Just war theory

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Just war theory (or Bellum iustum) is a doctrine of military ethics of Roman philosophical and Catholic origin,[1][2] studied by moral theologians, ethicists and international policy makers, which holds that a violent conflict ought to meet philosophical, religious or political criteria.

Contents
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1 Origins o 1.1 Saints Augustine and Aquinas 1.1.1 Thomas Aquinas o 1.2 School of Salamanca o 1.3 Formally described Just War 2 Criteria of Just War theory o 2.1 Jus ad bellum o 2.2 Jus in bello 3 Official positions o 3.1 World War I 4 Ending a war: Jus post bellum 5 Alternative theories 6 List of just war theorists 7 References 8 Further reading 9 External links

Origins [edit]
The Indian epic, the Mahabharata, offers one of the first written discussions of a 'just war'. In it, one of five ruling brothers asks if the suffering caused by war can ever be justified, and then a long discussion ensues between the siblings, establishing criteria like proportionality (chariots cannot attack cavalry, only other chariots, no attacking people in distress), just means (no poisoned or barbed arrows), just cause (no attacking out of rage), and fair treatment of captives and the wounded.[3] The war in Mahabharata is preceded by context that develops the "just cause" for the war including last minute efforts to reconcile differences to avoid war. At the beginning of the war, there is the discussion of "just conduct" appropriate to the context of war. In ancient Rome, a "just cause" for war might include the necessity of repelling an invasion, or retaliation for pillaging or a breach of treaty.[4] War was always potentially nefas, "wrong, forbidden", and risked religious pollution and divine disfavor.[5] A just war (bellum iustum) thus required a ritualized declaration by the fetial priests.[6] More broadly, conventions of war and

treaty-making were part of the iusgentium, the "law of nations", the customary moral obligations regarded as innate and universal to human beings.[7] The quintessential explanation of just war theory in the ancient world is found in Cicero'sDe Officiis, Book 1, sections 1.11.331.13.41

Saints Augustine and Aquinas [edit]

Christian theory of the just war begins with Augustine of Hippo[8] and Thomas Aquinas.[9] Augustine of Hippo, generally considered one of the first and greatest Christian theologians, was one of the first to assert that a Christian could be a soldier and serve God and country honorably. He claimed that, while individuals should not resort immediately to violence, God has given the sword to government for good reason. Christians as part of government should not be ashamed to protect peace and punish wickedness.[citation needed] Augustine asserted that this was a personal, philosophical stance: "What is here required is not a bodily action, but an inward disposition. The sacred seat of virtue is the heart."[10] Nonetheless, he asserted, peacefulness in the face of a grave wrong that could only be stopped by violence would be a sin. Defense of one's self or others could be a necessity, especially when authorized by a legitimate authority: "The commandment forbidding killing was not broken by those who have waged wars on the authority of God, or those who have imposed the death-penalty on criminals when representing the authority of the state, the justest and most reasonable source of power."[citation needed] While not breaking down the conditions necessary for war to be just, Augustine nonetheless originated the very phrase, itself, in his work The City of God: "But, say they, the wise man will wage just wars. As if he would not all the rather lament the necessity of just wars, if he remembers that he is a man; for if they were not just he would not wage them, and would therefore be delivered from all wars."[11] Thomas Aquinas [edit] Nine hundred years later, Thomas Aquinas an immensely influential philosopher and theologian in the tradition of scholasticism used the authority of Augustine's arguments as he laid out the conditions under which a war could be just:[12]

First, war must occur for a good and just purpose rather than for self-gain (for example, "in the nation's interest" is not just) or as an exercise of power. (Proper Authority is first: represents the common good: which is peace for the sake of man's true end-God.)

Second, just war must be waged by a properly instituted authority such as the state. (Just Cause: for the sake of restoring some good that has been denied. i.e. lost territory, lost goods, punishment for an evil perpetrated by a government, army, or even citizen population.) Third, peace must be a central motive even in the midst of violence.[13] (Right Intention: an authority must fight for the just reasons it has expressly claimed for declaring war in the first place. Soldiers must also fight for this intention.)

School of Salamanca [edit]

Growing from Aquinas arguments was the School of Salamanca, which expanded on Thomistic understanding of natural law and just war. Given that war is one of the worst evils suffered by mankind, the adherents of the School reasoned that it ought to be resorted to only when it was necessary in order to prevent an even greater evil. A diplomatic agreement is preferable, even for the more powerful party, before a war is started. Examples of "just war" are:

In self-defense, as long as there is a reasonable possibility of success. Preventive war against a tyrant who is about to attack. War to punish a guilty enemy.

A war is not legitimate or illegitimate simply based on its original motivation: it must comply with a series of additional requirements:

It is necessary that the response be commensurate to the evil; use of more violence than is strictly necessary would constitute an unjust war. Governing authorities declare war, but their decision is not sufficient cause to begin a war. If the people oppose a war, then it is illegitimate. The people have a right to depose a government that is waging, or is about to wage, an unjust war. Once war has begun, there remain moral limits to action. For example, one may not attack innocents or kill hostages. It is obligatory to take advantage of all options for dialogue and negotiations before undertaking a war; war is only legitimate as a last resort.

Under this doctrine, expansionist wars, wars of pillage, wars to convert infidels or pagans, and wars for glory are all inherently unjust.

Formally described Just War [edit]

The first work dedicated specifically to it was De bellisjustis of Stanisaw of Skarbimierz, who justified war of the Kingdom of Poland with Teutonic Knights.[citation needed]Francisco de Vitoria criticized the conquest of America by the Kingdom of Spain.[citation needed] With AlbericoGentili and Hugo Grotius just war theory was replaced by international law theory, codified as a set of rules, which today still encompass the points commonly debated, with some modifications.[14] The importance of the theory of just war faded with revival of classical republicanism beginning with works of Thomas Hobbes.

The Just War theory is an authoritative Catholic Church teaching confirmed by the United States Catholic Bishops in their pastoral letter, The Challenge of Peace: God's Promise and Our Response, issued in 1983. More recently, the Catechism of the Catholic Church, in paragraph 2309, lists four strict conditions for "legitimate defense by military force":

the damage inflicted by the aggressor on the nation or community of nations must be lasting, grave, and certain; all other means of putting an end to it must have been shown to be impractical or ineffective; there must be serious prospects of success; the use of arms must not produce evils and disorders graver than the evil to be eliminated. The power as well as the precision of modern means of destruction weighs very heavily in evaluating this condition.

Although the criticism can be made that the application of Just War is relativistic, one of the fundamental bases of the tradition is the Ethic of Reciprocity, particularly when it comes to in bello considerations of deportment during battle. If one set of combatants promise to treat their enemies with a modicum of restraint and respect, then the hope is that other sets of combatants will do similarly in reciprocation, (a concept not unrelated to the considerations of Game Theory). Just War theorists combine both a moral abhorrence towards war with a readiness to accept that war may sometimes be necessary. The criteria of the just war tradition act as an aid to determining whether resorting to arms is morally permissible. Just War theories are attempts "to distinguish between justifiable and unjustifiable uses of organized armed forces"; they attempt "to conceive of how the use of arms might be restrained, made more humane, and ultimately directed towards the aim of establishing lasting peace and justice".[15] The Just War tradition addresses the morality of the use of force in two parts: when it is right to resort to armed force (the concern of jus ad bellum) and what is acceptable in using such force (the concern of jus in bello).[16] In more recent years, a third category jus post bellum has been added, which governs the justice of war termination and peace agreements, as well as the prosecution of war criminals. Anarcho-capitalist scholar Murray Rothbard stated, "a just war exists when a people tries to ward off the threat of coercive domination by another people, or to overthrow an already-existing domination. A war is unjust, on the other hand, when a people try to impose domination on another people, or try to retain an already existing coercive rule over them." [17] Jonathan Riley-Smith writes, The consensus among Christians on the use of violence has changed radically since the crusades were fought. The just war theory prevailing for most of the last two centuries that violence is an evil which can in certain situations be condoned as the lesser of evils is relatively young. Although it has inherited some elements (the criteria of legitimate authority, just cause, right intention) from the older war theory that first evolved around A.D. 400, it has rejected two

premises that underpinned all medieval just wars, including crusades: first, that violence could be employed on behalf of Christ's intentions for mankind and could even be directly authorized by him; and second, that it was a morally neutral force which drew whatever ethical coloring it had from the intentions of the perpetrators.[18]

Criteria of Just War theory [edit]

Just War Theory has two sets of criteria, the first establishing jus ad bellum (the right to go to war), and the second establishing jus in bello (right conduct within war).[19]

Jus ad bellum [edit]

Main article: Jus ad bellum Just cause The reason for going to war needs to be just and cannot therefore be solely for recapturing things taken or punishing people who have done wrong; innocent life must be in imminent danger and intervention must be to protect life. A contemporary view of just cause was expressed in 1993 when the US Catholic Conference said: "Force may be used only to correct a grave, public evil, i.e., aggression or massive violation of the basic human rights of whole populations." Comparative justice While there may be rights and wrongs on all sides of a conflict, to overcome the presumption against the use of force, the injustice suffered by one party must significantly outweigh that suffered by the other. Some theorists such as Brian Orend omit this term, seeing it as fertile ground for exploitation by bellicose regimes. Competent authority Only duly constituted public authorities may wage war. "A just war must be initiated by a political authority within a political system that allows distinctions of justice. Dictatorships (e.g. Hitler's Regime) or deceptive military actions (e.g. the 1968 US bombing of Cambodia) are typically considered as violations of this criterion. The importance of this condition is key. Plainly, we cannot have a genuine process of judging a just war within a system that represses the process of genuine justice. A just war must be initiated by a political authority within a political system that allows distinctions of justice".[20] Right intention Force may be used only in a truly just cause and solely for that purposecorrecting a suffered wrong is considered a right intention, while material gain or maintaining economies is not. Probability of success Arms may not be used in a futile cause or in a case where disproportionate measures are required to achieve success; Last resort Force may be used only after all peaceful and viable alternatives have been seriously tried and exhausted or are clearly not practical. It may be clear that the other side is using negotiations as a delaying tactic and will not make meaningful concessions.

Proportionality The anticipated benefits of waging a war must be proportionate to its expected evils or harms. This principle is also known as the principle of macro-proportionality, so as to distinguish it from the jus in bello principle of proportionality. In modern terms, just war is waged in terms of self-defense, or in defense of another (with sufficient evidence).

Jus in bello [edit]

Once war has begun, just war theory (Jus in bello) also directs how combatants are to act or should act: Distinction Just war conduct should be governed by the principle of distinction. The acts of war should be directed towards enemy combatants, and not towards non-combatants caught in circumstances they did not create. The prohibited acts include bombing civilian residential areas that include no military targets and committing acts of terrorism or reprisal against civilians. Moreover, combatants are not permitted to target with violence enemy combatants who have surrendered or who have been captured or who are injured and not presenting an immediate lethal threat. Proportionality Just war conduct should be governed by the principle of proportionality. An attack cannot be launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality). Military necessity Just war conduct should be governed by the principle of minimum force. An attack or action must be intended to help in the military defeat of the enemy, it must be an attack on a military objective, and the harm caused to civilians or civilian property must be proportional and not excessive in relation to the concrete and direct military advantage anticipated. This principle is meant to limit excessive and unnecessary death and destruction. Fair treatment of prisoners of war Enemy soldiers who surrendered or who are captured no longer pose a threat. It is therefore wrong to torture them or otherwise mistreat them. No means malum in se Soldiers may not use weapons or other methods of warfare which are considered evil, such as mass rape, forcing soldiers to fight against their own side or using weapons whose effects cannot be controlled (e.g. nuclear/biological weapons).

Official positions [edit]

World War I [edit]

In April 1917, two weeks after President Woodrow Wilson declared war on Germany, Cardinal James Gibbons of Baltimore, the de facto head of the U.S. Catholic church, issued a letter that all Catholics were to support the war.[21] As an example of the position US Catholic bishops took to the war against Germany. The Episcopalian Archbishop of New York, William Manning said in the following: Our Lord Jesus Christ does not stand for peace at any price...Every true American would rather see this land face war than see her flag lowered in dishonor...I wish to say that, not only from the standpoint of a citizen, but from the standpoint of a minister of religion...I believe there is nothing that would be of such great practical benefit to us as universal military training for the men of our land. If by Pacifism is meant the teaching that the use of force is never justifiable, then, however well meant, it is mistaken, and it is hurtful to the life of our country. And the Pacifism which takes the position that because war is evil, therefore all who engage in war, whether for offense or defense, are equally blameworthy, and to be condemned, is not only unreasonable, it is inexcusably unjust.[22]

Ending a war: Jus post bellum [edit]

In recent years, some theorists, such as Gary Bass, Louis Iasiello and Brian Orend, have proposed a third category within Just War theory. Jus post bellum concerns justice after a war, including peace treaties, reconstruction, war crimes trials, and war reparations. Orend, for instance, proposes the following principles: Just cause for termination A state may terminate a war if there has been a reasonable vindication of the rights that were violated in the first place, and if the aggressor is willing to negotiate the terms of surrender. These terms of surrender include a formal apology, compensations, war crimes trials and perhaps rehabilitation. Alternatively, a state may end a war if it becomes clear that any just goals of the war cannot be reached at all or cannot be reached without using excessive force. Right intention A state must only terminate a war under the conditions agreed upon in the above criteria. Revenge is not permitted. The victor state must also be willing to apply the same level of objectivity and investigation into any war crimes its armed forces may have committed. Public declaration and authority The terms of peace must be made by a legitimate authority, and the terms must be accepted by a legitimate authority. Discrimination The victor state is to differentiate between political and military leaders, and combatants and civilians. Punitive measures are to be limited to those directly responsible for the conflict. Truth and reconciliation may sometimes be more important than punishing war crimes. Proportionality

Any terms of surrender must be proportional to the rights that were initially violated. Draconian measures, absolutionist crusades and any attempt at denying the surrendered country the right to participate in the world community are not permitted.

Alternative theories [edit]

Militarism Militarism is the belief that war is not inherently bad but can be a beneficial aspect of society. Realism The core proposition of realism is a skepticism as to whether moral concepts such as justice can be applied to the conduct of international affairs. Proponents of realism believe that moral concepts should never prescribe, nor circumscribe, a state's behaviour. Instead, a state should place an emphasis on state security and self-interest. One form of realism descriptive realism proposes that states cannot act morally, while another form prescriptive realism argues that the motivating factor for a state is selfinterest. Just wars that violate Just Wars principles effectively constitute a branch of realism. Revolution and Civil War Just War Theory states that a just war must have just authority. To the extent that this is interpreted as a legitimate government, this leaves little room for revolutionary war or civil war, in which an illegitimate entity may declare war for reasons that fit the remaining criteria of Just War Theory. This is less of a problem if the "just authority" is widely interpreted as "the will of the people" or similar. Article 3 of the 1949 Geneva Conventions side-steps this issue by stating that if one of the parties to a civil war is a High Contracting Party (in practice, the state recognised by the international community,) both Parties to the conflict are bound "as a minimum, the following [humanitarian] provisions." Article 4 of the Third Geneva Convention also makes clear that the treatment of prisoners of war is binding on both parties even when captured soldiers have an "allegiance to a government or an authority not recognized by the Detaining Power." Nonviolent struggle The "just war" criterion of "last resort" requires believers to look for alternative means of conflict. The methods of nonviolent action permit the waging of political struggle without resort to violence. Historical evidence and political theory can be examined to determine whether nonviolent struggle can be expected to be effective in future conflicts. If nonviolent action is determined effective, then the requirements for "just war" are not met.[23] Absolutism Absolutism holds that there are various ethical rules that are absolute. Breaking such moral rules is never legitimate and therefore is always unjustifiable.

A "just war" if there could be such a thing would not require conscription. Volunteers would be plentiful. Ben Salmon, An Open Letter to President Wilson (October 14, 1919)

Pacifism Pacifism is the belief that war of any kind is morally unacceptable and/or pragmatically not worth the cost. Pacifists extend humanitarian concern not just to enemy civilians but also to combatants, especially conscripts. For example, Ben Salmon believed all war to be unjust. He was sentenced to death during World War I (later commuted to 25 years hard labor) for desertion and spreading propaganda.[24]

Right of self-defence The theory of self-defence based on rational self-interest maintains that the use of retaliatory force is justified against repressive nations that break the zero aggression principle. In addition, if a free country is itself subject to foreign aggression, it is morally imperative for that nation to defend itself and its citizens by whatever means necessary. Thus, any means to achieve a swift and complete victory over the enemy is imperative. This view is prominently held by Objectivists.[25] Consequentialism The moral theory most frequently summarized in the words "the end justifies the means," which tends to support the just war theory (unless the just war causes less beneficial means to become necessary, which further requires worst actions for self-defense with bad consequences).

List of just war theorists [edit]

Cicero (106 BC43 BC) Ambrose (337/340397) St. Augustine of Hippo (354430) Gratian (Christian) (12th century) St. Thomas Aquinas (12251274) Stanislaw of Skarbimierz (13601431) Francisco de Vitoria (14921546) Francisco Suarez (15481617) AlbericoGentili (15521608) Hugo Grotius (15831645) Samuel Pufendorf (16321694) John Locke (16321704) Emerich de Vattel (17141767) John Stuart Mill (18061873) Paul Tillich (18861965)

George Barry O'Toole (18861944) Reinhold Niebuhr (18921971) H. Richard Niebuhr (18941962) Paul Ramsey (19131988) John Rawls (19212002) Murray Rothbard (19261995) Michael Quinlan (19302009) Michael Novak (1933) Michael Walzer (1935) Ron Paul (1935) Robert L. Holmes (193?) Jean BethkeElshtain (1941) Oliver O'Donovan (1945) Louis Iasiello (1950) George Weigel (1951) Jeff McMahan (1954) Brian Orend (1970)

References [edit]

Just War Theory

Just war theory deals with the justification of how and why wars are fought. The justification can be either theoretical or historical. The theoretical aspect is concerned with ethically justifying war and the forms that warfare may or may not take. The historical aspect, or the just war tradition, deals with the historical body of rules or agreements that have applied in various wars across the ages. For instance, international agreements such as the Geneva and Hague conventions are historical rules aimed at limiting certain kinds of warfare which lawyers may refer to in prosecuting transgressors, but it is the role of ethics to examine these institutional agreements for their philosophical coherence as well as to inquire into whether aspects of the conventions ought to be changed. The just war tradition may also consider the thoughts of various philosophers and lawyers through the ages and examine both their philosophical visions of wars ethical limits (or absence of) and whether their thoughts have contributed to the body of conventions that have evolved to guide war and warfare.

Table of Contents
1. 2. 3. 4. 5. 6.
Introduction The Jus Ad Bellum Convention The Principles Of Jus In Bello Jus post bellum Conclusion References and Further Reading

1. Introduction
Historically, the just war traditiona set of mutually agreed rules of combatmay be said to commonly evolve between two culturally similar enemies. That is, when an array of values are shared between two warring peoples, we often find that they implicitly or explicitly agree upon limits to their warfare. But when enemies differ greatly because of different religious beliefs, race, or language, and as such they see each other as less than human, war conventions are rarely applied. It is only when the enemy is seen to be a people, sharing a moral identity with whom one will do business in the following peace, that tacit or explicit rules are formed for how wars should be fought and who they should involve and what kind of relations should apply in the aftermath of war. In part, the motivation for forming or agreeing to certain conventions, can be seen as mutually benefitingpreferable, for instance, to the deployment of any underhand tactics or weapons that may provoke an indefinite series of vengeance acts, or the kinds of action that have proved to be detrimental to the political or moral interests to both sides in the past. Regardless of the conventions that have historically formed, it has been the concern of the majority of just war theorists that the lack of rules to war or any asymmetrical morality between belligerents should be denounced, and that the rules of war should apply to all equally. That is, just war theory should be universal, binding on all and capable in turn of appraising the actions of all parties over and above any historically formed conventions.

The just war tradition is indeed as old as warfare itself. Early records of collective fighting indicate that some moral considerations were used by warriors to limit the outbreak or to rein in the potential devastation of warfare. They may have involved consideration of women and children or the treatment of prisoners (enslaving them rather than killing them, or ransoming or exchanging them). Commonly, the earlier traditions invoked considerations of honor: some acts in war have always been deemed dishonorable, whilst others have been deemed honorable. However, what is honorable is often highly specific to culture: for instance, a suicidal attack or defense may be deemed the honorable act for one people but ludicrous to another. Robinson (2006) notes that honor conventions are also contextually slippery, giving way to pragmatic or military interest when required. Whereas the specifics of what is honorable differ with time and place, the very fact that one moral virtue is alluded to in the great literature (for example, Homers Iliad) is sufficient for us to note that warfare has been infused with some moral concerns from the beginning rather than war being a mere Macbethian bloodbath. The just war theory also has a long history. Parts of the Bible hint at ethical behavior in war and concepts of just cause, typically announcing the justice of war by divine intervention; the Greeks may have paid lip service to the gods, but, as with the Romans, practical and political issues tended to overwhelm any fledgling legal conventions: that is, interests of state or Realpolitik (the theory known as political realism would take precedence in declaring and waging war. Nonetheless, this has also been the reading of political realists, who enjoy Thucydides History of the Peloponnesian War as an example of why war is necessarily the extension of politics and hence permeated by hard-nosed state interest rather than lofty pretensions to moral behavior. Although St. Augustine provided comments on the morality of war from the Christian perspective (railing against the love of violence that war can engender) as did several Arabic commentators in the intellectual flourishing from the 9th to 12th centuries, but the most systematic exposition in the Western tradition and one that still attracts attention was outlined by Saint Thomas Aquinas in the 13th century. In the Summa Theologicae, Aquinas presents the general outline of what becomes the traditional just war theory as discussed in modern universities. He discusses not only the justification of war but also the kinds of activity that are permissible (for a Christian) in war (see below). Aquinass thoughts become the model for later Scholastics and Jurists to expand and to gradually to universalize beyond Christendom notably, for instance, in relations with the peoples of America following European incursions into the continent. The most important of these writers are: Francisco de Vitoria (1486-1546), Francisco Suarez (1548-1617), Hugo Grotius (1583-1645), Samuel Pufendorf (1632-1704), Christian Wolff (1679-1754), and Emerich de Vattel (1714-1767). In the twentieth century, just war theory has undergone a revival mainly in response to the invention of nuclear weaponry and American involvement in the Vietnam war. The most important contemporary texts include Michael WalzersJust and Unjust Wars (1977), Barrie Paskins and Michael DockrillThe Ethics of War (1979), Richard Norman Ethics, Killing, and War (1995), Brian OrendWar and International Justice (2001) and Michael Walzer on War and Justice (2001), as well as seminal articles by Thomas Nagel War and Massacre, Elizabeth Anscombe War and Murder, and a host of others, commonly found in the journals Ethics or The Journal of Philosophy and Public Affairs.

