Should We Justify War? more

Should We Justify War? Roger Berkowitz ℵ Just War as a Matter of Theory War, Heraclitus tells us, is the father of all things. In fragment 80, he adds that war is what is most common, that justice is strife, and that all things come to life through strife and necessity. Finally, in fragment 64, Heraclitus adds that all things are steered and governed by lightning. War, strife, and lightning are the common source of all things--which Heraclitus holds to be necessary and right.1 And yet justice, Dike, is also a child of war. War births mankind as well, as that species for whom life itself is secondary to the good life. From Achilles' choice for a glorious life and an early death to Patrick Henry's plea to "give me liberty or give me death," war has named that human spirit to fight and risk all for what is right. The good and the just make sense only as ultimate ends for which one will endure the most extreme sacrifice. Absent the glory and tragedy of war, there would be no spiritual cauldron in which to forge the mettle of justice. It is this power of war to give birth to justice that led the Jewish born Christian philosopher Simone Weil to conclude, "Only he who has measured the dominion of force, and knows how to respect it, is capable of love and justice."2 What war teaches, Weil argues, is the experience of utter misery, the reduction of man to a mere thing, a plaything of fate. Only amidst the fury of war, the savagery of strife, and the lashes of lightning do human beings confront the utter senselessness of our world, the very precondition that calls forth the dream of justice. The experience of human misery is what first allows human beings to raise themselves to a higher plane, to "resort to the aid of illusion, fanaticism, to conceal the harshness of destiny from their eyes." As did Plato and Nietzsche before her, Weil understood that the "man who does not wear the armour of the lie cannot experience force without being touched by it to the very soul."3 Only the lie of justice, the dream of a higher plane of human purpose, allows us humans to survive the existential threat of war. Justice, in other words, is that noble lie that humans invent in order to make our warlike and strife-filled lives meaningful. It is worth recalling the paternal and generative relation between war and justice at the beginning of a volume that seeks to consider "just war as a matter of theory." The theoretical subjection of war to justice places the sapling atop the tree. What does it mean to have the daughter, justice, sit in judgment on the father? It means, at least in part, that in speaking of "just war," we speak not of justice but of justification.4 That war is justified does not mean that it is just. It may be justifiable to have invaded Afghanistan, but that doesn't mean it was just to do so. It may be justifiable to kill an enemy soldier asleep in the woods, but many soldiers have worried that it is not just. And while war theory justifies bombing civilian houses suspected of harboring fighters as long as you warn the inhabitants to leave, that too will strike many as unjust. What must be remembered is that within the theoretical context of just war theory, the word "just" is a term of art. When used in the context of just war, justice "means justifiable, defensible, even morally necessary (given the alternatives)--and that is all it means."5 For Michael Walzer—whose book Just and Unjust Wars is for "current just war theory what Grotius' The Law of War and Peace was to prior centuries"6— it is essential that in talking about just war we agree that "justice in the strong sense, the sense that it has in domestic society and everyday life, is lost as soon as the fighting begins."7 What theories of just war address, writes Brian Orend, is not some high ideal of justice, but "a connected body of ideas and values which considers when war can be ethically justified."8 A just war is a justifiable war. In other words, a just war is one that is seen to be legitimate when judged by clearly articulated norms, rules, and legal principles. While warfare is as ancient as mankind, the justification of wars is a uniquely modern idea. This is true despite the fact that there is a long tradition of thinkers who sought to justify war. The effort to justify war first emerged with the Romans and the Christians. The Romans spoke of just wars, however, as any war that was necessary. For the Romans, "[t]he war that is necessary is just."9 The attribution of justice to necessary wars lasted through the 19th century, with necessity comprising a broad category covering "[c]onquest, expansion, defense of vested interests, [and] the conservation of power in view of the rise of new and threatening powers...."10 The justice of necessary wars (however broadly conceived) dominates just war thinking up until the 20th century and World War I. For Hannah Arendt, the modern just-war theorizing that we encounter today is a response to the radical innovation in the violence of war witnessed in World War I. "The notion that aggression is a crime and that wars can be justified only if they ward off aggression or prevent it acquired its practical and even theoretical significance," she writes, "only after the First World War had demonstrated the horribly destructive potential of warfare under conditions of modern technology."11 At a time when war threatens Armageddon, the justification for war cannot proceed on utilitarian and rational grounds--the very idea of a useful war loses its purchase when the consequences of victory as much as defeat might mean annihilation. The only justification left for war in the modern era is the absolute justification: we fight for freedom and for existence itself. "In other words," Arendt writes, "freedom has appeared in this debate [over the justification of war] like a deus ex machina to justify what on rational grounds has become unjustifiable."12 Just war theory emerges as a theory, in other words, precisely when rationality and utility cease to function as meaningful justifications for war. Discussion of justified warfare rarely concedes that war today is unjustifiable. While war is thought to be hell, the effort is to articulate norms, conventions, and laws that allow us to say when war is and is not justified. Above all, we seek to justify war, to tame it, and make it more humane. What is often overlooked in the rush to justify war is the nagging and unpredictable question of what the impact of justifying war might be. "Wedding war to justice" may well usher in an era of humanitarian warfare;13 the effort to make war more humane might, however, inaugurate an unprecedented era of legalized, bureaucratized, and justified violence. In the name of freedom, there is almost nothing that cannot be justified, especially when it is legitimated by its attention to legal rules. The felt need to justify and legitimate war today means that war is increasingly a legal institution. War, in the name of justifying itself, is "managed by experts-even by cosmopolitan professionals."14 Military officials turn to law limit the violence and unpredictability of warfare, to ensure "some safety and decency, among professionals on different sides of the conflict."15 While law does serve the purpose of restraining some of the wild impulses of warriors, it also offers "assurance that their killing is authorized and legitimate."16 What all of this means is that warfare has, in David Kennedy's phrase, become "lawfare."17 To embark on the course of war today one must field not only an army of soldiers, but also a battalion of lawyers. As Eyal Weizman has argued, "military lawyers in the midst of a campaign legally condition the battlefield by poring over target-maps and informing soldiers in what way they are entitled to kill civilians. [International Humanitarian Law] then becomes the ethical vocabulary for marking legitimate power and justifiable death."18 In an age when war is carried out in cities, when wars are fought against guerrilla and non-state actors, and when the line separating civilians from soldiers is blurred, the effort to justify war is as likely to authorize the killing of innocents as it is to restrain it. At stake in the effort to justify war is not simply some academic exercise. We ought not to aim for a series of justifications, legal or ethical, that will answer the question of when wars are justified and how they may be justly fought. War, like any deeply human activity, will exceed all efforts by humans to control and to regulate it. What is needed, rather, is a determination to recall that justice, and not merely strategy and utility, has a place in war. Instead of justifications, what just war thinking offers is the insistent determination that those who fight not blind themselves to the illumination of justice amidst the fog of war. Just War Between Pacifism and Realism By offering guidelines for arguing about when wars are justified and when they are not, just war theory situates itself against two more absolute theories regarding the morality of war. First, just war