents to ensure that their wars will mainly affect those against whom they hold a just cause as a criterion for the justice of making the decision to go to war. In previous work, I have suggested a reformulated noncombatant immunity principle based on responsibility for the just cause, called empathetic war fighting.81 Empathetic war fighting would require potential belligerents to ask before they start the war whether it will mainly affect those who they have just cause against; if the answer is no, then the war is ad bellum unjust. This differs from the current ad bellum principle of proportionality because it requires belligerents to ask not only whether the violence committed is at an appropriate level to respond to the just cause, but also, regardless of the severity of the cause or the appropriate level of violence, whether that violence is targeted mainly or exclusively toward those responsible for the grievance of the belligerent. In the example of the war on terror, then, the controlling ad bellum question would not be whether or not the United States had a just cause against al Qaeda and/or state government sponsors of this or other terrorist or organizations, but instead whether any formulation of plans for the war on terror would mainly affect either al Qaeda or state government sponsors of terrorism. For non-state actors, not only would the strategy of attacking civilians be firmly off limits, a non-state actor choosing violent or military action would need to have a plan that would mainly affect those that the actor had a just cause against in order to justify taking any violent action at all. This strategy of prioritizing the “private” sphere would strengthen and reinvigorate the noncombatant immunity principle, which, combined with reformulated standards of right authority and just cause, equips just war theorizing to deal with and instruct non-state actors more readily and supplies it with tools to deal with the many complexities of terrorism. An Ethic of Care Looks at Ad Bellum and In Bello Tensions Related to Terrorism

As mentioned above, a feminist ethic of care is based on issues of equity, accommodation of subjectivity and difference, and prioritization of the political margins. As applied to just war theory, an ethic of care encourages an interpersonal, emotional decision making as opposed to decision making that emphasizes the political to the exclusion of the personal and the rational to the exclusion of the emotional.82 In other words, an ethic of care brings characteristics traditionally associated with femininity (such as interdependence and a prioritization of the health and safety of individuals) to a just war tradition that often prioritizes characteristics traditionally associated with masculinity.83

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Looking at the issues terrorism raises for just war theorizing, there are three insights that an ethic of care can provide. First, it can provide a feminist analysis of the standard of “last resort” as it relates to terrorism. In the standard of last resort, a belligerent is required to be convinced that no policy option other than war will work to redress the complaint that has inspired the just cause that the belligerent has with its opponent. Some just war theorists argue that this last resort means that states actually have to exhaust other policy options, while others argue that states only have to have a reasonable belief that other policy options might not work. However, the standard of last resort seems to have lost prominence in just war discussions about states dealing with non-state actors, particularly terrorists. For example, many states hold an explicit policy rule that they do not negotiate with terrorists.84 Yet states rarely refuse to negotiate with other states, despite the use of tactics that would be characterized as terrorist if those states were non-state actors. This position is based on the assumption that non-state actors that would resort to terrorist tactics are by definition illegitimate and unjust belligerents. The standard of last resort and the refusal to negotiate with an actor’s opponent are at odds. A feminist ethic of care helps to recognize that at the heart of this paradox is that an actor needs to be part of an already-recognized community of states in order to qualify as a legitimate belligerent. If the prequalification for being a belligerent rather than a terrorist is previous recognition by the state system, statist just war theorizing entrenches an unchanging power relationship between actors which recognize each other and those which are left out of the club. In other words, the position that states and legitimate actors (like the UN) do not negotiate with non-state actors (which are almost universally labeled terrorist whether they fit the definition or not) ensures that only certain perspectives (usually those of the powerful) will matter in global politics and other perspectives will remain marginalized. Postcolonial feminists have long been interested in voices at the margins of global politics going unheard.85 For instance, Spivak wonders if those persons at the margins of global politics are ever really heard in a policy-changing way by those persons or states in power.86 She concludes that, in colonizer – colonized relationships and often extending into postcolonial relationships, the subaltern cannot speak and are not heard. A feminist reformulation of the standard of last resort would revive it for just war theorizing about non-state actors, requiring that potential belligerents negotiate with willing opponents, whether they are state actors or not. That being said, there is substance to state actors’ underlying critique of the tactics of terrorists, especially when the term “terrorist” is

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read narrowly enough to limit it to those actors that attack civilians in terroristic ways and at the same time broadly enough to apply it to all belligerents who attack civilians in terroristic ways, states and non-states. If feminist just war theorizing is concerned with human and individual security, it is all the more important to express moral condemnation for such strategic and tactical choices. An ethic of care suggests that belligerents are to be held culpable for both accidental and intentional harm caused to any parties not responsible for the just cause that belligerent has. If this standard is to have any meaning, it certainly applies to customers at cafes in Jerusalem and students at schools in Moscow, who qualify as “not responsible” for any just cause the terrorists who attack them might have in all but the most extreme of analyses. Any reinvigoration of the noncombatant immunity principle—inspired by feminist principles or otherwise—must object to these sorts of tactics, whoever uses them. An ethic of care used as inspiration for a noncombatant immunity principle based on responsibility is capable of not only voicing these objections, but doing so on the grounds of who is being hurt (those not responsible for the conflict) rather than who is doing the hurting (nonstate actors). Still, if just war theorizing is going to limit the tactics available to weak actors in global politics, an ethic of care would point out that it is essential that those actors are able to find a way to be heard absent the use of objectionable tactics. The absence of such a path is a fundamental flaw in just war theorizing read from the perspective of those with a political interest in seeing the world from the point of view of the margins. In just war theories, belligerents (mostly states) must meet several jus ad bellum criteria in order to justly declare war. Feminist understandings highlight that two of these criteria might be fundamentally in tension for non-state actors: just cause and reasonable chance of success. Specifically, it is possible to have a just cause against another actor in (domestic or international) politics and not have a reasonable chance of succeeding in obtaining that just cause following the rules (of domestic law or just war theory), especially given the stark differential in terms of military and economic power between states and non-state actors. A clear example of this question is the case of a woman who is so severely emotionally and physically abused in a domestic relationship that there is little possibility of escape. This woman has, in just war terms, a “just cause” but does not have a reasonable chance of succeeding in a conflict with her abuser. This scenario can translate to international politics. While, for reasons of space, I will not venture into the question of whether certain non-state or “weak” actors have particular just

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causes, the possibility that a non-state actor incapable of matching a state’s military power might have a just cause is morally confounding for just war theory. One can imagine a situation in which a “weak” actor which has no chance of winning a conventional war against a stronger state has a just cause against that state. In this situation, just war theorizing generally asks that weak actor either to rely on outside help to pursue its just cause, or simply deal with the oppression. Feminist theorizing, fundamentally concerned with the continued oppression of the weak and marginalized in global politics, suggests a number of alternative strategies available to weak actors, including power-to (the use of unique assets to combat those traditionally more powerful) or power-with (pooling resources in order to, together with other actors, pursue the cause).87 Both of these strategies were envisioned by feminist theorists as peaceful, or, at the very most, nonviolent protest measures. Still, there is an important sense in which terrorism is also a reaction of the weak to the paradox in just war theory where weak actors cannot fight a just war even for the most supremely just cause. A feminist reformulation of jus ad bellum standards, then, would be crafted to make sure that weak actors’ voices would be heard in (domestic or international) politics (such that they had a reasonable chance of succeeding in achieving a solution to their grievances) without the resort to tactics classifiable as terrorist. Reasonable Chances for Success and Non-state Actors

Perhaps feminist theorizing has the most important contribution to make in the area of defining the standard of “reasonable chance of success” for non-state actors, terrorists, and those who engage in war against those parties on the basis of individual and human security. Some scholars see a reasonable chance of success as a reasonable chance of winning the war.88 Alternately, success can be interpreted as a reasonable chance of achieving the political objective for which the war is being fought.89 This links the reasonable chance for success standard to the issue of just cause. Some object to this understanding as fundamentally impractical, however. James Turner Johnson argues that success should be about order, not peace, because peace is beyond the means of military force.90 In other words, expecting a goal to be achieved by the war that is fought for it is unrealistic, since most goals are political and wars are military/ strategic. Feminists have argued that the side that is fighting the war justly does not have to win the war for the outcome to be just. In fact, that side winning is neither necessary nor sufficient to cause the outcome of justice.

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Instead, the reasonable chance of success standard must be related to the possibility of just politics after the war; the war-fighting party must have a reasonable expectation of the capability of establishing such justice.91 Success, then, is not interpreted as victory in battle, or of victory in discourse, or of victory in politics. Instead, success is the establishment of a just political order at the end of the war. In other words, the actor looking to estimate possibilities for success must not only estimate whether or not the opponent will lose the war, but whether or not fighting (and losing) the war would make it more likely that the opponent will behave in a way more conducive to justice in politics in the future. This part of success is crucial; in a feminist ethic of war, war is not punishment, or show, but a way to try to fix a problem. Insofar as that is true, success is bound up in the ability to fix the problem, and the estimation of a reasonable chance of success is bound up in the estimation of ability to fix the problem. In this interpretation, reasonable chance of success is not about winning battles, be they on battlefields, in cafes in Jerusalem, or in caves in Afghanistan. It is not about one side being vindicated and the other side being condemned—in George W. Bush’s words, “good against evil.”92 Instead, it is about what a just order will be for both the victor and the vanquished, if those concepts are even necessarily applicable.93 A simple example of this problem is the acknowledgment that the United States “won” the war in Iraq—that is, it successfully invaded Iraq, took control of the government, ousted the dictator, and had military/tactical control over the territory within months of the initial invasion. Still, over five years later, there are substantial questions about whether the U.S. war in Iraq “succeeded,” which are often framed in terms of social justice and political stability for the Iraqi people, U.S. access to low-priced oil, and U.S. security from terrorist attacks. If success is about just order post-conflict rather than victory in battle, several implications for the relationship between just war and non-state actors emerge. First, non-state actors are not only acknowledged in feminist just war theorizing, they are crucial, because they, more than states, are the barometers of just order. Second, justice and injustice of cause are not zero-sum. Assuming that a state has a just cause against a terrorist who is fighting an unjust war does not give the state permission to ignore the political motivations and demands of the terrorist and whoever (if anyone) he/she represents. Instead, the successful result of conflicts between state and non-state actors will necessarily include breaking down the state/nonstate divide and legitimizing non-states as actors who can (but, like states, do not always or even normally) have just cause for war and expect a successful outcome.

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Why Just War Needs Feminism Now More Than Ever In the twenty-first century, the growing geostrategic impact of non-state actors (especially terrorists) in the making and fighting of wars demands that just war theorizing heed the feminist calls to focus its moral priorities and regulate meaning in a more inclusive way. Feminists have argued that excluding the perspectives of people at the political margins in the analysis of global politics both is ethically problematic and produces unrepresentative understandings of the political and social world. Since “excluding perspectives is likely to increase, rather than decrease, the number and intensity of international conflicts,” just war theorizing cannot continue to impose the perspectives of powerful states on non-state actors.94 Still, the just war tradition must resist devolving into a relativistic theory that has no clear norms or guidelines either for state actors or their non-state (potential or actual) opponents. The middle ground is an approach to defining just war standards that is centered on relational autonomy, political marginality, empathy, and care. Such an approach encourages recognition, active listening, and respect between state and non-state actors, regardless of the power differential between them. It also requires potential belligerents to interrogate their universalistic claims in response to their (potential or actual) opponents’ disagreements. Concerns for political marginality and the private sphere can bring problems previously marginalized as outside of the political realm into the forefront of political discussions. Emphasis on relational autonomy and interdependence can show states that they do not exist in a world where the only actors are other states, while at the same time showing non-state actors that terroristic tactics damage not only their immediate civilian victims, but families, communities, and infrastructures. Attention to care and empathy can bring an element of emotional identification to just war negotiations, which could make it more difficult for belligerents to think in stark “us vs them” terms where they ignore the needs, ideas, and problems of the “enemy.” Empathetic cooperation requires that actors not only “hear” other actors’ positions, but “attempt to understand on rational and emotional levels.”95 Feminist just war theorizing, as the above examination of terrorism demonstrates, is uniquely suited to deal with non-state actors, because feminists have long questioned the intellectual legitimacy and utility of the separation between state and non-state actors, public and private, in global politics. An approach that critiques the gendered statism of just war theory and proposes alternatives based on empathy and care can deal more effectively with the “problem” of non-state actors than an often rigid and inflexible just war tradition. Feminist just war theorizing not only

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provides a general rubric for dealing with non-state actors, but provides crucial insights into the hard cases, including the challenge of applying (actual and potential) terrorists in addition to their state opponents. In addition to improving and complicating our ethical understandings of terrorism, feminist just war theorizing provides new, different, and potentially more effective approaches to dealing with the problem of terrorism, as well as the problematically gendered state/non-state and public/private dichotomy in the just war tradition. Notes 1. I am appreciative to the editors of this volume for their careful and considered reading of my contribution. I also owe a debt to Amy Eckert, whose work has challenged me to think about non-state actors in just war theory through gendered lenses. Any mistakes remain my own. 2. Robert L. Ivie, “Rhetorical Deliberation and Democratic Politics in the Here and Now,” Rhetoric and Public Affairs 5 (2) (2002): 277–285. 3. William J. Bennett, Why We Fight: Moral Clarity and the War on Terrorism (New York: Regnery Publishing, 2003). 4. See Michael Walzer, “Words of War: Challenges to the Just War Theory,” Harvard International Review 26 (11) (2004): 36–38; Michael Walzer, Arguing about War (New York: Carnegie Council for International Affairs, 2004); Michael Walzer, Just and Unjust War (New York: Basic Books, 1977). 5. Lewis R. Aiken, Morality and Ethics in Theory and Practice (Springfield, IL: University of Illinois Press, 2004). 6. Laura Sjoberg, “The Gendered Realities of the Immunity Principle: Why Gender Analysis Needs Feminism,” International Studies Quarterly 50 (4) (2006): 889–910; Inis L. Claude, “Just War: Doctrines and Institutions,” Political Science Quarterly 95 (1) (1980): 83–96. 7. Laura Sjoberg, Gender, Justice, and the Wars in Iraq (Lanham, MD: Lexington Books, 2006); Neta C. Crawford, “Just War Theory and the U.S. Counterterror War,” Perspectives on Politics 1 (1) (2003): 5–25. 8. Jean Bethke Elshtain, ed., Just War Theory (New York: New York University Press, 1992), 268; Crawford, “Just War Theory and the U.S. Counterterror War.” 9. Amy Eckert, “Just War Theory and War in the Private Sphere: The Re-privatization of Force and the Ethics of War,” Paper prepared for presentation at the 2008 Annual Meeting of the International Studies Association, San Francisco, CA, 26–29 March 2008. 10. Sjoberg, Gender, Justice, and the Wars in Iraq; Sjoberg, “The Gendered Realities of the Immunity Principle”; Laura Sjoberg, “Why Just War Needs Feminism Now More than Ever,” International Politics 45 (1) (2008):1–18; Helen Kinsella, “Discourses of Difference: Civilians, Combatants, and Compliance with the Laws of War,” Review of International Studies 31

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(2005): 163–185; Helen Kinsella, “Gendering Grotius: Sex and Sex Difference in the Laws of War,” Political Theory 34 (2) (2006): 161–191; Helen Kinsella, “Understanding a War that is Not a War,” Signs: Journal of Women in Culture and Society 33 (1) (2007): 209–231; Lucinda Peach, “An Alternative to Pacifism? Feminism and Just War Theory,” Hypatia 9 (2) (1994): 151–72. Though I did not know her well, this article of Lucinda Peach was the inspiration for much of my work trying to create an explicitly feminist take on just war theory, and was on my mind as I wrote this chapter. I was able to tell her that shortly before she passed away, and will always hope that my work in this area honors her memory. Chris J. Cuomo, “War Is Not Just an Event: Reflections on the Significance of Everyday Violence,” Hypatia 11 (4) (1996): 30–45; Elshtain, Just War Theory. Sjoberg, “The Gendered Realities of the Immunity Principle.”; Fritz Kalshoven, The Law of Warfare: A Summary of Its Recent History and Trends in Development (Leiden: A.W. Sijthoff, 1973); George Weigel, “From Last Resort to Endgame: Morality, the Gulf War, and the Peace Process,” in David E. Decrosse, ed., But Was It Just? Reflections on the Morality of the Persian Gulf War (New York: Doubleday, 1992), 20–43. Sjoberg, “Why Just War Needs Feminism Now More than Ever.” It is important to note that I characterize this (and other work on the subject) as a feminist reformulation of just war theorizing, rather than the feminist reformulation of just war theorizing. This is both because I share the belief of many feminists that knowledge is contextual and contingent and because there is not one feminist perspective on global politics or global ethics but many (for a typology, see Ann Tickner and Laura Sjoberg, “Feminism,” in Steve Smith, Tim Dunne, and Milja Kurki, eds, International Relations Theories. Oxford, UK: Oxford University Press, 2007). See, for early accounts, Elshtain, Just War Theory; Judith Stiehm, ed. Women’s and Men’s War (London: Pergamon, 1982); Ruth Roach Pierson, “Beautiful Soul or Just Warrior: Gender and War,” Gender and History 1 (1) (1989): 77–86. There has been some controversy, of late, as to whether Jean Elshtain is, or ever was, a feminist critic of just war theorizing, largely resulting from the publication of her book, Just War against Terror: The Burden of American Power in a Violent World (New York: Basic Books, 2003), which argues for United States interventions in Afghanistan and Iraq using what many would characterize as antifeminist justifications. I have written on this question more extensively in Gender, Justice, and the Wars in Iraq, but note two points for the purposes of this chapter. First, I believe that seeing Just War against Terror as a radical shift for Elshtain relies on reading a normative agenda into her earlier work that I am just not certain was there. Second, regardless of Elshtain’s position on the just warrior/beautiful soul dichotomies and the resulting reading of just war theory as gendered, her observations of those phenomena inspired much feminist investigation of just war theorizing (including my own). As such, citation to this work

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19. 20.

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23. 24.

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is not only appropriate, but essential, regardless of the politics that either originally influenced her work or have come to influence it now. V. Spike Peterson and Anne Sisson Runyan, Global Gender Issues (Boulder, CO: Westview Press, 1999), 116–117. Laura Sjoberg and Caron Gentry, Mothers, Monsters, Whores: Women’s Violence in Global Politics (London: Zed Books, 2007); Carolyn Moser and Fiona Clark, eds, Victims, Perpetrators, or Actors? Gender, Armed Conflict, and Political Violence (New York: Zed Books, 2001). In fact, in many accounts of the just warrior and the beautiful soul, women’s consent is undesirable because they are seen as above the immorality of war. See Sjoberg, “Why Just War Needs Feminism Now More Than Ever” for a detailed explanation of this argument. Elshtain, Just War Theory; Jean Bethke Elshtain, Women and War (New York: New York University Press, 1987). Elshtain understands that cultural images of male and female are rooted (at least in part) in just war discourse. Sara Ruddick, Maternal Thinking: Towards a Politics of Peace (New York: Houghton-Miffin, 1989); Carol Cohn and Sara Ruddick, “A Feminist Ethical Perspective on Weapons of Mass Destruction,” in S. Lee and S. Hashmi, eds, Ethics and Weapons of Mass Destruction (Princeton, NJ: Princeton University Press, 2002), 405–435. Nancy Huston, “Tales of War and Tears of Women,” Women’s Studies International Forum 5 (3/4) (1982): 271–282; and J. Ann Tickner, Gender in International Relations: Feminist Perspectives on Achieving Global Security (New York: Columbia University Press, 1992). The conceptual conflation here is intentional, representing the same in the policy and academic worlds. As Cynthia Enloe observes, many belligerents do not make a distinction between “womenandchildren” as civilians. See Cynthia Enloe, The Morning After: Sexual Politics at the End of the Cold War (Berkeley, CA: University of California Press, 1993). Elshtain, Just War Theory, 266; Peach, “An Alternative to Pacifism.” This is because their opposition is seen as not correct but essential to maintaining their moral purity. In his 2002 State of the Union address, U.S. President George W. Bush defended the war in Afghanistan by arguing that “violence against women is always and everywhere wrong” and pointing out the Afghan government’s systematic pattern of encouraging or ignoring abuse of women. The National Organization for Women (NOW) in the United States agreed. Americans justified broadening the war on terrorism to Iraq by talking about the “American way of life” and “soccer moms’ ability to drive their kids to soccer practice.” The argument that the “beautiful soul” stereotype props up gender subordination more generally is based on the ways in which its limitations of women’s capabilities inside war can be read onto/translated into limitations on capabilities more generally as well as the just war tradition’s implicit support for gender differentiation in citizenship status and other social roles.

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26. Jill Steans, Gender and International Relations: An Introduction (New Brunswick, NJ: Rutgers University Press, 1998), 81. 27. There are those who have an alternative understanding of this relationship. See R. Charli Carpenter, Innocent Women and Children: Gender, Norms, and the Protection of Civilians (London: Ashgate, 2006); and R. Charli Carpenter, “Women, Children, and Other Vulnerable Groups: Gender, Strategic Frames, and the Protection of Civilians as a Transnational Issue,” International Studies Quarterly 49 (2) (2005): 295–335. While, in previous work, I have addressed these differences in depth (Sjoberg, “The Gendered Realities of the Immunity Principle”), it is important to note two key points here: first, that work that considers gender subordination rather than just gender as a variable has not only different epistemological and methodological approaches but also different (and I argue richer and more accurate) empirical results; and that violence against women and men must be understood in a larger context of gender symbolism in global politics. 28. Tickner, Gender in International Relations; J. Ann Tickner, Gendering World Politics (New York: Columbia University Press, 2001); Joshua S. Goldstein, War and Gender: How Gender Shapes the War System and Vice Versa (Cambridge, UK: Cambridge University Press, 2001). 29. Goldstein, War and Gender, 53. See also Steans, Gender and International Relations, 13, arguing that feminism can see statehood “as a process. That is, the state is not seen as a ‘thing’, an entity with independent existence, but actually a dynamic entity which is constantly being made and remade.” She explains that a static understanding of the state is reductionist, reifying, methodologically individualist, and fails to recognize the union of theory and practice. 30. V. Spike Peterson, “Transgressing Boundaries: Theories of Knowledge, Gender, and International Relations,” Millennium: Journal of International Studies 21 (2) (1992): 197. 31. Nira Yuval-Davis, Gender and Nation (London and Thousand Oaks, CA: Sage, 1997), 145; Peach, “An Alternative to Pacifism.” 32. Sjoberg, Gender, Justice, and the Wars in Iraq, citing V. Spike Peterson, “Sexing Political Identities/Nationalism as Heterosexism,” International Feminist Journal of Politics 1 (1) (1999): 34–65. 33. Tickner, Gender in International Relations, 51. 34. Lucian Ashworth and Larry Swatuck, “Masculinity and the Fear of Emasculation in International Relations Theory,” in Marysia Zalewski and Jane Parpart, eds, The “Man” Question in International Relations, (Boulder, CO: Westview Press, 1998), 86; Elshtain, Just War Theory, 263. 35. Tickner, Gender in International Relations; Tickner, Gendering World Politics; Sarah Brown, “Feminism, International Theory, and International Relations of Gender Inequality,” Millennium: Journal of International Studies 17 (3) (1988): 461–475. 36. Christine Sylvester, “Feminists and Realists on Autonomy and Obligation in International Relations,” in V. Spike Peterson, ed., Gendered States (Boulder, CO: Lynne Rienner Press, 1992).

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37. Mary E. Hawkesworth, “Knowers, Knowing, Known: Feminist Theory and Claims of Truth,” Signs: Journal of Women in Culture and Society 14 (3) (1989): 533–557. Many feminists see the patriarchal state, the war system, the rational man, and international anarchy as constructs of imperial hermeneutics which police meaning in global politics; meaning, in turn, controls the content of international relations stories; which, in turn, limits policy choices. 38. Nancy Hirschmann, “Freedom, Recognition, and Obligation: A Feminist Approach to Political Theory,” American Political Science Review 83 (4) (1989): 1227–1244. For example, women who become pregnant as a result of rape have assumed responsibility involuntarily. Even though they have not “volunteered,” they now have a responsibility to decide whether to continue the pregnancy, and the attendant responsibilities either to do the work associated with the pregnancy or to terminate it. Each requires action on the part of a woman; the example demonstrates that the supposed voluntariness of social contract – born responsibility is gendered. 39. Karen Jones, “Gender and Rationality,” in Alfred R. Mele and Piers Rawling, eds, Oxford Handbook on Rationality (Oxford, UK: Oxford University Press, 2004), 301–321. 40. Peterson, “Sexing Political Identities/Nationalism as Heterosexism.” 41. Margaret Atherton, “Cartesian Reason and Gendered Reason,” in Louise M. Antony and Charlotte Witt, eds, A Mind of One’s Own: Feminist Essays on Reason and Objectivity (Boulder, CO: Westview Press, 1993), 19; Sara Ruddick, “Pacifying the Forces: Drafting Women in the Interest of Peace,” Signs: Journal of Women in Culture and Society 8 (3) (1983): 474. 42. Jones, “Gender and Rationality,” 301. 43. Genevieve Lloyd, “Maleness, Metaphor, and the ‘Crisis’ of Reason,” in Louise M. Antony and Charlotte Witt, eds, A Mind of One’s Own: Feminist Essays on Reason and Objectivity (Boulder, CO: Westview Press, 1993), 77. 44. Sally Haslanger, “On Being Objective and Objectified,” Antony and Witt, eds, A Mind of One’s Own: Feminist Essays on Reason and Objectivity (Boulder, CO: Westview Press, 1993), 85. 45. Sjoberg, “Why Just War Needs Feminism Now More Than Ever.” 46. W.B. Slocombe, “Force, Pre-emption, and Legitimacy,” Survival 45 (1) (2003): 117–130. 47. Jean Bethke Elshtain, “The Problem with Peace,” Millennium: Journal of International Studies 17 (3) (1988): 441–49. 48. Eckert, “Just War Theory and War in the Private Sphere.” 49. Hilary Charlesworth, Christine Chinkin, and Shelley Wright, “Feminist Approaches to International Law,” American Journal of International Law 85 (4) (1991): 626. 50. Eckert, “Just War Theory and War in the Private Sphere.” 51. Ibid. 52. Sjoberg, Gender, Justice, and the Wars in Iraq. 53. Laura Sjoberg, “Security Studies: Feminist Contributions,” Security Studies 18 (2) (2009): 183–213.

