War's Ends

Human Rights, International Order, and the Ethics of Peace

James G. Murphy

• Publisher: Georgetown University Press
• Year: 2014
• Print ISBN: 9781626160279
• eBook ISBN: 9781626160286
• Topic: Politics & International Relations
• Subtopic: International Relations
• Index: Politics & International Relations

Before military action, and even before mobilization, the decision on whether to go to war is debated by politicians, pundits, and the public. As they address the right or wrong of such action, it is also a time when, in the language of the just war tradition, the wise would deeply investigate their true claim to jus ad bellum (“the right of war”). Wars have negative consequences, not the least impinging on human life, and offer infrequent and uncertain benefits, yet war is part of the human condition.

James G. Murphy’s insightful analysis of the jus ad bellum criteria—competent authority, just cause, right intention, probability of success, last resort, and proportionality—is grounded in a variety of contemporary examples from World War I through Vietnam, the "soccer war" between Honduras and El Salvador, Afghanistan, and the Middle East conflict. Murphy argues persuasively that understanding jus ad bellum requires a primary focus on the international common good and the good of peace. Only secondarily should the argument about going to war hinge on the right of self-defense; in fact, pursuing the common good requires political action, given that peace is not simply the absence of violence. He moves on to demonstrate the interconnectedness of the jus ad bellum criteria, contending that some criteria depend logically on others—and that competent authority, not just cause, is ultimately the most significant criterion in an analysis of going to war. This timely study will be of special interest to scholars and students in ethics, war and peace, and international affairs.

Chapter 1
War and Moral Theory

Reiterated over time, our arguments and judgments shape what I want to call the moral reality of war.

Michael Walzer, Just and Unjust Wars

[War is] the concept that makes it possible to understand the forms as well as the existence of peace and order.

Pasquino, “Political Theory of Peace and War”

The just war tradition is alive and well today. After emerging in ancient Rome and flourishing in medieval Europe, it experienced a partial decline in the early modern period, 1600–1900, but it has enjoyed a revival since World War I (1914–18).

The tradition developed under two headings: the morality of going to war (jus ad bellum as it was known in Latin), which concerns the state, and the morality of conducting war (jus in bello), which concerns mainly the army commanders. In the last twenty years, some ethicists have suggested that a third element should be added to the theory: the morality of building postwar peace (jus post bellum).

In the 1600–1900 period, the jus in bello part of the tradition flourished, focusing on the moral and legal rules for conducting war, noncombatant immunity, and duties to prisoners. By contrast, the jus ad bellum part was widely considered to be effectively out of date because it seemed inapplicable in a world of sovereign states with no international authority.¹ However, since World War I, there has been a growing sense that the pre-1900 tacit permission to states to make war as each sees fit, being required only to observe certain rules for its conduct, is now over and that war should be outlawed. The rise of international law and international institutions and a gradual change in outlook give grounds for thinking that there is now significant room for the position that states must have serious grounds for going to war, that these grounds must include moral grounds, and that levying aggressive war is a crime for which heads of government and their agents may be tried in international tribunals.²

This development represents a significant step away from the early modern era when the ruler was considered to be above the law and to have a general right to go to war whenever he judged that the interests of the state required it. It is, by the same token, a significant step toward the kind of thinking that informs classical just war thought. However, there is still much less clarity about the morality of going to war than there is about the morally acceptable ways of waging war.³ In addition, the shift in thinking just described is by no means universal, and treatments of jus ad bellum must take that fact into account. The challenge is to apply jus ad bellum criteria in a world midway between the supremacy of national raison d’état, and effective acceptance of the rule of international law in the restraint of war and armed aggression.

Main Themes

As others have done, I usually refer to just war tradition rather than just war theory, since there is no precisely worked-out theory of justice or right with respect to war. It is a broad tradition, a field with many different approaches.⁴

My goal in this book is to offer a conceptual analysis of the jus ad bellum criteria in order to facilitate their application to contemporary cases. The conception I develop is secular, not religious, although religious authors will sometimes be cited. Lists of the criteria vary. Robert Holmes cites the list offered by the US Catholic bishops as typical: just cause, competent authority, comparative justice, right intention, last resort, probability of success, and proportionality.⁵ Brian Orend lists just cause, right intention, public declaration by proper authority, last resort, probability of success, and proportionality (Orend 2006, 32; and 2008). The list I propose is competent authority, just cause, right intention, probability of success, last resort, and proportionality. I accept the continuing relevance of most of the traditional criteria, but my interpretation of some criteria may diverge from traditional views. I explore each in turn, hoping to offer a distinctive interpretation of most of them. I also argue that there is a logical order among the criteria.

