The Essence of Just War Theory: Critical Analysis

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The Essence of Just War Theory: Critical Analysis

According to the US Department of Defence, irregular warfare (IW) is defined as a violent struggle among state and non- state actors for legitimacy and influence over the relevant populations (Irregular Warfare 5). Irregular warfare is waged by irregular fighters such as terrorists or guerrillas and what constitutes irregular warfare is determined by the tactics of war deemed unjust by just war theory and thus excluded from International Humanitarian Law. However, the just reasons for going to war and the tactics deemed just by international law are extreme state centric and oriented around Western Christian moral values. What is not taken into account is the various restrictions placed on war in different cultural environments and societies where irregular fighters are prevalent and necessary (Mégret 265-317). This essay argues that irregular fighters do not inherently wage an unfair kind of war due to the fact that various cultures place different limitations on war and thus no single type of war fought by a specific group of individuals is innately just or unjust. Rather, armed conflict is justifiable by any group of fighters, utilizing any means when said conflict is waged defensively, as a last resort, and when the means utilized are of a lesser evil than those of the aggressor.

Just war theory is a doctrine that emerged from Catholic moral theology in the Middle Ages (Michael Walzer on Just War Theory). It is the most widely accepted concept of just war, as its two parts make up the laws of war as expressed in the Geneva Conventions. It is made up of two sets of criteria, one of which, Jus ad bellum (justice to war), is to be consulted prior to engaging in war and the other, Jus in bello (justice in war), is to be consulted during the war. Jus ad bellum determines whether or not starting a war is justifiable and Jus in bello determines whether a forces tactics in war are justifiable. Overall, Jus ad bellum states that war needs to be proclaimed by a legitimate authority, be in self-defence, be a last resort, and have a decent likelihood of success. Just in bello states that war shall be fought with proportional methods and thus the damage done should not exceed the good to be acquired, it must be fought with the motivating reason of love for the opposing side, fought with minimal force, and non-combatants are not to be attacked (Amjad-Ali 243). These two criteria of judgement are independent of each other and thus it is perfectly possible for a just war to be fought unjustly and for an unjust war to be fought in strict accordance with the rules (Walzer 21). This is a paradox, as it is the right to resist aggression, but such resistance is susceptible to moral and legal constraint (Walzer 21). As summed up perfectly by Michael Walzer in his text Just and Unjust Wars, the dualism of jus ad bellum and jus in bello is at the heart of all that is most problematic in the moral reality of war (Walzer 21). According to just war theory, if a state is illegally involved in a war, its forces can still wound and kill enemy fighters as long as the way they do it follows the guidelines set by International Humanitarian Law, which disallows certain non-selective modes of killing. Hypocritically, the guidelines of International Humanitarian Law are mostly considered separate from the justness of the war itself. Why should declaring war for an unjust cause be excused by using approved methods of warfare and how can there be any major differentiation when it comes to killing? Surely if a war is unjust then any killings during it are unjust, regardless of whether or not they are deemed legitimate by international law. Furthermore, how is it decided that certain methods of killing in war are considered better than others since some are acceptable and others are forbidden (Kutz 157-8)? These methods of warfare and reasons for declaring war that are accepted in International Humanitarian Law and laid out in the Geneva Conventions are based in the criteria of jus as bellum and jus in bello, which were adjusted over time to comply with Western Christian values and norms of war. They focus on state forces, completely dismissing the legitimacy of any other type of force or fighter, thus giving privilege to the uniformed fighter recognized officially by a sovereign state. This allows for an other to have formed that is excluded from international humanitarian law (Mégret 266). The laws of war based in just war theory are a projection of Western imperialism and expansion which includes its own violence even though it attempts to control violence. They project a fantasy of war and destruction that is not universally shared and therefore promote the idea that non-western people have to wage war that adheres to the terms of the West (Mégret 308).