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54. Cynthia Enloe, Maneuvers: The International Politics of Militarizing Women’s Lives (Berkeley: University of California Press, 2000). 55. Charlotte Hooper, Manly States: Masculinities, International Relations, and Gender Politics (New York: Columbia University Press, 2001), 31. 56. Enloe, Maneuvers. 57. Christine Sylvester, Feminist International Relations: An Unfinished Journey (Cambridge, UK: Cambridge University Press, 2002). 58. Sjoberg, Gender, Justice, and the Wars in Iraq. 59. Christine Sylvester, Feminist Theory and International Relations in a Postmodern Era (Cambridge, UK: Cambridge University Press, 1994), 96; Jill M. Bystudzienski, ed., Women Transforming Politics: Worldwide Strategies for Empowerment (Bloomington, IN: Indiana University Press, 1992); Sandra Harding, Is Science Multicultural? (Bloomington, IN: Indiana University Press, 1998). 60. Sylvester, Feminist International Relations, 119–120. 61. Sjoberg, Gender, Justice, and the Wars in Iraq. 62. Vivienne Jabri, “Explorations of Difference in Normative International Relations,” in Vivienne Jabri and Eleanor O’Gorman, eds., Women, Culture, and International Relations, (Boulder, CO: Lynne Rienner, 1999), 39–60. 63. June Lennie, “Deconstructing Gendered Power Relations in Participatory Planning: Towards an Empowering Feminist Framework of Participation and Action,” Women’s Studies International Forum 22 no. 1 (1999): 107. 64. Fiona Robinson, Globalizing Care: Ethics, Feminist Theory, and International Relations (Boulder, CO: Westview Press, 1999), 47. 65. Ibid. 66. For instance, President Bush’s 6 November 2001 declaration to the world that there was no room for neutrality in the war against terrorism, “you are either with us or against us.” 67. Sjoberg, “Why Just War Needs Feminism Now More Than Ever.” 68. See for example Crawford, “Just War Theory and the U.S. Counterterror War”; Robert Imre, T. Brian Mooney, and Benjamin Clarke, Responding to Terrorism: Philosophical and Legal Perspectives (Aldershot, UK: Ashgate, 2007); Jean Elshtain, Just War against Terror: The Burden of American Power in a Violent World (New York: Basic Books, 2004). 69. J. Ann Tickner, “Hans Morgenthau’s Principles of Political Realism: A Feminist Reformulation,” Millennium: Journal of International Studies 17 no. 3 (1988): 429–440; and Susan B. Boyd, ed., Challenging the Public – Private Divide (Toronto, ON: University of Toronto Press, 1997). 70. Edward S. Hermann and Noam Chomsky, Manufacturing Consent: The Political Economy of Mass Media (New York: Pantheon Books, 1988). 71. See Department of Defense Dictionary of Military Terms, 2008, available at http://www.dtic.mil/doctrine/jel/doddict/data/t/05488.html (accessed 1 July 2008); Stanley D. Brunn, 11 September and Its Aftermath: The Geopolitics of Terror (London: Routledge, 2004).

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72. Iris Marion Young, “The Logic of Masculinist Protection and Reflections on the Current Security State,” Signs: Journal of Women in Culture and Society 29 no. 1 (2003): 1–24. 73. Mira Sucharov, “Anthologizing the Peace Process,” in Laura Eisenberg, Neil Caplan, Naomi Sokoloff, and Mohammed Abu-Namir, eds., Traditions and Transitions in Israel Studies: Books on Israel, Volume 6 (Albany, NY: State University of New York Press, 2003), 2. 74. As described by Tickner, Gendering World Politics, 62. 75. Sjoberg, Gender, Justice, and the Wars in Iraq, 65. Alternative right authority arguments have contended that God (e.g., Aquinas and Augustine) and internationally recognized institutions sanctioned by international law (Walzer, Just and Unjust Wars) could be seen as proper authority. 76. Amy Allen, “Rethinking Power,” Hypatia 13 no. 1 (1998): 21–40. 77. Hannah Arendt, On Violence (New York: Harvest Books, 1970); Sjoberg, Gender, Justice, and the Wars in Iraq, 69; Lennie, “Deconstructing Gendered Power Relations in Participatory Planning,” 104. 78. Sylvester, Feminist Theory and International Relations. 79. Sjoberg, Gender, Justice, and the Wars in Iraq, 78. 80. Sjoberg, “The Gendered Realities of the Immunity Principle.” 81. Ibid. 82. Robin May Schott, “Gender and ‘Postmodern War’,” Hypatia 11 no. 4 (1996): 19–29. 83. Hooper, Manly States, 31; R. W. Connell, Masculinities (Berkeley, CA: University of California Press, 1995). 84. For example, see the 19 January 2006 White House Briefing by Scott McClellan, stating in relevant part that “We [the United States] do not negotiate with terrorists. We put them out of business . . . at a time and place of our choosing,” available at http://www.whitehouse.gov/news/ releases/2006/01/20060119-6.html (Accessed 29 December 2008). 85. See Chandra Talpade Mohanty, Feminism without Borders: Decolonizing Theory, Practicing Solidarity (Durham, NC: Duke University Press, 2003). 86. Gayatri Spivak, “Can the Subaltern Speak?,” in Cary Nelson and Larry Grossberg, eds, Marxism and the Interpretation of Culture (Urbana, IL: University of Illinois Press, 1988), 271–313. 87. See Allen, “Rethinking Power.” 88. Walzer, Just and Unjust Wars, 110. 89. Ibid., 117. 90. James Turner Johnson, Can Modern War Be Just? (New Haven, CT: Yale University Press, 1984), 28–29. 91. Sigal Ben-Porath, “Care Ethics and Dependence—Rethinking Jus Post Bellum,” Hypatia 23 (2) (2008): 61–71. 92. George W. Bush, “The State of the Union Address,” Los Angeles Times, 29 January 2003. 93. See Chapter 9 in this volume. 94. Sjoberg, “Why Just War Needs Feminism Now More Than Ever.” 95. Ibid.

CHAPTER

8

“Justice is Conscience”: Hizbollah, Israel, and the Perversity of Just War1 Brent J. Steele and Jacque L. Amoureux

This chapter uses the 2006 war between Israel and Hizbollah to investigate how just war conditions help shape and are shaped by discourses of power. Since these discourses are decidedly state centric, we assert that just war is ultimately a doctrine which protects material power by enshrining it with a legitimacy it often times does not deserve, and that this protection is becoming even more pronounced and troubling in an era of hegemonic crisis and hetero-sovereignty. We contend that, above all, ethical traditions and practices should be useful for addressing the dilemmas of international politics that we presently face, and we argue that in this regard the just war tradition has not adequately accommodated the role of non-state actors in conflict and, more generally, constitutes a problematic way of thinking about ethics. The point of our discussion is not just to express skepticism about the just war tradition, but also to suggest criteria for alternative ethical practices and traditions that may ultimately prove more satisfactory for navigating international politics. Part of this skepticism stems from the fact that we do not write about the just war tradition hermetically sealed from recent and current global political events. We are not the first scholars to have reservations about

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just war theory, and we suspect that other skeptics were influenced, as we are now, by the historical contexts in which they expressed their concerns. Even Michael Walzer, whose (albeit “conservative”) defense of just war still remains seminal, contextualized his theorizing as taking place in the wake of “those angry years of controversy” following the Vietnam War. He states in his first preface that “I did not begin by thinking about war in general, but about particular wars, above all about the American intervention in Vietnam.”2 Yet Walzer’s foremost task, he tells us, was “to defend the business of arguing . . . in moral terms.”3 The present authors are not entirely unsympathetic to this viewpoint. Just as Walzer found frustrating the separation of moral language from the analytical language of the 1960s social scientist, we find the separation of morals from scientific analysis in the field of International Relations (IR) not only frustrating, but also curiously incorrect. We entered graduate school in the wake of the humanitarian disasters of the 1990s, and in our second week of classes the present authors remember sitting in a University of Iowa seminar room during a sunny fall day in September, watching the World Trade Center towers burn to the ground. Moral language overwhelmed the words used by U.S. policymakers in their reactions to such events,4 yet even that short time ago we were tasked with reading works in our field which had little to say about this. And of course, the recent actions in Afghanistan and Iraq have also influenced the skepticism we both hold regarding the just war tradition, as its precepts were invoked by politicians and scholars alike to justify these wars. This situated position is not unusual, for this century seems to begin by continuing the precedent set in the last one, when, according to Nicholas Rengger, “the specific context for writing about the just war . . . has tended to be generated by events in the political world.”5 But Walzer seems to assume, at least in 1977, that the “business of arguing in moral terms” and subsequent moral action is the solution. For Walzer, the “danger is moral indifference, not economic greed or power lust.”6 We, on the other hand, think that such an approach may be part of the problem. It is not the absence of moral language and ethical argumentation that has been problematic. Rather, it is the type of moral argumentation and reasoning that has proved inadequate and even pernicious in addressing pressing ethical questions. Unlike several previous critical academic analyses of the just war tradition (e.g., Bull, Rengger), we do not conclude that just war and how it is employed simply needs to be reformed.7 An article by Donald A. Wells, written almost a decade before the publication of Walzer’s treatise, makes a vivid case that just war doctrine can plausibly justify anything—from thermonuclear warfare to genocide.8 In

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addition, we argue that the universalizing moral discourse of the just war tradition has all too often facilitated imperial ventures and failed to stem conflict. This may seem to some readers to be an extreme view, but we think it begs the question of whether the “moral discourse” of just war actually contributes to the problem of violence. More recently, and along the same lines, Anthony Burke stated that, Moral arguments—including, incredibly, “just war” arguments—have been used to support waging war against Iraq. In their wake, we face the sobering realization that moral discourses are part of the warrior’s political armoury; . . . . In short, moral rules about war’s justification, process and restraint may function not so much as limitations on war as tools for its liberation.9

In looking over the tradition of just war thinking, Rengger posits (accurately in our view) that it has been asserted through the states system, and it is “states [who are] presumed . . . to have a right of war in defence of their interests.”10 This tradition has helped reinforce the notion that stateled violence is legitimate, so long as it accords with just war precepts, and concomitantly it has contributed to the marginalization of non-state actor violence as illegitimate (which is the subject of this volume). Again, the moral discourses of war have helped reinforce the belief that states have a right to wage war and non-states do not. As we detail here, the just war narrative is troubling because it makes it easier for states to justify violence that takes place in the context of interaction between states and non-states on the basis of actorhood alone, rather than the ethical issues at hand. One additional development we monitor is the decidedly liberal basis of these moral discourses of just war. We must proceed cautiously here, because there is a difference between making a sweeping claim that liberal societies or even (all) liberal academics reinforce just war’s endorsement of violence, and liberal assumptions about international politics shaping the nature of contemporary just war understandings. It is the latter claim we are making. Still, Rengger’s position that liberal societies have been ambivalent to the just war tradition because of their “avowedly pacifist” stance needs to be configured with more nuance.11 The work of Hans Morgenthau is colored by the attempt to make sense of this “ambivalence,” discussing how: Liberal condemnation of war is absolute only in the ethical and philosophical sphere and with respect to the ultimate political goal. In immediate political application, this condemnation is qualified and holds true only for wars which are opposed or irrelevant to liberal aims. . . . When, on the

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other hand, the use of arms is intended to bring the blessings of liberalism to peoples not yet enjoying them or to protect them against despotic aggression, the just end may justify means otherwise condemned. . . . Their legitimacy derives directly from the rationalistic premises of liberal political philosophy.12

Morgenthau here identifies the difference which exists on the issue of war between liberal philosophy on the one hand and its implementation into practice on the other.13 Our investigation also concludes, contra Rengger, that assumptions at the heart of liberal theory can still find a proclivity for violence, further reinforced by the sheen of liberal notions of morality. For it seems that Morgenthau’s understanding of the liberal practice regarding war is more accurate than Rengger’s, thus making intelligible the audacious claim, made by liberals two months before the Abu Ghraib scandal broke, that “the biggest problem with the Bush preemption strategy may be that it does not go far enough.”14 This third development is most apparent in the wake of U.S. participation in the Iraq War—with the liberal academics who supported it, the moral discourses used to legitimate it, and the context that the liberal democratic peace proposition established in that legitimation.15 Just War Perspectives We begin this section by interrogating the “purpose” of just war. We defend our main thesis by situating it alongside similar critical approaches to just war that challenge its state-centric status and the particular subjectivity just war theory promotes. We focus in this chapter upon two contending perspectives regarding just war, within which several subpositions can be identified. The Case for Just War

It is important here to consider the countervailing views on just war, and what accord they admit for non-state actors. What we term the legalist position on just war “refines” war, making it more civilized and hospitable, and identifies aggressors and criminals. As Alex Bellamy suggests, legalists positioned the state as a social fact so that they could “insist on state consent as the basis for a limited yet authoritative international law.”16 In this perspective states should go to war for purposes of self-defense and securing peace and as a last resort. States’ right to self-defense, however, has been interpreted broadly from within the just war tradition to

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include the protection of other states that come under threat. For example, Walzer argues that “when crimes are being committed that ‘shock the moral conscience of mankind’ . . . any state that can stop them should stop them—or, at the very least, has the right to do so.”17 Just war stipulations continue even after military conflict has begun. Walzer notes that “the tyranny of war is no more limitless than is political tyranny. . . . [W]e can recognize and condemn particular acts within the hell of war.”18 States at war should thus discriminate between combatants and civilians when applying force (“discrimination”) and should only use force that is proportionately appropriate for securing the end of peace (“proportionality”). In this view, death and suffering are “regrettable” but justified because they are “unintentional,” “collateral,” or “necessary.”19 In sum, the legalist interpretation of the just war tradition views war as a necessary evil among states that preserves their existence and security. War can be employed to these ends when other more humane measures fail and it serves to minimize death and destruction during war that is not necessary for prevailing over the enemy. There is, however, a more sophisticated interpretation of just war possible in spatial-temporal contexts—one that was mentioned briefly in the Heinze and Steele introduction to this volume which sees such precepts as constructed rules or principles which have legitimacy in an international society and thereby ensure stability and order. This is the English School position most notably articulated by Martin Wight and Hedley Bull.20 These principles represent intersubjective agreements, and during certain epochs they have effectively constrained the actions of states. The legitimacy of these principles, as identified by Ian Clark, is explicated from two possible understandings. The first basis is “agreement and consensus” in the international system.21 It is this agreement that solidifies the resulting order, or at least is perceived to provide order and stability, for members of an international society. Consensus is influenced in part by both how often members observe those principles or, when they are compromised, that the violating member provides some discursive justification for their violation. A second basis identified by Clark, however, is more imperative here: “legitimacy . . . [in this sense] is much more concerned with principles governing admission to, and recognition by, international society.”22 Similar (although not identical) to the legalist position that states are proper authorities, this international society assertion sees a constitutive or formational origin for the principles of an international society, and thus the “who” determines the “what” of that society. Clark explains that “this consensus applies restrictively to the basis of international society, and the articulation of criteria for rightful membership of it.”23 Membership

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criteria can change over time as evidenced by, for example, the transition from a Christian society to a European state-based society which “marked a shift in the underlying foundations of international society.” Criteria for just war shifted during this transition as well.24 In short, the basis for membership in Westphalian international society has given rise to statecentric societal principles, including those of just war, thus isolating, to some degree, the influence that non-state actors, since they are not legitimate members, can and have had upon the content of those principles. Yet a wrinkle to this notion that just war doctrine delegitimizes nonstate participation and legitimacy appears in more recent work by Clark.25 Here, he demonstrates instead how world society actors have effectively promoted principles, at opportune times throughout the past two centuries, which were then implemented and acted upon by nation-states in international society. This is an interesting position, in that it argues how certain non-state actors have had a complementary influence (which constitute world society) all along, upon international society. Thus, there is a place, albeit limited, for non-state actors to help constitute the rules of international society, including those that constrain actors in going to war and conducting it. Most relevant in this vein are the Hague Conferences of 1899 and 1907, which regulated warfare and specifically the status of combatants, and the activity of nongovernmental organizations (NGOs) in helping to shape and craft some of these rules into recognized international law.26 The Critical Response

Certain philosophical traditions share, to varying degrees, the skeptical view taken by the current authors regarding the just war tradition. While Walzer suggests that his just war theory is, as he titles his first chapter, “against realism,” Alex Bellamy notes that “there are good grounds for maintaining a realist strand within an account of the Just War tradition.” Bellamy discusses three reasons for this: (1) realists have a conception of morality, (2) they are concerned with normative issues of war and conflict, and (3) power politics influence and are influenced by the issues of legitimacy of war.27 Indeed, without considering how just war conditions have been formulated from within certain relations of power, one is left with a very shallow understanding of that tradition. Bellamy, for example, notes that “prudential considerations are related to criteria of proportionality and reasonable chance for success.”28 Regarding the latter, one of the current authors concludes a recent study of Belgium’s decision to fight Germany in 1914 by stating, “Prudence is the normative by-product of the ‘survival’ assumption” that pervades IR security theories.29

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While realism is important for only a couple of just war conditions, its benefit lies in its analytical abilities rather than its responsibility for the tradition. Classical realists like John Herz, Reinhold Niebuhr, and Hans Morgenthau were anything but “amoralists,” yet they were concerned about the proclivity of idealistic nationally valid morality to assume that it was universally legitimate.30 This was where conflict occurred. Great powers will shape an international system in their own favor, and that will most likely include influencing notions of “justice,” but classical realists also recognized that the reaction by the have-nots in an international system recognizes those notions as an exercise of power, not justice. The “seduction of power” was enough to contaminate those nationalized notions of justice from being universalized, as Thomas Smith notes: “While only power could mitigate abuses of power, this mitigation could never be exercised with easy conscience. It was perhaps for this reason that Niebuhr so seldom spoke of just war, which might too easily rationalize killing.”31 As such, we consider the classical realist tradition to be what we term a “critical voice” when it comes to just war. Again, as we posited in our introduction, the moral discourse of just war problematically imbues violence with a sense of legitimacy. Yet it has also had the perverse effect of undermining the very values it claims to promote. Patricia Owens explains how intentionality (whether civilians’ deaths are intended or civilians are targeted in military attacks) has served a discourse of “accidents” (“unfortunate events for which liberal states cannot properly be held to account”) that normalizes and legitimizes violence against the very persons humanitarian efforts claim to protect: The “humanitarian” rationale for force makes it more difficult to defend violence both logically and politically if great harm is caused to civilians. Bearing this calculation in mind, describing civilian casualties as “accidents” forms an integral part of the project of justifying war. With such opting out of accountability, however, the risks of entrepreneurial warfare . . . are legitimated because no one in power saw or wanted their consequences.32

The just war tradition is usually interpreted as permitting civilian deaths when these deaths are not directly intended.33 Civilian deaths are regrettable but permitted as long as their deaths are not part of the motivation that precedes specific actions in warfare and they are not directly targeted during warfare. Owens’ analysis of civilian deaths not only problematizes how and which technology is used in war, but also whether modern warfare is “humane” enough to warrant the wide scope of violent action that

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the just war tradition validates. “[R]e-reading the accidents of high-tech warfare brings death front and centre to the analysis.”34 All too often, death and the long-term consequences of war on civilians and soldiers are secondary concerns for those that employ the justificatory discourse of the just war tradition. Before, during, and after wars, just war discourse is used by states and theorists to argue that one state’s cause is or was “just” and thus the focus is on the state’s reasons for starting the war and its intentions during war, rather than the actual experiences of civilians and soldiers during and after the war. For example, of soldiers, Robin May Schott notes that “studies show that soldiers who have actively participated in violent combat experience lasting marks, including a higher incidence of suicide, fatal car accidents, poisonings, and drug overdoses, as well as arrests and acts of violence, than comparable groups.”35 Put another way, when we are investigating and evaluating war in terms of “just war” doctrine, we are ultimately justifying (or attempting to justify) the death and destruction of human beings. As Burke explains: “For those who assume that the application of morality to foreign policy or war-making implies a radical critique of strategic violence—one that seeks to abolish it or at least to control its use—it may be surprising that moral convictions can be placed in its service.”36 Burke insists that even by its own standards just war theory is an ethical failure. Other critical voices echo this position. At minimum, as Wells notes, “what the notion of ‘the just war’ attempts to do is to show that under some circumstances it would be ‘just’ to perform immoral acts and to contribute to evil consequences.”37 Those who have waged violence “successfully” (in the sense that they survive those episodes) have sought to enshrine their victories with just war doctrine. One of the other contributors to the current volume, Laura Sjoberg, asserts in her other work that “just war is a moral framework, but it is also a system of moral hero-stories that justify and legitimate wars that have been fought and wars that are yet to be fought.”38 The proper authority condition of just war has been particularly responsible for favoring the powerful. Burke asks: “who gets to wage war? Does every sufferer of harm and injustice, or merely those who have the power and the means, and who can turn their justifications into truth?”39 We might thus ask, as Burke does, whether non-state actors such as the Palestinians had, at various times, a “right to wage war” and whether this conflicts with those “who believe that the conflict must be resolved with a measure of security and justice for both peoples.”40 Burke concludes: “In short, the weak do not get to wage just war. Their ‘innocence’ goes undefended.”41 As Bellamy notes regarding wars conducted during the Middle Ages, “successive popes made crusades possible by claiming that the papacy had the right to speak for God and command wars and that

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participation was penitential. The holy war doctrine effectively gave the pope the highest authority to wage war and rejected the idea of constraints on conduct.”42 And of final note, Theodore Koontz asks if the focus by historically powerful groups (like the Catholic Church) upon intentions and motives behind a conflict is “even a way of rationalizing to themselves their [past] hurtful behavior—[something] that the weak cannot afford?”43 We must ask whether the just war tradition has been employed to preserve the sovereignty of particular political communities under the guise of establishing more humane parameters on conflict or the pursuit of “justice.” In sum, by delimiting proper authorities, jus ad bellum helps enshrine the legitimacy to use force with those status-quo organizations and entities most likely to deploy it to further their own, self-interested purposes and perhaps the order of the system (or the system’s ordering principle). Today, these organizations are mainly nation-states or alliances of nation-states (e.g., NATO). In its own way, this condition of just war attempts to further discipline localized organizations that challenge the supremacy of the state. The July War The complete background to the July War between Hizbollah and Israel is varied and cannot be fully related here,44 but for analytical purposes the contours of the relationship between the two entities should be outlined. Hizbollah is a Shia Muslim organization which developed during the Lebanese civil war (1975–1990), and specifically in reaction to the Israeli incursion into Lebanon in the early to mid-1980s. It has represented the Shia community within (and sometimes against) a fragile Lebanese state where Maronite Christians and Sunni and Druze Muslims also predominate. Begun as a military organization attempting to expel Israeli forces from southern Lebanon, by the late 1980s and early 1990s Hizbollah began to engage Lebanon’s political system. It also provided many social and welfare services to the Shia populations in Beirut and southern Lebanon—services that the Lebanese state less effectively provided.45 It founded the Islamic Health Organization, subsidized education, rebuilt buildings damaged during the civil war, and established philanthropic organizations.46 Several events in Israeli – Hizbollah relations leading up to the July War are noteworthy. On 24 May 2000, Israel withdrew its forces from southern Lebanon, although it kept forces in the Shebaa Farms area found along the Golan Heights. Later in the year, on 10 October 2000, in this disputed area three Israeli soldiers were captured by Hizbollah, and used

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as bargaining chips for prisoners it wished to see released from Israeli prisons. This was not the first time Hizbollah had used such a strategy for exchange, having done so on three other occasions in 1986, 1996, and 1998.47 Over the course of the next three and a half years, and with the ultimate assistance of German mediators, an agreement was worked out regarding an exchange. In January of 2004, the exchange occurred, and 423 prisoners, 23 of which were Lebanese, were freed in exchange for the Israeli soldiers.48 This series of exchanges between Israel and Hizbollah is thus important when one considers the subsequent capture of two Israeli soldiers on 12 July 2006 by Hizbollah fighters. Hizbollah leader Hasaan Nasrallah would later admit that his organization had miscalculated what would ultimately be, compared to the responses to previous captures, a very heavy Israeli response.49 Yet even before the Israeli response to this particular capture, Israel deviated from the “rules of the game” developed between the two sides over the years since the Israeli withdrawal of 2000, following Hizbollah’s rocket attacks of May 2006. In this instance, “Israel opted for a more robust response, shelling twenty Hezbollah positions along the border. . . . Hezbollah responded by upping the ante still further by launching eight Katyusha rockets.” Thus, prior to the 12 July 2006 capture, “both sides were clearly itching for a fight.”50 From 13 to 15 July 2006, Israel responded with a multipronged retaliatory attack—a sea blockade of Lebanon, bombing the Beirut airport (where supplies for Hizbollah could arrive from Iran and Syria), and establishing an area for saturated bombing in southern Lebanon, targeting what it thought to be areas where Hizbollah fighters were based. The war continued throughout July and into August, when the United Nations Security Council passed Resolution 1701. This resolution eventually ended the hostilities by calling for the Israelis to withdraw from southern Lebanon (which they had occupied since the end of July), and the deployment into that region of the Lebanese army. The blockade of Lebanon was lifted in September, and by the end of that month most Israeli soldiers had withdrawn back to Israel. “Cowardly Blending” In this section, we make sense of the relatively hostile international reaction to Hizbollah during this war, but begin by independently. A host of English School authors have recently grappled with interpreting the role played by terrorist organizations in, or against, international society.51 The two most visible studies, those conducted by Richard

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Devetak and Barak Mendelsohn, helpfully distinguish between groups that challenge the legitimacy of one particular state from the transnational or “new” terror organizations.52 While organizations in the former category, such as the Palestine Liberation Organization (PLO), the Irish Republican Army (IRA), and the Kurdistan Worker’s Party (PKK), compromise the rules of international society by challenging “the exclusive authority [of one state] to use violence domestically or externally,” they also, “by aspiring to statehood, actually reinforce [international society] by reifying the state as the fundamental political unit.”53 This is a helpful distinction to keep in mind when assessing the legitimacy of Hizbollah as an organization, as well as the legitimacy of Hizbollah’s actions against the Israelis in the July War. According to Bellamy, non-state actors have “two possible ways of justifying” their use of force: (1) historical right of oppressed groups to rebel; (2) and a “[r]ight of groups to rebel if the sovereign has been dissolved or has been unjustly overrun by a foreign power.”54 In both of these, a case can be made that Hizbollah is a proper authority to use force, even though it is technically a non-state organization. As mentioned before, Hizbollah represents a Shia population that has historically been marginalized in Lebanese politics. It performs many state-like functions (education, welfare, infrastructure, and other social services). Additionally, Lebanon can hardly field enough of a security force to protect its southern areas. Indeed, when UN Security Council Resolution 1702 called for the deployment of the Lebanese army into southern Lebanon to work as a peacekeeping force, it ended up working with, not against, Hizbollah and the Shia population. The reason is that roughly half of the Lebanese army is itself Shia.55 Finally, Hizbollah demonstrated a statelike set of military capabilities during the July War, proving that it was the only defensive force capable of protecting southern Lebanon. Bellamy also lists three conditions that a non-state actor must meet in order for it to be considered a proper authority.56 The first of these is that there must be evidence of large support for the organization in an identifiable political community. On this condition, there’s evidence that Hizbollah enjoys support amongst the Shia population of Lebanon. Despite the prediction of clairvoyant commentators like Charles Krauthammer that an “Arab Spring” of 2005 would cause the demise of groups like Hizbollah,57 in the elections of that same year Hizbollah won “all twenty-three available seats in southern Lebanon and more than a quarter of all seats in parliament.”58 The second condition, that the non-state actor’s violence must also be supported by this community, also seems to be met, at least in relation to the July War. Several surveys conducted from July

