In Memorium: Hugo Adam Bedau

Long-time death penalty scholar Hugo Adam Bedau died on August 13, 2012 .  Dr. Bedau had been the Austin B. Fletcher Professor of Philosophy at Tufts University, and is best known for his work on capital punishment.  Dr.  Bedau frequently testified about the death penalty before the U.S. Congress and many state legislatures. He authored several books about the death penalty, including  The Death Penalty in America (1964; 4th edition, 1997), The Courts, the Constitution, and Capital Punishment (1977), Death is Different (1987), and Killing as Punishment (2004), and co-authored In Spite of Innocence (1992).  This last book, written with Prof. Michael Radelet of the University of Colorado and Constance Putnam (Dr. Bedau’s wife), contained one of the best early collections of people who had been wrongly convicted in death penalty cases. In 1997, Bedau received the August  Vollmer Award of the American Society of Criminology, and in 2003 he received the Roger Baldwin Award from the ACLU of  Massachusetts.  Dr. Bedau was a founding member of the National Coalition to Abolish the Death Penalty.  He was a personal hero of mine and he will be missed in the struggle.

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The Practices of Just Peacemaking

In preparing for an extended defense of gospel nonviolence, I first reminded readers of basic principles of Just War Theory, the major ethic of Western civilization on war and peace issues for the last 16 centuries. I then pointed to internal weaknesses of JWT as noticed by proponents of the tradition themselves. Those weaknesses were noticed by several church groups during the 1980s and 1990s who called for a “positive ethic of peace.” We need an ethic, many voices said, that not only tells when it is permissable to go to war and under what conditions wars may be fought justly, but tells us how to make peace without appeasement, how to pursue peace justly. Pacifists agreed. So, with my mentor, Glen Stassen, taking the lead, a group of theologians, biblical scholars, international relations experts, and people with much experience in peacemaking, developed a new ethic, “just peacemaking,” whose practices are catching on because they combine moral seriousness with pragmatic realism. The new tradition is spreading despite the setbacks of global terrorism and preemptive war doctrines in the 21st C.

One note: Although Just Peacemaking has been uniting pacifists and those in the just war tradition in active work for peace, it cannot replace either of those older ethics. The best efforts of peacemakers sometimes fail and wars break out. When that happens, the pacifist will refuse to fight or support the war and the just war theorist will evaluate the particular war before deciding to support or not. Both can, of course, continue to work on peacemaking efforts during the war. Just Peacemaking, then, should be seen as a complimentary ethic, rather than a replacement for either pacifism or Just War Theory.

The 10 Practices of Just Peacemaking:

