The just war tradition and sovereignty (book review)

James Turner Johnson, Sovereignty: Moral and Historical Perspectives. Georgetown University Press, 2014. 181 pp. (including bibliography and index).

 
James Turner Johnson is an expert on 'the just war tradition,' and in Sovereignty he considers the co-evolution of ideas about sovereignty and just war.  Indeed the book probably should have been called something like The Just War Tradition and Sovereignty, since that would have more accurately indicated its contents than the title it actually carries.
 
Johnson's starting point is a conception of sovereignty that predates the modern state, one that defined sovereignty "in terms of the moral responsibility of the ruler for the common good of the people governed" (p.2).  Johnson is rather vague about what this meant in practice, but at a minimum a ruler's "moral responsibility" entailed meting out just punishments and protecting the political community from external (and internal) threats.  The 'sovereign', a ruler "without temporal superior," was sometimes required to wage war for these purposes.  This particular notion of sovereignty thus developed in tandem with what Part 1 of the book calls the 'classic just war tradition.'  One probably could also make a case, though Johnson does not do so, that this somewhat paternalistic view of authority traces back, at least in the West, to Plato's description of the guardians in the Republic. 

In any event, one of the book's main arguments is that this older view of sovereignty, in its concern with the quality of rule and the sovereign's responsibility for the common good, has a moral dimension that the modern view, with its emphasis on territorial integrity and non-intervention, lacks.  Yet some writers, such as Robert Jackson in The Global Covenant and Brad R. Roth in Sovereign Equality and Moral Disagreement, have argued that the principles of territorial inviolability and non-intervention have their own moral foundation, inasmuch as they allow, at least in theory, each 'political community' to shape its own destiny with a minimum of external meddling.  Roth's position is that "...international law's highest and best uses remain those given pride of place in the United Nations Charter: the establishment of a platform for peaceful accommodation among states representing a diversity of interests and values, and the protection of weak political communities from overbearing projections of power by strong foreign states" (Sovereign Equality and Moral Disagreement, p.5).  By contrast, Johnson is less concerned with "overbearing projections of power" from outside and more concerned that existing sovereignty norms often serve to shield bad behavior by oppressive or murderous rulers.  This in turn raises questions about, among other things, the moral status of state boundaries and state autonomy, questions that Johnson tends to answer only indirectly. 

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Although there is a nod in the first chapter in the direction of Augustine and "the Augustinian heritage," the book's historical discussion really gets underway with Aquinas, who listed "three requirements for a war to be just: the authority of a prince [auctoritas principis], a just cause, and a right intention" (pp.16-17).  The prince's responsibility was to uphold "the moral order itself" and thereby "the divine will," by punishing injustices and those who had committed them (pp.19, 20).  Aquinas distinguished between rulers who acted in the interest of the political community and 'tyrants' who did not; however, he was not consistent on "how to respond to tyranny" (p.41).   

Aquinas's main concern was jus ad bellum, i.e. the grounds for starting a war, rather than what came to be called jus in bello, i.e. the conduct of a war once begun.  The latter considerations entered the tradition via the writing of Honoré Bonet and Christine de Pisan during the Hundred Years War (1337-1453) (p.43).  These writers "joined the chivalric 'law of arms'" to Aquinas's jus ad bellum requirements, and the "combined conception was then passed on into the debates over warfare in the early modern period" (p.43).  Thus by the fifteenth century, if not before, 'just war theory' already encompassed two basic questions: (1) Under what circumstances is it just to begin a war? and (2) What constitutes just conduct on the battlefield (and in the treatment of noncombatants, prisoners, etc.)?

After discussing Aquinas and several of Aquinas's Neo-Scholastic successors, Johnson moves on to Luther and some other Reformation thinkers, and then to Grotius.  Grotius (drawing on some previous writers such as Vitoria) shifted "the locus of authority to wage just war...from the prince to the commonwealth," with the prince now seen as the polity's agent or representative (p.82).  Grotius also put more emphasis on defense, especially defense of the polity's territory, as a justification for war (p.84).  The political community's right to defend itself is now seen as derivative of the individual right to self-defense, and the authority to act in the community's defense is delegated from its members to the ruler.  