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through October of 2006 demonstrate than enormous majorities (around 85%) of Shia supported Hizbollah’s military activities—and in several surveys a majority of the Lebanese population, including Christians, Sunnis, and Druze, supported Hizbollah’s actions as a whole.59 Bellamy’s other condition—that this actor must also show “that they are capable of controlling their members and making and upholding their agreements to others”60 —is a bit difficult to either confirm or reject in the case of Hizbollah. We would add a caveat here that such a condition (especially controlling members) is compromised routinely by nation-states, so this condition, while important, is less so than the other two. Nevertheless, two of these three conditions can be relatively confirmed here, and thus Hizbollah was a proper authority at the time of its fight with Israel in the July War. This is not to ignore, of course, the violations of international law that Hizbollah committed when it fired rockets into Israeli towns in an indiscriminate manner, as detailed by an Amnesty International Report.61 We of course abhor such tactics. But in relative terms, its conduct is surely no worse (or better) than that of many liberal democracies. Yet what distinctions remain between Hizbollah and state actors? It might prove in this case difficult to accept Bellamy’s argument that the only condition which distinguishes “terrorist” organizations from nonterrorist groups is the former’s intentional targeting of civilians,62 because one would have to “prove” this intentionality. As the work by Sjoberg, Burke, and Owens has pointed out, the intentionality of state actors is very problematic to determine. Especially when it comes to aerial bombing, state agents can pay lip service to their intention to avoid civilian casualties, and then engage in tactics which do nothing but imperil those civilians. What is the difference, we would ask, between the bomb dropped in a civilian area which “targets” an enemy, and the civilians who died in the random Hizbollah attacks? Furthermore, it should be noted that the precipitating cause of the July War was a Hizbollah raid that captured not Israeli civilians but soldiers, and many of Hizbollah’s rockets targeted Israeli military installations. Rather than taking one side or the other, we argue that the actions of both Israel and Hizbollah should be scrutinized while setting aside which organization is more politically legitimate. Furthermore, even if Hizbollah maintains many of the conditions of a proper authority, during this conflict it was delegitimized by global power centers in terms familiar to just war. From the beginning of hostilities, many international actors condemned Hizbollah’s capturing of the Israeli soldiers, although most additionally called upon Israel to restrain its retaliation to a proportional response. Noteworthy here is how in the early stages of the war the Sunni Arab states of Saudi Arabia, Jordan, Egypt, and

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the United Arab Emirates (UAE) condemned Hizbollah.63 The United States picked up on this condemnation by spinning it to reinforce the state-centric bias against the right of non-state groups to use force. On 14 July, Bush administration press secretary Tony Snow stated that, there’s an important point to note here: the attacks by Hezbollah, which, again, to reiterate—I’ll use the Saudi phrase once again, “without recourse to legal authority and consulting and coordinating with Arab nations”—it is clear that the Arab nations—that Saudi Arabia, that the Jordanians, that the Egyptians do not look upon Hezbollah as being a legitimate government entity, as a matter of fact, they look upon it as an active threat to the government of Lebanon.64

In Germany on 13 July, President Bush, while supporting Israel’s “right to defend herself,” also called the actions of Hizbollah “pathetic” and branded it a terrorist organization that “will blow up innocent people in order to achieve tactical objectives.” The problem with this, as mentioned earlier, is that the Israelis of course were responding not to Hizbollah suicide bombers, but to violence incurred against soldiers. Nevertheless, Bush’s use of the term “pathetic” helped to brand Hizbollah as illegitimate and weak.65 Shortly thereafter, Jan Egeland, the United Nations UnderSecretary for Humanitarian Affairs, on 24 July 2006, blamed Hizbollah for putting civilians in harm’s way: Consistently, from the Hizbullah heartland, my message was that Hizbullah must stop this cowardly blending . . . among women and children. I heard they were proud because they lost very few fighters and that it was the civilians bearing the brunt of this. I don’t think anyone should be proud of having many more children and women dead than armed men.66

Egeland’s comments are interesting in two respects. First, one might observe that by this point in the war Hizbollah was indeed feeling confident of its demonstrated strength although a more likely source for this pride would be less the civilian casualties that Egeland blames Hizbollah for, and more for its ability to withstand and even symbolically damage the Israeli military. By this point in the war, Hizbollah had flexed military muscles many had not thought it possessed—most visibly on 14 July when it hit an Israeli naval vessel off the coast of Beirut with an Iranianproduced C-802 missile.67 Throughout the war it would launch roughly 150 rockets per day, some with a range of up to 210 km.68 Despite this demonstration of state-like military capabilities, the perceived fact that Hizbollah was hiding amongst the civilian population provided pretext

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for Egeland to use the term “cowardly.” Second, the term “coward” to refer to terrorist groups had been used previously—most famously by President George W. Bush in his first remarks on 11 September 2001.69 The implication in Egeland’s comment is that Hizbollah was not “fighting” like a real army by hiding amongst the civilian infrastructure of south Lebanon and Beirut. There’s some persuasive evidence, however, that Hizbollah fighters were not as close to these targeted civilian areas after hostilities commenced as Egeland indicated. A report on the war conducted by Human Rights Watch (HRW) concluded that, While there were instances in which civilian deaths were “collateral damage” from legitimate attacks on military targets, during the vast majority of the deadly air strikes we investigated, we found no evidence of Hezbollah military presence, weaponry or any other military objective that would have justified the strike. Human Rights Watch visits to the graveyards in the villages found that the victims of these strikes were buried as civilians, and not honored as “fighters” or “martyrs” by Hezbollah or other militant groups, despite the pride that Hezbollah takes in these labels. Women and children account for a large majority of the victims of Israeli air strikes that we documented. Out of the 499 Lebanese civilian casualties of whom Human Rights Watch was able to confirm the age and gender, 302 were women or children.70

Like the indiscriminate firing of rockets into northern Israel, we should also mention here that no positions we take in our conclusion can justify the tactics that Hizbollah engaged in that were named in the same HRW report whereby “on some limited occasions, Hezbollah fighters have attempted to store weapons near civilian homes and have fired rockets from areas where civilians live.”71 However, as Sjoberg notes, “in practice, civilians have never been safe from war, and civilian protection is not improving over time.”72 Schott echoes this observation, noting that “civilian casualties in military conflict are almost as high as combatant casualties, and often are significantly higher.”73 Additionally, once an opponent disregards the immunity principle the offending side usually reciprocates by abandoning it as well. In the July War, Hizbollah was the primary military entity charged with defending southern Lebanon from a disproportionate (in jus ad bellum terms) Israeli attack.74 Once this proportionality threshold was breached, Hizbollah became in short an agent for southern Lebanon’s self-defense. What is the protocol for a force when it defends itself from an invading army—on its own soil? Further research is of course required here, but blaming the defender which is being attacked on its own territory for

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not “fighting out in the open” seems to us a bit curious. The point here, then, is again whether Hizbollah intentionally hid amongst civilians to put that population in danger—as guerilla forces would—in order to force the conventionally armed enemy to bomb those areas, thereby creating animosity amongst the civilian population for that conventional enemy. Yet like the intentionality of the conventional force whose bombs impact civilians, it is rather difficult to determine exactly what Hizbollah’s intentions were during the July War. And as Schott argues, “If intention is the sole guarantee of proper intention in double effect, then it can provide no criteria to distinguish between proper and improper uses of this principle.”75 What is not difficult to determine is that the result of the war led to an increase in Hizbollah’s prestige in Lebanon, and a concomitant decrease in Israel’s prestige in Lebanon and the international community.76 Israel’s status as a liberal democracy and the support for Hizbollah by nondemocratic Iran and Syria also shaped this delegitimizing narrative.77 The fragile state of Lebanon’s democracy was additionally referenced by U.S. policy makers.78 We leave it to others to comment on the moral status of Israeli democracy, but we duly note that Israeli democracy made possible the (Israeli) Winograd Commission, which heavily scrutinized and criticized Israeli policy during the July War. Such internal inspection is a welcome development. That said, we also make three observations here. Historically, the relationship between democracy and just war is mixed. As Bellamy notes, Athenian democracy acted as a corrosive on the soft forms of recognized customs that obtained prior to the Peloponnesian War due to Athenians’ “belief in the superiority of democracy over oligarchy.”79 There are problems with assuming, a priori, that liberal democracies will act to uphold just war precepts in their actions. Second, we would echo Tony Smith’s and Steele’s arguments that liberal democratic peace scholarship—which they posit influenced the debates regarding the Iraq War80 —also influenced the perception in the United States that Israel was the more legitimate authority because of its liberal democracy. Almost on cue, prominent democratic peace scholar R.J. Rummel concluded on his blog as the July War unfolded that while Israel was a democracy, Hizbollah was not: The war is not against, nor does it involve, the state of Lebanon. It is being fought by and against Hezbollah, which itself is a surrogate of Iran. Hezbollah controls the south of Lebanon, however it has no official connection with the Lebanese state, and the Lebanese army is not engaged in fighting Israel.81

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Notice here how despite the fact that Hizbollah had participated in Lebanese parliament for over a decade, Rummel is arguing that Hizbollah is simply a proxy for Iran, and that the Lebanese elections of 2005 and 2006 were “free but not fair,” at least when it came to Hizbollah’s electoral success.82 The point here is not whether the July War “falsifies” the democratic peace proposition—but that evaluations like Rummel’s regarding this war, and its participants’ levels of “democraticness,” exemplify the role that democratic peace scholars have played in the production of what Smith titles “the ideology of liberal democratic imperialism”83 and in this case, the delegitimization of the “justness” of non-state actors in international politics. But we can make even more sense of the precise American identification with Israel. Its position as an ally of the United States is of course a hot topic, most recently front and center in John Mearsheimer’s and Stephen Walt’s work on the Israel lobby’s interest group influence within U.S. politics.84 But a more comprehensive understanding of the place of Israel exists when we consider that it has served as a vicarious proxy for U.S. identity—especially during various moments in American foreign policy history. Melanie McAlister identified how, beginning after the 1967 Six-Day War (when Israel’s preemptive attack garnered it swaths of Arab territory), Israel became an “investment as the answer to Vietnam. What emerged . . . was an increased investment in an image of a militarized Israel, one that represented revitalized masculinity and restored national pride.”85 In 2006, it is no stretch to point out that the United States – led war in Iraq was going rather poorly, and American elites in this reading may have viewed the Israeli operation against Hizbollah as a way to cathartically release some of the frustrations it faced in Iraq. Toward Some Productive Alternatives to Just War What conclusions should we make in light of this study regarding the just war tradition itself? We have several options here. One might posit that this tradition has been quite elastic over the centuries, and that if just war predates the rise of the nation-state system, it will, even begrudgingly, accommodate the transformation of international politics and its constitutive elements. In the words Bellamy uses to conclude his study, “the tradition that emerges from this is pluralist and indeterminate, but it is precisely its pluralism and indeterminacy that give the tradition its centrality as a common framework, and it is the conversation itself . . . that plays the key role in mitigating the evils of war.”86 Rengger also took this route in concluding his 2002 study by stating that,

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The just war tradition is a tradition of thought precisely because it has considered many different ways of understanding the relation between war and politics. Some have become dominant in the tradition, as it has developed, to be sure. But that leaves others to be recaptured if we so choose. And for this reason, above all, and notwithstanding all its problems, it seems to me that it would be a mistake to abandon the just war tradition.87

While we don’t take this position, ultimately if future studies are to remain fighting the just war tradition “from within,” then we might posit a few kernels to consider in light of current events that have revealed enormous flaws in the justice embodied in just war. Take, for instance, the issues of proportional use of force and intentionality, the issues which, according to Elshtain in her 2004 epilogue to Just War against Terror, have been met in the case of Iraq. It is obvious that to come to this conclusion Elshtain must have accepted the justifications, on faith, issued by the Bush administration. Apparently, the fact that her lack of “Bush hatred” has allowed her to “think straight” leads her logically to this conclusion.88 Elshtain’s position can be countered in two ways. First, as Burke notes, “a more genuine test for the just warriors, and international law, would be whether avoidable death and suffering are condemned and prosecuted.”89 We share Burke’s skepticism that this genuine test would ever be accepted by Elshtain, since “it would undermine the prerogative of states to use force.”90 A second way to refine the position of Elshtain, and those armed with a sense of professional decorum and tact that critics like us could only dream to possess, is that if they are to insist that just war principles are being implemented by a country, and that if their measure of such implementation is the words political and military leaders of that country use to justify their actions, then they might spend some time explaining to us what it is about those leaders that should engender our trust as well. Consider especially that a “reasonable chance for success” as a condition of just war might also be read as requiring the proper authority to determine what “success” means. By what measure has success been achieved in Afghanistan and Iraq? A quick evaluation informs us that eight and six years into each conflict, respectively, there is no end in sight despite the benefits or drawbacks of various military strategies. What is evident, clearly, is that both wars have been implemented by U.S. civilian leadership in a grossly incompetent manner.91 In short, if one is to support a just war by a proper authority, the competence of that authority must also be considered.92 A third refinement of the just war tradition involves revisiting the notion of a “proper authority” given its problematic status in a world

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of increasing “hetero-sovereignty” and the way that powerful state actors have deployed the rhetoric of “proper authority” as a way to deflect debate and discussion about whether the other conditions of the just war tradition are met in particular cases of conflict. As we saw in the case examined here, a powerful actor (the United States) responded to a conflict (between Israel and Hizbollah) by dismissing one actor’s legitimacy to engage in any conflict to begin with. The implication was that Israel’s use of force was justified because a minimal condition was not met. This is worrisome both because we might argue that the bar for violent force should not be so low, and because there exist large numbers of people who receive benefits from and place allegiances that we normally associate with states but whose interests and rights are not recognized by the rest of the world community (in the form of international law) because they fall within political communities that are not legally imparted the status of “states.” If the just war tradition is to be reinvigorated, as several scholars have advocated, scholars and politicians need to reformulate the idea of a “proper authority.” Furthermore, it is probably more productive to bypass this criterion when considering whether violent action is “just” because it is not the most ethically pressing facet of violent conflict. Of greater importance is how war affects the lives and well-being of individuals. A final alternative to the just war tradition exists “outside” of it, by looking to other forms of ethical reasoning and, as Robin Schott discusses, searching for alternative narratives “of war” and “to war.”93 It is sometimes not enough to reform existing traditions or discourses such as just war for a couple of reasons. First, these discourses may have problematic implications that are overlooked if we merely seek to keep them on life support. Under this scenario, there is the danger that the task becomes defending one’s “favorite theory” or being consistent rather than seeing a tradition as one potential ethical resource among those already or yet to be fully articulated. Second, dominant discourses and traditions such as just war have often been used to sustain a particular order, the reproduction of which will likely perpetuate existing forms of domination and oppression and preclude meaningfully addressing contemporary ethical dilemmas. In this chapter we have pointed out how the just war tradition has tended to neglect the actual welfare of citizens and has enabled states to impart legitimacy to their actions by dismissing non-state actors as improper authorities. The just war tradition is perhaps one example of how states, according to Alexander Murphy, co-opt our spatial imaginations.94 When our ethical traditions do not push the limits of our spatial imagination the ordering principle of the system (e.g., state sovereignty) is reified and reproduced and we neglect ethical questions that involve non-state actors (e.g., civilians). Reflected in the case of Hizbollah and

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Israel examined here, it is both state and non-state actors, after all, that profoundly affect our life chances, quality of life, and choices. Above all, ethical theories, traditions, or frameworks should be useful in addressing the ethical dilemmas with which we currently find ourselves, some of which may not be obvious, but which, upon reflection, are issues and questions that prove vexing or problematic. As Donald Puchala notes, the theoretical criterion of “usefulness” leads to a host of questions that we normally do not pose. We might ask of a theory the following: “Does it cue us to ask questions that we are not otherwise prompted to ask, and does it direct our search for answers to places where we are not otherwise predisposed to go?” “Does this understanding ease the process of actually coping with international realities?”95 Aristotle also argued that ethics should be useful. Ethics is practical in that it seeks improvements in lives and thus we must judge our lives to have been improved for ethics to be successful.96 As the arguments in this chapter suggest, we find the just war tradition inadequate in light of such questions and criteria. We would also like to suggest that fruitful alternatives for thinking about conflict might have two characteristics. First, they would feature a conception of ethics that would embrace a critical rationality rather than reasoning that is abstract and claims to be universal. As Burke explains, “Death can be commuted not only through technological distancing, media spin and military jargon, but also in theory—which works to control its ethical disturbance through the creation of abstract moral and political rules that claim to fix truth, enable justice and provide a sure guide for policy.”97 Despite the fact that just war thinking reaches back to a time when reasoning was more casuistic or case based, it has since become more of a theory that features abstract and authoritative principles. But as Stephen Toulmin warns, the attractiveness of theoretical parsimony and simplicity can blind us “to the unavoidable complexities of concrete human experience.”98 These complexities should prompt us to be skeptical of easy solutions, eager to engage in self-criticism, open to revision of our theories, traditions, and practices, and mindful of historical context. Our theories, traditions, and ethical frameworks must be contingent because we act on “specific, historically situated encounters” and in situations of “uncertainty, ambiguity and disagreement.”99 There are various traditions and theorists that we might look to for developing a notion of critical rationality that could form the basis of a practice of ethics. Aristotle, for example, gives an account of phronesis as a practice of critique and deliberation (which features a dialectic between the particular and theoretical) for working through competing perspectives on ethical questions.100 Toulmin rejects the hubris of a modernist

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rationality for a postmodernist rationality that draws on sixteenth-century humanism.101 This concept of rationality rejects universal or unique solutions for a case-based or casuistic methodology that acknowledges the possibility of multiple solutions to particular ethical questions and advocates considering particular circumstances rather than the application of universal and abstract principles only. Finally, we suggest that Michel Foucault’s ethics is perhaps more conducive to self-criticism and far-reaching change. Foucault speaks of a “critical ontology of ourselves . . . conceived as an attitude, an ethos, a philosophical life in which the critique of what we are is at one and the same time the historical analysis of the limits that are imposed on us and an experiment with the possibility of going beyond them.”102 In lieu of mechanisms and “moral codes” meant to control society, in his later work Foucault emphasized individual ethos and self-operation, where the “individual [does] not make himself into an ethical subject by universalizing the principles that informed his action . . . [but rather] by means of an attitude and a quest that individualized his action, modulated it, and perhaps even gave him a special brilliance by virtue of the rational and deliberate structure [these] actions manifested.”103 In sum, one benefit to a practice of critical rationality for considering conflict is that it attends to the complexity of actual situations and thus enables a discussion that is less constrained by the need to argue that “justice” or “good” is completely and entirely held by one side rather than the other in order to meet the criterion of intent whereby just war imbues the actions of a particular actor with legitimacy. Just war theorists both explicitly and implicitly advance the argument that in a conflict one side is fighting justly and the other unjustly. Instead, we should perhaps recognize “that there may be legitimate interests on both sides of a conflict.”104 Such recognition would enable a franker and more honest discussion of the ethical dilemmas at hand and might create an environment in which more “viable post-conflict relations”105 are possible and violent conflict is less likely in the first place. Anthony Burke’s article is perhaps a useful concluding point in thinking about an alternative to just war, where, in what he terms a “respectful refusal of Nicholas Rengger’s [noted] appeal” he develops an “ethical peace” framework which more modestly admits to the impossibility of knowing justice.106 Such a framework would be “open to the moral danger, and extreme pressures for decision, of the extraordinary moment.”107 This is the route we prefer fellow skeptics take regarding just war theory. It helps loosen what Burke terms the “rigidity” of Just War theory,108 and takes as its basis the “affirmative position” on ethics that David Campbell eloquently posited, which

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resists the idea that a prior normative framework, generating established principles for action, is the requirement of a just politics. Instead, the argument here is that the centrality of the ethical relations, our responsibility to the other, provides a sufficient principle to serve justice.109

Within the just war tradition the other is effectively silenced, and without knowing who the other is and what the other’s concerns are, we are more likely to effect a relationship that annihilates or assimilates rather than understands and respects the other.110 As Burke suggests, we might focus instead on cultivating “an ‘ethical relation’ that cannot be limited to or controlled by the state; it channels its ethical obligations above, below and beyond the state.”111 This failure to understand and pursue an ethical relation with the other coupled with the fetishization of procedure and intention over complexity and effects warrants a search for alternative ethical frameworks. We have attempted to sketch in this chapter some promising directions for this search.

Notes 1. The full quote is Alexander Solzhenitsyn’s, from a letter he wrote in 1967: “Justice is conscience, not a personal conscience but the conscience of the whole of humanity. Those who clearly recognize the voice of their own conscience usually recognize also the voice of justice.” Quoted from Phillip Bobbyer, Conscience, Dissent and Reform in Russia (New York: Routledge, 2005), 126. The authors thank Tyra Blew and Jon D. Carlson for their suggestions on this topic. 2. Michael Walzer, Just and Unjust Wars (New York: Basic Books, 1977), xvii. 3. Ibid., xviii. 4. Anthony Burke, “Just War or Ethical Peace? Moral Discourses of Strategic Violence after 9/11,” International Affairs 80 (2) (2004): 330. 5. Nicholas Rengger, “On the Just War Tradition in the Twenty-First Century,” International Affairs 78 (2) (2002): 355, emphasis in original. Hedley Bull “Recapturing the Just War Tradition for Political Theory,” World Politics 34 (4) (1979): 588–599. 6. Walzer, Just and Unjust Wars, xvi. 7. Nicholas Rengger, for example, declares that “notwithstanding all of its problems, it seems to me that it would be a mistake to abandon the just war tradition,” Rengger, “On the Just War Tradition,” 363. 8. Donald A. Wells, “How Much Can the ‘Just War’ Justify?,” Journal of Philosophy 66 (23) (1969): 819–829. 9. Burke, “Just War or Ethical Peace?,” 330. 10. Rengger, “On the Just War Tradition,” 359. 11. Ibid., 357.

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12. Hans J. Morgenthau, Scientific Man versus Power Politics (Chicago: Chicago University Press, 1946), 51, emphasis added. 13. Morgenthau’s other work goes further, asserting that the change from aristocracy to “democratic selection” damaged international morality because it diffused blame from identifiable dynastic sovereigns to collectivepopular sovereigns: “When responsibility for government is widely distributed among a great number of individuals with different conceptions as to what is morally required in international affairs . . . international morality as an effective system of restraints upon international policy becomes impossible.” Hans J. Morgenthau, Politics among Nations (New York: McGraw-Hill, 2006 [1948]), 257. 14. Lee Feinstein and Ann-Marie Slaughter, “A Duty to Prevent,” Foreign Affairs 83 (1) (2004): 164, emphasis added. Alex Bellamy titles these pro-preventive war liberals as “new liberals,” perhaps to distinguish them from the philosophical liberals who maintain what Rengger calls an “ambivalent” attitude towards war. New liberals like Fernando Tesón and Ann-Marie Slaughter, in short, “agree that international law should be changed to make the world safer for liberal democracies.” Alex Bellamy, Just Wars: From Cicero to Iraq (Cambridge, UK: Polity, 2006), 164. 15. Brent J. Steele, “Liberalism-Idealism: A Constructivist Critique,” International Studies Review 9 (1) (2006): 23–52. Brent J. Steele, “ ‘Eavesdropping on Honored Ghosts’: From Classical to Reflexive Realism,” Journal of International Relations and Development 10 (3) (2007): 272–300. The most succinct and impressive assertion along these lines has been proffered by Tony Smith. Smith suggests that neoliberal and democratic peace scholars helped advance the important epistemic positions that provided background support for U.S. President George W. Bush’s defense of the Iraq War invasion. Tony Smith, A Pact with the Devil: Washington’s Bid for World Supremacy and the Betrayal of the American Promise (London: Routledge, 2007). 16. Bellamy, Just Wars, 4. 17. Walzer, Just and Unjust Wars, xii. 18. Ibid., 33. 19. Burke, “Just War or Ethical Peace?,” 332. 20. Hedley Bull, The Anarchical Society (New York: Columbia University Press, Palgrave Macmillan, 2002 [1977]); Martin Wight, Systems of States (Leicester, UK: Leicester University Press, 1977). 21. Ian Clark, “Legitimacy in a Global Order,” Review of International Studies 29 (1) (2003): 84. 22. Ibid. 23. Ibid. 24. Justin Morris, “Normative Innovation and the Great Powers,” in Alex Bellamy, ed., International Society and Its Critics (Oxford, UK: Oxford University Press), 270. 25. Ian Clark, International Legitimacy and World Society (Oxford, UK: Oxford University Press, 2007).

