Just War Theory and Non-State Actors

Using an Historical Body of Knowledge in Modern Circumstances

Eric E. Smith

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781317109839
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

This book uses an historical body of knowledge, Just War Theory, as the basis for analyzing modern conflicts involving Armed Non-State Actors who employ force against states.

As the global community faces the challenges of globalization, terrorism, 24-hour international news coverage, super power collapse, weapons of mass destruction, and failed states, the author explores whether the historic bodies of knowledge governing decision makers during conflict remain relevant. Tracing the evolution of Just War Theory, he analyzes circumstances involving Armed Non-State Actor (ANSA) groups possessing powerful and destructive capabilities and a desire to use them, and pursues answers to the central research question: how does Just War Theory apply in modern scenarios involving ANSA groups who challenge the state and international institution's monopoly on use of force? The study finds that Just War Theory still has the capacity to accommodate modern day statecraft and application in scenarios involving Armed Non-State Actors.

This book will be of great interest to those researching and studying in the fields of political theory, security studies, international relations, war and conflict studies, and public ethics.

1 The evolution of Just War Theory

Saint Thomas Aquinas quoting Augustine (Epistle ad Boniface, 189), “We do not seek peace in order to be at war, but we go to war that we may have peace. Be peaceful, therefore, in warring, so that you may vanquish those whom you war against, and bring them to the prosperity of peace.”¹

This is a study about Just War Theory and its application in modern circumstances. The lineage of Just War Theory dates several thousand years, with the most recent millennium seeing the body of knowledge mature into its current version. Just War Theory serves decision makers, scholars and analysts by seeking a balance between the immorality of using violence and the necessity of defending one’s self, property or state. Paul Cornish describes Just War Theory as a combination of means and ends, a dualism in which Jus ad Bellum and Jus in Bello are logically independent. War must be initiated for morally correct reasons, yet fought on the battlefield for a differing set of morally correct reasons. A central component of Just War Theory is the term justice. Coppieters and Fotion define justice as fairness, where people, groups, cultures and nations are treated equally with concern and respect. An empowered leader who acts with justice should not to take unfair advantage of another person or group that is powerless. If acting rightly and with justice, those in power are constrained by principles that foster being attentive, caring and respective of the wishes and choices for those who are unable or limited in defending themselves.²

Over the past two millennia, Just War Theory elements have evolved from the earliest application and into the present day. Historical events were key in shaping the definitions, understandings and uses of each element in statecraft. The definitions herein are used to develop questions for understanding how Just War Theory applies in modern scenarios and operationalizes each just war element for application in the case study analysis. The questions generated in the literature review are the foundation for methodology and case study analysis.

Historians believe the earliest writings linked to Just War are found in the Amenhotep IV reign in northern Egypt (1367–1350 BCE). These works outline codes of conduct and etiquette for interaction among dignitaries and royalty. Using descriptions of quarreling as an idiom of prevailing norms for articulating position, entitlements, obligations and jurisdiction, the writings describe circumstances and scenarios for appropriate use of force and who is considered an adversary for the Mediterranean region. While the early Egyptian rules served to delineate prudent behavior in specific circumstances, they lacked coherency as a framework for analyzing circumstances where use of force might be justified and prudent.³

The Roman scholar Cicero (106–43 BC) considered protecting their society essential, and neglecting this obligation was an injustice. Cicero writes of protecting the population sometimes requiring violence to repel an enemy. Other uses for violence include: reneging on treaties, deserting allies, violating sanctity of ambassadors, desecrating religions sites, territorial infringement, breaching neutrality and refusing requisition for extradition of criminals.⁴ The scholars who followed Cicero echoed his thoughts on the importance of maintaining control among the society and portraying a delicate balance between promoting harmony among the population and the occasional need to employ violence against other states, thus Just War Theory serves as a bridge between society and war. Cicero writes that the best and humane action settles disputes without conflict, and one should always maintain a proper motive by announcing demands (via proclamation) and allowing for restitution rather than inflicting punishment.⁵

