The Justice in Just War

Keith J. Pavlischek

Copyright (c) 2000 First Things 103 (May 2000): 43-47.

Morality and Contemporary Warfare. By James Turner Johnson. Yale University Press. 259 pp. $25.

The average person has every reason to approach somewhat skeptically books with titles like Morality and Contemporary Warfare. And one should not be supposed "anti–intellectual" if that skepticism extends, in particular, to books written by professors of religion and published by an elite academic press. All too often books and articles from the ethics and religious studies guild are morally self–referential, irrelevant to all except those in the guild, and next to worthless to policy makers who have to decide whether to go to war and soldiers who have to do the fighting.

This book, I’m happy to say, is exempt from such criticism—no surprise to those familiar with James Turner Johnson’s work. The blurb on the book jacket says, "Johnson is one of our most important thinkers on the ethics of war." But that is a too modest evaluation. Johnson’s scholarly contributions to our understanding of the theological and secular roots and historical development of the just war idea, his application of that tradition to contemporary problems, and his criticism of its modifications and distortions leave him without peer.

Johnson has visited this territory before: his earliest books, Ideology, Reason, and the Limitation of War (1975), Just War Tradition and the Restraint of War (1981), and The Quest for Peace (1987), taken together, constitute the most thorough discussion of the sources and historical development of the just war tradition. From the beginning, his work placed contemporary issues in international politics and military developments within that centuries–old tradition, without ignoring modern writers such as Reinhold Niebuhr, Paul Ramsey, and Michael Walzer. The current book continues a long–running argument with the U.S. National Council of Catholic Bishops (NCCB). In its 1983 statement The Challenge of Peace, the NCCB repeatedly asserted that just war doctrine begins with a presumption against war. Not so, said Johnson in Can Modern War Be Just? (1984), an argument against what is variously described as "just–war pacifism," "modern–war pacifism," "crypto–pacifism," or the "presumption–against–war" interpretation of the just war tradition.

The concept of just war, Johnson argues, does not begin with a "presumption against war" focused on the harm war may do, but with a presumption against injustice focused on the need for responsible use of force in response to wrongdoing. Force, according to the core meaning of the just war tradition, is a neutral instrument that can be good or evil depending on the use to which it is put. Indeed the set of criteria classified under jus ad bellum—justification for military action—does nothing else than specify the terms under which those in political power are authorized to resort to force. The presumption–against–war position of the NCCB, Johnson insists, is simply not to be found in classic just war teaching, "even in the specifically churchly theorists Augustine and Aquinas to whom Catholic just war theorists generally refer for authority." Rather, it owes its origin more to the influence of modern Catholic pacifists; a preoccupation with the particular issues posed by the threat of nuclear war; the debates over American involvement in Vietnam; an underappreciation of the state system of international relations; and an overly optimistic evaluation of the United Nations.

The presumption–against–war position, Johnson argues, introduces a certain perverse logic into moral reflection on the use of military force, one that helps us account for the irrelevance of much academic and ecclesiastical teaching on the ethics of war. The resort to military force in just war tradition has historically come to be defined through seven moral concepts: just cause, competent authority, right intention, reasonable hope of success, last resort, the goal of peace, and overall proportionality of good over harm. However, both historically (including the writings of Augustine and Aquinas and the early–modern natural law theorists) and in terms of the inner logic of the just war idea, the criteria are not all of equal importance: just cause, competent authority, and right intention have priority. In the classical view, military force is thought of as one tool among several with which statesmen pursue political goods; each of these three guiding criteria, then, is tied to a particular political goodauthority to the good of order, right intention to peace, just cause to justice. The remaining concerns are not unimportant and must be taken seriously. However, being prudential tests, they "are of a qualitatively different character from the deontological criteria" of the first three.

The presumption–against–war position inverts the priority, so that prudential criteria such as reasonable chance of success and last resort (probably the least helpful of the criteria) often are presented at the center of the tradition. Johnson calls this "a serious distortion."