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26. Ibid., esp. ch. 3. It is important to recognize, however, that NGO influence has inordinately been of a “Western” character in that the formation and funding of NGOs is, to a great extent, generated from within and across Western states. 27. Bellamy, Just Wars, 117, emphasis added. Bellamy is correct on all counts, and his astute observation mirrors the recent “resurrection” of classical realism by authors that Steele terms “reflexive realists.” Steele, “Eavesdropping on Honored Ghosts.” These “reflexive realists include, among others, Ned Lebow, Tragic Vision of Politics (Cambridge, UK: Cambridge University Press, 2003); Anthony Lang, Agency and Ethics (Albany, NY: State University of New York Press, 2002); and Michael Williams, The Realist Tradition and the Limits of International Relations (Cambridge, UK: Cambridge University Press, 2004), and Michael Williams, Realism Reconsidered (Oxford, UK: Oxford University Press, 2007). 28. Bellamy, Just Wars, 119. 29. Brent J. Steele, Ontological Security in International Relations (London: Routledge, 2008), 112. 30. John H. Herz, “Idealist Internationalism and the Security Dilemma,” World Politics 2 (2) (1950): 157–180; Morgenthau, Politics among Nations, esp. ch. 16; Reinhold Niebuhr, Moral Man, Immoral Society (New York: Scribner and Sons, 1932), esp. ch. 4. 31. Thomas Smith, History and International Relations (London: Routledge, 1999), 45. 32. Patricia Owens, “Accidents Don’t Just Happen: The Liberal Politics of High-Technology ‘Humanitarian’ War,” Millennium: Journal of International Studies 32 (3) (2003): 600, 616. 33. In the just war tradition the question of intent in the motivation behind state actions plays a significant role in whether war itself is justified (jus ad bellum) and whether specific actions of violence during war are justified (jus in bello). For example, in the decision to go to war a state must have the intent of bringing about peace and before war is pursued a state’s actions must have the intent to secure peace so that war may be avoided. 34. Ibid., 616. 35. Robin May Schott, “Just War and the Problem of Evil,” Hypatia 23 (2) (2008): 127. 36. Burke, “Just War or Ethical Peace?,” 330. 37. Wells, “How Much Can the ‘Just War’ Justify?,” 820. 38. Laura Sjoberg, “Gendered Realities of the Immunity Principle: Why Gender Analysis Needs Feminism,” International Studies Quarterly 50 (4) (2006): 903–904, emphasis added. 39. Burke, “Just War or Ethical Peace?,” 348. 40. Ibid. 41. Ibid. In this article, Burke argues that post – September 11 policies on the part of the United States, known as the “War on Terror,” demonstrate

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that just war theory does not adequately provide protection or achieve “justice.” In fact, it encourages war by promoting the specious idea that “strategic violence provides easy solutions to complex political problems.” Ibid., 349. Bellamy, Just Wars, 47–48. Theodore J. Koontz, “Christian Nonviolence: An Interpretation,” in Terry Nardin, ed., The Ethics of War and Peace (Princeton, NJ: Princeton University Press, 1996), 188. See Augustus Richard Norton, Hezbollah: A Short History (Princeton, NJ: Princeton University Press, 2007), esp. ch. 6. Naim Qassem, Hizbullah, translated by Dalia Khalil (London: Saqi Books, 2005), ch. 2. Ibid., 80–86. Qassem, Hizbullah, 140; Norton, Hezbollah, 116–117. Qassem, Hizbullah, 144. On 27 August 2006, Nasrallah stated that, “If any of us . . . had a 1 percent concern that Israel was going to reply in this savage manner we would not have captured those soldiers.” Quoted in Norton, Hezbollah, 154. Ibid., 134–135. Both Richard Devetak (2005: 230–231) and Mendelsohn (2005: 46) preface their studies with the assertion that the English School approach had, at their writing, yet to treat terrorism in a consistent manner. Richard Devetak, “Violence, Order and Terror,” in Alex Bellamy, ed., International Society and Its Critics (Oxford, UK: Oxford University Press), 230–231; Barak Mendelsohn, “Sovereignty under Attack: The International Society Meets the Al Qaeda Network,” Review of International Studies 31 (1) (2005): 46. Devetak, “Violence, Order and Terror,” 239; Mendelsohn, “Sovereignty under Attack,” 54. Mendelsohn, “Sovereignty under Attack,” 54. Bellamy, Just Wars, 136–139. Norton, Hezbollah, 141. Bellamy, Just Wars, 138. Writing in April of 2005, Krauthammer averred that “Today the immediate objective of this Iran – Syria – Hezbollah – Hamas – Islamic Jihad axis is to destabilize Syria’s neighbors (Iraq, Lebanon, Israel and the Palestinian Authority) and sabotage any Arab – Israeli peace. Its strategic aim is to quash the Arab Spring, which, if not stopped, will isolate, surround and seriously imperil these remaining centers of terrorism and radicalism.” Charles Krauthammer, “Syria and the New Axis of Evil,” Washington Post, 1 April 2005, A27. Norton, Hezbollah, 102. These surveys were discussed in the Mideast Monitor 1 (3) (SeptemberOctober 2006), and can be viewed at http://www.mideastmonitor.org/ issues/0609/0609_6.htm

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60. Bellamy, Just Wars, 138. 61. Amnesty International, “Hizbollah’s Attacks on Northern Israel,” available at http://www.amnestyinternational.org/en/library/info/MDE02/ 025/2006 62. Bellamy, Just Wars, 138. 63. Norton, Hezbollah, 136–137. 64. White House Press Gaggle: available at http://www.whitehouse.gov/news/ releases/2006/07/20060714–4.html 65. Jim Rutenberg, “Bush Gives Qualified Support for Israel’s Strikes,” New York Times, 14 July 2006. 66. “UN Humanitarian Chief Blasts Hizbollah,” Jerusalem Post, 25 July 2006, emphasis added. 67. Oded Lowenheim and Gadi Heimann, “Revenge in International Politics,” Security Studies 17 (4) (2008): 708. Norton reports: “Nasrallah invited listeners to look to the sea, and with perfect theatrical timing an explosion on the horizon rocked the [Israeli] INS Hanit,” Norton, Hezbollah, 136. 68. Ibid., 135. 69. “Freedom this morning was attacked by a faceless coward,” Elizabeth Bumiller and David Sanger, “Somber Bush Says Terrorism Can’t Prevail,” New York Times, 12 September 2001. 70. Human Rights Watch, “Why They Died: Civilian Casualties in Lebanon during the 2006 War,” September 2006, available at http://hrw.org/reports/2007/lebanon0907/3.htm#_Toc175028479 71. Ibid. 72. Sjoberg, “Gendered Realities,” 894. 73. Schott, “Just War and the Problem of Evil,” 128. 74. Lowenheim and Heimann persuasively argue that the purpose behind the Israeli response, which makes its disproportionality intelligible, was revenge. The Israeli response was part of a deeply emotional process meant to repair a damaged Israeli identity. Lowenheim and Heimann, “Revenge in International Politics.” 75. Schott, “Just War and the Problem of Evil,” 128. 76. See Norton, Hezbollah, 147–157. 77. Steven Cook, at the time a fellow at the Council on Foreign Relations, remarked in an editorial that “Neither Hezbollah nor Hamas is democratic, and both rely on non-democratic governments in Damascus and Tehran to pursue objectives that majorities of the Palestinian and Lebanese populations do not necessarily support. If Lebanon, Syria, Palestine and Iran were truly democratic, it is unlikely that Hezbollah and Hamas could engage in irresponsible policies that bring only pain to their people.” Steven Cook, “Don’t Blame Democracy Promotion,” Washington Post, 29 July 2006. William Kristol also stated in a column around this time: “Better to say that what’s under attack is liberal democratic civilization, whose leading representative right now happens to be the United

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93. 94.

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States.” William Kristol, “It’s Our War,” Weekly Standard, 24 July 2006, emphasis added. For example, President Bush stated in a speech given on 14 August 2006: “Syria supports Hezbollah because it wants to undermine Lebanon’s democratic government and regain its position of dominance in the country.” “Remarks by President Bush,” Federal News Service. Bellamy, Just Wars, 16. Smith, A Pact with the Devil; Steele, “Liberalism-Idealism.” http://freedomspeace.blogspot.com/2006/07/israel-palestinians-lebanonawar-among.html, accessed 14 March 2008. Ibid. Smith, A Pact with the Devil, 55. John Mearsheimer and Stephen Walt, The Israel Lobby and U.S. Foreign Policy (New York: Farrar, Straus and Giroux, 2007). Melanie McAlister, Epic Encounters: Culture, Media, and US Interests in the Middle East, 1945–2000 (Berkeley, CA: University of California Press, 2001), 197. Bellamy, Just Wars, 231. Rengger, “On the Just War Tradition,” 363, emphasis added. Jean Bethke Elshtain, Just War against Terror (New York: Basic Books, 2003), 192. Burke, “Just War or Ethical Peace?,” 344. Ibid. See Michael R. Gordon and Bernard E. Trainor, COBRA II: The Inside Story of the Invasion and Occupation of Iraq (New York: Vintage Books, 2006); George Packer, The Assassin’s Gate: America in Iraq (New York: Farrar, Straus and Giroux, 2005); Thomas Ricks, Fiasco: The American Military Adventure in Iraq (New York: Penguin, 2006). Even within its rigid formulation of power, Kenneth Waltz’s canonical text placed competence as an “item” among others, such as resource endowment, economic capability, and military strength, upon which states could be ranked and scored. Kenneth Waltz, Theory of International Politics (New York: McGraw-Hill, 1979), 131. Schott, “Just War and the Problem of Evil,” 132. Alexander Murphy, “The Sovereign State System as Political-Territorial Ideal: Historical and Contemporary Considerations,” in Thomas Biersteker and Cynthia Weber, eds, State Sovereignty as Social Construct (Cambridge, UK: Cambridge University Press, 1996), 81–120. Naeem Inayatullah, “Beyond the Sovereignty Dilemma,” in Biersteker and Weber, 1–21; Julian Saurin, “The End of International Relations: The State and International Theory in the Age of Globalization,” in John Macmillan and Andrew Linklater, eds, Boundaries in Question: New Directions in International Theory (New York, Pinter, 1995), 244–261. Donald Puchala, Theory and History in International Relations (New York: Taylor and Francis, 2003), 32.

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96. Aristotle, Nichomachean Ethics, translated by Hippocrates G. Apostle (Grinnell, IA: The Peripatetic Press, 1984); Martha Nussbaum, The Therapy of Desire: Theory and Practice in Hellenistic Ethics (Princeton, NJ: Princeton University Press, 2006), ch. 2. 97. Burke, “Just War or Ethical Peace?,” 331. 98. Stephen Toulmin, Cosmopolis: The Hidden Agenda of Modernity (Chicago: The University of Chicago Press, 1990), 201. 99. Ibid., 200. 100. Aristotle, Nichomachean Ethics; Martha Nussbaum, The Therapy of Desire: Theory and Practice in Hellenistic Ethics (Princeton, NJ: Princeton University Press, 2006), ch. 2. 101. Toulmin, Cosmopolis. 102. Michel Foucault, “What Is Enlightenment?” in Paul Rabinow, ed., The Foucault Reader (New York: Pantheon Books, 1984), 50. 103. Michel Foucault, The Uses of Pleasure (Harmondsworth, UK: Penguin, 1992), 62. 104. Schott, “Just War and the Problem of Evil,” 131. 105. Ibid. 106. Burke, “Just War or Ethical Peace?,” 349. 107. Ibid., 351. 108. Ibid., 352. 109. David Campbell, “Justice and International Order: Bosnia and Kosovo,” in Jean-Marc Coicaud and Daniel Warner, eds, Ethics and International Affairs: Extent and Limits (Tokyo: United Nations University Press, 2000), 109. 110. Tzvetan Todorov, The Conquest of America: The Question of the Other (Norman, OK: University of Oklahoma Press, 1999). 111. Burke, “Just War or Ethical Peace?,” 353.

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Jus Post Bellum, Peacebuilding, and Non-state Actors: Lessons from Afghanistan Melissa Labonte

The just war tradition, with its twin focus on jus ad bellum and jus in bello, attempts to mitigate against the indiscriminate use of force. As noted in the introductory chapter to this volume, this tradition provides the moral underpinning and ethical parameters for the means and ends of the use of force by international actors. It is reflected in religious writings, ancient civilizational laws, international treaty law, and international and regional organizational charters. However, just war principles also exhibit a forward-looking perspective, prompting states to assess their actions consistently to ensure that war does not become an end in and of itself. By logical extension, wars should be fought for a higher normative purpose well beyond the use of force—and beyond the end of war itself. Indeed, few would disagree with St. Augustine’s admonition that [w]e do not seek peace in order to be at war, but we go to war that we may have peace. Be peaceful therefore, in warring, so that you may vanquish those whom you war against and bring them to the prosperity of peace.1

Echoing St. Augustine, B.H. Liddell-Hart argued that “the object of war is a better state of peace.”2 Scholars increasingly recognize that discerning

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the justness of war cannot solely be based on what happens as the fighting begins. In the words of one commentator, if we “assume for the moment—as [many] do—that the rubrics of the just war theory are morally tenable,. . . then such post-war behavior must come under moral scrutiny.”3 What happens after the fighting ends has thus become an urgent question that has only recently been addressed on direct and policy-relevant terms by just war theorists and others. The debate has produced a third pillar of Just War theory—that of jus post bellum. This chapter focuses on the goal of achieving the “prosperity of peace” by examining critically the state of the debate on jus post bellum and utilizing emergent jus post bellum criteria as an analytical lens through which to explore peacebuilding in Afghanistan. The Afghan case brings to the fore a number of obstacles and challenges associated with implementing justice after war— especially implications that non-state actors pose for jus post bellum. It also yields important insights that may help establish a basis for determining how to discern and assess the practical effectiveness of jus post bellum in wars where non-state actors are critical to the conflict transition dynamic. Three specific issue areas of jus post bellum are considered: security sector reform, sustainable livelihoods, and transitional justice. I draw several related conclusions from this analysis. First, treating jus post bellum principles as the third pillar of the just war tradition obscures the fact that contemporary conflict defies rigid classification, as most cases of war today involve both inter- and intrastate dimensions of violence, and because of the inherent difficulty in discerning among different phases of conflict (e.g., pre-, during, post-). Second, a more thorough understanding of the critical role played by non-state actors in the jus post bellum process is required in order for the principles comprising jus post bellum to be truly useful to peacebuilders. Third, assessing the degree to which jus post bellum actually facilitates peace in a particular conflict transition setting should be based on whether and how peacebuilding activities promote and protect human rights. Finally it is vitally important the jus post bellum and the peacebuilding literatures to engage one another more fully, for each has valuable lessons to offer the other in terms of contributing to just and sustainable peace in conflict transition settings. It is plainly true in Afghanistan that the path to realizing the “prosperity of peace” has been, and will continue to be, long and difficult. The justness of the current peace has been more robust than we would expect in some areas, particularly in the political sphere, where impressive progress has been made and the civil and political rights of individuals have been restored through democratic processes and institutional development. However, peacebuilding outcomes have been much less robust

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than we would expect in other areas like providing security, restoring a just ordering of society, and transitional justice—especially given the level of rhetoric proffered by the international community of states that Afghanistan is at the center of the global war on terror and its fate will greatly affect international peace and security for generations to come. The “justness” of peacebuilding has been particularly weak in the areas of security sector reform and transitional justice, where non-state actors, such as factional militia leaders, have been brought into the conflict transition process as both beneficiaries of and implementing agents of peacebuilding. Rather, progress toward the jus post bellum goals of establishing national security and securing and vindicating human rights continues to be fleeting in Afghanistan precisely because political horsetrading to secure non-state actor buy-in to the conflict transition process has compromised jus post bellum principles. Non-state actors, by virtue of their deep involvement in the peacebuilding process in Afghanistan, pose serious challenges to jus post bellum that may very well impede the protection and promotion of human rights, as well as the establishment of a just and sustainable peace. The chapter proceeds in the following manner. I first review the state of the debate concerning jus post bellum, focusing in particular on the issue of what the scope of jus post bellum principles should be and what the implications are of linking them to the just war tradition via jus ad bellum and jus in bello. I then operationalize these principles and the goals of jus post bellum via the rubric of peacebuilding. Drawing on a set of criteria gleaned from this literature, I then explore three facets of jus post bellum peacebuilding through the Afghan case: transitional justice, security sector reform, and sustainable development. In the concluding section, I comment on why and how our thinking about jus post bellum and the practical application of peacebuilding have much to offer one another as an integrated approach to bringing just and sustainable peace to conflict transition settings, and prescribe possible alternatives for the future. The Jus Post Bellum Debate As is the case with jus ad bellum and jus in bello, the jus post bellum debate enjoins a multitude of voices informed by religious, social science, military, political theory, ethical, and humanitarian perspectives. The scope of the debate spans three distinct but intertwined dimensions: assessing the practical effectiveness of jus post bellum, developing and establishing a coherent set of jus post bellum criteria, and determining how a jus post bellum framework can or should be integrated alongside jus ad bellum and jus in bello. I briefly review below the jus post bellum literature across each of

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these dimensions, with special attention to whether and how these strands accommodate the role of non-state actors. Put simply, because “peace” means different things to different actors, there is no universal agreement on how to define a just peace. Thinking seriously about jus post bellum requires the difficult task of peering into the future, which demands sensitivity to the multiplicity of challenges facing international, national, and local actors engaged in conflict transition settings. Moreover, before we can even hope to establish a meaningful and effective jus post bellum framework, key differences must be reconciled regarding how peace and peacebuilding should be evaluated during conflict transitions as opposed to the ad bellum and in bello phases of war.4 So how do we assess the practical effectiveness of jus post bellum through peacebuilding? The literature suggests a variety of methods— each emphasizing different aspects of what constitutes peace. Walzer, for example, argues that ending war legitimately is the first step in securing the peace and “winning” the conflict. Thus, how wars end—including the substantive terms of a negotiated peace agreement—can be a key factor in determining their justness. However, today’s conflicts do not usually end in decisive victories. Therefore, peace settlements often produce difficult normative trade-offs and reflect a “host of injustices,” which themselves flow from the necessity of negotiating with non-state actors such as war criminals and potential spoilers.5 On the one hand, “[c]onfronting and dealing with atrocities seems necessary for reconciliation and a lasting peace,” but on the other hand, “the cooperation of persons responsible for atrocious conduct seems necessary for a minimal peace between the conflicting parties.”6 This raises the question of whether peace deals that turn a blind eye to atrocities in order to end the fighting can be considered just. Should they be understood as “one political good among many—like peace, stability, democracy, and distributive justice”7 —or should they be rejected for sacrificing justice for political expedience? Another dimension on which jus post bellum can be assessed is the justice of war’s goals. For Walzer and others, this includes establishing a “better” state of peace that is, importantly, restorative, possibly retributive, but not punitive.8 Post bellum restoration should, where possible, build upon previously existing institutions and infrastructure, but may require establishing new institutions, new processes of governance, and new mechanisms for peace in settings where widespread or long-term violence and destruction have destroyed basic governance capacities.9 According to this perspective, a just peace is a stringently normative position that is enhanced through “basic social and political institutions committed to principles of justice such as fairness, equality, respect, tolerance, opportunity, and the protection of human rights.”10

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Relatedly, war may also be concluded justly and just peace achieved only when the human rights of all parties to the conflict, including state and non-state actors, are vindicated, and are more secure than they were before the conflict began.11 In the words of contemporary just war theorist Brian Orend, just wars can be adjudged by whether they contribute to the “vindication of the fundamental rights of political communities” and facilitate a “more secure possession of our rights, both individual and collective.”12 According to this perspective, human rights form the “broadest possible base” for just war theory generally, and jus post bellum specifically. As Walzer notes, “the arguments we make about war are most fully understood . . . as efforts to recognize and respect the rights of individual and associated men and women.”13 This perspective is echoed by others who advocate that jus post bellum reaffirms the existence of a basic human right to peace, which in turn forms part of the concept of human security. In this view, a “constrained” version of just war theory provides the criteria states would need to fulfill in order to respond to cases of gross violations of human rights or wars of aggression while “doing justice to the human right of peace.” Basic rights like liberty, subsistence, and security, therefore, should be priorities for all parties to a conflict in jus post bellum. These rights represent “paramount moral claims that every person has to an indispensable minimum level of treatment.”14 Therefore, if defending the rights of others is a sufficient and just reason for fighting, then it follows logically that the defense of rights (and the promotion and securing of rights) can and should form part of the rationale for assessing the practical effectiveness of jus post bellum in conflict transition settings.15 Whereas views on how to assess the justness of jus post bellum vary, the consensus is strong among just war theorists regarding the desirability of establishing a jus post bellum framework that can help end wars in a “full and fair fashion.”16 Most scholars and policy makers acknowledge the need for a coherent set of principles to guide conflict transitions, and agree that the only normatively appropriate way to end war is through peace that is linked closely to justice.17 The alternative—allowing “victors” to dictate arbitrarily the terms of peace—is a proposition fraught with ethical dilemmas that could create a slippery slope of “unconstrained war termination,” cherry picking from among a variety of principles or, in a worst-case scenario, the outright disavowal of any principled basis for actions taken at war’s end.18 There is also pragmatic value in establishing a set of guidelines for jus post bellum that can be used by policy planners both within national governments and international and nongovernmental organizations to harmonize their efforts to build peace. Utilizing an established set of jus

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post bellum principles can help avoid peacebuilding outcomes where the wrongs left behind after “righting a wrong” are worse than the status quo ante wrongs.19 Developing such guidelines would, in one scholar’s words, fulfill the need for “more attention to the development of a theory that will drive operational concerns in the post-conflict stages of occupation, stabilization, restoration, and other aspects of nation building,” as well as avoid costly failures, and possibly save combatant and noncombatant lives.20 Others note that failure to articulate distinct jus post bellum principles may prolong violence. In situations where non-state combatants envision a defeat that is devoid of any principled parameters, negotiating peace may turn out to be not only risky, but foolhardy. Fighting to the bitter end in the hope of securing a decisive victory over one’s enemy may prevail as the rational, dominant strategy of warfare. This would, in turn, prevent “ripening” of conflicts or “hurting stalemates,” both of which are considered vital to ending wars.21 From the perspective of the conflict transition phase, establishing coherent jus post bellum principles may provide minimal benchmarks and create shared standards for reconciliation and healing among parties to the conflict, as well as mutual expectations for what the content and trajectory of peace should be.22 This is especially relevant for non-state actors, who perhaps more than any other parties to the conflict must be recognized as an important partner in post-conflict solutions and the future of the nation. In spite of the near-uniform agreement on the desirability of establishing criteria for jus post bellum, no definitive or universally accepted set of jus post bellum principles exists. Drawing on recent literature, Table 9.1 represents a compilation of the most commonly proposed criteria. While not exhaustive, there is sufficient overlap to suggest relatively strong endorsement for a core set of jus post bellum principles, including just cause for war termination; public declaration and legitimate authority; discrimination; right intention; proportionality; and reconciliation and restoration. As noted above, one way to assess the practical effectiveness of jus post bellum is to link it to the justice of war itself. This has opened the debate over whether and to what degree postwar conduct should be congruent with the “ends” of jus ad bellum and jus in bello. Many scholars strongly support the view that jus post bellum must have the same foundations as those that undergird jus ad bellum and jus in bello.23 This is, to some degree, reflected in the principles articulated above, many of which mirror those embodied within jus ad bellum and jus in bello. A jus post bellum framework built on these terms, therefore, would serve as a mechanism

211 Table 9.1 A Compilation of Emergent Principles of Jus Post Bellum Just cause for war termination, based on

• eliminating many, if not all, unjust gains from aggression • honorable surrender by, and protection of, the fundamental human rights of all combatants • a “healing mind-set,” including regret, humility, conciliation, and possibly contrition • legal guidelines found in the Fourth Geneva Convention of 1949 (Articles 47–49) and The Hague Convention IV of 1907 (Articles 42–56) • repentance, whereby victors conduct themselves humbly after war’s end, for “even just wars are ‘mournful occasions’ ” • reasonable vindication and restoration of the rights of the general population that the war violated or that justified going to war in the first instance (this could include mandatory compensation or financial restitution/reparations, rehabilitation, and war crimes trials)

Public declaration and legitimate authority, based on

• reasonable and inclusive settlement terms that are publicly proclaimed by a legitimate domestic authority, and that demonstrate due care for human rights principles • avoiding peace settlement terms that provide incentives for spoilers to abandon their commitment to the peace process

Discrimination, based on

• distinguishing between political and military leaders, soldiers and civilians in order to avoid unfair/punitive measures being taken against civilians • safeguarding the innocent, with special emphasis being given to vulnerable groups (women, children, the elderly, the handicapped, and minorities) • respect for the impact of the use of force on the environment

Right intention, linked to

• the fair and transparent adjudication of war crimes based on due process and proportionality, and which avoids outcomes like unconditional surrender or victor’s justice

Proportionality, based on

• reasonable and proportionate rights vindication of the population • avoiding draconian punishments against civilians • the premise that victors have no right to allow self-interest to guide political, economic, and social reconstruction

Reconciliation and restoration, based on

• post bellum justice, including amnesty, retributive tribunal justice, or criminal prosecution through the national legal system

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Table 9.1 (Continued) • advancing self-determination of peoples and restoring state sovereignty that aligns with the wishes of the population • removing the instruments of war and repairing the social infrastructure • protection of vulnerable groups through restoration of rule of law and security sector reform • participatory efforts that facilitate durable and just peace, tap local knowledge, and generate a meaningful degree of ownership, trust, and goodwill among the local population • “warrior transition” efforts, including the disarmament, demobilization, and reintegration of ex-combatants, which emphasize the legal and ethical responsibilities these actors have during and after war, as well as helping ex-combatants retain their “humanity” Sources: Gary J. Bass, “Jus Post Bellum,” Philosophy and Public Affairs 32 no. 4 (2004): 390; Patrick Hayden, “Constraining War: Human Security and the Human Right to Peace,” Human Rights Review (October-December 2004): 47; Brian Orend, War and International Justice: A Kantian Perspective (Waterloo, ON: Wilfred-Laurier University Press, 2000), 217–263; Brian Orend, Michael Walzer on War and Justice (Montréal, QC: McGill-Queen’s University Press, 2001); Michael J. Schuck, “When the Shooting Stops: Missing Elements in Just War Theory,” The Christian Century, 26 October 1994, 982–984; and Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books, 1977), 292–301.

to focus the entry into war, conduct undertaken during war, and guide all activities in the conflict transition phase. Joining jus post bellum alongside the frameworks for jus ad bellum and jus in bello may reinforce just war theory’s effectiveness and “ensure the integrity and continuity of the norms of just and legitimate war, and to cement and consolidate the conditions upon which to (re)build a just and stable peace.”24 Gary Bass, for example, claims that “certain rights and obligations of postwar conduct stem from the requirements for the just cause and conduct of war.”25 Nicholas Rengger views jus post bellum as “centrally implicit” within just war theory. In his view, while the “problems, methods, and issues” still need to be deliberated, the deliberation should be part of the task of “extending justice and judgment to the realm of war . . . and the deliberate use of force in the first instance.”26 Others, like Robert E. Williams, Jr., and Dan Caldwell, claim that in order to form a more perfect moral calculus that derives from jus ad bellum and jus in bello—indeed for the entire framework to be sustainable—the intentions for jus post bellum goals must be congruent with jus ad bellum and jus in bello principles.27 And still others emphasize that the “declared ends” that justify a war in the first place and form part of the criteria of right intention, proportionality, and right

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authority provide strong basis for treating jus post bellum as a derivative of jus ad bellum and jus in bello.28 In contrast, some voices in the just war debate are much more skeptical and argue that folding jus post bellum into the larger just war framework with jus ad bellum and jus in bello is less important than developing a practical and effective set of principles to guide conduct in conflict transition settings. They argue compellingly that there is no intrinsic value in assessing the justness of war and the justness of the peace as an interconnected endeavor.29 Jus ad bellum and jus in bello frameworks should not constrain the parameters of what is legitimate and morally authentic in jus post bellum. According to Alex Bellamy, for example, the conflict transition phase can be judged separately from actions taken before and during war.30 Jus Post Bellum, War, and Non-state Actors