Certain topics will not be treated. First, I will not discuss moral conduct of war (jus in bello) for three reasons: (a) as noted, much more has been written on jus in bello than on jus ad bellum, (b) jus ad bellum is independent of jus in bello, and (c) jus ad bellum has some explanatory and ethical primacy over jus in bello.⁶

Second, I will have little to say about moral obligations arising from the ending of war (jus post bellum), although my discussion of right intention will touch on it (Orend 2006). Third, this book is not a historical study of the development of just war thought. Fourth, it is not an exposition of any particular theorist’s views on war.

Individual chapters will be devoted to the jus ad bellum criteria of just cause, competent authority, right intention, reasonable probability of success, last resort, and proportionality. Apart from just cause and competent authority, relatively little has been written on many of the criteria. Yet the concepts involved merit unpacking and elaboration. There will also be a chapter on the good of peace, since the just war tradition requires that peace be the goal of fighting a war, and what is involved in the notion of the good of peace tends also to go unanalyzed. Prior to that, in this chapter, I address a number of general issues, exploring some of the points summarized above.

The more important conditions are the first three. Here I shall argue for the primacy of the competent authority condition, with the just cause condition being dependent on it. My thinking here was stimulated by David Rodin’s important argument that the idea of national self-defense cannot be seen as analogous to an individual person’s self-defense in a way that provides justification for the state’s going to war (see Rodin 2002).

My thinking has also been influenced by the natural law tradition’s idea that the state is meant to promote the common good. The notion of the common good may be controversial and seen in some quarters as irredeemably religious. But such a perception is mistaken, for while some religious groups appeal to the common good, the notion itself is by no means inherently religious. I treat the common good as necessary preamble to discussion of the competent authority condition since the early modern idea of the state was neutral on the nature of the state. Today, in a globalized world, there is a strong trend of thought that differentiates between democratic law-governed states and authoritarian dictatorships or “rogue” states. The difference matters because democracies are by nature oriented to certain common goods (e.g., representation, accountability) in a way that dictatorships cannot be, and there are other common goods that democracies are more likely than dictatorships to promote. I shall argue that the difference matters with respect to what counts as legitimate or competent authority for the purposes of application of jus ad bellum criteria.

Why Write about the Ethics of War?

There are several reasons to write about the ethics of war. First, the subject matters: war is ethically significant. It is an understatement to say that wars impinge hugely on human life. All wars have negative consequences, while their benefits are at best infrequent and always uncertain. The twentieth century saw the development of weapons and technology with the capacity to wipe out most human life in a relatively short space of time. The potential impact of nuclear or biological war is so severe that the prevention, avoidance, and limiting of war has become ever more morally urgent. In relation to that, the task of building peace is morally pressing.

Second, war is not well understood. Even if we reject the claim that war is part of the natural order, wars still seem to be a recurrent and endemic feature of human history.⁷ There is no obvious reason why this should be so, nor does the ideal of universal peace and global harmony seem inherently unrealizable. Yet it has seemed so unlikely to be realized that people have looked with skepticism and perhaps some pity at those who appeared to think they see the road to the abolition of war clear before them.

Today we have not merely the dreadful history of human wars but also the history of the “war” against war, the struggle to abolish war altogether.⁸

We have only to think of the hope implicit in the “war to end war” slogan used about World War I to sense the pathos of a simplistic view of war.⁹ The Enlightenment’s optimism that war could be eliminated, since its causes were identifiable as rooted in some relatively simple factor (e.g., dictatorship, nationalism, dynastic ambition, colonialism, profiteering, militarism), seems naïve today. That the factors listed have been causally involved in war is undeniable. But the idea that there could be one determining cause of war in general that was thus the key to understanding it such that overcoming or eliminating it would virtually guarantee an end of war is not credible.

Part of the reason for the lack of understanding of war is because the label is often used to cover a wide range of armed conflicts: from all-out international conflicts such as the two world wars, through civil wars and insurrections, to humanitarian intervention involving military action.¹⁰ Reacting against the vagueness this entails, legal theorists in the 1600–1914 era distinguished between war and other kinds of military action. Among other things, they required that war be formally declared for an armed conflict to count as a war. Sometimes political interests may be served by avoiding use of the term “war.” In the 1960s, the US government’s official position was that it was not formally at war with North Vietnam but merely engaged in a supportive action in South Vietnam’s self-defense.