Johnson sees the Grotian emphasis on self-defense as a narrowing of the earlier conception of just war and sovereignty.  Here Johnson takes the traditional view of the Peace of Westphalia, i.e., he regards it as having laid the ground for the close connection between sovereignty and territory that has characterized the modern state system.  However, this view of the Peace of Westphalia has been quite persuasively criticized in recent years.  Older, 'feudal' notions of territoriality and authority clearly persist in the Westphalian treaties; Johnson neither acknowledges this nor quotes any articles of the treaties.  He does say that the shift in focus from the ruler-as-independent-actor to the ruler-as-the-polity's-agent resulted from reading the Peace of Westphalia through a Grotian lens (p.93), but that's a different point.  There's nothing wrong with accepting the dominant linguistic conventions and retaining the adjective "Westphalian" to refer to the current sovereignty regime (or key aspects of it), provided one notes -- as Johnson fails to do -- that its link to the actual provisions of the Peace of Westphalia is rather tenuous, to say the least.       

In the book's second part Johnson discusses issues of contemporary resonance, namely Islamic views of just war (ch. 6) and 'the responsibility to protect' (ch. 7), taking a broad view of the latter.  He is, however, unduly critical of the UN (p.160).  I'm not going to summarize these chapters in any detail here (so readers who are interested in them will have to consult the book).

The brevity of this book is welcome but it comes at a cost: Johnson does not engage with most of the secondary literature on the writers he discusses.  A fairly standard work like Richard Tuck's The Rights of War and Peace is not in the bibliography; nor is Edward Keene's Beyond the Anarchical Society, which connects Grotius to colonialism.  (Nor, with a couple of exceptions, does Johnson reference recent work on sovereignty and territoriality, though it's admittedly somewhat more removed from his main concerns.)  Still, Johnson's core chapters do provide an overview of some of the main lines of thought on just war and sovereignty in the Western tradition.  Rather than adopting the neutral tone of a textbook or survey, Johnson makes a definite argument, and one that might be questioned on certain points; this book is therefore probably best read in conjunction with other treatments of the same general ground that take a different perspective.       

"Intent" does not matter here

Based on the circumstances as reported here, the criticism of the IDF missile firing that killed ten people near a UN school is justified. Targeting three people on a motorcycle riding by a compound where civilians are lining up to buy food and other items amounts to an attack on civilians; the missile, according to the linked article, "hit the motorcycle" and then "crashed into the road," sending shrapnel flying "in every direction." The fact that the three people riding the motorcycle were the intended targets (and were apparently killed along with the others) does not matter, under standard notions of proportionality. So the UN Sec-Gen's statement ("a moral outrage and a criminal act") is justified.

(Note: Post edited slightly after initial posting.)

Update: Hank in comments has pointed out that the WaPo article, standing alone, does not provide enough info to determine whether this was a legal violation, because for that judgment one has to know what the personnel in the plane knew about the situation on the ground when they fired the missile. That point is right, although as I say in the comments it seems likely to me, as someone admittedly ignorant of jet-fighter technology, that the personnel in the plane either knew or could have informed themselves about what the situation on the ground was, i.e., that the motorcycle when they fired on it was passing a school with civilians standing outside.

'Supreme emergency' revisited

Update: Walzer gave a lecture on supreme emergency in 1988 at the U.S. Air Force Academy, reprinted in his Arguing about War (2004). 

A recent Crooked Timber thread, attached to this post, got into both empirical and moral questions about Allied bombing in WW2, including the atomic bombings. In connection with this I've been urged by Anderson to read part of Richard Frank's Downfall (which I'm planning to do).

The CT discussion led me to take another look at something which, unlike Downfall, I already have on the shelf: Michael Walzer's chapter in Just and Unjust Wars on "supreme emergency," the phrase Churchill used to describe Britain's situation in 1939 (see p.251). Walzer's argument, in brief, about the bombing of German cities is that early in the war, when "Bomber Command was the only offensive weapon available to the British" (258), the real possibility of an imminent German victory constituted a supreme emergency, i.e., the sort of rare situation which "might well" (259) have justified overriding the norms/rules of war (which he calls 'the war convention') and engaging in city bombing, which was the only thing, at that point, that the bombers could do, given their crude navigational equipment and consequent lack of precision. However, despite improvements in navigation etc. and, even more importantly, the changing military situation, bombing of cities continued until almost the end of the war. "[T]he supreme emergency passed long before the British bombing reached its crescendo. The greater number by far of the German civilians killed by terror bombing were killed without moral (and probably also without military) reason," Walzer writes (261).