People decide what is and what is not war and they have done so in various cultural environments and concluded that war is limited, as they have constructed specific ideas about what tactics can be used, who can fight, when battle must end, and what privileges come with winning. No matter the type, war is hell because of the victims of the fighting. Innocent civilian bystanders do not volunteer to be part of the war and are thus the real victims of war. Whether directly targeted by forces or whether indirectly killed as collateral damage, large numbers of civilians die as a result of war and this is not just (Walzer 24-30). Irregular fighters may not adhere to western principles of just war, but they have their own morals used for justifying war based on their culture and religion. While their principles may not be recognized as legitimate by the United Nations and International Law as those of the West are, they are arguably no less valuable and are still used to justify armed conflict and violence conducted by fighters deemed irregular by Western society such as guerrillas or terrorists. As such fighters adhere to their own moral code, they do not inherently wage an unfair war kind of war. When different societies place varying limitations on war, there can be no single type of war fought by a specific group of individuals that is innately just or unjust (Walzer 180-181). When examining guerrillas, the main criticism they face is that they sometimes disguise themselves as civilians and hide amongst them. This goes against the rule of war that each individual must be determined as either a civilian or a soldier and that by disguising themselves among enemies they are inviting their enemies to attack civilians even if they do not themselves attack civilians. However, guerrillas argue that they do not need to distinguish themselves because they are no longer being protected by an army and are therefore protecting themselves. Guerrilla war is a war of the people that comes from below, rather than a traditional state-sponsored war waged from above. Guerrilla fighters see themselves not as a lone fighter disguising himself among civilians, but rather a group of people called to war and himself as a loyal constituent among many (Walzer 179-80). If you want to fight against us, the guerrillas say, you are going to have to fight civilians, for you are not at war with an army but with a nation. Therefore, you should not fight at all, and if you do, you are barbarians, killing women and children (Walzer 180). While guerrillas do take part in terrorist campaigns, which are occasionally even against their fellow countrymen and they burn villages and take hostages, they usually do these things less than the anti-guerrilla groups (Walzer 180). However, oftentimes such tactics used by guerrillas are unavoidable and necessary due to the terrain, lack of resources, limited number of forces, and the high capability of their enemies. Unlike the regular forces of a state, irregular fighters do not receive funding or resources from a wealthy state (Gross). Irregular fighters usually all adhere to their own moral code, whether based on religion or ethics alone. One such example is the Three Main Rules of Discipline and Eight Points for Attention of the Chinese Peoples Liberation Army issued by Mao Tse-Tung in 1947, leader of the then peasant guerrilla force. They included rules such as forbidding the taking of things from the people, turning in everything seized, paying a fair price for everything bought, returning what has been borrowed, compensating for anything damaged, no swearing at or hitting people, no harming crops, no taking advantage of women, and no mistreating captives (China, Military Writings of Mao Tse-Tung).

