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.       

More on Crimea

From a post at a new blog (found courtesy of Reddit):

Much like in 2008, Putin has fashioned the narrative underlying his expansionist maneuver into Crimea on the basis of ethnicity, rather than territory. The reason why China objected to South Ossetian and Abkhazian independence then, and is objecting to Crimean independence now, is...  because it sets the wrong kind of precedent. Rather than paving the way for a Chinese incursion into Taiwan, a territory to which China argues to have a historical claim, it underlines and legitimates the political cleavages between ethnicities. This runs directly counter to the CCP’s domestic policy, which has historically been to nip all claims to independence made by ethnic minorities (of which over 55 exist in China) firmly in the bud....

And speaking of Putin's claim to be protecting ethnic Russians from discrimination/oppression, Charles King's March 1 op-ed in the NYT ended with this:

...Mr. Putin’s reserving the right to protect the “Russian-speaking population” of Ukraine is an affront to the basis of international order. Not even the alleged ultranationalists who Mr. Putin claims now control the Ukrainian government have tried to export their uprising to Ukrainian speakers in Poland, Moldova, or Romania, or indeed Russia itself. It is Mr. Putin who has made ethnic nationalism a defining element of foreign policy.

Russia was in fact a pioneer of the idea that, in the jargon of international affairs, is now called R2P: the responsibility to protect. Under Czar Nicholas I, Russia asserted its right to guarantee the lives and fortunes of Orthodox Christians inside the territory of its chief strategic rival, the Ottoman Empire. In 1853 Russia launched a preemptive attack on the Ottomans, sending its fleet out of Sevastopol harbor to sink Ottoman ships across the Black Sea. Britain, France and other allies stepped in to respond to the unprovoked attack. The result was called the Crimean War, a conflict that, as every Russian schoolchild knows, Russia lost.

The future of Ukraine is now no longer about Kiev’s Independence Square, democracy in Ukraine or European integration. It is about how to preserve a vision of Europe — and, indeed, of the world — where countries give up the idea that people who speak a language we understand are the only ones worth protecting.

King's statement that Russia "pioneered" R2P by "guaranteeing the lives of Orthodox Christians" in the Ottoman Empire is extremely misleading. Whatever one thinks of R2P, one of its basic features is that it is not limited to the protection of those who share ethnicity, religion or language with the intervenors.

Walzer, Mill, Libya, and the value of state boundaries

In a blog post written last March (which I linked at the time but did not comment on at any length), Michael Walzer rehearsed J.S. Mill's argument about non-intervention, an argument Walzer had also summarized in his Just and Unjust Wars (Basic Books, 1977), pp. 87-91. With the debate about the Libyan intervention, sovereignty, and R2P continuing to simmer (in the IR blogosphere and elsewhere), and with Gaddafi still at large and one or two cities in Libya still resisting the rebels (or revolutionaries, or anti-Gaddafi forces, whichever label you like), it may be worth going back to Walzer's post. The question whether the U.S. and/or NATO should intervene in Libya is now of course moot, but the broader issues will likely recur (and have already recurred in a way in the case, e.g., of Syria).

Mill's position was basically that oppressed peoples had to struggle for their own freedom without outside help; if they failed to secure freedom that proved they didn't deserve it, weren't "fit" enough for it. In his blog post of last March, Walzer wrote that if the Libyan rebels were on the verge of defeat he would not be willing to go all the way with Mill, i.e. to declare the rebels "unfit" for liberty and leave them to their fate after a Gaddafi victory. But Walzer said that when intervention became necessary -- and he wasn't sure exactly when that point of "necessity" would occur -- it should be done by neighbors, by the Egyptian and Tunisian armies, rather than by the U.S. and NATO.