theory emerges in opposition to pacifism. For pacifists, from early Christians to contemporary Quakers, Gandhians, and other conscientious objectors, any recourse to armed conflict endangers the soul and contradicts the imperative of peace.19 Even as just war theory agrees with pacifists that war must not be a common solution to everyday political disagreements, it diverges from pacifism in accepting that war is, at times, a both justified and necessary. Thus just war theorists do not accept the basic pacifist view that "No matter what kind of pacifist you are, you believe that war is always wrong."20 Instead, just war theorists believe that all war is potentially justifiable--at least under certain conditions. The connection between pacifism and just war theory goes back to the very origin of the just war tradition. For early Christians, the Bible offered a number of statements that were thought to command an unremitting pacifism. Jesus Christ's teachings—e.g. "Put your sword back into its place; for all who take the sword will perish by the sword,"21 and "But I tell you not to resist an evil person. Whoever slaps you on the right cheek, turn the other to him also"22—were thought by many Christians to forbid war as well as to disqualify Christians from a military life.23 It was in response to such pacifist sentiments that St. Augustine first enunciated a response that was designed to authorize Christians to fight and wage wars while at the same time insisting that those wars accord with Christian morality. What Augustine offered was "a workable ethical guide for the practicing Christian who also had to render unto Caesar his services as a solder."24 According to John Finnis, Augustine's approach to just war was in the form of a "discussion[] of the conditions which must all be satisfied if the war is to be just."25 And yet these conditions are less a theoretical system than simply a guide of those "good reasons" a state has for going to war.26 War, Augustine argues, can be for just reasons, but if so it must be for the end of peace; it must be fought with a "pacific intention" that governs both the decision to engage in war and the means by which one fights.27 "Be a peacemaker," he writes, "even in war, so that by conquering them you bring the benefit of peace even to those you defeat. For, says the Lord, Blessed are the peacemakers, for they shall be called the sons of God."28 Augustine's efforts to overcome Christian pacifism and to articulate a theory of just war is one main root of the tradition of just war theorizing as it has developed over the last 1600 years.29 The second historical foil for just war theory is the tradition of political realism, the idea that, in Cicero's formulation, inter arma sine leges: in war, the laws are silent. If pacifism insists that all wars are unjust, realism claims that war is an amoral activity that can be neither justified nor judged in accordance with moral standards. It is one thing to judge individual aggression by citizens of a state who have somehow consented to live peaceably in civilization; but it is another thing entirely to judge states that face each other in the anarchic and unceasing struggle for power that is the lawless realm of international affairs. Realists accept that "[s]tates simply do not care about morality and justice; they only care about their own interests." And to the extent that states may give "lip-service" to moral concerns, it is only in service of furthering their ends. "Moral concepts," the realist holds, "are literally inapplicable to the realm of foreign affairs."30 For realists, "war is simply an act of politics by other means," as Karl von Clausewitz so famously argued. War, Clausewitz writes, "is an act of force... which theoretically can have no limits."31 Since every tactic by each side justifies escalation by their opponent, "[w]ar tends toward the utmost exertion of forces."32 The unlimited nature of war--that it is a fight to the death for ultimate values including life and liberty themselves--means that the only logic of war is victory and "there can be no imaginable act of violence, however treacherous or cruel, that falls outside of war, that is not-war, for the logic of war simply is a steady thrust toward moral extremity."33 The logical push of war towards extremes imagined by realists is only more apparent in our age, for at least two reasons. First, the technology of destruction in modern war is so extraordinary that war threatens not just defeat but annihilation. As Ernst Jünger recognized in his reflections on the technological destruction wrought by WWI, the "era of the well-aimed shot is already behind us." In an age of night flights, carpet bombing, suicide bombings, and nuclear weapons, the modern menace is a "total mobilization" that "extends to the child in the cradle, who is threatened like everyone else--even more so."34 Second, the extremity of war today is even more deeply rooted in its democratic spirit. Wars are fought no longer simply by armies, but require a mobilization of an entire civilization--a civilization that is threatened with destruction should it suffer defeat. This "total mobilization"--to again cite Jünger's trenchant phrase-includes industry, agriculture, and, most importantly, the masses.35 In modern wars, the distinctions between soldier and civilian, munitions and chemicals, weapons systems and the electricity grid are blurred if not rendered moot, and the ethical attempt to limit the reach of war fly in the face of war's reality. If realists have always understood war as "a world apart," one that is immune to moral considerations, they are right today that the complexity and totality of war overruns moral and political limits.36 To impose morality on war, realists like Hans Morgenthau argue, is to make a category mistake.37 Realism thus challenges the fundamental assumption of just war theory, that justice is a reliable metric with which to evaluate war. Between the pacifists' extreme moral rejection of war and the realist's extreme ejection of war from the moral universe, the just war tradition insists that wars will happen and they must be subject to moral judgment. For Walzer, the just war theorist "must come to grips with the fact that his rules are often violated or ignored."38 It will often be the case that just war theory will seem irrelevant, a flight of fancy, and an academic exercise, mere talk in the face of the world's utter disregard. But such powerlessness of just war theory is not to fatal; rather, we must continue to speak about justice and war and not abandon our "sense of war as a human action," an act done by and to humans, and thus an act "for whose effects someone is responsible." The aim of the just war theorist is the "search for human agents" who are behind the many crimes committed in war.39 And once we find those human agents, we must be willing to judge the justice of their actions. What the just war theorist does is to argue about those who are responsible as well as those who are innocent. In the face of a General Sherman who may boast that "War is cruelty, and you cannot refine it,"40 the just war theorist argues about war precisely towards the end of refining it and containing war within moral bounds. In assigning blame and responsibility and in legitimating war and destruction, the just war theorist works to bring war into the moral fold of civilization. The argument about the justification for war includes citizens, politicians, and soldiers--as well as philosophers and lawyers—all of whom participate in a discussion that gives "shape and structure to that experience" of war that are "plausible to the rest of us." It is this plausible shape and structure that Walzer calls "the moral reality of war:" "Reiterated over time, our arguments and judgments shape what I want to call the moral reality of war—that is, all those experiences of which moral language is descriptive or within which it is necessarily employed."41 Formed in the discourse and debate surrounding what is and is not justifiable behavior in war, the moral reality of war is less a knowable moral or legal system than an ever-emergent common sense of right and wrong. Just War contra International Law Beyond pacifism and realism, another foil for the just war tradition is international law. As Brian Orend has observed, "The centre of action, in just war theory, [has] moved at this time firmly out of the Catholic Church and into the corridors of international law and power, as well as into the groves of academe, and even the streets of non-violent protest."42 Much of the effort at justifying war today seeks to find the relevance and effectiveness that philosophical just war arguments lack by couching its arguments in a practical legal vocabulary.43 This is true both for critics of certain wars who argue against them by challenging their legal justifications,44 as well as those waging the wars themselves who justify and legitimate their actions by showing that they conform to international law.45 In either case, the recourse to the law of war is thought to offer just war