Longish, wonkish essay after the jump.
Just war theory, from Augustine onwards, was originally about the morality of going to war. There was separate discussion about rules within warfare, going back to the code of chivalry (and an earlier discussion within Islam). The famous dichotomy (ius ad bellum, ius in bello) was a surprisingly late formula, first used by Kant and in German: Recht zum Kriege/Recht im Krieg. The eighteenth and nineteenth centuries rather lost interest in the former, and the Geneva conventions were formulated in a positivist acceptance of war as a fact of life. They did incorporate bits of just war theory, notably distinction and proportionality. With attempts by the League of Nations and the United Nations, there emerged some fragments of positive international law on the ad bellum front.
It will save space if we bring in some notation: JAB/JIB for ius ad bellum and ius in bello (h/t David Luban); and, my additions, MAB/MIB for their ethical counterparts, moralia ad bellum etc. Walzer writes on MAB/MIB. In principle any substantive law is subject to ethical critique. But there’s no analogy between AB and IB. JAB is thin: barely more than the UN Charter’s prohibition of aggressive (and, most think, preventive) war, the self-defence and pre-emption exception, and disputes over humanitarian intervention. It leaves out a lot of important things on which MAB is our only guide, like proportionality, last resort and the chance of success.
In contrast, JIB is extremely rich: it has become the elaborate structure of international humanitarian law (IHL) and its implementations within national codes like the US Uniform Code of Military Justice. In the form of the Geneva Conventions, IHL has been negotiated by generations of hard-bitten government lawyers and even more hard-bitten generals. It has been monitored in the field through dozens of wars by the ICRC, an odd but admirable club of sober and tight-lipped Swiss altruists. The national military codes that implement JIB are taught to millions of squaddies in capsule form, in detail to hundreds of thousands of officers, and make the life’s work of military lawyers. It’s not surprising that the JAGS provided the bravest and most sustained internal resistance to the Bush/Cheney torture policies. It’s possible that just war theory and other philosophical positions like utilitarianism have something useful to add about JIB, but don’t bet on it.
So Walzer’s standing is thus quite different in the two areas: ad bellum he’s an authority; in bello, a better-informed-than-average rubbernecker. It’s particularly sad then that his comments ad bellum Gazae are so jejune.
First, he only considers proportionality, briefly mentions alternate means – but not the default course of doing nothing -, and ignores definite aim and chances of success, all part of the standard just war toolkit. Since he has literally written the book on this, the omissions lend support to Davies’ imputation of bad faith.
Second, what he has to say about proportionality is weird. He conflates proportionality AB and IB, an elementary mistake – or, you have to think, sophistical manoeuvre: and uses the difficulties of applying it IB to discredit its application AB. He simply postulates that
Proportionality implies a measure, and the measure here is the value of the end-in-view
without admitting the ubiquity of goal drift. To justify the human cost of wars, statesmen and revolutionaries routinely up the ante on goals: eliminating WMD in Iraq became restoring democracy, shutting down the rocket attacks from Gaza becomes crushing Hamas. Bin Laden’s goal is restoring a pure Muslim caliphate, Hitler’s was saving the human race from destruction at the hands of a conspiracy of Jewish-Bolshevik subhumans. For the crazies or the sane, the same mechanism of self-justification is at work.
No: proportionality AB has to be in relation to some explicit and stable ex-ante war goal, subject to the other tests of MAB. All the just war ducks have to be in a row and in Gaza they are not: Anthony Cordesman argues indeed that Israel has no strategic goal at all.
Walzer’s comments in bello are less tendentious but limited. He does resort to the tired rhetorical trope of alleging that the question of IDF tactics vis-à-vis civilian risks hasn’t been asked in the media. You would have thought that Google had finished this ploy: the string “IDF tactics Gaza civilians risks” returned 46,000 hits, with Haaretz – not The Guardian – twice on the first page.
So briefly on his two IB questions:
Who is responsible for putting civilians in the line of fire?
Obviously, Hamas in part: only in part, since unlike South Lebanon, Gaza is very densely populated and built-up and it would be impracticable for Hamas to confine defensive fighting to unpopulated areas. Further, some Israeli operations appear to target Hamas as a political organization and government, necessarily intermingled with civilians. In these cases the IDF is primarily responsible.
Is the attacking army acting in concrete ways to minimize the risks they impose on civilians?
If the IDF allowed journalists into Gaza, we’d be better able to judge this. From the ratio of known Palestinian civilian casualties (>350 women and children) to Israeli military ones (10) – data from today’s Wikipedia – and the reliance on hands-off bombing rather than close-up small arms, from here it certainly doesn’t look like it. Walzer adds: “Any answer would have to take account of the tactical choices of Hamas”. Sure, see question 1, but so what?
This doesn’t get us very far. A different pair of questions:
Are the parties complying with JIB?
Fairly clearly, no – I follow Luban here. Neither party seem to be taking military risks to protect civilians. Many Israeli actions seem disproportionate in the specific sense of Article 51 of Additional Protocol I : “excessive in relation to the concrete and direct military advantage anticipated” – nothing, note, about ultimate war aims. Article 51 is.recognized by Israel (and the USA) as declaratory of customary JIB though neither have ratified the text for other reasons. (Source: Professor David Luban of Georgetown University ). The JIB assessment of the conduct of each side is entirely independent of the other. IHL does not depend on reciprocity, any more than it does on good intentions.
What additional considerations enter into a judgement of the MIB of the war?
The issues here pull in different directions.
