The Justice of War

As the United States pursues its war in Afghanistan, the national and the international press have focused attention on the civilian casualties that inevitably result from bombing raids conducted in close proximity to civilian populations. Indeed, after each bombing raid, major newspapers around the world have diligently included the Taliban's assertions about civilian casualties. As the raids continue and ground troops are sent in, the likelihood of further civilian casualties will certainly increase.

This loss of innocent life has caused a number of commentators, public intellectuals, and even the City of Berkeley to denounce the war and call for an end to the "cycle of violence." At first glance, their concern seems justified—after all, justice demands the protection of the innocent. How can we condone the deaths of innocent men and women in Afghanistan while we condemn the terrorists for killing innocents in America? Is the war in Afghanistan really, as one observer put it "ethnocentric and self-indulgent in the extreme?" Or is our cause in Afghanistan just?

To answer those questions requires a detailed understanding of the justice of war—both the justice of the cause, and the justice of the conduct of war. To be sure, the idea of applying principles of justice to warfare is absurd to many pacificists and critics of the current war. The ideology that begets antiwar declarations like the one adopted by the Berkeley City Council, and that underlies the "cyclical violence" model, permits no distinction between aggression and defense, submission and justice. But, in fact, the practice of justice is exactly that: discriminating between the guilty and the innocent, and assigning responsibility accordingly. Antiwar protests that demand American concessions to terrorists are corruptions of justice. To say, as does the petition circulated by Foreign Policy in Focus, that "the greater part of victory will come through our government addressing the policies, circumstances, and grievances that spark terrorist responses" is to urge that evil be rewarded for being evil and good be punished for being good.

GOING TO WAR

Just-war theory, or the application of the principles of justice to warfare, has a long history. First formulated in the Aristotelian tradition by Thomas Aquinas in the thirteenth century, these principles have undergone a secular revision by twentieth century philosophers. But the essential questions that the theory addresses are much the same now as they always have been: When is going to war just? And how can war be waged justly? The first question is addressed by the jus ad bellum (justice to war) principles; the second question is addressed by the jus in bello (justice in war) principles.

The principles of jus ad bellum require that a nation have just cause and right intention in declaring war, that the declaration be openly and properly declared, and that there be some reasonable expectation of winning the war. That a nation have a just cause and a right intention to engage in war is the most fundamental and demanding of the principles of just warfare. Since justice forbids the initiation of force, acts of aggression cannot be morally justified. Only the response to an initiation of force—such as America's response to the attacks of September 11—can be considered just. This much, at least, is often understood even by antiwar critics. Only the blindest anti-American protestors deny America's right to retaliate, claiming that the deaths of 5,000 innocent men and women was merely "the biggest bully on the block finally gets a blow struck against him." These rarer breed of apologists exist, but their numbers are few and their arguments too flaccid to merit an answer. For the most part, antiwar critics acknowledge the injustice of the September 11 attacks and recognize America's right to seek justice as a response.

What they often fail to understand, however, is that justice does more than permit a nation to defend itself, it demands that it do so. Allowing the attacks of September 11 to go unpunished, and allowing the threat of future attacks to remain, would be a horrible abdication of the government's responsibility to its citizens. Peace, no less than war, may be unjust. Not only must a nation forbear from an unjust war, it must also forbear from an unjust peace.

This can be seen through the contradiction of the pacifist, who repudiates any and all uses of force as a violation of men's rights. Such a stance amounts to a denial of the very rights that the pacifist claims prevents him from retaliating. In The Virtue of Selfishness,  Ayn Rand made the point explicitly: "If some 'pacifist' society renounced the retaliatory use of force, it would be left helplessly at the mercy of the first thug who decided to be immoral. Such a society would achieve the opposite of its intention: instead of abolishing evil, it would encourage and reward it."