theory a real-world impact to which it has long aspired. The attraction of international law is to subject war to "a set of objective rules" that would determine when wars are justified. From the League of Nations and the Kellogg Briand Pact of 1928 to the Rome Statute of the International Criminal Court of 2002, international law has institutionalized the idea that "decision making about war should adhere to a set of objective normative standards."46 For Gregory Reichberg, this development is merely the culmination of a "long process of moral and legal reflection that reaches back to the Christian Middle Ages."47 For others like Yoram Dinstein, the rise of an international law of war is 20th century innovation beginning with the Kellogg Briand pact of 1928 has been a watershed in the "legal regulation of the use of inter-State force."48 Just law theory, these thinkers and others argue, has become inseparable from the legal effort to criminalize and punish unjust and hence illegal acts of aggression. And yet, just war theory ought not to be confused with the international law of war. Even though "the language with which [just war theorists] argue about war and justice is similar to the language of international law," just war theory is not about "the positive laws of war."49 For Walzer, this is above all because the international laws of war themselves are confused and chaotic. "The lawyers," Walzer contends, "have constructed a paper world, which fails at crucial points to correspond to the world the rest of us still live in."50 A second reason that international laws are distinct from just war theory is that much international law is less about law and more about achieving some desired purpose. International lawyers are often akin to "would-be legislators" than to jurists, and they are more committed to "restructuring international society" than to expounding its present structure."51 International law, in other words, is too often either an idealist or utilitarian movement aimed at utopian ideals. The temptation of legal argumentation, however, is felt in the constant recourse in just war theories to words like "rights." "A legitimate act of war," Walzer writes, "is one that does not violate the rights of the people against whom it is directed."52 For Orend, the idea of justified war is an "integral part of a human rights-based approach" to our globalized world.53 In discussing the rape Italian women by Moroccan soldiers fighting with the French in 1943, Walzer insists that it makes sense to speak of a violation of the women's rights: The Italian women who were raped "lost some of her rights." The substance of these rights, he continues, is that "no one can be threatened with war or warred against, unless through some act of his own he has surrendered or lost his rights."54 We ought to take care not to make too much of the recourse to rights. As Simone Weil has so vividly written, the claim of that a right has been violated transforms "what should have been a cry of protest from the depth of the heart... into a shrill nagging of claims and counter-claims." Walzer cites this passage in his footnotes and counters that Weil "is wrong in her claim about the 'sound' of rights talk." Taking up a defense of rights recently made by legal theorists like Patricia Williams, Walzer argues that rights "have played a significant part in the struggle against oppression, including the sexual oppression of women."55 If rights talk is unstable, obfuscatory, and superficial, it is also the case that rights, for historically disadvantaged or oppressed groups, are powerful social markers of respect and responsibility owed by society.56 One can, of course, speak of rights as central to just warfare and also acknowledge that the "fundamental principle" of human dignity is "only inadequately expressed in positive international law."57 Over and against their legal manifestations, just war theories need to be seen as frameworks for critical moral argument about war. The moral reality of war, pace Walzer, is shaped by all of society; it may be guided and "fixed by the activity of philosophers, lawyers, and publicists of all sorts,"58 but these professionals do not have the final say. They cannot, because as John Finnis writes, "sound moral and political deliberation and reflection is not legalistic."59 The question of when a war is just is not separable from the question of the intention of the parties--why they fight-which is an ethical inquiry nowhere to be found in the international law of war.60 What just war theorists do in their writings and debates, is to "expound our common morality," a morality that always already exists, but needs expression.61 Jus ad Bellum and Jus in Bello In expounding the morality of war, nearly every contemporary discussion of just war theory begins by affirming the distinction between jus ad bellum and jus in bello. The distinction is "the essential feature" of the moral reality of war.62 Jus ad bellum, the right to go to war, names a discussion about under what conditions and on what grounds one nation is justified in warring with another. It allows an adjectival claim: this is a just or an unjust war. Jus in bello, the just way to fight a war, concerns what acts are just or unjust in fighting a war. Jus in bello is an adverbial claim, that a particular war is being fought justly or unjustly.63 The use of the Latin terms jus ad bellum and jus in bello gives the sense that the division is as traditional as it is central; and yet, the distinction is neither traditional nor necessary. As Reichberg notes, these Latin terms only emerge as terms of art in the just war discourse in the late 19th century. The impetus for this development, he writes, is the desire for clear and objective rules coming from international lawyers.64 To build a case against individuals for acts of war, lawyers need clear rules, which underlies the dualism between just wars and the just fighting of wars. If the jus ad bellum/jus in bello distinction is universally employed in the modern literature, it is also widely questioned. For many, like Jeff McMahan and Brian Orend, the distinction ignores the fact that soldiers fighting in an unjust war are more morally culpable than soldiers fighting a just war.65 McMahan argues that "jus in bello cannot be independent of jus ad bellum" because the acts of soldiers in an unjust war are, with few exceptions, unjust.66 As did St. Thomas Aquinas and many of the Christian thinkers in the just war tradition, those who question the distinction today insist that the unjust choice to go to war influences whether one is justified in killing. "Every choice one makes in war," John Finnis writes of the Catholic tradition, "must satisfy all moral requirements."67 Orend agrees that there is a "robust connection between jus ad bellum and jus in bello," but nevertheless follows Walzer in arguing that the distinction is conceptually useful.68 There is, Orend maintains, a logical distinction between the jus ad bellum and jus in bello, and points to World War II as the locus classicus of the distinction. It is coherent, he argues, to call the decision fight against Germany and Japan justifiable, while at the same time arguing that some of the methods used were unjustifiable--for example, the carpet bombing of Dresden, the use of atomic bombs in Nagasaki and Hiroshima. "The categories," he writes, "are at least logically or conceptually distinct, and so we must consider them separately, each with their own rules and considerations."69 Even if the dualism "is at the heart of all that is most problematic in the moral reality of war," Walzer and Orend adopt the consensus view and insist that we have no choice but to analyze war by these two categories. Jus ad Bellum The question, "When is it just to go to war?" has changed radically in the last century. The change is summed by Yoram Dinstein's formulation that "international law progressed from jus ad bellum to jus contra bellum.70 From the Romans and the Christians up until the early 20th century, jus ad bellum named the right way for nations to fight a war; the tradition assumed that war was neither condemned by the law of nature nor by the law of nations.71 Against this view, and under the sway of international law, war today is generally condemned and is criminalized by the law of nations. The most important statement of the modern condemnation of war is found in Article 2, §4 of the United Nations Charter. Article 2 of the UN Charter is the "pivot on which the present-day jus ad bellum hinges."72 It stipulates that, "All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." The reference to the Purpose of the United Nations is illuminated by Article 1§1 of the UN Charter, which proclaims that the United Nations exists "To maintain international peace and security, and to that end: to take effective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace." War, in the light of the UN Charter, is to be suppressed. War is banned, with the single exception of selfdefense. All war is imagined as the crime of aggression, and self-defense