in Just War Theory

Proportionality and the Crime of War

Last week, I looked at one (failed) attempt to excuse Israel’s actions in Gaza by redefining proportionality more or less out of existence. But, as I said then, those opposing the war on just war grounds haven’t always gotten things right, either. By way of reminder, here’s the Atlantic’s Andrew Sullivan:

In the history of the West, the laws of war are clear enough. You do not launch a just war if it leads to greater evils than the status quo ante. There must be a reasonable proportion between means and ends.

If you’re a Catholic still wedded to the just war doctrine of Aquinas, then proportionality is indeed a relevant factor. But it’s not really so clear that Aquinas is right to think that proportionality is a jus ad bellum concern.

I, however, am far more drawn to Michael Walzer’s legalist paradigm account of jus ad bellum (Daniel’s complaints notwithstanding). In Just and Unjust Wars, Walzer uses what he terms “the domestic analogy” to make the argument that war is an international version of a crime. Walzer argues that when a state willfully violates the territorial integrity or political sovereignty of another (i.e., goes to war), then that first state has committed the international equivalent of a mugging. It has, in effect, said “Your land (or your resources or what have you) or your life.”  The crime of war, in other words, is aggression.

But this account has an interesting feature. If aggression is a violation of the rights of a state (and, by extension, of its citizens), then there is, as Walzer says, “a presumption in favor of military resistance once aggression has begun.” That’s because resistance to aggression is an international act of law enforcement. If aggression is a crime, then it is always permissible (and perhaps even obligatory) to punish that crime. Military resistance, whether in defense of oneself or on another’s behalf, is presumed always to be a morally justified response to aggression.

On this view, proportionality isn’t relevant to jus ad bellum considerations. The justice of a war turns entirely upon the notion of aggression; the aggressor is morally in the wrong, and the victim of aggression is always justified in fighting in self-defense.

But of course that’s horribly oversimplified. Because, you see, proportionality does matter. It just doesn’t matter in the way that Sullivan thinks it does. Rather, proportionality is relevent to the way in which we fight a war. If the local bully punches me in the nose, I’m justified in hitting back. And if we change the bully into a thug who is trying to do me serious bodily harm, I might even be justified in using lethal force to stop him. I am not, however, justified in beating up the bully’s sister as a way of making him stop. Nor can I blow up the thug’s house or shoot up his neighborhood. My response has to be (more or less) proportional to his. And it must be limited (to the extent possible) to attacking only the bully or the thug. I can’t indiscriminately target bystanders.

The same holds true for war. I might be justified in resisting aggression, but that justification doesn’t give me carte blanche to wantonly destroy my enemy’s family or lay waste to his land. And that’s where the concern about Israel’s actions in Gaza come in. While it might have worked for the Israelites, in 2009 nations can’t just go around slaughtering women, children, and sheep; stealing all the gold; or burning cities to the ground. To do so is a war crime, a violation of jus in bello.

But that, of course, brings us to an interesting question. What happens if the nature of a particular war makes it impossible to fight a just war in a just manner? Or, to ask the question another way, does a nation’s right to respond to aggression with military force go away if the only military options all involve huge numbers of civilian casualties? It’s a good question. And one to take up in my next post.

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