Bringing just war doctrine to life, Richard J. Regan raises a host of difficult questions about the evils of war, asking first and foremost whether war is ever justified, and, if so, for what purposes? Regan considers the basic principles of just war theory and applies those principles to historical and ongoing conflicts through case studies and discussion questions. His well-received 1996 work is updated with the addition of case studies on Iraq, Afghanistan, Libya, and Islamist terrorist organizations. Especially timely are the added discussions of the use of drones to assassinate terrorist leaders and, in the matter of weapons of mass destruction, asking how certain is "certain enough" that a country has weapons of mass destruction before it can be justly attacked? Regan considers the roles of the president, Congress, and the U.N. Security Council in determining when long-term U.S. military involvement is justified.
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About the Author
RICHARD J. REGAN, a Jesuit priest, attended Harvard Law School and received his doctorate in political science from the University of Chicago. He is emeritus professor of political science at Fordham University. Regan is the author of several books, most recently Aquinas: A Summary of Philosophy; and the translator of numerous works by Thomas Aquinas, including The Cardinal Virtues, Compendium of Theology, and Commentary on Aristotle's Politics.
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JUST WARPRINCIPLES AND CASES
By RICHARD J. REGAN
The Catholic University of America PressCopyright © 2013 The Catholic University of America Press
All right reserved.
Chapter OneJUSTIFYING WAR
WHY WAR NEEDS TO BE MORALLY JUSTIFIED
Ancient Greece and Rome regarded war as simply a fact of life, a regrettable but inevitable fact of life. In early modern times, Thomas Hobbes, a keen seventeenth-century student of the classics, imbued that stance with a basically amoral philosophical theory. Individuals and societies seek to aggrandize their self-interests, and wars are the "natural" consequence of individual and societal acquisitive appetites. The resulting state of war and potential war is "natural" to individuals and societies unless there is a sovereign power to restrain those conflicting appetites. There is no norm of morality superior to self-interest, although the fundamental "law of nature" (self-preservation) morally obliges individuals and societies to desire peace, and reason dictates the only means to escape war: individuals need to surrender their freedom to a sovereign power in organized society that will guarantee their survival, and regionally organized societies likewise need to surrender their freedom to a sovereign international power that will guarantee their survival. In the absence of sovereign power, there is only a moral duty to desire peace, and wars can only be called "good" or "bad" insofar as they are successful or unsuccessful in furthering societal interests.
One hardly needs to do more than glance at a daily newspaper in order to be aware of the human potential for conflict and violence. But human beings also have the potential to live in peace and to cooperate with one another for their common material and spiritual development. Moreover, human beings are endowed with the power of reason, and their reason can recognize that living in peace and working cooperatively with other human beings are specifically human goals. In other words, human beings through their power of reason to evaluate can recognize that they should live in peace and work together cooperatively.
Human beings engage in many activities that can and do result in the death of other human beings. Vehicular accidents, for example, result in many deaths. Although the negligence or recklessness of drivers may cause accidents that result in death, drivers of automobiles do not typically intend to kill anyone. In the case of war, however, combatants directly intend the death of enemy combatants unless the latter capitulate or agree to an armistice. Human beings are endowed with reason, and reason recognizes a prima facie moral obligation not to kill other human beings. Therefore, reason needs to determine whether the deliberately intended killing of human beings involved in war can ever be justified. Moreover, if such killing can be justified, reason needs to determine when it can, and when it cannot.
THE PACIFIST POSITION
The pacifist moral position on war is categorically negative: human beings, whether as private individuals or as agents of the public, are never justified in the use of killing force against other human beings. The historical origins of pacifism in the West can be traced to Christianity, and the pacifist movement continues to be largely rooted in that source. This is not surprising, since the Gospels clearly indicate the nonviolent thrust of Jesus' ethical teaching. His followers are commanded not only to love God but also to love their neighbor (Mt. 22:39; Lk. 10:27). In the Sermon on the Mount, Jesus admonished his followers: "You have heard that it was said, 'An eye for an eye, and a tooth for a tooth.' But I say to you, Do not resist one who is evil. But if anyone strikes you on the right cheek, turn to him the other also" (Mt. 5:38–39). And when Jesus was arrested in the Garden of Gethsemane, he rebuked Peter for striking the servant of the high priest and cutting off the servant's ear: "Put your sword back into its place, for all who take the sword will perish by the sword" (Mt. 26:52).
