Wednesday, September 28, 2011

Davis Brown - The Just War Tradition...Special Issue of the Journal of Military Ethics

The Just War Tradition and the Continuing Challenges to World Public Order, A Special Issue of the Journal of Military Ethics
Launching Speech Given on the Occasion of the Tenth Anniversaries of 9/11 and of JME

Davis Brown

Davis Brown at Norwegian Defense College

Davis Brown, Ph.D. (ABD), J.D., LL.M., is the founder and director of the Just War Theory Project with the Academic Council on the United Nations System (ACUNS) and the author of The Sword, the Cross, and the Eagle:The American Christian Just War Tradition.

It was a Tuesday morning; warm and clear. After an unremarkable commute I stopped by the Pentagon to run some errands, then I continued to my office a quarter mile away. I was to spend the morning editing a policy brief by the Academic Council on the United Nations System on humanitarian intervention; and I had to get ready for a phone call to the Executive Director of ACUNS. We were preparing this document to present in New York in two months time, and I was going to be at that seminar in person. I had already resolved to finally have dinner at Windows On The World (the restaurant at the top of the World Trade Center), something I had long wanted to do.

Then a plane hit the North Tower, and I and my co-workers rushed to a television to see the news coverage. At first we all thought it was a freak accident. Then the room fell silent as we watched the chilling image of a second plane hitting the South Tower, and we all knew then that this was no accident.

In the meantime, life goes on, so I made my phone call on schedule. We made some small talk about the attack (as if anything about it could be regarded as “small”), then it was back to the mundane world of word-smithing and comma placement. In the middle of the call, I was jolted by a loud whoosh of a plane flying low and fast right right above us. Two seconds later, a thud, in the distance, but the explosion was big enough to shake the building.

I quickly ended my phone call and everyone went outside. A plume of black smoke rose in the direction of the Potomac River. Then someone exclaimed, “It’s the Pentagon!” and despite our disbelief at the events that were unfolding that morning, we all knew he was right. A little while later, we watched in horror as one of the Twin Towers collapsed, then the other. By then our shock had turned into the grim realization that we were probably going to war—never a pleasant thought when you’re in the military.

Two months later, I went to New York for that seminar. It was my first time back in seven years. And it wasn’t the same New York I had once lived in. The city was eerily subdued, the mood like that of a wounded lion. The site of the World Trade Center, once a place of rough-and-tumble commerce, now sacred ground. In sum, the events of ten years ago this Sunday were life-altering to the American national psyche, and I daresay to the international psyche as well.

On September 10th, the academy (of international law, at least) was still fighting the Kosovo War, which recently had exposed the tension between what uses of force are legal, and what are moral or even legitimate. But the attention span of the academy can be short, and after 9/11 nobody wanted to talk about humanitarian intervention anymore. In a way, this was understandable, since everybody thought at the time that 9/11 would change everything.

But as it turns out, 9/11 didn’t change everything. It did not pose any significant challenges to jus ad bellum or just war theory, at least not in and of itself. What 9/11 did do, was to set into motion a chain of events that a year and a half later did challenge jus ad bellum and just war theory. I speak of the doctrine of preemption, which was articulated first as a measure to prevent further catastrophic terrorist attacks, and later invoked as a justification for invading Iraq. And not only is the United States still fighting the Iraq War, but so is the academy.

Preemption is a problem for us, not necessarily because it’s the global superpower that has invoked it, but because of the dilemma for world public order that it poses. Preemptive self-defense would legitimize an attack on another state that has no immediate plans to attack it; it may have long-term plans to do so but may lack the capability or resolve to attack in the present. To allow such an exception to article 2(4) is to open Pandora’s Box. And yet, in an environment in which we struggle to keep chemical, biological, and God forbid nuclear weapons out of the wrong hands, the consequence of not allowing a preemptive attack may be to force a state to suffer a crippling first blow. Prohibiting anticipatory self-defense thus plays into the hands of the state with the original hostile animus—the state that is the real aggressor.

Meanwhile, the problem of humanitarian intervention, which everyone stopped talking about after 9/11, has not gone away. Now, it’s clear that the drafters of the Charter envisioned a world in which aggression would be de-legitimized, hopefully out of existence. But surely the drafters did not intend to provide a shield for such well-meaning public servants as Idi Amin, Pol Pot, Saddam Hussein. To legitimize humanitarian intervention is to invite its abuse as a cover for more nefarious motives, but vicious regimes like the ones I just mentioned cannot, must not, be allowed to remain unaccountable for their atrocities, much less remain in power.

