CHRISTIAN LITERATURE
& LIVING

JUST WAR, UNJUST WAR, AND JUSTICE DURING WAR

Prof. Randall Smith

Can One Insist Justice During a War While Denying the Justice for a War?

There is a classic distinction in the just war tradition between ius in bello (the justice to be observed in or during a war) vs. ius ad bellum (the justice necessary for going to war). Failure to distinguish between the two can often lead to unfortunate confusion.

Another particular danger of failing to distinguish between ius in bello (the justice to be observed in or during a war) and ius ad bellum (the justice necessary for going to war), however, is that pacifists and commentators who oppose a particular war can fail to laud appropriately the efforts -- at sometimes heroic risk to their own lives -- of the military to observe the restrictions of ius in bello. The failure to recognize their efforts and sacrifices, however, will in the end (against the intentions of those who oppose war) lead to greater frequency of war, not less, and increased horror of war, not less.

Unwillingness of Pacifists

It is, of course, understandable that, say, a pacifist would be unwilling to laud the military for observing the restrictions of ius in bello if he or she thought that the war itself was unjust. Prima facie it would appear that if the war is unjust, then no act in the war could possibly be just.

Wouldn't an apt analogy be the following: If the police search a house without proper cause or without a legal search warrant, then any evidence discovered during that search - no matter how incriminating and no matter how peacefully obtained during the search itself - none of that evidence can be used in a court of law. The obvious reason for this is that, to allow such evidence to be used because the evidence was particularly incriminating or because the search itself was done in a gentle (albeit illegal) manner, would be to encourage unjust searches and seizures in the future. If the original search was unjust, no subsequent kindness or scrupulous observance of legal restrictions during the search can make the search licit.

Illicit Wars

So also, it might be argued, if we were to allow that the means for waging war were acceptable, while the end for which the war was being waged was illicit and unjust, then we would seem to be allowing, perhaps even encouraging, illicit wars. Noted pacifist theologian Stanley Hauerwas often speaks of the importance of Christians not providing "intellectual cover" for the manifestly un-Christian policies of the U.S. government. This, it seems to me, is a fully legitimate concern - one which I will attempt to address briefly below. But the first problem to be addressed is this: Can the means be used in a war be in any way acceptable or licit if the end for which the war is being waged is morally wrong?

The answer is that, of course, the means can be licit, even if the end is wrong. While it is true that, if the end or purpose for which I am doing the act is wrong, this would certainly make the whole act wrong, that wouldn't necessarily in and of itself render the means used morally wrong. So, for example, I might give money to a charity simply in order to make myself look good in the eyes of the community, or worse yet, perhaps simply to seduce a female staff-member of the charity organization. (A scenario that will seem not unfamiliar to those who have seen the musical Guys and Dolls.)

And while the end or goal of the action is morally wrong, that does not in an of itself make the means morally wrong. Giving money to the poor is still a good thing. Now, admittedly, giving this money to charity was not good for me - it was not a virtuous act on my part - but that does not mean that the act was not a good thing to do in and of itself. (Thomas Aquinas would have distinguished between the act as virtuous and the act according to its own proper species. The act is not virtuous when I do it, because my intention is wrong, but the act in and of itself remains good.)

Unjust Means in Just Wars

But then the question becomes: by admitting that the means being used in an unjust war are just, aren't we allowing or even encouraging unjust wars? My answer, ultimately, will be no. Indeed, I will argue that often not to praise justice in war, even when one disagrees with the justice of the war, is to encourage greater injustice. And yet, we must first admit that, given the cheapened state of political rhetoric in the nation and our propensity for basing arguments on "sound bites," there is an understandable reticence on the part of, say, pacifists to praise war at all (just as there is a definite reticence on the part of pacifists to admit that there could be any just war at all. Indeed, I believe it often seems to them as though the just war criteria are being used precisely as that "intellectual cover" for the military adventurism of the U.S. government. Better to oppose war in toto, it would be argued, rather than to allow any notion of an "acceptable" war get its foot in the door.)

Cheap Political Rhetoric

But what can we say about that? Yes, the reticence is understandable given the cheapened state of political rhetoric in the media today. One often hears repeated in unfortunate consequences and to unfortunate effect the passing remark made by Jesse Jackson a number of years back that, in certain neighborhoods, when he would hear footsteps behind him, he was relieved to turn around and find a white man behind him. This remark, which in its context, was meant as a challenge to a particular community to police itself and exhibit integrity and respect for one another, has been used repeatedly ever since as some sort of legitimacy to racial profiling. "Even Jesse Jackson feels safer around white people." This is the way to cheapen political speech, not clarify it.

Similarly, one can understand in the present political environment if an opponent of the present war - or all war - would not want his or her voice being added to chorus of supporters of the war. One can imagine that a prominent pacifist would not like to say anything favorable about the means being used in the war - that they are clearly trying to minimize civilian casualties, that they are clearly not targeting non-combatants, and that they are often endangering their own lives to do so - for fear that, having admitted that the military was following the just war criteria as to ius in bello, he or she would wake up the next morning to the headline: "Prominent Pacifist Agrees Iraq War is OK."

Just Means and Just Manners in Doing Illegal Acts

But, of course, he's not supporting the war; he's merely allowing that the military is rightly following the just-war criteria in bello, and that that is a good thing in and of itself, but that doesn't make the war any more just or right or allowable. It is, of course, better for the police to do an unlawful search gently and without injury than to pull over a driver for probably cause and then beat him like the police beat Rodney King; but gentleness in a search doesn't make an unlawful search any more unlawful (although it is certainly true that unlawful means used in the search will render an otherwise lawful search unlawful).