Fragmentary literary evidence from the second and third centuries of the Christian era indicates that Church leaders either disapproved or looked down on Christians' serving in the imperial Roman army; one can cite Origen, Justin Martyr, and Clement of Alexandria for that view. The attitude of Christians seems to have changed with the Edict of Milan (313 A.D.) and the conversion of Constantine, and the practice of pacifism by Christians to have waned. At the time of the Reformation, however, a number of Protestant sects revived the practice: the Anabaptists, the Quakers, the Mennonites, the Brethren, the Shakers. Indeed, it was in Pennsylvania in the late seventeenth century that the Quaker William Penn instituted his pacifist "holy experiment."
Although many contemporary pacifists are pacifist for religious reasons, many others are such for philosophical reasons. For the latter, human life is an absolute value, and so human beings should not resort to killing or maiming force even when wrongdoers do violence to them or threaten to do so. In the short run, of course, pacifist practitioners will suffer injustice and prefer to suffer injustice than to commit it. But in the long run, many pacifists claim, nonviolence and nonresistance will convert unjust aggressors and oppressors, and peace and justice will ultimately prevail. This was the vision of Mahatma Gandhi and Dr. Martin Luther King.
Just-war theorists reject the pacifist principle. In their view, it is the value of a victim's human life that justifies the use of killing force against a wrongdoer. The wrongdoer's right to life is contingent on his not threatening the victim's life, and when the wrongdoer does so, it is a question of which life is to be preferred. Why should the life of the aggressor be preferred to the life of the victim? Moreover, community leaders resort to killing action against wrongdoers in order to defend the community and all of its members, not to defend themselves as individuals. As noted later in this chapter. Saint Augustine, the most influential Western theologian of the early Middle Ages, thought that it was precisely this aspect of aid to one's neighbor that justified Christian statesmen's resorting to war to resist foreign aggressors. In other words, love of one's neighbor may justify or even require the use of killing force against wrongdoers.
Pacifists generally argue that nonviolence and nonresistance will ultimately win the minds and hearts of aggressors and oppressors, but that argument is neither convincing nor dispositive. The success of Gandhi or King may have been due (at least in part) to the appeal of their nonviolent campaigns to the conscience of their oppressors. But if that is true, it is because Gandhi could appeal to the moral conscience of a free British electorate over the heads of colonial administrators, and King could appeal to the moral conscience of the national American electorate over the heads of regional southern officials. There is no reason to believe that such campaigns would have been successful against the rulers of Nazi Germany. Second, the argument rests on an extremely optimistic view about the reformability of human behavior. Hobbes was surely correct in describing a persistent conflictual pattern of human behavior. To imagine that every or even most human beings will behave like saints seems to be wishful thinking. And even were human beings to be so transformed at some indefinite future point of time, why should innocent human beings suffer oppression in the intervening short run?
Christian pacifists may also interpret Jesus' teaching on resistance and the use of force too broadly. Jesus evidently urged his followers to practice nonresistance and nonviolence. But it is far from clear that Jesus urged the practice of nonviolence as a strict moral obligation rather than as a moral ideal. Second, there is nothing in the context to indicate that Jesus advised public authorities to forgo the use of killing force against wrongdoers. Indeed, St. Paul says that rulers are servants of God when they execute God's wrath on domestic wrongdoers (Rom. 13:4). Third, one needs to understand many of Jesus' statements as exaggerated expressions that emphasize the main point of his teaching. For example, Jesus advises his followers not to call any man their father (Mt. 23:9). Interpreting the Gospels, however, is a complex matter, and none of the preceding observations is intended to gainsay the need for scholarly exegesis of, and theological reflection on, the Gospel texts in order to assess their import on the legitimacy of war.
Individual pacifists are often called upon to give heroic witness to the value of human life. Nonpacifists should not only admire such witness but also be drawn by it to assess critically the putative justice of particular wars. But what is admirable and virtuous on the part of individuals may not be admirable or virtuous on the part of statesmen. Supposing that human beings may justly resort to force, including killing force, to resist wrongdoers, then those in charge of a community may have a duty to do so. The practice of pacifism by individuals directly affects only those individuals; the practice of pacifism by statesmen, on the other hand, would directly affect the entire community.