Here, I think, one can locate the reason why even the antirealist should be skeptical of much of the counsel coming from academic ethicists. The idealism of the presumption–against–war position tends to undercut the very purpose of just war reflection, which, as Johnson argues, "is not properly understood as a collection of abstract moral ideals, alien to political judgments or military thinking and imposed from the outside. By its very nature, the just war approach to the ethics of the use of force is already in dialogue with the spheres of statecraft and military affairs." Just war reasoning belongs to, properly resides with, statesmen and military commanders when they consider the use of military force. If the mere use of military force is conceived in the first instance as the problem to which avoidance is the solution, then just war reasoning tends to be reduced to little more than a moralistic checklist brought in externally, as it were, to the task of statecraft.

Johnson’s analysis explains, I think, the rather maddening spectacle in recent years of having theologians—including pacifists and some crypto–pacifists—who know virtually nothing of military strategy, doctrine, force structure, and capability holding forth confidently on the likely or unlikely success of a military operation, or about the preference of economic sanctions to military force. The statesmen and military experts who must make responsible moral judgments quickly dismiss such moralistic posturing. Johnson’s analysis also accounts, I think, for the annoying assertion that pacifists and just warriors share a common core commitment to military force as a "last resort," the only purported difference being that pacifists believe a last resort can never be met (as if that were a minor difference!).

Military personnel who want to act responsibly are often frustrated by the subtle distinction between understanding the tradition as a "presumption against injustice" and understanding it as a "presumption against war." A large part of Johnson’s burden is to show that the distinction matters and it matters profoundly on important issues of contemporary statecraft and modern warfighting. The distinction matters, Johnson insists, because the presumption–against–war understanding of the tradition—overly influenced as it was by problems unique to a bipolar Cold War—can provide little moral guidance for statesmen who must deal with the challenges of a post–Cold War world. This book seeks to remedy that state of affairs by bringing the classic just war analysis to bear on current debates such as the following: the use of military force for humanitarian relief across sovereign borders; the direct and intentional targeting of entire groups of noncombatants in warfare (including ethnic cleansing and genocide); the influence on conflict of major cultural differences (the "clash of civilizations" thesis); and internationally sanctioned war crimes proceedings and reconciliation after conflict.

Johnson does not buy the argument, shared by actual and putative war criminals and by many modern–war pacifists, that the very idea of noncombatancy, and hence the jus in bello principle of discrimination, is irrelevant either because the complex interconnected nature of modern society blurs the combatant/noncombatant distinction or because the destructiveness of modern weapons renders talk of discrimination meaningless. He thus provides a helpful study of war against refugees in the Rwandan–Zaire war and the Serbian war against cities and "safe havens" in Bosnia.

Johnson focuses on these two cases precisely because neither involved weapons that were inherently indiscriminate (mostly knives, bayonets, and bullets—and he should have added artillery in the case of Bosnia) but became indiscriminate when the combatants made the choice to use them indiscriminately. He also suggests that the modern–war pacifist’s assumption that modern war and contemporary weapons are so inherently nondiscriminatory that traditional jus in bello restraints no longer apply tends to become a self–fulfilling prophecy.

Most illuminating is his discussion of the strategy of siege warfare conducted by Serbian forces in Bosnia. Johnson notes that apart from a discussion in Michael Walzer’s Just and Unjust Wars, very little has been written on the morality of siege warfare. Johnson takes up that task and, drawing on Walzer, suggests that a siege constitutes warfare against noncombatants in two cases: first, if the besieged place is surrounded on all sides such that noncombatants are deprived of the chance to leave; second, if the besiegers choose methods that affect noncombatants directly or intentionally or that are disproportionately destructive, even if they are unable to close the ring around the city. The Roman siege of Jerusalem exemplifies the first case, the siege of Sarajevo the second, and the Serbian sieges of Bosnian "safe havens" has elements of both.

In his chapter on "Conflict and Cultural Difference," Johnson tries to steer a middle course between a "realist" model of cultural conflict and Samuel Huntington’s "clash of civilizations" thesis. The former does not sufficiently appreciate the cultural values and ideals that lead to specific conflicts. But the latter exaggerates the adverse effects of cultural difference and minimizes common factors, so that it fails to take into account those resources within the cultural traditions for the mitigation and avoidance of conflicts. Thus, in a most illuminating, and, I suspect, most controversial section of the chapter, Johnson takes great pains to show that there are inherent limitations on the conduct of war in Islamic culture. Jihad is war for the sake of religion, but, according to Johnson, "its religious purpose does not translate into license to fight total war against all enemies of the Muslim faith." Muslims who take their faith seriously are to observe restraints imposed by the Prophet Muhammad himself and by jurists interpreting the meaning of the Prophet’s permissions and prohibitions. The position, argues Johnson, is clear: "There is no justification for war directed intentionally against noncombatants in jihad."