against the crime of aggression along is widely accepted as the single paradigmatic instance of a just war.73 The modern conviction that war is wrong except in cases of self-defense contrasts with the acceptance of war as right by nearly all just war theorists up until the 20th century. In 1240, Alexander of Hales, the first systematic thinker of the Christian tradition of just war, articulated 6 conditions of when war was justified. Shortly thereafter, St. Thomas Aquinas narrowed it down to three: that the warring party had authority to go to war; that the party had a causa iusta so that the war is fought against someone who deserves it; and that there was an intentio recta, that the warring party goes to war not with the passions of revenge but in the name of restoring peace.74 For Aquinas and the Christian tradition, the causa iusta that is a precondition for a just war is "not equivalent to "a justifying ground" for war, as it is today.75 Rather, there is a just cause to go to war when "those whom one attacks deserve (mereantur) the attack on account of their culpability; just wars are wars for righting wrongs, in particular a nation's wrong in neglecting to punish crimes committed by its people or to restore what has been unjustly taken away."76 Wars are just, then, whenever there is a wrong that another party fights in order to punish it or make it right. Wars to save a heathen population, wars to free an oppressed minority, and wars to bring economic liberty to a backwards people are all fought with at least arguably just intentions in the name of doing right. Since it is rare that a nation acts without wrong in some way, the case for a just war was not hard to make, which is why early Christian just war doctrine was incredibly permissive regarding the justice of war. Similarly Grotius, the founder of modern legalist approaches to justifying war, also understands that war can be and frequently is just . By the law of nature, he argues, war is simply an extension of the basic right of every animal to defend itself.77 "[I]t is lawful," he writes, "to repel force by force, and it is a right apparently provided by nature to repel arms with arms."78 And not only in nature, but also through history and the laws of nations, war, Grotius argues, "is not to be condemned."79 Rather, "the law of nations allows us to repel violence and injury in order to protect our persons."80 When Grotius turns to the actual "just causes" that make a war a just war, he insists that there are three: defense, indemnity, and punishment.81 He means these causes in "the most extensive sense".82 "A just cause of war," he writes, "is an injury, which though not actually committed, threatens our persons or property with danger."83 Just wars, therefore, are not only wars of self-defense: "private war extends only to self-defence [sic], whereas sovereign powers have a right not only to avert, but to punish wrongs. From whence they are authorised [sic] to prevent a remote as well as an immediate aggression."84 Grotius does impose some limits on what kinds of causes can be just. "The causes which entitle a war to the denomination of just," he concludes, "are somewhat different from those of expediency alone."85 And yet, the overwhelming thrust of Grotius' classic work is to provide the justifications that permit war, not to suppress war in all but the most extreme cases. Against the ancient tradition of just war theory, modern considerations of just war are much more engaged in suppressing and limiting the conditions upon which wars can be justified. The single cause that justifies war today is the crime of aggression. The defense of rights against an aggressor is "the only reason" that justifies war today.86 Victims of aggression are always justified in fighting, and aggression entitles the victim to respond with all necessary means.87 Nearly every document of modern international law forbids war as a tool of policy and recognizes the crime of aggression.88 "It is virtually irrefutable," writes Yoram Dinstein, author of the definitive modern textbook on jus ad bellum, that "war of aggression currently constitutes a crime against peace. Not just a crime, but the supreme crime under international law."89 While some just war theorists are even more restrictive--for instance, limiting just wars to those countering aggression that results in the loss of lives90--the basic consensus that has emerged is that the crime of war is aggression and that self-defense is the only legitimate ground for a military response. Underlying the contemporary effort to delegitimize war is a common sense that war is hell. As the Nuremberg Court wrote in its judgment, "War is essentially an evil thing."91 Aggressive war, agrees Brian Orend, is a crime, a violation of the human rights of those it attacks.92 And Michael Walzer writes: "war is most often a form of tyranny."93 In other words, "war is hell, even when the rules are observed."94 Something hellish and evil, war is illegal and immoral, something to be avoided except under the most extreme circumstances. The problem with war, as Simone Weil so vividly expresses it, is that war possesses us fully. "[W]ar effaces all conceptions of purpose or goal, including even its own 'war aims' so that within war the "mind is completely absorbed in doing itself violence."95 The secret of war, Weil argues, that it transforms humans into beings, animals and things of nature. "Possessed by war, he, like the slave, becomes a thing.... Such is the nature of force. Its power of converting a man into a thing...."96 This unlimited and forceful nature of war that threatens to tear man's soul and humanity from him is the danger war poses, not just to human life, but to humanity as a whole. This is the reason that war has, over the ages, required special justification. And the particular inhumanity of modern warfare--a force that threatens to annihilate whole civilizations if not the world itself--lies behind the particular intolerance of war in modern discussions of just war. Of course, sometimes war is glorious, and at times it is quite beautiful to see men and women sacrifice themselves for noble ideals. There are, as J. Glenn Gray has observed, "secret attractions of war" that have persisted "despite revolutionary changes in the methods of warfare."97 Gray, who received his Ph.D. in philosophy and his draft notice for World War II on the same day, has named the enduring appeals of war "the delight in seeing, the delight in comradeship, the delight in destruction."98 Even modern warfare, he argues, is marked by a "fascination that manifestations of power and magnitude hold for the spirit."99 If the delight in the sight of power is, as Gray concedes, a noble quality that is neglectful of moral ideals, comradeship, a second delight of war, is decidedly moral.100 Forged in the communal experience of fighting together, the "experience of communal effort in battle" is, "even under the altered conditions of modern war," often the high point of many soldier's lives. The comradeship of soldiers, Gray writes, "is an ecstasy not unlike the aesthetic ecstasy" of the sight of magnitude and power, although it is the source of an intensification of ethical values like self-sacrifice for a common cause.101 Finally, Gray identifies a delight in destruction, an all-too-human ecstatic madness and joy one takes in the act of killing and maiming. This is a "peculiarly human" satisfaction, one that is as persistently human as it is terrifying.102 The delights of war that Gray discovers are neutralized, in Walzer's telling, by the brute fact the soldiers who are sacrificed by thousands in modern warfare are forced to fight. Their lives, he writes, have been nationalized by a state that either conscripts or persuades them to fight on its behalf. Walzer discounts the motivating force of patriotism, and argues that soldiers do not "choose to throw themselves at barbed wire and machine guns in fits of patriotic enthusiasm."103 The hellishness of modern war lies in the fact that most wars employ force against one's own soldiers as well as the enemy.104 Having been rendered "human instruments." modern soldiers no longer can be thought to be "comrades-in-arms in the old style, members of the fellowship of warriors."105 Against Gray's willingness to see even in modern war a certain beauty and delight, Walzer insists, simply, that war is hell. For just war theorists today, war is an unjustifiable act of aggression. As hellish as war is, and as widespread may be the consensus aggressive war is a crime, there is still no agreement today on what constitutes aggressive war. The Rome Statute of 1998 that inaugurated the International Criminal Court made aggressive war a crime even as it refused to define what aggression is.106 The United States' war in Afghanistan elicited conflicting claims about whether a nation state could be held to be an aggressor for harboring a terrorist organization within its borders.107 The United States' war in Iraq summoned widely divergent opinions about if and when preemptive war is justified or whether it is always