Since the terrorist attacks on the USA on 9/11 in 2001, academics have turned their attention to just war once again with international, national, academic, and military conferences developing and consolidating the theoretical aspects of the conventions. Just war theory has become a popular topic in International Relations, Political Science, Philosophy, Ethics, and Military History courses. Conference proceedings are regularly published, offering readers a breadth of issues that the topic stirs: for example, Alexander Moseley and Richard Norman, eds. Human Rights and Military Intervention, Paul Robinson, ed., Just War in a Comparative Perspective, AlexsanderJokic, ed., War Crimes and Collective Wrongdoing. What has been of great interest is that in the headline wars of the past decade, the dynamic interplay of the rules and conventions of warfare not only remain intact on the battlefield but their role and hence their explication have been awarded a higher level of scrutiny and debate. In the political circles, justification of war still requires even in the most critical analysis a superficial acknowledgement of justification. On the ground, generals have extolled their troops to adhere to the rules, soldiers are taught the just war conventions in the military academies (for example, explicitly through military ethics courses or implicitly through veterans experiences). Yet despite the emphasis on abiding by wars conventions, war crimes continue genocidal campaigns have been waged by mutually hating peoples, leaders have waged total war on ethnic groups within or without their borders, and individual soldiers or guerilla bands have committed atrocious, murderous, or humiliating acts on their enemy. But, arguably, such acts do remain atrocities by virtue of the just war conventions that some things in war are deemed to be inexcusable, regardless of the righteousness of the cause or the noise and fog of battle. Yet increasingly, the rule of law the need to hold violators and transgressors responsible for their actions in war and therefore after the battle is making headway onto the battlefield. In chivalrous times, the Christian crusader could seek priestly absolution for atrocities committed in war, a stance supported by Augustine for example; today, the law courts are seemingly less forgiving: a violation of the conventions assumes that the soldier is responsible and accountable and should be charged for a crime. Nonetheless, the idealism of those who seek the imposition of law and responsibility on the battlefield (cf. Geoffrey Robertsons Crimes Against Humanity), often runs ahead of the traditions and customs, or plain state interests, that demean or weaken the justum bellum that may exist between warring factions. And in some cases, no just war conventions and hence no potential for legal acknowledgement of malfeasance, exist at all; in such cases, the ethic of war is considered, or is implicitly held to be, beyond the norms of peaceful ethics and therefore deserving a separate moral realm where fair is foul and foul is fair (Shakespeare, MacbethI.i). In such examples (e.g, Rwanda, 1994), a peoples justification of destructiveness and killing to whatever relative degree they hold to be justifiable triumphs over attempts to establish the laws of peaceful interaction into this separate bloody realm; and in some wars, people fighting for their land or nation prefer to pick up the cudgel rather than the rapier, as Leo Tolstoy notes in War and Peace (Book 4.Ch.2), to sidestep the etiquette or war in favor securing their land from occupational or invading forces. The continued brutality of war in the face of conventions and courts of international law lead some to maintain that the application of morality to war is a nonstarter: state interest or military exigency would always overwhelm moral concerns. But there are those of a more skeptical persuasion who do not believe that morality can or should exist in war: its very nature precludes ethical concerns. But as there are several ethical viewpoints, there are also several common

reasons laid against the need or the possibility of morality in war. Generally, consequentialists and act utilitarians may claim that if military victory is sought then all methods should be employed to ensure it is gained at a minimum of expense and time. Arguments from military necessity are of this type; for example, to defeat Germany in World War II, it was d eemed necessary to bomb civilian centers, or in the US Civil War, for General Sherman to burn Atlanta. However, intrinsicists (who claim that there are certain acts that are good or bad in themselves) may also decree that no morality can exist in the state of war: they may claim that it can only exist in a peaceful situation in which, for instance, recourse exists to conflict resolving institutions. Alternatively, intrinsicists may claim that possessing a just cause (the argument from righteousness) is a sufficient condition for pursuing whatever means are necessary to gain a victory or to punish an enemy. A different skeptical argument, one advanced by Michael Walzer, is that the invention of nuclear weapons alters war so much that our notions of moralityand hence just war theoriesbecome redundant. However, against Walzer, it can be reasonably argued that although such weapons change the nature of warfare (for example, the timing, range, and potential devastation) they do not dissolve the need to consider their use within a moral framework: a nuclear warhead remains a weapon and weapons can be morally or immorally employed. Whilst skeptical positions may be derived from consequentialist and intrinsicist positions, they need not be. Consequentialists can argue that there are long-term benefits to having a war convention. For example, by fighting cleanly, both sides can be sure that the war does not escalate, thus reducing the probability of creating an incessant war of counter-revenges. Intrinsicists, on the other hand, can argue that certain spheres of life ought never to be targeted in war; for example, hospitals and densely populated suburbs. The inherent problem with both ethical models is that they become either vague or restrictive when it comes to war. Consequentialism is an open-ended model, highly vulnerable to pressing military or political needs to adhere to any code of conduct in war: if more will be gained from breaking the rules than will be lost, the consequentialist cannot but demur to military necessity. On the other hand, intrinsicism can be so restrictive that it permits no flexibility in war: whether it entails a Kantian thesis of dutifully respecting others or a classical rights position, intrinsicism produces an inflexible model that would restrain warriors actions to the targeting of permissible targets only. In principle such a prescription is commendable, yet the nature of war is not so clean cut when military targets can be hidden amongst civilian centers. Against these two ethical positions, just war theory offers a series of principles that aim to retain a plausible moral framework for war. From the just war (justum bellum) tradition, theorists distinguish between the rules that govern the justice of war (jus ad bellum) from those that govern just and fair conduct in war (jus In bello) and the responsibility and accountability of warring parties after the war (jus post bellum). The three aspects are by no means mutually exclusive, but they offer a set of moral guidelines for waging war that are neither unrestricted nor too restrictive. The problem for ethics involves expounding the guidelines in particular wars or situations.

2. The Jus Ad Bellum Convention

The principles of the justice of war are commonly held to be: having just cause, being a last resort, being declared by a proper authority, possessing right intention, having a reasonable chance of success, and the end being proportional to the means used. One can immediately detect that the principles are not wholly intrinsicistnor consequentialistthey invoke the concerns of both models. Whilst this provides just war theory with the advantage of flexibility, the lack of a strict ethical framework means that the principles themselves are open to broad interpretations. Examining each in turn draws attention to the relevant problems. Possessing just cause is the first and arguably the most important condition of jus ad bellum. Most theorists hold that initiating acts of aggression is unjust and gives a group a just cause to defend itself. But unless aggression is defined, this proscription is rather open -ended. For example, just cause resulting from an act of aggression can ostensibly be a response to a physical injury (for example, a violation of territory), an insult (an aggression against national honor), a trade embargo (an aggression against economic activity), or even to a neighbors prosperity (a violation of social justice). The onus is then on the just war theorist to provide a consistent and sound account of what is meant by just cause. Whilst not going into the reasons why the other explanations do not offer a useful condition of just cause, the consensus is that an initiation of physical force is wrong and may justly be resisted. Self-defense against physical aggression, therefore, is putatively the only sufficient reason for just cause. Nonetheless, the principle of self-defense can be extrapolated to anticipate probable acts of aggression, as well as in assisting others against an oppressive government or from another external threat (interventionism). Therefore, it is commonly held that aggressive war is only permissible if its purpose is to retaliate against a wrong already committed (for example, to pursue and punish an aggressor), or to pre-empt an anticipated attack. In recent years, the argument for preemption has gained supporters in the West: surely, the argument goes, it is right on consequentialist grounds to strike the first blow if a future war is to be avoided? By acting decisively against a probable aggressor, a powerful message is sent that a nation will defend itself with armed force; thus preemption may provide a deterrent and a more peaceful world. However, critics complain that preemptive strikes are based on conjectured rather than impending aggression and in effect denounce the moral principle that an agent is presumed innocent posturing and the building up of armaments do not in themselves constitute aggression, just a man carrying a weapon is not a man using a weapon, Consequentialist critics may also reject preemption on the grounds that it is more likely to destabilize peace, while other realists may complain that a preemptive strike policy is the ploy of a tyrannical or bullying power that justifies other nations to act in their self-interest to neutralize either through alliances or military action such is the principle behind the balance of power politics in which nations constantly renew their alliances and treatises to ensure that not one of them becomes a hegemonic power. It is also feared that the policy of preemption slips easily into the machinations of false flag operations in which a pretext for war is created by a contrived theatrical or actual stunt of dressing ones own soldiers up in the enemys uniforms, for instance, and having them attack a military or even civilian target so as to gain political backing for a war. Unfortunately, false flag operations tend to be quite common. Just war theory would reject them as it would reject waging war to defend a leaders honor following an insult. Realists may defend them on grounds of a higher necessity but such moves are likely to fail as being smoke screens for political rather than moral interests.

War should always be a last resort. This connects intimately with presenting a just cause all other forms of solution must have been attempted prior to the declaration of war. It has often been recognized that war unleashes forces and powers that soon get beyond the grips of the leaders and generals to control there is too much fog in war, as Clausewitz noted, but that fog is also a moral haze in which truth and trust are early casualties. The resulting damage that war wrecks tends to be very high for most economies and so theorists have advised that war should not be lightly accepted: once unleashed, war is not like a sport that can be quickly stopped at the blow of a whistle (although the Celtic druids supposedly had the power to stop a battle by virtue of their moral standing) and its repercussions last for generations. Holding hawks at bay though is a complicated task the apparent ease by which war may resolve disputes, especially in the eyes of those whose military might is apparently great and victory a certainty, does present war as a low cost option relative to continuing political problems and economic or moral hardship. Yet the just war theorist wishes to underline the need to attempt all other solutions but also to tie the justice of the war to the other principles of jus ad bellum too. The notion of proper authority seems to be resolved for most of the theorists, who claim it obviously resides in the sovereign power of the state. But the concept of sovereignty raises a plethora of issues to consider here. If a government is just, i.e., most theorists would accept that the government is accountable and does not rule arbitrarily, then giving the officers of the state the right to declare war is reasonable, so the more removed from a proper and just form a government is, the more reasonable it is that its claim to justifiable political sovereignty disintegrates. A historical example can elucidate the problem: when Nazi Germany invaded France in 1940 it set up the Vichy puppet regime. What allegiance did the people of France under its rule owe to its precepts and rules? A Hobbesian rendition of almost absolute allegiance to the state entails that resistance is wrong (so long as the state is not tyrannical and imposes war when it should be the guardian of peace); whereas a Lockean or instrumentalist conception of the state entails that a poorly accountable, inept, or corrupt regime possesses no sovereignty, and the right of declaring war (to defend themselves against the government or from a foreign power) is wholly justifiable. The notion of proper authority therefore requires thinking about what is meant by sovereignty, what is meant by the state, and what is the proper relationship between a people and its government. The possession of right intention is ostensibly less problematic. The general thrust of the concept being that a nation waging a just war should be doing so for the cause of justice and not for reasons of self-interest or aggrandizement. Putatively, a just war cannot be considered to be just if reasons of national interest are paramount or overwhelm the pretext of fighting aggression. However, right intention masks many philosophical problems. According to Kant, possessing good intent constitutes the only condition of moral activity, regardless of the consequences envisioned or caused, and regardless, or even in spite, of any self interest in the action the agent may have. The extreme intrinsicism of Kant can be criticized on various grounds, the most pertinent here being the value of self-interest itself. At what point does right intention separate itself from self-interest is the moral worthiness of intent only gained by acting in favor of ones neighbor, and if so, what does that imply for moral action that one should woo ones neighbors spouse to make him/her feel good? Acting with proper intent requires us to think about what is proper and it is not certain that not acting in self interest is necessarily the proper thing to do. On the one hand, if the only method to secure a general peace (some thing usually

held to be good in itself) is to annex a belligerent neighbors territory, political aggrandizement becomes intimately connected with the proper intention of maintaining the peace for all or the majority. On the other hand, a nation may possess just cause to defend an oppressed group, and may rightly argue that the proper intention is to secure their freedom, yet such a war may justly be deemed too expensive or too difficult to wage; i.e., it is not ultimately in their self-interest to fight the just war. On that account, the realist may counter that national interest is paramount: only if waging war on behalf of freedom is also complemented by the securing of economic or other military interests should a nation commit its troops. The issue of intention raises the concern of practicalities as well as consequences, both of which should be considered before declaring war. The next principle is that of reasonable success. This is another necessary condition for waging just war, but again is insufficient by itself. Given just cause and right intention, the just war theory asserts that there must be a reasonable probability of success. The principle of reasonable success is consequentialist in that the costs and benefits of a campaign must be calculated. However, the concept of weighing benefits poses moral as well as practical problems as evinced in the following questions. Should one not go to the aid of a people or declare war if there is no conceivable chance of success? Is it right to comply with aggression because the costs of not complying are too prohibitive? Would it be right to crush a weak enemy because it would be marginally costless? Is it not sometimes morally necessary to stand up to a bullying larger force, as the Finns did when Russia invaded in 1940, for the sake of national self-esteem or simple interests of defending land? Historically, many nations have overcome the probability of defeat: the fight may seem hopeless, but a charismatic leader or rousing speech can sometimes be enough to stir a people into fighting with all their will. Winston Churchill offered the British nation some of the finest of wars rhetoric when it was threatened with defeat and invasion by Nazi Germany in 1940. For example: Let us therefore brace ourselves to do our duty, and so bear ourselves that, if the British Commonwealth and its Empire lasts for a thousand years, men will still say, This was their finest hour. .And What is our aim?.Victory, victory at all costs, victory in spite of all terror; victory, however long and hard the road may be; for without victory, there is no survival. (Speeches to Parliament, 1940). However, the thrust of the reasonable success principle emphasizes that human life and economic resources should not be wasted in what would obviously be an uneven match. For a nation threatened by invasion, other forms of retaliation or defense may be available, such as civil disobedience, or even forming alliances with other small nations to equalize the odds. The final guide of jus ad bellum is that the desired end should be proportional to the means used. This principle overlaps into the moral guidelines of how a war should be fought, namely the principles of jus In bello. With regards to just cause, a policy of war requires a goal, and that goal must be proportional to the other principles of just cause. Whilst this commonly entails the minimizing of wars destruction, it can also invoke general balance of power considerations. For example, if nation A invades a land belonging to the people of nation B, then B has just cause to take the land back. According to the principle of proportionality, Bs counter-attack must not invoke a disproportionate response: it should aim to retrieve its land and not exact further retribution or invade the aggressors lands, or in graphic terms it should not retaliate with overwhelming force or nuclear weaponry to resolve a small border dispute. That goal may be tempered with attaining assurances that no further invasion will take place, but for B to invade

and annex regions of A is nominally a disproportionate response, unless (controversially) that is the only method for securing guarantees of no future reprisals. For B to invade and annex A and then to continue to invade neutral neighboring nations on the grounds that their territory would provide a useful defense against other threats and a putative imbalance of power is even more unsustainable. On the whole the principles offered by jus ad bellum are useful guidelines for reviewing the morality of going to war that are not tied to the intrinsicists absolutism or consequentialists open-endedness. Philosophically however they invoke a plethora of problems by either their independent vagueness or by mutually inconsistent results a properly declared war may involve improper intention or disproportionate ambitions. But war is a complicated issue and the principles are nonetheless a useful starting point for ethical examination and they remain a guide for both statesmen and women and for those who judge political proceedings.

3. The Principles Of Jus In Bello

The rules of just conduct within war fall under the two broad principles of discrimination and proportionality. The principle of discrimination concerns who are legitimate targets in war, whilst the principle of proportionality concerns how much force is morally appropriate. A third principle can be added to the traditional two, namely the principle of responsibility, which demands an examination of where responsibility lies in war. One strong implication of the justice of warfare being a separate topic of analysis to the justice of war is that the theory thus permits the judging of acts within war to be dissociated from it cause. This allows the theorist to claim that a nation fighting an unjust cause may still fight justly, or a nation fighting a just cause may be said to fight unjustly. It is a useful division but one that does not necessarily sever all ties between the two great principles of warfare: the justice of a cause remains a powerful moral guide by which warfare is to be judged, for what does it matter, it can be asked, if a nation wages a war of aggression but does so cleanly? In waging war it is considered unfair and unjust to attack indiscriminately since non-combatants or innocents are deemed to stand outside the field of war proper. Immunity from war can be reasoned from the fact that their existence and activity is not part of the essence of war, which is the killing of combatants. Since killing itself is highly problematic, the just war theorist has to proffer a reason why combatants become legitimate targets in the first place, and whether their status alters if they are fighting a just or unjust war. Firstly, a theorist may hold that being trained and/or armed constitutes a sufficient threat to combatants on the other side and thereby the donning of uniform alters the persons moral status to legitimate target; whether this extends to peaceful as well as war duties is not certain though. Voluntarists may invoke the boxing ring analogy: punching another individual is not morally supportable in a civilized community, but those who voluntarily enter the boxing ring renounce their right not to be hit. Normally, a boxer does not retain the right to hit another boxer outside of the ring, yet perhaps a soldiers training creates a wholly different expectation governing his or her status and that wearing the uniform or merely possessing the training secures their legitimacy as a target both on and off the battlefield. Such an argument would imply that it is right to attack unarmed soldiers or soldiers who have surrendered or who are enjoying the normality of civilian life, which just war theorists and

historical conventions have traditionally rejected on the claim that when a soldier lays down his weapons or removes his uniform, he or she returns to civilian life and hence the status of the non-combatant even if that return is temporary. Conversely, in joining an army the individual is said to renounce his or her rights not to be targeted in war the bearing of arms takes a person into an alternative moral realm in which killing is the expectation and possible norm: it is world removed from civilian structures and historically has evolved rites of passage and exit that underline the alteration in status for cadets and veterans; all analogies to the fair play of sports fail at this juncture, for war involves killing and what the British Army call unlimited liability. On entering the army, the civilian loses the right not to be targeted, yet does it follow that all who bear uniform are legitimate targets, or are some more so than others those who are presently fighting compared to those bearing arms but who are involved in supplies or administration, for instance? Others, avoiding a rights analysis for it produces many problems on delineating the boundaries of rights and the bearers, may argue that those who join the army (or who have even been pressed into conscription) come to terms with being a target, and hence their own deaths. This is argued for example by Barrie Paskins and Michael Dockrill in The Ethics of War (1979). However, since civilians can just as readily come to terms with their own deaths and it is not necessarily the case that a soldier has, their argument, although interesting, is not sufficient to defend the principle of discrimination and why soldiers alone should be targeted legitimately in war. In turn, rights-based analyses may be more philosophically productive in giving soldiers and critics crucial guidelines, especially those analyses that focus on the renouncing of rights by combatants by virtue of their war status, which would leave nominally intact a sphere of immunity for civilians. Yet what is the status of guerrilla fighters who use civilian camouflage in order to press their attacks or to hide? Similarly, soldiers on covert operations present intricate problems of identification and legitimization: is there a difference between the two? Referring back to the fighters cause (for example, the guerrilla is a freedom fighter and thus carries a moral trump card) creates its own problems, which the just war theory in dividing the justice of the cause from the justice of the manner in which war is fought attempts to avoid: the guerrilla fighter may breach codes of conduct just as the soldier on a politically sensitive covert operations may avoid targeting the wrong people. Walzer, in his Just and Unjust Wars (1977) claims that the lack of identification does not give a government the right to kill indiscriminatelythe onus is on the government to identify the combatants, and so, the implication goes, if there is any uncertainty involved then an attack must not be made. Others have argued that the nature of modern warfare dissolves the possibility of discrimination: civilians are just as necessary causal conditions for the war machine as are combatants, therefore, they claim, there is no moral distinction in targeting an armed combatant and a civilian involved in arming or feeding the combatant. The distinction is, however, not closed by the nature of modern economies, since a combatant still remains a very different entity from a non-combatant, if not for the simple reason that the former is presently armed (and hence has renounced rights or is prepared to die, or is a threat), whilst the civilian is not. On the other hand, it can be argued that being a civilian does not necessarily mean that one is not a threat and hence not a legitimate target. If Mr Smith is the only individual in the nation to possess the correct combination that will detonate a device that could kill thousands, then he becomes not only causally efficacious in the firing of a weapon of war, but also morally responsible;

reasonably he also becomes a legitimate military target. His job effectively militarizes his status even though he does not bear arms. The underlying issues that ethical analysis must deal with involve the logical nature of an individuals complicity and the aiding and abetting the war machine, with greater weight being imposed on those logically closer than those logically further from the war machine in their work. At a deeper level, one can consider the role that civilians play in supporting an unjust war: to what extent are they morally culpable, and if they are culpable in giving moral, financial, or economic support to some extent, does that mean they may become legitimate targets? This invokes the issue of collective versus individual responsibility that is in itself a complex topic but one that the principle of discrimination tries to circumvent by presenting guidelines for soldiers that keep their activity within the realms of war and its effects rather than murder. It would be wrong, on the principle of discrimination, to group the enemy into one targetable mass of people some can not be responsible for a war or its procedures, notably children. Yet, on the other hand, if a civilian bankrolls a war or initiates aggression as a politician, surely he or she bears some moral responsibility for the ensuing deaths: some may argue that the wars justification rests upon such shoulders but not the manner in which it is fought, while others may prefer to saddle the leader or initiator with the entire responsibility for how a war is fought on the argument that each combatant is responsible for those below him or her in rank so the political or civilian leaders are analogously responsible for all operating in the military field. The second principle of just conduct is that any offensive action should remain strictly proportional to the objective desired. This principle overlaps with the proportionality principle of just cause, but it is distinct enough to consider it in its own light. Proportionality for jus In bello requires tempering the extent and violence of warfare to minimize destruction and casualties. It is broadly utilitarian in that it seeks to minimize overall suffering, but it can also be understood from other moral perspectives, for instance, from harboring good will to all (Kantian ethics), or acting virtuously (Aristotelian ethics). Whilst the consideration of discrimination focuses on who is a legitimate target of war, the principle of proportionality deals with what kind of force is morally permissible. In fighting a just war in which only military targets are attacked, it is still possible to breach morality by employing disproportionate force against an enemy. Whilst the earlier theoreticians, such as Thomas Aquinas, invoked the Christian concepts of charity and mercy, modern theorists may invoke either consequentialist or intrinsicist prescriptions, both of which remain problematic as the foregoing discussions have noted. However, it does not seem morally reasonable to completely gun down a barely armed albeit belligerent tribe. At the battle of Omdurman in 1898 in the Sudan, six machine gunners killed thousands of dervishesthe gunners may have been in the right to defend themselves, but the principle of proportionality implies that a battle end before it becomes a massacre. Similarly, following the battle of Culloden in 1746 in Scotland, Cumberland ordered No Quarter, which was not only a breach of the principle of discrimination, for his troops were permitted to kill the wounded as well as supporting civilians, but also a breach of the principle of proportionality, since the battle had been won, and the Jacobite cause effectively defeated on the battle field. What if a war and all of its suffering could be avoided by highly selective killing? Could just war theory endorse assassination for instance? Assassination programs have often been secretly accepted and employed by states throughout the centuries and appeal, if challenged, is often to a

higher value such as self-defense, killing a target guilty of war crimes and atrocities, or removing a threat to peace and stability. The CIA manual on assassination (1954, cf. Belfield), sought to distinguish between murder and assassination, the latter being justifiable according to the higher purposes sought. This is analogous to just war theorists seeking to put mass killing on a higher moral ground than pure massacre and slaughter and is fraught with the same problems raised in this article and in the just war literature. On grounds of discrimination, assassination would be justifiable if the target were legitimate and not, say, the wife or children of a legitimate target. On grounds of proportionality, the policy would also be acceptable, for if one man or woman (a legitimate target by virtue of his or her aggression) should die to avoid further bloodshed or to secure a quicker victory, then surely assassination is covered by the just war theory? The founder of the Hashshashin society (c.11-13thC), Hasanibn el Sabah preferred to target or threaten warmongers rather than drag innocents and noncombatants into bloody and protracted warfare: his threats were often successful for he brought the reality of death home to the leaders who otherwise would enjoy what lyricist Roger Waters calls the bravery of being out of range. In recent years, the US and UK proclaimed that the war in the Gulf was not with the Iraqi people but with its leader and his regime; the US government even issued a bounty on the heads of key agents in the Baath party; indeed, Saddam Husseins sons, Uday and Qusa y with a bounty of 15m, were killed in a selective hunt and destroy mission rather than being captured and brought to trial for the crimes asserted of them. Assassination would apparently clear the two hurdles of discrimination and proportionality, yet the intrinsicist wing of just war theorists would reasonably claim that underhand and covert operations, including assassination, should not form a part of war on grounds that they act to undermine the respect due ones enemy (not matter how cruel he or she is) as well as the moral integrity of the assassin; the consequentialists would also counter that such policies also encourage the enemy to retaliate in similar manner, and one of the sustaining conclusions of just war theory is that escalation or retaliatory measures (tit for tat policies) should be avoided for their destabilizing nature. Once initiated, assassination tends to become the norm of political affairs indeed, civil politics would thus crumble into fearful and barbaric plots and conspiracies (as did Rome in its last centuries) in a race to gain power and mastery over others rather than to forge justifiable sovereignty. The principles of proportionality and discrimination aim to temper wars violence and range; while they may ostensibly imply the acceptance of some forms of warfare, their malleability also implies that we continuously look afresh upon seemingly acceptable acts. Accordingly, they are complemented by other considerations that are not always explicitly taken up in the traditional exposition of jus In bello, this is especially true in the case of the issue of responsibility. Jus in bello requires that the agents of war be held responsible for their actions. This ties in their actions to morality generally. Some, such as Saint Augustin e argues against this assertion: who is but the sword in the hand of him who uses it, is not himself responsible for the death he deals. Those who act according to a divine command, or even Gods laws as enacted by the state and who put wicked men to death have by no means violated the commandment, Thou shalt not kill. Whilst this issue is connected to the concepts of just cause, it does not follow that individuals waging a just, or unjust war, should be absolved of breaching the principles of just conduct. Readily it can be accepted that soldiers killing other soldiers is part of the nature of warfare for which soldiers ought to be prepared and trained, but when soldiers turn their weapons against non-combatants, or pursue their enemy beyond what is reasonable, then they are no

longer committing legitimate acts of war but acts of murder. The principle of responsibility reasserts the burden of abiding by rules in times of peace on those acting in war to remind them that one day they will once more take up civilian status and should be prepared to do so conscientiously, free of any guilt from war crimes. The issues that arise from this principle include the morality of obeying orders (for example, when one knows those orders to be immoral), as well as the moral status of ignorance (not knowing of the effects of ones actions either reasonably or literally). Responsibility for acts of war relate back to the tenets of jus ad bellum as well as jus in bello, for the justification of going to war involves responsibility as well as the acts ordered and committed in war. In reviewing the stories from military ethics readers, the acts of bravery that attract our attention involve soldiers standing up to do the right thing against either the prevailing momentum of the platoon or the orders from higher up; the realist rejects such acts as infrequent or unnecessary performances that do not alter the main characteristic of war and its innate brutality, yet such acts also remind the critic as well as the soldier of the importance of returning to the civilian mode with good conscience. The aftermath of war involves the relinquishing of armed conflict as a means of resolving disputes and the donning of more civil modes of conduct but it also raises questions concerning the nature of the post bellum justice.