As lively as the debate has been regarding the justness of postwar peace, the constitutive criteria of a jus post bellum framework, and whether that framework should be integrated into the just war tradition, there are two key realities of the international conflict landscape that the literature on jus post bellum fails to address adequately. First, only a handful of contemporary conflicts that have necessitated serious consideration of jus post bellum can be characterized as “just” in the classical just war tradition. This largely reflects the reality of contemporary conflict, which no longer comprises mainly interstate war but rather consists overwhelmingly of intrastate violence and civil wars.31 With few exceptions, jus post bellum scholarship has centered largely on a core assumption about the nature of contemporary conflict—namely that it occurs mainly between states.32 This trend in the literature may simply reflect a slight preference for achieving congruence with the core elements of the just war tradition, in spite of recent revisions to it that have recently attempted to tackle intellectually the justness of variations on the use of force (e.g., humanitarian intervention vs wars of aggression).33 It follows, then, that many cases of war occupying today’s conflict landscape would fail outright to meet strictly the criteria of jus ad bellum or jus in bello.34 Contemporary war defies clinical descriptions that differentiate neatly the attributes of violence and characterize how we define the term. Afghanistan, for example, can be described as an interstate war— the October 2001 United States – led invasion attempted to oust the sitting (albeit internationally unrecognized) government of the Taliban. The conflict currently retains that distinction, but violence on the ground in Afghanistan also possesses characteristics of an intrastate war, as it

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involves an insurgency against the United States – led coalition and North Atlantic Treaty Organization (NATO)/International Security Assistance Force (ISAF) forces, and the Afghan national military. Second and relatedly, discussion of jus post bellum tends to center on state actors as key agents of post-conflict peace. Williams and Caldwell, for example, claim that Walzer and other just war theorists have concerned themselves primarily with the state in defining and shaping their frameworks. As a result, the just war dialogue, including that which is centered on jus post bellum, tends to focus on the “ethics of national security” rather than the “ethics of human security.”35 A human security approach to jus post bellum emphasizes protection from threats of physical violence (freedom from fear and national security concerns) as well as the promotion of sustainable human development (freedom from want). It encourages bottom-up processes in efforts such as peacebuilding, rather than topdown institution building of state capacity. While the approach is not without its critics,36 it does hold promise as a more holistic approach to addressing jus post bellum in conflict transition settings. Moreover, all contemporary conflict transitions involve state and nonstate actors—and both sets of actors play dual roles in peace processes. On the one hand they are the implementing agents of jus post bellum and on the other hand they are often the beneficiaries of that process. For example, in the case of Afghanistan, factional militia leaders and international narcotics traffickers are key actors whose interests have the potential to positively or negatively affect the durability of any peacebuilding strategy. Hundreds of international nongovernmental organizations (INGOs) work with many more national-level and local NGOs to carry out peacebuilding projects and programs across the globe. These actors generally fall outside the just war rubric, and the jus post bellum debate is curiously silent on the issue of non-state actors as much as non-state actors seem unaware of the jus post bellum debate. Yet understanding the impact and role of non-state actors in both contemporary conflict and post-conflict transitions, as well as developing strategies that transform non-state actors into meaningful stakeholders in the peace process, has formed a significant portion of the literature in other jus post bellum – related scholarship, such as peacebuilding and state-building.37 Jus Post Bellum and Peacebuilding

To better specify just how the principles that constitute an ideal jus post bellum framework can be realized on the ground and in practice, we must first ask: What kinds of field-level goals flow from a jus post bellum framework? Three broad sets of goals stand out in the jus post bellum

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literature: (1) physical security for the general population that exceeds the status quo ante bellum; (2) just ordering of society via “positive assistance,” restoration, and rehabilitation that makes life “fully human” and emphasizes human capabilities; and (3) the vindication and securing of rights. If we map these goals alongside the modalities of peacebuilding (see Table 9.2), it becomes clear that peacebuilding represents the operational manifestation of the abstract concept of jus post bellum. Peacebuilding thus forms a sound basis for analyzing the practical effectiveness of jus post bellum in specific conflict transition settings. Ending wars and creating peace are simultaneously difficult yet urgent endeavors; this widespread recognition among members of the international community has elevated peacebuilding to priority status within international, regional, and national, and community-level forums. Peacebuilding is defined as actions taken on the far side of conflict to reassemble the foundations of peace and provide the tools for building on those foundations something that is more than just the absence of war. Relatedly, peacebuilding is best understood as comprising “actions undertaken by international or national actors to consolidate or institutionalize peace.”38 The concept was first articulated in international policy circles in 1992 by then United Nations Secretary-General, Boutros Boutros-Ghali, in his An Agenda for Peace.39 Over time, its definition and scope were further elaborated, including in Boutros-Ghali’s 1995 An Agenda for Development and his 1996 Agenda for Democratization, the 2000 Report of the Panel on United Nations Peace Operations (the Brahimi Report), and former Secretary-General Kofi Annan’s 2000 Millennium Report. More recent scholarship argues compellingly that failed peacebuilding poses one of the worst risk factors for new wars. Between one-quarter and one-third of peace agreements ending civil wars collapse within five years.40 In addition, “backlash violence” after a failed peace agreement is often worse than before an accord was reached.41 The scope of resources and actors involved in peacebuilding has expanded greatly in the past decade. Billions of dollars have been earmarked and allocated across nations emerging from both just and unjust wars in the name of creating sustainable and just peace. Peacebuilding is featured prominently in the missions of various specialized agencies of the United Nations (UN) system, including the UN Development Programme’s (UNDP) Bureau for Conflict Prevention and Recovery, the UN Children’s Fund (UNICEF), and the World Bank’s Conflict Prevention and Reconstruction Unit. More recently, the UN institutionalized the concept of peacebuilding in 2005 via the creation of the Peacebuilding Commission, the Peacebuilding Support Office, and a separate Peacebuilding Fund in 2007. State actors (e.g., donor governments,

216 Table 9.2 Jus Post Bellum Goals and Corresponding Peacebuilding Modalities Essential Jus Post Bellum Goals

Constitutive Elements

Corresponding Peacebuilding Modalities

• Physical security for the general population that exceeds the status quo ante bellum

• Respect the sovereignty of • Disarmament, demobilization, and the defeated nation; take reintegration of former measures to restore combatants sovereignty where • Security sector reform, necessary including rebuilding and • Purge as much of old retraining national armed regime as necessary to forces and civilian police restore order • Drawdown of foreign • Disarm and demilitarize (multilateral peace society operations or • Provide effective national regional/coalition) forces military and civilian police security; train members of the national army and civilian police in peacebuilding skills • Hand over internal and external security responsibilities to national government

• Just ordering of society via “positive assistance,” restoration, and rehabilitation that makes life “fully human” and emphasizes human capabilities

• Transition to responsive government, reform dysfunctional institutions, and ensure accountability in new institutions • Establish a republican constitution with checks and balances; make this a meaningful, collaborative process with local actors, including spoilers • Ensure civil and political freedoms • Ensure the capability to survive and live a healthy life • Facilitate participation in the life of the community and the ability to shape one’s social, political, and economic environment • Promote non-state, civil society organizations

• Restoration of rule of law: rebuilding of courts, training of judges and lawyers, implementation of a functioning legal code, rebuilding of prison system • Constitutional reform programs • Technical assistance to restore functioning line ministries, civil service training • Electoral reform projects, promoting political party development, electoral education and voter registration, physical organization and monitoring of elections • Human rights education • Participatory governance arrangements, community-driven peacebuilding

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• Vindication and securing of rights

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• Seek the consent of the defeated as well as the general population in any project for reconstruction as an ethical obligation and a pragmatic necessity • Invest in and rehabilitate the economy; avoid establishing punitive settlements, and establish a decent standard of living • Distribute concrete social welfare benefits widely and equitably • Infuse educational curricula with new values that are rights based, and purge old ones that contributed to discord; promote the right to knowledge

• Peacebuilding education programs • Macroeconomic and microeconomic restructuring and reform projects, including sustainable economic livelihoods and poverty reduction strategies • Educational reform projects, rebuilding schools, training teachers, developing national educational capacity, promoting primary and secondary education access and enrolment

• Promote “equal justice” rather than “victor’s justice” • National healing and reconciliation

• War crimes tribunals, truth and reconciliation commissions, transitional justice mechanisms

Sources: Gary J. Bass, “Jus Post Bellum,” Philosophy and Public Affairs 32 no. 4 (2004): 384–412; Patrick Hayden, “Constraining War: Human Security and the Human Right to Peace,” Human Rights Review (October-December 2004): 35–55; Louis V. Iasiello, “Just Post Bellum: The Moral Responsibilities of Victors in War,” Naval War College Review LVII no. 3/4 (Summer/Autumn 2004): 33–52; Martha C. Nussbaum and Amartya Sen, eds., The Quality of Life (Oxford, UK: Oxford University Press, 1993, 1999); Brian Orend, “Justice After War,” Ethics and International Affairs 16 (2002): 43–56; Brian Orend, “Jus Post Bellum: The Perspectives of a Just-War Theorist,” Leiden Journal of International Law 20 (2007): 571–591; James Turner Johnson, Morality and Contemporary Warfare (New Haven, CT: Yale University Press, 1999), 191–218; Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books, 1977); Robert E. Williams, Jr., and Dan Caldwell, “Jus Post Bellum: Just War Theory and the Principles of Just Peace,” International Studies Perspectives 7 (2006): 309–320.

intergovernmental organizations [IGOs], and regional organizations) as well as non-state actors (e.g., INGOs, local NGOs, non-state actors, corporate and community-level actors, illicit actors, and eminent personalities) all play important roles in peacebuilding. These developments suggest that the international community envisions a future that includes more and not less peacebuilding. As a potential vehicle for promoting the overarching goals of jus post bellum, peacebuilding is also consistent with the above-described concept of human security.42 Because human security concerns itself

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with mitigating both direct and indirect violence, as well as physical and structural violence, it constitutes part of a “cosmopolitan” understanding of justice—where the point of reference is the individual, not the state, and where protection of rights is a key goal. Peacebuilding is likewise undergirded normatively by values associated with human security, such as social equity and justice, and sustainable human development. Peacebuilding is not a neutral activity, as it prioritizes certain actors (e.g., women, children, marginalized groups) over others. It can proceed from the top-down or the bottom-up, and it can be deductive or inductive in its approach.43 The modalities of peacebuilding are numerous (see Table 9.2). They include disarmament, demobilization, and reintegration (DDR) of ex-combatants, security sector reform of the armed forces and civilian police, (re)establishing rule of law, punishing war criminals and effectuating national reconciliation through truth telling, facilitating democratic governance, and jump-starting economic activity and reform. The following sections focus on three dimensions of peacebuilding across the jus post bellum case of Afghanistan: (1) security sector reform, (2) sustainable livelihoods, and (3) transitional justice.44 Each major area of peacebuilding corresponds to a major “goal” of jus post bellum: (1) ensuring physical security for the general population that exceeds the status quo ante bellum; (2) just ordering of society via positive assistance, restoration, and rehabilitation that makes life “fully human” and emphasizes human capability; and (3) the vindication and securing of human rights. The Afghan case also allows us to examine the nature of contemporary conflict, which has elements of both an inter- and intrastate conflict and involves the Taliban, al Qaeda, and factional militias, Afghan government forces, United States – led coalition forces, and the NATO – ISAF. Moreover, this case highlights recent trends in expectations regarding the moral responsibilities of interveners in peacebuilding and state-building, as the end goal of creating a viable state is now “considered to be part of the process of consolidating peace.”45 Finally, peacebuilding in Afghanistan illustrates the critical role in jus post bellum played by non-state actors and enables us to draw important conclusions about their role in transition settings that help expand the current jus post bellum debate in substantive and policy-relevant directions. The Case of Afghanistan: Background Afghanistan has long functioned as a fragmented state, where regional factional militias control rural provincial communities, enjoying nearcomplete political, economic, and military autonomy from the central

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government. Effective administration of the rural areas by the central government was not a priority, even under Taliban rule. Since the late 1980s, many basic services were provided by the UN, its specialized agencies, and INGOs, and this arrangement carried forward through the Taliban era. However, all of this changed after the events of 11 September 2001. Following the UN-sanctioned U.S. attack on Afghanistan, U.S. support for the Northern Alliance, and the ousting of the Taliban in late 2001, the resulting Agreement on Provisional Arrangements in Afghanistan Pending the Re-establishment of Permanent Government Institutions established the terms of peace and a plan for rebuilding the state.46 The Bonn Agreement preamble specifies that national reconciliation should rest upon jus post bellum principles such as respect for human rights and social justice, yet provisions for key peacebuilding activities like human rights, sustainable livelihoods, and transitional justice are mentioned only in broad terms. Rather, the agreement focuses on restoring constitutional authority, government institutions, and physical security. Politically, Bonn laid out a plan to create a strong central state through an Emergency Loya Jirga and a Constitutional Loya Jirga, which utilized traditional participatory governance processes (grand councils) to elect a head of state for the transitional administration and draft a new constitution.47 Importantly and from the perspective of jus post bellum, the Bonn Agreement put forward a strategy for integrating non-state actors like factional militia leaders into the political fold and the national security apparatus.48 As part of its post-9/11 military strategy in Afghanistan and following the Taliban’s removal from power (they were also excluded from the Bonn process), the United States had supported numerous factional leaders to ensure immediate security in the rural provinces, thus raising their profile in the political process and enhancing their authority within their local communities. This has meant that the international community has had to consider the costs and benefits of negotiating with non-state elements responsible for gross violations of human rights and other transgressions of jus post bellum principles. It was not politically feasible to exclude formally these non-state actors from the peace process, as their inclusion and buy-in was deemed a necessary expedient to keep as many “would-be spoilers” from leaving the table or destabilizing internationally led efforts to rebuild the nation.49 This arrangement has led to mixed outcomes concerning jus post bellum. In the years since the completion of the Bonn process, the government of Hamid Karzai continues to lack sufficient enforcement capacity to control or regulate non-state groups, in spite of issuing decrees outlawing many militia activities and offering incentives to co-opt

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factional leaders even more fully into the public sphere. Partial successes in reining in the militias have occurred in the areas of DDR and weapons cantonment, but the extension of government authority into the provinces outside Kabul has been slow and uneven.50 The necessity of wheeling and dealing with warlords has also forced risky compromise of jus post bellum goals in areas such as human rights, transitional justice, and economic development, and has weakened the national government’s ability to regulate illicit economic activities related to opium production and trafficking. Factional leaders, of whom nearly 60 percent are constituted by “[f ]ormer commanders linked to armed groups or human rights violations,” represent a powerful coalition in the Afghan parliament.51 Formal peacebuilding in Afghanistan involves close coordination between the Afghan government and the UN Assistance Mission in Afghanistan (UNAMA), established in 2002.52 UNAMA’s mandate emphasizes partnership with the government in Kabul, the security force on the ground (currently NATO/ISAF), international donors, and the general population. Its responsibilities include providing political and strategic guidance for the peace process and the Afghanistan Compact (the central strategic framework for peacebuilding and state-building); good offices; promoting human rights; offering technical assistance, electoral assistance, and support for the disbanding of illegal armed groups; and humanitarian relief, recovery, reconstruction, and development management.53 UNAMA’s work is driven by the dual goals of legitimizing the Afghan government and enhancing its sovereign authority, while simultaneously building government capacity to promote national reconciliation and coordinate relief, recovery, and reconstruction. This partnership arrangement has faced several obstacles that have affected its progress, including a lack of qualified Afghan civil servants and a proliferation of INGOs that often operate across the same sectors. On balance, government legitimacy has been strengthened gradually through the Bonn process and its work with UNAMA, both of which render it accountable to the Afghan people for bringing peace to the nation. However, it remains a tenuous balance that depends heavily on the status of the security situation, which remains fluid in some parts of the country and has deteriorated considerably in other parts. As noted by former UN Secretary-General Kofi Annan, I am increasingly concerned that the insecurity that is poisoning the lives of Afghans in several provinces of the country and that denies them the ability to enjoy the benefits of the peace process, is whittling away at the support for the institutions that have emerged under the Bonn process.54

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In addition, international, national, and community-level efforts to build peace in the country have been eroded by political manipulation, illicit enterprises, and direct violence against members of the general population who are accused by local militias and Islamist extremists of working “too closely” with the government, the UN, and humanitarian and development groups such as INGOs and local NGOs. As noted above, several dimensions of jus post bellum in the case of Afghanistan share a common thread, namely that the success or failure of peacebuilding relies in large part on the involvement of non-state actors. Indeed, the paradox of implementing jus post bellum in this particular setting is that it requires non-state actor involvement to move forward, and at the same time is put at risk of failure precisely because of nonstate actor involvement. A brief examination of jus post bellum in the areas of security sector reform, sustainable livelihoods, and transitional justice reflects this. Security Sector Reform Providing physical security for the general population that exceeds the status quo ante is one of the highest priorities of peacebuilding and represents a core goal of jus post bellum. Whether carried out by a multinational peace operation sanctioned by the United Nations, a regional force, or a coalition of the willing, it is the responsibility of the “victor” to establish order and provide sufficient capacity to defend against internal and external threats. In many peacebuilding settings, the first step toward comprehensive security sector reform involves (1) DDR of ex-combatants as well as the cantonment/destruction of weapons; and (2) extending the “victor’s” authority throughout the country as well as beginning the process of reestablishing and retraining a national armed force and civilian police authority. When effective, security sector reform facilitates progress in other areas of peacebuilding, such as transitional justice and national reconciliation, rebuilding a just social order, rule of law reforms, and economic revitalization. It also promotes the realization of fundamental human rights associated with freedom from physical harm and violence. A number of challenges have plagued security sector reform in Afghanistan.55 While both the Afghan government and the intervening forces (the United States – led coalition and NATO/ISAF) have experienced some successes, overall the justness of jus post bellum in this area has been weak. This can be attributed to ineffective state strategies to deal with non-state actors, namely the Taliban and al Qaeda; questionable ethics of the military campaign related to jus post bellum principles of proportionality and discrimination, especially in the rural provinces; mixed

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effectiveness of the DDR program; a struggling national army; and poor training of civilian police. Importantly, the state of security sector reform in Afghanistan reinforces the paradoxical nature of carrying out peacebuilding in settings where insecurity but not outright war prevails; where non-state actors have considerable power to influence peacebuilding; and where applying the label of “post-conflict” can be misleading. Despite its swift defeat in 2001, Taliban elements have resurfaced in the southern provinces, rendering security in this part of the country almost nonexistent.56 Taliban supporters and militias have targeted state actors like the Afghan National Army, coalition-led provisional reconstruction teams (PRTs), and coalition and NATO/ISAF forces. Taliban forces have also kidnapped and killed non-state actors like staff of humanitarian and development INGOs, and members of the general population. This has had a serious and negative impact on peacebuilding. The UN and other agencies have periodically been forced to scale back their activities outside Kabul, and the targeting of humanitarian and development staff has prompted some organizations to depart the country entirely.57 While the Taliban prevails in the south, non-state actors in the form of militia groups loyal to local warlords and al Qaeda reign in the northern provinces. While open violence is not as common as it was in the initial period following the United States – led invasion, these areas are still not under firm control of the national government. Factional militia leaders, many of whom have been elected to parliamentary seats and hold positions of power locally as police chiefs and provincial governors, are able to rule their communities with impunity. Human rights groups have accused these factions of widespread violations, especially against women and minority groups.58 Provincial warlords are also closely associated with illicit narcotics actors. Overall, the Karzai government has been unable to extend its authority in the south and north of the country, and this has weakened public trust and may become potentially destabilizing for the overarching jus post bellum environment. The jus post bellum principles of proportionality and discrimination have been eroded across two dimensions of the security situation in Afghanistan. First, the overarching military strategy in Afghanistan has consisted of employing a “light footprint.” The number of “boots on the ground” has not been adequate to meet the security needs of the country. For example, the United States – led coalition troop ceiling has been described as being significantly disproportionate to similar past operations. It was one-sixth the size of the NATO-led operation in Bosnia, and the troop-to-population ratio in Afghanistan was one-fortieth of that in Bosnia, whose population is approximately one-eighth of Afghanistan’s.59 In terms of the level of military presence per square mile of territory to

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cover and on a local population per capita basis, forces in Afghanistan have one soldier for every 15 square miles (1 per 681 persons). By contrast, in other peacebuilding transition settings like Sierra Leone and Kosovo, the ratio was one soldier per 4 square miles (1 per 300 persons) and one troop per 0.3 square miles (1 per 50 persons), respectively.60 Second, recent coalition and NATO/ISAF-led military campaigns, especially those carried out in the northern provinces, appear to have violated the jus post bellum principle of discrimination. Aimed at capturing al Qaeda forces along the Afghan border with Pakistan, these incursions have come under intense debate for the excessive levels of collateral damage they have produced, as well as a general failure to take reasonable measures to prevent casualties and deaths among innocent civilians, especially women and children.61 Other areas of security sector reform have experienced mixed success from the perspective of jus post bellum. For example, the disarmament of militias operating under the Afghan Military Forces (AMF) has been judged to be relatively effective in removing thousands of small arms and light weapons out of the society, which facilitates human security.62 The process is best described as voluntary, as the “victors” of OEF largely agreed after Bonn to disarm themselves. DDR in Afghanistan has involved some 63,000 soldiers across 250 units, and in spite of a slow start to the program (commencing two years after the signing of the Bonn Agreement), it was completed in July 2005.63 However, it is estimated that some 1,400 militia groups continue to operate around the country and outside of the control of the government.64 In response, the Karzai administration launched an initiative aimed at disarming antigovernment groups, the Disbandment of Illegal Armed Groups (DIAG) program. The effort faces many challenges, including the fact that many of the militia groups have filled a security void resulting from earlier failure to expand a robust military presence beyond Kabul. In addition, and while some groups have transformed themselves into private military companies (PMCs), many other local militia groups continue to be perceived by local communities as authentic actors.65 Under U.S. and NATO/ISAF guidance, the Afghan National Army (ANA) is being redeveloped to fulfill the responsibility of providing internal and external security for Afghanistan. Rank-and-file soldiers from militia groups were permitted to apply to join the new national army (and the Afghan National Police [ANP]). ANA professionalization and retraining programs include safeguards to exclude human rights violators, and strict requirements for disarmed militia members. Since 2002 the army has grown from approximately 1,700 troops to 70,000, and estimates are that it will reach 122,000 by the end of 2009.66 The force has assumed a

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number of risky assignments and although the general population is said to be supportive of it, morale among troops is said to be low overall.67 Begun nearly four years after the signing of the Bonn Agreement and beset by politicking in the Ministry of Defense, the process of reestablishing the ANP is characterized as a tremendous disappointment. Less than one-quarter of the present force (20,000 out of approximately 80,000) is trained, equipped, and paid.68 Former militia members retain senior and mid-range positions of authority, and many members of the officer corps, itself largely constituted by former militia members and jihadists, have been accused of perpetrating human rights violations in the communities they are charged to serve and protect. The ANP has also been accused of collaborating with narcotics trafficking, and unlike the process of vetting carried out by the ANA, the ANP’s officers are not screened for past human rights violations.69 These obstacles to fulfilling the goal of providing security from internal as well as external threats have important implications for the practical effectiveness of jus post bellum in Afghanistan. According to one just war theorist, if United States and NATO/ISAF-led security sector reform efforts in Afghanistan prove to be insufficient to meet the challenges posed by Al Qaeda and the Taliban, then “the goal of Operation Enduring Freedom (OEF) . . . would be suspect and worthless, all the deaths associated with it would be in vain, and our judgment of that war as being just would be called into question.”70 The probability that the victors of the peace in Afghanistan are also responsible for widespread human rights violations owing to disregard of the jus post bellum principles of proportionality and discrimination is also a factor that will severely hamper efforts to establish a just and sustainable peace in the rural provinces.

