integrate your understanding of peace theory, just war theory, and apply it to current or recent international conflict.

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Humanities

MAMP 504: Ethics Morality and Social Justice in the Military MAMP 504: Ethics Morality and Social Justice in the Military

Adler School of Professional Psychology

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develop a 500-750 word paper which you will post. This paper should integrate your understanding of peace theory, just war theory, and apply it to current or recent international conflict. Then identify the possible solutions to the causes and consequences of war and peace in your selected international conflict case study. Reference sources used.

1. Reread my comments on your paper.
2. Unpack the assignment; break it down into each of its requirements. Treat it like you would an OPORD. There are four parts to the assignment-- (a) integrate your understanding of peace theory, (b) integrate your understanding of just war theory, (c) and apply it (meaning both peace theory and just war theory) to a current or recent international conflict, and (d) identify the possible solutions to the causes and consequences of war and peace in your selected international conflict.
3. You identified the Syrian Civil War as a conflict. Now pick one of the belligerents in the conflict (for purposes of illustration I chose to focus on the actions of the Assad government in what I suggested below.)
4. (This is just one approach.) There are three foundational principles of Justice of War (Jus ad bellum): Legitimate authority, just cause, and right intent. Apply each of these to the Syrian government, for example, and make the call. -- Does the Syrian Government have the legitimate authority to used armed force? What is the basis? Does that government have a just cause to use force? What is that cause? Does the government fight with the right intent. That is, what is the intended result of the use of force?
5. Describe what would constitute a just peace in the Syrian conflict. What do the authors of the readings in this lesson suggest is the basis for a just peace? Can it be achieved in Syria?
6. Develop a peace plan. Describe how that plan would address and resolve the causes of the war. Describe how it would address the consequences of this war. (So, for example, if one of the consequences of the war was a Syrian civilian refugee crisis, how will your peace plan address the plight of refugees?)

This is a short paper (500-700 words) so you need to get right to the point. Try writing an outline first. The points of your outline would then become topical sentences or key arguments in your paper.

Work to improve your syntax. Use simple, declarative sentences. Use an on-line program to check your grammar and punctuation.

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INTERNATIONAL CONFLICT 1 International Conflict Alex Bonilla Adler University 2018GU1-MAMP-504-A 14 May 2018 Syrian War International Conflict INTERNATIONAL CONFLICT 2 The Syrian War, which began in 2011 between the government and opposing forces, has grown from initially peaceful demonstrations, into a civil war (in which various factions are backed by outside powers?) and has adopted (w.c.?) various international elements. The war began as a conflict between various groups whose focus was to boot out the Assad family government, which has ruled since 1971. The anti-Assad demonstrations that preceded the civil war were sparked by an incident which involved a group of children who were tortured by government officials for painting antigovernment graffiti on their school walls (Stebbins, 2017). This attracted demonstrations by residents, but later erupted into a nationwide issue, which later turned into an international conflict between various supporters and those opposing the war. Over time, international alliances have been formed as the Syrian government has enjoyed enormous support from countries including Iran, Russia, and Lebanon, while the government opposition has attracted support from the United States, Britain, France, Saudi Arabia, and Turkey. These countries have mostly supported the opposition by training rebels to take part in the fight on the ground. Despite having started as a demonstration against the actions of the government, the war slowly became a proxy war which would feature Iran and Russia against United States and other opposition allies. (Is the involvement of these nations morally justified?) Most parties participating in the war have committed various crimes including murder, torture, and rape. Often, civilian suffering has been purposefully caused by belligerent parties who have limited noncombatants’ access to food, water, and health services. have also been useful tools in the war (Williams, 2006) (?). (Note: This would have been a good point to elaborate on the principles of Justice in War.) The majority of Syrians as well as other nations seem to hate the regime led by Assad and therefore have viewed the killings as a necessity for saving Syrian traditional beliefs, preserving religion, and preserving more lives in future. Since the Assad family has been INTERNATIONAL CONFLICT 3 viewed as one which could destroy deeply held values, the fight has been worth it for majority of the opposition allies, while the same case applies for the government supporters who would rather fight and protect the Assad regime. Russia has long allied with the Assad regime, and has utilized various techniques including the use of airstrikes and and cruise missiles. For majority of the involved parties, they have utilized other approaches such as train troops while others, such as Iran, have sent plane loads of armies. However, for majority of nations supporting the opposition, they have a vested business interests which the Assad regime does not favor. The seven years of conflict in Syria have taken a toll on the country’s economy and has had social consequences. The demonstrations, turned war, turned international crisis have torn apart Syria’s economic and social fabric, especially because the number of civilian? causalities has been exceedingly high. The conflict has created a global refugee crisis, as well as a high number of deaths and has destroyed property. Unlike the setting of a just war where the fighting seeks to right wrongs, the current consequences of this conflict seem to be more consequential, therefore the effects left behind could be higher than the initial challenges of the Assad regime. At this point, the war can either go on, or a negotiation can be carried out to ensure peace. Just as World War I ended with peaceful negotiations, the Syrian war is likely to end in a similar approach, with most of the country being ruled by Assad. Even though this will leave majority unhappy with the regime, it will likely restore world peace and put a stop to the current social and political crisis (Bank, 2017). You did a good job here of focusing on a single conflict to use as an example in your essay. You also used the correct format for an APA paper. Your paper would have been stronger, however, if you had used the Syrian War example to explore some of the conventions of the Just War Tradition (e.g., just cause, right intent, INTERNATIONAL CONFLICT 4 proportionality, distinction, etc.) and emerging concepts of Just Peace. Absent that part of the discussion, this is a paper that explores the historical and geo-political aspects of the conflict in Syria. References Bank, W. (2017, July 10). The Toll of War: The Economic and Social Consequences of the Conflict in Syria. Retrieved from The World Bank: http://www.worldbank.org/en/country/syria/publication/the-toll-of-war-the-economicand-social-consequences-of-the-conflict-in-syria ROBERT E.WILLIAMS, D. C. (2006). Jus Post Bellum: Just War Theory and the Principles of Just Peace. International Studies Perspectives (2006) 7, 309–320, 13. Stebbins, W. (2017, July 10). The Visible Impacts of the Syrian War May Only be the Tip of the Iceberg. Retrieved May 14, 2018, from http://www.worldbank.org/en/news/pressrelease/2017/07/18/the-visible-impacts-of-the-syrian-war-may-only-be-the-tip-of-theiceberg INTERNATIONAL CONFLICT 1 International Conflict Alex Bonilla Adler University 2018GU1-MAMP-504-A 14 May 2018 Syrian War International Conflict INTERNATIONAL CONFLICT 2 The Syrian War, which began in 2011 between the government and opposing forces, has grown from initially peaceful demonstrations, into a civil war (in which various factions are backed by outside powers?) and has adopted (w.c.?) various international elements. The war began as a conflict between various groups whose focus was to boot out the Assad family government, which has ruled since 1971. The anti-Assad demonstrations that preceded the civil war were sparked by an incident which involved a group of children who were tortured by government officials for painting antigovernment graffiti on their school walls (Stebbins, 2017). This attracted demonstrations by residents, but later erupted into a nationwide issue, which later turned into an international conflict between various supporters and those opposing the war. Over time, international alliances have been formed as the Syrian government has enjoyed enormous support from countries including Iran, Russia, and Lebanon, while the government opposition has attracted support from the United States, Britain, France, Saudi Arabia, and Turkey. These countries have mostly supported the opposition by training rebels to take part in the fight on the ground. Despite having started as a demonstration against the actions of the government, the war slowly became a proxy war which would feature Iran and Russia against United States and other opposition allies. (Is the involvement of these nations morally justified?) Most parties participating in the war have committed various crimes including murder, torture, and rape. Often, civilian suffering has been purposefully caused by belligerent parties who have limited noncombatants’ access to food, water, and health services. have also been useful tools in the war (Williams, 2006) (?). (Note: This would have been a good point to elaborate on the principles of Justice in War.) The majority of Syrians as well as other nations seem to hate the regime led by Assad and therefore have viewed the killings as a necessity for saving Syrian traditional beliefs, preserving religion, and preserving more lives in future. Since the Assad family has been INTERNATIONAL CONFLICT 3 viewed as one which could destroy deeply held values, the fight has been worth it for majority of the opposition allies, while the same case applies for the government supporters who would rather fight and protect the Assad regime. Russia has long allied with the Assad regime, and has utilized various techniques including the use of airstrikes and and cruise missiles. For majority of the involved parties, they have utilized other approaches such as train troops while others, such as Iran, have sent plane loads of armies. However, for majority of nations supporting the opposition, they have a vested business interests which the Assad regime does not favor. The seven years of conflict in Syria have taken a toll on the country’s economy and has had social consequences. The demonstrations, turned war, turned international crisis have torn apart Syria’s economic and social fabric, especially because the number of civilian? causalities has been exceedingly high. The conflict has created a global refugee crisis, as well as a high number of deaths and has destroyed property. Unlike the setting of a just war where the fighting seeks to right wrongs, the current consequences of this conflict seem to be more consequential, therefore the effects left behind could be higher than the initial challenges of the Assad regime. At this point, the war can either go on, or a negotiation can be carried out to ensure peace. Just as World War I ended with peaceful negotiations, the Syrian war is likely to end in a similar approach, with most of the country being ruled by Assad. Even though this will leave majority unhappy with the regime, it will likely restore world peace and put a stop to the current social and political crisis (Bank, 2017). You did a good job