Walzer rejects, on moral grounds, the defense of city bombing given at the time by Arthur Harris (head of Bomber Command) and others to the effect that it would hasten the end of the war and thus, on balance, save lives. The passage in which Walzer explains his view is worth quoting (albeit in abridged form):

The argument used between 1942 and 1945 in defense of terror bombing was utilitarian in character, its emphasis not on victory itself but on the time and price of victory. The city raids, it was claimed by men such as Harris, would end the war sooner than it would otherwise end and, despite the large number of civilian casualties they inflicted, at a lower cost in human life. Assuming this claim to be true (I have already indicated that precisely opposite claims are made by some historians and strategists), it is nevertheless not sufficient to justify the bombing. It is not sufficient, I think, even if we do nothing more than calculate utilities. For such calculations need not be concerned only with the preservation of life. There is much else that we might plausibly want to preserve:...for example,...our collective abhorrence of murder.... To kill 278,966 civilians (the number is made up) in order to avoid the deaths of an unknown but probably larger number of civilians and soldiers is surely a fantastic, godlike, frightening, and horrendous act. (261-62; textual footnote omitted)

He goes on to say that though "such acts can probably be ruled out on utilitarian grounds," it is only when "the acknowledgment of rights" comes into the picture that we are compelled "to realize that the destruction of the innocent, whatever its purposes, is a kind of blasphemy against our deepest moral commitments" (262).

The amendment I'd make here would be to replace the word "innocent" with "non-combatant." Why? Because if an 'average' civilian is innocent, so an 'average' soldier, one who has not committed atrocities but simply participated in battles or worked behind the lines, may also be, in some relevant sense, innocent. What is he guilty of, other than doing what soldiers are expected to do? The appropriate distinction, it seems to me, is not between innocent and not-innocent but between non-combatant and combatant. Putting aside the word "innocent" means that one doesn't have to inquire into any particular non-combatant's actions or, in the case of Nazi Germany, awareness of genocide, which a fair number of German civilians probably had. It was their status as non-combatants, not their "innocence," which made deliberately killing them, especially after the supreme emergency no longer existed, unjustifiable.

Notes: (1) Just and Unjust Wars has gone through several editions, with new prefaces, though I believe the main body of the text hasn't changed. I'm quoting in this post from the first edition (1977).  (2) There are at least several journal articles specifically about "supreme emergency" as Walzer uses it. One is here [abstract; full text is gated].

A note on 'just war'

The recent death of Jean Bethke Elshtain has provoked a bit of discussion of 'just war theory' (at least in the occasional online comment). I should say up front that I mostly disagreed with Elshtain's views about the 'war on terror' (for more on that, see C. Robin here). But this post is not about that.

The WaPo obituary for Elshtain, linked above, refers to just war theory as holding, "in simplified form, that there is a moral imperative to go into battle against forces of unambiguous evil." I'm glad that Matt Schudel, the obit's author, included the words "in simplified form."

It probably would have been better to write that 'just war doctrine' holds that there are certain conditions under which war can be considered morally justified. The most obvious example is wars of self-defense (see Art.51 of the UN Charter), although the G.W. Bush admin's often convoluted efforts to shoehorn many of its actions under the umbrella of Art.51 contributed to the skepticism with which some might view the self-defense justification. (More specifically, the invasion of Afghanistan might have been covered by Art.51; the invasion of Iraq was not.)

The more general point I want to make is that even if one disagrees with the tradition of writing about 'the just war' (which, as Schudel's obit notes, goes back to Augustine [and possibly earlier, esp. if one looks outside the 'Western' tradition]), even if one thinks that there can never, under any circumstances, be such a thing as a just war, there is no point in parading one's ignorance, as a commenter on the WaPo obituary did when he wrote:

"Ethicist" and "just war" make for an oxymoron that proves, once again, that educated does not mean intelligent.

That is a dumb remark. "Ethicist" and "just war" do not make for an oxymoron unless you think that Augustine, Grotius, and everyone else who has ever written about just-war doctrine are people who (a) don't deserve to be taken seriously, even if you disagree with them, and (b) don't deserve to be treated as writers who confronted difficult moral questions. And anyone who believes (a) or (b) or both is foolish. It is possible to be a principled pacifist, it is possible to believe there is no such thing as a just war, without at the same time being like the commenter who wrote the sentence quoted above.