4. Jus post bellum

Following the cessation of a war, three possibilities emerge: either the army has been defeated, has been victorious, or it has agreed to a ceasefire. Principles of justice may then be applied to each situation. Orend presents a useful summary of the principles of jus post bellum : the principle of discrimination should be employed to avoid imposing punishment on innocents or non-combatants; the rights or traditions of the defeated deserve respect; the claims of victory should be proportional to the wars character; compensatory claims should be tempered by the principles of discrimination and proportionality; and, controversially, the need to rehabilitate or re-educate an aggressor should also be considered. It has often been remarked that justice, like history, is written by the victors. A defeated army and indeed the civilian body from which the army stems should thus be prepared to subject itself to the imposition of rules and forms of punishments, humiliation, and even retributions that it would not otherwise agree to. The lives, values, and resources that have been fought for must now be handed over to the conquerors. When put this way, when one readily imagines ones own countrys army falling to an aggressive enemy, the terms immediately appear fearful and unjust and may stir a greater endeavor to make the victory hollow by the raising of guerrilla or even terrorist organizations to thwart the conquerors designs. Yet when ones own army is victorious, the partiality of victory can be so easily dismissed on the enthusiastic wave that accompanies triumph: victory is so often associated with the greater right when ones own country vanquishes its enemy, and assumedly with that right comes the justification to impose conditions upon the vanquished. In so many wars in history, both ancient and modern, victory has provided the winners with the means of exploiting the defeated nation

and for claiming rights over its lands and people whether in the form of enslavement or in monopolistic mercantile contracts; sometimes an appeal to divine justice is made; at other times the supremacy of ones nation, race, creed, or political order is lauded over the defeated. Economic exploitation is not the only means of subjugating the defeated: new political or religious frameworks can also be imposed sometimes as a means of rehabilitating the defeated or as a means to avoid the circumstances (political or economic) that may bring about further warfare; the philosopher must naturally inquire as to the justice of such measures. The just war theorist is keen to remind warriors and politicians alike that the principles of justice following war should be universalizable and morally ordered and that victory should not provide a license for imposing unduly harsh or punitive measures or that state or commercial interests should not dictate the form of the new peace. Similarly, imposing an alternative political or religious is not likely to be conducive to peace, as Edmund Burke prophetically warned about decreeing for the rights of man in an unprepared culture; re-educating a defeated military or bureaucracy may seem reasonable and arguably was successful in post-war Germany (1945), yet such a program may also be so superficial or condescending as to have only short term and illusory benefits or act to further humiliate the defeated into seething desire for revenge. In postwar Iraq (2003-date), the rehabilitation programs have met with mixed success and have often been criticized for favoring some ethnic groups over others, i.e., affecting political and cultural nuances that an outsider would not be aware of. Criticism may stem from either intrinsicist reasons (that the defeated should still be viewed as a people deserving moral respect and their traditions held as sacrosanct) or consequentialist reasons (that punitive impositions are likely to produce a backlash); but again it is worth reminding that just war theory tends to merge the two to avoid awkward implications derived from either position singly. At this point, the attraction for jus post bellum thinkers is to return to the initial justice of the war. Consider a war of self-defense: this is considered by most, except absolute pacifists, to be the most justifiable of all wars. If the people are defeated but their cause remains just, should they then continue the fight to rid their country of all the vestiges of occupation? What if fighting is impossible? Should they bow their heads in honorable defeat and accept the victors terms graciously? Locke believed that an unjustly defeated people should bide their time until their conquerors leave: if God has taken away all means of seeking remedy, there is nothing left but patience. (Second Treatises, 177); however, the right always remains with those who fought against an unjust war but they do not gain any moral right to attack indiscriminately or disproportionately (such as terrorizing the invaders own civilians or soldiers at rest), although they may carry on their claim for freedom over the generations. A realist, however, may ask how a people are to regain their freedom if they do not raise arms against their sea of troubles? Nonetheless, if the good fight is to continue, most theorists follow Locke and prohibit breaches of the jus in bello principles: while it would be wrong to bow to a tyrant or conquering army, it would be immoral to target their families in order to encourage the occupying army to leave. Others may counsel civil disobedience and other forms of intransigence to signal displeasure. If, on the other hand, the victors have won a just war against an aggressor, Locke argues that the victors right does not extend to the aggressive nations civilian population, but that it does

extend to all those engaged in the aggression and that it extends absolutely: that is, the just conqueror has absolute rights of life and death over the defeated aggressors. The aggressor, one who initiates war, puts the individual or the community into a state of war, he argues, and so the defender has an absolute prerogative to use whatever force necessary to secure freedom and peace: accordingly, in victory, the victors may enslave or kill the aggressors. Lockes is an extreme although not logically incoherent position and his exhortations may be compared to other moral positions (often emerging from religious thinking) to temper the justice in favor of other virtues such as charity, liberality, and justice. Indeed, King Alfred the Great of Wessex (c.878AD) defeated the Viking invader Guthrum in battle and rather than executing him as the Vikings would have done Alfred, he ordered them to join the Christian religion and then, and probably more importantly, offered them a stake in the land: toleration merged with prudence and self-interest ensured Guthrum was no longer a threat. Indeed, Machiavelli warned that killing an opponents family is likely to raise their ire but taking away their land is guaranteed to continue the fight over generations. It may be reasonably held that the aggressors deserve punishment of some sort, although Alfreds example highlights an alternative view of dealing with an enemy, one that reminds the theorist that peace not further war remains the goal. But what if the defeated aggressors are guilty of atrocities, surely they should be made to stand trial to send a signal to other war criminals as well as to punish them for their own misdeeds? Here we enter the debates regarding punishment: does punishing a violator make any sense except to exact either retribution, revenge, or to promote a deterrence? Can the victors be sure of their claim to punish the aggressors and what good could possibly flow from bringing more violence or enslavement to the world? In asserting the need to find universalisable principles, the just war theorist is usually keen to insist that any war crimes trials are held in neutral states and presided over by neutral parties, rather than the victors whose partiality in proceedings must be presumed: after all, in the Nuremberg and Tokyo trials, no allied generals or politicians were held accountable for the atrocities created by bombing civilian centers in Germany and Japan and the dropping of nuclear bombs on Hiroshima and Nagasaki. The end game and hence the jus post bellum certainly merit attention before the battles are lost or won: what should be the ruling affairs once the peace is proclaimed? Should the terms of wars end be elaborated and publicly pronounced as to ensure all parties are aware of the costs of defeat? Is it right that an army should demand unconditional surrender, for instance, when such a policy may entail a protracted war for no incentive is given to the other side to surrender; on the other hand, unconditional surrender implies a derogatory view of the enemy as one not to be respected either in or after war. Yet if an unconditional surrender policy does suitably raise the stakes of fighting war it may act as a sufficient deterrent against possible aggressors or act as a useful diplomatic tool to bring a worried enemy back to peaceful overtures. Similarly, is it right that an army should demand reparations in advance rather than leave them undisclosed and thereby risk the uncertainty of punishment creating a backlash from the defeated, who may not wish to be so subjected? To keep the expected conditions of wars end secretive does not seem a wise move in that uncertainty generates fear, and fear can generate a harder campaign than otherwise would be necessary; but if the publicized conditions appear onerous to the enemy, then they have good reasons to prolong and/or intensify their own fight. Of course, if promises of an amnesty or fair treatment of prisoners is reneged on by the victor, then all trust for future arrangements is lost and the consequences imply embedding hatreds and mistrust for generations.

Assume that victory is given, that the army has defeated its enemy on the battlefield so attention turns to the nature of the post bellum justice of dealing with the defeated regardless of its intentions beforehand. Arguably, the very nature of the warring participants vision of each other and of themselves will color the proceedings both politically and morally. A victorious side, for instance, that sees itself as rightfully triumphant is more likely to impose its will and exactions upon the defeated in a more stringent manner in which a victorious side that sees itself as its enemys equal; but universality demands seeing ones enemy as oneself and understanding not just the Realpolitik of state interests and state gains in victory but also the conventions of magnanimity and honor in victory (or defeat). Consider the demands for reparations. A defeated aggressor may just be asked to pay for the damage incurred by the war (as justice demands of criminals that they pay for their crimes). But to what extent should the reparations extend? Should there be demands for retribution and deterrence added in, so that those deemed responsible for their aggression should be put on trial and suitably punished (and what would suitable mean in this instance that Saddam Hussein stand trial for his invasion of Kuwait implies that George W Bush similarly stand trial for his invasions of Afghanistan and Iraq?). In forming the conditions of defeat, should neutral third parties be turned to so as to avoid later accusations of victors justice and the partiali ty that such justice can invoke or imply, or does victory present the victor with the ultimate moral wreath to justify whatever demands seen appropriate or fitting? Should a war be indecisive though, the character of the peace would presumably be formed by the character of the ceasefire namely, the cessation of fighting would imply a mere hiatus in which the belligerents regain the time and resources to stock their defenses and prepare for further fighting. As such, a ceasefire would be merely a respite for the military to regain its strengths. However, just war theory also acts to remind contenders that war is a last resort and that its essential aim is always peace, so if peace is forthcoming in any guise, it is morally critical for all parties to seek a return to a permanent peace rather than a momentary lapse of war.

5. Conclusion
This article has described the main tenets of the just war theory, as well as some of the problems that it entails. The theory bridges theoretical and applied ethics, since it demands an adherence, or at least a consideration of meta-ethical conditions and models, as well as prompting concern for the practicalities of war. A few of those practicalities have been mentioned here. Other areas of interest are: hostages, innocent threats, international blockades, sieges, the use of weapons of mass destruction or of anti-personnel weapons (for example, land mines), and the morality and practicalities of interventionism.

6. References and Further Reading

Anscombe, Elizabeth. (1981) War and Murder. In Ethics, Religion, and Politics. University of Minnesota Press. pp. 51-71. Aquinas, St Thomas. (1988). Politics and Ethics. Norton. Augustine, St. (1984). City of God. Penguin.

Belfield, Richard (2005). Assassination: The Killers and their Paymasters Revealed. Magpie Books. Burke, Edmund (1986). Reflections on the Revolution in France. Penguin. Dockrill, Michael and Barrie Paskins (1979). The Ethics of War. Hobbes, Thomas (1988). Leviathan. Penguin. JokicAlexsander, and Anthony Ellis eds. (2001), War Crimes and Collective Wrongdoing. WileyBlackwell. Locke, John (1963). Two Treatises of Government. Cambridge University Press. Machiavelli, Nicolo (1988). The Prince. Cambridge University Press. Minear, Richard (1971). Victors Justice: The Tokyo War Crimes Trial. Princeton. Moseley, Alexander and Richard Norman, eds. (2001) Human Rights and Military Intervention. Ashgate. Moseley, Alexander (2006). An Introduction to Political Philosophy. Continuum. Nagel, Thomas (1972). War and Massacre. Philosophy and Public Affairs . Vol. 1, pp. 123-44. Norman, Richard (1995). Ethics, Killing, and War. Orend, Brian (2001). War and International Justice. Wilfrid Laurier Press. Orend, Brian (2006). The Morality of War. Broadview. Robertson, Geoffrey (1999). Crimes Against Humanity. Robinson, Paul ed., (2003) Just War in a Comparative Perspective. Ashgate. Robinson, Paul. (2006). Military Honour and the Conduct of War. Routledge. Thucydides (1974). History of the Peloponnesian War. Penguin. Tolstoy, Leo (1992). War and Peace. Everyman. Walzer, Michael (1978). Just and Unjust Wars. Basic Books.

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Alexander Moseley Email: alex@classical-foundations.com United Kingdom Last updated: February 10, 2009 | Originally published: February/10/2009 Categories: Philosophy of Law

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Just war theory is the attempt to distinguish between justifiable and unjustifiable uses of organized armed forces. Unfamiliar with the basic terms of analysis and debate? Then check out the BBC's introduction to the ethics of warfare, or (for more detailed introductions) read Brian Orend's excellent introduction to the topic of "war" in the Stanford Encyclopedia of Philosophy and/or Alexander Moseley's entry on "just war theory" in the Internet Encyclopedia of Philosophy. (Updated 5/2/2011) Just war theories attempt to conceive of how the use of arms might be restrained, made more humane, and ultimately directed towards the aim of establishing lasting peace and justice. Contrary to facile accusations of absurdity, the idea of fighting for peace actually does make sense in theory. There is no more contradiction in waging war to keep warfare in check than there is in fighting fire with fire (which firefighters do all the time). Unfortunately, however, what makes sense in theory too often fails in practice. World War I was touted in the U.S. as "the war to end all war." Yet, the world has seen a lot of warfare since the end of WWI, some of it in more or less direct consequence of that war. Armed human conflicts turn out to be more complex, varied and difficult to control than something as relatively simple and predictable as fire. Moreover, as Barbara Ehrenreich explains in her essay on "The Roots of War", warfare tends to engender more warfare. (Imagine a fire that generates its own fuel.) Arguably, we should therefore promote and actively engage in it only on the rarest of occasions, excercising nearly "infinite caution" (to borrow a phrase from Edmund Burke). Just and peace-promoting war efforts are exceedingly rare in human history. This is the reason why nearly every major figure in the just war tradition, from Augustine and Aquinas to Grotius and Walzer, has argued that warfare is only ever justified as a LAST RESORT. In many academic enumerations of the principles of just war theory, the principle of last resort shows up at the end of the list. It is, however, the FIRST PRINCIPLE of just war theory, because the ultimate justifying aim of the resort to arms is the protection of innocent lives and this aim is usually best pursued by peaceful means. For this reason, Vincent Ferraro's introductory statement of the conventional Principles of the Just War is exemplary. The importance of the principle of last resort is not entirely uncontroversial, however. Peter S. Temes, for one,

argues that the experiences of the 20th century, especially WWII and the war in former Yugoslavia, should lead us to abandon the principle of last resort. (See the JWT Book Reviews page for a review of Temes' book, The Just War: An American Reflection on the Morality of War in Our Times. (Updated 5/1/05) And in his excellent (more advanced than introductory) article on "Proportionality in the Morality of War," Philosophy & Public Affairs, Volume 33, Number 1, 2005, Thomas Hurka argues that the principle of last resort is reducible to the requirement that the morally relevant harms of just warfare should be "proportionate" in the sense that they must not outweigh the morally relevant benefits. (Updated 5/14/07) Just war theory is not a settled doctrine. It is a field of critical ethical reflection. That's why there are nearly as many just war theories as there are just war theorists. The differences between competing just war theories are sometimes subtle, and sometimes dramatic. So, instead of allowing some traditional, popular or conventionally accepted notions tell you what is required to justify the use of lethal armed forces, let your first lesson in just war theory be one that you teach yourself in a simple reflective exercise: Start by thinking of a paradigm case or prime example from history which strikes you intuitively as being an instance of an ethically acceptable, or perhaps even laudable use of armed forces. And ask yourself what makes it so. If you can neither think of a single example in history, nor imagine any possible future instances of the justifiable use of lethal arms, then you may be an absolute pacifist. If you cannot think of a single ethically condemnable act of warfare, and you "love the smell of napalm in the morning," then you may belong to the realpolitik camp. If you can think of some limited class of ethically condemnable instances or forms of warfare, and your head is swimming with great examples of ethically acceptable and even laudable warfare, then you may be a relatively hawkish just war theorist. If your head is swimming with historical examples of condemnable warfare, and you can think only of a relatively limited class of ethically acceptable instances, and few or no laudable ones, then you may be a relatively dovish just war theorist (like me). The theoretical task of the just war theorist is to figure out what sets the ethically acceptable and laudable examples apart from the rest. (Posted 8/30/05) Just war theorists have traditionally concerned themselves with the grounds for going to war in the first place (i.e. jus ad bellumprinciples) and with that standards of ethical conduct that soldiers are expected to uphold in the course of fighting wars (i.e. jus in bello principles). Historically such arguments of ethical theory have helped to shape the evolving rules, conventions and policies that govern the practice of war. This means that public debates of the sort that this website is designed to foster may sometimes boost the effective standards of moral courage and decency that are expected of military commanders and soldiers. The 2009 PBS Frontline documentary Rules of Engagement looks at how one controversial day in the life of a handful of

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Marines in Haditha led to a significant change in the U.S. jus in bello rules for counterinsurgency warfare. After watching the video, you can test your knowledge of the jus in bello rules of engagement by taking this quiz. (Posted 11/26/11) In addition to jus ad bellum and jus in bello considerations, just war theorists are also concerned that warfare should be suspended and settled in ways that help to prevent more of the same. As Brian Orend suggests, we must also concern ourselves with "Justice After War". (Posted 11/5/04) For more on this important topic, see the Jus Post Bellum section below. The tradition of just war theory and the international war conventions that emerged from it help us to see many of the ways in which the use of arms might be limited and controlled for the sake of international peace. In some ways, however, this tradition (as with every tradition) fails to provide us with complete, reliable guidance for contending with present and future political realities. As Thomas B. Baines argues, "The future of peacekeeping missions will be focused on activities and objectives not anticipated by the framers and developers of traditional Laws of War." (Posted 11/5/04) In "How Has War Changed Since the End of the Cold War?" (Perameters, US Army War College Quarterly, Spring 2005), Colin S. Gray argues for the following broad realpolitik conclusions: "First, the objective nature of war, as Clausewitz put it, is not changing at all. His theory of war [see CLASSICS section below] will apply to all modes of armed conflict in the future. An understanding of that theory is vastly more important than is a grasp of the latest military possibilities enabled by technological, organizational, and doctrinal change. . . Second, the leading driver toward, and in, war, is the political context . . . Third, war is about the peace that will follow. . . Fourth and finally, one should never forget that over time all trends decline and eventually expire . . . [and] that a major source of trouble lurks beyond the power of prediction in Secretary Rumsfeld's concept of the 'unknown unknowns.'" (Posted 4/2/05) Richard Falk offers a very lucid reflection on the history of the political ethics of warfare from the first world war to the post-9/11 era in this video lecture from San Diego State University's Institute for Ethics and Public Affairs, March 9, 2004. (Posted 1/7/06) When it comes to economic and military foreign policy 'imperialism' is a dirty word. Dissenters at home and abroad often condemn war mongers as 'imperialists'. But what is imperialism, you ask? Michael Parenti offers an explanation in "Imperialism 101. (Posted 2/24/06) Robert Sapolsky's "A Natural History of Peace" (Foreign Affairs January/February 2006) asks "So what does primatology have to say about war and peace?" Sapolsky's finding: "Contrary to what was believed just a few decades ago, humans are not "killer apes" destined for violent conflict, but can make their own history." (3/3/06)

Princeton's WebMedia page includes several good, accessible philosophical video lectures on warfare. Mark Juergensmeyer's February 2006 lectures include reflections on "God and War: The Odd Appeal of War", in which he suggests that war is "a way of thinking and living through chaos in order to become free from it"; reflections on the question "Are We at War?"in which he ponders the peculiarities of the age of terrorism/counter-terrorism; and reflections on the question "What Does God Have to Do with It?" Also available from Princeton are videos of Arun Gandhi's November 2001 discussion of the power of nonviolence in "Terrorism, Nonviolence, and Justice"; and Jean BethkeElshtain's October 2001 plea for a strong military response to 9-11 in "Just War and Military Intervention". (Note that these links are to 300k RealPlayer files, because that's what I use. If you use different software or need something slower, look for alternatives on the WebMedia page.) (Posted 4/24/06) "Whenever it is right to resist an assault by force, it must then be allowable to do so by guile." So says Sissela Bok in Lying: Moral Choice in Public and Private Life, and most ethicists would likely agree. Accordingly, just war theorists pondering issues of "last resort" or military "necessity" should consider the ethics of espionage and other covert means short of war that might be equally or more effective in achieving legitimate security aims. For a good introduction, see David L. Perry's "Repugnant Philosophy:Ethics, Espionage, and Covert Action," Journal of Conflict Studies, Spring 1995. For a review of the state of intelligence studies as an academic sub-discipline of international relations, see Gustavo Diaz Matey's "Intelligence Studies at the Dawn of the 21st Century: New Possibilities and Resources for a Recent Topic in International Relations," UNISCI Discussion Papers, May 2005. (Posted 2/12/07) In "Jus Ad Bellum After 9/11: A State of the Art Report," forthcoming in the International Political Theory Beacon, June 2007, Mark Rigstad presents an overview and critical assessment of how just war theoretic principles of just cause, discrimination, and proportionality have been applied in the Global War on Terror. (6/17/07) Contrary to Barbara Ehrenreich's argument against simplistic biological accounts of the nature of war (above), Steven A. LeBlanc argues in "Why Warfare?" that it makes perfectly good sense to think of warfare as something that is caused by complex interactions between human biology and limited environmental resources. (Posted 6/2/07) Arthur H. Westing, Warwick Fox, and Michael Renner further examine the environmental dimension of warfare in "Environmental Degradation as Both Consequence and Cause of Armed Conflict," Nobel Peace Laureate Forum, June 2001. These considerations do not completely undercut Ehrenreich's insight (above). The dichotomy between nature and nurture is best taken as representing two aspects of the causal story, rather than two mutually exclusive causal models. Warfare occurs as a result of complex biological and environmental

causes, AND it is also fueled by the development of war-making industries, institutions and mentalities. (Posted 8/31/07) It is vacuous to say that the use of armed force is proportionate only when it does more good than harm unless one can also say something about the full range of things that can count as ethically relevant goods and harms. Too often, I think, the harms of war are tallied only in terms of human "casualities," the injuries and deaths that are suffered as a direct result of military action. In order to take a broader, more complete view of the actual harms of war, one should also consider "Some of the ways that military actions can affect the ecosystem" (by Roland Wall, Know Your Environment, February 2002). (Posted 12/28/09) Waging war typically, if not always, involves killing. So, in order to understand the difficulty of conceiving of any ethically justifiable wars, it's a good idea to start by thinking long and hard about what's wrong with killing if and when it is wrong. Richard Norman has done this in his book, Ethics, Killing, and War, Cambridge University Press, 1995. To hear what he has to say about the topic, listen to this BBC/Open2.net podcast. (Posted 9/6/10) In his November 2012 NY Times op ed "Rethinking the 'Just War,' Part 1" and "Part 2," Jeff McMahan explains to a wide readership the traditional character, the contemporary relevance, and the future shape of just war theory. P