1. Support nonviolent direct action. First coming to global attention in the campaigns of Gandhi and King, this practice has spread globally in many contexts. Nonviolent direct action is a strategy that lances the festering boil of violence and injustifce and often produces healing without the resort to war. Boycotts, strikes, citizen embargoes, marches, mass civil disobedience, shunnings or (by contrast), actively fraternizing with enemy soldiers, accompaniment, are just some of the nearly 200 methods so far catalogued in the menu of interventions and defensive strategies being developed by nonviolent direct action campaigns. Support for such campaigns, studying when they work and when they fail and finding ways to make them stronger naturally reduces the numbers of wars and violent revolutions.
2. Take independent initiatives to reduce threats. In situations of conflict, an arms buildup or any form of escalation can lead to or expand a war. But so can unilateral disarmaments or appeasements. What is needed is a series of surprising, independent initiatives that reduce threat levels and act as “confidence building measures” that often open up new possibilities of peacemaking. It is important that such actions are public, visible, happen at the times announced, and invite reciprocation.
3. Talk with the adversary using proven methods of cooperative conflict resolution. Some politicians have refused to negotiate, claiming that speaking with party x should be a reward for good behavior. This is ridiculous. Strong leaders are not afraid to talk. One has to talk to make peace. Conflict resolution methods have developed which enable smart negotiators to be tough on the problem, rather than tough on the people involved. In every field, from business to foreign policy, principled negotiation techniques are making proven headway. Ignoring these practices for ultimatums or, by contrast, appeasements, is foolish.
4. Acknowledge responsibility for conflict and injustice and seek repentance and forgiveness. Seldom is all the blame for a war or conflict only on one side. Acknowledge the wrongs your side has done and repent and seek forgiveness. This invites reciprocation and healing. It used to be believed that only individuals can repent or forgive; groups and nations could not, nor ever acknowledge any wrongdoing without appearing weak. To the contrary, such repentance has often led to healing and failure to do so has led to resentments and future wars. The experience of South Africa’s Truth and Reconciliation Committee greatly strengthened this practice and many nations are using it as a model.
5. Advance Democracy, Human Rights, and Religious Liberty. It should go without saying, but recent years have proven otherwise: One cannot and should not try to “advance democracy” by means of military invasion or coercion. Democratic movements must arise indigenously. Established democracies seldom go to war with other democracies and, not needing to fear uprisings from repressed peoples, can spend much less on military budgets. (The U.S. is a glaring exception here, but is thereby becoming less democratic; more a plutocratic oligarchy.) As Roger Williams, Richard Overton and others knew long ago, the lack of human rights and religious liberty is a major cause of war. Protecting and spreading these norms works for just and lasting peace.
6. Foster Just and Sustainable Economic Development. Patterns of economic hardship and exploitation can lead to “resource wars,” and poor people become desperate and are thus vulnerable to recruitment by terrorist fanatics (or power-mad government demagogues) offering cheap and easy solutions through violence. Fair trade, development that works with rather than against healthy eco-systems, these things are not only just in themselves, but win “hearts and minds” that can otherwise be seduced into violence.
7. Work with emerging cooperative forces in the international system. Everything which works to connect nations makes wars more difficult. Actions which weaken international institutions and cooperative forces make wars more frequent and more likely.
8. Strengthen the United Nations and International Efforts for Cooperation and Human Rights. Goes with # 7. The UN is far from perfect. It needs internal reform. But its efforts to promote global health, end poverty, spread human rights norms, and make peace have, despite all this often proven successful in its 50 year existence. Those efforts, and similar developments such as the International Criminal Court, need to be strengthened. “Lone wolf” foreign policies which undermine the UN and the international system are perceived by others as imperial and sow the seeds for future wars.
9. Reduce offensive weapons and the weapons trade. Okay, to a pacifist like myself, all weapons are “offensive,” but this refers to weapons whose nature makes them more useful for attack than defense. Work to eliminate “weapons of mass destruction,” (chemical, biological, and nuclear weapons) are vital–and no nation can simultaneously work to prevent the spread of these weapons, and insist on its own right to possess them and develop more. Further, some “conventional” weapons are, by nature, more offensive, such as cluster bombs which do much more damage to civilians than combat troops and landmines which, long after wars are over, continue to kill and maim civilian populations. Efforts to ban these weapons, often supported by prominent military figures, must be supported. The same goes for the weapons trade. The more people one sells weapons to, the more likely one is fomenting war. The U.S. is the largest dealer of arms–leading to its troops often facing weapons “made in the U.S.A.”
10. Encourage Grassroots Peacemaking Groups and Voluntary Associations. Many of the above practices must become common among diplomats and policy elites, but some, such as nonviolent direct action, can be done by anyone. Also, peacemaking cannot be left to elites and experts. Grassroots groups can often take independent actions for peace before governments and they can and must pressure governments to make their own efforts for peace.

People often ask me as a pacifist, “If you are against war, what are you for?” It’s a fair question and the above practices are a large part of my answer. They also help Just War folk. After all, if war is to be a “last resort,” then one needs concrete ideas of what “resorts” can and must be tried first. One can explore these practices specifically regarding struggles against terrorism here.

The Watada Case and Just War Theory

This post is a reprint from by former blog, Levellers, in 2007 when this case was front page news.

Although I am a Christian pacifist, my mentors, Glen H. Stassen and John Howard Yoder, taught me to learn Just War Theory at least as well as its supporters for several reasons: 1) To enlist JWTers support in opposing particular wars; 2) To ask about the adequacy of church practices in preparing Christians in the virtues needed for either pacifism or JWT; 3) To ask about internal weaknesses in JWT and what they might mean for its viability as a “live moral option,” especially for Christians. The case of the trial of U.S. Army Lt. Watada falls into the 3rd category.