As for the antiwar advocates who denounce the war, arguing that America should instead try Osama bin-Laden and the terrorists before an international tribunal: They fail to understand the principle of right intention. The justice of war limits the pursuit of war to the elimination of a specific, identifiable threat. That intention is an inextricable part of just cause. Where just cause gives a nation right, intention gives it goals. As just cause binds a nation to respond to injustice, so does right intention bind a nation to pursue and achieve an attainable justice. Trying bin-Laden before an international tribunal—even were that a laudable goal—would require first that bin-Laden be available for trial. Unfortunately, as of this writing, bin-Laden is in hiding, protected by his network of terrorists and the Taliban. To get to him requires that we eliminate his defense—both his network of terrorists and the government that harbors him. As exciting as the idea of a special-forces "Rambo" operation might be, the reality of modern warfare is far different—historically, such operations have been unsuccessful, and, more to the point, would require that the United States put more American lives in high-risk situations. To eliminate the threat that bin-Laden poses, we must do nothing less than wage war in Afghanistan.

To this, the resilient antiwar critic responds with admonitions that such protestations are really no more than simple propaganda designed to mask baser motives. And, to be sure, the circumstances of war are complex and will always involve political considerations that can be attributed to imperialism, retribution, vengeance, or simple political greed—all aberrations of right intention. But the complexity of political circumstances should do nothing to censure a just cause.

Warfare is, by necessity, a messy business. It cannot usually be neatly defined nor easily evaluated. But just as war demands resolve in the face of difficult opposition, so too does it demand resolve in the face of difficult questions. The principles of justice that we seek to apply to war often demand that we focus on the purpose and cause of the war, not on its side-effects. For example, if this or that politician uses a war as an expedient means to political gains, that does not invalidate the justice of the war. Conversely, the justice of a war should not be used as a blanket justification for any and all actions however tangentially related to the war. Issues of gratuitous political manipulation and acts of injustice committed in the name of a just war must be opposed vigorously.

The principles of jus ad bellum also demand that a war be openly and properly declared. This requirement demands only two things: that the proper authority declare the war, and that the fact of war be made public. In the United States, this injunction demands that the Congress and President publicly announce their intention to wage war, to both the American public and to the enemy. That Congress has not made a formal declaration of war does not, in itself, violate the principles of jus ad bellum. Over the past sixty or so years, Congress has delegated a number of powers to the Executive that obviate the need for a formal declaration of war. This delegation is almost certainly a mistake, but it does not change the fact that a legitimate authority has openly declared the war. Semantic questions of the kind that cause some to debate whether Vietnam, Korea, or the Gulf War were "wars" or "police actions" address a very limited context of constitutional legality. They do nothing to change the fact that each conflict was a war, and neither do they address the justice or injustice of any of those wars.

Lastly, a just war should be winnable. Therefore, success must not be construed so broadly as to preclude its achievement. Permanent immunity from all threat is not a reasonable expectation and should not be the criteria of success. Such a broad and unattainable goal would either require eternal warfare—a condition that is ultimately inimical to freedom and safety—or preclude any war on the grounds that success in unattainable. Like right intention, the goals that define success must be evaluated in the context of the justice of the cause. Success should be defined as the reasonable elimination of the specific, identifiable threat responsible for the act of aggression to which the war is a just response. At the end of a war—in this case the elimination of bin-Laden's terrorist network and the Taliban government—peace may be sustained by applying a principled foreign policy aimed at diminishing future threats—but foreign policy and diplomacy cannot, by themselves, eliminate the immediate threat that bin-Laden and the Taliban pose.

WAGING THE WAR

The principles of jus in bello address the manner in which a nation conducts war. And it is these principles that antiwar critics most often fail to understand, principally because they fail to understand that jus in bello is inseparable from jus ad bellum; justice in war requires an understanding of the justice of war. Thus, one may hear it said that a just war requires a discrimination of innocents (most often) civilians and combatants—and that killing innocents is wrong even in retaliation. End of story.

But such a position can be held only if the principles of jus in bello are evaluated independently from the jus ad bellum principles. The jus in bello principles of discrimination and proportionality do require both recognition of innocence and an assignment of responsibility, but neither of these can be rightly carried out without appealing to the fundamental justice of the war itself.