These are the two dilemmas that continue to vex scholars and policymakers: anticipatory (or preemptive) self-defense, and humanitarian intervention. How to resolve these dilemmas has been the work of the Just War Theory Project, which is a loose network of scholars and professionals dedicated to exploring the role of military force in maintaining world public order. I and the other contributors to this Special Issue submit that the framework of the just war tradition is well suited to help us find our way out of these dilemmas.

In designing the Special Issue, we sought papers that we believed would advance our understanding of each individual just-war criterion. In the article on Proper Authority, I argue for returning to the original, state-centric understanding of the concept. For various reasons laid out in my paper, I argue against the trend of construing Proper Authority as something multilateral or judicial.

We have two articles on Just Cause, one for anticipatory self-defense and one for humanitarian intervention. Joseph Boyle takes up the anticipatory defense side, and his approach is to distinguish between defense, which he finds a permissible cause to use force, and punishment, which he does not. Henrik Friberg-Fernros takes up the humanitarian intervention side. Now the question of whether humanitarian intervention is legitimate or not has been done to death, and it seemed pointless to add yet another article on that question, when the battle lines within academia and praxis are pretty much drawn at this point. Friberg-Fernros’s article is different: Rather than trying to argue that humanitarian intervention is a just cause, Friberg-Fernros starts with the assumption that it is. His focus, then, is to discover whether humanitarian intervention is a right to act or a duty to act. In doing so, he illustrates the tension between just war theory, which is permissive, and the Responsibility to Protect, which is more or less obligatory.

We also have two articles on Right Intent. In the first one, Darrell Cole argues that Right Intent is best treated not as an inward frame of mind, but as a communal, public act that has observable manifestations. From those manifestations we can deduce the real intent of the actor. Cole then applies that approach to the Iraq War among others. In the second piece, Fernando Teson draws the distinction between intention and motive, and shows how the two are often confused, and frankly, often misused.

We tend to speak of the three just war criteria of Thomas Aquinas, but actually there is a fourth one, which is embedded in the second. Not only must the attacked state deserve to be attacked on account of some fault, but also the attacked state must deserve to be attacked on account of some fault. This is the criterion of Proportionality of Cause, and it’s probably the most difficult one to apply. In my article on Proportionality, I suggest using a tort-based approach, in which the use of force is judged as an appropriate (or inappropriate) remediation to an injury that has been caused by another state that has breached its obligations.

We also have a paper on the under-studied criterion Reasonable Prospect of Success. Frances Harbour proposes that what is to judged as “reasonable” should be the “probability” of success, and not merely the “hope” or “chance” of it. She also calls for an expanded understanding of what “success” is; she argues that there is moral value in resisting a supreme injustice, even when the unjust actor can’t be overcome. That, in her opinion, is a “success,” even if it isn’t a material one.

And finally, Walter Dorn presents his Just War Index, in which the use of force is not evaluated as either “just” or “unjust,” but rather on a sliding scale in which the use of force could be supremely just (or unjust), or moderately, or slightly. In this exercise, Dorn also illustrates the limitations of just war theory. What just war theory can’t do is to provide clear, definitive answers to the question “is this or that war just or unjust”. Why? Because at the end of the day, there is still some subjectivity to evaluating each criterion. For example, two of our contributors find the Iraq War to be largely just; I’m sure some other contributors disagree with that. One of our contributors finds the US war effort in Afghanistan to be more unjust than just. In this case, I know some others disagree. On the other hand, what just war theory can do, first, is to help us find the right questions—questions of authority, cause, intent, proportionality and so on. Second, just war theory can tell us which uses of force are comparatively more or less just than which other uses of force, and why. For example, if our contributors had to rank in order of more just to less just: Iraq’s invasion of Kuwait, the US invasion of Afghanistan, and the US invasion of Iraq, I think all of them would agree on the same ranking. In sum, our contributors believe that just war theory can provide insight into judging the legitimacy of using force, in a way that the modern, restrictive form of jus ad bellum in international law cannot do, and in a way that most approaches to international relations don’t even address.

That, in a nutshell, is our Special Issue, which should be available in print in a few days. Thank you, Henrik, for your role in bringing these papers to the light of day, and for allowing me to address this august and somewhat intimidating audience.