In his chapter "War Crimes and Reconciliation," Johnson takes note of a dilemma. On the one hand, a genuine lasting peace with justice requires that atrocities be dealt with. On the other hand, the cooperation of those responsible for atrocious conduct seems necessary for a minimal peace between the conflicting parties. This dilemma has led to two well–formed opposing constituencies on the issue of international war crimes proceedings. Those defending such proceedings tend to be international lawyers and criminal justice specialists and those involved in monitoring and enforcing compliance with international humanitarian law. Those opposed adopt a "no–fault" approach to conflict resolution, which is usually favored by the diplomatic community, conflict–resolution professionals, and non–governmental organizations engaged in providing relief and other services. Johnson’s just war convictions lead him to an unequivocal position:

Here again, Johnson frames the issue as a contest between classic just war theory and the presumption–against–war position. Logically, the latter will tend to side with the no–fault conflict resolution position since it sees conflict per se as the problem to which mere cessation of hostilities is the solution. But to refuse to prosecute war crimes, Johnson argues, undermines the protection of human rights by removing from consideration the idea of "crimes against humanity." Such proceedings assist also in reestablishing the rule of law, an essential step in the reconstitution of a civil society torn by conflict.

However, the most fundamental problem with the no–fault approach to conflict resolution is that it implies that future warfare by atrocity will also go unpunished, thus undermining the tradition’s goal of a just and ordered peace (Augustine’s tranquillitas ordinis). It is important to recognize, Johnson says, "that the way a war is fought and the purpose at which it aims, including the peace that is sought for the end of the conflict, are not unrelated, whether in practical or moral terms." If you doubt that, reflect on the lingering memory of Sherman’s march to the sea, the impact it had on reconciling North and South, and how that has affected race relations in America.

Particularly helpful is Johnson’s discussion of the highly contentious issue of "humanitarian intervention." He persuasively argues that the classic understanding of just cause permits the use of military force for humanitarian intervention across sovereign borders. After the Peace of Westphalia, the idea of just cause was narrowed in positive international law to establishing defense, either by one nation or a coalition of nations, as the only justifying cause for use of force. Of course, this would, by definition, rule out intervention across sovereign borders.

Classically, however, the jus ad bellum requirement of just cause meant one or more of three possibilities: that the use of force was for defense against wrongful attack, for retaking something wrongly taken, or for punishment of evil. This premodern understanding of just cause would give greater latitude to states, coalitions of states, or even a single state acting unilaterally to prevent egregious violations of human rights and uphold fundamental international norms. Thus, Johnson suggests that the very recent erosion in customary international law of the traditional rule against intervention across state borders (and of absolute state sovereignty) is more in keeping with the traditional notion of just cause. In cases of rampant evil and injustice there is a moral obligation to intervene, subject to a certain prudential caution given to the obligations to other political goods, including obligations to the international order, to the political communities of intervening states, and to members of the society targeted for intervention.

On the issue of intervention, Johnson has a sympathetic assessment of the NCCB’s 1993 statement The Harvest of Justice is Sown in Peace, which also insists on an obligation to intervene. He points out, however, how this stands in fundamental tension with the presumption–against–war position adopted by the bishops in The Challenge of Peace. Those adhering to the presumption–against–war position embedded in The Challenge of Peace logically would have to resist the broader and classical understanding of just cause (they want fewer, not more, reasons for using military force), and yet an expansive understanding is required to justify the purported obligation to intervene as expressed in The Harvest of Justice. While there was no major section in The Challenge of Peace on the use of armed force for the promotion of justice, The Harvest of Justice specifically listed Haiti, Bosnia, Liberia, Iraq, Somalia, Sudan, and Burundi as particular conflicts where intervention was an obligation of the international community.