Cicero’s influence among the early Just War philosophers is without question, but as the Roman Empire converted to Christianity, the scholars who followed Cicero faced a daunting challenge of gaining support among the Christian-pacifist population who preferred peaceful resolution rather than military conflict. With Emperor Constantine’s conversion to Christianity, Bishop Ambrose of Milan (339–397) dealt with the delicate issues of appeasing the Christian’s pacifism with the requirement to protect the empire from barbaric tribes located beyond Rome’s jurisdiction.⁶ As time passed and Christianity spread throughout the empire, the emphasis on absolute pacifism among the Christians shifted to accepting Rome’s belief that under some circumstances war was a necessary activity. From these changes, the idea of justum bellum, or Just War, formally emerged.⁷ The Catholic Bishop Saint Augustine of Hippo (AD 354–430) was a transitional thinker who described man through the Greek philosophers, Pagan Romans and ultimately the Holy Roman Empire.⁸ Augustine is credited with devising the original three elements found in Just War’s Jus ad Bellum. First, rightful or legitimate political authorities are granted permission by God to use force. Second, a just cause is necessary before employing force, and the cause may be defined as: avenging injuries caused by another, punishing another for failing to properly resolve a bad circumstance or returning something wrongfully taken. Third, the decision to employ force must occur with the right intention.⁹ Although these are often listed separately in Just War writings, the early scholars often blended all three when discussing the justness of a potential war.¹⁰ While Augustine appreciated the security dilemma that states faced, he cast a strong warning about the emotions of paranoia and fear serving to guide public and regime actions.

Echoing Augustine, Jean Elshtain describes man’s lust for power (Libido Dominandi) as a primary cause of conflict. Man is never satisfied until all challenges are conquered and controlled, and peace always contains conflict, coercion and struggle.¹¹ In his Letter to Faustus (Heretical Manichaean), Augustine writes of the “evil in war as the love of violence, revengeful cruelty, fierce and implacable enmity, wild resistance, and the lust of power, and such the like.” Augustine considered these descriptors the sins in war. Rejecting the pacifistic thinking and considering social life as part of humanity and society needing law and order, Augustine saw the possibility of employing violence to serve as a guarantor of public order, security and rights to public property, and necessary for a Godly life.¹² In the modern times, there is a subtle difference in the definition of when it is permissible to take a life in self-defense that contradicts Augustine’s. The notion of killing in defense of persons and property has evolved into the right that one can kill another to defend person and property.

If justice serves to influence the component of just cause, then those in charge must use their bestowed power wisely and never for the purpose of abusing those who are helpless. When considering use of force as the projection of power, Bishop Ambrose writes of circumstances for employing force including: defense of the homeland, sacrifice of oneself for others and the common good, and pursuance of stopping evil (hate the evil, not the evildoer).¹³

The Just War elements are divided among two categories, with the first grouping focused on actions prior to entering conflict, and the second on actions once conflict begins.

The first category, Jus ad Bellum, contains six elements:

• Just Cause
• Right Intent
• Proper Authority
• Proportionality (Political)
• Chance of Success
• Last Resort

The second category, Jus in Bello, contains two elements:

• Proportionality (Military)
• Discrimination

The Treaty of Westphalia began a system for organizing and empowering state leaders that exists in the present day. The Treaty gave each state’s governing apparatus sovereign jurisdiction and control over all territories and populations within, and warned undesired outsiders to avoid crossing state boundaries. When the occasional dispute among two or more states occurs, the elements of Just War Theory serve as the generally accepted moral framework for determining when a state was justified in acting against another state, and what actions against another state are appropriate. As World War II concluded, world leaders saw a need for an internationally recognized institution to oversee and moderate states interacting with each other, and the result was the United Nations (U.N.). Over time, nearly every state has accepted the U.N. as a governance body that helps to resolve disputes among states, thus serving as an arbitrator for limiting or avoiding conflict, and ultimately war. In its capacity as arbitrator, the U.N. has assumed an influencing role in state’s use of force against other states. Thus Just War Theory applies to actions and decisions made by the U.N.

Just War’s purpose and application

Eric Patterson argues for Just War being ethical, practical and normative, and grounded in moral concerns for restraining, mastication and responsibility. The framework must compare restraint with the alternatives of destruction, violence, collateral damage and death. The motivation found in Just War Theory should consider the security of citizens and justice in resolving conflicts.¹⁴ Patterson sees Just War thinking as “parsimonious, flexible, and useable, and which combines moral concerns with pragmatic consideration for the twenty-first century threats.”¹⁵ He advances six moral imperatives to undergird Just War in current applications.

1. 1 Security is a basic requirement and necessity for peaceful, prosperous and harmonious existence.
2. 2 Human life is an end, and therefore must be protected.
3. 3 Government is necessary for stability, peace and prosperity.
4. 4 Life must focus on achieving a greater good for all, and states should pursue policies that positively impact citizens and consider the international system.
5. 5 Threats found in 21st century include illegitimate regimes harming citizens, or Armed Non-State Actors terrorizing citizens within legitimate governments.
6. 6 Just War does not call for states to renounce sovereignty, and does not serve as a prescriptive method for go/no-go decisions.¹⁶

While some view Just War Theory as a useful collection of prudent measures for pursuing statecraft, critics often cite the theory’s shortcomings and failings. Patterson summarizes Just War’s most popular and frequent cr...