here of focusing on a single conflict to use as an example in your essay. You also used the correct format for an APA paper. Your paper would have been stronger, however, if you had used the Syrian War example to explore some of the conventions of the Just War Tradition (e.g., just cause, right intent, INTERNATIONAL CONFLICT 4 proportionality, distinction, etc.) and emerging concepts of Just Peace. Absent that part of the discussion, this is a paper that explores the historical and geo-political aspects of the conflict in Syria. References Bank, W. (2017, July 10). The Toll of War: The Economic and Social Consequences of the Conflict in Syria. Retrieved from The World Bank: http://www.worldbank.org/en/country/syria/publication/the-toll-of-war-the-economicand-social-consequences-of-the-conflict-in-syria ROBERT E.WILLIAMS, D. C. (2006). Jus Post Bellum: Just War Theory and the Principles of Just Peace. International Studies Perspectives (2006) 7, 309–320, 13. Stebbins, W. (2017, July 10). The Visible Impacts of the Syrian War May Only be the Tip of the Iceberg. Retrieved May 14, 2018, from http://www.worldbank.org/en/news/pressrelease/2017/07/18/the-visible-impacts-of-the-syrian-war-may-only-be-the-tip-of-theiceberg International Studies Perspectives (2006) 7, 309–320. POLICY Jus Post Bellum: Just War Theory and the Principles of Just Peace ROBERT E.WILLIAMS, JR. AND DAN CALDWELL Pepperdine University What happens following a war is important to the moral judgments we make concerning warfare, just as the intentions going in and the means used are. There has, however, been inadequate attention paid to considerations of jus post bellum in the just war tradition. This essay seeks to contribute to recent efforts to develop jus post bellum principles by first noting some of the ways that jus ad bellum and jus in bello considerations serve to constrain what can legitimately be done after war. We argue, however, that the constraints grounded in traditional just war theory do not offer sufficient guidance for judging postwar behavior and that principles grounded in the concept of human rights are needed to complete our understanding of what constitutes a just war. A just peace exists when the human rights of those involved in the war, on both sides, are more secure than they were before the war. Keywords: Jus post bellum, just peace, just war theory, human rights The just war tradition is based on the paradox that killing may be necessary to save lives, that the devastation of war may be required to prevent the destruction of deeply held values. Pacifists think the paradox is in reality a contradiction. Their position is understandable when we think of the consequences of modern warfare. How could the deaths of millionsFsome estimates put the number of people killed in the wars of the twentieth century alone at 90 millionFpossibly be justified in the name of saving lives? In fact, there are enormous numbers of war-related deaths that cannot be justified even in terms of the just war idea of waging war in order to save lives. There have been, after all, unjust wars and, within those wars that were just, unjustifiable killings. But the principle, and the paradox it engenders, is well illustrated by those cases in which a military response almost certainly did save lives (as in Kosovo) or would have if it had been forthcoming (as in Rwanda). Over time, philosophers have divided just war thinking into two parts, jus ad bellum and jus in belloFthe before and after considerations separated by the point of Authors’ note: The authors would like to thank Martin Cook, James Turner Johnson, Joel Rosenthal, Michael Walzer, and three anonymous reviewers for their comments and suggestions. r 2006 International Studies Association. Published by Blackwell Publishing, 350 Main Street, Malden, MA 02148, USA, and 9600 Garsington Road, Oxford OX4 2DQ, UK 310 Just War Theory and the Principles of Just Peace entry into war. The first has to do with the moral reasoning that justifies the resort to warFproper authority, just cause, last resort, right intention, and perhaps other concernsFwhile the second has to do with the legitimacy of the means used to wage war. These considerations relate to why and how a war is fought. But this conventional division sometimes obscures the fundamental inseparability of motive and means. If war can only be justified by a concern for the lives and dignityFin essence, the human rightsFof those we seek to defend (whether our own citizens or the victims of attack or oppression elsewhere), then how we wage that war will matter a great deal. It is inconsistent to go to war for the defense of human rights if such a war is likely to result in the deaths of extraordinary numbers of the civilians we seek to save or, on balance, increase their misery. Likewise, it is inconsistent to claim to be waging a war for the defense of lives from future terrorist attacks if such a war is likely to increase those attacks or result, on balance, in less security. Of course, such consequentialist judgments are difficult to make, but a concern for justice requires that we make them to the best of our ability. More to the point, however, is the understanding that how a war is fought is integrally related to its rationale. Reconciling means and ends is, indeed, a matter of integrity. A just war is one that seeks to right a wrong, and, not incidentally, at a cost that will not leave us wondering whether or not the wrong that has been righted might have been preferable to the wrongs we have left behind. War is never a good thing, but we consider it justified if a persuasive case has been made that it is the lesser of two (or ten or a hundred) evils. It must be expected to produce less evil than a reliance on diplomacy, less evil than economic sanctions, less evil than passive resistance, less evil than doing nothingFless evil, that is, than anything we can plausibly offer as an alternative. Thus we must, to be moral, concern ourselves with the evils that war produces and that raises questions about how we fight and what we do after we have fought. Likewise, it means that how we intend to fight and what we intend to do after we have fought must be part of the moral calculus in determining whether or not we may justly go to war. We begin to see, then, why retrospection is so important to moral judgment in the sense of evaluation and why intention is so important to moral judgment in the sense of discernment. World War II is called ‘‘the good war’’ not just because of the defeat of fascism and the liberation of captive peoples. Perhaps it was ‘‘the good war’’ not even primarily for these reasons. After all, the liberation brought by Allied armies came too late for many, including two-thirds of Europe’s pre-war Jewish population. World War II is judged favorably by so many in large measure because of the postwar order it established. Notwithstanding the Cold War and scores of civil wars and ethnic conflicts that followed, World War II led, in many parts of the world, to decolonization, democratization, and development. It produced, in other words, significant improvements in human rights. Of course, here we must recognize that the postwar order may have been judged quite differently by, for example, the Poles and the French. It may be only a slight exaggeration to say that World War II was fully justified only when the United States began to reconstruct Western Europe and to rehabilitate and reform Germany and Japan. Would it even be controversial to suggest that the Soviets’ war of self-defense against German aggression was morally tainted by Stalin’s postwar policy of carting off to Russia economic assets from the parts of Europe occupied by the Red Army or to claim that the Soviet Union fought a just war up to the point at which the Nazis were expelled from Soviet territory, but that its ‘‘liberation’’ of Eastern Europe proved to be unjust because it merely replaced one alien dictatorship with another? What happens after the shooting stops and the surrender is signed is important to the moral justification of warfare, just as the means employed is. And yet there has always been inadequate attention paid to considerations of jus post bellum in the just war tradition. ROBERT E.WILLIAMS AND DAN CALDWELL 311 The Need for Jus Post Bellum Criteria Since the late medieval period when questions concerning the morality of warfare came to be divided into the jus ad bellum and the jus in bello, theologians, philosophers, and lawyers have separated the principles by which entry into war is judged from those used to judge the conduct of war. Michael Walzer (2000:21) has stated the distinction particularly well: The moral reality of war is divided into two parts. War is always judged twice, first with reference to the reasons states have for fighting, secondly with reference to the means they adopt. The first kind of judgment is adjectival in character: we say that a particular war is just or unjust. The second is adverbial: we say that the war is being fought justly or unjustly. 1 Jus ad bellum considerations offer moral guidance up to the point at which the fighting begins; the principles associated with jus in bello apply as long as the fighting continues. But what happens after the fighting stops? As the example of World War II suggests, replete as it is with postwar occupations, regime changes, boundary shifts, war crimes trials, repatriations, reconstruction efforts, and many other activities, the aftermath of war inevitably raises deep and difficult questions of justice. Where are the principles that can guide policy makers, as well as individual soldiers, through the postwar moral thicket? Recently, a few scholars have attempted to address this question,2 but it remains the case that jus post bellum is ‘‘the least developed part of just war theory,’’ as Walzer (2004:161) notes. In spite of the many studies that have appeared concerning war crimes tribunals, truth commissions, and other strategies for achieving justice in the aftermath of conflict, general principles of justice such as those embodied in the just war tradition are absent. As political scientists Charles Kegley and Gregory Raymond (1999:243) have stated, ‘‘While scholars have argued for centuries about the conditions under which it is just to wage war, far less thought has gone into how to craft a just peace.’’ To be fair, the classical sources of the just war tradition always demonstrated some concern for the aftermath of war, especially insofar as those sources related the end of war to the ends of war. It has been widely acknowledged that only some just purpose could give meaning to the death and destruction caused by war. Grotius (1949:375) approvingly quoted Aristotle’s view that ‘‘the purpose of war is to remove the things that disturb peace.’’ Augustine (1958:452) believed that peace ‘‘is the purpose of waging war. . . . What, then, men want in war is that it should end in peace.’’ This view of the ends of war is also held by more recent commentators. Even the one whom we remember for his declaration that ‘‘war is hell,’’ William Tecumseh Sherman, in a speech delivered in St. Louis in 1865, said, ‘‘The legitimate object of war is a more perfect peace’’ (quoted in Shelton 1999). Echoing this tradition, the British military strategist B. H. Liddell-Hart (1974:339) wrote, ‘‘The object in war is a better state of peace.’’ Clearly there has been a consistent acknowledgment of the importance of securing in war ‘‘a more perfect peace.’’ Before we attempt to determine what a set of jus post bellum principles might look like, it is important to consider the argument that no such effort is necessary since the other parts of the just war traditionFespecially the right intention principle as it relates to both jus ad bellum and jus in belloFimply the existence of norms applicable to the end, and the aftermath, of war. James Turner Johnson (1999:208) 1 The addition of jus post bellum principles would mean, of course, that war is always judged three times. In fact, this is what happens. We invariably evaluate, in both political and moral terms, war’s outcome. 2 See, among others, Orend (2000, 2002), Alford (2002), Kellogg (2002), Iasiello (2004), and Allan and Keller (2006). 