So the bishops seem to want it both ways. One can’t help but think that the inconsistency between these statements is more the result of ad hoc reactions to contemporary issues and an attempt to placate Catholic pacifists than the result of careful reflection on the tradition. In fact, I tend to think Johnson is too charitable in calling this a "tension." A "tension" so fundamental is really a contradiction.

Unlike most who are sympathetic to the weakening of state sovereignty and inclined to defend humanitarian intervention, Johnson is not taken with the role of the United Nations. In classic terms, the jus ad bellum requirement of proper authority limits the right to authorize force to sovereign political entities, that is, those with no superior. However, international authorization for military intervention is now often claimed on the basis of consensus, as in United Nations Security Counsel resolutions, rather than on the basis of sovereignty.

Johnson argues that moral thought, including Catholic moral thought, over the last quarter century has been unduly shaped by a belief in the inherent "militarism and venality of states." Modern–war pacifists, he observes, have been fond of quoting John XXIII’s Pacem in Terris as a minimalist defense of their position: "In this age which boasts of atomic power, it makes no sense to maintain that war is a fit instrument with which to repair the violation of justice." During the Cold War, the United Nations was not subject to the same moral reproach and was held up as transcending the failures of modern states. Because the UN could authorize military force only in peacekeeping operations and because the forces were always small and lightly armed and the resort to them infrequent, the UN was largely insulated from the criticisms of modern war directed at the military establishments of powerful states. Not surprisingly, after the Cold War the UN became the institution of choice for intervention and a way for modern–war pacifists to transcend the "militarism and venality of states." Military forces, with the moral and political approval of the United Nations, could now be embraced in defense of human rights.

This moral vision, however, failed to take adequate account of the fact that real power was not located in the international organization, but with individual states and coalitions of states. It tended to ignore the differences in the way specific states were constituted (what George Weigel has called "the regime factor") and the implications that these differences have for the just resort to and restraint of war. In short, it tended to overlook the fact that the structure of order defined through the UN was not one that could stand alone, but depended on viable states.

While the end of the Cold War set the UN free to act in accord with its Charter, including the right to intervene by force in conflicts where no peace had yet been established (e.g., Somalia and Bosnia), this new freedom highlighted the fundamental limits of the UN as an international organization: "It lacks in itself the attributes necessary to make it capable of effectively acting out this role stipulated in the Charter."

It lacks cohesion, for example, so that its policies and decisions are not consistent from conflict to conflict. It lacks sovereignty, depending on agreements among its sovereign member states. It lacks an effective chain of command for military forces it may place in the midst of an ongoing conflict, so these forces cannot be an effective arm of international statecraft. All these absent features are necessary characteristics of the state as a political institution, and their absence at once shows the limits of the role of the United Nations and the continuing importance of states in the international system.

All these deficiencies, Johnson perceptively observes, "are first and foremost defects in sovereign authority." And since, according to the just war tradition, "without such authority there is no entity competent to determine just cause and undertake military action on its behalf, this lack means that the United Nations as an institution cannot have jus ad bellum in the fundamental just war sense." Conversely, viable states possess what the United Nations does not: "competent authority to formulate policies and reach decisions regarding the just use of force, to exercise command over such force, and to assess their rights and responsibilities relative to ongoing conflicts." That should be a word of caution to all those who reflexively think a UN Security Council Resolution is morally necessary before a multilateral or even a unilateral military action can be just. A study of the failure of the UN inspection regime in Iraq would, I suspect, supplement and bolster Johnson’s case on this point.

As Johnson realizes, this book will hardly be persuasive to political realists who will accuse him of going too far in taking account of moral concerns and international standards and values. The position he defends will also seem to be an immoral loosening of the strictures against the use of force by traditional pacifists and modern–war pacifists who continue to regard states "as incurably venal and all uses of force in the modern era as disproportionately destructive." But, as he insists, "between these two perspectives is precisely the territory of just war tradition, an understanding of statecraft in which the use of armed force in the service of justice is both permitted and restrained."

Johnson has ably defended and applied the classic just war tradition against contemporary modifications and distortions. This is practical moral philosophy and theology at its best.

Keith J. Pavlischek is a Fellow at the Center for Public Justice. He is a Lieutenant Colonel in the Marine Corps Reserve and serves on the faculty of the Joint Military Intelligence College, Defense Intelligence Agency.