CLASSIC SOURCES:

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The Just War Tradition: Every educated citizen should reflect on the premodern, proto-modern, and modern classics of the just war tradition. Follow these links to read Francisco de Victoria's classic relectiones (1557) "On the Indians" and "On the Law of War"), Hugo Grotius's erudite and systematic masterpiece on the The Laws of War and Peace (1625), Book X of Charles de Secondat, Baron de Montesquieu's The Spirit of Laws (1748), Emmerich de Vattel's treatise on the Law of Nations (1758), and Immanuel Kant's essay on "Perpetual Peace" (1795). Just war theory is typically considered to be an essential rights-based or deontological theory. Yet, as we have defined it here -- as the attempt to distinguish between ethical justifiable and unjustifiable uses of organized armed forces -- one might take a utilitarian approach to just war theory instead. Consider, for example, Jeremy Bentham's treatment of war. Among more recent works, Thomas Nagel's "War and Massacre", Philosophy and Public Affairs, Winter 1972, is a classic Vietnam-era philosophical argument for principled moral restraint in warfare. Murray Rothbard sketches a libertarian approach in his essay on "Just War," Ludwig von Mises Institute, 1994. Michael Walzer'sJust and Unjust Wars (1977) is the consensus favorite to join the pantheon of modern classics in just war theory. The Carnegie Council has published a transcript of Walzer'sgeneral lecture with Q&A about his more recent book, Arguing about War. (Updated

5/28/11) In "Responsibility and Proportionality in State and Nonstate Wars," Parameters: US Army War College Quarterly, Spring 2009, Vol. XXXIX, No. 1, Walzer argues that assignments of responsibility for creating risks of harm to innocent civilians take priority over judgments about the proportionality or disproportionality of the harms that they suffer (e.g. in Gaza, etc.). (Added 11/16/09) Jeff McMahan's work in the field of just war theory systematically works out an alternative to Walzer's approach. Here is his video keynote address on the subject of pacifism for the 2nd On-line Philosophy Conference (OPC2) on May 21, 2007. (Added 5/30/07) And here are online versions of some of his articles: "Innocence, Self-Defense & Killing in War," The Journal of Political Philosophy 2, no. 3 (September 1994): 193-221; "Revising the Doctrine of Double Effect," The Journal of Applied Philosophy 11, no.2 (1994): 201-212; "Intervention and Collective Self-Determination," Ethics and International Affairs 10 (1996): 1-24; "War as Self-Defense," Ethics and International Affairs, 18, no. 1 (Winter 2004): 13-18; "Unjust War in Iraq," The Pelican Record, Volume XLI, Number 5, December 2004; "Preventive War and the Killing of the Innocent," in David Rodin and Richard Sorabji, eds., The Ethics of War: Shared Problems in Different Traditions (Aldershot, UK: Ashgate Publishing, 2005): 169-90; "Just Cause for War," Ethics and International Affairs 19, no. 3 (2005): 1-21.; "Torture, Morality, and Law," Case Western Reserve Journal of International Law, 37, nos. 2 & 3 (2006): 241-48; "Killing in War: a Reply to Walzer," Philosophia 34 (2006): 47-51; "Liability and Collective Identity: A Response to Walzer," Philosophia 34 (2006): 13-17; "On the Moral Equality of Combatants," Journal of Political Philosophy 14, no. 4 (2006): 377-93; "Collectivist Defenses of the Moral Equality of Combatants," Journal of Military Ethics 6, no. 1 (2007); "Just War," in Robert E. Goodin, Philip Pettit, and Thomas Pogge, eds., A Companion to Contemporary Political Philosophy, 2nd edition (Oxford: Blackwell, 2007); "The Sources and Status of Just War Principles," Journal of Military Ethics 6, no. 2, special issue: "Just and Unjust Wars: Thirty Years On" (2007): 91-106; "Precis of The Morality and Law of War," Israel Law Review 40, no. 3 (October 2007); "Contrasting Approaches to War: Some Thoughts on the Views of Fletcher, Segev, Shany, and Zohar," Israel Law Review 40, no. 3 (October 2007); "The Morality of War and the Law of War," in David Rodin and Henry Shue, eds., Just and Unjust Warriors: The Legal and Moral Status of Soldiers (Oxford: Clarendon Press, 2008); "Justification and Liability in War," Journal of Political Philosophy 16, no. 2 (2008): 227-44; Torture in Principle and in Practice," Public Affairs Quarterly 22 (2009): 111-128; "War, Terrorism, and the 'War on Terror'," in Christopher Miller, ed.,"War on Terror": The Oxford Amnesty Lectures 2006 (Manchester: Manchester University Press, 2009); "War, Terrorism, and the 'War on Terror'," in Christopher Miller, ed.,"War on Terror": The Oxford Amnesty Lectures 2006 (Manchester: Manchester University Press, 2009); "Humanitarian Intervention, Consent, and

Proportionality," in N. Ann Davis, Richard Keshen, and Jeff McMahan, eds., Ethics and Humanity: Themes from the Philosophy of Jonathan Glover (New York: Oxford University Press, 2009); "Laws of War,"in Samantha Besson and John Tasioulas, eds., The Philosophy of International Law (Oxford: Oxford University Press, 2009); "Torture and Collective Shame," in Anton Leist and Peter Singer, eds., Coetzee and Philosophy (New York: Columbia University Press, 2009); "The Morality of Military Occupation," Loyola International and Comparative Law Review (2009); "Self-Defense Against Morally Innocent Threats," and "Reply to Commentators," in Paul H. Robinson, Kimberly Ferzan, and Stephen Garvey, eds., Criminal Law Conversations (New York: Oxford University Press, 2009); "Hobbesian Defenses of Orthodox Just War Theory," in Sharon Lloyd, ed., Hobbes Today (forthcoming); & "Intention, Permissibility, Terrorism, and War," Philosophical Perspectives (forthcoming). (Added 11/16/09) It is sometimes said that just war theory originates from a Catholic tradition that can be traced to the writings of Thomas Aquinas and Augustine of Hippo. Although these figures and the traditions of thought associated with them are highly important and influential (See James Turner Johnson's overview), any sectarian expropriation of just war theory is historically unsupportable. Many pre-Christian thinkers -- including Plato, Aristotle, Cicero, Cato the Younger, Seneca, Polybius and Sallust, to name but a few -distinguished between just and unjust grounds for waging war, and between just and unjust conduct in the course of war. An examination of Grotius' reference materials (this task requires some reading as none of the online editions include an index) is a good guide to the full diversity of ancient, medieval and Renaissance sources, not all of which are products of Christian theology. Relevant biblical passages are found in both the old Hebrew scriptures and the Christian New Testament, which means that just war theory belongs (in part) to a broader Judeo-Christian tradition. Although the history of mutual theological infuences is a complex affair, contemporary Judaic approaches to just war thinking are often developed in terms that are largely if not completely independent of explicit reliance upon Christian sources. Michael Walzer has voiced doubts about the viability of a Jewish "purity of arms" doctrine that has more to do with the influence of platonism via Philo of Alexandria than with any kind of well developed rabbinical casuistry of war. Even so, AryeEdrei finds a separate source of just war thinking in the efforts of Israel's first chief military Rabbi to "create a modern corpus of Jewish law and ethics relating to war and the military." See Edrei's "Spirit and Power: Rabbi Shlomo Goren and the Military Ethic of the Israel Defence Force," Theoretical Inquiries in Law, Vol. 7, 2005-2006, pp. 255-297. Further, although it is seldom recognized in the West, there is also an independent Islamic tradition of just war thinking. For a useful introduction to this tradition, see "Islamic Rulings on Warfare," by Youssef H. Aboul-

Enein and SherifaZuhur, Strategic Studies Institute, October 2004. (Posted 7/16/06, updated 4/28/07)
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Realpolitik: From the perspective of realpolitik, or "political realism," armed conflicts are essentially struggles for power to which ethical norms do not apply. The point of wisdom in warfare is to be on the right side of the political line separating the winners from the losers, not the moral line distinguishing the just from the unjust. Hence, the practical and philosophical quandaries of warfare concern the best strategies for achieving victory and avoiding defeat. The use of the term "political realism" to name this philosophical orientation may be misleading. It suggests that in reality warfare is not shaped or guided by ethical considerations, which is obviously empirically false. The fact that many just war theorists (e.g. Judge Advocates) are embedded within the U.S. military command structure shows that, if one wishes to be realistic in one's thinking about warfare, one must recognize and study the institutional role of ethical reasoning and training. If realpolitik without awareness of the influence of just war theory is insufficiently realistic, just war theory without an adequate appreciation of realpolitik is at risk of becoming excessively idealistic. Philosophically, just war theory is commonly understood to

represent a middle way between, on the one hand, realpolitik's narrow focus on strategies of pure national self-interest, and, on the other hand, absolute pacifism's sometimes impracticable idealism. A just war is one fought for the sake of the pacifist's idealistic goal: lasting peace and justice. Yet, to achieve this goal, the just war theorist must be realistically concerned with achieving victory and avoiding defeat. Moreover, speedy victories often come with humanitarian gains. For these and other reasons, just war theorists should study classic works of realpolick for their many strategic insights; and they should think about how to integrate, prioritize and balance considerations of justice and humanity with considerations of pure power politics. For an introductory overview, see W. Julian Korab-Karpowicz's article on "Political Realism in International Relations" in the Stanford Encyclopedia of Philosophy. The Athenian side of the "Melian Dialogue"(431 BC) from Thucydides' History of The Peloponnesian War presents one of the earliest articulations of realpolitik philosophy in western civilization. Sun Tzu's reflections on The Art of War is a widely recognized ancient Chinese masterpiece of strategic realism. Strategemata (84-96 AD) by Sextus Julius Frontinus and De Re Militari (390), by Flavius VegetiusRenatus, are examples from late Roman antiquity, highly influential in the middle ages and during the renaissance. Among other parts, chapter XIII of Leviathan (1651) contains Thomas Hobbes's philosophical repudiation of Grotius's attempt to distinguish between just and unjust wars. Niccolo Machiavelli's The Art of War (1520), Napoleon Boneparte'sMaxims of War (1827), Carl von Clauswitz's treatise On War (1832), and Baron de Jomini'sArt of War (1862) are also considered modern European classics of realpolitik thinking about armed conflict. The now canonical 20th century statement of strategic realism on the insurgent side of asymetrical warfare is Ernesto Che Guevara's Guerilla Warfare. G. W. F. Hegel's theory of warfare occupies an interesting space between realpolitik and Christian philosophy, as explicated here by Andrew Fiala's "The Vanity of Temporal Things: Hegel and the Ethics of War," Studies in the History of Ethics, February 2006. (Updated 11/30/06) In "Game Theory, Political Economy, and the Evolving Study of War and Peace," American Political Science Review, November 2006, Bruce Bueno de Mesquita describes how recent neo-realist studies of war and peace have advanced beyond classical realpolitik assumptions by combining noncooperative game theory with political economy models of leadership behavior. For an influential statement of realpolitik from the Cold War era, check out this excerpt from Hans Morganthau'sPolitics Among Nations. Kenneth Waltz's article on "Structural Realism after the Cold War," International Security, Volume 25, Number 1, Summer 2000, pp. 5-41, is an important defense of the continued relevance of realpolitik for any adequate understanding of the phenomena of war and peace in international relations. (Added 12/13/09)

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Pacifism: If, as just war theorists maintain, the use of arms is justifiable only as a last resort for the resolution of conflicts, then it is incumbent upon anyone who would propose a just war already to have studied, and to have exhaustively considered or pursued, the full range of non-violent alternatives. Although the ancient Chinese philosopher Mo Tzu directed his ethical criticisms only against "offensive wars" of aggression and conquest, he is sometimes said to have been a pacifist due to his doctrine of "universal love" and his active efforts to prevent armed conflicts during the "warring states" period in which he lived. In The Laws of War and Peace, Grotius was responding in part to Desiderius Erasmus' In Praise of Folly, which presented an impassioned and influential statement of Renaissance Catholic pacifism. Etienne de la Boetie'sOf Voluntary Servitude (pdf) (1553) is recognized by many scholars of political thought as one of the earliest and most compelling philosophies of civil disobedience as a form of non-violent resistance to tyrannical regimes of political domination. For other writings that suggest

the power and the promise of peaceful social change, turn to Leo Tolstoy's The Kingdom of God is Within You (1894), Mahatma Gandhi's "Freedom's Battle" (updated 7/29/07), and Martin Luther King's "Letter from a Birmingham Jail" and "Why I am Opposed to the War in Vietnam" (RealPlayer audio). William James' essay 'The Moral Equivalent of War' looks forward to a global "reign of peace," but argues that its achievement requires substitute forms of national service (the argument is often credited with inspiring the establishment of the U.S. Peace Corp). "Democracy or Militarism" is just one of Jane Addam's important works of American pacifism. And "Neither Victims nor Executioners" is Albert Camus' expression of a global existential pacifism. The nuclear age intensified pleas for world peace, as emphasized in the Russell-Einstein Manifesto. Also well worth reading in the context of American reflection on warfare is Howard Zinn's argument for pacifism in his essay on "Just and Unjust War." For a very helpful guide to the philosophical varieties of pacifism, see Andrew Fiala's article the Stanford Encylopedia of Philosophy. Some forms of "contingent," "relative" or "conditional" pacifism dovetail with dovish just war theory, according to Larry May's reading of "Grotius and Contingent Pacifism," Studies in the History of Ethics, February 2006. (Added 11/11/06) For a review of successful 20th century practices of political nonviolence, see Gene Sharp's Disregarded History: The Power of Nonviolent Action. Also available online is the entire text of Robert L. Helvey'sOn Strategic Nonviolent Conflict: Thinking about the Fundamentals, Albert Einstein Institute, 2004. (Added 1/25/07) Also worth considering, in connection with just war theory, is Jeff McMahan's video keynote address on the subject of pacifism for the 2nd On-line Philosophy Conference (OPC2) on May 21, 2007. (Added 5/30/07) Chris Hedges, a fellow pk, has seen enough war not to like it. Check out his 2003 audio or video lecture on "the myth of war" on themes drawn from his book, War is a Force That Gives Us Meaning. (Added 8/10/07) Hippies and folk singers are often associated with absolute pacifism, and Joan Baez's funny defense of the stance is part of the reason why. (Added 7/14/08)

Look here for the growing number of available online secondary studies of some of the above classic works in the philosophy of peace & war. And this is the place for book reviews of these and other recent works in the field of peace and war studies.

TERRORISM & COUNTERTERRORISM WARFARE: (scroll down for the most recent posts)

Look here for book reviews related to the topic of terrorism. The Federation of American Scientists page on America's War on Terrorism contains a number of useful sources of objective data on the topic. (Updated 5/28/11)

Igor Primoratz's essay on "State Terrorism & Counterterrorism" (pdf) is available here for downloading from the web. Neta C. Crawford offers an insightful evaluation and critique of America's new "permanent war" in "Just War Theory and Counter-Terror War". Originally published in the March 1992 edition of the Atlantic Monthly, Benjamin R. Barber's "Jihad Vs. McWorld" presents an influential argument contending that both tribalism and globalism threaten democracy and generate terrorism. Timothy Mitchell challenges Barber's account in "McJihad: Islam in the U.S. Global Order,"Social Text 73, Vol. 20, No. 4, Winter 2002. (Posted 11/11/05) As the nature of warfare has changed over the course of history, just war theorists have repeatedly been confronted with new and challenging questions. Can a "War against Terrorism" be fought by conventional means? Or, as Rob Elder argues, are rations more effective than bombs against such an enemy? Follow this link to Chief Deputy Attorney General of California Peter Siggins' discussion of the ethics of "Racial Profiling in an Age of Terrorism". (Posted 10/02/04) Davida Kellogg presents a useful critical account of how Guerrilla Warfare invariably leads to the proliferation of war crimes. (Posted 10/20/04) (Updated 5/28/11) Although it hasn't been updated since October 2003, Yale University's Avalon Project houses a useful compendium of internet-available historical documents relating to international terrorism. (Posted 12/29/04) Looking for a scholarly and authoritative attempt to justify the Bush administration's approach to counter-terrorism warfare from a realpolitik ("instrumental") perspective? If so, then look no further than John Yoo's"Using Force" (pdf). Yoo argues that in an age of global terrorism and rogue nations, a "hegemonic power" like the U.S. can serve both its own narrowly conceived national self-interests AND the broader interests of the world community as a whole by acting on more flexible principles of selfdefense than traditional just war theories and international conventions allow. How convenient for the hegemon (or would-be hegemon). If this theory were sound, we would find confirming evidence in how stable, secure and happy U.S. counter-terrorism war efforts are making the rest of the world. Yet, most of the international community is opposed to the kind of American exceptionalism that Bush has embraced and that Yoo defends. Yoo could attempt to address this objection by arguing that dissenting peoples and states (uninformed as they are by his theory) are failing to recognize their "real interests". This rejoinder would be essentially a priori and therefore ultimately unconvincing in any sort of reasonable international dialogue. But at least it would lay bare the essential logic of imperialism: Q: Who is the best judge of your interests? A: The hegemon is, that's who, because it is more

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powerful than you are. (Posted 7/18/04) (For more of Yoo's thought, see the RIGHTS OF ENEMIES section below.) Martin Shaw critically examines the common assumptions of counterterrorism warfare in his essay, "Risk-transfer militarism and the legitimacy of war after Iraq". See also his Dialectics of War: An Essay in the Social Theory of Total War and Peace. (Posted 11/21/04) In his essay on "Terrorism and the Philosophy of History: Liberalism, Realism, and the Supreme Emergency Exemption", Andrew Fiala critically examines John Rawls' Law of Peoples as it applies to counter-terrorism warfare. (Posted 11/24/04) (Updated 5/28/11) In "Optimal War &Jus ad Bellum, Eric A. Posner and Alan O. Sykes defend the Bush administration's post-9/11 policy of pre-emptive self-defense. They conclude that "There are good reasons for allowing preemptive self-defense, quite possibly without Security Council authorization... The potential proliferation of nuclear weapons and other weapons of mass destruction to rogue states and state sponsors of terrorism provides a rationale for invading dangerous states sooner rather than later." The framework of this approach places too much weight on the "rogue state" designation, which criminalizes enemy states and, accordingly, denies them standard protections of international law. Allowing every state to justify aggression in this manner is a clear recipe for anarchy. It would substitute name-calling and unilateral aggression for the rule of international law. Within any legitimate legal order, there are no criminal persons or states, but only criminal acts. There is no such thing as a rogue nation. There are only roguish acts, such as the promotion of terrorist activities and the unprovoked and harmful invasion of another state. (Posted 12/8/04) (Updated 5/28/11) Cass Sunstein's forthcoming article, "Minimalism at War" (PDF), is now available for dowloading. Abstract: "When national security conflicts with individual liberty, reviewing courts might adopt one of three general orientations: National Security Maximalism, Liberty Maximalism, and minimalism. National Security Maximalism calls for a great deal of deference to the President, above all because of his authority as Commander-in-Chief of the Armed Forces. Liberty Maximalism asks courts to assume the same liberty-protecting posture in times of war as in times of peace. Minimalism asks courts to follow three precepts: the President needs clear congressional authorization for intruding on interests having a strong claim to constitutional protection; fair hearings should generally be provided to those who have been deprived of their freedom; and courts should discipline their own authority through narrow, incompletely theorized rulings. Of the three positions, Liberty Maximalism is the easiest to dismiss; courts will not and should not adopt it. National Security Maximalism is far more plausible, but it is in grave tension with the constitutional structure, and it is built on excessive optimism about the incentives of the President. The most appealing approach is minimalism, which does remarkably well in capturing prominent

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decisions of the Supreme Court in World War I, World War II, the Cold War, and the war on terrorism." Review: Although this is an important piece of constructive jurisprudence, Sunstein arguably does not make a compelling case for his Ginzburg-style piecemeal judge. Perhaps most importantly, his argument does not adequately address the changing character of "wartime".

