Must a defensible theory of the morality of war must integrate moral reasoning with institutional theory

With the legalist paradigm as the core framework, Walzer develops his theory further. First Walzer divides his theory into two main principles; jus ad bellum and jus in bello. “The moral reality of war is divided into two parts. War is always judged twice, first with reference to the reason states have for fighting, secondly with reference to the means they adopt”. It is worth noting here that these two principles are separated from each other. Thus, it is quite possible to fight a just war unjust and an unjust war just. “The core of just war theory is today often taken to be self-defence. Self-defence is the only just cause recognized in positive international law, for example. A more nuanced version is that the right of self-defence is a right to respond only to attacks that are themselves unjustified (aggression)”. Jus ad bellum are the principles that governs the conditions under which resorting to war can be justified. The only justified reason to resort to war is, according to the legalist paradigm, to resist aggression, in other words self-defence. When resisting aggression it is legitimate to receive help from other states. An example of this is the American intervention in Kuwait after the Iraqi invasion in 1990. The criteria stipulated under jus ad bellum, for just resort to war, are, in addition to just cause, or self-defence; right intention, the proper authorities must take the decision to go to war and they must draft a formal declaration, it must be the last resort, proportionality and there must be a probability for success. All of these criteria must be fulfilled for a war to be deemed just.

The second principle of just war theory is jus in bello, or the guidelines to morally correct conduct of war. According to Walzer it is; “the observance or violation of the customary and positive rules of engagement”. The observance of the rules of engagement falls in this case primarily on the armed forces; officers and the soldier himself. Worth noting here is that in addition to being a moral framework for the conduct of war, jus in bello is to some extent supported by institutional theory in international law, such as: the International Court of Justice and the Hague and Geneva Conventions. The criteria underlying jus in bello are: first and foremost discrimination and non-combat immunity. This and proportionality are the most important features of jus in bello, but jus in bello also explicitly banns all means Mala in Se, or evil in themselves. The 1999 International Treaty Banning Landmines is an example of the latter, and also an example of what jus in bello is designed to provide; the restriction of suffering and collateral damage to a minimum.

As mentioned earlier in this essay, Michael Walzer’s just war theory is a moral theory designed to limit the cruelties of war. In addition, one could argue that just war theory to some degree is supported by institutional theory through such institutions as the UN, ICJ and a variety of Conventions under international law, but for the greater understanding, just war theory remains a moral theory almost without any institutional support at all. This has created a widespread debate on whether or not just war theory should integrate institutional theory to a greater extent than it does today. Many argue for the creation of an institution of, not within, the international community which can take on the duty to prevent violence between states. Today the duty to intervene is recognised as a collective duty of the international community, but is there one single agent, in the international community, specified to perform the task of intervening? “Even if we regard the duty to intervene as an enforceable duty, it cannot be enforced until an agent is specified to do the intervening. If that duty falls on every state, those states can join in establishing institutions to perform it. This suggests a general moral argument for international government – at a minimum, for establishing and developing political institutions to prevent violence not between states but also within states. Even if states are unable to respond directly to violence in other states, they have a duty to support just and effective institutions at the international level to control it, and they must comply with the laws and policies of those institutions”. Would this make for a more defensible theory of just war? As George Mavrodes argues at the end of his article “Conventions and the Morality of War”: “I suggest that the immunity of non-combatants is not an independent moral rule but rather part of a convention which sets up a morally desirable alternative to war. I argued that some conventions, including this one, generate special moral obligations which cannot be satisfactorily explained and defended without reference to a convention”. Michael Walzer insists that legal rules defining war are beside the point. He agrees that legal rules, for example forbidding means Mala in Se, such as; forbidding landmines or chemical weapons, could to some extent be desirable, but they are not morally obligatory. Soldiers will be killed, and in which matter they are killed cannot matter that much. Since Walzer recognises non-combatant discrimination to be the chief concern during wartime, he should also recognise that such legal rules should not be downgraded. A robust set of legal rules, provided by the proper institution, banning the use of specific weapons must be at the core of jus in bello, on the same line as discrimination. Writing off legally binding rules on the account that they are not morally obligatory appears to be somewhat easy.