Sustainable Livelihoods Incorporating the lessons of the successful Allied efforts to rebuild states like Germany and Japan after the Second World War into contemporary application of jus post bellum strategies is simply not feasible or appropriate in most conflict transition settings. Just war theorists agree that ideal jus post bellum solutions to today’s conflicts should include the presumption in favor of permitting rehabilitative measures in the domestic political structure of a defeated aggressor but that such rehabilitation itself needs be proportional to the degree of depravity inherent in the political structure itself. This way, complete dismantling and constitutional reconstruction—like the sea change from totalitarian fascism to liberal democracy—will be reserved for the exceptional cases.71

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This is the rule of thumb. Comparatively “minor” renovations are instead recommended, unless the institutional capacity of the vanquished authority has been completely destroyed or is so dysfunctional that failing to engage in total rebuilding of the state would result in lowering rather than increasing the likelihood of establishing a just and sustainable peace (or merely returning the situation to the status quo ante).72 Afghanistan may be the exception to this general rule. Decades of neglect, corruption, and war left the country in 2001 with virtually no functioning institutions, few if any basic services outside the capital, severely debilitated infrastructure, and a healthy distrust between the governed and the government. The Bonn process set out to completely overhaul the Afghan government—the institutions of the state—as the most appropriate way of restoring peace. However, rebuilding state institutions through peacebuilding does not guarantee the effective provision of social welfare and social justice via sustainable livelihoods. This has been especially true in Afghanistan, where the illicit narcotics economy thrives and poses tremendous challenges to the jus post bellum goal of creating a “just ordering of society” via positive assistance, restoration, and rehabilitation that makes life “fully human” and emphasizes human capability. To date, progress in fulfilling this goal has been weak and has been characterized by missed opportunities, a complex relationship involving state and non-state actors, and a flawed international strategy that has done more to constrict rather than expand the range of sustainable livelihood alternatives as well as economic and social rights available to Afghan farmers. Poppy cultivation is a major component of the illicit Afghan economy. Its total annual export value in 2007 was estimated at U.S. $4 billion and represented approximately 53 percent of Afghanistan’s gross domestic product (GDP). Poppy production reached an all-time high of 193,000 hectares in 2007 and constituted 82 percent of global cultivation.73 Production levels declined by 19 percent in 2008 to 157,000 hectares, due in part to counter narcotics efforts and a severe drought in some poppy-producing provinces; however, distribution and yield per hectare increased between 2007 and 2008.74 Fewer provinces are producing poppy, but those that are have found new ways to increase productivity levels. Nearly half of Afghanistan’s 44 provinces produce poppy, and some 366,500 Afghan households, many of which fall well under the poverty line, engage in some form of poppy cultivation.75 The negative spillover effects for jus post bellum of activity in this sector are numerous. Factional militias utilize drug profits to arm themselves and perpetuate rural provincial insecurity. These groups rule over their communities with impunity and often coerce farmers to participate in poppy cultivation

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rather than farming other types of crops. And, farmers have no effective means of legal redress, as local authorities are often corrupt and have ties to the heroin trade. While the Karzai government recently improved its institutional capacity to apply rule of law to the heroin trade,76 critics have noted that these mechanisms do not take account of the deep interconnections that exist between the formal and illicit economies in Afghanistan and do not have sufficient funding or political backing to carry out their mandates effectively. The enforcement of laws concerning the illicit drug industry have largely been left to the discretion of regional authorities, who, as noted above, are often former militia members, themselves often complicit in the opium economy, or subject to corruption, extortion, and co-optation. From a jus post bellum perspective, the peacebuilding response to the heroin crisis in Afghanistan has done more to harm than enhance the rights of poor rural farmers.77 Rather than directly challenging illicit narcotics traffickers or investing adequately in sustainable economic alternatives to farming poppy, the international community’s strategy for addressing the heroin trade in Afghanistan has focused almost exclusively on eradication—in some cases the purchase of, in other cases the forcible destruction of, poppy crops. For example, the U.S. program to combat the heroin trade in Afghanistan has consisted of “five pillars,” where eradication, interdiction, and law enforcement are the top three priorities, and alternative livelihoods and public information are number four and five. Critics point out that the strategy lacks follow-on support to replace this sector when and if it eventually ceases to exist. Of the U.S. $778 million in funding provided as part of its 2004 effort, the United States earmarked only $120 million for alternative livelihood strategies, whereas eradication constituted nearly 40 percent of the overall total budget.78 Ironically, eradication programs may actually encourage poppy cultivation. Where demand stays constant and the poppy supply decreases through successful eradication, the profit structure of poppy cultivation becomes more favorable, thus making it an appealing economic alternative to subsistence farming. Moreover, there appears to be a latent desire among farmers to engage in agricultural activity other than poppy. Opinion polls carried out by the UN in 2008 reveal that farmers who do not grow poppy are remarkably responsive to religious pressure and government regulations against farming the crop. The decision to farm poppy appears to be almost entirely motivated by economic necessity, as some 92 percent of farmers surveyed reported that they cultivate poppy to alleviate poverty.79 Eradication programs are also correlated closely with levels of insecurity, especially in the south of the country. Illicit narcotics dealers,

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factional militias, and antigovernment elements in key poppy-producing provinces have become increasingly active in resisting government-led eradication efforts. Violence against coalition forces, members of the Poppy Eradication Force (PEF), and civilian police in the areas under their control has risen markedly in the past three years.80 In a further worrying development, cannabis cultivation is on the incline in Afghanistan. Because the price of growing cannabis is competitive and less labor intensive than growing poppy, it may soon become the principal viable alternative for poverty-stricken farmers.81 In the long term, the failure to develop sustainable economic livelihood strategies for farmers seeking such options carries long-term implications for establishing a just and sustainable peace in Afghanistan. Former Minister of Finance Ashraf Ghani has been quoted as saying, “[t]oday, many Afghans believe that it is not drugs, but an ill-conceived war on drugs that threatens their economy and nascent democracy.”82 Transitional Justice The majority of jus post bellum scholars agree that prosecuting war criminals and political regimes suspected of heinous crimes is key to any successful jus post bellum endeavor.83 Some even view justice through restitution and rehabilitation as an obligatory public good that is “owed” to victims of crimes in wartime.84 Another perspective on this issue is that there can be “no peace without justice.” Fair and international public trials must be established in conflict transitions to restore victim’s rights and punish, via due process, those responsible for violations of the laws of war. Trying those who bear responsibility for war crimes may assist in promoting other goals related to building just and sustainable peace, such as reestablishing rule of law, and securing possession of basic human rights. All transitional justice mechanisms should be guided by the jus post bellum principle of proportionality, and the entire enterprise must be legitimate in the eyes of those it is intended to serve—both the accused perpetrators and the victims.85 On the one hand appealing to the principle of proportionality in jus post bellum should never amount to rewarding aggressors or allowing war criminals to remain outside the reach of the law. And yet on the other hand, “adhering totally to what the requirements of justice and retribution demand” also runs the risk of violating proportionality if war criminals feel their only avenue of recourse is to unleash more violence against the society that is attempting to hold them criminally accountable. Ultimately, if justice is bracketed away and war criminals are not prosecuted, jus post bellum and international human rights principles will be diluted and may foster a culture of impunity. In conflict

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transition settings where peacebuilding does not fully address transitional justice issues or where justice is sidelined or ignored, peace will also be sidelined.86 The development of effective institutional capacity to carry out transitional justice through the development of rule of law and human rights education has proceeded slowly and unevenly in Afghanistan. The Bonn Agreement included provisions for the establishment of a Judicial Reform Commission (JRC) and the Afghanistan Independent Human Rights Commission (AIHRC). The AIHRC, in particular, has attempted to serve as an independent watchdog and national advocate for human rights. It works closely with UNAMA and the International Center for Transitional Justice (ICTJ) and has adopted positions on transitional justice and human rights that are openly critical of the government. The institution also implemented a national consultation on transitional justice in 2004, to gauge the public’s opinion on accountability and what processes could be established to address past atrocities. In overwhelming numbers, Afghans supported creating a formal mechanism for transitional justice.87 In 2005, the government endorsed an Action Plan for Peace, Reconciliation and Justice in Afghanistan,88 which established the following transitional justice priorities: • • • • •

acknowledging the suffering of the Afghan people encouraging credible and accountable state institutions truth seeking and documentation promotion of reconciliation and national unity establishing effective and reasonable accountability mechanisms

However, the overall effort to integrate transitional justice into the Afghan-led peacebuilding arena has resulted in a series of trade-offs that have seriously weakened the jus post bellum principles of proportionality and reconciliation/restoration.89 As noted above, the government has deliberately engaged a number of non-state groups like factional militias, which have a strong measure of legitimacy and authenticity within their communities because they ensure a public good (security), even if that comes at a price (respect for human rights). The strategy has brought these actors into the formal political process and thus does offer promise of rendering them more accountable to the Afghan population for jus post bellum processes. More importantly, it has also allowed former warlords-turned-parliamentarians to utilize the powers of their office to sidetrack justice and ensure that they and their supporters are not held accountable for past human rights violations. Increasingly, the government has failed to deliver justice to the citizens

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of Afghanistan, and popular support for the Karzai administration as a result has waned.90 Long-time observers of Afghanistan agree that justice has taken a backseat to security and political expedience.91 There is no truth and reconciliation process, and no tribunal for the prosecution of war crimes, despite the fact that some 69 percent of Afghans report being the victim of a human rights violation in the last two decades.92 Most recently, the parliament has managed to completely sidestep for the foreseeable future any and all calls for retributive justice, passing an amnesty law in 2007 that prevents war crimes prosecutions by the state unless a complaint is filed by the alleged victim.93 The law does recognize the individual right of all Afghans to seek justice and utilize the legal system to bring accused war criminals to trial. However, it effectively strips away the right of the government to prosecute war crimes cases. In effect, the bill represents a general amnesty, which is something that more than two-thirds of the general population opposes.94 Conclusion Achieving just peace is both a strategic and moral concern that has the potential to stabilize states, facilitate human security, and reduce conflict recidivism. While some scholars advocate that jus post bellum is not a “duty that trumps all others” in what occurs at war’s end,95 it can also be usefully understood as part of a larger determination of a war’s justness. The jus post bellum debate is vitally important to peacebuilding, in that it provides a moral and ethical underpinning to conflict transition activities designed to establish a just and sustainable peace. Peacebuilding strategists and practitioners would do well to adopt more faithfully the emerging framework of jus post bellum principles as a guide for their work in conflict transition settings. Likewise, dialogue among just war theorists concerning the jus post bellum framework would benefit from more careful attention to the realities of peacebuilding and modify their efforts accordingly. Namely, jus post bellum frameworks should acknowledge the key role that non-state actors play in conflict transition settings, especially the various ways in which these actors impact upon state legitimacy and effectiveness. In addition, more attention should be devoted to the study of whether and how jus post bellum principles such as proportionality, discrimination, and reconciliation and restoration can be realized through peacebuilding that involves non-state actors. Afghanistan is a useful and important case through which to examine jus post bellum for a number of reasons. It reflects an evolution in

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thinking about peacebuilding and state-building in the post-9/11 era, and highlights the competing objectives of simultaneously pursuing war and peace.96 Moreover, Afghanistan demonstrates the tensions inherent in the very urgent need to provide security and order in a conflict transition setting while also attempting to instill respect for human rights and justice and attempt to integrate non-state actors into the peace process. Peacebuilding in Afghanistan has achieved a limited number of its objectives. It established a constitution in 2003, ministries have been rebuilt, and the civil service is slowly being redeveloped. Presidential and parliamentary and provisional council elections have been held successfully (in 2004 and 2005, respectively); and independent efforts to promote and protect human rights via the creation of the AIHRC are promising for the future jus post bellum landscape. In other areas, the state is clearly struggling and jus post bellum through peacebuilding will continue to face an uphill battle. High-visibility projects such as reestablishing the national armed forces and civilian police, as well as the 2008 strategy to re-securitize the ring road are notable efforts that should continue to be encouraged as part of the overall peacebuilding strategy. However, these programs have tended to divert attention from other equally important jus post bellum goals. The recently passed amnesty law, for example, is an affront to the jus post bellum goal of vindicating and securing human rights and a sign that factional leaders are interested in self-preservation rather than promoting jus post bellum principles. Unless and until human rights are more fully respected through the establishment of authentic and effective transitional justice mechanisms in Afghanistan, progress toward national reconciliation will be stunted and incomplete. National economic growth, which has shown some signs of recent improvement, is lagging in key provinces where poppy production and the Taliban dominate, such as Hilmand and Kandahar. Impoverished farmers living in these communities are not able to exercise their right to choose from among a range of sustainable livelihoods. As noted above, the short-sighted U.S. focus on poppy eradication is a major contributing factor to this dysfunctional outcome. Viable alternatives to cultivating poppy simply do not exist. Widespread insecurity and coercion by local authorities complicit in the illegal narcotics economy, as well as the stunning lack of government economic initiatives in these regions leave farmers with little choice but to continue to cultivate poppy over other crops. A complex web of linkages between jus post bellum goals, the modalities of peacebuilding, non-state actors, and the legitimacy and capacity of the state is well illustrated by the Afghan case. Security, as one scholar has described it, is the “sine qua non for delivery of services,” and both security and services are essential to “building and maintaining state

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legitimacy.”97 When the jus post bellum goal of restoring security is compromised, non-state groups are able to fill the gap as both service and security providers. This, in turn, frustrates the jus post bellum goal of creating a more just ordering of society based on positive assistance, restoration, and rehabilitation. Moreover, the fluid security situation and control of rural provinces by non-state groups, many of whom have been complicit in perpetrating human rights abuses and participate in the illicit narcotics economy, also impedes the jus post bellum goal of vindicating and securing human rights. Coming full circle, the interactive effect of these factors risks diminishing the Afghan government’s legitimacy in the eyes of average citizens, who cannot count on their government neither to secure them physically, and protect their rights, nor to promote their well-being. Effective peacebuilding demands high levels of political will, sufficient resources, and a durable set of undergirding principles that the current jus post bellum framework provides. It also requires practical knowledge derived from learning lessons at field level. In the case of Afghanistan, many peacebuilding and jus post bellum goals remain unfulfilled, while in other areas progress toward a just and durable peace are emerging. Moreover, Afghanistan demonstrates, in striking terms, the importance of implementing peacebuilding buttressed by jus post bellum principles as an approach that ensures that what happens during the transition away from war also contributes to the overarching goal of protecting and securing fundamental human rights of the population. It also adds to our understanding of the critical role played by non-state actors in jus post bellum, and may enhance the practical effectiveness of the just war tradition by contributing to a fuller realization among Afghans of the “prosperity of peace.” Notes 1. St. Augustine, Concerning the City of God Against the Pagans, trans. H. Bettenson (London: Penguin Press, 1972), 866. 2. Basil Henry Liddell Hart, Strategy (New York: Praeger, 1967), 338. 3. Michael J. Schuck, “When the Shooting Stops: Missing Elements in Just War Theory,” The Christian Century, 111, 26 October (1994): 982. 4. Robert E. Williams, Jr., and Dan Caldwell, “Jus Post Bellum: Just War Theory and the Principles of Just Peace” International Studies Perspectives 7 (4) (2006): 313, 317. The ideal assessment of jus post bellum involves identifying “degrees of justice and injustice,” where some actions may be just, while others are not. 5. Gary J. Bass, “Jus Post Bellum,” Philosophy and Public Affairs 32 (4) (2004): 404.

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6. Turner Johnson, Morality and Contemporary Warfare (New Haven: Yale University Press, 1999), 194. Orend claims that “just” war termination processes should “minimize suffering and maximize amelioration, with the aim being the restoration of a functioning set of relations between former belligerents.” This implicitly suggests that atrocities committed by combatant groups during conflict might be set aside, at least temporarily, while a negotiated settlement is being crafted. See Brian Orend, War and International Justice a Kantian Perspective (Waterloo, ON: Wilfred-Laurier University Press, 2000), 222. 7. Bass, “Jus Post Bellum,” 405. 8. Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books, 1977), Walzer, chapter 7 and especially 111; Bass, “Jus Post Bellum,” 387. 9. Walzer, Just and Unjust Wars, 123–124. 10. Patrick Hayden, “Constraining War: Human Security and the Human Right to Peace,” Human Rights Review (October-December 2004): 51. 11. Williams and Caldwell, “Jus Post Bellum,” 316–318. 12. Orend, War and International Justice, 224; and Brian Orend, “Jus Post Bellum: The Perspectives of a Just-War Theorist,” Leiden Journal of International Law 20 (3) (2007): 578, emphasis in the original. 13. Walzer, Just and Unjust Wars, xxi–xxii. 14. Hayden, “Constraining War,” 36, 41–42. 15. Walzer, Just and Unjust Wars, 72. 16. Brian Orend, “Justice after War,” Ethics and International Affairs 16 (1) (2002): 43. 17. Turner Johnson, Morality and Contemporary Warfare, 194. 18. Orend, “Jus Post Bellum,” 576. 19. Williams and Caldwell, “Jus Post Bellum,” 310. 20. Louis V. Iasiello, “Just Post Bellum: The Moral Responsibilities of Victors in War,” Naval War College Review LVII (3/4) (Summer/Autumn 2004): 34. 21. See I. William Zartman, Ripe for Resolution: Conflict and Intervention in Africa (Oxford, UK: Oxford University Press, 1985). See also Orend, “Jus Post Bellum,” 577. 22. Orend, War and International Justice, 220–223. 23. Williams and Caldwell, “Jus Post Bellum,” 313. 24. Hayden, “Constraining War,” 49. 25. Bass, “Jus Post Bellum,” 386. 26. Nicholas Rengger, “The Judgment of War: On the Idea of Legitimate Force in World Politics,” Review of International Studies 31 (2005): 154. 27. Williams and Caldwell, “Jus Post Bellum,” 310. 28. Orend, “Justice After War,” 44. See also Schuck, “When the Shooting Stops,” 983, quoting St. Augustine: “improper attitudes, not actions alone, account for the evil of war.” 29. Alex J. Bellamy, “The Responsibilities of Victory: Jus Post Bellum and the Just War,” Review of International Studies 34 (2008): 601–625. 30. Ibid., 609–610.

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31. Some 95 percent of contemporary conflicts are categorized as civil wars and even in conflicts characterized initially as interstate, the conflict dynamic often includes internal dimensions that prevent such strict and clinical classifications. See Call, Building States to Build Peace, 1. 32. For differing perspectives on this issue, see Iasiello, “Just Post Bellum,” 34, 37; Orend “Jus Post Bellum,” 577; and Orend, “Justice After War,” 56. 33. Walzer, Just and Unjust Wars and Michael Walzer, Arguing about War (New Haven, CT: Yale University Press, 2004). 34. See the discussion of political communities and war in the introductory chapter to this volume. 35. Williams and Caldwell, “Jus Post Bellum,” 314. 36. For a thorough critical treatment of human security, see S. Neil MacFarlane and Yuen Foong Khong, Human Security and the UN: A Critical History (Bloomington, IN: University of Indiana Press, 2006). 37. See Charles T. Call (with Vanessa Wyeth), ed., Building States to Build Peace (Boulder, CO: Lynne Rienner, 2008); Elizabeth Cousens and Chetan Kumar, eds, Peacebuilding as Politics: Cultivating Peace in Fragile Societies (Boulder, CO: Lynne Rienner, 2000); Tom Keating and W. Andy Knight, eds, Building Sustainable Peace (Edmonton, AB, and Tokyo: University of Alberta Press and United Nations University Press, 2003); John Paul Lederach, The Moral Imagination: The Art and Soul of Building Peace (New York: Oxford University Press, 2005); Roland Paris and Timothy Sisk, eds., The Dilemmas of Statebuilding: Confronting the Contradictions of Postwar Peace (London: Routledge, 2009); and Stephen John Stedman, Donald Rothchild, and Elizabeth Cousens, eds., Ending Civil Wars: The Implementation of Peace Agreements (Boulder, CO: Lynne Rienner, 2003). 38. Call, Building States to Build Peace, 5–6. While the term peacebuilding is often used interchangeably with related terms like “statebuilding” and “nation building,” the latter deal more specifically on institution building or building national loyalties to the political unit known as the state. 39. Boutros Boutros-Ghali, An Agenda for Peace, 2nd edition (with supplement) (New York: United Nations Department of Public Information, 1992/1995). 40. Roy Licklider, “The Consequences of Negotiated Settlements in Civil Wars 1945–93,” American Political Science Review 89 (3) (1995): 681– 690; Paul Collier, Anke Hoeffler, and Mans Soderbom, “Post-conflict Risks,” Working Paper 2006–2012 (Oxford, UK: Centre for the Study of African Economies, Oxford University, August 2006); Astri Suhrke and Ingrid Samset, “What’s in a Figure: Estimating Recurrence in Civil War,” International Peacekeeping 14 no. 2 (2007): 198. 41. Call, Building States to Build Peace, 1. 42. Hayden,” Constraining War,” 49. 43. Cousens, Kumar, and Wermester, Peacebuilding as Politics. 44. The scholarship on Afghanistan’s political, military, economic, and social/cultural history is prolific and a detailed treatment of it falls outside

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45. 46.

47.

48. 49. 50. 51. 52. 53.

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the scope of this essay. See James Dobbins, After the Taliban: NationBuilding in Afghanistan (Dulles, VA: Potomac Books, 2008); Antonio Donini, Norah Niland, and Karen Wermester, Afghanistan: NationBuilding Unraveled? Aid, Peace and Justice in Afghanistan (West Hartford, CT: Kumarian Press, 2004); Oxfam, Afghanistan: Development and Humanitarian Priorities (January 2008), available at: http://www.oxfam.org.uk /resources/policy/conflict _ disasters/downloads/afghanistan _ priorities.pdf (accessed 10 January 2009); Barnett R. Rubin and Humayun Hamidzada, “From Bonn to London: Governance Challenges and the Future of Statebuilding in Afghanistan,” International Peacekeeping 14 no. 1 (2007): 8–25; Sherman, “Afghanistan: Nationally Led Statebuilding,” in Call, Building States to Build Peace, 303–334; J. Alexander Thier, “Afghanistan,” in William J. Durch, ed., Twenty-First Century Peace Operations (Washington, DC: U.S. Institute of Peace Press, 2005); and United Nations SecretaryGeneral, “The Situation in Afghanistan and Its Implications for International Peace and Security,” UN Document A/62/722–S/2008/159 (6 March 2008). Call, Building States to Build Peace, 2. Agreement on Provisional Arrangements in Afghanistan Pending the Re-establishment of Permanent Government Institutions, 5 December 2001, hereinafter referred to as the Bonn Agreement. Available at http://www. afghan-web.com/politics/bonn_agreement_2001.html (viewed 3 January 2009). It is important to note that Bonn is not considered to be a peace agreement between victors and the vanquished; but rather is an agreement among victors. Sherman, “Afghanistan,” 308. The loya jirga process is a form of equitable, participatory governance from the grassroots up through the national government. Local community elders appointed electors who then met regionally to select district representatives to participate in the national jirga process. Sherman, “Afghanistan,” 304–308. Ibid., 308. Ibid., 312–314. Human Rights Watch, “Afghanistan: Blood-Stained Hands—Past Atrocities in Kabul and Afghanistan’s Legacy of Impunity,” in World Report 2006 (New York: Human Rights Watch, 2006), 220–226. United Nations Security Council Resolution 1401 (S/RES/1401), 28 March 2002. United Nations General Assembly and United Nations Security Council, The Situation in Afghanistan and Its Implications for International Peace and Security: Emergency International Assistance for Peace, Normalcy and Reconstruction of War-Stricken Afghanistan, Report of the Secretary-General (A/60/712 and S/2006/145), 7 March 2006, paras. 51–52. A/60/712 and S/2006/145, 7 March 2006, para. 65. The 11 February 2009 Taliban-led suicide bombing attacks against the Ministry of Justice further illustrate the precariousness of the security situation.

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55. Security sector reform in Afghanistan is constituted by five different subsectors or pillars; each is led by a different donor nation. 56. Recall that the Taliban was excluded from the Bonn process. Since that time, the government has attempted to reengage this group in an effort to keep the peacebuilding process on track. For example, a newly created Independent National Commission for Peace has focused on establishing dialogue with the Taliban; many moderate Taliban members were offered amnesty by the government in 2004; and Taliban members were elected to two seats in Parliament in 2005. 57. See Peter J. Hoffman and Thomas G. Weiss, Sword and Salve: Confronting New Wars and Humanitarian Crises (Lanham, MD: Rowman & Littlefield, 2006), 154; and Sherman, “Afghanistan,” 315. On a monthly average, violent incidents in Afghanistan have increased from 44 in 2003 to 573 in 2008. See Mohammad Masoom Stanekzai, Thwarting Afghanistan’s Insurgency: A Pragmatic Approach toward Peace and Reconciliation, U.S. Institute of Peace Special Report No. 212, September 2008, 1. UN staff and other humanitarian workers continue to be targeted in Afghanistan; the total killed in 2008 was 30. See Security Council Report: Afghanistan, available at: http://www.securitycouncilreport.org/ site/c.glKWLeMTIsG/b.4559881/k.2473/October_2008_br_Afghanistan. htm (accessed 15 January 2009). 58. See Afghanistan Independent Human Rights Commission (AIHRC), A Call for Justice: A National Consultation on Past Human Rights Violations in Afghanistan (Kabul [Afghanistan], 2005), 41; and Sherman, “Afghanistan,” 316. 59. See James Dobbins, “The US and UN Ways of Nation-Building,” UNA-USA Policy Brief No. 8 (June 2005), pp. 2–3, available at http://www.unausa.org/Document.Doc?id=255 (accessed 26 February 2009); and Iasiello, “Just Post Bellum,” 33. 60. Michael Bhatia, Kevin Lanigan, and Philip Wilkinson, “Minimal Investments, Minimal Results: The Failure of Security Policy in Afghanistan,” Briefing Paper (Kabul, Afghanistan: Afghanistan Research and Evaluation Unit [AREU], 2004), 10. 61. See Human Rights Watch, The Human Cost: The Consequences of Insurgent Attacks in Afghanistan (15 April 2007), available at http://www.hrw.org/en/ reports/2007/04/15/human-cost (accessed 3 January 2009). 62. See Bart Klem, Pyt Douma, with Georg Frerks, Geert Gompelman, and Stefan van Laar, The Struggle after Combat: The Role of NGOs in DDR Processes, Synthesis Study (The Hague, the Netherlands: Cordaid, 2008), p. 21; and Sherman, “Afghanistan,” 318–321. 63. Klem and Douma, The Struggle after Combat. 64. Stanekzai, Thwarting Afghanistan’s Insurgency, 4. 65. DIAG has been described almost uniformly in the literature as a failure. See Klem and Douma, The Struggle after Combat, 21; International Crisis Group, Afghanistan’s Endangered Compact, Asia Briefing No. 59

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72. 73. 74.

75. 76.

77. 78. 79. 80. 81. 82. 83. 84. 85. 86.

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(Kabul/Brussels, International Crisis Group, 29 January 2007), 13; and Sherman, “Afghanistan,” 321. Stanekzai, Thwarting Afghanistan’s Insurgency, 4. Sherman, “Afghanistan,” 322; 330. Stanekzai, Thwarting Afghanistan’s Insurgency, 4. Sherman, “Afghanistan,” 322. Bass, “Jus Post Bellum,” 396. Orend, Michael Walzer on War and Justice, 143; see also Walzer, Just and Unjust Wars. Bass is one of the more vocal opponents of peacebuilding that seeks to “culturally transform” or radically rebuild societies. Jus post bellum, he claims, should be guided foremost by the presumption against any right of victors to reconstruct a defeated country. He argues that extensive rebuilding should occur only in cases where government institutions pose a real and direct threat to neighboring states or the occupier. When and if such measures are deemed appropriate, sustained popular support is critical, and the goal should be to build a non-genocidal, rather than a close-to-perfect or radically overhauled society. See Bass, “Jus Post Bellum,” 396, 403. Orend, Michael Walzer on War and Justice, 143. One hectare equals 10,000 square meters or 107,630 square feet. The yield increased from 42.5 to 48.8 kg/hectare. United Nations Office on Drugs and Crime (UNODC), Afghanistan Opium Survey, 2008, available at: http://www.unodc.org/documents/publications/Afghanistan_Opium_ Survey_2008.pdf (accessed 18 January 2009), 4, 9. This represents 10 percent of the entire Afghan population. UNODC, Afghanistan Opium Survey, 2008, 12. A Counternarcotics Directorate was established in 2004, a criminal justice task force to handle counter-narcotics cases was established, and a special branch of the police has been trained in eradication and interdiction, and an anti – money laundering law was put into effect in 2004. Sherman, “Afghanistan,” 317–318. Barnett Rubin and Omar Zakhilwal, “A War on Drugs, or a War on Farmers?,” Wall Street Journal, 11 January 2005, A20. UNODC, Afghanistan Opium Survey, 2008, 15–16. Ibid., 19–20. Ibid., 23. Quoted in Rubin and Zakhilwal, A20. Iasiello, “Just Post Bellum,” 47; Orend, Michael Walzer on War and Justice, 144–151; Johnson, Morality and Contemporary Warfare, 204–205; Walzer, Just and Unjust Wars, 292–301. Orend, War and International Justice, 222. Orend, “Justice after War,” 53. Iasiello, “Just Post Bellum,” 48. The “lustration” of war crimes (a process roughly equivalent to truth and reconciliation commissions) also holds promise for achieving transitional justice objectives because this model is

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87.

88.

89.

90. 91.

92. 93.

94. 95. 96. 97.