The principle of just cause, by distinguishing between the initiation of force and the use of retaliatory force, sets the context of moral responsibility that must be applied in the evaluating the conduct of war. Specifically, in any evaluation of the justice of a war, at least one side will fail the just-cause test: the aggressor. And in failing that test, the aggressor defines the context in which moral responsibility for the conduct of the war is assigned.

Most important, the initial aggressor shoulders the full moral responsibility for the war. That is, he is morally responsible not only for his own actions, but also for the consequences of his victim's defense and retaliation. Because the aggressor has used force to place his victim in a position where retaliatory force is a moral imperative, the aggressor is fully responsible for the consequences of that response. Thus, he is responsible for the innocents he kills, and also for the innocents killed in justifiable retaliation for his aggression.

It is this issue of responsibility that most often eludes the antiwar critics. Committed as they often are to an ideology that disdains personal responsibility, they are more apt to see issues of responsibility as issues of equity: America is rich and Afghanistan is not. For them, it is not necessary to examine who is responsible for such inequity; its mere existence grants a higher moral status to the poor and absolves bin Laden and his cronies of much, if not all, responsibility.

Further, the identification of innocence is by itself often insufficient to merit their protection. In war, considerations of innocence must take must take second place to considerations of threat. It may be that innocent men and women pose a real threat—and in such a situation, it is the elimination of that threat that must be the first concern. For example, the aggressor's military personnel may be composed of conscripted soldiers. Even though those soldiers are innocent, they still pose an immediate threat and are justifiable targets for retaliatory force. And, in many cases, even the discrimination of combatants from non-combatants is insufficient to establish both innocence and harmlessness. The difficulty of such discrimination is often lost on the antiwar critics.

More important, however, is the truth that, to the extent that the aggressor is responsible for the consequences of his actions and all justified responses to those actions, he is also responsible for the lives of those people he holds hostage in the war. This is true even when the conflict comes to the aggressor's home. The aggressor may not find moral immunity by hiding his military in civilian centers. To the extent that an aggressor hides the guilty among the innocent, and to the extent that an aggressor exploits civilians in the pursuit of his aggression, innocent and harmless civilians become threats to the retaliating force. They may be innocent, but they have been placed at risk by the aggressor's actions—not by the nation attempting to retaliate.

It should be noted that, contrary to the claims of some philosophers that "there are no innocents in a dictatorship," individual moral responsibility is not altered by political circumstance. Indeed, because one of the hallmarks of a dictatorship is that the citizenry is forcibly barred from political participation, it would be absurd to hold citizens responsible for actions over which they had no control. Certainly, some citizens, even in a dictatorship, will be guilty of complicity, but the blanket claim that there are "no innocents in a dictatorship" is an appeal to tribal intrincisim and can lead only to injustice.

But does this mean that the nation defending itself from attack, or responding to a vicious attack like those committed on September 11, is insulated from all responsibility? May innocents in the aggressor country be targeted and civilian communities destroyed with impunity? No.

While discrimination may be difficult, and made more so by the aggressor, that difficulty does not absolve the retaliator of the responsibility to avoid unnecessary innocent casualties, when that may be done safely. The retaliator's responsibility lies in selecting targets and choosing the means by which to attack those targets. In situations where military targets and civilian targets exist in close proximity, the method of assault becomes an issue. Principles of justice demand that the weaponry used in such situations be as focused as is practical. It would be wrong, for example, for America to drop a nuclear bomb on Paris to kill a dozen al-Qaeda collaborators. Both the means and the ends of such an action would be too indiscriminate to render any justice.

Still, the implementation of the principles of discrimination and proportionality—formulating the rules of engagement—is not an exact science. Modern weaponry, especially the explosives required to destroy heavy artillery, is necessarily imprecise. Military targets, including those hidden among innocent civilians, are still legitimate targets—even if the resulting attacks kill innocent civilians. To resolve the problems of discrimination and proportionality, and to formulate useful and moral rules of engagement, the defender must appeal to a hierarchy of values. The guiding rule must be: If adhering to a secondary principle will violate a more fundamental consideration, then adherence to that secondary principle, in that particular instance, must be abandoned.