It makes no sense to allow the historically limited wartime provisions of the past to set the constitutional standard for a condition of counter-terrorism which lacks conceivable historical limits.Sunstein also does not adequately

defend the assumption that counter-terrorism ought to proceed by more or less conventional methods of warfare (invasion & occupation) rather than by new, multi-lateral, and at most quasi-military methods of international law enforcement (international forces targeting responsible parties for ICC prosecution). Consequently, he too easily dismisses the appropriateness of a principled juridical protection of civil liberties in present-day U.S. constitutional law. Moreover, his Liberty Maximalist is a straw judge. (Posted 12/28/04) Samuel Vaknin'sTerrorists and Freedom Fighters, which offers historical analysis of 20th century Balkan conflict, is available for html or richtextdowloading, or online reading, from Project Gutenberg. (Posted 1/23/05) It's worth going back in time and reading or watching The Cato Institute's 11/27/2000 Policy Forum on Terrorism. John Parachini's introductory talk is a catalogue of good advice not taken. He emphasizes diplomacy, international law enforcement and prevention, rather than knee-jerk military action. In contrast, Anthony Cordesman is skeptical of, among other solutions, any kind of legal internationalism, though he is open to unsavory alliances with "repressive intelligence services"... (Posted 1/25/05) Edmund Santurri examines the moral evaluation of terrorism in "Philosophical Ambiguities in Ostensibly Unambiguous Times" (pdf) -courtesy of the author and The Journal of Peace and Justice Studies, Vol. 12, No. 2. (Posted 2/2/05) "Breathing Easier?" (pdf), is a downloadable empirical report from the Century Foundation Working Group on Bioterrorism Preparedness. (Posted 2/2/05) Chalmers Johnson's "Blowback," The Nation September 27, 2001, argues that "World politics in the twenty-first century will in all likelihood be driven primarily by blowback from the second half of the twentieth century -- that is, from the unintended consequences of the Cold War and the crucial American decision to maintain a Cold War posture in a post-Cold War world. The United States likes to think of itself as the winner of the Cold War. In all probability, to those looking back a blowback century hence, neither side will appear to have won, particularly if the United States maintains its present imperial course." (Posted 3/06/05) Mark Tushnet's"Defending Korematsu?: Reflections on Civil Liberties in

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Wartime" is available here for downloading. It argues that the historical pattern of U.S. governance typically involves over-reaction to national security concerns, adoption of bad solutions that abrogate civil liberties, and expressions of judicial remorse in hindsight. Unlike Sunstein (above), Tushnet acknowledges that the dangers of terrorism constitute a longstanding "normal" security condition, not an episodic state of emergency. Accordingly, a "categorical" approach to the protection of civil liberties is more appropriate than a "balancing" approach that would too readily trade liberty for security. (Posted 4/5/05) Janna Thompson's essay, "Is There Such a Thing as a Rogue State" (pdf) is available for downloading from the excellent Working Papers Series of the Australian Research Council's Centre for Applied Philosophy and Public Ethics. (Posted 4/8/05) Noam Chomsky's 11/16/2004 lecture, 'Illegal, but Legitimate: A Dubious Doctrine for the Times' is available for viewing as a QuickTime video (1:17:44) from Columbia University's Earth Institute. (Posted 4/11/05) Does Poverty Cause Terrorism? According to Alberto Abadie's 'Poverty, Political Freedom, and the Roots of Terrorism' (National Bureau of Economic Research) "the risk of terrorism is not significantly higher for poorer countries, once other country-specific characteristics are considered." (Posted 5/9/05) Peter Golding's "The Transformation of Counter Terrorism" (pdf), from the U.S. Army War College Research Project, April 2002, is worth reviewing. Golding's two main arguments against referring prosecutions for 9/11 terrorist crimes against humanity to the International Criminal Court (ICC) are (1) that the ICC does not exist because only 42 of the required 60 signatory nations have ratified the Rome Statute, and (2) that the ICC is unlikely to adopt the death penalty. More than three years later, (2) remains true. And yet, as Golding notes, even the U.S. has been reluctant in the past to use the death penalty against political terrorists on grounds that doing so makes martyrs of them. As for reason (1) for repudiating the authority of the ICC, it effectively evaporated by July of 2002 when the Rome Statute (pdf) went into effect. Now U.S. policy, and the reluctance of the U.S. Senate to ratify the Rome Treaty that President Clinton signed in 1998, are the primary obstacles to the international legal prosecution of terrorist crimes against humanity. (Posted 5/17/05) James Turner Johnson's "Jihad and Just War" argues that versions of "radical jihad" which purport to justify terrorism are out of line not only with western just war thinking but also with Islamic tradition. (Posted 6/11/05) Jeremy Shapiro and Benedicte Suzan examine 'The French Experience of Counter-terrorism' (pdf), Survival, vol. 45, no. 1, Spring 2003, pp. 67-98. (Accessed 7/11/05 from MetaFilter) Samuel P. Huntington's 'The Clash of Civilizations' (Foreign Affairs, Summer 1993) is now available from Alamut.com. (Posted 7/16/05) In a more recently

published Slate magazine e-mail exchange (May 2006), Robert Kagan and AmartyaSen discuss the shortcomings and merits of the Huntingtonian vision of contemporary global politics. (Posted 7/21/05) In his own unique version of the clash-of-civilizations thesis, Rene Girard characterizes the global interplay of terrorism and counter-terrorism (or, better, reciprocal terrorisms) as 'Mimetic Rivalry on a Planetary Scale'. (Posted 7/16/05) There are a number of game-theoretic analyses of terrorism available on the internet, including the following: 'Terrorism and Game Theory' (pdf), by Todd Sandler and Daniel G. Arce, Simulation and Gaming Vol. 34 (3) September 2003; and 'Terrorism and Game Theory: Coalitions, Negotiations and Audience Costs' (pdf), by C. Maria Keet. (Posted 7/18/05) Thomas R. O'Connor hosts a large criminology website, which includes a survey of The Criminology of Terrorism. (Posted 7/22/05) AmitaiEtzioni argues that nuclear deproliferation should be the "first priority" of counter-terrorism. "The main danger many nations face in the near future is a nuclear attack by terrorists. Attempts to defend against it by hardening domestic targets cannot work, nor can one rely on pre-emption by taking the war to the terrorists before they attack. Hence, there is an urgent need to limit greatly the damage that terrorists will cause by curbing their access to nuclear arms and the materials from which they can be made..." Click here to download the rest of Etzioni's detailed report on 'Pre-Empting Nuclear Terrorism in a New Global Order' (pdf). (Posted 7/27/05) In the best of all possible worlds, every academic journal would be available online, free of charge -- just like the Philosophy and Public Policy Quarterly. In recent years, Phil Pub Pol Quart has published some of the best philosophical work on counter-terrorism warfare, including the following: "The Perils of Preemptive War" by William A. Galston; "Is Development an Effective Way to Fight Terrorism?" by Lloyd J. Dumas; "The Paradox of Riskless Warfare" by Paul Kahn; "The War on Terrorism and the End of Human Rights" by David Luban; "The Realist Illusion, a Patriarchal Reality, and the Plight of Osama the Pirate" by Robert Hunt Sprinkle; "The Ethics of Retaliation" by Judith Lichtenberg; & "Terrorism, Innocence, and War" by Robert K. Fullinwider. (Posted 8/15/05) Carl Conetta, Charles Knight and others at PDA, theProject on Defense Alternatives, have compiled and continue compile an exceedingly useful collection of strategy studies on, among other topics, Terrorism, CounterTerrorism, Homeland Security. (Posted 9/23/05) The Counterterrorism Blog, founded and edited by Andrew Cochran, is selfdescribed as "The first multi-expert blog dedicated solely to counterterrorism issues, serving as a gateway to the community for policymakers and serious researchers." It's a good resource for keeping abreast of the inside-thebeltway view of Islamist political violence. (Posted 9/30/05) (Discontinued as of 3/11/11)

In his essay on "The Mind of Terrorism", Jean Baudrillard suggests that "the terrorist imagination . . . dwells within us all" and the war on terror is "a continuation of the absence of politics by other means." (Posted 10/31/05) Check out "Just War, Humanitarian Intervention and Equal Regard: An Interview with Jean BethkeElshtain," by Alan Johnson of Democratiya, September 1, 2005. Elshtain is the author of Just War Against Terror: The Burden of American Power in a Violent World, Basic Books, 2003 &Women and War, Basic Books, 1987. (Posted 11/18/05) In "Is International Humanitarian Law Lapsing into Irrelevance in the War on International Terror?", Theoretical Inquiries in Law 7(1), 2005, Dan Belz critically examines advocacy of humanitarian law as a means of counterterrorism from the standpoint of an economic theory concerned with the "audience costs" and "negative externalities" of law. (Posted 12/23/05) Thomas Franck addresses the issues of legal theory pertaining to "Preemption, Prevention and Anticipatory Self-Defense" in this video lecture from San Diego State University's Institute of Ethics and Public Affairs, February 19, 2004. (Posted 1/7/06) In "Defining a Just War,"The Nation, October 29, 2001, Richard Falk argues that "The perpetrators of the September 11 attack cannot be reliably neutralized by nonviolent or diplomatic means; a response that includes military action is essential to diminish the threat of repetition, to inflict punishment and to restore a sense of security at home and abroad. . . [and yet] . . . Unlike in major wars of the past, the response to this challenge of apocalyptic terrorism can be effective only if it is also widely perceived as legitimate. And legitimacy can be attained only if the role of military force is marginal to the overall conduct of the war and the relevant frameworks of moral, legal and religious restraint are scrupulously respected." Falk's analysis of how our handling of the Israeli-Palestinian conflict has exacerbated the problem of terrorism appears online in "Ending the Death Dance", The Nation, April 29, 2002. Ron Radosh responds unsympathetically in "A New Low for The Nation", FrontPageMag.com, April 19(?), 2002. (Posted 1/15/06) Paul Treanor has petitioned the European Parliament "to legalise terrorism, and to assess each case of political violence separately" on grounds that present European law systematically favors the violence of status quo maintenance over the violence of political change. (Posted 1/19/06) The Federation of American Scientists offer useful analyses of agricultural biowarfare and bioterrorism and so much more. (Posted 1/20/06) Olga Kallergi argues that "the war against terrorism can be won without sacrificing our legal ethics" in "Exporting U.S. Anti-Terrorism Legislation and Policies to the International Law Arena, a Comparative Study: the Effect on Other Countries' Legal Systems." (Posted 1/26/06) In "Legal Lines in Shifting Sand: Immigration Law and Human Rights in the Wake of September 11," Daniel Kanstroom outlines a pragmatic, consensus-

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based approach to the following legal issues in our counter-terrorism practices: "government disclosure and the public's right to know; the deportation system's habeas corpus practices; racial profiling; the convergence of immigration and criminal law since the attacks; judicial review of military detentions at Guantanamo Bay and elsewhere; and noncitizens' rights in the United States and the European Union." (Posted 1/26/06) Vanda Felbab-Brown examines the connection between international drug trade and political violence in "A Better Strategy AgainstNarcoterrorism," MIT Center for International Studies Audit of the Conventional Wisdom, January 2006. (Posted 2/9/06) Benjamin H. Friedman helps to put into perspective the menace of terrorism and the cost of protecting ourselves against it in "The Hidden Cost of Homeland Defense," MIT Center for International Studies Audit of the Conventional Wisdom, November 2005. (Posted 2/9/06) "Good Lives, Bad Lives" is the first chapter of Ted Honderich's book, After the Terror(2002), a sustained philosophical reflection on terrorism. See the JWT Book Reviews page for Richard Wolin's review and Honderich's reply to Wolin. There has also been some extra-curricular controversy surrounding Honderich's book. In this first chapter he argues that "History is a proof that peoples demand the freedom that is their running of their own lives in a place to which their history and culture attaches them. It is a freedom for which oppressed people have always fought. It is a freedom such that a threat against it in 1939 united almost all of us against Germany. It has been denied to the Palestinians. . . Palestinians have been denied by their enemy exactly the right of a people that has been secured and defended by that enemy for itself. . . The terrible inconsistency is plain to all who are unblinded, plain to very many Jews in and out of Israel. No hair-splitting will help. It is as plain to those of us who also see that it was a moral necessity after the second world war that the Jews come to have a homeland, in Palestine if not elsewhere." (First posted 1/10/05, updated 2/23/06) Alan Johnson argues that "The fact is we are not engaged in a 'war on terror', any more than World War Two was a 'war on blitzkrieg'. We are engaged in a conflict with Totalitarian Political Islam and our enemy uses not only terror but also 'popular' riot, electoral politics, and ideological warfare." His essay, "Camus' Catch: How Democracies Can Defeat Totalitarian Political Islam," recommends a form of democratic internationalism as the key component of a workable political solution. (Posted 3/16/06) In "The Israel Lobby and U.S. Foreign Policy," John J. Mearsheimer and Stephen M. Walt argue that "saying that Israel and the US are united by a shared terrorist threat has the causal relationship backwards: the US has a terrorism problem in good part because it is so closely allied with Israel, not the other way around." This long and detailed study of the impact of pro-

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Israel lobbying on U.S. security interests is also available in abridged form. (Posted 3/23/06) Robin Frost's "Nuclear Terrorism Post-9/11: Assessing the Risks," Global Society, Vol 18, No 4, October 2004, is available as a sample upon request from Routledge. (Posted 3/25/05) In this December 2004 video (RealPlayer), Alan Krueger presents a lecture entitled, in the manner of presidential locution, "Misunderestimating Terrorism: <AEconomics and the Roots of Terrorism". Available from Princeton WebMedia. (Posted 4/24/06) In "The Crusader", a review of Messages to the World: The Statements of Osama bin Laden (edited by Bruce Lawrence and translated by James Howarth), KhaledAbou El Fadl provides insight into the worldview of America's elusive enemy and argues that we have unwisely bolstered its credibility. (Posted 5/17/06) Richard J. Goldstone and Janine Simpson remind us of "the important link between peace and prosecution by an impartial court" in "Evaluating the Role of the International Criminal Court as a Legal Response to Terrorism," Harvard Human Rights Journal, Volume 16, 2003. (Posted 5/21/06) James Roper uses rational choice theory to show that American's exaggerate the risk of terrorism in "Probability and Risk Assessment: Taking a Chance on 'Terrorism'," Florida Philosophical Review, Vol. II, issue 2, Winter 2002. (Posted 5/21/06) In "Optimal Liability for Terrorism," Darius Lakdawalla and Eric Talley offer a game-theoretic analysis to show that "the September 11 Victims' Compensation Fund waswell-conceived, but may not have gone far enough to preclude opt-out tort claims." (Posted 6/1/06) In "Before and After 9/11," ArsDisputandi, Volume 6, 2006, Tom Rockmore challenges the notion that 9/11 radically altered the shape of global society. (Posted 6/22/06) Question: How difficult would it be for terrorists to smuggle radioactive materials across U.S. borders? Answer: Not very difficult at all. The proof is in this interesting report of the U.S. Government Accountability Office (GAO). (Posted 7/12/06) Anna Goppel's"Defining 'Terrorism' in the Context of International Law", Centre for Applied Philosophy and Public Ethics, Working Paper 2005/1, proposes set of requirements that a useful international definition ought to meet and defines terrorism accordingly. (Posted 7/13/06) Allen Buchanan's outstanding and important "Institutionalizing the Just War" is publicly available online for a limited time, thanks to the IPT Beacon. I include it in this section because it addresses the issue of preventive military force in the global war on terror. "The debate has proceeded within the confines of a rarely stated framing assumption: that the key question is whether to abandon the JWN [Just War Norm "according to which war is permissible only in response to an actual or imminent attack"] in favor of a

more permissive norm regarding the use of force. I shall argue that the assumption that the choice between competing norms is mistaken. The proper choice is between adherence to the JWN and the creation of new institutions that would allow for a more permissive norm. Not just alternative norms but also alternative combinations of norms and institutions need to be evaluated." Buchanan also addresses the issue of whether and under what institutional conditions interventive wars of "forced democratization" may be justifiable; so, it also belongs in the following section (though you won't find it there). I strongly agree with Buchanan's general claim that just war theory, broadly construed as ethical theorizing about the restraint of warfare, cannot simply invoke a priori intuitive principles, but must consider possibilities for normative change that might follow from changes in global institutions. But I'm not convinced by the suggestion that we can achieve adequate institutional restraints in the absence of an authoritative global juridical body like the ICC. There is, of course, no a priori reason for thinking that human rights will be protected best by the ICC as currently established. But what global system of checks and balances can adequately restrain putatively preventive and democratizing wars in the absence of juridical institutions for the enforcement of international human rights law? It sounds like a good start to require that perpetrators of unjust regime changes "must bear a greater proportion of the costs of the war and of post-war reconstruction and / or have less of a say in how the reconstruction is carried out." But why not also add courts of universal jurisdiction to the mix? (Posted 7/30/06) Check out Robin Frost's reasoned assessment of "Nuclear Terrorism Post9/11: Assessing the Risks," Global Society, Volume 18, Number 4, October 2004. Registration required for free access. (Posted 8/16/06) (Updated 5/29/11) In "The Failures of Just War Theory: Terrorism, Harm & Justice" (2003), F. M. Kamm critically examines the doctrine of double-effect and specifies conditions under which terrorism may be justifiable. (Posted 9/3/06) (Updated 5/29/11) In "Pyrrhus on the Potomac: How America's post-9/11 wars haveundermined US national security," Project on Defense Alternatives Briefing Report, number 18, September 5, 2006, Carl Conetta argues persuasively that "measured in the coin of long-term security and stability, post-9/11 policy has cost more than it has gained." (Posted 9/8/06) Is the "hunt" for Osama bin Laden a ruse? Michel Chossudovsky argues that it is in "Where was Osama on September 11, 2001?," Center for Research on Globalization, September 9, 2006. (Posted 9/14/06) The latest buzzword for bipartisan collaboration in counter-terrorism is "Energy Security," which is increasingly conceived as requiring U.S. independence from foreign oil, but especially from "rogue nation" oil. This means that we can effectively resist terrorism by developing biofuels and other alternative energy sources; but it also means that one of the American

casualties of the war on terror may be the Alaskan National Wildlife Refuge. (Posted 9/22/06) In "How to Deal with Terrorism," The Economists' Voice, Vol. 3: No. 7, Article 4, 2006, Bruno S. Frey argues that "terrorism has been fought in the wrong way. Instead of focusing on deterrence and preemptive strikes, we should: (1) Reduce vulnerability by decentralizing society; (2) Strengthen positive incentives to leave the terrorist camp; and (3) Divert media attention from terrorist groups." Registration with this journal is free. (Posted 10/10/06) In "Peace Cops? Christian Peacemaking and the Implications of a Global Police Force," Sojourners Magazine, March 2006, Tobias Winright explores the prospects for Christian participation in a globalized "community policing" approach to counter-terrrorism. Thanks to Tobias for sharing the link. (Posted 10/20/06) Kenneth Anderson outlines a congressional agenda for counter-terrorism legislation in "Law and Terror," Policy Review, volume 139, October/November 2006. The judiciary can only be expected to play a marginal role in the task of specifying the limits of executive power, and so far the legislative branch has offered very little in the way of clear and effective checks and balances. (Posted 10/21/06) C. A. J. Coady's "Defining Terrorism," from Terrorism: The Philosophical Issues, Igor Primoratz ed. (Houndmills, Basingstoke, Hampshire: Palgrave Macmillan, 2004), pp. 3-14, is available online courtesy of the publisher. (Posted 10/28/06) "The Terrorism Index," Foreign Policy, July/August 2006, asks "Is the United States winning the war on terror?" Answer: "Not according to more than 100 of America's top foreign-policy hands. They see a national security apparatus in disrepair and a government that is failing to protect the public from the next attack..." (Posted 11/10/06) Bruce Ackerman argues for dealing with terrorist attacks in terms of "The Emergency Constitution," and argues that "This is not War," in Yale Law Journal, Volume 113, 2004. In his view, which is more reasonable than the conventional wisdom, terrorist attacks should be considered as constitutionally and temporally limited "states of emergency" short of war. (Posted 12/18/06) In "The 'War on Terror' and the Erosion of the Rule of Law:The U.S. Hearings of the ICJ Eminent Jurist Panel," Human Rights Brief, Volume 14, Issue 1, Winter 2006, Mark W. Vorkink& Erin M. Scheick look at the global war on terror as a "litmus test" for human rights and the rule of law. (Posted 1/21/07) William E. Scheuerman, "Rethinking Crisis Government," 2002 Annual Meeting of the American Political Science Association, Boston, August 29September 1, 2002. Abstract: "The rush to broaden executive prerogative in the aftermath of the September 11 terrorist attacks rests on a series of traditional assumptions about the nature of executive power that no longer hold water. In particular, the conventional conception of the unitary

executive as best suited to the demanding tasks of crisis government is subject to criticism." (Posted 1/25/07) In "Sending the Bureaucracy to War," Forthcoming in Iowa Law Review, Volume 92, 2007, Elena A. Baylis& David Zaring critically examine post-9/11 changes in U.S. administrative law that facilitate certain abuses of state and federal executive powers. (Posted 2/1/07) In section III of "Morality & Consequences," The Tanner Lectures on Human Values, May 1980, Jonathan Bennett examines the "oddness" of the doctrine of double effect that is often invoked to distinguish between justifiable tactical bombing and unjustifiable terror bombing. (Posted 2/3/07) (Updated 5/29/11) Foreign Policy's "Terrorism Index," a bi-partisan study of 100 top national security experts, suggests that the global war on terror has made American's less secure. (Posted 2/16/07) In "A Matter of Pride," Democracy: A Journal of Ideas, Winter 2007, Michael Lind & Peter Bergen argue that the "humiliation theory" of radical political violence explains "why so many terrorists come from middle-class or wealthy backgrounds." (Posted 2/18/07) In "Countering Global Insurgency," Small Wars Journal, November 30, 2004, David Kilcullen outlines a "disaggregation" strategy for managing the "ecosystem" of Islamist terrorism. See also his "Counterinsurgency Redux," Small Wars Journal, September 17, 2006. (Posted 2/27/07) In "The Bush Doctrine and Just War Theory", The Online Journal of Peace and Conflict Resolution, volume 6, number 1, Fall, 2004, Dale T. Snauwaert argues that "In a number of ways the Bush Doctrine as a response to international terrorism is, tragically,undermining the international moral and legal order, thereby undermining the very order necessary for sustainable security against terrorism." (Posted 3/14/07) In "Assessing the Effectiveness ofthe UN Security Council's Anti-terrorism Measures: TheQuest for Legitimacy and Cohesion," The European Journal of International Law, Vol. 17, no.5, 2007, pp. 881-919, Andrea Bianchi "attempts to evaluate, primarily from the perspective of legal interpretation, how to reconcile the predominant security concerns underlying anti-terror measures with the cohesion of the international legal system." (Posted 6/9/07) (Updated 5/29/11) In "Assassination and Targeted Killing: Law Enforcement, Execution or SelfDefence?" Journal of Applied Philosophy, Vol. 23, No. 3, 2006, Michael Gross argues that "While named killings might be defensible on the grounds that there are no other ways to disable combatants when they fight without uniforms, the costs, including the cost of targeted killing emerging as an acceptable convention in its own right, should be sufficient to view the practice with a good deal of caution." (Posted 6/17/07) (Updated 5/29/11) In "Jus Ad Bellum After 9/11: A State of the Art Report" (pdf), The International Political Theory Beacon, Issue 3, June 2007, Mark Rigstad

presents an overview and critical assessment of how just war theoretic principles of just cause, discrimination, and proportionality have been applied in the Global War on Terror. Also available here in html format. (Posted 4/30/07. Updated 6/17/07) Chet Richards has posted online a draft of the introduction to his next book, If We Can Keep It, in which he debunks our myths of national defense. (Posted 6/18/07) Richard Rorty recently died at 75, unleashing a torrent of reminiscence, criticism and encomium. On March 4, 2004, in Potsdam, Rorty concluded a lecture about "Anti-terrorism and the National Security State" with these ominous words: "In Europe and in North America elites have come to believe

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that they cannot carry out their mission of providing national security if their deliberations are carried out in public, and 9/11 only strengthened this conviction. Further attacks are likely to persuade those elites that they must destroy democracy in order to save it. Historians may someday have to explain why the West's golden age lasted only 200 years. The saddest pages in their books will be those in which they describe how the citizens of the democracies, by their craven acquiescence in governmental secrecy, helped bring about the disaster." Was he right? At this point, who knows? As Rorty
himself once famously said, "Time will tell; but epistemology won't." Setting aside the question of the truth of Rorty's conclusion, I'm left simply with the desire that it should be proven wrong, and the desire to do something that might help to prove it wrong. Insofar as this appears to be the kind of response that Rorty wished to elicit, I guess I'm in accord. Follow these links to watch part one and part two of the video recording of Rorty's lecture. (Posted 6/21/07) In "The Legacy of Nuremberg: Confronting Genocide and Terrorism Through the Rule of Law," Gonzaga Journal of International Law, Volume 10, Issue 2, 2006, John Shattuck argues that the Bush Doctrine has undermined our most effective legal means of combating terrorism. (Posted 6/26/07) In "Criminal Defendants and Military Enemies: Defining the Terrorist Threat," FSU College of Law, Public Law Research Paper No. 264, August 24, 2007, Benjamin J. Priester defends a way of integrating military and criminal models for defining transnational terrorist organizations. (Posted 9/1/07) David M. Lieberman examines the legal difference between terrorists and freedom fighters in "Sorting the Revolutionary from the Terrorist: The Delicate Application of the 'Political Offense' Exception in U.S. Extradition Cases," Stanford Law Review, Volume 59, Issue 1, pp. 181-212. (Posted 10/20/07) Neal Katyal addresses the constitutional 'equal protection' issues raised by the Military Commissions Act in "Equality in the War on Terror," Stanford Law Review, Volume 59, Issue 5, pp. 1365-1394. (Posted 10/20/07)