aggressive.108 Similarly, NATO's humanitarian bombing of Serbia—alongside the world's refusal to intervene to halt genocides in Rwanda and Darfur—raise the question of whether nations are right to rain down bombs upon another people in the name of stopping them from killing others?109 Amidst the inability of the international community to define aggression, there has never been in international law an indictment of any individual for violating the crime of aggression.110 The controversies are so profound, that some have even concluded that the crime of aggression is de facto no longer part of positive international law.111 There are at least three responses to the complexity and impotence of the international law concerning jus ad bellum. First, international lawyers can seek to clarify and expand the international law definition of aggression. Legal scholars like George Fletcher and Jens David Ohilin argue that humanitarian intervention can be justified and even legally legitimated by granting national minorities and groups--in addition to nation states--the right to self-defense.112 And Michael Walzer and Jeff McMahan have argued that we must be willing to allow justified aggression, especially in cases where one state fights to punish another state for wrongful acts.113 Second, just war theorists can distinguish thinking about the justifications for war from international law;114 third, those concerned with the hellishness of war can turn their attention from the question of the justification of war itself (jus ad bellum) to the question of what tactics in the prosecution of war are justified (jus in bello). For if wars are going to be fought, just war theorists want them to be fought in compliance with justifiable methods, whether or not the wars are justifiable themselves. Jus in Bello More than any other part of just war theory, the discussion of jus in bello has developed since World War II in tandem with the evolution of international law. This is because jus in bello concerns the actions of individuals in the conduct of war rather than offering a judgment on the activities of states. As Justice Robert Jackson put it in the context of the Nuremberg Tribunal, "The idea that a state, any more than a corporation, commits crimes, is a fiction. Crimes always are committed only by persons."115 Jackson's view represented a profound shift in international law, since "before World War II, international law almost exclusively concerned the relations between states and ignored the relations between states and individuals."116 After Nuremberg, jus in bello merged with the developing international humanitarian law to form an emerging consensus to hold criminally responsible generals, soldiers, and civilian leaders who cross the line separating legitimate warfare from criminal behavior.117 The Nuremberg Tribunals have since given rise to a whole regimen of legal and extra-legal rules of acceptable and unacceptable conduct during war. Comprised of a "set of articulated norms, customs, professional codes, legal precepts, religious and philosophical principles, and reciprocal arrangements that shape our judgments of military conduct," the entirety of these norms is called "the war convention."118 The war convention manifests the moral reality of war. While these conventions of war go beyond international law itself, war is increasingly a legal institution.119 Law, as David Kennedy writes, "has infiltrated the military profession, and become... a political and ethical vocabulary for marking legitimate power and justifiable death....If you kill this way, and not that, here and not there, these people and not those,--what you do is privileged. If not, it is criminal."120 It is simply no longer possible to think about jus in bello today outside of the framework of international law. The most fundamental convention regarding justifiable acts during war is the discrimination requirement, which holds that soldiers must distinguish between combatants and civilians.121 The two parts of the discrimination convention are, first, the principle of the "moral equality of soldiers" and, second, the principle of "civilian immunity." Together these two principles form the bedrock of the modern ideal of jus in bello. The Moral Equality of Soldiers The moral equality of soldiers is of ancient provenance, originating in the experience of soldiers who met on the battlefield as enemies without enmity. Aristocratic soldiers, chivalrous knights, and professional mercenaries developed a code of conduct: I can kill my enemy, and my enemy can try to kill me. If my enemy surrenders, he is accorded certain guarantees or rights. This code held for soldiers on both sides of the line. It does not matter what cause one fights for in war, but the warrior who risks his life for any cause or any nation in war is guaranteed certain equal rights. This is what is meant by the moral equality of soldiers. Recently, Jeff McMahan, Brian Orend, and others have attacked this fundamental tenet of just war theory.122 Suppose, McMahan suggests, that one state launches a surprise aggressive attack on another country's un-mobilized forces. "Do the soldiers who participate in this attack act impermissibly?" McMahan rightly says that under just war standards, they act justifiably so long as they limit their attack to military targets. But, he argues, to justify these soldier's acts is incompatible with the conclusion of jus ad bellum, that only defensive force is justified. How can a soldier act kill other soldiers justly in what is an unjust war?123 McMahon's answer is that he cannot. Soldiers in an unjust war, he argues, act unjustifiably--they "do wrong merely by fighting."124 Similarly, Orend writes: "Soldiers who fight for an aggressor do not have strict moral equality with those who fight for a victim defender. The former are not mainly to blame for the aggression but they still are to blame in a smaller but material sense."125 While sometimes their wrongs may be excused, participating in an unjust war violates the norms of war, and renders the soldier a criminal and liable to prosecution.126 Against McMahan and Orend, the moral equality has been assumed to be a necessary assumption underlying the very idea of just war itself. Walzer defends the traditional just war principle of the moral equality with a story about General Dwight Eisenhower's refusal to visit the captured German General von Arnim. In his memoirs, Eisenhower explains: The custom [of visiting a captured adversary] had its origins in the fact that the mercenary soldiers of old had no real enmity toward their opponents. Both sides fought for love of a fight, out of a sense of duty, or more probably, for money... The tradition that all professional soldiers are comrades in arms has ... persisted to this day. For me, World War II was far too personal a thing to entertain such feelings. Daily as it progressed there grew within me the conviction that, as never before... the forces that stood for human good and men's rights were...confronted by a completely evil conspiracy with which no compromise could be tolerated.127 The custom that Eisenhower disdains originates not merely in the realm of courtesy, but serves the important purpose of reaffirming amongst combatants the military code. "It doesn't matter whether or not von Arnim had fought well," Eisenhower suggests. He is guilty because "his crime was to have fought at all."128 While Walzer may sympathize with "Eisenhower's resolution,"129 he worries that abandoning the moral equality of soldiers will undermine the very foundation of justified warfare. When war becomes a contest between good and evil, it abandons the fields of law and morality that regulate the contest between opposed combatants. To imagine war as a contest between justified combatants on one side and criminals on the other is to imagine a disproportionate war in which both sides fight outside of a field of law or morality. "Without the equal right to kill, war as a rule-governed activity would disappear and be replaced by crime and punishment, by evil conspiracies and military law enforcement."130 The importance of the principle of the equal morality of soldiers, he argues, is that without it, the conventional moral limits of war lose their rationale. Beyond these utilitarian arguments, the moral equality of soldiers is also founded upon what Oliver Wendell Holmes Jr. once called the soldier's faith. Late in his life, the great Supreme Court Justice and former Union soldier in the Civil War recalled his wartime conversion to the soldier's creed. Although he entered the war "with some sense that he was engaging in a humanitarian crusade," he encountered two sides equally committed to dying for their vision of a better world. What Holmes learned in battle was the moral beauty of soldiers, whatever side they may be on: I do not know what is true. I do not know the meaning of the universe. But in the midst of doubt, in the collapse of creeds, there is one thing I do not doubt, that no man who lives in the same world with most of us can doubt, and that is that