Nota Bene: Yesterday, the judge in Lt. Watada’s court martial declared a mistrial and, because of double jeopardy issues, this may end the legal threats against him. I’ll continue the rest of this post with that in mind, but I think the issues the case raises for JWT remain the same. The mistrial declaration appears to hang on technical violations by the prosecution and not on the issues important here.

Summary of the case: In the aftermath of 9/11, Ehren Watada decided to join the U.S. Army specifically to be part of the effort to defend the nation in the “war against terrorism.” Already a college graduate with a bright future, Watada was not part of the “poverty draft,” but saw himself as a volunteer in a noble cause. Convinced by the Bush administration’s case against Iraq, he joined specifically wanting to be deployed in Iraq. But, during officer training school, Watada learned Just War Theory and how it is (supposedly) embedded in the Uniform Code of Military Justice, specifically in the difference between lawful orders, which must be followed, and unlawful orders, which must be refused. Watada also continued to follow the news and was astonished when no Weapons of Mass Destruction were found in Iraq and, point by point, the Bush administration’s case for the invasion (ius ad bellum, “justifications for the war” in JWT terms which must reach the level of a causus belli, a just reason for the war) fell apart.

By the time Watada’s unit was to be ordered to Iraq, he came to the conclusion that the war was illegal under both U.S. and international law. Therefore, any order to deploy to Iraq was illegal and any orders he would give as an officer in that deployment would be illegal. So Watada refused to be deployed with his unit. Note carefully: He was not claiming to have become a conscientious objector. One can apply for CO status in the U.S. military (I did over 20 years ago when I became converted to gospel nonviolence), although it is harder to win that status during war time. But Watada had not embraced pacifism and had no objection to military service as such. He volunteered to be sent to Afghanistan (which still seemed justified in his view), instead.

He was charged with several counts of missing troop movements, refusing to follow orders, and conduct unbecoming an officer. If he had been convicted (or if there is a 2nd trial and he is convicted), the maximum sentence he could receive would be a dishonorable discharge and 4 years in military prison. (Had his refusal taken place in Iraq, in the war zone, he might have been arrested and flown home for trial, but he could have been given a field court martial and possibly executed on the spot.)

Now, here’s where things get interesting for our purposes: Watada was told that he could not bring up the issue of the war’s legality in his court martial. Nor could he offer his reasons for refusing to deploy in his defense. This tactic is not limited to military courts martial. There have been many cases of civil disobedience in post-Vietnam era U.S. history (especially under federal judges appointed by Nixon, Reagan, and Bush I & II) involving trespass at military bases or attempted destruction of nuclear weapons in which defendants were not allowed to bring up the legality of such weapons under U.S. or international law, nor allowed to cite the Nuremberg Principles in their defence.

Q: Naturally, a jury could decide that someone like Watada was wrong in application, but if judges rule that one may not even bring up the question of an order’s legality, then what is the point of the distinction between lawful and unlawful orders? Deeply embedded in Just War Theory is the concept that unjust wars may not be fought and unjust actions in war must be refused. Is this a “live option” in the U.S. context? If not, can U.S. Christians who hold to JWT join the U.S. military? A “blank check” to the nation agreeing to fight any wars it wants to fight is ruled out by JWT, but is the U.S. effectively asking its citizens in uniform for such a blank check? If so, if adherence to JWT norms is impossible in the U.S. context, can U.S. Christians give it any support? Should they then re-investigate the claims of Christian pacifism?

Internal Weaknesses of Just War Theory

Pacifists such as myself are not the only critics of Just War Theory. The standard form of JWT has also been criticized from within the tradition by some of the best current minds in moral philosophy. The Jewish philosopher, Michael Walzer, for instance, considers standard JWT to be too ahistorical and not attentive enough to the cultural contexts in which moral reasoning is done. He works to correct these efforts in his classic Just and Unjust Wars: A Moral Argument with Historical Illustrations.Another internal critic of JWT is Alan Geyer, Professor Emeritus of Political Ethics and Ecumenics, Wesley Theological Seminary, and Senior Scholar at the Churches’ Center for Theology and Public Policy. The following list of weaknesses was compiled by Geyer and his wife, Barbara Green, of the Presbyterian Church USA’s Washington Office.