In "Rendered Meaningless: Extraordinary Rendition and the Rule of Law," NYU School of Law Working Papers Number 43, November 20, 2006, Margaret L. Satterthwaite examines arguments in favor of outsourcing torture, and finds them wanting. (11/10/07) In "Terrorism and Just War," Philosophia, Volume 34, August 2006, pp. 3-12, Michael Walzer asks "What can go wrong in the 'war' against terrorism, and is just war theory equally helpful in thinking about this 'war' where the scare quotes are always necessary?" (Posted 11/14/07) In "The Strategic Logic of Suicide Terrorism," American Political Science Review, Vol. 97, No. 3, August 2003, Robert A. Pape argues that "Religious fanaticism does not explain why the world leader in suicide terrorism is the Tamil Tigers in Sri Lanka. . . To advance our understanding of this growing phenomenon, this study collects the universe of suicide terrorist attacks worldwide from 1980 to 2001, 188 in all. In contrast to the existing explanations, this study shows that suicide terrorism follows a strategic logic, one specifically designed to coerce modern liberal democracies to make significant territorial concessions." (Posted 12/26/07) In "Terrorism, Shared Rules and Trust," forthcoming in the Journal of Political Philosophy, Matthew Noah Smith argues that "terrorism is specially objectionable because terrorist acts threaten two very valuable things: valuable shared rules of war and valuable trusting relationships between both international allies and nations at war." (Posted 1/16/08) In "The Senses of Terrorism," forthcoming in Review Journal of Political Philosophy, Volume 6, fall 2008, Mark Rigstad exposes "the methodological errors involved in attempting to value-neutralize the concept" of 'terrorism,' and defends "an effects-based approach to the taxonomy of 'terrorism' that builds out from a central conceptual connection between the term's negative connotation and a widely shared moral presumption against the killing of innocent non-combatants." (Posted 1/16/08) For a very good introductory overview of the philosophy of "Terrorism", see Igor Primoratz's entry for the Stanford Encyclopedia of Philosophy. (Posted 2/10/08) In "They knew, but did nothing," an extract from his new book on the 9/11 Commission, Philip Shenon "uncovers how the White House tried to hide the truth of its ineptitude leading up to the September 11 terrorist attacks." (Posted 3/10/08) Karl Schmitt's "Theory of the Partisan: Intermediate Commentary on the Concept of the Political" (1963) is available online from Telos 127, Spring 2004. The essay presents a historical analysis of the modern development of irregular troops (including what we would now call terrorists) as elements in the theory and practice of political strategy and military tactics. (Posted 7/25/08) Foreign Policy and the Center for American Progress have released their 2008 Terrorism Index. The study records an emerging optimism that

suggests that the GWOT is winning the hearts and minds of leading U.S. counter-terrorism industry experts. (Posted 8/20/08) In "The dangers of fighting terrorism with technocommunitarianism: constitutional protections of free expression, exploration, and unmonitored activity in urban spaces," Fordham Urban Law Journal, July 1, 2005, Marc Blitz argues that "Unlike modern Fourth Amendment case law, which gives short shrift to the importance of insulating public space from government control and design, modern First Amendment law places meaningful limits on the control that governmental authorities may exercise over streets, parks, and other public spaces central to urban life." (Posted 9/2/08) The ForaTV video below presents an penetrating workshop on "State and International Legal Responses to Terrorism," held October 22nd, 2007 at the Center for Strategic and International Studies in Washington, D.C. It features panelists Professor William Banks, Professor Claude Bruderlein and Colonel William Lietzau; and it is moderated by Victoria Holt. (Posted 11/25/08)

In "Fatal Choices: Israel's Policy of Targeted Killing," Mideast Security and Policy Studies, No. 51, September 2002, Steven R. David argues that although targeted killings have "not appreciably diminished the costs of terrorist attacks and may have even increased them," nevertheless the practice is justifiable as a means of "providing retribution and revenge for a population under siege," and because it "may, over the long term, help create conditions for a more secure Israel." (Posted 11/25/08) In this online draft of "The Legality of Targeted Killing as an Instrument of War: The Case of QaedSalimSinan al-Harethi," prepared for the 5th Global Conference on War, Virtual War and Human Security, Budapest 2008, Avery Plaw argues that "while there is a strong case for the legality of the alHarethi operation, this case relies on elements that may not apply to many other cases. The al-Harethi case thus helps to define the legal limits of targeted killing." (Posted 11/30/08) In "The 'Bush Doctrine' as a Hegemonic Discourse Strategy," Critical Review of International Social and Political Philosophy, Vol. 12, No. 3, June 2009, Mark Rigstad "critically examines efforts to ground the morally personifying language of the Bush Doctrine in term of hegemonic stability theory." In this

article, "Particular critical attention is paid to the arguments of leading proponents of this brand of game theory, including J. Yoo, E. Posner, A. Sykes, and J. Goldsmith. When examined in their terms, the Bush Doctine is best understood as an ethically hypocritical and shortsighted international discursive strategy. Its use of moralistic language in demonizing 'rogue states' for purely amoral purposes is normatively incoherent and discursively unsustainable. If it is a strategically rational piece of international communication, it seems designed to undermine globally shared normative meanings for the sake of short-term unilateral military advantage." (Posted 12/19/2008) "On Wednesday, January 28, 2009, the University of Texas School of Law and the Robert S. Strauss Center for International Security and Law hosted a panel discussion about the task of reforming the government's approach to military detentions... The distinguished panel included John Bellinger, who served as Legal Adviser to the Secretary of State and to the National Security Council during the Bush Administration; Benjamin Wittes of the Brookings Institute, author of the book Law and the Long War: The Future of Justice in Age of Terror; and Stephen Vladeck, professor of law at American University and coauthor of a brief to the Supreme Court on behalf of Guantanamo detainee SalimHamdan. Professor Bobby Chesney, a Strauss Center fellow and visiting professor of law at the University of Texas School of Law, facilitated the discussion." Follow this link to see a video webcast of "The Post-Guantanamo Era: A Dialogue on the Law and Policy of Detention and Counterterrorism." (Posted 2/6/09) In "Terrorism and the Proportionality of Internet Surveillance," European Journal of Criminology, Vol. 6, No. 2, 2009, Ian Brown and DouweKorff argue that the "disproportionate nature" of internet-based surveillance and profiling of terrorism suspects is "problematic for democracy and the rule of law, and will lead to practical difficulties for cross-border cooperation between law enforcement agencies." (Posted 2/10/09) In "Targeted Killing," Daniel Statman argues that "if one accepts the moral legitimacy of the large-scale killing of combatants in conventional (what may come to be called 'old-fashioned') wars, one cannot object -- on moral grounds - to the targeted killing of terrorists in what are called wars against terror. If one rejects this legitimacy, one must object to all killing in war, targeted and non-targeted alike, and thus not support the view, which is criticized here, that targeted killings are particularly disturbing from a moral point of view." (Posted 2/15/09) In "Can Terrorism Be Justified?" Ethics in International Affairs, Rowman and Littlefield, 2001, Andrew Valls argues that "terrorism, understood as political violence committed by nonstate actors, can be assessed from the point of view of just war theory and that terrorist acts can indeed satisfy the theory's criteria." Although I have argued in "The Senses of Terrorism" that

Valls' semantic methodology is fundamentally flawed, I nevertheless recommend the article. (Posted 2/26/09) In "War About Terror: Civil Liberties and National Security after 9/11," a Council on Foreign Relations working paper, February 2009, Daniel B. Prieto argues that "sharp disagreements over national security and civil liberties, as well as errors and overreach in U.S. counterterrorism practices, have stood in the way of America's ability to forge a critical and sustainable foreign policy accord on how to address terrorist detention and trials, as well as domestic intelligence policies. The study recommends that the United States reexamine the scope and limits of its war against al-Qaeda, treating national security and the protection of individual liberties as coequal objectives." (Posted 3/25/09) In "Playing by the Rules: Combating Al Qaeda within the Law of War," Loyola-LA Legal Studies Paper No. 16, April 7, 2009, David W. Glazier argues that "Good faith application of law of war rules . . . offers better protections for civil liberties than currently proposed solutions such as national security courts offering less due process than regular federal trials." (Posted 5/13/09) In this excerpt from Philosophy in a Time of Terror, Giovanna Borradori interviews JurgenHabermas and Jaques Derrida on 9/11 and the problem of global terrorism. (Posted 6/24/09) In "Barbarians and the International Law: Beyond the Gates of Liberty?", a paper presented at the annual meeting of the ISA's 49th Annual Convention, Bridging Multiple Divides, Hilton San Francisco, CA, March 26, 2008, Daniel Brunstetter examines the place of "barbarians" in Renaissance and Early Modern sources of international legal theory -- from Vitoria to Kant -- as a way of shedding light on the war on terror. Brunstetter takes the idea of the evil of terrorism seriously, yet gives Las Casas the final word of warning: "every nation, no matter how barbaric, has the right to defend itself against a more civilized one that wants to conquer it." (Posted 10/26/09) In "A Person Otherwise Innocent: Policing Entrapment in Preventive, Undercover Counterterrorism Investigations," The Journal of Constitutional Law, Volume 11, Number 5, July 2009, Jon Sherman argues that, in light of the U.S. Federal government's strategic use of preventive counterterrorism prosecutions, "the entrapment doctrine must be restructured to keep FBI counterterrorism efforts targeted and focused and to safeguard innocent First Amendment activity from the reach of highly inchoate offenses, which are aggressively pursued with undercover informants." To receive regular notices about similar articles and related court cases, sign up for Robert Chesney's excellent national security law mailing list here. (Posted 12/23/09) For a brief look at the legality of what has become one of the leading military options in counter-terrorism efforts, see "Obama Administration Offers Legal Defense of Drone Attacks, Targeted Killing," by John Cella of the Harvard National Security Journal, Mar 28, 2010. (Posted 3/28/10)

For an extended scholarly discussion of the topic, check out the Harvard National Security Symposium on drone killing posted here (part 1) and here (part 2). (Posted 3/28/10) In "Terrorism, Supreme Emergency and Killing the Innocent," Perspectives: Review of International Affairs, Volume 17, Number 1, 2009, Anne Schwenkenbecher offers a critique of Walzer's account of supreme emergencies, and argues that "the supreme emergency exemption justifies the resort to terrorism against innocents to avert moral disasters such as genocide and ethnic cleansing, provided that the criteria of last resort, proportionality and public declaration are satisfied." (Posted 6/29/10) In "A Philosopher Looks at Contemporary Terrorism," Cardozo Law Review, Volume 29, Number 1, 2007, Igor Primoratz briefly examines the history of terrorism, offers a definition of what it has become, and engages the question of its justification from both consequentialist and nonconsequentialist ethical perspectives. (Posted 9/3/10) In "Assessing the Terrorist Threat," a 9/10/10 report of the Bipartisan Policy Center, Peter Bergen and Bruce Hoffman examine the "increasingly prominent role in planning and operations that U.S. citizens and residents have played in the leadership of al-Qaeda and aligned groups" and find that "these jihadists do not fit any particular ethnic, economic, educational, or social profile." Also, they find that "the ramped-up campaign of drone attacks in Pakistan" is effectively working against al-Qaeda and its allies. (Posted 9/13/10) This online video from the Whitney R. Harris World Law Institute presents a debate between Kenneth Anderson and Mary Ellen OConnell on the ethical, political and legal merits of using unmanned drones for targeted killings in counterterrorism warfare. (Posted 11/29/10) In this FORA.tv video, Obama administration legal adviser, Harold Koh, argues that counter-terrorism targeted drone attacks are consistent with both domestic and international law... (Posted 12/14/10)

In "Law From Above: Unmanned Aerial Systems, Use of Force, and the Law of Armed Conflict," North Dakota Law Review, Volume 85, 2010, Chris Jenks examines the legality of drone strikes. "The article begins by defining a UAS and discussing its prevalence around the world. Utilizing a recent UAS strike

in Pakistan, the article then reviews the international law framework applicable to the use of armed UAS. The article then considers the associated LOAC targeting principles applicable to such a strike, exploring how in some ways UAS strikes are preferable compared to traditional aerial bombing, but in others less so. The article determines that while how one characterizes the conflict in Pakistan, internally and via the United States, and whether Pakistan has consented to the strikes, trigger different analytical frameworks; however, the conclusion is the samethat the UAS strikes are lawful." (Posted 12/14/10) In "'Hearing: Rise of the Drones: Unmanned Systems and the Future of War,' Written Testimony Submitted to Subcommittee on National Security and Foreign Affairs, Committee on Oversight and Government Reform, US House of Representatives," Kenneth Anderson defends the legality of the "CIA campaign of drone attacks in Pakistan and beyond." (Posted 12/21/10) In "Legality of Lethality: Paradigm Choice and Targeted Killings in Counterterrorism Operations," Adam Ross Pearlman "briefly surveys the legal authorities and implications for the targeted killings of terror suspects within each paradigm: the law of armed conflict, criminal law, and covert action, and argues for the justification of the practice within each." (Posted 12/21/10) In the United Nations Human Rights Council's "Study on Targeted Killings" (an addendum to the "Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions"), Philip Alston argues, "Such policies are often justified as a necessary and legitimate response to terrorism and asymmetric warfare, but have had the very problematic effect of blurring and expanding the boundaries of the applicable legal frameworks." (Posted 12/21/10) In "The Politics of Punishing Terrorists," Ethics & International Affairs, Volume 24, Number 1, Spring 2010, Anthony F. Lang Jr. argues that "The international community needs to initiate a wider discussion about both sentencing standards and the crime of terrorism," and he recommends that the international community should "work out some sentencing guidelines first for the crimes currently in place and move toward a clearer statement of the criminalization of terrorism at a later stage." (Posted 12/27/10) Matthew Swift and Nicholas Logothetis of Concordia Partnerships Against Extremism, "discuss their new formula for approaching the issue of terrorism" in the video embedded below:

In "The Politics of Punishing Terrorists," Ethics & International Affairs, Volume 24, Number 1, Spring 2010, Anthony F. Lang Jr. argues that "The international community needs to initiate a wider discussion about both sentencing standards and the crime of terrorism," and he recommends that the international community should "work out some sentencing guidelines first for the crimes currently in place and move toward a clearer statement of the criminalization of terrorism at a later stage." (Posted 7/8/11) In "Predators Over Pakistan,"The Weekly Standard, Volume 15, Number 24, pp. 26-34, March 8, 2010, Kenneth Anderson argues "that targeted killing, by means of unmanned aerial vehicles such as Predator "drones" and including targeted killing as carried out by the CIA, is both a good policy in combating transnational terrorism and a lawful means of self-defense under international law." He goes on to suggest that "a general campaign within the international "soft law" community is gradually gathering momentum to undermine the legal legitimacy of targeted killing, particularly by covert services of the civilian CIA, and that the administration needs to defend traditional American legal views governing these policies." (Posted 7/8/11) In "Can Targeted Killing Work as a Neutral Principle,"NYU School of Law, Public Law Research Paper No. 11-20, Jeremy Waldron critically examines "the prospects for legitimizing what is known as "targeted killing" - the use of assassins, death squads, or other murderous techniques - against identified civilians whose continued existence is thought to pose a serious threat of some kind to a given community and its members." He further suggests that "the potential for abuse is inherent in principles of the sort that are envisaged to legitimize targeted killing." (Posted 7/8/11) In "The Curious Case of Anwar Al-Aulaqi: Is Targeting a Terrorist for Execution by Drone Strike a Due Process Violation When the Terrorist is a United States Citizen?," Journal of International Law, Volume 19, 2011, Michael Epstein "explores the claims of Nasser al-Aulaqi on behalf of his son, Anwar al-Aulaqi, who has allegedly been placed on the Obama Administration's pre-approved terrorist kill list." Epstein suggests that "this case raises fundamental issues regarding the Due Process owed to U.S. citizens engaged in acts of terrorism abroad, but the sensitive nature of national security and military concerns and prudential requirements will

ultimately keep full adjudication of these issues awaiting their day in court." (Posted 7/8/11) In "From Killer Machines and Swarms, or Why Ethics of Military Robotics is not (necessarily) About Robotics,"SpringerLInk, March, 2001, Mark Coeckelbergh wants to challenge "the prevalent assumptions that military robotics is about military technology as a mere means to an end, about single killer machines, and about military developments." (Posted 7/8/11) In "Suicide Terrorism Opportunistic Tactic or Strategic Campaign?,"Western Political Science Association, 2011 Annual Meeting, authors Sarat Krishnan, Ami Pedahzur, and Bobby Jenkins examine cases of suicide attacks in Iraq and Pakistan suggesting that these types of attacks "are a set of opportunistic tactics used in conjunction with other conventional tactics in pursuit of a diverse set of goals." (Posted 7/8/11) Here is Obamas National Strategy for Counterterrorism. (Posted 8/2/2011) Click here to watch and/or listen to "Moving Targets: Issues at the Intersection of National Security and American Criminal Law," an April 12, 2011 symposium at The Georgetown Center on National Security, featuring Marty Lederman, Mathew Olsen, Aziz Huq, Laura Donohue, Julie O'Sullivan, Abbe Smith, John Stanton, James Zirkle, and Stephen Vladeck. (Posted 8/6/11) In "Targeting, Command Judgment, and a Proposed Quantum of Proof Component: A Fourth Amendment Lesson in Contextual Reasonableness," Geoffrey S. Corn provides an "analysis of U.S. constitutional Fourth Amendment jurisprudence, focused specifically on the relationship between several distinct quanta standards for assessing reasonableness and the interests they were developed to balance." He goes on to argue that "different quantum standards established to define reasonableness in the U.S. Fourth Amendment context offer a logical starting point for providing a similar touchstone for assessing the reasonableness of targeting decisions in armed conflict." In "'Efficiency' Jus in Bello and 'Efficiency' Jus Ad Bellum in the Practice of Targeted Killing Through Drone Warfare?," Kenneth Anderson examines the tension that drone warfare creates between jus in bello and jus ad bellumconsiderations: "The more targeted killing technologies allow more precise targeting and reducing collateral casualties and harm (jus in bello), and that moreover at less personal risk to the drone users forces, perhaps the less inhibition that party has in resorting to force (jus ad bellum)." In "Unlawful Killing with Combat Drones: A Case Study of Pakistan," Mary Ellen O'Connell questions the governments authorization of increased drone attacks and argues these types of attacks "cannot be justified under international law for a number of reasons." One chief reason, O'Connell argues, is that "international law does not recognize the right to kill with battlefield weapons outside an actual armed conflict." (Posted 8/17/11)

In "Drone Warfare and the Law of Armed Conflict," Denver Journal of International Law and Policy, Volume 39, No. 1, 2011, Ryan Vogel argues that, "As drones become a growing fixture in the application of modern military force, it bears examining whether their use for lethal targeting operations violates the letter or spirit of the law of armed conflict." Further examination is needed for evaluating "whether the law of armed conflict is adequate for dealing with the use of drones to target belligerents and terrorists in this nontraditional armed conflict and ascertain whether new rules or laws are needed to govern their use." (Posted 8/17/11) In "Drone Attacks Under the Jus ad Bellum and Jus in Bello: Clearing the 'Fog of War'," Yearbook of International Law, Forthcoming, Michael Schmitt examines "both the law governing resort to force and the international humanitarian law aspects of drone attacks." (Posted 8/17/11) In "Discussion Paper: Drone Attacks, International Law, and the Recording of Civilian Casualties of Armed Conflict," Oxford Research Group, June 2001, authors Susan Breau, Marie Aronsson, and Rachel Joyce suggest that "International lawyers have identified an existing but previously unacknowledged requirement in law for those who use or authorize the use of drone strikes to record and announce who has been killed and injured in each attack." (Posted 8/17/11) In " Law Enforcement as a Counterterrorism Tool," Journal of National Security Law and Policy, Volume 5:1, David Kris suggests that while some question the effectiveness of the U.S. criminal justice system and argue that it should never be used against terrorists, or at least some kinds of terrorists, he wants to argue that we should continue to use all of the military, law enforcement, intelligence, diplomatic, and economic tools at our disposal, selecting in each case the particular tool that is most effective under the circumstances, consistent with our laws and values. (Posted 9/17/11) The Program on Humanitarian Policy and Conflict Research "is an international research and policy program based at the Harvard School of Public Health. The Program offers a multidisciplinary approach to new challenges in the field of humanitarian affairs". In Live "Seminar 34: Beyond the attack on Bin Laden", panelist's discuss "the legal issues that arise in situations where a decision is made to target individuals potentially outside the immediate theater of hostilities using military force". (Posted 9/17/11) In "War as Punishment", Georgetown Law: The Scholarly Commons, 2011, David Luban maintains that "the 'punishment theory of just cause' has been a theme in western culture" and argues "the punishment theory remains alive and well in the moral imaginations of modern societies, even if diplomats and lawyers carefully scrub it from official justifications of armed conflict". (Posted 9/17/11) Follow this link to listen to a Washington Institute for Near East Policy discussion of Victor Comras'sFlawed Diplomacy: The United Nations and the War on Terrorism, November 19, 2010. (Posted 9/19/11)

In "Can Counter-Terrorist Internment Ever Be Legitimate," Human Rights Quarterly, Volume 33, 2011, Fiona De Londras argues that "that the concept of internment holds some potential for legitimacy. This potential can only be realized if four legitimacy factors are fully embraced and complied with: public justificatory deliberation, non-discrimination, meaningful review, and effective temporal limitation." (Posted 12/28/11) In "Explaining Suicide Terrorism: A Review Essay," Security Studies, Volume 16, Number 1, JanuaryMarch 2007, pp. 133162, Martha Crenshaw critically examines a substantial body of empirical work and competing policy recommendations. Some of her conclusions may surprise you: "There is no longer any need to introduce an analysis of suicide attack by explaining to the uninitiated that it is not rooted in psychopathology or fanaticism or indeed in any single cause such as deprivation, religious belief, or frustration. It is an adaptable and controllable tactic. It has an instrumental value for an organization. Despite impressions of ubiquity, its popularity and effectiveness are limited... The assertion that suicide tactics are a superior demonstration of resolve and elicit pity and admiration as well as shock and horror is not implausible, but it is not supported by comparative empirical research... Perhaps governments do not need a specific political response to suicide tactics. They could concentrate simply on guarding against all manner of acquiring, transporting and detonating explosive devices broadly construed." (Posted 1/3/11) In "The Strategic Logic of Suicide Terrorism," American Political Science Review, July 14, 2003, Robert A. Pape argues that "Western democracies should pursue . . . policies which in practice may have more to do with improving homeland security than with offensive military action." (Posted 1/3/11)

NON-COMBATANT IMMUNITY: (scroll down for the most recent posts)

In "The Difference Uniforms Make: Collective Violence in Criminal Law and War" (pdf), Christopher Kutz argues "that the special problem of non-uniformed combatants and the general problem of justifying war are profoundly linked." His paper was part of a workshop recently hosted by the Kadish Center for Morality, Law and Public Affairs, UC Berkeley School of Law. (Posted 3/20/05) In "The Futility of Barbarism: Assessing the Impact of the Systematic Harm of Non-combatants in War" Ivan ArreguinToft asks "Under what conditions does barbarism -- a state or non-state actor's deliberate and systematic injury of non-combatants during a conflict -- help or hinder its military and political objectives?" He finds that "in general, war crime doesn't pay." (Posted 1/20/06) In "Terrorism and Response: A Moral Inquiry into the Killing of Noncombatants," Camillo C. Bica argues that the deliberate killing of non-

