Let’s recognize the bashful philosophers and coy Just War theorists at this, their hour of professional triumph. Pay no heed to their mortified glares and expressions of humility.
To be sure, Michael Walzer had already announced victory back in 2002:
The triumph of just war theory is clear enough: it is amazing how readily military spokesman during the Kosovo and Afghanistan wars used its categories, telling a causal story that justified the war and providing accounts of the battles that emphasized the restraints with which they were being fought.
‘Moral theory, said Walzer, ‘has been incorporated into war-making as a real constraint on when and how wars are fought.’ It was no longer merely a concern for clerics, jurists and professors, but of generals too. Just as the careful and delicate missile strikes of the first Gulf War had been an improvement on earlier bombardments of Korea and Vietnam, so NATO’s pummelling of the Balkans and Central Asia had granted ‘just war theory a place and standing that it never had before.’
Walzer – speaking at a New School conference alongside Richard Holbrooke, Michael Ignatieff, Samantha Power, David Rieff and Marty Peretz – denounced a ‘doctrine of radical suspicion’ that would ‘condemn and oppose’ any and all ‘American military actions.’ The role of the philosopher was not to carp and criticize from the sidelines, but was ‘internal to the business of war.’
Walzer therefore looked forward to Just War theory developing ‘a description of legitimate occupations, regime changes, and protectorates’.
Of course, the father of a scholarly sub-field is rarely a reliable guide to its future direction and preoccupations. But in 2002 little clairvoyance was needed to see that the war-legitimation business was about to expand.
Thus it has been a busy decade in the professional lives of Larry May, the guys and gals at the Centre for Applied Philosophy and Public Ethics, and all the under-appreciated thinkers tucked away in international relations departments at Anglophone universities, military academies, NGOs and policy think tanks around the globe.
These are the ‘little screws and bolts’ of Washington’s war drive.
These folks – they know who they are, even if you don’t – have helped to make it all possible, jurisprudentially and ideologically speaking. Preemptive strikes, ‘limited punitive actions’, the lot.
John Kerry’s big reveal, his statement laying out a casus belli for Syria, was strikingly desultory and underwhelming, even by recent standards. (‘I’m not asking you to take my word for it. Read for yourself, everyone, those listening, all of you, read for yourselves the evidence from thousands of sources, evidence that is already publicly available.’)
Essential for the State Department’s ‘credibility’, therefore, were the prior efforts of policy intellectuals straddling academia, journalism and the security state. Despite the implausibility of Kerry’s claims and the listlessness of his performance, respectable public opinion has long since adopted the view that power projection and military expeditions in the name of human rights and ‘international norms’ are, after all, a rather airy and vaporous business, in terms of actual legal constraints or even normative prohibitions.
For this we can thank the scholars of ‘global governance’. With official imprimatur and government funding, they have spent the past two decades undermining the prohibition on aggressive war that was codified in the Kellogg-Briand Pact, Nuremberg judgements and UN Charter.
Territorial sovereignty, these intellectuals have insisted – post-Desert Storm, post-Walzer – does not necessarily bind or impede the activity of other states. It is instead a conditional licence granted to lesser states by powerful ones – that is, by the ‘international community’.
Its transgression does not per se make a crime: its revocation may be warranted, at some moments, if Washington so desires.
Larry May (2008):
My view is that crimes of aggression are deserving of international prosecution when one State undermines the ability of another State to protect human rights [i.e. only under this particular condition].
This thesis runs against the grain of how aggression has been traditionally understood in international law.
Previously, it was common to say that aggression involved a State’s first strike against another State, where often what that meant was simply that one sovereign State had crossed the borders of another sovereign State. In this book I argue that the mere crossing of borders is not a sufficient normative rationale for prosecuting State leaders for the international crime of aggression.
At Nuremberg, charges of crimes against humanity were pursued only if the defendant also engaged in the crime of aggression. I now argue for a reversal of this position, contending that aggression charges should be pursued only if the defendant’s acts involved serious human rights violations. Indeed, I argue that aggression, as a crime, should be defined as not merely a first strike against another State but a first wrong that violates or undermines human rights.
If there are to be prosecutions for crimes against peace (or the crime of aggression) that are similar to prosecutions for crimes against humanity and war crimes, then there must be a similarly very serious violation that aggression constitutes. Mere assaulting of sovereignty does not have the same level of seriousness and is not as universally condemned as are the other crimes. For this reason, among others, I argue that aggression, as a crime, needs to be linked to serious human rights violations, not merely to violations of territorial integrity.
If a given State is not generally protecting human rights, it will be less clear that war waged against such a State is indeed best labeled aggressive and unjustified war. Indeed, if States systematically violate the basic human rights of their citizens, then those States have no right to insist that other States respect their sovereignty
Of course, there are States that have been massive violators of human rights, and wars waged to stop such States are not generally aggressive in my view.
What made the Nazi case stand out was the scale and viciousness with which it was fought, not that it was a case of aggression. So, the value of Nuremberg as a “precedent” for future trials of leaders for aggressive wars is here also unclear.
It is odd indeed to call the humanitarian actions of a State by the name “aggression” since that implies that there is some hostility behind the intervention. If the intervention is truly motivated by humanitarian concerns, then calling it aggression and therefore also hostile seems out of place.
It is also hard to see that humanitarian interventions constitute wrongs at all, let alone the most important of wrongs in the international arena, and hence we have reason to think that crossing State borders is not always wrong. Humanitarian intervention may indeed often be ill advised since anything that contributes to the horrors of war is to be avoided at nearly all costs. But if the motivation for the humanitarian intervention is to stop genocide, then the war may not be ill advised even though there is a serious risk of the major loss of civilian life that occurs in most wars. Here we might do some rudimentary utilitarian calculation to see that stopping genocide by means of a war could be justified.
Humanitarian wars can at least be prima facie defended in such circumstances as the genocide in Darfur. Such wars might be technically aggressive – at least, according to traditional doctrine – in that they involve invasion by one State against another State that is resisting rather than consenting to the invasion. Yet, since no “hostility” motivates the invading State and the international community in effect consents to allow the invasion, it seems as if the designation of aggression is the kind of technical characterization that doesn’t bear much normative weight. Aggression, as traditionally understood, is not itself a trigger of normative disapproval; some aggression, such as that form that stops worse aggression, could be a very good thing indeed, as theorists from the Just War tradition and contemporary international law have claimed. This is one reason I urged that we abandon the traditional way of understanding aggression.