312 Just War Theory and the Principles of Just Peace has pointed out that ‘‘the way a war is fought and the purpose at which it aims, including the peace that is sought for the end of the conflict, are not unrelated, whether in practical or in moral terms.’’ To the medieval just war theorists, the view that war is justified only by the peace it seeks to restore served as a restraint on both the resort to war and the means employed in waging war. It is also possible, however, to invert the relationship and argue that the restraint of warFthat is, the traditional just war stance itselfFimplies something about the ‘‘end of peace.’’ The fundamental problem with this position is that just war theorists rarely discuss the ‘‘end of peace’’ and what such an objective implies. We can concede that there is an important link between why and how a war is fought and how it concludes, but this no more eliminates the need for principles to insure a just peace than the existence of jus ad bellum principles eliminates the need for principles to insure that war is fought justly. Aquinas (1916:II:2, Q. 40, Art. 1) maintained that a just war is one that is waged with proper authority, just cause, and right intention. While an assessment of whether proper authority and just cause exist must be based on circumstances prevailing at the time the decision is made to go to war, right intention involves a state of mind related to future conditions. Those who fight in a just war must ‘‘intend the advancement of good, or the avoidance of evil’’ so that the justification derived from legitimate authority and just cause is not undone by ‘‘a wicked intention.’’ It is not enough, in other words, to have justifiable reasons for going to war if, having entered the war, the justified side intends to fight in violation of jus in bello norms or to pursue unjust ends. The right intention principle prohibits the pursuit of unjust ends. Therefore, it may be argued, jus ad bellum considerations look to the end of the war and tacitly, if not explicitly, establish certain general requirements for postwar justice. Augustine, Aquinas, and their successors (at least among the ethicists if not also among the lawyers) failed to develop jus post bellum principles, according to this argument, because their assumptions about the just war subsumed the major postwar concerns. This argument, although appealing for the way it seeks to preserve the simplicity of the just war theory, fails on several counts. First, right intention is subject to diverse interpretations, none of which has ever assumed a clearly preeminent position among theorists and policy makers. Consequently, an argument that the right intention component of jus ad bellum obviates the need to define jus post bellum principles runs immediately into a thicket of tangled interpretations. James F. Childress (1982:77, 78) has suggested that ‘‘for the war as a whole, right intention is shaped by the pursuit of a just cause, but it also encompasses motives.’’ Having impure motives (such as hatred for the enemy) would not, however, vitiate the justification of a war in which the other jus ad bellum requirements were met. Furthermore, to the extent that improper motives might lead combatants to act dishonorably in the war, jus in bello principles are available to address the wrongs.3 Childress (1982:78, 79) notes that an alternative understanding of right intention links the concept to the pursuit of peace that all just wars must embrace. To go to war with right intention, therefore, is to fight for a just peace. This, in turn, requires eschewing methods of warfare (assassination, torture, and acts of treachery, for example) that would make it difficult to establish a just peace at the end of the war. Again, it is difficult to see what is gained from this understanding of right intention that is not already available via the jus in bello principles. 3 Notwithstanding these points, Childress (1982:78) believes ‘‘this criterion of right intention, understood not merely as pursuit of a just cause but also as proper motives, remains significant in part because war is conducted between public, not private, enemies. Furthermore, an attitude of regret, if not remorse, is appropriate when a prima facie obligation is overridden.’’ ROBERT E.WILLIAMS AND DAN CALDWELL 313 In our view, the principle of right intention has a limited, although not inconsequential, purpose. It seeks to insure that the stated reasons for the resort to war, reasons that must provide a just cause, are in fact the actual reasons. In other words, ulterior motives are excluded. The state must have a legitimate reason for going to war and it must confine itself to the pursuit of ends linked to that reason. Just cause cannot be transformed into license for unjust pursuits. A second objection to the argument that jus post bellum concerns are adequately addressed by jus ad bellum principles relates to the potential for changes in the moral landscape in the course of a war. Jus ad bellum principles require those who make the decision to go to war to deal first and foremost with matters of fact, with the ‘‘situation on the ground,’’ as it were. Has an act of aggression occurred? Is an attack imminent? Is the use of force necessary to save innocent lives? These are the kinds of questions just war theory asks decision makers to answer. Only with respect to the question of whether fighting offers a reasonable chance of success does the just war theory ask leaders to peer into the future. What Clausewitz called the ‘‘fog of war’’ obscures events not only for the individual soldier but for those who make policy as well. Neither the course of a war nor its outcome is entirely predictable. It seems reasonable, therefore, to look to a different set of principles to guide policy in the aftermath of a war than those that were employed to determine whether to go to war in the first place. The articulation of jus post bellum principles simply acknowledges the fact that we know different things and are confronted with different challenges before, during, and after a war. As Douglas Lackey (1989:43) puts it in opening his discussion of just peace, ‘‘There is room [in just war theory] for one further rule, a rule that takes into consideration facts available to moral judges after the war ends.’’ Human Rights as the Foundation of Jus Post Bellum Principles The effort to develop jus post bellum principles is necessary precisely because the theologians, philosophers, and lawyers who developed and refined the just war tradition gave insufficient attention to the aftermath of war. Consequently, the needed principles are not to be found merely by digging more deeply into the work of Augustine, Aquinas, Suarez, or Grotius. Even Paul Ramsey, Michael Walzer, James Turner Johnson, and other modern expositors of just war theory have only touched upon jus post bellum principles. It is important, because there is so little prior guidance, to begin with this question: What ought to be the foundations of jus post bellum principles? Because our intent is to build on existing just war theory rather than to begin anew, jus post bellum principles must have the same foundations as those principles underlying jus ad bellum and jus in bello. Our first task, then, is to provide a reasonable account of the basis for existing just war theory. Unfortunately, this is not a simple matter. Just war theory is commonly regarded as an artifact of Christian ethicsFwith good reasonFbut to leave the argument there is to ignore major differences between Augustine and Grotius, to name but two. It is also to smooth over profound differences in the medieval world and the modern world. Furthermore, it overlooks both the differences among Christian thinkers and the contributions to the theory from non-Christian (or at least less explicitly Christian) sources, as, for example, with the role that chivalric codes played in the elaboration of the jus in bello principles that are now so important to the just war tradition (Johnson 1975:64–75). An appeal to Scripture, while fundamental to many of the most important contributors of just war theory, has historically failed to settle the issue of how war is to be regarded. Hebrew Scripture, particularly in its texts recounting the history of the Israelites’ conquest of Canaan, seems to sanction holy wars waged without restraint. Christian Scripture, on the other hand, points in a pacifist direction and, 314 Just War Theory and the Principles of Just Peace indeed, the available historical evidence suggests that the Christian community uniformly adopted a pacifist stance until the conversion of Constantine. Those appealing to Scripture have, consequently, been divided. Of course, others in the world are entirely unmovedFin any directionFby appeals to Scripture. Natural law was to have offered a broader foundation for just war theory, one that would appeal both to Christians and to astute non-Christians. Francisco de Vitoria famously employed natural law to argue for the rights of the native peoples encountered by Spanish conquistadors in the New World.4 There are now, however, only a few philosophers who continue to base just war theories on some concept of natural law (see, e.g., Finnis 1996 and Boyle 1996). The just war tradition, it seems, has flourished for centuries as a slowly evolving but always recognizable set of principles resting on various theoretical foundations. Today, the concept of human rights offers the broadest possible base for the just war tradition, thanks in part to Walzer’s Just and Unjust Wars. As anyone who has read the opening pages of Just and Unjust Wars is aware, Walzer’s revision of the just war theory attempts to steer clear of the endless debates over the foundations of morality. In a well-known metaphor, Walzer (2000:xxi) promises a ‘‘tour of the rooms’’ and a ‘‘discussion of architectural principles’’ of the ethical superstructure in which we live while leaving others to examine the controversial ‘‘substructure of the ethical world.’’ Nevertheless, as Walzer is quick to point out, a ‘‘doctrine of human rights’’ is central to his understanding of just war theory. Without attempting to ground the theory of human rights in natural law or utilitarianism or various accounts of human qualities, Walzer (2000:xxi–xxii) asserts that ‘‘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.’’ The human rights doctrine underlying Walzer’s view of just war is only sporadically brought into full view in Just and Unjust Wars, but it informs almost every case and every conclusion. And, at times, Walzer is explicit about his human rights substructure as he conducts his ‘‘tour of the rooms.’’ For example, in an early discussion of the legalist paradigm, which Walzer (2000:72) takes as his starting point, he states, ‘‘The defense of rights is a reason for fighting. I want now to stress again, and finally, that it is the only reason.’’ In justifying limited grounds for intervention, he argues that his exceptions to the general rule of non-intervention are based on standards that ‘‘reflect deep and valuable, though in their applications difficult and problematic, commitments to human rights’’ (2000:108). The commitment to a human rights doctrine is even more apparent when Walzer takes up jus in bello considerations. The case of the rape of Italian women by Moroccan soldiers during World War II is the occasion for a more extensive discussion of how just war theory conforms to the requirements of human rights (2000:133–137). Later, in his discussion of war crimes, Walzer (2000:304) asserts that ‘‘it is the doctrine of rights that makes the most effective limit on military activity.’’ Human rights is at the heart of Just and Unjust Wars, and the case Walzer makes has influenced other scholars to treat just war theory in the same way (see, e.g., Luban 1980). In spite of the centrality of human rights in Walzer’s account of the war convention, his just war theory, like traditional accounts, is fundamentally centered on the state (Smith 1997:8). His concern, to put it differently, is more with the ethics of national security than with the ethics of what has more recently come to be called human security. However, as Walzer acknowledged in the preface to the third edition of Just and Unjust Wars, states are often the violators rather than the defenders of the human rights of their citizens. ‘‘It isn’t too much of an exaggeration,’’ Walzer (2000:xi) writes, ‘‘to say that the greatest danger most people face in the world today comes from their own states.’’ Far from undermining Walzer’s work, 4 Paul Gordon Lauren (2003:29) places Vitoria within the broader context of the development of human rights. ROBERT E.WILLIAMS AND DAN CALDWELL 315 this observation suggests the significance of the steps he took to ground just war theory in a doctrine of human rights. Given the ability of states to both protect and threaten security,5 a modern account of just war theory, including one that proposes jus post bellum principles, would do well to proceed from a foundation of human rights. Jus Post Bellum Principles Every war is different. This factFor truismFis worth noting as we seek to develop jus post bellum principles. Some wars end with a surrender, some with an armistice. Some wars end with the victors occupying the territory of the vanquished, some without a foreign occupation. Some wars end with regime change, some without. Some wars are followed by continued resistance or unconventional war, some are followed by a complete cessation of violence. Some wars end with the commitment of international organizations to build peace, some end without international interest.6 Each of these conditions bears on the question of how justice is to be done in the aftermath of war. Of course, it is not only the situation that exists after the war that affects the quest for a just peace. Much that happened during the war will be significant. Were noncombatants generally spared or not? Were economic assetsFfarms, factories, and infrastructureFgenerally destroyed or preserved? Were populations displaced? Were atrocities committed? Were limitsFthe laws of armed conflictF observed? Finally, as we work backward from the aftermath of the war to its origins, we must acknowledge that jus ad bellum considerations will inevitably affect the prospects for a just peace. When the winner is perceived to have waged an unjust war, a host of considerations may make postwar justice more difficult to obtain. International organizations may be less likely to support postwar stabilization efforts. Insurgencies may be more likely. Allies may be less willing to assist in peacekeeping and reconstruction efforts. After major combat operations in the Iraq War ended, many of America’s European allies cited what Secretary of State Colin Powell called the ‘‘Pottery Barn rule’’: ‘‘You break it, you own it’’ (Woodward 2004:150). The variability of war may be a problem for those seeking to build descriptive theory, but normative theorists seem quite capable of developingFand applyingFprinciples that work regardless of the particular characteristics of a war. The just war tradition, after all, is a set of standards for moral reasoning concerning means and ends in the use of force. It is not a checklist or a decision tree capable of producing definitive conclusions. Principles merely assist us in doing the difficult work of moral reasoning; they do not absolve us of responsibility for that work. In addition to looking at the way the differences among wars affect our views of postwar justice, it is important to consider which aspects of the moral situation change and which do not when wars end. There are, after all, many aspects of what Walzer calls the ‘‘war convention’’ that remain unchanged. The principle of command responsibility, for example, persists as long as there are soldiers present to command. That soldiers’ primary responsibility may have shifted from fighting battles to patrolling the streets or guarding prisoners does not alter the commander’s ultimate responsibility for their actions. Likewise, the inadmissibility of superior orders as a defense against charges of violations of the rules of war, a principle established definitively at Nuremberg, is unaffected by the transition from war to peace. But some elements of the war convention are affected by a surrender or an armistice. When the fighting is over, no more exceptions based on military necessity 5 This ambivalence is addressed in Caldwell and Williams (2006:118–20). The literature on war termination is rich and varied. In addition to Kegley and Raymond (1999), see Kecskemeti (1958), Iklé (1971), Taylor (1985), and Pillar (1988). 6 316 Just War Theory and the Principles of Just Peace are possible since the concept pertains specifically to actions taken in war.7 To stop fighting is to be done with military objectives and morally dubious means of attaining them.8 The concept of noncombatant immunity is also profoundly affected by the termination of war. When hostilities end, all become noncombatants and have (or ought to have) their peace-time right to life restored. As a result, those who continue to kill are murderers, even if their victims are soldiers. This is because the status of soldiers changes with the onset of peace. Soldiers become, for as long as their presence is necessary, the moral (and sometimes the functional) equivalents of policemen. The rules concerning peacekeeping, consequently, must be based on jus post bellum principles rather than the other aspects of the just war tradition. Proportionality is a principle associated with both jus ad bellum and jus in bello that appears applicable to the aftermath of war, although perhaps in ways that are different from its wartime applications. In assessing postwar efforts to promote justiceFparticularly retributive justiceFa sense of proportionality seems essential. If punishment for crimes against peace or war crimes is appropriate at all, the punishment must fit the crime. To provide a sound basis for a set of jus post bellum principles, we must return to the linkage between just war theory and human rights. A just war is one fought in defense of human rights when those rightsFat least the fundamental rights to life and libertyFcannot be secured in any other way. Likewise, a war is fought justly if it is fought with respect for the human rights of noncombatants, including the rights of soldiers who have become noncombatants by virtue of surrender or capture. A war is concluded justlyFthat is, a just peace existsFwhen the human rights of those involved in the warFboth winners and losersFare more secure than they were before the war. In other words, a successful war (and a just peace) is characterized first and foremost by the vindication of the rights for which the war was fought. While such a principle does not preclude punishment (indeed, punishment for the violation of human rights may be essential if those rights are to be vindicated), it does require that a state, having waged war and made peace to vindicate human rights, respect in the aftermath of war the rights even of those who were most responsible for the war. Victors may punish crimes, but they must neither abuse criminals nor punish those who are guilty of no crime. A focus on the human rights foundation of just war theory suggests, too, that a just peace may well be impossible if the war is won by those who initiated it in violation of the human rights of others. When people’s lives, liberty, property, and security are taken away through an act of aggression, only the defeat of the aggressor can vindicate those rights. When a humanitarian catastrophe necessitates intervention, only the defeat of those whose human rights abuses caused the catastrophe can secure justice. To put it simply, an unjust war cannot produce a just peace. Here it may be useful to clarify what it means to say that a warFor a peaceFis just. A just war, that is, one that conforms to the jus ad bellum principles, is one that is 7 Military necessity is a problematic moral concept in any case as Walzer makes clear. See Walzer (2000:144–147, 239–242, 251–268, 323–325). 8 This self-evident proposition was challenged by lawyers advising the Department of Defense concerning torture and interrogation. In a classified memorandum leaked to the Wall Street Journal, an argument was advanced that ‘‘necessity’’might be used as a defense against an allegation of a violation of the U.S. Torture Act (18 U.S.C. §2340). See ‘‘Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations,’’ March 6, 2003, in Greenberg and Dratel (2005:260–261). It should be noted, of course, that a war without end, such as the ‘‘war on terrorism,’’ might be construed as making exceptions based on military necessity available indefinitely. However, the clear language of the Convention Against Torture and Other Cruel, Inhuman or Other Degrading Treatment or Punishment (Art. 2, Sec. 2: ‘‘No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.’’) rules out a necessity defense where torture is concerned even in the context of war. ROBERT E.WILLIAMS AND DAN CALDWELL 317 justifiable. Since the time of Aquinas, who held that a just war was one waged in response to a fault, it has generally been thought that only one side in a war can be justified (with the possibility that neither side might be).9 This means that, with respect to a particular party’s involvement in a war, we can pronounce it just or unjust (i.e., justifiable or unjustifiable). The evaluation of jus in bello, however, is not so simple. When we ask whether a war is being fought justly or unjustly, we must evaluate many different aspects of the conduct of the war. One military operation may have been conducted with exemplary respect for the lives of noncombatants while another may have involved enormous ‘‘collateral damage.’’ Justice (or injustice) in war is, depending on one’s purpose in making the judgment, either a vast cumulative judgment about how the war was fought or a series of judgments about individual acts in the war. Either way, an all-or-nothing judgment must be considered a gross oversimplification. Jus post bellum is more complicated still. In some respects, postwar justice must be evaluated in a manner akin to the way we evaluate the jus ad bellum: either the just purposes for which the war was fought are achieved (in which case the peace is just) or they are not. In other respects, however, postwar justice is like justice in war: some actions taken after the war will be just and some will be unjust. Both the transcendent policies, planned and implemented by the state, and the individual acts of decency or depravity committed by soldiers and civilians in the occupied territory must be taken into account in assessments of jus post bellum. Consequently, rather than being able to conclude that a particular postwar situation is just or unjust, we may have to acknowledge that there are only degrees of justice and injustice in the aftermath of war.10 It should be obvious that winning a just war does not guarantee a just peace. Taking advantage of a victory to subjugate a people and to violate human rights is a grave injustice no matter which side, aggressor or defender, is responsible. The aftermath of World War II provides a dramatic case in point. The Soviets removed roughly a third of the industrial capacity located in their zone of occupation in Europe. Russian troops in the eastern part of Germany raped as many as two million women (Gaddis 1997:45). And in most states occupied by the Red Army at the end of the war, the right of self-determination was effectively denied for a generation. Are there any jus post bellum principles that emerge from these observations? There is, arguably, one fundamental principle supported by a series of more specific prescriptions. The basic principle is this: A just peace is one that vindicates the human rights of all parties to the conflict.11 Jus post bellum, in other words, requires in the case of a war against aggression the restoration of the status quo ante bellum with respect to the rights of the victims of aggression. It requires, in the case of humanitarian intervention, the securing of the rights of those whom the intervention was intended to assist. It requires respect for the rights of those in the aggressor state. It permits, subject to limitations imposed by a fundamental respect for human rights and the concept of proportionality, both the punishment of those 9 Johnson (1975:185–195) discusses the views of Vitoria and Suarez on this issue along with the possibility of ‘‘simultaneous ostensible justice.’’ 