the faith is true and adorable which leads a soldier to throw away his life in obedience to a blindly accepted duty, in a cause which he little understands, in a plan of campaign of which he has no notion, under tactics of which he does not see the use."131 For Holmes, "no man who lives in the same world with most of us can doubt" that the soldier who fights selflessly and blindly--for whatever cause--is a moral being, one worthy of the greatest respect. What Holmes saw is that the soldierly life--the life of blind obedience and selfless devotion to one's nation--is itself an ethical life. It is because we refuse to condemn soldiers for being soldiers that "[w]e draw a line between the war itself, for which soldiers are not responsible, and the conduct of the war, for which they are responsible, at least within their own sphere of activity."132 We justify, or at least excuse, soldiers for their attacks on other soldiers, and yet we insist that the way in which they fight accord with the conventions of war. Surrendering soldiers must not be shot; prisoners of war must be treated humanely and not tortured; and, of course, civilians and noncombatants are immune from attack. Civilian Immunity Along side the moral equality of soldiers, non-combatant immunity is the bedrock principle of jus in bello. It requires soldiers to limit civilian casualties and it is the most widely accepted and "the most important jus in bello rule."133 Most simply, civilian immunity forbids the targeting and intentional killing of anyone who is not part of the war-making force. The distinction between those who are externally engaged in serious harm and mere civilians is, however, murky amidst complexity of modern war. As the civilian immunity convention is usually understood, soldiers are liable to be killed at any time before they surrender, even when they are retreating or sleeping. George Orwell may have felt that a soldier "who is holding up his trousers isn't a "Fascist," he is visibly a fellow-creature," but the war conventions treat even a naked soldier—as well as a sleeping solider and a soldier on leave visiting his dying parents—as simply a soldier, legally and morally killable.134 Also liable to being killed, according to the war conventions, are civilians who work in munitions factories135 as well as civilians who harbor combatants--even a clearly marked hospital may be bombed according to the Geneva and Hague Conventions if armed combatants hide inside of it.136 The force of the civilian immunity principle is that it is a violation of the war convention to target civilians who are not engaged in military activities. This includes agricultural workers whose labor feeds both civilians and soldiers. Thus the United States bombing of Iraq's water treatment plants and electrical facilities in the 1991 Persian Gulf War was, according to some commentators, violations of the war convention against attacking civilians.137 "The relevant distinction" distinguishing those engaged in "military supply or military activity" from civilians who are immune is "between those who make what the soldiers need to fight and those who make what they need to live like all the rest of us."138 Consider the example of the United States Army Field Manual. According to the Manual, "civilians must not be made the object of attack directed exclusively at them." At the same time, however, the Field Manual permits the bombing of "towns, villages, dwellings, or buildings" when they are "occupied by a combatant military force" or when such a force is passing through them. Also allowed is the aerial bombing of towns and cities until the town or city surrenders.139 Most recently, the United States has argued for the morality and legality of the use of "drones" to target military leaders operating in civilian areas of uncooperative nations. According to Harold Koh, legal advisor to the State Department, individual members of belligerent groups are "lawful targets under international law." The "precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful...."140 These targeted assassinations, although arguably legal, are morally controversial because they give the military that carries them out enormous discretion to decide which leaders--operating often far from a battlefield--are liable to be killed without warning, without trial, and without due process. Further, these targeted victims are rarely killed while they are alone. They are most vulnerable when they attend funerals, weddings, and other public events where they are surrounded by non-combatants. In a 2010 study evaluating drone strikes in Pakistan, The New America Foundation estimated that the civilian fatality rates was 32% of total fatalities; however, in 2010 the civilian fatility rate seems to have droped to between 10 and 13 percent.141 Such targeted killings clearly carry a high risk of civilian fatalities, and yet they are also increasingly fixtures of modern warfare. The reason so many military tactics that risk civilian lives are morally and legally permitted by jus in bello is the argument from double intention. At its core, double intention means that combatants can fight in ways that result in civilian fatalities as long as those fatalities were not the single intention of the military maneuver. This means, first, that the primary intention of the action must be a legitimate military goal, and second, that foreseeable civilian casualties are to be avoided to the greatest extent possible.142 These two intentions thus allow the just war doctrine to affirm that civilians are not legitimate military targets while at the same time permitting actions that result in large numbers of civilian deaths. It is a paradox of the law of war that the codification of civilian immunity has been accompanied by an incredible rise in civilian casualties during war. "In World War I, fewer than 10 percent of the casualties were civilians; in World War II, 50 percent. In contemporary African conflicts, civilians represent 90 percent of the casualties."143 Even as a the Geneva Conventions of 1929 sought to govern and legalize the ways war was waged, the opposite has occurred: "as war has evolved away from set-piece battles on discrete battlefields, collateral damage overwhelms military deaths in scale."144 And the trend toward increasing civilian deaths continues. The war in Iraq has led to about 100,000 documented civilian deaths, in comparison to the few thousand US military fatalities.145 In modern warfare, it seems, the jus in bello requirement to discriminate between military and civilian actors is difficult to sustain. That the civilian immunity at the core of jus in bello is an anachronism is a judgment already advanced over 50 years ago by Hannah Arendt. In considering the Nuremberg Tribunals after World War II, Arendt asked the obvious question of why the International Military Tribunals never addressed those crimes of war committed by the Allies. While it would be obvious to answer that the Tribunals were "in fact the courts of the victors," Arendt puts forward another reason. "The truth of the matter," she writes, "was that by the end of the Second World War everybody knew that technical developments in the instruments of violence had made the adoption of "criminal" warfare inevitable. It was precisely the distinction between soldier and civilian, between army and home population, between military targets and open cities, upon which the Hague Convention's definitions of war crimes rested, that had become obsolete."146 Under conditions of modern war, Arendt argued, we can no longer talk of war crimes, since all the traditional crimes of war have been normalized by the modern practice of war. Every nation, including the United States, commits war crimes in every war we fight.147 What separated the Allies from the Nazis was not that one side committed war crimes and the other did not, but that the Nazi's war crimes were accompanied by another set of crimes, namely genocide and crimes against humanity. Arendt thought that the international community followed her analysis in practice, even if it resisted recognizing its theoretical implications. Even as the Nuremberg Tribunal preferred to convict on the charge of war crimes rather than on the charge of "crimes against humanity," the Tribunal actually was, Arendt writes, much more concerned with crimes against humanity than with traditional war crimes. This "true sentiment" is evident in the sentencing decisions, where the Tribunal handed out the Death Penalty only to "those who had been found guilty of those quite uncommon atrocities that actually constituted a "crime against humanity...."148 Already at Nuremberg, the "notion that aggression is "the supreme international crime" was silently abandoned." The gravamen of jus in bello, Arendt saw, was shifting from crimes against the peace to the more extraordinary crimes of genocide and crimes against humanity. The same shift Arendt noted in Nuremberg is found today in the International Criminal Court. The Court has jurisdiction over four kinds of crimes: genocide, crimes against humanity, war