We can dismiss Walzer’s suggestion that MIB proportionality on collateral civilian casualties should be in relation to war aims, not immediate military advantage as JIB (Art 51 of AP1) requires. On his test, you can make anything OK by just ratcheting up the aims. Score 1 to Davies.
Second: does right intention skew the MIB assessment of means, as Jonathan Zasloff would have it? As a proposal to improve JIB, this would plainly be nonsense: almost all serious combatants think they are fighting in a just cause. (The German officer corps after 1943 is a very rare exception.) As an alternative assessment frame to JIB, it suffers from the problem of identifying the actual end. I doubt if individual people – including absolute monarchs – always have unambiguous intentions for their actions. Oprichnina, anyone? In pluralist democratic states, the fiction of state personality wears thin: any policy action whatever results from a coalition of actors with different motives. What is Israel’s real aim in Gaza: to stop the rockets? crush Hamas? cow the Gazans into fearful pacifism? revenge? to get a blow in before Obama’s inauguration? or to secure the reelection of Labour and Kadima? It’s been said that the Falklands War was in part a struggle between the Royal Navy and the British Treasury. MIB (and MAB for that matter) based on ends will give as many results as you have ends in play. And at some level of generality, everybody has right intentions: justice for the Palestinians, security for Israel. You have to sort out these rather hard problems before you can use MIB to second-guess JIB. I don’t think it can be done.
Next: MIB doesn’t operate as a simple court of appeal (or in Walzer’s case, a Pardons Office) from JIB. There is surely a moral duty to carry out legal obligations you have accepted, whether or not these make much sense by themselves. It’s not an absolute duty; law may conflict with a higher duty, or impose an absurdly disproportionate burden, but it counts for a lot: even more when the legal obligations do have a lot of moral baggage. Since Israel, a civilised state, has accepted a set of JIB constraints and Hamas, a revolutionary religious militia, has not – though (MIB) it should have – this moral burden bears asymmetrically on Israel. There really is a double standard here.
[Update, responding to Jonathan Zasloff: The moral and political capital sunk to make JIB a working body of law – including all the soldiers who died rather than violate it – and JIB’s huge utilitarian benefits looking forward also create a massive presumption for third parties to support it. It’s really not a good idea for anybody to casually weaken the body of JIB through sophistry (Walzer) or far-fetched and counterfactual analogies (Zasloff). I’m for Geneva, right or wrong.]
The last issue is reciprocity. As we noted already, JIB is not reciprocal in execution, for very good reason. It is an extraordinarily demanding kind of law. Soldiers are required to respect it in the unbelievably stressful environment of modern high-intensity warfare, at the risk and sometimes the cost of their lives; they are expected to disobey orders that violate it egregiously, risking their careers and breaking the bedrock military values of discipline and solidarity. The drafters of the Geneva Conventions have realized that only a simple set of do’s and don’ts has any chance at all of constraining battlefield violence. They have also known that even this would often fail: so making compliance conditional on the behaviour of the adversary would in practice rapidly lead to the comprehensive breakdown of any constraints. All wars would be like the WWII Eastern Front, and all POW camps like GITMO or Mauthausen.
What about MIB here? It confirms the JIB rule as generally correct for the reasons just given. However, reciprocity surely counts as a morally mitigating factor for violations of JIB by soldiers on the battlefield. On the WWII Western Front, the chances of an isolated German soldier surrendering alive were about 50-50. Many such were wrongfully killed by Allied soldiers. But it’s hard not to find the latter considerably less culpable for firing on an SS than a Wehrmacht uniform. This mitigation excuse fades as we move up to command level. Cold-blooded reprisals on civilians like those of the SS at Oradour were culpable in a different way, war crimes in the strong sense. Commanders and political leaders on both sides in Gaza know perfectly well that JIB is not reciprocal and are culpable for acting as if it were, dragging each other down into Goya’s mire.
JIB, and IHL in particular, is imperfect. The US and Israeli refusal to ratify Additional Protocol I is a symptom of the deep problem of incorporating irregular forces into a code originally created for regular armies. Leave them out, and armies can treat guerrillas as criminals : this was the Reichswehr’s defence of its reprisals against Belgian civilians in 1914 (exaggerated by Northcliffe, but bad enough) and the Wehrmacht’s hostage-shooting in France after 1940. Put them in – remember that after 1945 irregular combatants were generally admired – and the problem arises of reciprocity at the command level. Only states are parties to conventions, so against irregulars any JIB rules are a one-sided self-denying ordinance. The irregulars are not parties and there’s no way of bringing them in as legal partners. They do have some incentives to comply with JIB: it will make peace negotiations easier, and since JIB often fails even in the armies of countries that accept it, the risk of reprisals for violations of JIB standards is significant. But these incentives are very weak compared to those acting on regular states and their armed forces. US torturers are not sure of immunity yet.
Irregulars raise another difficulty – irrelevant to the Gaza conflict, since Israel treats Hamas like the government of a hostile state not a criminal band of rebels. IHL is old-fashioned international treaty law, and deals with international armed conflicts. For political reasons AP I put in conflicts with “national liberation movements” but not those with other armed irregulars. The old ANC or PLO are in, but Castro, Kagame, and Martin Guinness are out. The distinctions here are subjective. What about the Tamil Tigers and ETA? At all events, philosophers should plainly think about the whole category and write some MIB.
It’s worth spending some time improving JIB, perhaps even redrafting some of it. The objective, however, is not to bring war within a tidy, unambiguous, universally accepted code: it’s to prevent wars in the first place.