1. JWT tends to obscure the ambiguities of justice in most conflicts. It’s a rare war in which all the responsibility is on one side. In most cases, there is plenty of blame to go around.
2. Concentration on the justice of one’s own cause tends to make it difficult to be self-critical or to repent for the evil one’s own side has done–and repentance is usually both a pre-condition of reconciliation. Because JWT helps groups and nations avoid repentance, it also encourages group or national delusions of self-righteousness.
3. JWT tends to react to the latest provocation rather than to a whole longitudinal series of historic events. In that respect it is much like a referee in a sport who sees and penalizes one player’s punch, but misses the prior kick that went unnoticed.
4. Very seriously from the standpoint of Christian theology, Just War thinking tends to presuppose a large disjunction between justice and love. This has the effect of both relegating Christian love to individual one-on-one ethics and to “elevate” to a platonic or docetic (i.e., disembodied) ideal–irrelevant for the “real world.” But surely Jesus’ command to love enemies was meant precisely for this real world: we aren’t likely to have enemies in heaven or the Coming Kingdom, after all.
5. JWT tends to define “justice” only in terms of violent resistance to military or terrorist violence against the nation-state or the forces of the status quo. (Notice, for instance, how hard it would be for a “just revolution” to meet the criterion of legitimate authority.) JWT thus tends to neglect the conditions of systemic injustice and oppression that lead to many wars.
6. JWT tends to justify excessive human suffering and death (not to mention ecological degradation), dismissing them with euphemisms like “collateral damage.” JWT appeals to the principle of “double effect,” focusing on the intention of targeting policies and discounting the actual consequences of those policies.
7. Thus, JWT tends to serve as the military ethic of the most powerful nations, rationalizing their policies against weaker powers and tending toward the unacknowledged conceit that “might makes right.”
8. Finally, at least for Geyer and Green, JWT tends to reinforce unilateral decision-making in a world of multinational realities and the necessity of working for common security.

Another weakness of the JWT tradition is the way that the criterion of “last resort” can actually work psychologically to limit the imagination when creative conflict resolution skills are called for. Knowing that “if all else fails” one can always resort to force can result in moral laziness, in a national impatience with looking for alternative “resorts” to war. One issues an ultimatum and then says, “Well, we TRIED diplomacy but they just wouldn’t listen to reason.” If one rules out both appeasement of tyranny and violence from the start, one is forced to find creative alternatives to the “flight or fight syndrome.”

Basic Principles of Just War Theory: A Guide for the Perplexed

I am not a believer in Just War Theory or the Justified War Tradition (JWT). I am a Christian pacifist or advocate of gospel nonviolence (what Paul Alexander would call a “crucifist”).  But I find it useful to remind people of the basic principles of Just War Theory–as did the great pacifist theologian John Howard Yoder in his book, When War is Unjust and as Yoder’s disciple, Stanley Hauerwas often does in a more ad hoc manner.  Despite the fact that this has been the semi-official ethic of Western civilization regarding war and peace for roughly 1600 years, and despite the fact that the majority of Western Christians since Augustine have considered themselves adherents of JWT, there seems to be a woeful ignorance about the basics of this tradition, even among seminary trained ministers.  Further, it seems that few pastors of non-pacifist churches discuss these principles with parishioners, leaving them without the information and without forming them in the moral virtues it would take to make this a serious moral force in the world.

I consider gospel nonviolence to be a calling for Christians, not necessarily for nation-states. My criticisms of particular wars or lost opportunities for peace are usually rooted in the common Just War vocabulary that forms the basis of much international law, relevant portions of the U.S. military’s Uniform Code of Military Justice, etc.–in short, the moral standards claimed by the mainstream Western world. So, it looks like this pacifist will have to give some remedial Just War instruction–even if only to avoid misunderstanding.