crimes, and the crime of aggression.149 As was already discussed above, the crime of aggression has never been prosecuted since the Court has not settled upon a definition of the crime. Of the four conflicts that have been referred to the ICC in Uganda, the Democatic Repubic of the Congo, The Central African Republic, and in Darfur, all involve crimes against humanity. When war crimes are charged against individuals, these charges are rarely, if ever, brought absent the higher charge of a crime against humanity or genocide. Mere crimes of war, as Hannah Arendt suggested, have become subsidiary crimes, accentuating the true humanitarian crimes of crimes against humanity and genocide. Concluding Questions and Thoughts It is certainly too much to say that the international community has fully abandoned the crimes of war. Aside from the blossoming academic and journalistic literature on jus in bello, there remain, contra Arendt, a number of instances in which the ius in bello conventions are actively enforced. The mistreatment of prisoners at the Abu Ghraib prison in Iraq is one recent instance where a clear violation of the Geneva Convention and the requirement of benevolent quarantine led to punishment--albeit of a small number of lowranking soldiers--for violations of the laws war. We need, nevertheless, to take seriously Arendt's challenge that in the modern age of warfare the traditional laws of war--both jus ad bellum and jus in bello--are anachronisms. If she is right, it might very well be time to shift our concern from the question of justifying war to the related and yet separate development of an international humanitarian law. Such a recognition does not amount to an abandonment of the demand that justice remain part of warfare; it does, however, understand that justifying war may not be the best way to preserve the ideal of just war. Rather than justification of war, international human rights movement insists that those who fight wars do so justly, without violating the human rights. Instead of abstract principles, international humanitarian law holds individuals responsible for their actions. The danger of replacing the demand for justifications with the doing of justice is that warfare becomes lawfare. Not only does law change the nature of war, but more importantly, by legitimating war it normalizes war so that war and peace come increasingly to be indistinguishable. One of the unintended consequences of the rapid expansion of just war theorizing over the last century is that the boundary between war and peace has been blurred, so that in an era of terrorism and total war, peace resembles war and war looks more and more like peace. The transformation of both war and peace in the 21st century raises the following questions: 1) Ought we to try to justify war? Does the effort to justify war endanger an important distinction between war and peace? a) Is there something valuable in war that we should fear to lose? b) Is there something valuable in peace as distinct from war that we are in danger of losing? 2) Is war justifiable? Or is war evil and criminal? Or is war beautiful? a) Do modern technologies of mass destruction make war unjustifiable? b) What will the increasing use of automated drones and robots mean for just war theory? 4) Is just war theory a secular project? How does it relate to its origins in Christian and Roman thought? 5) What contribution can religious thought make to the current discourse about just wars? a) Is the Christian tradition of just war thinking meaningfully related to just war discourse today? b) Is Christianity opposed to war? Is it militaristic in its willingness to justify war on Christian principles? c) Are some religions more peaceful or more militaristic than others? 6) Ought we seek to suppress and criminalize all war? a) Would a life without war be a human life? b) Is peace really the goal of human life? Is Pacifism a meaningful philosophy today? 7) Does Just War theory regulate and tame war and thus lead to there being more wars? 8) Is there a moral reality of war? Is war a moral endeavor? 9) What is the relationship between just war theory and international law? 10) Is there a meaningful separation between jus ad bellum and jus in bello?                                                                                                                   Associate  Professor  of  Political  Studies,  Human  Rights,  and  Philosophy,  and  Director  of  the  Hannah   Arendt  Center  for  Ethical  and  Political  Thinking  at  Bard  College.     ℵ 1  Heraclitus,  in  Diels,  Die  Fragmente  der  Vorsokratiker,  (Berlin,  1912)  fragment  53,  64,  80.   3  Weil,  194.   2  Simone  Weil,  "The  Iliad  a  Poem  of  Force,"  ed.  by  Sian  Miles,  trans.  by  Mary  McCarthy,  pg.  192.     4  See  Roger  Berkowitz,  "From  Justice  to  Justification,"  forthcoming  University  of  Irvine  Law  Review.       5  Michael  Walzer,  Arguing  About  War,  x.   6  Brian  Orend,  The  Morality  of  War(2006),  24.  Orend  continues:"Even  when  one  disagrees  with  it,   Walzer's  book  remains  the  fundamental  contemporary  reference,  which  everyone  'in  the  business'   must  read  and  understand."  Id.  See  also  Scott  Silvestone's  view  that,  "Among  modern  works  on  Just   War  theory,  one  stands  out  as  already  having  achieved  classic  status,  Michael  Walzer’s  1977  Just  and   Unjust  Wars."  Scott  A.  Silverstone,  Just  War  Theory.  On  file  with  author.     7  Michael  Walzer,    Arguing  About  War,  x.   8  Brian  Orend,  The  Morality  of  War,  5.     9  Livy,  cited  in  Arendt,  On  Revolution,  12.     10  Hannah  Arendt,  On  Revolution,  12.     11  Arendt,  On  Revolution,  13.     12  Arendt,  14.     13  David  Kennedy,  Of  War  and  Law,  101.   14  David  Kennedy,  Of  War  and  Law,  32.     15  David  Kennedy,  Of  War  and  Law,  32.     16  David  Kennedy,  Of  War  and  Law,  32.     17  David  Kennedy,  Of  War  and  Law,  125.     18  Eyal  Weizman,  "Lawfare  in  Gaza:  Legislative  Attack,"  Open  Democracy,  March  1,  2009,  at   www.opendemocracy.net/print/47395.   19  See  Reichberg,  Id;  also,  Richard  Falk,  "Defining  a  Just  War,"  The  Nation,  Oct.  11,  2001,   www.thenation.com/print/article/defining-­‐just-­‐war;  Brian  Orend,  The  Morality  of  War,  244-­‐266;   James  Turner  Johnson,  The  Quest  for  Peace:  Three  Moral  Traditions  in  Western  Cultural  History  (1987)   3-­‐47  (cited  in  Reichberg,  12).     20  Orend,  244.     21  Matthew,  26:52.     22  Matthew,  5:39   23  Orend,  12-­‐13;  Reichberg,  12   24  Lynn  H.  Miller,  "The  Contemporary  Significance  of  the  Doctrine  of  Just  War,"  World  Politics  16   (January  1964),  255  (cited  in  Mattox,  7).     25  Finnis,  Catholic  Natural  Law  Tradition,  18.   26  Finnis,  18.     27  Finnis,  17.     28  Augustin  to  Boniface  Letter  189,  Augustine,  Political  Writings  (Cambridge)  217.  For  an  extensive   selection  of  Augustine's  sayings  on  just  war,  see    The  Ethics  of  War,  70-­‐90.     29  John  Mark  Mattox,  Saint  Augustine  and  the  Theory  of  Just  War,  2.  The  entirety  of  the  Western  just   war  tradition,  "both  in  its  Christian  and  secular  varieties,  traces  its  roots  not  to  Plato  or  Aristotle,  nor   even  to  earlier  Church  Fathers,  but  rather  to  Augustine."   30  Orend,  224;  225.  Emphasis  removed.     31  Clausewitz,  cited  in  Walzer,  Just  and  Unjust  Wars,  23.     32  Clausewitz,  cited  in  Walzer,  23.     33  Walzer,  Just  and  Unjust  Wars,  23.     34  Ernst  Jünger,  Total  Mobilization,  trans.  by  Joel  Gold  and  Richard  Wolin,  in  Richard  Wolin,  The   Heidegger  Controversy,  (1998),  128.     35  Jünger,  134.                                                                                                                      36  Walzer,  Just  and  Unjust  Wars,  3.     37  Hans  Morgenthau,  Politics,  cited  in  Orend,  225.       38  Walzer,  Just  and  Unjust  Wars,  14-­‐15.     39  Walzer,  Just  and  Unjust  Wars,  15.   40  W.  Sherman,  From  Atlanta  to  the  Sea,  cited  in  Orend,  226.   41  Walzer,  Just  and  Unjust  Wars,  15.     42  Orend,  23.     43  The  spate  of  recent  books  on  the  international  law  of  war  is  un-­‐surveyable  in  its  enormity.  Some   include:     44  See,  e.g.,  Drucilla  Cornell,  "Worlds  Apart:  Perpetual  Peace  and  Infinite  War,"  in  Cornell,  Defending   Ideals,  a  response  to  Richard  Falk's  international  law  defense  of  the  U.S.  war  in  Afghanistan,  "Defining   a  Just  War,"  The  Nation,    ;  Stephen  Carter;     45  See,  e.g.,  Eyal  Weizman,  "Lawfare  in  Gaza:  Legislative  Attack,"  Open  Democracy,  2009   (http://www.opendemocracy.net/print/47395):  Weizman  asks,  "Is  it  possible  that  the  attack  on   Gaza  was  not  restrained  by  an  extensive  use  of  IHL  -­‐  but  rather,  that  a  certain  interpretation  and   application  of  this  law  have  enabled,  not  only  the  justification  of  atrocities,  but  crucially,  the  affliction   of  otherwise  inconceivable  levels  of  destruction?"   