The same might be said for jus ad bellum. Just war theory forbids pre-emptive war; self-defence is only permissible as long as an actual attack has occurred. Allan Buchanan argues in his article “Institutionalizing the Just War” that there should be room for pre-emptive attacks. “Preventive war justifications hold that it can be permissible to make war to avert a temporally distant harm; forcible democratization justifications hold that it can be permissible to make war to achieve a temporally distant good, namely, democracy”. In stead of simply writing off pre-emptive strikes under any circumstances, it makes sense to recognise that just war theory cannot rely utterly on philosophical arguments, but rather philosophical arguments integrated with institutional analyses. Drawing a connection to Walzer’s civil society analogy when explaining the legalist paradigm, Allan Buchanan draws an interesting comparison to civil society when he justifies why just war theory should include institutional theory. “If you and I happen to live in a society with an effective police and court system, you do not have to rely exclusively on your own actions to protect yourself from my sinister plan, and under these conditions a more restrictive understanding of your right of self-defence may be compelling”. The international community does not have an effective police force or a court system to protect anyone. This may require a state to rely on other means to prevent being attacked or harmed, such as pre-emptive attack. Simply assuming that institutional resources are negligible, constitutes for a just war theory not up to date. The answer, according to Allan Buchanan, is not to abandon traditional just war theory norms, but; “create new institutions within which reliance on a more permissive norm would be morally responsible”.

Colin Flint and Ghazi-Walid Falah are also concerned about just war theory in their article “How the United States justifies its war on terrorism: prime morality and the construction of a “just war”. Flint and Falah recognises that a just cause might simply be constructed to legitimize an attack. They begin with investigating how a hegemonic power, such as the United States, might use their extra territorial reach in combination with just war rhetoric to construct a just cause for pre-emptive attack to protect what they call a universal prime modernity. “Prime modernity refers to an ideal organization of society projected by a hegemonic power as a form of integrative power”. For a hegemonic power, rejection of prime modernity is regarded as a direct threat. As a consequence it will develop a prime morality to give the impression of not engaging in power politics, but rather acting on behalf of humankind. “Particular themes in the Strategy are readily identified that promoted the extra-territoriality of the United States, its dissemination of a prime modernity, and the usage of a prime morality to create a “just cause” and, hence, a just war”. Thus, the war against terrorism was perceived as being just, as it took on the forces that threatened what we all hold dare, not as a geopolitical mission for the pure sake of selfish interests. This proves that the morality of war that Michael Walzer holds more dare than legal rules of war, might easily be corrupted. This in turn falls back on Allan Buchanan and his argument for institutional theory to be integrated into traditional just war theory. As an alternative to the hegemonic power, in the latter case the United States, to make the decision on behalf of the international community and democratise Iraq, an institution could make the decision. “Suppose, that the decision to engage in forcible democratization had been made in an institutional framework that (1) required the public articulation of the favourable conditions for forcible democratization and the marshalling of evidence of that at least some of them were satisfied in the case at hand; and (2) facilitated critical, impartial evaluation of the criteria and the evidence; and (3) attached significant costs to a negative evaluation. Such arrangement would reduce the extraordinary risk of relying on the Forcible Democratization Justification”. The risk of relying on one state, its leaders and intelligence would be removed, and could lead to more nuanced and hopefully more correct reasoning for resorting to pre-emptive attacks.

This essay set out to critically investigate if a defensible theory of the moral of war needs to integrate institutional theory. Having introduced key elements of just war theory, this essay proceeded to present some core criticisms. To snub legal rules or institutions for not providing moral obligations and hence relying exclusively on philosophical arguments seems to create a too thin just war theory. The arguments for constructing institutions which in effect can create binding legal rules for the conduct of war seems if not overwhelming, at least significant to this debate. Just war theory is in need of some institutional support. As Mavrodes made clear, there exist no such institutions today, but as both Flint and Falah and Buchanan have suggested, if it did, just war theory would maybe have contributed more to preventing actual conflicts. Even so it is important to remember that laws and rules, even if legally binding, can only get us to a certain point, and Michael Walzer is correct in emphasising that we need some sort of a common moral understanding to support it. “There exist important gaps in the law that needs to be filled by greater attention to moral principles like just war and the historical development of those principles”. For a defensible theory of the morality of war, it seems evident that institutional theory, binding laws and rules, must be incorporated into a philosophical argument to create a more effective just war theory and thus a theory that would be supported by all.

WORD COUNT: 2496