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based on a framework of “no fault” rather than a “fault-and-punishment.” See Turner Johnson, Morality and Contemporary Warfare, 202. Ninety-four percent of Afghans consider “justice for past crimes” to be “very important” (75.9 percent) or “important” (18.5 percent). Nearly threequarters of those polled felt that bringing war criminals to justice would lead to greater stability and security in Afghanistan, while only 7.6 percent thought it would decrease stability and security. See AIHRC, A Call for Justice, 75. Peace, Reconciliation and Justice in Afghanistan: Action Plan of the Government of the Islamic Republic of Afghanistan, 2005, available at: http://www. unama-afg.org/news/Afghan%20Government/06dec10-government-actionplan-eng.pdf (accessed 20 January 2009). Orend, War and International Justice, 250 (fn 26) specifies that the correlation between proportionality and transitional justice lies in the gray area concerning accused war criminals, who despite their “moral decrepitude,” retain considerable popular legitimacy and that bringing these individuals to trial may seriously destabilize and/or rupture the polity. Sherman, “Afghanistan,” 329–330. See, for example, International Crisis Group, Afghanistan: Judicial Reform and Transitional Justice, Asia Report No. 45, (January 2003); Norah Niland, “Justice Postponed: The Marginalization of Human Rights in Afghanistan,” in Donini, et al., Nation-Building Unraveled?; and Barnett R. Rubin, “Transitional Justice and Human Rights in Afghanistan,” International Affairs 79 (3) (2003): 567–581. AIHRC, A Call for Justice, 9. See Ron Synovitz, “Afghanistan: Amnesty Law Draws Criticism, Praise,” Radio Free Europe/Radio Liberty, 14 March, 2007, available at http://www.rferl.org/featuresarticle/2007/03/69572c45-d232-4fc4b4be-a5de9f9fb97c.html (accessed 19 January 2009). AIHRC, A Call for Justice, 21. Bass, “Jus Post Bellum,” 406. Sherman, “Afghanistan,” 303. Sherman, “Afghanistan,” 304.

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CHAPTER

10

Conclusion: Elusive Distinctions, Epochal Changes Nicholas Onuf

Those who are surprised by the paradoxes that ordinary logic and language engender when they apply their divisions to continuous magnitudes forget the paradoxes inherent in treating language as a purely logical instrument and also forget the social situation in which such a relationship to language is possible. Pierre Bourdieu1

Anyone glancing at the title of this book—Ethics, Authority, and War— will see no evident paradoxes of logic or language. Instead such a person will recognize topics or themes of great contemporary significance, and not only to scholars. Perhaps she will consider briefly how these topics might be related and wonder what new and different the book’s contributors have to say. The book’s subtitle—Non-state Actors and the Just War Tradition (same as the title of the introductory chapter to this volume)—is a different matter. Embedded in the subtitle are no fewer than three paradoxes of logic and language. One will be obvious to any reader who has a background in the field of International Relations (IR). With a moment’s reflection, any reader interested in the ethics of war will recognize the second paradox. More deeply buried in familiar language, the third paradox must be coaxed into view. The first paradox is conveyed though an awkward locution: non-state actors. Another quotation from Bourdieu points up the paradox. “All the agents in a given social formation share a set of basic perceptual schemes,

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which receive the beginnings of objectification in the pairs of antagonistic adjectives commonly used to classify persons or objects in the most varied areas of practice.”2 Here the nouns state and non-state function as opposed descriptions of agents and their powers. Agents either have certain powers (collectively described as authority in the book’s main title) or they do not. Yet the contributors to this volume recognize this opposition, not to mention the closely related opposition, public – private, as one that unduly simplifies the complex relations of authority in today’s world. The second paradox is borne in the words just war. Here the adjective just immediately brings to mind its opposite, unjust, and with it Michael Walzer’s invocation of this opposition in his Just and Unjust Wars (1st ed., 1977).3 It would seem that wars can only be just or not; there is no third possibility; justice does not admit of degrees or, in Bourdieu’s words, “continuous magnitudes.” Yet any such claim is again an unwarranted simplification. When Melissa Labonte refers in Chapter 9 to “degrees of ‘justness’ ” in assessing any given peace settlement, few of us would reject this formulation. Even more, the claim that wars must either be just or not is an anachronism. It comes from taking a distinction that made perfect sense in an earlier time and applying it to another time—our own— perhaps on the conviction that some distinctions are transhistorically and transculturally valid. Just and Unjust Wars is “a seminal book,” as the editors of this volume say, “a modern-day classic,” as Anthony Lang says in Chapter 3. It is a primary source of inspiration for the contemporary discussion of just war. The contributors to this volume turn to it repeatedly. For anyone just beginning to read up on the ethics of war, there would seem to be no other place to begin. Yet, as Lang also says, Walzer’s book appeared toward the end of an extended, mid-century discussion of just war in the context of nuclear arms and war in Vietnam. Putting Walzer’s book in context might suggest an ongoing consideration of the justification for wars as they take place over the years, or indeed might take place. In this view, questions of justice will always come to the fore, and there is a discursive tradition to draw on at any given moment. Indeed this volume’s subtitle invokes a “just war tradition,” as do several of its contributors. The editors draw on Alex Bellamy’s useful review of the just war tradition and its contemporary relevance to distinguish between the tradition, such as it is, and theories arising from “sub-traditions.”4 This distinction implies, or maps onto, a cluster of “conceptual pairs”—old and new, then and now, past and present—“that constitutes at one and the same time a boundary and a bond.”5 On the one hand is a fusty, incoherent, and largely irrelevant tradition dating back at least to St. Augustine. On the

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other hand we have a host of theories, if not exactly new, then updated to fit the complexities of today’s world. Theories purport to transcend the limitations of time and place, yet today’s just war theories still depend on old distinctions. Walzer’s book functions as the boundary between past and present, with the discursive setting prompting him to write the book—the ethics of nuclear war and Vietnam—all but forgotten. Walzer made it easy for his readers to think that just war thinking today started afresh with him. In his words, “I have not attempted a history of just war theory, and I quote classical texts only occasionally . . . . I refer more often to contemporary philosophers and theologians (and soldiers and statesmen), for my main concern is not with the making of the moral world but with its present character.”6 Receding into the background is a tradition that offers no theory (a term that conveys a strong presentist bias) but several overlapping sets of distinctions at one time peremptory but today elusive. Replacing a moribund tradition are theories that take old distinctions, generalize them, and apply them to contemporary circumstances. Generalization is risky, anachronism too often the jarring result. Not concerned with the making of the moral world, Walzer avoided anachronism by substantially confining himself to “the set of articulated norms, customs, professional codes, legal precepts, religious and philosophical principles, and reciprocal arrangements that shape our judgment of military conduct” that he called “the war convention.”7 This is, of course, the jus in bello, which emerged in fits and starts over the last several centuries, and has been extensively codified, despite its many contradictions and inadequacies, for contemporary use in violent conflicts. Jus in bello suffices for Walzer’s “moral argument” (quoting his book’s subtitle), only because his moral concerns are so carefully bounded: “The morality I shall expound is in its philosophical form a doctrine of human rights, though I shall say nothing here of the ideas of personality, action, and intention that this doctrine probably presupposes.”8 By contrast, the jus ad bellum, the law justifying recourse to war, does not have anything close to the war convention’s normative weight or density of practice. The jus ad bellum does not “shape our judgment” in nearly the same degree. It is, however, central to the just war tradition, which offers not just moral grounds for making war but “ideas of personality, action, and intention.”9 These are precisely the moral concerns that Walzer set aside. Understandably, they occupy the editors of this volume and most of its contributors, indeed motivating them to draw on the just war tradition. Yet the just war tradition simply does not exhibit a history of continuous development and use, such as the term tradition implies.

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As with generalization in the name of theory, any effort to find a moral vocabulary in the long reach of history risks anachronism. Here we find the third paradox of logic and language to be found in this volume’s subtitle. Tradition supplies distinctions, starting with the just – unjust opposition, but hardly ending there. Not just time, but epochal change, has rendered these distinctions elusive. Contemporary discussions of just and unjust wars, following Walzer and his preoccupation with the war convention, succeed only in rendering these distinctions more obscure, misapplying them, and abusing them. ∗ ∗ ∗ ∗ ∗ ∗ ∗ Bourdieu’s “paradoxes of logic and language” are not just occasional anomalies or casual mistakes. They result from the “objectification” (as I quoted him earlier to say) that “pairs of antagonistic adjectives” undergo when they are “used to classify persons or objects.”10 In basic logic, as set forth in Aristotle’s Organon, statements about things in the world—objects identified as such in speech—must honor laws of identity, noncontradiction, and the excluded middle if these statements are to be considered true. Using the terms A and B to represent different things (they have distinguishable qualities A and B), then to say that “A belongs to no B” is no different than saying “B belongs to no A”.11 If A is not B which is therefore not A, then A and B, or A and not-A, usually expressed as qualified nouns, stand as contradictories (apophaseis), and there can be no middle term C combining or sharing stated qualities, or properties, of A and B.12 When, however, the terms A and B have some stated quality in common, usually expressed with an adjective, then they can be represented by terms C, D, and so on, reflecting the shared quality, as we say, in degree. In such cases, terms A and B are contraries (enantia). As such they are qualified in principle even if the shared quality is barely detectable at one limit and overwhelmingly evident at the other: “Qualifications admit of a more and a less.”13 Aristotle observed that “there are no names for some qualities.”14 When they are named, they tend to be named at the extremes, as contraries. Between these extremes, no third term has a name. Thus, “the man who exceeds in his desires is called ambitious, the man who falls short is unambitious, while the intermediate person has no name.” Praise and blame, anger and not being angry, honor and dishonor offer other examples—for Aristotle, related examples—of contraries between which there are no named middle terms.15 For Aristotle, there is only one middle term of interest: the mean, or very middle, to which he attached a great deal of normative significance. For our purposes, there are as many

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middle terms as we have cause to name, as many distinguishable qualities as we have occasion to discern. As Aristotle suggested, “the extremes seem to be opposed because the mean has not received a name.”16 In other words, we treat contraries as terms in opposition—as logically contradictory—rather than as end points on a continuum, because we objectify them as an opposition. In doing so we neglect to consider the distribution of qualities by magnitude, in the first instance by naming what we see (Aristotle saw that many qualities of interest to him form a normal distribution, and so, often enough, do we). We are disposed to construct contraries into contradictories for obvious reasons: qualitative extremes are themselves obvious; objectifying them as opposites makes them even more obvious; assigning them valence gives them weight as contradictories. Institutional logic functions as formal logic. The opposition of justice and injustice illustrates this process all too well. Aristotle took justness to be a quality that people possess in degree. Confusingly, he launched his discussion by asking “what sort of mean justice is, and between what extremes the just act is intermediate,” proceeded to equate justness with moderation and unjustness with greed or graspingness, thereby turning justness and unjustness into contraries, before concluding that “justice is, as a certain kind of state without qualification, excellence.”17 Closely related to moderation, Aristotle’s conception of justice as fairness also becomes an unqualified condition.18 Justice and injustice stand in contradiction because this is the way we speak of them. When, as adjectives, just and unjust are attached to a noun such as war, wars can only be just or unjust; we can only start where Walzer started. In the process of objectification, the third term can never be named because we have excluded it. We cannot say just war – moderate war – unjust and make sense; no wonder Aristotle felt compelled to make moderation an extreme. We must find another adjective, a close relation that still functions as a qualification, one that describes some object or condition by degrees. In this case, we often use the term justified —we can say that going to war is somewhat justified and proceed to argue the relative merits of this claim against any number of counterclaims. Contributors to this volume frequently use the term justified and its cognates to suggest that justification is relative to circumstances, a matter of degree and discussion. When, for example, Lang speaks of “the primary justification for the use of force,” he implies that there may be other, less persuasive justifications available. Indeed Lang goes on to show how pervasive the language of justification is in Grotius’s writings, which of course figure prominently in the just war tradition. So does Harry Gould in Chapter 4. I would further say that Grotius’s reliance on the language

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of justification is entirely consistent with his emphasis on temperamenta— specific measures to moderate the conduct of war. Justification is not only admissible in “the war convention” but indispensable to its development over several centuries. Grotius nevertheless insisted on the categorical nature of justice when judging the recourse to war. The cause must be just; if one party has a just cause for war, the other party cannot also have a just cause. As Kant made especially clear, means and ends are not to be confused; means must be justified without reference to ends. Yet natural law theorists today are reluctant to pronounce a cause just, thanks to cosmopolitan sensibilities that ordinary people are less likely to have internalized. Instead of affirming a just cause and thus the injustice of all other causes, contemporary natural law theorists reach back to Augustine and Aquinas to claim that intention determines the justness of war. One’s intentions are either right or wrong, good or bad. If a cause is a public, objectivized, and unqualified statement of intentions, then intentions are themselves private, subjective, ultimately unknown even to ourselves, and (at least for some people) accountable only to God. By substituting right intention for just cause, natural law theorists may have saved justice and injustice as paired contradictories, but they have done so by introducing distinctions—specifically, the public – private distinction and the objective – subjective distinction—a good deal harder to defend as contradictories mandated as such by nature. Another substitution—motive for intention—does not merely subvert the just – unjust distinction, but demolishes it. Consider the editors’ helpful discussion of right intention as an enduring principle in the jus ad bellum. “The controversy over this principle concerns whether mixed motives are permissible and whether it is required that the just cause only be the primary (but not exclusive) reason for going to war.”19 We know motives by making inferences from what people do (saying is doing), from their circumstances, from the reasons they offer to justify what they do—inferences filtered and ordered by our values and preconceptions. What we see in others (or ourselves) are multiple, shifting, interactive causes, or reasons, for conduct. The closer we look, the more likely we are to see “mixed motives.” If, as a matter of logic and language, just-not just cause and rightnot right intent express, indeed constitute, contradictories, then valenced motives (good and bad, self- and other-serving) are extremes constituting an opposition of contraries. To affirm that motives are mixed is to suggest that they are a matter of degree, that normally they distribute normally (few indeed are those whose motives are entirely good or bad), and that we judge people accordingly. To say that we have mixed motives in going

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to war is to repudiate the just war tradition insofar as it is anchored in the claim that wars are either just or not. Language subverts what language has wrought. The public – private distinction is only implicit in the language of cause, intention, and motives (notice the singular – plural distinction). Contributors to this volume turn to it explicitly when they confront the distinction between state and other kinds of social arrangements. That Laura Sjoberg feels compelled in Chapter 7 to dismantle the public – private distinction yet again from a feminist point of view suggests how deeply ingrained it is. Anchored in Roman law, this distinction prefigures the emergence of the modern state and liberal society as a controlling opposition of contradictories. Any discussion of ethics and war today must account for agents acting for a cause but not for, or on behalf of, a state (al Qaeda is a conspicuous example), and for agents motivated largely by personal gain (here see Eric Heinze’s discussion of private military companies in Chapter 6). Yet any effort to move beyond the obvious limitations of the distinction between state actors and non-state actors seems destined to fall back on the public – private distinction. In the case of this volume, the just war tradition provides a warrant for doing so: Aquinas distinguished between the “private good of the ruler” and the “common good”20 and Grotius took notice of “private avengers” and “The Division of War into Publik and Private.”21 Not only do we have the same concerns today, we formulate them in much the same language. If Grotius wrote about mercenaries and privateers, so does Heinze in his chapter on private military companies. That Heinze doubts the term mercenary fits these companies does not prevent him from calling them private. The just war tradition also warrants this volume’s focus on authority (already signaled in its title) and especially on political authority. Again, Aquinas and Grotius come to the fore—as the editors say, “both wrote at moments when the question of political authority was undergoing radical shifts.” Yet contemporary discussion leaves the distinct impression that political authority is a synonym for the state. At least the contributors to this volume do not use the terms public and private to qualify their conceptions of authority. Since these terms function as contradictories reinforcing the distinction between state and non-state, private authority can only be a paradox of logic and language, and not the basis for a viable conceptual scheme.22 We might ask, however, in what way the term political clarifies what we might mean by authority. If, following David Easton, politics is “the authoritative allocation of values,” the qualifier is redundant.23 If the political is somehow more inclusive than authority, or the state, then just

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how it is more inclusive needs to be shown. The editors do nothing of the sort. Instead they say: Our understanding of non-state actors for the purposes of this volume, quite simply, refers to any political or institutional entity that is not widely considered to be a state, as defined above and understood as the prevailing organizational governing entity of our time. Yet if one is to conceptualize the possibility of non-state actors potentially having a right to wage a just war, as we do in this volume, yet still resist the claim that “just anybody” can claim this right, one needs an account of what it is about states that merits their status as the prevailing organizational governing entity, and by extension, their purported exclusive right to wage war.24

Symptomatically, they go on to say that Walzer provides “a useful starting point.” But he does not, at least not in Just and Unjust Wars. While he claims that “political communities, not states, should constitute the primary unit of analysis in just war thought . . . his terminology though often slips between the state, the community, and the nation.”25 Indeed states and their agents are Walzer’s abiding concern. The war convention exists for their use, even if others are its (occasional) beneficiaries. We need an account of what it is about non-state actors that makes them political, even though they lack whatever kind of authority it is that makes states states. Insofar as the state’s authority is territorially bounded, we might say, rather unhelpfully, that non-state actors do not have territory, so what makes them political, or confers authority on them, is also not territorial. Alternatively, we could say these entities discharge specific, technically defined functions, because governments choose not to perform these functions (instead conferring requisite powers on international organizations) or cannot, as in the case of Hizbollah and Lebanon (see Chapter 8 in this volume). Insofar as skilled agents perform these functions to the satisfaction of beneficiaries, they do so authoritatively. States also perform these kinds of functionally directed activities. Indeed the state is little more than a loosely coordinated ensemble of functionally defined institutions. These activities are political in their own right, precisely because these institutions operate authoritatively. The familiar distinction between political and functional activities is so elusive because it turns out to be a bogus distinction—a paradox of language. In Chapter 5, Michael Struett focuses on the intersecting activities of state, state-authorized, and non-state actors in a functionally defined, obviously politicized domain concerned with the protection of human rights. Governments, the International Criminal Court, and a large number of social movement professionals play out their complex relations in a

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setting where the political stakes are notorious high. Labonte pays considerable attention to several functional domains in her discussion of post-war state-building, again attending to governments, a number of international organizations dedicated to social and economic development, and a wide variety of civil society organizations.26 Burdened by language that makes states and non-state actors into contradictories, neither Struett nor Labonte has a name for the political arena where functional experts use their authority, perform their jobs, and deal with each other. I should think this unacknowledged arena—this excluded middle—is indeed civil society. Oddly, no one in the volume uses this term, except Labonte (in Table 9.2), and she does so only in passing and not at all inclusively. Yet in recent years many commentators have given their attention to a functionally differentiated civil society transcending state boundaries. Thinking political and functional activities are necessary opposed, many scholars underestimate the institutional consequences and political implications of functional differentiation. Thinking civil society must be private, even if it is political, liberal-minded scholars tend to leave states, and thus public functionaries, out of the equation.27 Taking for granted distinctions that cannot be sustained, such scholars cannot see what they cannot name. ∗ ∗ ∗ ∗ ∗ ∗ ∗ Bourdieu offered two reasons for “the paradoxes that ordinary logic and language engender.” The first comes from “treating language as a purely logical instrument,” and the second from forgetting “the social situation in which such a relationship to language is possible.” One might think that Bourdieu was advancing the familiar opposition of form and substance—forcing us to confront the paradox that form and substance, so readily rendered as contradictories in logic and language, are inescapably codependent features of experienced reality. Yet Bourdieu did not have contradictories in mind when he talked about “pairs of antagonistic adjectives.”28 In Bourdieu’s inquiry into taste, the relevant conceptual pairs are contraries: high and low, spiritual and material, fine and coarse, light and heavy, free and forced, broad and narrow, brilliant and dull; the list seems endless.29 These contraries complement, even reinforce, each other in networks of imbricated antagonisms or “fields” (a term that, in Bourdieu’s work, is as unbounded as his compounding distinctions).30 An inquiry into just war thinking prompts a different list of adjectival distinctions, even if some of them will be found on Bourdieu’s list if it were duly extended. Fields overlap too.

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My list features two conceptual pairs often objectified through language as logical opposites. The first distinguishes between what in the world is sacred by reference to some world (perhaps even a past world) and what is profane. It clusters with Bourdieu’s opposition of spiritual and material and, of course, the pure and the corrupt. (Notice that the process of objectification turns antagonistic adjectives into nouns in the process of making them into logical opposites.) The second pair distinguishes what we think of as natural, or given to us by nature, and what we take to be conventional, or made by us to suit our own purposes. Both of these conceptual pairs refer to, or comment on, the logical opposition between the copula is and the modal qualifiers can, should, must. This same relation lurks in the background of Bourdieu characterization of high and low culture. While many of Bourdieu’s paired adjectives are metaphorical extensions of our sensory organization of the world, the opposition of is and ought depends on, or can only be expressed in, language. In short, distinctions acquire normative weight in the very process that turns them into what seem like logical pairs. Why then do some distinctions become obligatory, as if logically mandated? There is no global answer to this question. In the case of the two distinctions on my list (sacred – profane, natural – conventional), we might argue that some version of them appears in many, perhaps most cultures across space and time. Yet we would be hard-pressed to say that these distinctions are universal or mandated by nature, since this claim itself assumes what it seeks to demonstrate, namely, that there is a universal, invariant nature orchestrating cultural diversity. Instead, I suggest, these two distinctions have the normative, quasi-logical weight they do because of the function they serve in our world and time. These distinctions mark epochal changes. Thus the sacred – profane distinction sets the medieval and modern worlds apart, the former dominated by divine will, sacred texts, miraculous events, and astonishing prophecies, and the latter by human reason, methodical inquiry, plausible explanations, and qualified predictions. Humanist writers fostered this great change by turning back to the long-lost classical world (even though, by later standards, Greeks and Romans seem to have viewed the sacred and the profane as not at all contrary). A desacralized world substituted an ordered nature for awesome mysteries, with the early modern world ensuing. In due course, faith in nature’s plan provoked a contrary emphasis on ever-changing convention as an expression of human inventiveness and adaptability, and with it a skepticism that makes faith in nature a middle term between sacred and profane extremes, and then an extreme in an emergent opposition. In some degree, the natural – conventional distinction substitutes for the

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sacred – profane distinction by mapping onto it. Inventive human beings fulfill their God-given natures by making the world to suit themselves. At the same time, a sacralized nature stands in opposition to a despoiling humanity, and we enter not just a fully modern world, but a morally ambiguous one. This epic story of epochal change is altogether familiar, however crude in the telling. On every telling, paired contraries become more thoroughly conventionalized—objectified and normativized—and paired contraries become institutionalized as contradictories marking temporal boundaries. In their way, these boundaries are as compelling as the spatial boundaries demarcated states from other. By convention naturalized, even sacralized, states can only be what they have become—nation-states—in a world where the present constantly appropriates the past in constituting the future. Form epoch to epoch, conceptions of ethics, agency and authority, and war change drastically if predictably. In the medieval world, a just cause is a sacred cause; wars are just when the cause is just; believers have no choice but to join in crusades and holy wars. On God’s authority, princes, warriors, and even peasant girls become God’s avengers; Jeanne d’Arc is still revered in France. There is no public – private distinction, there are no private avengers. Just wars permit plunder and personal glory, and they obviate any possible distinction between combatants and noncombatants—all nonbelievers are guilty and deserve to be punished. Greed and slights motivate unjust wars, making them include indistinguishable from brigandage and ritualized acts of revenge. The early modern epoch finds justice in the God-given capacity for reason, including ethical deliberation. Authority belongs to those whom nature chooses to exercise it, whether by birth or talent. With the sacred – profane distinction not forgotten and centuries of struggle between church and crown, sacred sanction supports secular authority, and a last burst of holy wars wracks Europe. Rule by rule, writers adduce the natural law to assure good relations among people and peoples, to limit justifications for war, or casus belli, by reference to the distinction between the common good and private gain, and to mitigate the conduct of war. As the early modern epoch draws to an end, the claim that nature demands individual autonomy registers in a shift from natural law to natural rights. Liberalism begins its remarkable ascent. I need say less about the modern epoch and those of its features bearing on ethics, authority, and war, since they are so familiar and so many of them sketched in the contributions to this volume. Most obviously, the state has monopolized authority (but recall my comments on functionally directed activities). While the war convention is a tribute to the

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modern attachment to convention—and more especially to legislation as an emblematically modern vocation—the demise of natural law left state agents generally free to decide for themselves when and for what reasons to go to war. That enormously destructive world wars eventuated in the United Nations Charter as a legislative instrument to end discretionary war is hardly surprising. Nor is the Charter’s failure and the development, still underway, of a conventional regime to distinguish good and bad reasons for initiating war. The ethics of modern war are decidedly consequentialist. The common good is simply given as the state’s raison d’être, even as the good is increasingly manifest in functionally differentiated activities. In these circumstances, the evaluation of means, not ends, dominates public life. If the modern epoch is conventionally constituted and instrumentally oriented, then its ethics must allow judgment by degrees. Modernity may be coming to a close. For many commentators, digital technology, information networks, and globalization portend an epochal change. The compression of space and time, the fragmentation of authority, weakened accountability, porous frontiers, and cultural diffusion all point to an alternative to modernity that we cannot see clearly or name with conviction. Furthermore, these developments have spawned resistance. Turmoil suggests a time of transition between two epochs. Our anxieties rule the day, and the distractions of the moment obscure the future. In such a situation, old distinctions acquire an unexpected resonance. If modernity deconsecrated and then denaturalized the premises of the past, then a time of epochal change has induced many people to turn back to the comforting certainties of earlier epochs, to assert the value of timeless values, to identify their interests with some higher being, their own kind or humanity writ large. The resurgence of the sacred finds just cause for war and vindicates private vengeance for higher purpose. The human rights movement harks back to the high tide of natural law, from Grotius to Kant, to combat relativism, rein in sadistic state actors, and justify humanitarian intervention. Invoking the just war tradition supports the return to old distinctions, even though epochal change has long since emptied this so-called tradition of any coherence and denied these distinctions the force they once possessed. Reinventing a tradition is at best a patch job, at worst a delusion. To use Bourdieu’s words, the “social situation” of the moment renders all distinctions elusive, every pair of contradictories contested.31 With no points on our compass, we can only guess where we are headed. As far as I know, Bourdieu (who wrote a great deal) had no great interest in social situations where epochal change, or the cognitive disorientation it produces, impairs our capacity to manage our social relations.