Even though he was not willing to go all the way with Mill in the Libyan case, Walzer clearly has a lot of sympathy for the view that oppressed peoples should do their own struggling, with outsiders intervening only in cases of real "necessity" (however defined). In Just and Unjust Wars [JUW] (pp. 90-91), he wrote: "We need to establish a kind of a priori respect for state boundaries; they are, as I have argued before, the only boundaries communities ever have. And that is why intervention is always justified as if it were an exception to a general rule, made necessary by the urgency or extremity of a particular case."

It is perhaps unfair to focus on something Walzer wrote 30-plus years ago, ignoring his more recent writing on these issues; still, the sentence just quoted shows a weakness, in my view, of his approach in JUW, namely the attachment of too much moral value to state boundaries. He recognized the (in some cases) "arbitrary and accidental character of state boundaries... [and] the ambiguous relation of the political community or communities within those boundaries to the government that defends them" (JUW, p. 89), but his basic position was that boundaries enclose communities which should be left to work out their political fates for themselves. There is definitely something to be said for this view but it is also necessary to acknowledge that the ways in which state boundaries are routinely penetrated or breached by outsiders, whether they be governments, corporations or NGOs, make the issue somewhat more complicated [note: some, e.g. Robert Jackson, would deny this]. Moreover, it is not the case that state boundaries are "the only boundaries communities ever have." Students of international relations have spilled much ink writing about all sorts of boundaries (ethnic, zonal, tribal, etc.). State boundaries retain a special place in international law and practice, but they are not the only boundaries communities have.

So where does this leave matters? Intervention should still be an exception to a general rule, and R2P, at least as I understand it, does not alter that. But in a world that some see as being full of cross-boundary 'networks' and transnational communities, the principle of non-intervention, assuming one wants to keep it, perhaps needs an updated justification, one that does not rely quite so heavily on a picture of self-enclosed national communities, each working out its own political destiny in isolation from the world outside. I'm not sure exactly what that updated justification of non-intervention might look like; perhaps political theorists and IR types have already produced one and with a little research I could find it. But laziness being the blogger's prerogative, I'm not going to bother searching, at least not now.

Does the 'sovereignty debate' matter?

Update: I've now read Slaughter's latest entry in the debate, and at least on a theoretical level I tend to agree with the "walk and chew gum" formula: sovereignty as it's coming to be understood implies both a state's monopoly on the legitimate use of force within its borders (at least in the normal run of things) and a duty to act in non-exterminatory ways toward its citizens. As Slaughter herself appears to acknowledge, this hardly resolves all the practical problems, but as a general formula it seems unobjectionable.
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I would be lying if I'd said I have read with extremely close attention the recent blog posts by A.-M. Slaughter (here), J. Foust (here), D.P. Trombly (here), and others about the implications of the Libya intervention for the notion of state sovereignty. But the gist is that Slaughter wrote a post at The Atlantic saying that R2P and its application in Libya means that the "nature of sovereignty has fundamentally changed," Foust and Trombly took exception, and they were off.

Guess what? None of them is completely right. (You knew I was going to say that.) I think Slaughter is probably exaggerating when she implies that the notion of sovereignty as it is traditionally understood by international lawyers is dead -- to the extent she has implied that -- and Foust and Trombly are wrong to suggest that the 19th and 20th-century (note: their periodization) concept of sovereignty is as much about preventing civil war as it is about preventing external intervention in a state's 'internal affairs'. The modern idea of state sovereignty as enshrined for instance in Art. 2(7) of the UN Charter has more to do with the prerogatives of governments (states) than anything else. R2P has widened and formalized a traditional exception rather than completely upended the received notion of sovereignty, or so I would be inclined to argue.

Anyway, does the whole debate matter? I'm not sure it does. It gives IR types another subject to argue about, but whether it has any real importance beyond that is questionable. Governments will continue to make decisions about intervention for a variety of reasons, but whether any policy-makers will first sit down and reach a position on whether sovereignty has 'fundamentally changed' is, I think, doubtful. But this is, admittedly, pure speculation.