The principles below were hammered out over time. They were forged by major influential moral thinkers (e.g., St. Ambrose, St. Augustine, St. Thomas Aquinas, Martin Luther, John Calvin, Hugo Grotius, etc.) with a basic assumption that nations will make war. This ethic attempts to tame war and have it fought more morally than otherwise–sometimes to great success, but not at other periods of history. The overarching premise is a moral presumption against war: War is a terrible evil. It should be morally very difficult to justify going to war and the conduct of the war must be fought within very tight guidelines. General Sherman famously remarked that “War is hell,” but, if so, the major premise of JWT is that there must rules even in hell.

As the Just War Tradition has developed, it has been distilled into seven (7) principles: five (5) that judge whether a decision to go to war is morally justifiable (ius ad bellum) and two (2) to guide just conduct in waging the war (ius in bello). There is also a corollary that we will discuss at the end of this review.

IS THIS WAR MORALLY JUSTIFIED? Ius ad bellum Principles:

1. Legitimate Authority: According to JWT, not just anyone can decide to go to war. The decision must be made by a legally recognized authority. In ancient times, this was the emperor or king. In the U.S., the constitutional right and duty to declare war is given to Congress alone (Art. I), even though the president is the commander-in-chief of the armed forces and has the authority to negotiate peace. The purpose of the Constitutional Framers was to make it more difficult for the nation to go to war. A major legal question of the  Iraq war/occupation is whether or not this requirement was met by the Congressional resolution that authorized Pres. Bush to use all necessary force to disarm Saddam Hussein of weapons of mass destruction (never found). Some say “yes,” but others believe that a formal declaration of war must be issued by Congress, that the Constitution does not allow this “passing of the buck” to the Executive Branch. This issue was also raised when Pres. Obama intervened militarily in Syria without even consulting Congress and few were convinced by his claim that the intervention was not “major” enough to require Congressional approval–certainly I was not and I am an Obama supporter.  It is a fascinating and terrifying political development in the U.S. to see that, since the Korean War, Congress has voluntarily ceded much of its authority on warmaking voluntarily to the Executive Branch, undermining the intentions of the Framers. (Where are the Constitutional “strict constructionists” on this? The only person to make an issue of this recently has been Tea Party favorite Sen. Rand Paul (R-KY)–perhaps the only point at which I find myself in agreement with Sen. Paul!) Many Just War thinkers insist on a formal Declaration of War, not just to fulfill a legal requirement for the U.S., but because this has historically served as a last opportunity to sue for peace before the battle begins. Since the creation of the United Nations and the signing of its Charter, it has also usually been contended that, unless attacked or under immediate threat of attack, member nations have surrendered the right to declare war unilaterally. The legal authority in all cases except immediate attack or threat is then the UN Security Council. Member nations may not unilaterally presume to enforce Security Counsel resolutions by force. (Before conservatives start crying foul at this “erosion of our national sovereignty,” they should be reminded that the U.S. Constitution itself declares that all signed and ratified international treaties (which would include the UN Charter) share with the Constitution its status of “highest law of the land.”)

2. Just Cause: A war may not be fought for national pride or to expand territory, etc., but only for a just cause, such as resistance to aggression by means of attack or threat of attack. In extreme cases, such as attempts at genocide, a war may be justifiable to prevent an incredible violation of human rights, such as when North Vietnam invaded Cambodia to stop the killing fields of the Khmer Rouge. Because war is so horrible, however, the bar is very high for justifications to invade a sovereign nation for any other reason than to resist aggression. This is the only principle with which most Americans and American Christians seem familiar (although they too easily think that the national cause must always be authomatically just–an idea that is anathema to this tradition). When asked whether war X or Y is just, they will point to the presence or absence of a Just Cause–and forget about the other principles.

3. Just Intent: The aims of the war must be just and limited: to restore peace and justice, not vengeance. The classic example where this was violated was WWI. The desire of the Allies (especially France) to punish and humiliate Germany was unjust and sowed the seeds for the rise of Naziism. Over the years, Just War theorists have been very conservative at this point–generally disapproving of overly grand war aims such as militarily spreading democracy throughout the Middle Eeast. International law reflects such conservatism. (Note: This also puts severe restraints upon an occupying power–it may not profit economically by the war, but must protect and restore the health of the occupied country.)