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To understand these ruptures—at once epochal and epic—and gain some perspective on modernity’s end, we should turn instead to Foucault’s archeology of knowledge.32 Yet Bourdieu’s sense of how contrary adjectives become logically opposed nouns, and why they do so, seems all the more fitting in situations such as the one we live in now. So let me give him the last word. Principles of division, inextricably logical and sociological, function within and for the purposes of the struggles between social groups; in producing concepts, they produce groups, the very groups which produce the principles and the groups against which they are produced. What is at stake in the struggles about the meaning of the social world is power over the classificatory schemes and systems which are the basis of the representation of the groups and therefore of their mobilization and demobilization; . . . a separative power, a distinction, diacrisis, discretio, drawing discrete units out of indivisible continuity, difference out of the undifferentiated.33

Notes 1. Pierre Bourdieu, Distinction, trans. Richard Nice (Cambridge, MA: Harvard University Press, 1984), 476. 2. Ibid., 468. 3. Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books, 1977). 4. Alex J. Bellamy, Just Wars: From Cicero to Iraq (Cambridge, UK: Polity Press, 2006), 3–4. The term “sub-tradition” is Bellamy’s. 5. Constantin Fasolt, The Limits of History (Chicago: University of Chicago Press, 2004), 15. 6. Walzer, Just and Unjust Wars, xiv. 7. Ibid., 44. 8. Ibid., xvi. 9. Ibid., xxii. 10. Bourdieu, Distinction, 468. 11. Aristotle, Prior Analytics, trans. A. J. Jenkinson, 25a14–25a15, in Jonathan Barnes, ed., The Complete Works of Aristotle, I (Princeton, NJ: Princeton University Press, 1984), 40. 12. Aristotle, De Interpretatione, trans. J. L. Akrill, 17b17–17b26, in Barnes, ed., The Complete Works of Aristotle, I, 27. 13. Aristotle, Categories, trans. J. L. Akrill, 10b26b, in Barnes, The Complete Works of Aristotle, I, 17. 14. Aristotle, Categories, 10a31, 16. 15. Aristotle, Nicomachean Ethics, trans. W. D. Ross, rev. J. O. Urmson, 1107b27–1108a9, 1749, in Barnes, ed., The Complete Works of Aristotle, II, quoting 1107b28–1107b30. Also see 1125b1–1125b31, 1776.

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16. Aristotle, Nicomachean Ethics, 1125b25–1125b6, 1776. 17. Aristotle, Nicomachean Ethics, 1129a2–1130a14, 1781–1783, quoting 1129a4–1129a5, 1130a13. As Aristotle remarked (1132a24–1132a32, 1787), the term just (dikaion) derives from the act of cutting something in half (dicha); fairness implies the two parts are equal. 18. Aristotle, Nicomachean Ethics, 1130a14–1131b24, 1783–1786. 19. Heinze and Steele, Chapter 1, this volume; italics in original. 20. Cian O’Driscoll, quoting De regimine principum, Chapter 2, this volume. 21. Harry Gould and Tony Lang, respectively, quoting De jure belli ac pacis, Chapters 4 and 3, this volume. 22. But see Rodney Bruce Hall and Thomas J. Biersteker, eds., The Emergence of Private Authority in Global Governance (Cambridge, UK: Cambridge University Press, 2002) and Saskia Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages, updated ed. (Princeton, NJ: Princeton University Press, 2006), ch. 4–5, for valiant efforts to escape the conceptual difficulties this oxymoron engenders. 23. David Easton, The Political System: An Inquiry into the State of Political Science (New York: Knopf, 1953), 129–141. 24. Heinze and Steele, Chapter 1, this volume. 25. O’Driscoll, Chapter 2, this volume. 26. Melissa Labonte, Chapter 9, this volume. 27. I develop these claims in Nicholas Onuf, “Late Modern Civil Society,” in Randall Germain and Michael Kenny, eds., The Idea of Global Civil Society: Politics and Ethics in a Globalizing Era (London: Routledge, 2005), 47–63. 28. Bourdieu, Distinction, 468. 29. Ibid. 30. For a thorough assessment on Bourdieu’s conceptual practices, see Jeffrey C. Alexander, Fin de Siècle Social Theory: Relativism, Reduction, and the Problem of Reason (London: Verso, 1995), ch. 4. 31. Bourdieu, Distinction, 476. 32. See especially Michel Foucault, The Order of Things: An Archeology of the Human Sciences, trans. Alan Sheridan (New York: Vintage Books, 1971). And see Nicholas Onuf and Peter Onuf, Nations, Markets, and War: Modern History and the American Civil War (Charlottesville, VA: University of Virginia Press, 2006), Part I. 33. Bourdieu, Distinction, p. 479.

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Index A Abu Ghraib scandal, 180 Action Plan for Peace Reconciliation and Justice in Afghanistan, 228 Afghan Military Forces (AMF), 222 Afghan National Army (ANA), 222–223 Afghan National Police (ANP), 222–223 Afghanistan and al Qaeda, 2 Bonn Agreement, 219, 222, 224, 225, 228, 234n46, 235n56 drug trade in, 225–227, 236n76 as a fragmented state, 218–219 human rights violations in, 224 intrastate versus interstate conflict in, 213–214 peacebuilding efforts in, 16, 206–231 security sector reform in, 221–224, 235n55 sustainable livelihoods in, 224–227 transitional justice in, 227–229 U.S. air strikes on (1998), 91 and violence against women, 172n24 Afghanistan Compact, 220 Afghanistan Independent Human Rights Commission (AIHRC), 228, 230 agency and humanitarian intervention, 126 and political authority, 52

Agenda for Democratization, An (Boutros-Ghali), 215 Agenda for Development, An (Boutros-Ghali), 215 Agenda for Peace, An (Boutros-Ghali), 215 aggression, crime of definition of, 102, 109–112, 119n5 efforts of international criminal courts to define, 109 and presumption of innocence, 110 Special Working Group on the Crime of Aggression, 109, 114–116 al-Bashir, Omar, 103, 104 al Qaeda role as non-state actor in war, 12, 22, 39, 164, 221, 245 terrorist attacks of, 2, 37–38 Albright, Madeleine, 124 Amnesty International, 188 amnesty law (Afghanistan), 229, 230 Andreopoulos, George, 31 Angola, UN intervention in, 29 Annan, Kofi, 124, 215, 220 anticolonial movements, 10, 53 Aquinas, Thomas, 4, 24–25, 57, 243, 245 arbitration of conflicts, 27 Arendt, Hannah, 51 Aristotle, 16, 57, 58, 195, 242–243 Atherton, Margaret, 155 atrocities, punishment of, 208 Austin, John, 92

278

INDEX

authority, principle of and agency, 52 authority defined, 39n4 and the crime of aggression, 114–116 historical development of, 23, 51–52, 66, 78 international law and legitimate authority, 135 and just war theory, 2, 5, 10, 13, 184, 193–194 and legitimacy, 48, 50 and power, 50, 65–66 practical distinguished from theoretical, 49–52 and private military contractors (PMCs), 135–143 and problem of non-state actors, 8, 47–68 rules governing, 50–51, 65 sovereign state as primary institution of, 52–56 B Balkans, war in, 128 Bass, Gary, 212, 236n71 Bellamy, Alex conception of just war tradition, 4, 192, 240 conditions for proper authority, 187–188 on conflict transition phase, 213 legalist position on just war, 180, 182 and relationship between democracy and just war, 191 on war in the Middle Ages, 184–185 bin Laden, Osama, 38 Bodin, Jean, 61, 65 Bonn Agreement, 219–220, 222, 224, 225, 228, 234n46, 235n56 Bosnia, UN intervention in, 30, 222

Bourdieu, Pierre, 16, 239–240, 242, 247 Boutros-Ghali, Boutros, 215 Brahimi Report, 215 Bull, Hedley, 26, 68n2, 181 Bureau for Conflict Prevention and Recovery, 215 Burke, Anthony, 179, 184, 196 Bush, George W., 2, 168, 172n24, 189, 190, 193, 198n15 C Caldwell, Dan, 212, 214 Cambodia, UN intervention in, 29 Campbell, David, 196–197 cartels. See private military contractors (PMCs) Central African Republic, 102 Chad, Republic of, 102 Charlesworth, Hilary, 157 Chesterman, Simon, 127, 132 Chinkin, Christine, 157 civil society, 247 civil war, 233n31 civilians casualties, 6–7, 107, 183, 190 intentional blending with, 190–191 intentional targeting of, 188 status as non-combatants, 136 Clark, Grover, 86, 88, 89, 90 Clark, Ian, 181–182 Claude, Inis L., 30 Coady, C.A.J., 129–130 Colbert, Evelyn, 87 cold war, 29, 30, 53 collective security, principle of, 28, 54 Conflict Prevention and Reconstruction Unit (World Bank), 215 consequentialism, 250 cosmopolitanism, 54–55, 218 counterterrorism policy, 54 crimes against humanity, 107

INDEX

D Darfur, inaction of UN in, 30, 124, 125 De Jure Belli ac Pacis (Grotius), 47, 56–57, 62, 64 De Jure Praedae (Grotius), 56, 64, 88 de Vattel, Emmer, 25, 80 DeMars, William, 67 demilitarization, principle of, 7 democracy, relationship with just war, 191 Democratic Republic of the Congo (DRC), 102 deterrence, 86 Devetak, Richard, 187 disarmament, demobilization, and reintegration (DDR), 218, 220, 221–222 Disbandment of Illegal Armed Groups (DIAG), 222 discrimination, principle of, 6–7, 222 distinction, principle of, 8, 136 double effect, doctrine of, 6–7 Dunbabin, J.P., 27 Dutch East India Company, 49, 63–65, 76, 80, 84, 88 DynCorp, 148n39 E Easton, David, 245 Eckert, Amy, 157 economic sanctions, 54, 90, 92 Egeland, Jan, 189–190 El Salvador, UN intervention in, 29 elimination of unjust gains, principle of, 7 Elshtain, Jean Bethke, 9, 54, 171n15, 193 English School, 9, 12, 181, 186–187, 200n51 Erskine, Toni, 39 Essays on the Law of Nature (Locke), 79 ethic of care, 159, 164–167 ethnic cleansing, 123

279

Evans, Mark, 11, 135 expletive justice, 58–59 F Fabre, Cecile, 54–55, 56 Federal Republic of Yugoslavia, 123 feminism and just war theory, 151–170 and ethic of care, 159, 164–167 feminist critiques of just war tradition, 152–156 feminist theories of war ethics, 158–160 and role of non-state actors, 156–158, 161–164, 167–170 and stereotypical views of gender roles, 152–156 and terrorism, 160–168 Flathman, Richard, 51, 52 Foucault, Michel, 196 Frost, Mervyn, 108 G gender and just war theory. See feminism and just war theory General Treaty for the Renunciation of War (Kellogg-Briand Pact), 27 Geneva Conventions 1977 Protocols, 10 and individual rights of combatants, 8 and private military contractors (PMCs), 137 and substate actors, 32 and UN peacekeeping operations, 140–141 genocide, 105, 121n40, 123 Ghani, Ashraf, 227 Goebel, Julius, 83 Gould, Harry, 243 Grotius, Hugo, 14, 16 and authority of the sovereign state, 25, 60–61 concept of power, 72n60

280

INDEX

Grotius, Hugo – continued and the construction of society of states, 47 and expletive justice, 58–59 and fundamental rules of international society, 96n33 and the Impious Hypothesis, 57–58 intellectual context of writings, 57–60 “nation” distinguished from “state”, 94 and non-state actors, 48 political context of writings, 60–65 and principle of authority, 56–65 on punishment, 75–80, 83–84, 93 on reprisal, 88, 245 guerrilla warfare, 31, 32, 33–34, 191 Gulf War (1991), 30 H Hague Regulations (1899 and 1907), 32, 182 Hamas, 66, 87, 93 Hart, H.L.A., 104 Herz, John, 183 Hizbollah and reprisals against Israel, 87, 93 role as non-state actor in war, 12, 66, 88 war with Israel (July, 2006), 1, 16, 185–197 Hobbes, Thomas, 78, 80 Hostiensis, 23–24 human rights, post bellum, 209 human rights violations (Afghanistan), 224, 227–229 Human Rights Watch (HRW), 190 humanitarian intervention, 8, 123–145 definition of, 125–126 distinct from punishment, 78 legitimacy of, 113, 124, 127 permissibility under international law, 123–124

and principle of just cause, 126 use of private military contractors as agents, 15 Hussein, Saddam, 120n15, 133 I immunity, noncombatant, principle of, 6–7 Independent National Commission for Peace, 235n56 India and humanitarian intervention in East Pakistan (1971), 132 and right of national self-defense, 30 individual versus state responsibility, 107–109 intergovernmental organizations (IGOs), 14, 26–31, 217 International Relations (IR), discipline of, 50 International Center for Transitional Justice (ICTJ), 228 International Commission on Intervention and State Sovereignty (ICISS), 131 International Court of Justice (ICJ), 91 International Criminal Court (ICC), 246 and crime of aggression, 103–105, 109 and the just war tradition, 101–102 on justification for humanitarian intervention, 114 and legitimate authority, 116 and non-state actors, 67–68 and principle of jus post bellum, 15 Rome Statute, 149n60 Special Working Group on the Crime of Aggression, 109 International Criminal Tribunal for Rwanda (ICTR), 103 International Criminal Tribunal for the former Yugoslavia (ICTY), 103

INDEX

international humanitarian law (IHL), 136–138, 139 international law and authority of the sovereign state, 25 and creation of the International Criminal Court, 67–68 and the crime of aggression, 101–104 Grotius as father of, 47 and just war theory, 101 on reprisal, 90 role of judges, 101 routine enforcement of, 14–15, 104–107, 108 and terrorist organizations, 32 international nongovernmental organizations (INGOs), 214, 217, 220, 222 International Review of the Red Cross, 137 International Security Assistance Force (ISAF), 214, 220, 221, 222 international society (IS), 12 Iraq invasion of (2003), 1, 2 motive versus intent in U.S. invasion (2003), 133 and reasonable chance of success, 168 U.S. air strikes on (1993) as reprisal, 91 use of private military contractors (PMCs) in, 124, 137 Irish Republican Army (IRA), 187 Islamic Health Organization, 185 Israel and conflict with Hizbollah, 185–197 July War (2006), 1, 16, 185–186 and reprisals by Hizbollah and Hamas, 87, 93 and right of national self-defense, 30 Six-Day War (1967), 113, 192 and UN peacekeeping efforts, 29

281

J Janjaweed militia (Sudan), 102 Jeffery, Renée, 61 jihad, 38 Johnson, James Turner, 8, 30, 135, 167 Jones, Karen, 155 Judicial Reform Commission (JRC), 228 jus ad bellum defined, 5 principles of, 5–6 on punishment, 75–77 jus in bello defined, 5 principles of, 6–7 jus post bellum case of Afghanistan, 218–221 debate on, 207–213 defined, 5, 7 goals for peacekeeping, 214–216 guidelines for, 209–213 human security versus national security, 214, 217–218 and non-state actors, 213–214 and peacebuilding, 214–218 and security sector reform, 218, 221–224 and sustainable livelihoods, 218, 224–227 and transitional justice, 218, 227–229 Just and Unjust Wars (Walzer), 4, 53, 240, 246 just cause, principle of, 5, 8, 73, 85 and crime of aggression, 112–113 and feminist just war theory, 163 and humanitarian intervention, 126 just peace, defining, 208 Just War against Terror (Elshtain), 193 just war tradition alternatives to just war, 192–197 common factors of just war theories, 4–5

282

INDEX

just war tradition – continued and the crime of aggression, 110–112 and criteria for moral justification of war, 111–113 debate on, 105–106 distinguished from just war theory, 4 English school, views of, 9 feminist critiques of. See feminism and just war theory historical perspective on, 21–39 and individual responsibility, 107–109 just war ideal, 3–9 legalist position on, 180, 181 liberal tradition views on, 8, 9 Marxist critique of, 8–9 pacifist critiques of, 119n6 purpose of just war, 180–185 and the question of legitimate authority, 48, 50 and the war on terror, 2 women’s marginality in, 153 K Kambanda, Jean, 120n15 Kant, Immanuel, 18n27, 41n25, 244 Karzai, Hamid, 219, 222, 226, 229 Kellogg-Briand Pact, 27 Kelly, Michael, 86 Kelsen, Hans, 92 Khmer Rouge, 132 Kony, Joseph, 104 Koontz, Theodore, 185 Korea, UN intervention in, 30 Kosovo, NATO intervention in, 131–132, 222 Krauthammer, Charles, 187 Kurdistan Worker’s Party (PKK), 187 L Lang, Anthony, 240, 243 last resort, principle of, 5–6, 117, 165, 180

law, relationship between morals and, 104–105 lawful combatancy, 136–138 League of Nations, 26–28, 37, 41n28 legal voluntarism, doctrine of, 82 legitimacy, 48, 50 Lehnardt, Chia, 127 letter of marque, 87–88 Libya, U.S. air strikes on (1986), 91 Liddell-Hart, B.H., 205–206 Locke, John, 79 Lord’s Resistance Army (LRA), 102, 104 Lowi, Theodore, 128–129 loya jirga, 219, 234n47 Lynch, Tony, 130 M Mare Liberum (Grotius), 47–48, 56, 64 marque (reprisal), 87–88 McAlister, Melanie, 192 Mearsheimer, John, 192 mediation of conflicts, 27 Mendelsohn, Barak, 187 mercenaries, 127, 130–131, 245. See also private military contractors (PMCs) Military Professional Resources Incorporated (MPRI), 128 militia groups, 102 Mill, John Stuart, 33–34 Milosevic, Slobodan, 120n15 morals, relationship between law and, 104–105 Morgenthau, Hans, 50, 179–180, 183, 198n13 Moussaoui, Zacarias, 38 Murphy, Alexander, 194 N narcotics trade (Afghanistan), 224, 225–227, 236n76 Nasrallah, Hasaan, 186 nation building, 233n38

INDEX

national liberation movements, 31 NATO, 131–132, 185, 214, 220, 221, 222 natural law, 57, 67, 68, 74, 75–76, 80, 244 Naulilaa case (1928), 90 Netherlands, 48, 61–65 “new wars”, 54 Niebuhr, Reinhold, 183 non-state actors in Afghanistan, 206–207 conditions to be considered proper authority, 187–188 and crime of aggression, 101–104 feminist viewpoint on, 156–158, 161–164, 167–170 rights of, 33–36 role of in post-cold war era, 21, 31–36 role of in warfare, 2, 179 treatment of in international courts, 102 noncombatant immunity, principle of, 6–7, 163, 164–165 nongovernmental organizations (NGOs), 67, 135, 182, 217 nonintervention, principle of, 8, 11, 54, 108 O O’Brien, William V., 31, 32 Oldenbarnvelt, Johan van, 48, 49, 56, 62, 64 Operation Enduring Freedom (OEF), 224 Oppenheim, Lassa, 82 Orend, Brian, 7, 11, 209, 232n6 Owens, Patricia, 183 P Palestine Liberation Organization (PLO), 87, 187 Panel on United Nations Peace Operations, 215

283

paramilitary organizations. See private military contractors (PMCs) Paris Peace Conference (1919), 27 peace enforcement, U.N., 29, 42n44 peacebuilding, 205–231 in Afghanistan, 218–221 definition of, 215 role of non-state actors in, 16 and security sector reform, 221–224 and sustainable livelihoods, 224–227 and transitional justice, 227–229 peacekeeping and deterrence, 126 distinguished from humanitarian intervention, 146n12 distinguished from peace enforcement, 42n44 goals of, 214–216 and the United Nations, 29 use of private military contractors (PMCs) in, 124 Peterson, V. Spike, 154 pluralism in international law, 25–26, 30 Pol Pot, 132 political communities, nature of, 11–12, 33 political rehabilitation, principle of, 7 poppy cultivation (Afghanistan), 225–227, 230 Poppy Eradication Force (PEF), 227 power and political authority, 50, 65–66 private military contractors (PMCs), 123–145 in Afghanistan, 222 and the agency dilemma, 126–127 as agents of humanitarian intervention, 15 and breach of contract, 134, 148n39 definition of, 127

284

INDEX

private military contractors (PMCs) – continued distinguished from mercenaries, 127, 245 and ethical considerations, 125 in Iraq, 35 legitimacy as sub-state actors, 31, 35 Military Professional Resources Incorporated (MPRI), 128 and motive versus intent, 133 and principle of right authority, 135–143, 144 and principle of right intention, 129–134, 143–144 in Sierra Leone, 35 United Nations as a client, 138–143 privateering, 88 proportionality of ends, principle of, 5 proportionality of means, principle of, 6, 222 Puchala, Donald, 195 Pufendorf, Samuel, 25, 78–79, 80, 83 punishment and the just war tradition, 73–93 historical perspective on, 75–80, 108–109 and principle of jus ad bellum, 14 and principle of jus post bellum, 7 purpose of, 86 as reason for military force (Grotius), 58–60 right of individual versus right of state, 76–78, 81 R rationality, concept of, 196 realism, 182–183 reasonable prospect for success, principle of, 6, 116–117, 166–168 rehabilitation, political, principle of, 7 Rengger, Nicholas, 55, 104, 178, 180, 192–193, 212

reprisals, 8, 14, 74, 201n74 distinct from punishment, 84–93 legitimacy of, 93 multiple uses of term, 97n49 by towns, 98n56 Responsibility to Protect, The (ICISS), 131 retaliation, 14 distinct from punishment, 84–93 distinct from reprisal, 89–90 right authority, principle of authority defined, 39n4 and feminist just war theory, 162–163 historical development of, 23 and non-state actors, 13, 77 and principle of jus ad bellum, 5, 8 and private military contractors (PMCs), 144 and punishment, 75, 93 right intention, principle of as criteria for just war defense against aggression, 116–117 and principle of jus ad bellum, 5, 244 and private military contractors (PMCs), 129–134, 143–144 right of the private avenger, 76, 85, 245 rights vindication, principle of, 7 risk transfer warfare, 128 Robinson, Fiona, 159 Roy, Olivier, 37 rules and political authority, 50–51, 65 Rummel, R.J., 191–192 Russett, Bruce, 9 Rwanda, inaction of UN in, 30, 123, 129, 134 S sanctions, 54, 90, 92 Schott, Robin May, 184, 190–191, 194 secessionist groups, 31

INDEX

Second Treatise (Locke), 79 self-defense, use of force in, 53, 54, 111, 113, 130, 180 September 11, 2, 37, 151, 160, 178, 190, 219 Shaw, Martin, 128 Sierra Leone, 35, 222 Singer, P.W., 126 Sjoberg, Laura, 184, 190, 245 Smith, Thomas, 183 Smith, Tony, 191, 198n15 Snow, Tony, 189 Somalia UN intervention in, 29, 30 U.S. forces in, 129, 134 sovereignty and punishment, 74, 79, 80–84 Special Working Group on the Crime of Aggression, 109, 110, 111, 114–116, 120n28 Spivak, Gayatri, 165 Spruyt, Hendrik, 84 St. Augustine, 4, 10, 23, 135, 205, 243 state defined in international law, 9 emergence of, 22–26 feminist critiques of state system, 154, 156–158 legitimacy of, 9–10 statebuilding, 233n38 Stone, Julius, 105 Straumann, Benjamin, 76 substate actors, 31–36. See also non-state actors success, reasonable prospect for, principle of, 6 Sudan and international criminal law, 103, 104 and Janjaweed militia, 102, 124 U.S. air strikes on (1998) as reprisal, 91 Sylvester, Christine, 159

285

T Taliban, 2, 213, 219, 221, 222, 230, 235n56 Taylor, Charles, 120n15 terror, war on, 1–2, 22, 37, 151, 160, 164 terrorism counterterrorism policy, 54 definition of, 32 feminist theorizing on, 160–168 national terrorist organizations, 31, 33–34 role of in just war tradition, 3, 37–38 transnational, 37 war on terror, 1–2, 22, 37, 151, 160, 164 Thakur, Ramesh, 28 Thirty Years War, 48, 49, 52, 61 Toulmin, Stephen, 195–196 Treaty of Westphalia (1648), 52, 69n14 Truman, Harry S., 109 U Uganda, 102, 104 Uniform Code of Military Justice, 142, 149n63 United Nations Assistance Mission in Afghanistan (UNAMA), 220, 228 United Nations Charter and collective security, 28 and definition of aggression, 109, 113 failure to end discretionary war, 250 and limitations to humanitarian intervention, 105 and nonuse of force, 8 and reprisal, 91 and right of self-determination, 31 United Nations Children’s Fund (UNICEF), 215

286

INDEX

United Nations Peacebuilding Commission, 215 United Nations Security Council, 28, 54 and conferring of legitimate authority, 114–116 and the Israeli July War, 186, 187 Military Staff Committee of, 139 and use of private military contractors (PMCs), 138–143, 144 United Nations Truce Supervision Organization (UNTSO), 29 United Nations (UN), 37 and 1994 Convention on the Safety of United Nations and Associated Personnel, 140–141 and 1999 Secretary-General’s Bulletin on the Observance by United Nations Forces of International Humanitarian Law, 140–141, 142, 144 as appropriate agent of humanitarian intervention, 126–127 establishment of, 26–31 General Assembly definition of aggression, 110, 112 peacekeeping function of, 29 as a private military contractor (PMC) client, 138–143 and war crimes tribunals, 103 United States involvement in Iraq, 180 and the Israeli July War, 189, 192 and the League of Nations, 41n28 and right of national self-defense, 30 and use of PMCs during Balkan wars, 128 war in Afghanistan, 219 and war on terror, 1–2, 124 unprivileged combatants, 136

V Vietnam, and humanitarian intervention in Cambodia (1979), 132 Vietnam War, 53, 106, 178 vigilantes. See private military contractors (PMCs) W Walsh, A.J., 130 Walt, Stephen, 192 Walzer, Michael and conscience-shocking crimes, 181 on crime of aggression, 103 on distinction between just and unjust war, 240 on ending wars legitimately, 208 and goals of war, 7, 208 on Israeli use of force in 1967, 113 on just war and realism, 182 on justification for humanitarian intervention, 113–114 and legalist paradigm of just war, 53 and moral equality of soldiers, 6–7 and moral value of states, 11 and morality in war, 106–107 and political communities, 33–35, 53 and self-defense of states, 54 on states and their agents, 246 on use of private soldiers, 128 on the Vietnam War, 178, 240–241 on the “war convention”, 4, 108, 241 on weakness of sub-state actors, 36 War Crimes Act (1996), 142 war crimes trials, 99n60, 101–118 in Afghanistan, 227, 237n87 institutionalization of, 108 non-state actors and the crime of aggression, 101–104 war initiation. See aggression, crime of war on terror, 1–2, 22, 37, 151, 160, 164

INDEX

war termination, unconstrained, 209 weapons, chemical and biological, 6 weapons of mass destruction (WMD), 2, 17n2 Weber, Cynthia, 74 Weber, Max, 53 Westlake, John, 83 Wheaton, Henry, 89 Wight, Martin, 181 Williams, John, 38, 39, 54, 56 Williams, Robert E., Jr., 212, 214 Winograd Commission, 191

287

Woolsey, Theodore, 86, 87, 89 world society (WS), 12 World Trade Center bombing, 2, 37, 151, 160, 178, 190, 219 World War I, 22, 26 Wright, Shelley, 157 Wulf, Herbert, 130 Y Yugoslavia, Federal Republic of, UN peace enforcement in, 29