Another group of irregular fighters under much contention when it comes to waging and participating in just war is terrorists. As defined by Louise Richardson, terrorism, simply put, means deliberately and violently targeting civilians for political purposes (Richardson 20). Terrorists carry out attacks generally because of anger, humiliation, the desire for revenge or glory, or commitment to a cause. Furthermore, they are generally people who feel alienated from society and have a grievance or see themselves as a victim of injustice (Hudson 37). They want to belong to a group and they believe themselves to be acting morally and they justify their actions on moral grounds (Richardson 34). The main problem with terrorism as a type of armed conflict in the eyes of just war theory is that terrorism is aimed at the vulnerable who cannot protect themselves. It is thus by nature a crim against humanity. It is viewed as fundamentally evil because it is deliberate violence against innocent people and in western tradition, religion is not considered a just cause for war because there is no way to decide which religion is more just in terms of its moral and political action (Turner Johnson 60-61). However, terrorist groups, specifically radical Islamic groups have their own moral and legal framework to justify their actions. This is held in the Quran with its four various understandings of lesser jihad as read, studied, and implemented by Muslims. Lesser jihad is about defending Islam from outside threat and sometimes called Holy War. Its four understandings are non-confrontation, argumentation, confrontation within defined limitations, and unconditional command to fight all unbelievers, which is the understanding adopted by radical Islamic groups (Amjad-Ali 244). Terrorism became popular as guerrilla warfare moved into the city from the countryside. Oftentimes terrorism was an unavoidable tactic due to the limited number of forces insurgents had access to and the terrain. It is a crucial aspect of urban and other types of guerrilla warfare and oftentimes deemed necessary by circumstances such as local environment and the capabilities (oftentimes higher when fighting a state) of the enemy. Although many try to claim that horrible acts of terror can be differentiated from righteous acts of guerrilla warfare since terrorism targets innocent people while guerrilla warfare involves fighting an armed opponent. However, many times they are inseparable. Many people have a problem with the tactics that guerrilla movements employ but they see their cause as just. Especially when the people are trying to escape suffering and injustice. On the other hand, transnational movements are not about freedom, but rather domination or control. They seek maximum disruption and to destroy Western interests and thus people do not see their cause as just. But why are organizations with national aims morally better than those transnational or pan-religious groups? If Islamic groups are pursuing an Islamic religious nation, there is no reason why their cause is less just than those who pursue independence based on religion such as in Palestine or Chechnya. Terrorism as method of armed violence that like any other weapon has its purpose in armed conflict under certain conditions (Gross). Therefore, it must be held to the same regulations as other forms of violence. Terrorists are condemned for purposefully targeting civilian non-fighters but what about when civilians die as collateral damage in traditional warfare? If killing civilians under a guise of collateral damage is nothing but a moral smokescreen, then some forms of terrorism may not be as far from conventional wartime killing as one might think (Gross). Terrorism, just like any other method of warfare used by any type of fighter, thus be used when it is the lesser evil pinned against a much greater evil that causes existential threat when there is no other way to expel such a threat (Gross). One war that called just war theory into question and that has been the source of much debate is the Iraq War that lasted eight years and began with the US led invasion of Iraq. The debate is over whether or not this act of war by the US was a just response to the terrorist attacks committed by al-Qaeda of September 11th 2001. The United States government concluded that the September 11 attacks did indeed situate the United States into a state of defensive armed conflict, in which the laws of war apply (Yoo and Ho 1). On this day, a total of 2,977 civilians were killed as a result of the attacks (September 11 Terror Attacks Fast Facts). According to Bin Ladens Letter to America written in 2002, the attacks of 9/11 were done as revenge for Americas actions in Palestine and Lebanon (bin Laden). Just war theory argues that the invasion of Iraq was not just because it was not aimed directly at the perpetrators of the ware-waging event. It was not directly targeting al -Qaeda but rather the 2003 Hussein regime itself. Furthermore, non-combatants were put in danger in order to protect American combatants (Bellamy 192). Roughly five hundred thousand people in Iraq died as a result of the Iraq war (Iraq Study Estimates) According to the revised principle that states that war is just regardless of fighters involved or means utilized as long as waged defensively, as a last resort, and with means that are of a lesser evil than those of the aggressor (Gross). In the case of the invasion and subsequent Iraq War, the United States was not just in their reasons for going to war. The war was offensive, as it was not directed not at al-Qaeda but rather at the Hussein regime. Furthermore, it caused more harm than the September 11 attacks, with a civilian death toll of more than one hundred times that of 9/11 and over a period of many years of suffering. While 9/11 has caused many mental suffering for years beyond the day itself, the civilian death toll was limited to that day and those immediately after.

Given the above facts, irregular fighters, including terrorists, cannot simply be dismissed by humanitarian laws Western bias. The frequency of irregular fighters participating in armed conflict and the fact that various cultures place different limitations on war means that no single type of war fought by a specific group of individuals is innately just or unjust (Walzer 180-181). Thus, a compromise must be made that defines just war in a way that includes various groups of fighters and means based on differing cultural limitations. I suggest that armed conflict is justifiable by any group of fighters, utilizing any means when said conflict is waged defensively, as a last resort, and when the means utilized are of a lesser evil than those of the aggressor. Subsequently, each war shall be determined just or unjust on an individual basis.

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