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.