46  Reichberg,  12.     47  Reichberg,  13.     48  Dimstein,  83.   49  Walzer,  Just  and  Unjust  Wars,  xx.     50  Walzer,  xxi.     51  Walzer,  xxi.     52  Walzer,  135.   53  Orend,  5.  See  also,  52-­‐54:   54  Walzer,  135.     55  Weil,  Human  Personality,  cited  in  Walzer,  134.  For  a  similar  defense  of  rights  against  their  critics,   see  Patricia  Williams,  The  Alchemy  of  Race  and  Rights.   56  Williams,  153.   57  Walzer,  135.     58  Id.     59  Finnis,  15.   60  Orend,  47.     61  Walzer,  20.     62  Walzer,  21.     63  The  distinction  between  adjectival  and  adverbial  formulations  is  Walzers,  found  in  Walzer,  Just  and   Unjust  Wars,  21.   64  Reichenberg,  11.     65  See  Jeff  McMahan,  "The  Ethics  of  Killing  in  War,"  Ethics  114  (July,  2004),  693-­‐733;  Orend,  32.     66  McMahan,  Ethics  of  Killing  in  War,  708-­‐718.  See  also,  the  National  Conference  of  Catholic  Bishops'   Pastoral  Letter,  "The  Challenge  of  Peace:  God's  Promise  and  Our  Response,"  that  argues  against  the   jus  ad  bellum/jus  in  bello  distinction,  because  it  is     increasingly  difficult  to  make  a  decision  to  use  any  kind  of  armed  force,  however  limited   initially  in  intention  and  in  the  destructive  power  of  the  weapons  employed,  without  facing   at  least  the  possibility  of  escalation  to  broader,  or  even  total,  war  and  to  the  use  of  weapons   of  horrendous  destructive  potential.   National  Conference  of  Catholic  Bishops'  Pastoral  Letter,  "The  Challenge  of  Peace:  God's  Promise  and   Our  Response,"  published  in,  The  Ethics  of  War,  pg.  674.     67  Finnis,  26.     68  Orend,  32.  Walzer  too  affirms  the  logical  independence  of  the  dualism  even  as  he  admits  that  that   "this  independence,  though  our  views  of  particular  wars  often  conform  to  its  terms,  is  nevertheless   puzzling."  Walzer,  21.   69  Orend,  31.  See  also,  Walzer,  21.                                                                                                                    70  Dinstein,  83;  87.  See  also  Walzer,  22.     71  See  Grotius,  The  Rights  of  War  and  Peace,  Bk.  I,  chp.  2,  36.     72  Dinstein,  85.     73  May,  54;  Orend,  45.     74  Finnis,  18.     75  Finnis,  18.   76  Finnis,  18-­‐19.     77  Grotius,  32.     78  Grotius,  34.   79  Grotius,  34.     80  Grotius,  36.   81  Grotius,  75.     82  Grotius,  75.   83  Grotius,  76.     84  Grotius,  83.     85  Grotius,  83.     86  Walzer,  72.   87  Orend,  45;  37.     88  See  Dinstein,  117-­‐123.     89  Dinstein,  121.     90  May,  57.   91  Cited  in  Dinstein,  120.     92  Orend,  33-­‐34.     93  Walzer,  29.   94  Walzer,  30.     95  Weil,  The  Iliad  or  The  Poem  of  Force,  181-­‐2.   96  Weil,  184-­‐5.     97  J.  Glenn  Gray,  The  Warriors,  28.     98  Gray,  28-­‐29.   99  Gray,  33.     100  Gray,  39.   101  Gray,  45-­‐47.     102  Gray,  51-­‐58.   103  Walzer,  35.     104  Walzer,  Just  and  Unjust  Wars,  30.     105  Walzer,  36.     106  Dinstein,  122.     107  "Examining  the  evidence,  we  can  see  that  the  U.S.  military  response  in  Afghanistan  clearly  meets   the  just  cause  criterion  of  being  a  war  fought  with  the  right  intention-­‐-­‐to  punish  wrongdoers  and  to   prevent  them  from  murdering  civilians  in  the  future."  Jean  Bethke  Elshtain,  Just  War  Against  Terror,   2003,  61.    Richard  Falk,  a  leading  international  lawyer,  agreed  that  the  "war  in  Afghanistan  against   apocalyptic  terrorism  qualifies  in  my  understanding  as  the  first  truly  just  war  since  World  War  II."   Richard  Falk,"Defining  a  Just  War,"  The  Nation,  Oct.  11,  2001,   www.thenation.com/print/article/defining-­‐just-­‐war.  Against  this  view,  Drucilla  Cornell,  argues  that   the  war  in  Afghanistan    "flout[s]  the  political  and  legal  framework  of  just  war  by  evidencing  utter   disregard  for  civilian  casualties."  Cornell,  Defending  Ideals,  (2004),  28.     108  Jeff  McMahan,  for  example,  argues  that  there  must  be  times  when  a  state  can  strike  first   preemptively  and  yet  still  be  justified  in  doing  so.  Jeff  McMahan,  "Aggression  and  Punishment,"  in   Larry  May,  War:  Essays  in  Political  Philosophy,  74-­‐77.  See  also  Orend,  who  develops  a  set  of  criteria  to   determine  when  preemptive  attacks  are  permitted,  78-­‐83;  Walzer  argues  that  first  strikes  can  be   justified  when  there  is  1)  "a  manifest  intent  to  injure";  2)  "active  preparation";  and  3)  when  "doing   nothing  other  than  fighting,  greatly  magnifies  the  risk,"  81.     109  Fletcher  and  Ohilin,  Defending  Humanity,  (2008),136.  See  also,  Walzer,  Arguing  About  War,  100.                                                                                                                      110  Dinstein,  121.     111  Dinstein,  123.   112  See  Fletcher  and  Ohilin,  Defending  Humanity,  (2008),  129-­‐136.   113  See  McMahan,  "Aggression  and  Punishment,"  67-­‐69,  81.   114  See,  e.g.,  Walzer,  ???   115  Judge  Robert  Jackson,  opening  statement,  cited  in  Geoffrey  Robertson,  Crimes  Against  Humanity   (1999),  234.     116  Eric  A.  Posner:  Eric  A.  Posner,  The  Perils  of  Global  Legalism,  175.   117  Geoffrey  Robertson,  234.     118  Walzer,  44.     119  David  Kennedy,  Of  War  and  Law  (2006),  chp.  1,  13  ff.     120  David  Kennedy,  "Modern  War  and  Modern  Law,"  Speech  given  at  Suffolk  University  School  of  Law,   October,  2009,   www.law.harvard.edu/faculty/dkennedy/speeches/suffolktalk2009_WarandLaw.htm.   121  "The  requirement  of  discrimination  and  non-­‐combatant  immunity  is  the  most  important  jus  in   bello  rule.  It  is  also  the  most  frequently  used,  and  stridently  codified  rule  within  the  laws  of  armed   conflict."  See  Orend,  106;  see  also,  Walzer,  138.   122  See  Jeff  McMahan,  "The  Ethics  of  Killing  in  War,"  Ethics  114  (July,  2004),  693-­‐733;  Orend.  See  also,   Andrew  Sola,  "The  Enlightened  Grunt?  Invincible  Ignorance  in  the  Just  War  Tradition,"  Journal  of   Military  Ethics  8  (2009).   123  McMahan  states  his  basic  contention  on  pgs.  696-­‐698.   124  McMahan,  717.   125  Orend,  109.     126  McMahan,  730.  In  practice,  however,  McMahan  argues  that  while  some  common  soldiers  in  an   unjust  war  "may  deserve  punishment,  even  if  they  have  confined  their  attacks  to  military  targets,"  it   would  be  "counterproductive  and  indeed  disastrous  to  permit  the  punishment  of  ordinary  soldiers   merely  for  their  participation  in  an  unjust  war."  At  730-­‐731.  See  also,  Orend,  who  writes  of  soldiers  in   an  aggressive  war:  "Perhaps  we  will  finally  excuse  them,...  but  perhaps  also,  in  some  well-­‐ documented  cases,  we  will  have  to  prosecute  them  as  minor  accomplices  to  the  one  larger  "crime   against  peace"  which  is  aggression."  At  110.     127  Cited  in  Walzer,  37.     128  Walzer,  37.     129  Walzer,  38.   130  Walzer,  41.     131  Oliver  Wendell  Holmes  Jr.,  "Memorial  Address,"  in  Mark  Howe,  The  Occasional  Speeches  of  Oliver   Wendell  Holmes  Jr.,  76.   132  Walzer,  38-­‐39.   133  Orend,  106.   134  Walzer,  138-­‐143;  For  a  fascinating  discussion  of  the  naked  soldier  problem,  see    Stephen  L.  Carter,   chp.  2  at  fn  4-­‐-­‐check  citation.     135  Walzer,  145.   136  See  Stephen  L.  Carter,  chp.  2  at  fn.  68-­‐69.     137  See  Orend,  agreeing  with  Walzer,  114-­‐115.     138  Walzer,  146;  Orend,  114.     139  U.S.  Field  Manual,  §25;  39;  40;  and  43.  Cited  in  Stephen  L.  Carter,  The  Violence  of  Peace,  (2011),   chp.  2  at  fn.  64-­‐65  in  manuscript.  Check  citation  in  forthcoming  book.     140  Cited  in  Carter,  The  Violence  of  Peace,  chp.  2  at  fn.  35-­‐36.    Check  citation  in  finished  book.     141  John  Cella,  Obama  Administration  Offers  Legal  Defense  of  Drone  Attacks,  Targeted  Killing,   Harvard  National  Security  Journal,  (March,  2010)  http://www.harvardnsj.com/2010/03/obama-­‐ administration-­‐offers-­‐legal-­‐defense-­‐of-­‐drone-­‐attacks-­‐targeted-­‐killing/   142  See  Walzer,  151-­‐157.     143  Luban,  267.     144  Luban,  267.                                                                                                                      145  http://www.iraqbodycount.org/   146  Hannah  Arendt,  Eichmann  in  Jerusalem,  256.     147  Carter,  The  Violence  of  Peace,  Chp.  2,  at  fn.  76.     148  Arendt,  Eichmann  in  Jerusalem,  257.   149  Nicholas  Rengger,  "Jus  in  Bello  in  Historical  and  Philosophical  Perspective,"  in  War:  Essays  in   Political  Philosophy,  ed.  by  Larry  May,  43.