THE MARXIST CRITIQUE OF WAR
Marxists trace war to the privatization of property and the dominant modes of production at a given stage of history (slavery, feudalism, capitalism). In the capitalist mode of production, entrepreneurs seek to maximize profits by acquiring foreign resources and markets, and capitalist regimes serve their capitalist masters by pursuing imperialist policies. Economic imperialism inevitably leads capitalist regimes to wage wars both to acquire undeveloped resources and markets and to prevent competing capitalist regimes from doing the same. Moreover, capitalist regimes will forcibly repress Communist movements. When the Communist revolution succeeds, and private property is abolished, the cause of war will be eliminated, and perpetual peace will reign. In short, the only just causes of war are to defend Communist regimes and to overturn capitalist ones.
The Marxist causal explanation of war is simplistic. Although many wars may have economic causes, many others do not, at least not only economic causes. Wars are often fought for reasons of religion, ethnicity, political power, and personal glory, and Marxist attempts to reduce such causes to economic structures seem tortured.
Even if Marxists are correct about the injustices of capitalism and the inclination of capitalist nations to wage imperialist wars, there remain the injustices of communism and its own tendency to wage unjust wars. Communist regimes themselves are fundamentally unjust toward their peoples—and fundamentally more unjust than democratic capitalist regimes—insofar as they suppress freedoms of the human spirit (speech, press, religion, the arts), and Communist revolutionaries wage war to establish such unjust regimes. Moreover, Communist regimes have waged wars of aggression against other nations, including other Communist nations. We need, therefore, to look elsewhere for a more adequate just-war theory, one that fully reflects the nature of the human person and the human community.
GOD'S WILL AS THE MORAL NORM OF JUST WAR
If the existence of the universe at all times depends on God's causal action, then every historical event is in some way the result of his will. And if human beings are free, then God wills some events to come about through human causality. We are not presently concerned with how human causality is compatible with God's, or how human freedom is compatible with God's omnipotence, but with God's will as the moral norm of human action. Moreover, we are here not concerned with God's will as the moral norm that human beings discover by exercising their reason, but with his will as a moral norm that God communicates about a particular war by special revelation. In short, we are here concerned with God's justifying war by specifically sanctioning it, and with his will's constituting the moral norm of just war in this way.
For ancient Israel, the will of God seems to have been deemed to determine the justice of war: Yahweh willed specific wars for the sake of his Covenant with Israel. Yahweh could sanction wars against the enemies of Israel in order to achieve and preserve the promises of the Covenant (Ex. 15:1–18), or Yahweh could sanction wars against Israel in order to punish its people for infidelity to the Covenant (Jer. 21:4–5; Is. 10:5–11; Is. 63:10). Moreover, God's will was deemed to require the destruction of every living creature associated with enemies residing within the confines of the Promised Land (Dt. 20:17; Jos. 6:17, 21), and the destruction of all male inhabitants, the slavery of all women and children, and the expropriation of all property in the case of enemies residing outside Israel's borders who refused to capitulate (Dt. 20:14–15).
"Holy wars" were not restricted to ancient times, and many religions have at one time or another appealed to God's will as the justification of war. In the Middle Ages, for example, Christians waged Crusades to wrest the "Holy Land" from Moslem control. After the Reformation, German Protestants and Catholics waged the Thirty Years War in part for religious reasons. Moslems waged holy wars to bring their religion to the infidel by force of arms. Indeed, many fundamentalist Moslems continue to accept the concept of holy war, albeit only to maintain or gain control of regions of historical Moslem dominance (e.g., Lebanon, Palestine).
If God does indeed specifically sanction a war, then that war will of course be just. But does he? Since it is at least prima facie morally wrong for human beings to kill other human beings deliberately, it is also prima facie contrary to God's will to do so. The burden of proof is on those who assert that God wills a particular war. Second, rulers have no direct knowledge about the will of God that priests or prophets profess to communicate, and priests or prophets themselves may be communicating their own interpretation of God's will rather than any special revelation from him. Third, human agents are adept at appropriating God's will to their own. Fourth, human beings will in any case need to rely on their own natural power of reason to determine the morality of war when, as seems typically the case, God gives no special indication of his will. Moreover, biblical writers seem to have determined the justice of Israel's wars retroactively, that is, by their outcomes: if Israel won, then God willed the war to fulfill his Covenant promises, but if Israel lost, then God willed the war to punish Israel for the people's infidelity.