Added on 9/5: See also J. Ulfelder here.

Will R2P become a 'European Monroe Doctrine'?

DPTrombly has a post suggesting that, inasmuch as European states will be willing and able to enforce the Responsibility to Protect only within a defined geographic area, R2P will come to resemble a European Monroe Doctrine, with Europe attempting to ensure certain norms of behavior by states within its sphere of influence, i.e., "Sahara, Sahel, Mediterranean rim, and Balkans."

Does the analogy work? I'm not convinced. The U.S., as DPT indicates, relied on Britain's naval power to enforce the Monroe Doctrine for most of the 19th century. And not too long after the U.S. became capable of using its own navy to enforce the Monroe Doctrine, Theodore Roosevelt proclaimed in 1904 his famous 'corollary' to the Doctrine which "declared that misgovernment (or 'chronic wrongdoing')" by Latin American governments would be grounds for U.S. armed intervention (Penguin Dictionary of International Relations, 1998, p.337). Applying this principle via his paternalistic pronouncement that "we must teach the Latin Americans to select the right man," Woodrow Wilson sent the Marines into Mexico in 1914 (ibid., p.573).

By contrast, R2P is less paternalistic than the Monroe Doctrine as applied by TR and Woodrow Wilson. R2P's application is limited to four circumstances: genocide, war crimes, ethnic cleansing, and crimes against humanity (see M.W. Doyle, "International Ethics and the Responsibility to Protect," Int'l Studies Review 13:1, March 2011). It is not a question of teaching the inhabitants of country X "to select the right man [or woman]." A leader can drive his or her country into the ground and can be as corrupt as all get-out, but as long as he or she does not engage (or very credibly, by his or her own pronouncement, appear to be right on the verge of engaging) in genocide, war crimes, ethnic cleansing or crimes against humanity -- all of which, with the possible exception of ethnic cleansing, have accepted definitions in international law -- the question of R2P does not even arise.

Of course, application of R2P will be selective and considerations of the sort mentioned by DPT will influence the 'selections'. But that does not mean that R2P will be used to legitimize interventions of the kind that Wilson ordered in Mexico. Thus "European Monroe Doctrine" may not be the right description, inasmuch as it may conjure up a history of paternalistic, imperialistic interventions that I think few have any interest in defending or repeating.

Orford on Libya

Anne Orford of Univ. of Melbourne, author of a recent book on R2P, had a post at the London Review of Books blog (link to it here); see my brief (and admittedly rather too flippant) comment on it here.

R2P and Libya: application or misapplication?

This post at the blog connected with the journal The American Interest [hat tip: DPT] argues that 'the responsibility to protect' (R2P) is a "nebulous norm". One way norms get less nebulous, however, is by being invoked and debated, as Badescu and Weiss suggest in a piece in last November's International Studies Perspectives (abstract here).

According to them, R2P should not be seen as synonymous with humanitarian intervention by military means (too narrow), nor as synonymous with human security generally (too broad). Rather, R2P is "about taking timely preventive action, about identifying situations that are capable of deteriorating into mass atrocities and bringing to bear diplomatic, legal, economic, and military pressure" (p. 367). Given the speed with which the Libyan situation unfolded, an argument can be made that there was not time to do these things in sequence -- i.e., first the diplomatic and economic, then the military measures -- but that, rather, an effective response required a deployment of these different means pretty much all at once. That, at any rate, seems to me to be the most plausible argument that the military intervention and accompanying actions (e.g., freezing of assets) do represent a legitimate application of R2P rather than a misapplication. It will be interesting to see how Pres. Obama frames the issue in his address tonight.

P.s. After listening to the speech, I realized that my reference (above) to the measures being taken "pretty much all at once" is a bit of an overstatement; the asset freeze etc. did precede the military action -- but not by a prolonged period. As Obama noted, the entire sequence of events from the start of the Libyan protests to the intervention took only 31 days.