That hierarchy follows the same logical structure as just-war theory: of prime importance are issues relating to the declaration and purpose of war; of secondary importance are considerations as to the efficiency and success of war; of tertiary importance discrimination between the innocent and the guilty.

The first consideration for a nation waging a just war must be the safety, health, and security of its own civilians. This is the purpose of a just war: to remove the threat that the aggressor poses.

The next consideration must be the legitimacy of the authority conducting the war. In any war, difficult decisions must be made: decisions about when and where and who to attack, decisions about proportionality, about innocence and guilt, and about priorities in the campaign. If these decisions are made in accordance with the principles of jus in bello, the ultimate responsibility for any casualties those decisions cause will lie with the initial aggressor. But someone must ensure that the decisions are rightly made and take responsibility if they are not.

The first and most sweeping decision is whether a nation may secure its safety through war. Hence, the decision to go to war must be made by a nation's top leadership.

The next consideration for a defender must be the safety of its own combatants. Military personnel are not mere fodder for the effort of war, but are citizens, and—if they are fighting a just war—innocents in their own right. They may not be wantonly sacrificed in pursuit of victory. A pyrrhic victory is no victory at all.

The next consideration must be the minimization of innocent, civilian casualties among the people against which a just war is being waged. The final consideration is the minimization of its enemy's military casualties.

It is only by adhering strictly to these principles, in this order, that the security and liberty of innocents may actually be defended. Concern for the lives of innocents in an aggressor state is of lesser importance than concern for a retaliator's military personnel, but that does not mean the loss of innocent lives is anything less than a great tragedy. Such is the horror of war. It is why war should be avoided, entered into only as a last resort, and conducted with as much regard for safety and liberty as possible.

AMERICA'S NEW WAR

America's current war in Afghanistan satisfies all of the jus ad bellum requirements. The attacks of September 11 were the undeclared act of an aggressor, made without just cause or proper authority. America is responding to those brutal attacks and is acting to eliminate the organizations and governments responsible for those attacks. President Bush declared his intention to go to war several times on national television; Congress passed a joint resolution supporting the president; and both al-Qaeda and the Taliban were given ample opportunity to surrender. America's military and technological prowess should give the administration and the American public good reason to expect that, though the war may not be quick or easy, we will prevail. America's cause is just and its intentions right, open, and declared. All that remains is to win.

In conducting this war, America must use the hierarchy of just-war principles, and refuse to be sidetracked or hamstrung by moral relativists who refuse to acknowledge either the justice of the cause or the responsibility that al-Qaeda and the Taliban bear. America's stated goals—the elimination of the Al-Qaeda and the Taliban—are proportional to the threat they offer. Simply imprisoning bin-Laden while leaving the body of his terrorist network in place would garner little long-term security. Likewise negotiations and diplomacy with an authoritarian government bent on supporting and harboring international terrorists would be futile. Dismantling both the Taliban and al-Qaeda requires an active military presence in Afghanistan; it requires war. And because terrorists use hostages and hide themselves among civilians, discrimination of innocents from combatants will be exceedingly difficult—both for ground troops and for air support. It is reasonable to expect that the war will result in innocent civilian casualties, but we should be careful to remember that those deaths, as tragic and horrible as they are, are the responsibility of the Taliban and al-Qaeda, not the United States.

America has been conducting the war with a great deal of integrity—heroic efforts are being made to minimize innocent casualties. But those efforts should not distract us from the task of protecting and safeguarding our own citizens and our own troops.

Placing innocents at risk—whether those innocents are combatants or defenders—is a decision that can be made only by those people trusted with defending the innocent. Because the process of waging war is difficult, so too is the determination of the probability of success.

This article was originally published in the December 2001 issue of Navigator magazine, The Atlas Society precursor to The New Individualist.

‍