RIGHT REASON AS THE MORAL NORM OF JUST WAR
We have thus far argued (1) that war needs to be morally justified; (2) that war can be morally justified; (3) that God does not, at least in the ordinary course of events, give statesmen a special indication of his will. In the absence of such an indication, therefore, statesmen need to rely on their own faculty of reason to decide the justice of waging war.
Moral reasoning is an exercise of practical reason, that is, reason in relation to human action. This involves not only reasoning about appropriate means to ends but also understanding the appropriateness of ends themselves. Practical reason understands the proper goals of human activity, that activities of reason itself (the search for truth, the development of friendships, and the appreciation of beauty) and external activities in accord with right reason (morally virtuous activity) are properly human goods. Right reason in external activities determines the mean between too much and too little activity (e.g., the mean between eating too much or too little, the mean between taking too much or too little risk in the face of danger). In justice, right reason determines exactly (not too much, not too little) what one owes to another. In the light of these appropriate ends, practical reason determines the appropriateness of particular actions (e.g., when to study, what to eat or drink). Human beings cannot develop themselves in properly human ways other than in association with other human beings. A prime purpose of an organized community is to establish and defend the order of justice between members of the community, and between the community and other communities. And so rulers (who include citizens in democratic polities) need to weigh the justice of waging war. Justice will be wanting not only if rulers resort to war when right reason indicates that they should not, but also if they do not wage war when right reason indicates that they should. As in the case of all moral virtue, the justice of waging war consists in the mean between too much and too little.
Statesmanship in managing foreign affairs and in waging war involves practical skills. Statesmen need to have diplomatic skills to avert or end war, political skills to mobilize public support, and military skills to wage successful war. But practical reason primarily concerns the suitability of shrewdness to human ends, and skills need to be subordinated to human ends. The Nazi war machine, for example, demonstrated remarkable skills, but it was used for inhuman ends. In short, statesmen need practical reason to give direction to their use of skills.
In all polities, statesmen decide when and how to wage war. In democratic polities, citizens are also involved in the decisions, at least insofar as they elect their leaders. On the one hand, citizens need to recognize that their elected representatives are presumptively more expert than they and certainly have access to more information. On the other hand, citizens should not shirk their own responsibility to reach informed practical judgments about war decisions and to exercise their franchise accordingly.
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Table of Contents
Part 1 Principles
1 Justifying War 3
Why War Needs to Be Morally Justified 3
The Pacifist Position 4
The Marxist Critique of War 7
God's Will as the Moral Norm of Just War 8
Right Reason as the Moral Norm of Just War 10
Just-War Theory 14
2 The Just War Decision: Legitimate Authority 20
The U.S. Constitution 23
The U.N. Charter 24
Article 42 and U.S. Constitutional Processes 28
The United Nations, Human Rights, and Military Action 34
The War Powers Resolution 39
3 The Just War Decision: Traditional Just-Cause Considerations 48
Defense of National Territory and International Space 48
Preemptive Strikes and Preventive War 51
Rescue of Nationals 52
Rectifying Economic Injury 57
Vindicating Territorial Claims 59
Last Resort 65
Cessation of Just Cause 67
4 The Just War Decision: Just Cause and Interventionist Wars 69
Intervention in Other Nations' Internal Affairs and Civil Wars 69
Secession and Intervention in Secessionist Wars 74
5 The Just War Decision: Right Intention 85
6 Just War Conduct 88
The Principle of Discrimination 88
The Principle of Proportionality 96
Effect of Unjust War Conduct on Just Cause 99
Observance of International Conventions 100
Execution of Terrorist Leaders in Foreign Countries 101
7 Nuclear Weapons and Just War Conduct 102
The Bipolar Cold War Context 103
The New Nuclear Superpower Context 109
The China Context 110
The Context of Other Nations' Nuclear Capability and the Problem of Proliferation 114
Nuclear Proliferation and Terrorism 120
Part 2 Cases and Questions
World War I (1914-18) 125
The Vietnam Wars (1946-75) 139
The Falklands War (1982) 154
Revolution and Civil War in Nicaragua (1978-90) 163
The Civil War in El Salvador (1979-92) 169
The Gulf War (1991) 177
The Intervention in Somalia (1992-94) 184
The Bosnian War (1992-95) 198
The Invasion and Reconstruction of Iraq (2003-12) 219
Afghanistan (1998-2014?) 225
Libya (2011) 231
New Regimes, Islamist Militants, and Western Security 236
Appendix 1 The United Nations Charter 243
Appendix 2 War Powers Resolution 263
Selected Bibliography 269