Just War Criteria and Just War

We must recognize that the headline "Pacifist Agrees War is OK" is unfair for a number of reasons. First, to say the means are in accord with the just-war criteria is not to agree that the "war is OK." No amount of ius in bello added together results in sufficient ius ad bellum. Nor does admitting an admirable amount of restraint or a proper amount of ius in bello mean that a person has agreed to the justice of the war itself. Widespread Failure to make this distinction, and fear that one's words will be misconstrued as support for this war or for war per se, is certainly one of the reasons that people are reticent ever to admit that the military is acting justly in the war.

But I would argue that one can still praise the restraint of the military - even in a war that one considers unjust. Indeed, if it were appropriate, one might praise the restraint on both sides! There is a great danger, however, in not lauding the side that adheres to the restrictions of the just war criteria over the side that does not. There needs to be some benefit to groups adhering to the restrictions of the just-war criteria if they (and others in the future) are to continue to observe these restrictions. If it becomes clear that there is no benefit to be gained from observing these restrictions and risking American lives in this way, then there will be greater and greater pressure to give in to the supporters of "total war" and "victory at any cost."

Total War, Quick Victory, and Just War Criteria

I fear that pacifists who oppose any application of the just war criteria as a "sell out" to war are perhaps forgetting how powerful the pressure on the military is to give in to the temptation of "total war" and "quick victory." I have heard repeated numerous times both before the current war and during it, the sentiment: "Not even one extra dead American soldier for any Iraqi." Indeed, I remember a high-level discussion during which a political philosopher suggested to me that no responsible political leader could possibly allow the sacrifice of any of his soldiers or citizens for the lives of any foreigners. "He has a responsibility to his own citizens," this person suggested; "if he were to forsake that responsibility for the sake of citizens of another country, then he would deserve to be replaced. That is simply the reality of national politics." And indeed, there are plenty who would agree.

Christian Belief and Just War

Now, given the Christian belief in the infinite dignity of every human person, no Catholic or evangelical could possibly agree to such a notion (an obvious assertion to some, and a highly controversial one to others, no doubt). But we must certainly see clearly how pervasive such a notion is and can be. Even if one believes the rhetoric that says "Americans for the most part always oppose war," we must certainly admit the tendency among Americans, as among many peoples, to think, once war has begun, that "all bets are off," it's war now, "our only job now is to win. This is the danger of paying attention only to ius ad bellum and forgetting to support efforts at ius in bello.

We must remember to say that, if we are willing to risk lives for victory in war, then we should be willing to risk lives for peace and justice. Those soldier who are killed by a car bomb going the extra mile to attempt to safeguard a pregnant woman in a car have not lost; no, they sacrificed their lives in a noble cause as much as the firemen who rushed in the World Trade Center: both knew there was a risk - a risk they were willing to take in order to protect a life. And that personal risk was noble and praiseworthy, even if you think the American military has no business being in Iraq. Because, quite frankly, if we want to see more of such activity, we need to be willing to go ahead and praise it.

Because if we don't praise and support that sort of selfless activity - indeed, if we lump such men in with the butchers who are willing to shoot innocent women and children, if we call them all "baby-killers", if we make no meaningful distinction between soldiers who are attempting, at the risk of their own lives, to protect non-combatants and to minimize casualties even among enemy soldiers, as opposed to soldiers who are engaging in the wholesale slaughter of non-combatants and who proclaim publicly that "we can do anything now to attain victory," then I fear that, both now and in the future, we will get more of the total war type of activity. Indeed, one could think that America had no business in Iraq, and hence Iraq was totally justified in defending itself against "American aggression" and still laud the Americans for their observance of ius in bello and condemn the Iraqis for their lack of it.

Distinguish Between Two Groups

So we must distinguish between the two groups, I would argue, and praise one while condemning the other, because (a) there is an important moral distinction between the two (made clearer, in fact, by understanding the difference between ius in bello (the justice to be observed in or during a war) and ius ad bellum (the justice necessary for going to war) and (b) because if we don't admit that American troops are acting with admirable moral restraint, and it becomes clear to them, and more especially, to their leaders, that there is essentially no public benefit to be gained by restricting oneself in this way - indeed, there is only public condemnation from the "total war" crowd that any American lives were risked - then I think we will find such heroic and selfish actions happening less and less, and that would leave the field of battle to the worst of humanity.

I fear sometimes that pacifists oppose the just-war criteria not only because they consider it an "intellectual cover" for war, but also because they sub-consciously perhaps hope to create a self-fulfilling prophecy: war is so terrible, no one could ever engage in it. When war becomes less terrible and more humane, it seems somehow more acceptable. No, let's not fool ourselves with statements like "surgical strikes" and "precision-guided ordinance"; war just is a horrendous travesty against human-kind. It seems then that, to allow that the war is being waged with admirable - indeed even heroic - restraint, is to support further war. So it is often a strange thing about American political life that two opposing groups both oppose the just-war criteria: the supporters of "total war" on the far right, and the pacifists on the far left. Both sides, for their own reasons, find the "restrictions" unrealistic and absurd.

It is all well and good to hope that war will never occur any more, and what's more to pray for that daily. It may even be correct to oppose any war that comes about. But not to praise those whose actions in the war remain morally upright and noble (particularly given the tremendous temptations to do otherwise in the dangerous circumstances of a war) is to court long-term disaster and even greater horror in war.

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