4. Last Resort: All other means to resolve the dispute must have been tried and shown to fail, before one may justifiably unleash the dogs of war. I will have more to say about this in a future post on the practices of the developing ethic of “just peacemaking.”

5. Reasonable Chance of Success: A war must not be initiated or continued if there is no reasonable chance of success. This is counter-intuitive to the American penchant for admiring underdogs who “go down fighting.” But it is based on the concept that it is unjust to ask citizens and soldiers to go through the horrors of war–no matter how just the cause–if it appears that said war is likely to end without achieving the aims of the war or, even worse, in a crushing defeat.

All 5 of the principles of ius ad bellum must be met before JWT believes it morally justifiable to go to war. One can have a clearly just cause and just intent, but if one has not met the other requirements, especially last resort, then going to war is unjust.

ARE WE WAGING THIS WAR JUSTLY? ius in bello Principles or Just Means:

1. The Principle of Discrimination: Those waging the war must (a) honor noncombatant or civilian immunity. Thus, noncombatants may not be directly targetted. As modern war has grown more destructive, this rule has tightened to say that those waging war must take extra care to minimize civilian deaths–even at greater risk to one’s own soldiers. Any tactic or weapon that makes discrimination between combatant and noncombtant impossible or difficult, is thereby forbidden. (The classic examples here are nuclear, chemical, and biological weapons, but this judgment has also been made about landmines, bombing civilian cities or infrastructure,  drone attacks that kill civilian bystanders, etc.) Noncombatant immunity also means that prisoners captured in war must be treated humanely. They are like chess pieces removed from the board–they may be interrogated, but not tortured or treated inhumanely. (b) Military forces limit themselves to military targets, refraining from looting, massacres, rapes and other atrocities, and all forms of wanton violence. Most war crimes trials result from violations of these principles of discrimination–and “the other side started it” is never a justifiable excuse.

2. The Principle of Proportionality. [This principle is also used in judging “reasonable chance of success” in the decision of whether or not to go to war.] Wars are violent. People are killed and both property and the land are destroyed. This principle says that war’s violence and destruction must be restrained by the norm of proportionality: The war’s harm must not exceeed the good accomplished. This applies both to the war as a whole, and to particular tactics or weapons. There can be no “destroying the village to save the village” nonsense.

   How Should the Victors Treat the Vanquished?–ius post bello

   In more recent development of the JWT tradition, there have been attempts to spell out the principles by which victors may treat the vanquished justly.  There is less consensus here, but general recognition that victors have an obligation to help the vanquished rebuild, that occupying armies must treat civilians justly and be accountable to civilian governments for atrocities, etc.  This needs to be fleshed out more by those who work in this tradition.

Selective Conscientious Objection: The corollary of the Just War tradition is that people, including those already in the military, will refuse to serve in an unjust war–no matter the cost to themselves, even prison. Recent examples include the Israeli refuseniks who have resisted serving in the occupied territories of Palestine and several military members in the  Iraq war, such as Lt. Ehren Watada. (Thanks to “Marty on the Homefront” for posting that video of Lt. Watada’s speech at the annual meeting of Veterans for Peace.)

The churches which claim to embrace JWT are failing their members by not teaching them these principles and not preparing those of their members who choose military service for the possibility of needing to become a conscientious objector to a particular war. On the battlefield, soldiers may have to refuse an order which violates discrimination or proportionality–even at risk of field court martial and summary execution. This is extraordinarily difficult. Even though the Uniform Code of Military Justice explains to recruits the difference between “lawful” and “unlawful” orders, the ethos is (in some senses must be) one in which it is extraordinarily difficult to question orders. The same is true of all other armies of other nations. So, churches that fail to form in their members the moral character that would make such integrity and bravery possible are not really preparing them to be soldiers in the Just War tradition, but to be uncritical nationalists and militarists instead.

At its best, JWT is a high and difficult moral code. But there are limits to it that even non-pacifists have noted.

Critical Variables in Moral Discernment Revisited

https://pilgrimpathways.wordpress.com/2011/01/22/critical-variables-in-moral-discernment-index/

I hope people will read the posts at the above link and comment because I think this conversation needs to be held more widely.  I will refer to it often in an upcoming series in which I argue for the U.S. abolition of the death penalty.