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combatants in terrorist attacks and the "collateral" killing of non-combatants in counter-terrorism warfare are "morally equivalent." (Posted 5/18/06) In "Killing Naked Soldiers: Distinguishing between Combatants and Noncombatants," Ethics & International Affairs Volume 19, Issue 3, December 2005, Larry May critically examines and reformulates the traditional principle of discrimination that informs both just war theory and international humanitarian law. (Posted 8/15/06) In "Guns, Food, and Liability to Attack in War," Ethics Volume 120, October 2009, pp. 3663, Cecile Fabre challenges the dominant view of non-combatant immunity, according to which "civilians who provide combatants with military resources such as guns (civiliansM) are widely deemed liable to attack, whereas civilians who provide them with welfare resources such as food and medical care (civiliansW) are widely deemed to be immune from it." She argues that liability to attack in war does not hinge upon the "functional" difference between military and non-military activities. Instead, she argues, "whether a civilian is liable to attack depends on the extent to which he is causally and morally responsible for wrongful enemy deaths." (Posted 5/28/11) In "Risk Taking and Force Protection," a Georgetown University Law Center working paper, forthcoming in Reading WalzerItzhakBenbaji and Naomi Sussman (eds.), David Luban asks "(1) how much risk must soldiers take to minimize unintended civilian casualties caused by their own actions (collateral damage), and (2) whether it is the same for the enemy's civilians as for one's own"? (Posted 6/5/11) In "Rethinking Non-Combatant Immunity,"Theoretical& Applied Ethics, November, 2010, Mathew Bruenig notes that, "Contemporary just war theorists claim that it is unethical to target non-combatants such as civilians because non-combatants are neutral." He accounts for this view as follows: "Liberal political theory is fundamentally premised on the idea that the citizens of a particular society consent to and authorize the actions their sovereign makes", which in turn, 'strips' them of any claim for neutrality. (Posted 7/8/11) In "The Protection of Civilians in War: Non-Combatant Immunity in Islamic Law," International Islamic University, March, 2011, Muhammad Munir argues that, "Islamic law makes a distinction between combatants (those who fight) and non-combatants (those who do not fight) and allows fighting with the former and protection to the latter." (Posted 7/8/11) In "Asymmetric war, symmetrical intentions: killing civilians in modern armed conflict, Global Crime, Volume 10, Number 4, November 2009, pp. 320336, Michael L. Gross shows how "Asymmetric war expands the range of permissible civilian targets that each side may attack without incurring charges of terrorism or disproportionate harm." (Posted 8/9/11) In "Risk Taking and Force Protection," Reading Walzer, ItzhakBenbaji, Naomi Sussman, eds., Forthcoming, David Luban addresses two questions

"about the morality of warfare: (1) how much risk must soldiers take to minimize unintended civilian casualties caused by their own actions (collateral damage), and (2) whether it is the same for the enemy's civilians as for one's own." (Posted 8/17/11) THE RIGHTS OF (SUSPECTED) ENEMY COMBATANTS (benevolent quarantine, detention, torture, etc.): (scroll down for the most recent posts)

For authoritative legal commentaries and reports on the treatment of detained enemy combatants from Abu Ghraib to Guantanamo Bay, browse the website for theNational Institute of Military Justice. Follow these links to read the full texts of the U.S. Supreme Court decisions in the cases of Hamdi v. Rumsfeld&Rasul v. Bush. On January 9th, 2002, John Yoo and Robert Delahunty of the Department of Justice's Office of Legal Counsel (OLC) issued a controversial or, even better, notorious memo on the applicability of U.S. treaties and laws to Al Quaida and Taliban detainees. Jack M. Balkin of Yale Law School offers an astute legal analysis of the OLC's torture memo in his blog entries of 7/15/04 & 7/16/04. (Posted 7/25/04) Mark A. Bland presents a useful analysis of the United Nations International Tribunal to Adjudicate War Crimes Committed in the Former Yugoslavia. (Posted 10/20/04) Phillip Carter argues in Slate that "blowback" from the Bush administration's decision to "scrap Geneva" is "The real reason Guantanamo detainees have returned to the battlefield". (Posted 10/26/04) A soldier who served with the 320th Military Police Company at Abu Ghraib speaks out about the atrocities he witnessed in "In Good Conscience" By Scott Fleming, LiP Magazine. Available through Alternet.org. (Posted 1/10/05) Read testimony on detainees presented before the Senate Judiciary Committee by Stephen Schulhofer of NYU School of Law. (Posted 6/23/05) David A. Martin's articles on 'Offshore Detainees and the Role of Courts after Rasul v. Bush' and 'A New Era for U.S. Refugee Resettlement' are available for downloading from the Univeristy of Virginia Public Law and legal Theory Working Paper Series. Abstracts: The first article "sketches a workable and restrained regime for individualized consideration of challenges to detention, building on a structure already taking initial shape in the wake of Rasul and the companion Hamdi case. Such claims would be heard in military tribunals, subject to habeas review in federal court, according to a narrow and deferential standard of review..." The second "sets forth some of the principal analysis from a lengthy report chartered by the U.S. State Department that critically examined this country's refugee resettlement program, which has encountered serious difficulties since September 11, 2001..." (Posted 6/24/05) Follow this link to watch Democracy Now's presentation of Jamie Doran's documentary, "Afghan Massacre: The Convoy of Death". (Posted 10/26/05)

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As Josh White reports in today's Washington Post, "A federal judge in Washington ruled yesterday that the continued detention of two ethnic Uighurs at the U.S. prison facility at Guantanamo Bay, Cuba, is "unlawful," but he decided he had no authority to order their release." Read more... (Posted 12/23/05) If you've been following the news about Guantanamo, you know that in the absence of fair legal trial proceedings the justifiability of the detainments is being tried in the court of public opinion and unofficial, scholarly legal opinion. In this debate Mark Denbeaux's"Report on Guantanamo Detainees: A Profile of 517 Detainees through Analysis of Department of Defense Data" is especially important for showing how thin the cases for the prosecution would be against many of the detainees if they were granted rights to fair legal trials. (2/24/06) 'Epistemic Systems', Episteme: Journal of Social Epistemology 2(2), 2005, is a game-theoretic study showing that torture is a poor means of obtaining information because the tortured have no good reason to trust that the torture will stop if and when they tell the truth. Click on the link to download a .doc version of the paper from the homepage of the author, Roger Koppl. (3/7/06) Andrew Nathan's 15 minute RealVideo lecture "On Torture" (Columbia University 3/29/05) is a succinct summation of the U.S. departure from its international treaty commitments post-9/11. (Posted 6/8/06) The Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of Europe issued this report on "secret detentions and unlawful inter-state transfers." It does not paint a pretty picture. (Posted 6/16/06) In Hamdan v. Rumsfeld the U.S. Supreme Court declared (5-3) that Bush administration handing of Guantanamo detainees violates U.S. military law and legal commitments to the Geneva conventions. (Posted 7/11/06) In "Contract to torture," Salon, August 9, 2004, Osha Gray reveals that "inexperienced, under-supervised private-sector employees actively took part in horrifying prisoner abuse" at Abu Ghraib. Joshua Holland follows up on this issue more broadly in his report for AlterNet (9/7/06) on how "Pentagon Spends Billions to Outsource Torture." Writing for The American Prospect (9/7/06) Tara McKelvey calls these private contractors "The Unaccountables." And Peter W. Singer's article on "The Contract the Military Needs to Break," in the Washington Post (9/12/06) similarly finds that private contractors operate in an accountability vacuum. This is a good reason for thinking that employees of a privatized interrogation industry are even more likely to violate standards of international human rights law than traditional public officers of the state security/intelligence apparatus. (Posted 9/14/06) Margaret L. Satterthwaite's "Rendered Meaningless: ExtraordinaryRendition and the Rule of Law," NYU Legal Theory Working Papers, Number 43, 2006, examines relevant legal arguments and concludes that "a practice purportedly developed to uphold the rule of law against lawless terrorists --

rendition to justice -- has become a lawless practice aimed at perverting the rule of law in relation to terrorism -- extraordinary rendition." (Posted 1/12/07) In "Due Process and Empire's Law: Hamdan v. Rumsfeld," Dissent, Winter 2007, Margaret Kohn critically examines recent U.S. law pertaining to military tribunals for Guantanamo detainees. Although Hamdan v. Rumsfeld and the Military Commissions Act affirm a constitutional separation of powers, they do nothing to address the central problem, which is that empowering military commissions to try (or denial trial to) enemy combatants "violates the basic legal principle that no person can be a judge in his or her own case." (Posted 1/18/07) In Reinterpreting Torture: Presidential Signing Statementsand the Circumvention of U.S. and International Law," Human Rights Brief, Volume 14, Issue 1, Winter 2006, Erin Louise Palmer critically examines the history of Presidential signing statements and the legality of recent efforts to place the executive above the law. (Posted 1/21/07) Follow this link to view Witness.org's 27 minute long documentary, "Outlawed: Extraordinary Rendition, Torture and Disappearances in the 'War on Terror'," produced and directed by Gillian Caldwell. (Posted 2/10/07) In "A Defense of Torture: Separation of Cases, Ticking Time-bombs, and Moral Justification," International Journal of Applied Philosophy, Volume 19, Number 2, 2006, Fritz Allhoff argues for "the permissibility of torture in idealized cases," which "paves the way for the justification of torture in the real world by removing some candidate theories (e.g., Kantianism) and allowing others that both could and are likely to justify real-world torture." (Posted 2/12/07) Naomi Klein reports for The Nation on how the trial of Jose Padilla is exposing U.S. torture practices to the harsh light of public scrutiny. (Posted 2/26/07) Stuart Taylor presents "The Case for a National Security Court," National Journal, February 26, 2007: "Congress has not yet devised a process that is either effective in catching and incarcerating bad guys or fair in the exacting eyes of world opinion... Creating a National Security Court, with repeatplayer lawyers and judges, will change the entire dynamic, and help avoid the excessive rhetoric that has characterized both sides in the war on terror." (Posted 2/28/07) In this video interview with Bruce Fealk of Michigan Progress TV, James Yee, former U.S. Army Chaplain at Guantanamo Bay, recounts details of the detainment, sensory deprivation and character assassination that he suffered upon falling under (ultimately unfounded) suspicion of being a "citizen enemy combatant." (Posted 4/22/07) John Yoo and Jesse Choper debate the legal issues surrounding the Military Commissions Act in this Federalist Society MP3 audio file, recorded at the Bankers Club of San Francisco, April 5, 2007. (Posted 6/9/07)

In "The Military Commissions Act, Habeas Corpus, and the Geneva Conventions," Duke Law School Working Paper Number 96, June 1, 2007, Curtis Bradley argues that the Supreme Court is likely to uphold the habeas corpus rights of Guantanamo detainees, and that Congress had legitimate authority in enacting the MCA to narrow the means of U.S. enforcement of Geneva Conventions standards. (Posted 11/10/07) In the Cato Institute video embedded below, Timothy Lynch offers an illuminating examination of the legal issues in the case of Boumediene v. Bush, which "centers on the right of 'enemy combatants' being held in Guantanamo Bay to have their detention reviewed by American civilian courts."

Follow this link for the oral arguments presented to the U.S. Supreme Court on December 5, 2007, as well as a Federalist Society debate of Boumediene v. Bush featuring Timothy Lynch, Brad Berenson, Andrew McBride, and Marty Lederman. Boumediene "arises on a writ of habeas corpus filed on behalf of LakmarBoumediene and other detainees currently being held by the United States at the Guantanamo Bay Naval Base in Cuba. These detainees challenge the legality and constitutionality of their detention as enemy combatants pursuant to the Military Commissions Act of 2006." (Posted 1/28/08) The U.S. Supreme Court's majority (5-4) decision in Boumediene v. Bush confirms in principle that "The laws and Constitution are designed to survive, and remain in force, in extraordinary times." Citing Marbury v. Madison, Justice Kennedy argues for the majority that "To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this court, say what the law is'." Some "enemy combatants" in the GWOT have been detained without opportunity to challenge the factual grounds of their confinement for more than six years now. But in the Court's opinion, this procedural lacuna in the rule of law cannot persist: "The costs of delay can no longer be borne by those who are held in custody." (Posted 6/12/08) David Luban's "Unthinking the Ticking Bomb," Georgetown Public Law Research Paper No. 1154202, July 1, 2008, is an excellent, devastating dismantling of the standard philosophical justifications of torture. It's

analytically acute, informative, and appropriately enlivened by humanitarian indignation. Read it! (Posted 8/26/08) Torturing Democracy is an excellent (but depressing) online documentary about U.S. treatment of detainees in the GWOT. The website also has a useful archive of relevant documents. I highly recommend both the film and the archive for purposes of classroom instruction. (Posted 10/20/08) In her Public Reason podcast, "Torture Lite and the Normalisation of Torture," Jessica Wolfendale argues that "that so-called torture lite techniques share certain features that tend to mask the effects of these methods on the victims and minimize the torturer's role in causing the victims' suffering, and that this might play an important role in making such forms of torture seem more palatable to liberal democracies than would otherwise be the case." This online symposium also includes a readable version of the paper and comments by David Sussman. (Posted 11/9/08) In "The Story of El Masri v. Tenet: Human Rights and Humanitarian Law in the 'War on Terror'," Margaret Satterthwaite tells a harrowing tale of "mistaken identity" as it wound its way "from U.S. court to the InterAmerican Commission on Human Rights." The devil, as they say, is in the details. (Posted 12/18/08) In "Terrorism and the Convergence of Criminal and Military Detention Models," Stanford Law Review, Vol. 60, 2008, Robert Chesney and Jack Goldsmith "show how the two systems have moved to rectify their inadequacies, and to some extent have converged on procedural and substantive criteria for detention" and "identify the specific questions that would-be reformers must address with regard to both substantive detention criteria and procedural safeguards." (Posted 12/23/09) In "Exceptional Engagement: Protocol I and a World United Against Terrorism," Texas International Law Journal, Volume 45, 2009, Mike Newton "challenges the prevailing view that U.S. 'exceptionalism' provides the strongest narrative for the U.S. rejection of Additional Protocol I to the 1949 Geneva Conventions." Instead, Newton argues that, in denying Geneva Conventions protections for terrorists, the U.S. was forging a new approach to counterterrorism, later emulated by others, which sought to maintain the "core values" of international humanitarian law. (Posted 2/21/10) In "Should Bush Administration Lawyers Be Prosecuted for Authorizing Torture?," University of Pennsylvania Law Review PENNumbra, Volume 158, 2010, Claire Finkelstein and Michael Lewis debate whether the authors of the famous Bush Administration torture memo, John Yoo and Jay Bybee, should be subject to criminal prosecution. (Posted 12/14/10) In "Access to Habeas Corpus: A Human Rights Analysis of U.S. Practices in the War on Terrorism," Transnational Law and Contemporary Problems Volume 20, page 3, Spring 2011, Brian R. Farrell looks at "the positions of the Bush and Obama Administrations on access to habeas corpus, and traces the

case law of the federal courts in determining the reach of habeas corpus under American law." (Posted 7/8/11) In "Indefinite Detention Under the Laws of War,"Fordham Law Legal Studies Research Number 1729221, authors Chris Jenks and Eric T. Jenson look to "extend the dialogue to substantive consideration of whether the LOAC rules on detention are sufficiently flexible and comprehensive to provide worthwhile and meaningful individual protections." Further arguing that "the basic provisions and safeguards currently extant in the law of armed conflict are sufficient to satisfy an indefinite detention paradigm." (Posted 7/8/11) In "The Laws of War as a Constitutional Limit on Military Jurisdiction," Journal of National Security Law and Policy, Volume 4, Number 2, December 2010, Stephen I. Vladeck attempts "to provide a thorough introduction to and analysis of the constitutional limits on the jurisdiction of military commissions." (Posted 8/4/2011)

HUMANITARIAN INTERVENTION: (scroll down for the most recent posts)

Look here for book reviews related to the topic of humanitarian intervention. One form of military action that many just war theorists condone is the use of armed forces to stop ongoing genocide and supply aid to persecuted refugees. For a general philosophical account, download Terry Nardin's article on The Moral Basis of Humanitarian Intervention (pdf), courtesy of the Center for Global Peace and Conflict Studies (CGPACS) at the University of California, Irvine. (Updated 9/2/05) In "Humanitarian Action Under Attack: Reflections on the Iraq War," Harvard Human Rights Journal, Volume 17, Spring 2004, Nicholas de Torrente of Doctors Without Borders argues that non-governmental humanitarian organizations must tackle the difficult task of maintaining principled neutrality in order to fulfill their missions. In "Politicized Humanitarianism," Paul O'Brien offers a critical response to de Torrente's article. Tufts University's Humanitarianism & War Project presents many careful and detailed studies of the problems associated with trying to intervene militarily for humanitarian purposes, as well as the problems of conducting effective unarmed humanitarian efforts in war zones. The most important international collaborative work on humanitarian intervention is The Responsibility to Protect, a 2001 report by the International Commission on Intervention and State Sovereignty. The report represents an emerging consensus in international ethics. (Posted 10/21/04) Carla Bagnoli takes a Kantian approach in "Humanitarian Intervention as a Perfect Duty". She argues that we should conceive of humanitarian intervention "as a duty rather than permission, and as a perfect duty rather

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than an imperfect one -- a duty that proceeds from respect for humanity rather than from charity." (Posted 10/21/04 thanks to Lawrence Solum) Ethics and International Affairs, Volume 18.2, Fall 2004, SPECIAL SECTION: "Humanitarian Aid and Intervention: The Challenges of Integration." The volume includes "Humanitarianism Sacrificed: Integration's False Promise" by Nicolas de Torrente, "Upholding Humanitarian Principles in an Effective Integrated Response" by Joel R. Charny, "An Elusive Quest: Integration in the response to the Afghan Crisis" by Antonio Donini, "Understanding Integration from Rwanda to Iraq" by Joanna Macrae, "The Value of Integration: A U.S. Perspective" by Arthur E. Dewey, "Improving the U.S. Government's Humanitarian Response" by Anita Menghetti and Jeff Drumtra, and "Informing the Integration Debate with Recent Experience" by Larry Minear. (Posted 2/2/05) (Updated 5/30/11) In "Humanitarian Intervention and Just War", Mershon International Studies Review 42, 1998, pp. 283-312, Mona Fixdal and Dan Smith argue "that the Just War framework is able to encompass most of the main arguments in the current humanitarian intervention literature and, thus, that the debate on humanitarian intervention would benefit from more explicit use of this framework." (Posted 3/20/05) T. ModiboOcran examines legal criteria for distinguising between genuine humanitarian intervention and aggressive intervention masquerading as humanitarianism in the Boston College International and Comparative Law Review 25(1), 2002. (Posted 8/15/05) Fernando Teson's"The Liberal Case for Humanitarian Intervention" is available here for downloading. (Posted 9/2/05) Nicholas Onuf examines the early modern theory and practice of humanitarian intervention in "Humanitarian Intervention: The Early Years." And Martha Finnemore examines more recent history in order to reveal the "Paradoxes in Humanitarian Intervention" (pdf). Both are available online courtesy of CGPACS. (Posted 9/02/05) David Rieff talks about his book, At the Point of a Gun: Democratic Dreams and Armed Intervention, in this 05/04/05 Carnegie Council presentation. (Posted 10/26/05) (Updated 5/30/11) AmitaiEtzioni's"Sovereignty as Responsibility" (forthcoming in the Winter 2006 edition of Orbis) "examines the development of a new normative principle of international order, sovereignty as responsibility; its communitarian implications; and the ways that the newly conceived responsibility of the international community to protect the people of states failing to live up to their responsibilities as defined by international norms can come to terms with the notion of democratic self-government." (Posted 12/15/05) Although his "Marxo-Weberian" reflections on recent global patterns of warfare are more wide-ranging than their placement in this section may suggest, Alain Joxe issues a sweeping indictment of "The

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Humanitarianization of War" in this exerpt from The Empire of Disorder (Semiotext[e], 2002), online courtesy of Borderlands. (Posted 12/23/05) In his 2002 essay on "The Intervention Debate" for the Strategic Studies Institute (SST), John Garofano "argues that American policymakers must take an approach based on principled judgment when deciding on the use of force. He concludes with a discussion of Army roles and requirements for future contingencies." (Posted 12/25/05) Classic text: John Stuart Mill's "A Few Words on Non-Intervention" (pdf) is finally available online for free, courtesy of the new International Political Theory Beacon. (Posted 3/25/06) Max P. Glaser addresses the thorny practical problem of enforcing international human rights law in areas of conflict in "Negotiated Access: Humanitarian Engagement with Armed Nonstate Actors," Max P. Glaser. (Posted 7/19/06) Several articles on humanitarian intervention are collected in International Legal Theory, Vol. 7(1) Spring 2001. It includes the following: "The NonIntervention Principle and Humanitarian Interventions Under International law," by JianmingShen; "There is No Norm of Intervention or Nonintervention in International Law," by Anthony D'Amato; Intervention, Imperialism and Kant's Categorical Imperative," by Maxwell O. Chibundu; "The Non-Intervention Principle and International Humanitarian Interventions," by Amy Eckert; "Humanitarian Intervention: A Response," by Bryan F. MacPherson; & "The Legitimacy of Humanitarian Intervention Under International Law," by Mortimer Sellers. (Posted 10/22/06) In "Contending Interventions: Coming to Terms with the Practice and Process of Enforcing Compliance," Human Rights and Human Welfare, Volume 6, 2006, EmilianKavalski reviews Martha Finnemore'sThe Purpose of Intervention: Changing Beliefs about the Use of Force and Michael C. Davis' (ed.) International Intervention in the Post-Cold War World: Moral Responsibility and Power Politics, and outlines an alternative approach. (Posted 10/31/06) A working version of Terry Nardin's "The Moral Basis of Humanitarian Intervention" is available for downloading from the UC Irvine school of social sciences where the paper was part of a 5/26/2000 symposium at the Center for Global Peace and Conflict Studies. (Posted 11/7/06) Now available online courtesy of Tim Hayward and the International Political Theory Beacon is Kok-Chor Tan's chapter on "The Duty to Protect," from Terry Nardin and Melissa S. Williams eds., Humanitarian Intervention, NOMOS XLVII, NYU Press, 2005. (Posted 11/11/06) Ryan Goodman rebuts the "pretext" objection to the legalization of humanitarian interventions in "Humanitarian Intervention and Pretexts for War," American Journal of International Law, volume 100, number 1, January 2006, pp. 107-41. (Posted 11/11/06)