10 Michael Walzer (2004:162–168), examining the situation in Iraq roughly eight months after the United States’ invasion in March 2003, argued for the possibility of a just settlement of an unjust war. If one accepts, as Walzer does, that the invasion was unjust, however, it would be more accurate to suggest that the settlement can only be more or less unjust. To claim that a just peace can come from an unjust war is, from a theoretical perspective, to concede more to consequentialism than a rights-based just war theory ought to concede. From a practical perspective, it is almost certain to under-value the costs imposed by the side initiating the unjust war. 11 In stating the principle in this form, we endorse the primary assertion of Orend (2002:46), who suggests that ‘‘the proper aim of a just war is the vindication of those rights whose violation grounded the resort to war in the first place.’’ Where we differ from Orend’s analysis is in the articulation of the prescriptions that are derived from this basic principle. 318 Just War Theory and the Principles of Just Peace adjudged responsible for human rights abuses (including crimes against peace, war crimes, and crimes against humanity) and the imposition of reasonable measures intended to prevent future human rights abuses. Finally, it points in the direction of several specific policies. The victor must, in the first place, restore order. Without order, a society can descend into a Hobbesian state of nature in which even the right to life may be impossible to secure. The need to establish order is often cited as an excuse for denying rights, and this is an authoritarian temptation that must be resisted, but the fact remains that public order is an essential foundation for the restoration of human rights. The widespread violence that has plagued Iraq since the end of U.S. combat operations in May 2003 has jeopardized the ability of both the occupation forces and the Iraqi government to secure the human rights of Iraq’s people. Postwar chaos consequently represents a significant U.S. failure with respect to jus post bellum. The second necessity derived from the principle of the vindication of human rights is economic reconstruction. Without the rehabilitation in some small measure of war-torn economies, it may be difficult to secure the most basic of human rights, the right to basic subsistence. How much responsibility a state that has been the victim of aggression must bear for the economic reconstruction of its enemy is a difficult question. What seems clear is that winning a war and administering a state as an occupying power confers a certain responsibility for the welfare of the people of that state. Not even those who were responsible for the war should be allowed to starve to death. A third requirement derived from the jus post bellum principle mandating the vindication of human rights is the restoration of sovereignty, or self-determination. Surrender and occupation suspend sovereignty, but only temporarily if the surrender leads to a just peace. Self-determination is a fundamental human right articulated in both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. Its restoration must be an urgent objective of the occupying power. Finally, jus post bellum permits (and some would argue that it requires) the punishment of human rights violations related to the war and its origins. This postwar prescription is supported by the practices instituted by the Allies in the Nuremberg and Tokyo war crimes trials after World War II and, more recently, by the examples of the United Nations tribunals established to address human rights violations in the former Yugoslavia and in Rwanda. Much has been written about war crimes trials and transitional justice that need not be recapitulated here (see, e.g., the works by Howard Ball 1999, Gary Jonathan Bass 2000, and Martha Minow 1998). What is important for our purposes is that the vindication of human rights requires a commitment to equal justice, not a show of what Hermann Goering at Nuremberg dismissed as ‘‘victors’ justice.’’ To put the point in contemporarily relevant terms, human rights can be vindicated in Iraq and Afghanistan only if American violations of the laws of war are prosecuted along with our enemies’ crimes. Conclusion James Turner Johnson (1999:191) has suggested that ‘‘perhaps the most difficult problem posed by contemporary warfare, all in all, is the difficulty of achieving a stable, secure ending to it.’’ The difficulty is both strategic and moral, a matter of what can be done and what ought to be done to conclude a war successfully. On the strategic side, the possibilities for postwar settlement have evolved rapidly along with the international system itself. Since the beginning of the twentieth century the world has seen, at the conclusion of wars, plebiscites and partitions, disarmament and de-Nazification, peacekeeping and peace enforcement, reparations and regime change, nation-building and neutralization, to name just a few of the means em- ROBERT E.WILLIAMS AND DAN CALDWELL 319 ployed to secure peace. While these strategies have often been rooted in moral principles (such as the Wilsonian commitment to self-determination), modern theorists have not done an adequate job of articulating the fundamental principles underlying what ought to be done in the aftermath of war, nor have we received adequate guidance from the ancients. The great philosophers of the just war tradition did recognize an important point that modern leaders sometimes forget (or, more accurately, hope their democratic polities will forget): Waging a just war involves facing ethical challenges before, during, and afterFsometimes long afterFthe war itself. Before the war, justice requires that all reasonable means to resolve the conflict or protect the lives and dignity of those being oppressed be tried and found wanting. It also requires that a just cause be articulated (and not a range of potentially just causes from which a credulous public may choose). During the war, justice requires respect for the human rights of noncombatants, even to the point of imposing limits on the conduct of warfare that may be inconvenient or worse. After the war, justice requires the vindication of human rightsFvindication in the sense of defense, restoration, and, at times, punishment of past violations. Only when the ethical obligations attending each phase of a war are met is it possible to argue that the war was just. Writing in the sixteenth century, the Lord de la Noue offered a vigorous defense of jus in bello principles, arguing that just wars must be fought with restraint (Johnson 1975:106–107). To make the point, he described a peasant who confronted a soldier with an account of the current war’s devastation and a question: ‘‘Who will believe that your cause is just when your behaviors are so unjust?’’ This question reminds us that judgments concerning the justice of the ends are inextricably linked to the justice of the means. A similar point can be made regarding consequences. Because what happens once the fighting stops is also critical to the moral evaluation of war, a concept of jus post bellum is important to inform both our postwar policies and the final judgments we make concerning wars. References ALFORD, ROGER P. (2002) On War as Hell. Chicago Journal of International Law 3:207–218. ALLAN, PIERRE, AND ALEXIS KELLER, EDS. (2006) What Is a Just Peace? New York: Oxford University Press. AQUINAS, THOMAS. (1916) The Summa Theologica of St. Thomas Aquinas. Translated by the Fathers of the English Dominican Province. London: Burns Oates & Washbourne, Ltd. AUGUSTINE. 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Journal of Military Ethics, Vol. 6, No. 2, 91106, 2007 The Sources and Status of Just War Principles JEFF MCMAHAN Department of Philosophy, Rutgers University, USA ABSTRACT Michael Walzer presents the theory of the just war that he develops in Just and Unjust Wars as a set of principles governing the initiation and conduct of war that are entailed by respect for the moral rights of individuals. I argue in this essay that some of the principles he defends do not and cannot derive from the basic moral rights of individuals and indeed, in some cases, explicitly permit the violation of those rights. I argue, further, that it does not follow, at least in some cases, that the principles are false. Even if some of the principles are not adaptations of a theory of rights to the problems of war, they may still be rational, pragmatic accommodations to epistemic and institutional constraints under which we must now act. Yet I also argue that respect for the rights that Walzer claims that individuals have requires us to try to overcome the epistemic and institutional impediments that restrict us at present. As those impediments are removed, the reasons for acknowledging and following some of the central principles Walzer espouses will diminish and, perhaps, disappear. KEY WORDS: Michael Walzer, just war, moral equality of combatants, civilian liability, prisoners of war The Structure of Walzer’s theory I first read Just and Unjust Wars in 1980, about a year after I had begun my graduate work in philosophy. I was then, and have remained, greatly influenced by it. Over the years I have reread various chapters, some on several occasions. But only after I was invited to contribute to this special issue did I again read the book through. Again I emerged greatly impressed, perhaps even more so than when I first read it. I have written pieces that have been critical of various claims made in the book, and I have often stated my own views about the morality of war by contrast with or in opposition to those claims. But I nevertheless find much to admire in this book, and much to agree with, particularly in Walzer’s judgments about issues of practice, such as preemptive war, the demand for unconditional surrender, siege warfare, reprisals, terrorism, and responsibility for war crimes. Most of my disagreements are with claims that Walzer makes at a higher level of abstraction. These disagreements concern the content and status of certain general principles, both substantive and methodological. In a few Correspondence Address: Department of Philosophy, Rutgers University, 26 Nichol Avenue, New Brunswick, NJ, 08901, USA. 1502-7570 Print/1502-7589 Online/07/020091 16 # 2007 Taylor & Francis DOI: 10.1080/15027570701381963 92 J. McMahan cases, I think the principles are mistaken; in others, I think the principles have a role in regulating the practice of war, but that Walzer misidentifies their source and misconstrues their status. This may seem an insignificant disagreement, a disagreement about the taxonomy of moral principles devoid of relevance to matters of practice. But I think that how we understand the nature of these principles does indeed have implications that are of practical significance. Different passages in Just and Unjust Wars are suggestive of different ways of understanding the sources and status of the principles that compose Walzer’s theory of the just war. Certain passages, for example, suggest that we devise these principles to help us to achieve certain purposes. This interpretation is, indeed, suggested by the label that Walzer gives to the set of principles he seeks to defend: ‘the war convention.’ And he says, quite explicitly, that ‘the war convention . . . remains one of the more imperfect of human artifacts: recognizably something that men have made . . .’ (Walzer 2000: 45). He also says that jus in bello  the part of just war theory concerned with the conduct of war  ‘requires us to make judgments about . . . the observance or violation of the customary and positive rules of engagement’ (2000: 21). This seems to imply that the just war principles governing the conduct of war are merely customary and positive in nature rather than elements of basic, nonconventional morality. Yet the war convention appears to be a miscellany of principles derived from a variety of sources. Walzer indicates the heterogeneity of the convention’s elements when he describes it as ‘the set of articulated norms, customs, professional codes, legal precepts, religious and philosophical principles, and reciprocal arrangements that shape our judgments of military conduct’ (2000: 4445). And there are numerous other passages in which he recognizes that there are valid principles of different types that all constrain the practice of war. For example, of the elaborate rules governing surrender and the treatment of prisoners, he writes that ‘it is not easy to see all this as the simple assertion of a moral principle. It is the work of men and women (with moral principles in mind) adapting to the realities of war, making arrangements, striking bargains’ (2000: 46).1 This may seem to confirm the interpretation according to which the principles that Walzer defends are mere contrivances for reciprocal benefit, but it also implies a contrast between the rules of surrender and moral principles that have a grounding that is perhaps independent of agreement and convention. Walzer also draws a distinction between ‘war rights’ and other rights. He refers, for example, to an older naval code according to which merchant seamen on ships carrying military supplies were held to have a right not to be attacked. But he notes that once it ceases to be possible to intercept such ships and impound their cargo without attacking them, the right of merchant seamen not to be attacked ‘lapses. It is not a retained right but a war right, and rests only on the agreement of states and on the doctrine of military necessity’ (2000: 146). And later, referring to principles that prohibit the use of certain weapons, such as poison gas, he observes that ‘soldiers have only a The Sources and Status of Just War Principles 93 war right, and not a more basic right, to be attacked with certain weapons and not with others’ (2000: 215). Walzer never defines the difference between war rights and other rights, but one can infer from the context that war rights are the products of specific agreements or deliberately established conventions. They are not natural or human rights but are instead ‘human artifacts: recognizably something that men have made.’ We may, therefore, take Walzer to assert, or at least to presuppose, that the war convention comprises principles that are of different types, that have different origins and different forms and degrees of normative authority. Some of the principles establish mere war rights. But others require respect for rights that are not the creations of bargaining, agreement, or the conscious establishment of conventions. That he sees these rights as the foundation of his account of the just war is evident in the following quotations: I want to suggest that the arguments we make about war are most fully understood (though other understandings are possible) as efforts to recognize and respect the rights of independent and associated men and women. The morality I shall expound is in its philosophical form a doctrine of human rights. (2000: xxi xxii) Individual rights (to life and liberty) underlie the most important judgments that we make about war. (2000: 54) A legitimate act of war is one that does not violate the rights of the people against whom it is directed. (2000: 135) No one can be threatened with war or warred against, unless through some act of his own he has surrendered or lost his rights. (2000: 135) The standards of permissibility rest on the rights of individuals. (2000: 143) The rights of innocent people have the same moral effectiveness in the face of just as in the face of unjust soldiers. (2000: 228) The deliberate killing of the innocent is murder. (2000: 323) At least in Just and Unjust Wars, Walzer remains agnostic about the ontological status of these individual rights. He concedes that ‘how these rights are themselves founded I cannot try to explain here. It is enough to say that they are somehow entailed by our sense of what it means to be a human being. If they are not natural, then we have invented them, but natural or invented, they are a palpable feature of our moral world’ (2000: 54). If he ultimately believes that these rights are invented, which is how I understand him in his later writings,2 he also believes that they are invented in a different way from war rights. They are invented, but not intentionally or even consciously; instead they arise or emerge slowly over time through processes of communal interaction and the evolution of social meanings. Because Walzer is, finally, a relativist about morality, who sees densely elaborated moralities as cultural artifacts, and more abstract, impartial, and cosmopolitan moralities as merely the points of contact or areas of overlap among 94 J. McMahan local moralities, he does not think that morality is as firmly anchored in the nature of things as I think it is. But it seems to be a presumption in the book that the rights to which he refers in the passages just quoted, and to which I will refer as ‘moral rights’ to distinguish them from war rights, are generally recognized in moralities that have evolved within particular cultures, and are therefore as nearly universal and as deeply anchored as anything can be in his conception of morality. Individual moral rights are, then, foundational in Walzer’s account of the morality of war. But where exactly do they fit in the war convention? It is clear that Walzer thinks that they are in some sense the source  or at least a source  of the rules, principles, codes, and so on that are constitutive of the war convention. He writes, for example, that ‘utilitarianism . . . does not provide us with customs and conventions. For that, we must turn . . . to a theory of rights’ (2000: 133). And in a recently published paper, he refers to ‘our ordinary morality,’ in which moral rights are recognized and embedded, and claims that ‘the conventions represent the adaptation of this morality to the circumstances of war’ (Walzer 2006: 45). This claim helps to explain what otherwise appears to be an inconsistency in Just and Unjust Wars. Recall that, at one point, Walzer seems to assert that the principles of jus in bello are merely ‘customary and positive rules of engagement’ (Walzer 2000: 21). This seems inconsistent with his later claim that ‘the rules of ‘‘fighting well’’ [that is, the rules of jus in bello] are simply a series of recognitions of men and women who have a moral standing independent of and resistant to the exigencies of war’ (2000: 135). But these apparently conflicting claims can perhaps be reconciled if the standing of individuals as bearers of moral rights finds recognition in or through principles that have passed into custom and, in some cases, have been legally codified. But the war convention is not just a set of lower-level principles that apply the theory of rights directly to the moral problems raised by war. Individual rights are apparently only dimly visible in the theoretical and historical foundations of the war convention. Referring to a nearly universal set of beliefs about the moral immunity of certain people to attack in war, Walzer writes that: [I]t is very likely that some general principle is at work in all these judgments, connecting immunity from attack with military disengagement . . . The historical specifications of the principle are, however, conventional in character, and the war rights and obligations of soldiers follow from the conventions and not (directly) from the principle, whatever its force. Once again, war is a social creation. The rules actually observed or violated in this or that time and place are necessarily a complex product, mediated by cultural and religious norms, social structures, formal and informal bargaining between belligerent powers, and so on . . . Exactly like law in domestic society, they will often represent an incomplete or distorted embodiment of the relevant moral principle. (2000: 43) According to this view, individual rights lie behind the judgments people make about moral immunity in war and indeed most other judgments they make about the rights and wrongs of war. There is a line of derivation, but the principles that best articulate the common core of our beliefs about rights The Sources and Status of Just War Principles 95 have passed through a variety of cultural lenses and pragmatic filters in the process of generating the customs, norms, and laws that are constitutive of the war convention. But this view, which emerges from the remarks by Walzer that I have just quoted, fails to cohere with the passages I cited earlier in which Walzer asserts a more direct connection between individual rights and the principles he defends and to which he appeals in offering judgments about various aspects of the practice of war. When he claims, for example, that ‘a legitimate act of war is one that does not violate the rights of the people against whom it is directed,’ there is no suggestion that such a principle may admit exceptions as a result of cultural variation or may acceptably be revised as a result of bargaining among belligerents. I will offer here a hypothesis about how these various suggestions about the role of rights in Walzer’s theory might be reconciled. Walzer never explicitly distinguishes between the war convention, which he presents himself as defending, and the theory of the just war, which he also presents himself as defending. But the heterogeneity of the elements of the war convention suggests that the relation between the war convention and the theory of the just war that Walzer defends cannot be one of identity. Rather, the theory of the just war  which is an explicitly moral theory  is presumably just one component of the war convention, which also includes the international law of war, the professional codes of various military organizations, and so on. So I suggest that we interpret the quotations about individual rights that I presented earlier as indicating the relation between individual rights and the principles of what Walzer takes to be the best account or interpretation of the theory of the just war. His account of the just war is a philosophical distillation of beliefs about individual rights into principles that may be directly applied to the problems of war. It coexists and competes with other similar or overlapping accounts of the morality of war within the larger and amorphous body of customs, norms, codes, and laws that constitute the war convention. The Domestic Analogy I will argue that some of the substantive principles that Walzer defends in developing and setting forth his theory of the just war fail to cohere with the idea that these principles are essentially requirements of respect for individual rights in the context of war  that is, that they are constraints on the initiation and conduct of war that are entailed by respect for the rights of individuals. Before turning to substantive principles, however, I will briefly suggest that one of the central methodological principles on which Walzer explicitly relies is of its nature ill suited to the task of deriving principles and judgments that are sensitive to the moral rights of individuals. This methodological principle is what Walzer calls the ‘domestic analogy.’ It claims that states ‘possess rights more or less as individuals do,’ so that we can see relations among states as analogous to relations among individuals. Consider, for example, the claim that A has a right not to be unjustly attacked 96 J. McMahan by B and therefore has a right to attack B in self-defense if B engages in aggression. According to the domestic analogy, A and B could be individual persons or they could be states. What’s true of the morality of relations among individuals is also true of the morality of relations among states, for states are individuals. By viewing states as individuals with rights analogous to those of individuals, we can, according to Walzer, see ‘the world of states’ as ‘a political society the character of which is entirely accessible through such notions as crime and punishment, self-defense, law enforcement, and so on’ (2000: 58). Yet the attempt to understand the morality of war through the domestic analogy does not focus our attention on individual moral rights but instead necessarily obscures any role they might have in morally constraining the practice of war. If we conduct our thinking about war by focusing on relations among states and treating states as if they were individuals with rights that are the analogues of the rights of persons, the actual rights of actual persons become essentially invisible. Individual persons may appear in our moral thought as the agents, representatives, or partial embodiments of the state, and there may be a general presumption that because states are charged with the protection of the rights of their citizens, respect for the rights of states will translate into respect for the rights of their citizens. But if we take the domestic analogy seriously, it should lead us to treat individual persons as if they had no more significance in relations between states than a person’s individual cells have in relations between persons. In the latter case, harms to a person matter, while effects on his cells matter only insofar as they affect him. According to the domestic analogy, effects on individual citizens should matter only insofar as they bear on the rights of the state. In practice, the domestic analogy has in fact led people to ignore individual rights in ways that have proven disastrous. According to traditional liberal morality, Mill’s ‘harm principle’ is broadly correct: individuals may be coerced only to prevent them from harming other individuals; they may not be coerced with respect to matters that concern only themselves.3 If states are individuals with rights that are the analogues of individual rights, they should have a right of nonintervention analogous to the individual right against paternalism. If so, they too may be coerced only to prevent them from harming or violating the rights of other states. They may not be coerced with respect to their purely domestic affairs. Reasoning of this sort has been historically influential in discouraging humanitarian intervention in defense of the fundamental rights of individuals against violation by their own government, even in cases in which the violations have amounted to genocide. It also seems to be an implication of the domestic analogy, though one that has fortunately received little historical recognition, that there can be no requirement of discrimination in war. In its generic formulation, the requirement of discrimination is the requirement to distinguish morally between legitimate and illegitimate targets of attack and to confine one’s intentional attacks to the former. As it is usually understood in substantive terms, it forbids intentional attacks against noncombatants but permits attacks against combatants. But if the state is itself an individual and has acted in The Sources and Status of Just War Principles 97 such a way as to forfeit its right against attack, and if all of its citizens are equally parts of the state, then it seems that they should all be legitimate targets of attack. It might, of course, be said that only the state’s combatant members are legitimate targets of attack because they are the only part of the state that is threatening and are thus the only part that may be attacked in self-defense. But when one person threatens another, there is no one part of the person that poses the threat; he poses it and there is no part of him that may not be attacked if attacking that part is necessary for self-defense by the victim. So if the domestic analogy is correct and states have rights analogous to those of individuals and may also forfeit those rights in the same way that individuals sometimes do, then when a state engages in unjust aggression, the state as a whole, and not just some subset of its citizenry, should lose its right not to be attacked. I have said that this implication of the domestic analogy has had little historical recognition, but it has been the basis for certain doctrines of collective responsibility, collective guilt, collective liability, and collective punishment. In this respect at least, the influence of the doctrine has been pernicious. It is also worth noting, in concluding this brief discussion of the domestic analogy, that even to function as an effective heuristic device, the domestic analogy must deploy notions of the collective good, collective intention, collective belief, etc. on the assumption that these collective analogues have the same kind of moral significance as their individual counterparts. The notion of the collective good, for example, may imply that uncompensated harms to individual members of the collective have no more significance than harms that are compensated for within the life of an individual have for that individual. This, I think, is an evident distortion, as is the idea that a collective intention that is somehow compounded out of individual intentions that have perhaps been processed through some institutional decision procedure could have the same moral significance as an intention formed and acted on by an individual moral agent. The Moral Equality of Combatants The requirement of discrimination is the most important substantive principle of the doctrine of jus in bello. As I just noted, according to its orthodox contemporary interpretation, this principle holds that while noncombatants are not permissible targets of attack, all combatants are legitimate targets for other combatants. The idea that all combatants are permitted to attack all other combatants, irrespective of whether they are fighting in a just or an unjust war, is one component of the substantive principle that Walzer calls the ‘moral equality of soldiers’  though I will call it the ‘moral equality of combatants,’ to make clear that it applies to naval and air personnel as well as to soldiers. It will facilitate the statement and discussion of this principle to introduce a terminological distinction. Let us refer to those who fight in a war that lacks a just cause as ‘unjust combatants,’ and to those who fight in a just war as ‘just 98 J. McMahan combatants.’ This distinction is not exhaustive because it leaves out combatants who fight in a war that has a just cause but is wrongful for some other reason  for example, because the war is unnecessary for the achievement of the just cause or because its expected bad effects are disproportionate to the importance of the just cause. Combatants of this third type need not concern us here. The principle of the moral equality of combatants asserts, in effect, that all combatants, just and unjust alike, have the same rights, immunities, and liabilities. It asserts that a combatant’s moral status is unaffected by whether the war in which he fights is just or unjust. This principle is certainly part of the war convention but it is also central to Walzer’s account of the just war. It is implicit in the requirement of discrimination as Walzer understands it, and the requirement of discrimination is the one component of Walzer’s theory of the just war that is most clearly supposed to derive from individual rights. Recall that Walzer claims that ‘a legitimate act of war is one that does not violate the rights of the people against whom it is directed,’ and thus that ‘no one can be threatened with war or warred against, unless through some act of his own he has surrendered or lost his rights.’ For the moral equality of combatants to be compatible with these claims, it must be true that just combatants either waive or altogether lose their right not to be attacked or killed by enemy combatants. What Walzer explicitly claims is that they lose it. ‘That right,’ he contends, ‘is lost by those who bear arms ‘‘effectively’’ because they pose a danger to other people’ (2000: 145). It does not matter that they have done no wrong: ‘Simply by fighting,’ just combatants lose ‘their title to life and liberty . . . even though, unlike aggressor states, they have committed no crime’ (2000: 36). Walzer never explains the basis of these claims, but in the tradition that informs his work they are associated with the idea that self-defense is always presumptively permissible. We are permitted to defend ourselves against those who attack us; thus, because combatants on each side threaten those on the other, all lose their rights vis-à-vis their adversaries. Noncombatants, by contrast, threaten no one and therefore cannot be attacked defensively. They retain their right not be attacked or killed. But the idea that people lose their moral right not to be attacked or killed simply by posing a lethal threat to another is false, and is almost universally recognized as such, at least outside the context of war. If a person is the victim of an unjustified, culpable, and potentially lethal attack, she does not forfeit her right not be killed by engaging in necessary though potentially lethal selfdefense. Although she now poses a lethal threat to her assailant, her engaging in justified self-defense does not make it permissible for that assailant to kill her in self-defense. As in domestic law, there can be no justified defense against a fully justified attack. If this is right, then not only does the principle of the moral equality of combatants not derive from the moral rights of individuals, but it is actually incompatible with respect for those rights. For if just combatants do not lose their rights when they engage in justified defense, then when unjust combatants attack them, they violate those rights and therefore act wrongly. The Sources and Status of Just War Principles 99 But if unjust combatants violate rights when they attack just combatants, while just combatants do not violate rights when they fight in justified defense, the principle of the moral equality of combatants cannot be compatible with principles that require respect for individual moral rights. It might, of course, be argued that all combatants waive their rights not to be attacked or killed vis-à-vis their adversaries. Walzer does gesture in the direction of this idea in his brief discussions of wars in which all combatants fight ‘freely’  that is, when combatants on both sides choose to fight for reasons of their own rather than being compelled to fight either by the necessity of defense or by threats from their leaders. If, for example, there were a war fought entirely by mercenaries on both sides, it might be plausible to regard them all as waiving their rights against attack vis-à-vis their adversaries, as boxers and duelists do. But it is clear that wars as they are fought now are not like this; nor does Walzer base the moral equality of combatants on the suggestion that all combatants somehow consent to be attacked. Even though the moral equality of combatants does not derive from individual moral rights and is even incompatible with principles that do derive from such rights, it does not follow that it has no role in the normative regulation of war. A doctrine very like the moral equality of combatants does in fact have a proper and important place in the war convention, given the present state of international law and international legal institutions. It is necessary in current conditions to grant just combatants and unjust combatants alike a legal permission to attack and kill enemy combatants. In legal and conventional terms, combatants on both sides in a war must be regarded as equals, or as having the same status. Their legal or conventional rights and liabilities must be the same. We might call this view the ‘legal equality of combatants,’ or perhaps the ‘conventional equality of combatants.’ The ultimate foundations of the legal equality of combatants are epistemic. In part because of what psychologists call in-group/out-group bias, people tend to trust their own country and its government and to distrust other countries, at least in situations of conflict. For this and various other reasons, most combatants believe, usually unreasonably but occasionally even reasonably, that the wars in which they fight are just. This is true of just and unjust combatants alike. And even those unjust combatants who suspect or even recognize that their war is unjust are generally far more likely to fight, or to continue to fight, than to refuse to fight. Furthermore, because it is a rare person who will acknowledge his wrongdoing, either while he is engaged in it or afterwards, even those unjust combatants who suspect or believe that their war is unjust will nevertheless tend to claim that it is just. For these reasons, whatever is legally permitted to the just in war will be done by the unjust as well. A law that would grant permissions to the just that it would deny to the unjust would therefore be wholly ineffective in constraining the unjust. The difference here between international law and domestic law is that, in domestic law, people are obliged by the relatively determinate nature of the laws and by the effectiveness of the mechanisms for the enforcement of these laws to take great care in determining whether their beliefs about what is 100 J. McMahan legally and morally permissible are correct. They cannot act with impunity on the basis of whatever belief they happen to have, or feign to have. At the international level, by contrast, it is considerably more difficult for an ordinary combatant to determine whether a war is just or unjust, and there is no international judicial body that is competent to deliver judgments about matters of jus ad bellum with anything approximating the epistemic reliability of a domestic criminal court. The combatant, therefore, has no authoritative source of guidance, and for this reason, among others, liability for unjust wars, or for crimes against peace, is restricted to those in positions of decision-making authority, who are presumed to have competent legal counsel. Because of the epistemic constraints under which combatants must act, which are in part the result of the absence of any authoritative source of judgment in matters of jus ad bellum, the laws of jus in bello must be neutral between just and unjust combatants. But a set of neutral laws that would deny to the just and unjust alike all that ought to be forbidden to the unjust would be no more effective than non-neutral laws that would deny to the unjust what they would permit to the just. Neutral laws that denied to the just what ought to be denied to the unjust would constrain no one. And they would themselves be fundamentally unjust in that they would in effect deny to the just the right of self-defense against the unjust. (Advocates of nonviolent resistance might dispute this claim. But while they are right that violent defense is unnecessary far more often than most people believe, they are wrong if they claim that it is never necessary for successful resistance.) The only feasible option, therefore, is to grant legal permission to both just and unjust combatants to fight and to kill in war. At least at present, there would be little advantage yet many risks in making participation in an unjust war illegal. The most significant obstacle is the absence of any judicial body that is both legally and epistemically competent to make an authoritative determination about whether a war is just or unjust. In the absence of more rigorous procedures than we have at present for evaluating matters of jus ad bellum, the status of any combatant as an unjust combatant must remain too contentious to be a basis of legal prosecution. Moreover, in the absence of an authoritative pronouncement, either before or during the course of a war, about whether the war is just or unjust, unjust combatants will in most cases be able to plead nonculpable ignorance to a charge of participation in a criminal war, thereby mitigating their liability and excusing them from severe punishments, and thereby also diminishing the deterrent value of any punishment that might be justly imposed. There remains, however, a deep difference between the permission just combatants have to participate in war and that which is granted to unjust combatants. The permission under which just combatants act is a moral permission that is also recognized in law. The permission granted to unjust combatants, however, is legal and conventional only. The international law of war must, for pragmatic reasons, grant a legal permission to unjust combatants to engage in morally wrongful killing. Since just combatants are innocent in the relevant, generic sense  that is, they have done nothing to The Sources and Status of Just War Principles 101 forfeit their moral right not to be killed  the international law of war must grant a legal permission to unjust combatants to engage in the intentional killing of the innocent.4 It must legally condone the violation of the individual moral right to life  a significant point of divergence between the legal equality of combatants and principles requiring respect for individual moral rights. The Rights of Noncombatants and Prisoners of War The legal permission to kill the innocent is, however, a permission to kill only innocent combatants. There is no pragmatic reason to permit the killing of noncombatants. Exactly the opposite is true: there are pragmatic reasons to maintain a categorical legal prohibition of the killing of noncombatants. And surely, one might think, this is one point on which morality and the law must coincide. Yet I think that this is in fact another point of divergence. I believe that the correct criterion of liability to attack in war is moral responsibility either for a wrong that is of a type that its prevention or correction constitutes a just cause for war, or for an unjust threat in war (McMahan 2004). If this is right, and if there are some civilians who bear a significant degree of responsibility for an unjust war, if killing them would make an important contribution to the achievement of the just cause, and if they could be attacked without causing disproportionate harm to the innocent, then morality might permit or even require that they be killed. But, again, given the present state of international law and international institutions, whatever is permitted to the just will be done by the unjust. It would therefore be intolerable to have a non-neutral rule that would permit, on rare occasions, intentional attacks against liable civilians by just combatants. For such a rule would inevitably be taken by unjust combatants to justify their attacking enemy civilians who would in fact be innocent (and all noncombatants on the just side are innocent in the context of war). And it would also inevitably be taken by just combatants to justify their attacking enemy civilians in conditions in which those targeted would not bear a sufficient degree of responsibility to make them liable to military attack, or in which, while some of those targeted would be liable, there would also be a sufficient number of other, innocent civilians killed to make the attack objectively disproportionate. But it would be even more intolerable to have a neutral rule that permitted the killing of noncombatants to just and unjust combatants alike. The only tolerable legal regime is therefore one that forbids intentional attacks against noncombatants to all. Unlike a neutral prohibition of killing enemy combatants, a neutral prohibition of killing enemy noncombatants would not deny a right of self-defense to the just. It might, on occasion, deny just combatants a defensive option that not only would be morally permissible (at least in the absence of the legal proscription) but would also be their best or most effective defensive option in the circumstances. In this respect, the legal prohibition of the killing of noncombatants by just and unjust combatants alike is analogous to domestic legislation that would prohibit the possession 102 J. McMahan of guns to everyone, including both criminals and those who would use a gun only for legitimate defense. The general prohibition of guns would surely on occasion impair an innocent individual’s capacity for legitimate self-defense; but it would, if effectively enforced, enhance the antecedent security of each innocent person relative to any feasible situation in which some private citizens were permitted to possess guns. Thus far I have argued that the permission granted to unjust combatants to attack and kill just combatants has no foundation in individual moral rights, and indeed is incompatible with respect for these rights. It is not an adaptation of the liability rules of ordinary morality to the conditions of war, but is instead a concession to pragmatism. Its force derives entirely from its utility. I have also argued that the exceptionless prohibition of intentional attacks on civilians or noncombatants has a similar foundation. There are occasions on which it is morally permissible (or would be in the absence of the legal prohibition) for just combatants intentionally to kill certain noncombatants  namely, those who bear a significant degree of responsibility for the wrong that provides the just cause for war. The reason for promulgating and enforcing an exceptionless prohibition of intentional attacks on civilians is again pragmatic. It derives from the necessity of avoiding the consequences that would ensue if the restricted moral permission were recognized in law. There is one more area of Walzer’s account of the just war that I will mention, which it is tempting to regard as deriving from individual moral rights but in which at least some of the principles have a conventional foundation. This is the area of the theory concerned with the treatment of prisoners. As we saw earlier, Walzer explicitly concedes that some of the elaborate rules governing what prisoners of war may and may not do, and what may and may not be done to them, are clearly ‘the work of men and women . . . adapting to the realities of war’ (2004: 46), rather than logical derivations from fundamental moral principles. Yet there is a later passage that suggests that the prohibition of the killing of prisoners has a deeper basis. Imagine a situation in which a unit of just combatants captures some prisoners while deep in enemy territory. If the prisoners are released, they will return to their base, alert their comrades to the presence of the unit, and help to track it down and attack it. If the just combatants attempt to take the prisoners with them as they flee enemy territory, the prisoners will slow them down, consume their rations, and seek to call attention to their presence, thereby endangering them in various ways. It is important in this example that the prisoners are unjust combatants, for this means that they have wrongfully created a situation in which, if they are allowed to live, they will pose a grave threat to the survival of the just combatants. In these circumstances, I believe that it could be permissible for the just combatants to kill them in self-defense  or, perhaps, in self-preservation, if the direct threat were from unjust combatants other than the prisoners themselves. That is, I believe that in these circumstances the unjust combatants lack a right not to be killed. Walzer concedes that some legal writers have recognized the permissibility of killing prisoners in such The Sources and Status of Just War Principles 103 circumstances. Thus, he quotes Francis Lieber’s military code for the Union Army, a seminal document in the history of the law of war, which asserts that ‘a commander is permitted to direct his troops to give no quarter . . . when his own salvation makes it impossible to cumber himself with prisoners’ (2000: 305). Walzer’s response is that ‘surely in such a case the prisoners should be disarmed and then released. Even if it is ‘‘impossible’’ to take them along, it is not impossible to set them free. There m...
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Running head: PEACE THEORY AND JUST WAR THEORY

Peace theory and just war theory
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PEACE THEORY AND JUST WAR THEORY

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Peace theory
Peace theory is based on the premise that peace will be maintained between
democratic and liberal nations, and this peace is motivated by the ability to accept the opinion
of a voting public and governing doctrines are not to be viewed as hostile. Therefore, this
theory promotes peace on the basis of democracy. As per peace theory, nations with a similar
system of government are more likely to be at peace, as democracies and non-democracies
have in the past been at odds. Democracies are therefore less likely to wage war against each
other.
Just war
Just war theory was developed within religious basis, where war is accepted and
justified under certain conditions. The theory is based on the ‘jus as bellum’ principle of
using military forces in justifiable circumstances, the ‘jus in bello’ condition wit...


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