Such distinctions have only minor significance in just war thought, although that tradition offers no definition of war. Carl von Clausewitz defined war as an act of force to compel our enemy to do our will, regardless of formalities. His definition covers all those armed conflicts of interest in this book. The only condition that I impose as necessary for a conflict to count as war with respect to the different types of military action listed earlier is that it be initiated or at least continued by a competent authority. The rationale behind that criterion will be discussed in chapter 3.

It is hard to provide a neat, self-contained definition or even conceptualization of war.¹¹ Brian Orend offers the following: “War should be understood as an actual, intentional and widespread armed conflict between political communities. Thus, fisticuffs between individual persons do not count as a war, nor does a gang fight, nor does a feud on the order of the Hatfields versus the McCoys. War is a phenomenon which occurs only between political communities, defined as those entities which either are states or intend to become states (in order to allow for civil war)” (Orend 2008). I agree with his tying war to conflict between political communities.¹² But I am prepared to adopt a more permissive stance with respect to what counts as a political community in that I include insurrectionary groups and international organizations like the United Nations. Taking war as necessarily involving a political community is linked to the condition that a competent authority make the decision to go to war, and such competence is essentially political. At the same time, it has to be conceded that it is possible that an accidental outbreak of fighting between opposing armed forces might sometimes, if it became widespread, lead to a situation where the outbreak of war escaped political control.¹³

That war be intentional is also correct but vague. Taking it to mean that combatant states must intend to prosecute the war would make it trivial. Taking it to mean that the combatants must deliberately choose to go to war may make the condition too severe; even where governments stumble into war, hoping desperately to the last that they won’t have to fight, it will still count as war. It is perhaps best taken as meaning that the two sides intend to fight rather than concede the demands of the other side.

Orend’s requirement that there be actual fighting excludes the Cold War from the catalogue of wars. Clausewitz’s definition of war as an act of force designed to make the enemy do our will seems to support that conclusion. I adopt that view. However, it should be noted that much of what is relevant to jus ad bellum has to do with the political rather than the military side. Jus in bello becomes relevant only when fighting starts. By contrast, jus ad bellum is relevant long before that and independently of whether any shooting actually happens. The “Cold War” was not a war, but the policies and stances of each side are evaluable by the jus ad bellum criteria.

I listed the fact that war has major negative impact and that war is not well understood as two reasons why the just war tradition is worth studying. A third reason for writing about it is that it is increasingly cited and discussed today by Western political leaders and policymakers, judges and lawyers, and even generals. In recent decades, American and British political leaders in particular have referred to it and more generally have felt the need to justify going to war by appealing to explicitly moral reasons and not just reasons of political necessity.

The rise in interest in the just war tradition is also significant in the area of law, as is reflected in the extensive contemporary literature on war and international law. The idea that war had to be lawful or just in some sense goes back to ancient Roman custom and thought. Stephen Neff remarks: “The most important conceptual step, or leap, occurred when war ceased to be viewed as a routine and ‘natural’ feature of international life, requiring no special explanation, and began instead to be seen as an exceptional and pathological state of affairs, calling for some kind of justification. In the later part of the first millennium BC, two societies—China in the east and the classical world of Greece and Rome in the west—took this step” (2005, 14). The shift had nothing to do with reflecting on how likely people, tribes, or states were to go to war, and had much to do with some view of what would be most conducive to individual and social well-being. The larger civilizations of China and Rome could envision the possibility of widespread, even worldwide, harmony and peace within which human beings could flourish. From that perspective, war was a disorder or social malfunction. The contemporary sense that war should be outlawed stands in that tradition.

This does not necessarily involve a commitment to a specifically Aristotelian or Stoic view of nature, but it does imply some view of what the international community, states, and people need in order to flourish. Any ethical theory that gives prominence to a view of human flourishing, whether that of the individual or of the group, partly closes the natural/normative or “is/ought” gap.¹⁴ Obviously, this touches on a natural law theme. If peace is a good, it is in some sense a natural good. Thus, rejection of the underlying natural law element in the just war tradition on the grounds that it is normative may well be incoherent since it may be impossible to talk about what is most appropriate, fitting, prudent, and so on for nations or the international community without using some normative notion.

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Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Acknowledgments
• Chapter 1 War and Moral Theory
• Chapter 2 The Goods of Peace
• Chapter 3 Good Authority
• Chapter 4 Just Cause
• Chapter 5 Intention
• Chapter 6 Succeeding
• Chapter 7 Last Resort
• Chapter 8 Proportionality
• Conclusion
• References
• Index