In a preliminary draft of "Democracy, Prudence, Intervention," Jack Goldsmith examines certain tensions between the kinds of humanitarian interventions that some just war theorists favor and the pressures of instrumentally rational decision-making that are typical of democracies. (Posted 1/18/07) Peter Singer asks "Should Humanitarians Use Private Military Services?" Perhaps, but they should do so cautiously. (Posted 2/27/07) Michael Kocsis' Handy Links is a useful collection of links to articles from 2000 to 2006 on humanitarian intervention. (Posted 3/7/07) In "The Ethics of Armed Humanitarian Intervention," Peaceworks, United States Institute of Peace, July 2002, C. A. J. Coady cautiously examines the attractions and the pitfalls of "destruction and killing in defense of human rights and for prevention of human suffering." (Posted 3/21/07) "Humanitarian Intervention: The Utopia of Just War? The NATO intervention in Kosovo and the Restraints of Humanitarian Intervention," by ArkadiuszDomagala, Sussex European Institute working paper August, 2004. (Posted 8/7/07) There are a number of chapters that touch upon issues of humanitarian intervention in The Use of Force in International Relations: Challenges to Collective Security, Hans Kochler ed., International Progress Organization, 2006. (Posted 12/4/07) In Intervention to stop Genocide and Mass Atrocities: International Norms and U.S. Policy, Council on Foreign Relations Press, October 2009, Matthew C. Waxman recommends "modest steps" that the U.S. could take to improve the international legal regime governing humanitarian intervention in cases of genocide or mass atrocity: "These measures include expressing strong but nuanced support for the responsibility to protect and working with other permanent members of the UN Security Council to discourage the use of vetoes in clear cases of mass atrocities. But the report also argues that the United States must be prepared to act alone or with others in urgent cases without Security Council approval." Thanks to Robert Chesney for the reference. (Posted 12/23/09) In "The Responsibility to Protect Doctrine and Humanitarian Intervention: Too Many Ambiguities For A Working Doctrine," Journal of Conflict & Security Law, Vol. 13, Issue 2, 2008, Carlo Focarelli explains why this emerging norm is unpopular among many weak states and some strong ones. (Posted 1/2/10) In "Ecological Intervention: Prospects and Limits," Ethics & International Affairs, Volume 21.3, Fall 2007, Robyn Eckersley "seeks to extend the already controversial debate about humanitarian intervention by exploring the morality, legality, and legitimacy of ecological intervention and its corollary, ecological defense." (Posted 6/9/10) In "The Failure to Protect, Again: A Comparative Study of International and Regional Reactions Towards Humanitarian Disasters in Rwanda and

Darfur," Lambert Academic Publishing, 2011, Hagar Taha argues that "Darfur has proved that almost a decade from Rwanda, the practice of humanitarian intervention is still a failure and instead of being carried out in the name of humanitarianism, it abuses the concept for its own end." (Posted 7/8/11) In "Sudan: As South Split Looms, Abuses Grow in Darfur," Human Rights Watch, Press Release, June 6, 2011, HRW reports that "Government forces continue to violate the laws of war in their military operations against rebel forces with utter impunity." The article further suggests that "clear patterns of abuses, often based on ethnicity, have accompanied the renewed fighting." (Posted 7/8/11) In "The Responsibility to Protect and Peacemaking," e-IR, August 4, 2011, Abiodun Williams offers an concise overview of the emergence of the "responsibility to protect" (R2P), the principle's present role in peacekeeping, and the central challenges that it faces. He concludes that, "In the longer term, R2P has the potential to operate as a broader norm-based policy framework. Its concrete impact may not be restricted to crisis prevention and management. As its normative weight increases and its normalization advances, it could enhance local and international institutional capacities to assess and address the risk of atrocities at an earlier stage through primary prevention, ensure robust measures are taken to halt R2P crimes in a more consistent manner, and rebuild societies emerging from conflict." (Posted 8/6/11) In "The Vexing Problem of Authority in Humanitarian Intervention," Wisconsin International Law Journal, Vol. 24, No. 3, pp. 761-772, Fernando Teson reaches the following "grim" conclusion: "In the present circumstances, no state or group of states can serve as an acceptable authorizing body. Governments are caught in the logic of empire: the worlds superpower wants to get its way, and the rest of the world uses international organizations like the UN as a means to curb the superpower's will. The United States, sensing this, resorts to unilateral behavior. Neither one nor the other, caught in this gigantic prisoner's dilemma, will be in a position to advance the cosmopolitan interest of humanity." (Posted 10/1/11) In this episode of "Don't Shout at the Telly," Philip Cunliffe leads a discussion about humanitarian interventions. (Posted 5/17/12)

CIVIL WAR:

In "Democracy after Civil War: A Kantian Paradox," New York University, November 16, 2002, Leonard Wantchekon presents a theory of "post-civil war democratization" which draws upon the model of political order among rational demons as well as sources from "classical political

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theory, contemporary democratic theory, and the state-building literature." (Posted 7/20/06) Nicholas Sambanis discusses "Using Case Studies to Expand Economic Models of Civil War," PPS, Vol. 2, No. 2, June 2004. He shows that we cannot adequately understand civil war as an economic phenomenon without also understanding micro-level political motivations. (Posted 7/20/06) In "Horizontal Inequalities and Civil Conflict," Gudrun Oestby presents a quantitative model of case studies data to confirm and elaborate Kofi Annan's observation that "simple inequality between rich and poor is not enough to cause violent conflict. What is highly explosive is 'horizontal' inequality: when power and resources are unequally distributed between groups that are also differentiated in other ways -- for instance by race, religion or language." (Posted 7/20/06) The myths of the "liberal peace thesis" cloud awareness that war can be formative as well as ruinous, says Christopher Cramer, author of "Civil War is Not a Stupid Thing". (Posted 10/05/06) In "Making War and Building Peace:The United Nations since the 1990's," Michael W. Doyle and Nicholas Sambanis ask why some post-civil war transitions succeed where others fail, and they "consider the implications of theories of civil war for the design and effectiveness of peacebuilding operations." (Posted 10/22/06) In "The Logic of Violence in Civil War," Stathis N. Kalyvas challenges "thewidespread perception of civil war violence as a random, chaotic, and anarchical process (first suggested by Thucydides and Hobbes) or a phenomenon better (or even exclusively) approached from the perspective of passions and emotions." (Posted 12/15/06) In "Jus ad Bellum,Jus in Bello and Non-International Armed Conflicts, Yearbook of International Humanitarian Law, Volume VI, 2003, Francois Bugnion examines the question of whether the principles of just war theory, as articulated in public international law, apply in civil war contexts. The article is available online from the International Committee of the Red Cross. (Posted 1/13/07) A preliminary draft of David A. Lake's "Building Legitimate States After Civil Wars:Order, Authority, and Institutions" is available on the www. (Posted 3/10/07) In "Modeling civil violence: An agent-based computational approach," Proceedings of the National Academy of the Sciences, 2002, Joshua M. Epstein analyses the dynamics of state suppression of "decentralized rebellion" and "communal violence between two warring ethnic groups." (Posted 3/10/07) NichoasSambanis asks, "Do Ethnic and Non-Ethnic Civil Wars Have the Same Causes?" World Bank, January 24, 2001. (Posted 4/2/07) Gudrun Ostby's article on "Polarization, Horizontal Inequalities and Violent Civil Conflict," Journal of Peace Research, vol. 45, no. 2, 2008, pp. 143-162,

challenges some recent conventional wisdom: "Recent large-N studies of civil war conclude that inequality does not increase the risk of violent conflict. This article argues that such conclusions may be premature because these studies, which usually test the conflict potential of "vertical inequality" (i.e. income inequality between individuals), tend to neglect the group aspect of inequality. Case studies suggest that what matters for conflict is a concept closely linked to both economic and ethnic polarization: "horizontal inequalities", or inequalities that coincide with identity-based cleavages. Horizontal inequalities may enhance both grievances and group cohesion among the relatively deprived and thus facilitate mobilization for conflict..." (Posted 8/8/08) In "Growth, Democracy, and Civil War," a working paper from SSRN, November 6, 2007, Antonio Ciccone and Markus Bruckner find that "lower international commodity price growth has no effect on civil war in democracies, but raises the likelihood of civil war incidence and onset in nondemocracies." (Posted 9/9/08) In "Ethnic Diversity, Civil War and Redistribution," SSRN, March 4, 2008, Thomas Tangeras uses game theory to model the relationship between ethnic diversity and civil war: "The risk of civil war is comparatively high at intermediate levels of ethnic diversity. It is low if either society is very homogeneous or very diverse." (Posted 12/29/08) In "The Role of Natural Resources in Civil WarTowards Freedom," Global Policy Forum/Towards Freedom, May 3, 2010, PhumlaniMajavu argues that "The plundering of natural resources by foreign governments and companies has contributed to nearly every [intrastate] conflict of the last thirty-years. Oil, gold, cobalt, water, timber and many more resources are used to prop up corrupt governments and support violent militias. The Security Council must develop the political will to draw links between natural resources and conflict, if peacekeeping and peace-building forces are to be successful." (Posted 5/10/10) Book 1 Chapter 4 of Hugo Grotius' The Law of War and Peace, details the famous author's views of "War of Subjects Against Superiors". (Posted 9/17/11)

WAR CRIMINALS:

The complete text of the Rome Statute of the International Criminal Court is available here courtesy of the University of Minnesota's Human Rights Library. (Posted 5/15/07) In "Justice in Times of Violence," European Journal of International Law, Volume 14, Number 2, Article 8, 2003, Frederic Megret examines the question of who should judge the war crimes of terrorists. On one hand, the "cosmopolitan" effort to try terrorists before the ICC is "unlikely to convince many and probably has more to do with liberalism's need to revitalize its

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programmatic promise in times that seem to profoundly challenge its globalizing logic." But on the other hand, "the notion, implemented in the United States, that terrorists should be judged by military commissions... betrays a regression of international law and can only be properly understood if viewed in the larger context of a crisis of liberalism." (Posted 5/15/07) In "Donald Rumsfeld: The War Crimes Case," Jurist, November 9, 2006, Marjorie Cohn argues "that although Donald Rumsfeld is resigning as US Secretary of Defense, steps should be and will be taken to hold him accountable for breaches of international law and even war crimes sanctioned in Iraq and Guantanamo during his tenure..." (Posted 5/16/07) Follow this link for a background brief on "The Case Against Rumsfeld, Gonzales, et. al. filed in Germany on November 14, 2006... a request for the German Federal Prosecutor to open an investigation and, ultimately, a criminal prosecution that will look into the responsibility of high-ranking U.S. officials for authorizing war crimes in the context of the so-called 'War on Terror. The complaint is brought on behalf of 12 torture victims -- 12 Iraqi citizens who were held at Abu Ghraib prison and one Guantanamo detainee -and is being filed by the Center for Constitutional Rights (CCR), the International Federation for Human Rights (FIDH), the Republican Attorneys' Association (RAV) and others..." (Posted 5/15/07) In "Jus Post Bellum: The Importance of War Crimes Trials," Perameters, August 2002, Davida Kellogg makes the case for post-war criminal justice on both retributive and forward-looking grounds: "Declining to do full justice for those who have been most grievously wronged by aggression, whether from without or within their national borders, leads to the perpetration of further moral injustice..." (Posted 5/15/07) Ernesto Verdeja's chapter on "Institutional Responses to Genocide and Mass Atrocity," from Genocide, War Crimes and the West: History and Complicity, Adam Jones (ed.), Zed Books, 2004, "discusses the normative underpinnings of tribunals and truth commissions" and "identifies factors that affect the viability of commissions and tribunals, and emphasizes the importance of contextual constraints on their implementation and use." (Posted 5/15/07) In "Universal Jurisdiction and the Dilemmas of International Criminal Justice: The Sabra and Shatila Case in Belgium," from Human Rights Advocacy Stories, Deena Hurwitz, Margaret L. Satterthwaite, Doug Ford, eds., Foundation Press, 2009, Hurwitz examines the state-specific politics of war crimes prosecution efforts. (Posted 12/21/08) In "Beyond Retribution and Impunity: Responding to War Crimes of Sexual Violence," GWU Law School Public Law Research Paper No. 104, SSRN, August 26, 2004, Naomi Cahn "discusses the contemporary Congolese conflict, providing the context for the sexual violence that has occurred during the war" and "provides a fuller development of the principles that should guide any response to the sexual violence, surveying the possible approaches." (Posted 12/29/08)

In "The Hamdan Case and the Application of a Municipal Offence: The Common Law Origins of 'Murder in Violation of the Law of War'," Journal of International Criminal Law, Volume 7, 2009, John C. Dehn argues that this municipal common law invoked in Ex parte Quirin "was not an attempt to articulate a crime defined or made punishable by the law of nations or positive IHL [International Humanitarian Law], but rather to implement punishment permitted by it. Municipal law in that regard may, to a certain extent, go beyond the scope of IHL and criminalize conduct that is not made directly punishable by the laws of war." (Posted 5/13/09) In "Coerced Moral Agents? Individual Responsibility for Military Service," The Journal of Political Philosophy, Volume 6, Number 2, 1998, David Mapel presents a careful critical examination of the responsibilities of soldiers, and would-be soldiers, for their participation in various forms of warfare. (Posted 11/27/09) In "Living Up to Rules: Holding Soldiers Responsible for Abusive Conduct and the Dilemma of the Superior Orders Defence," McGill Law Journal, Volume 52, Number 1, 2007, Martha Minow argues "that it is important to restrict the application of the superior orders defence in order to uphold a symbolic ideal of individual responsibility, but that real prospects for preventing atrocities by soldiers depend on changing the organizational design and resources surrounding the soldier and specifying new obligations for those in command." (Posted 11/27/09) In "The Blank-Prose Crime of Aggression," Yale Journal of International Law, Vol. 35, p. 71, 2010, Michael J. Glennon critically examines a proposed "amendment to the treaty establishing the International Criminal Court that would define the crime of aggression and make that crime prosecutable before the Court." The proposed amendment would, Glennon argues, "constitute a crime in blank prose, one that would, in its disregard of the international principle of legality and related constitutional prohibitions against vague and retroactive criminal punishment, run afoul of basic international human rights norms and U.S. domestic guarantees of due process." To receive regular notices about similar articles and related court cases, sign up for Robert Chesney's excellent national security law mailing list here. (Posted 12/23/09) In "Humanities Histories: Evaluating the Historical Accounts of International Tribunals and Truth Commissions," April 2011, Richard A. Wilson poses two questions: (1) "have international tribunals or commissions of inquiry actually provided significant insights into the origins and causes of political violence"? and (2) "how might states or international institutions document human rights violations in a way that is comprehensive and engages in a meaningful reckoning with the past"? (Posted 7/8/11)

JUS POST BELLUM:

Brian Orend's "Justice After War," Ethics & International Affairs, Volume 16, Issue 1, March 2002, presents a clear and fairly comprehensive overview of jus ad bellum considerations. In "New Modes and Orders: The Difficulties of a Jus Post Bellum of Constitutional Transformation," University of Toronto Law Journal, Volume 60, Number 3, Summer 2010, NehalBhuta examines "the difficulties and dilemmas of the idea of a jus post bellum of constitutional transformation in territories under foreign or international administrationat present, international law contains no such rules and that the law of selfdetermination provides no guidance." In "'Jus Ad Bellum', 'Jus in Bello''Jus Post Bellum'?: Rethinking the Conception of the Law of Armed Forces," European Journal of International Law, Volume 17, Issue 5, CarstenStahn argues that "the increasing interweaving of the concepts of intervention, armed conflict and peacemaking in contemporary practice make it necessary to complement the classical rules of jus ad bellum and in jus in bello with a third branch of the law, namely rules and principles governing peace-making after conflict. The idea of a tripartite conception of armed force, including the concept of justice after war ('jus post bellum') has a long-established tradition in moral philosophy and legal theory." In "What Will Jus Post Bellum Mean? Of New Wine and Old Bottles," Journal of Conflict and Security Law, Volume 14, Issue 2, 2009, authors IngerOsterdahl and Esther Van Zadel argue that "The idea of a framework of jus post bellum has recently gained momentum as a new category of law to be applied in the post-conflict phase, in order to reconstruct a stable and peaceful society after conflict. This framework of jus post bellum rules seems to be just what the world needs as the rules of jus ad bellum, which regulate the beginning of a war, and the rules of jus in bello, which regulate the conduct of the actual war, are not comprehensive enough to be of constructive help in the post-conflict phase." In "Jus Post Bellum," Philosophy and Public Affairs, Volume 32, Issue 4, October 2004, Gary J. Bass argues that "the aftermath of war is crucial to the justice of the war itself. Political leaders often invoke postwar developments like bringing democracy or stability as part of justifying or condemning a war; but political theorists have not yet fully come to terms with which of these arguments are morally compelling. It is important to better theorize postwar justicejus post bellumfor the sake of a more complete theory of just war." In "Legislative Reform in Post Conflict Zones: Jus Post Bellum and the Contemporary Occupant's Law Making Power," McGill Law Journal, Volume 50, Kristen Boon examines "jus post bellum in light of the recent nonconsensual legal reforms in Iraq, Kosovo, and East Timor to demonstrate how international bodies and coalitions are increasingly assuming legislative

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functions, legitimately and otherwise, in the context of their duties as interim administrators." In "Just War and Post War Justice," Tobias Winright intends for "criteria of jus post bellum to enrich and to buttress the just war traditionto give it more teeth, as Mennonite pacifist theologian John Howard Yoder called upon Christian just war proponents to doby emphasizing that moral responsibility for war does not come to a halt when combat ends." (Posted 1/1/12)

GENERAL PEACE & WAR RELATED WEB RESOURCES:

Sound ethical judgments about warfare need to be based upon good information. For authoritative reporting on current issues of concern to everyone who cares about just and humane use of military force, check out the Human Rights Watch website. To keep abreast of the legal news pertaining to the U.S. war against terrorism, the Human Rights First website is the place to go. Looking for coverage that might counterbalance the biases of mainstream corporate media? Then the American Library Association's comprehensive list of alternative resources is the best place to start looking for the reports that you don't see on the nightly news and the arguments that you don't hear from TV pundits. For exhaustive lists of political science & war-watching internet resources, check out Craig McKie'sResearch Resources for the Social Sciences. (Posted 7/18/04) The Global Policy Forum "monitors policy making at the United Nations, promotes accountability of global decisions, educates and mobilizes for global citizen participation, and advocates on vital issues of international peace and justice." They provide numerous links to timely reports and to organizations that address international justice, security, disarmament and peacemaking problems. (Posted 7/20/04) The website for The Crimes of War Project compiles text and photo journalism of the highest quality covering issues in international humanitarian law. (Posted 8/29/04) The University of Minnesota's Human Rights Library hosts a number of valuable publications on War Crimes, Crimes against Humanity, Genocide, and Terrorism. (Posted 10/20/04) Paul Martin Lester maintains a very useful website devoted to Ethics on the World Wide Web. JWT.com readers will be particularly interested in his Military Ethics page. (Posted 12/07/04) Anup Shaw presents several interesting war-related pages, full of useful links, in the Geopolitics section of Globalissues.com. (Posted 12/09/04) The Project on Defense Alternatives is an excellent and rapidly growing compendium of studies on military strategy. (Posted 11/23/05)

The National Security Archive at George Washington University is the best source for declassified U.S. documents obtained through the Freedom of Information Act. (Posted 12/05/05)

The Just War Theory of the Catholic Church

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Miracle Prayer Requestswww.ChristianPrayerCenter.comNeed a Blessing? Strongest Prayer Chain Online. Free Prayer RequestFreeWrittenProphecy.com/Prayer.htmlReceive a Free Prophetic Prayer Request with Bishop E. Bernard An Ancient Teaching: The Catholic Churchs teaching on just war developed very early. St. Augustine of Hippo (354-430) was the first Christian writer to describe the four conditions that must be met in order for a war to be just, but the roots of just-war theory go back even to non-Christian Romans, particularly the Roman orator Cicero. Two Types of Justice Concerning War: The Catholic Church distinguishes between two types of justice concerning war: jus ad bellum and jus in bello. Most of the time, when people discuss just-war theory, they mean jus ad bellum (justice before the war)the four conditions by which we determine whether a war is just before we go to war. Jus in bello (justice during the war) refers to how the war is conducted once it has started. It is possible for a country to fight a war that is just, and yet to fight it unjustly by, for example, targeting innocent people in the enemys country. The Four Conditions for Jus Ad Bellum: The current Catechism of the Catholic Church (n. 2309) defines the four conditions for determining the justice of a war as: 1. the damage inflicted by the aggressor on the nation or community of nations must be lasting, grave, and certain; 2. all other means of putting an end to it must have been shown to be impractical or ineffective; 3. there must be serious prospects of success;

4. the use of arms must not produce evils and disorders graver than the evil to be eliminated. These are hard conditions to fulfill; the Church teaches that war should always be the last resort. A Matter of Prudence: That decision is left to the civil authorities: The evaluation of these conditions for moral legitimacy belongs to the prudential judgment of those who have responsibility for the common good. In the United States, for instance, that means Congress, which has the power under the Constitution (Article I, Section 8) to declare war, and the President, who can ask Congress for a declaration of war. When the Catechism states that the decision to go to war is ultimately a prudential judgment, that means that the civil authorities bear the responsibility for making sure that a war is just before they fight it. The Role of Modern Weaponry: While the Catechism mentions that the use of arms must not produce evils and disorders graver than the evil to be eliminated, it also states that The power of modern means of destruction weighs very heavily in evaluating this condition. Here, the Church is concerned about the possible use of nuclear, biological, and chemical weapons, the effects of which, by their very nature, cannot easily be confined to combatants in a war. The injury or killing of the innocent during war is always forbidden; however, if a bullet goes astray, or an innocent person is killed by a bomb dropped on a military installation, the Church recognizes that these deaths are not intended. With modern weaponry, however, the calculation changes, because governments know that the use of nuclear bombs, for instance, will always kill or injure some who are innocent. Because of that, the Church warns that the possibility of the use of such weapons must be considered when deciding whether a war is just. In fact, Pope John Paul II suggested that the threshold for a just war has been raised very high by the existence of these weapons of mass destruction, and he is the source of the teaching in the Catechism. Joseph Cardinal Ratzinger, now Pope Benedict XVI, went even further, telling the Italian Catholic magazine 30 Days in April 2003 that "we must begin asking ourselves whether as things stand, with new weapons that cause destruction that goes well beyond the groups involved in the fight, it is still licit to allow that a 'just war' might exist." Furthermore, once a war has begun, the use of such weapons may violate jus in bello, meaning that the war is not being fought justly. The temptation for a country that is fighting a just war to use such weapons (and, thus, to act unjustly) is just one reason why the Church teaches that The power of modern means of destruction weighs very heavily in evaluating the justice of a war.

Just War - introduction Introduction

The just war theory is a largely Christian philosophy that attempts to reconcile three things:

taking human life is seriously wrong states have a duty to defend their citizens, and defend justice protecting innocent human life and defending important moral values sometimes requires willingness to use force and violence The theory specifies conditions for judging if it is just to go to war, and conditions for how the war should be fought. Although it was extensively developed by Christian theologians, it can be used by people of every faith and none.
Purpose

The aim of Just War Theory is to provide a guide to the right way for states to act in potential conflict situations. It only applies to states, and not to individuals (although an individual can use the theory to help them decide whether it is morally right to take part in a particular war). Just War Theory provides a useful framework for individuals and political groups to use for their discussions of possible wars. The theory is not intended to justify wars but to prevent them, by showing that going to war except in certain limited circumstances is wrong, and thus motivate states to find other ways of resolving conflicts.
'Just', or merely 'permissible'?

The doctrine of the Just War can deceive a person into thinking that because a war is just, it's actually a good thing. But behind contemporary war theory lies the idea that war is always bad. A just war is permissible because it's a lesser evil, but it's still an evil.
Origins

The principles of a Just War originated with classical Greek and Roman philosophers like Plato and Cicero and were added to by Christian theologians like Augustine and Thomas Aquinas.
Elements

There are two parts to Just War theory, both with Latin names: Jus ad bellum: the conditions under which the use of military force is justified. Jus in bello: how to conduct a war in an ethical manner. A war is only a Just War if it is both justified, and carried out in the right way. Some wars fought for noble causes have been rendered unjust because of the way in which they were fought.

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