Winning is Losing

The Tragedy of Just War

Dr. Cian O’Driscoll ISRF Mid-Career Fellow, 2018–19

The idea that war can ever be ‘just’ is understandably controversial. So far as it suggests that the commissioning of young men and young women to kill and be killed by other young men and women may sometimes be a righteous activity, it is easy to see why it might be regarded as wrongheaded. Drawing on the latest scholarship, my purpose in this short essay is to introduce the idea of just war, to offer some thoughts on its relevance to contemporary international politics, and to ask what we learn about it when we regard it in light of its principal blind-spot, namely, the concept of victory. Considering it through the prism of victory, I will argue, tells us something very important about why, despite being so obviously problematic, we must take the idea of just war seriously.

The Idea of Just War

Just war is not, of course, a new idea. It boasts a long and venerable lineage that most scholars date back to the sunset of the Roman Empire, and to the 4 th century CE writings of Saint Augustine in particular. Others trace its history even deeper, to ancient Greece and other classical civilisations. 1 In either case, the idea of just war developed over time in such a way that it came to rest on the dual claim that war may, in certain circmstances, be justified and that it is possible to discern between just and unjust uses of force.

Jacques-Louis David, Combat de Mars contre Minerve (1771)

Louvre, Paris. Creative Commons license.

These commitments are usually parlayed by contemporary theorists into two discrete but interlocking poles of inquiry bearing on, respectively, the conditions that justify the recourse to war (jus ad bellum) and the proper conduct of war (jus in bello). Jus ad bellum inquiry speaks to the question of when, if ever, the resort to war might be justified. Scholars quibble about the exact answer to this question, but there is a general consensus that deliberations about the decision to resort to force should revolve around considerations of ‘just cause’, ‘proper authority’, ‘right intention’, ‘aim of peace’, ‘reasonable chance of success’, and ‘last resort’. Jus in bello inquiry investigates the question of what, if any, constraints should apply to the conduct of war. It is here that one encounters reflections on ‘proportionality’, ‘discrimination’, and the related categories of ‘non-combatant immunity’ and ‘double-effect’.

There is no need to labour this brief introduction to the idea of just war by explaining these principles in any depth. There are plenty of books available for the reader who wants more information on their finer points. 2 I would, however, note that they are best understood, not as a rote checklist to be ticked off, but as open-ended questions designed merely to inform and guide our ethical evaluation of warfare. 3

The Latin tags should not mislead us to assume that the idea of just war is a scholarly confection that has little practical significance. While it may in the past have been an obscure hobby pursued only by Catholic theologians, its recent prominent in the discourse of political and military leaders suggests a very different story. As numerous scholars have shown, just war has become the predominant frame through which military and police elites in the western world and beyond discuss matters of war and peace. 4 Michael Walzer has famously dubbed this development ‘the triumph of just war’. 5

The Victory of Just War

The prominence of just war in public discourse has been mirrored by an upsurge in academic interest in what is variously referred to as just war theory or just war tradition. Recent years have seen the establishment of specialist journals devoted to the ethics of war as well as a profusion of books that seek to refine and adapt the idea of just war so that it speaks to every conceivable domain of contemporary armed conflict. Since the invasion of Iraq, for example, scholars have extended the idea of just war so that it speaks to cyber operations, post-conflict peace-making, the use of force short of war, and the use of non-lethal weapons. It is surprising to note, then, that, amid this flurry of activity, just war theorists have had nothing to say about one concept that is integral to how people think about and approach war: victory.

Victory has historically been regarded the ‘telos’ or ‘very object’ of war, with commentators routinely affirming that war is all about winning. 6 It is baffling, then, that scholars of just war have steered clear of any engagement with it. This claim requires careful elaboration. What I am suggesting is that just war theorists do not engage the idiom of victory. While they frequently speak about the endings of war, they make no reference to, or use of, the language of winning and losing. Rather, they act as if it is not a part of what Walzer calls the moral vocabulary of war.

Perhaps ironically, the abnegation of victory in just war scholarship is nowhere more apparent than in respect of writings on the principle of ‘reasonable chance of success’. Contrary to what one might expect, this principle does not demand the prospect of a certain victory as a condition for waging a just war. It merely creates a prima facie case against the recourse to force in cases where it is likely to be futile. It is, in this respect, no more than a utilitarian backstop designed to guard against feckless military adventurism. 7 As such, it actually has very little to say about victory itself. Moreover, and perhaps most tellingly, it substitutes the language of ‘success’ for that of ‘victory’ without either interrogating or problematizing it in any way.

There is, however, one area of contemporary just war scholarship in which the idiom of victory features prominently. Jus post bellum analysis emerged as a field of inquiry in the 1990s when a group of scholars proposed that, rather than concentrating all their attention on the recourse to and conduct of war, just war theorists should devote more effort to thinking about the post-conflict obligations of the victors. The job of the jus post bellum theorist should be, they stated, to formulate ‘moral precepts to guide the post bellum activities of victors.’ 8 Despite its prominence in their writings, however, victory is not the central concern for jus post bellum theorists. The majority of scholars working in this area is less interested in determining what victory means than they are in stipulating how victors should conduct themselves in post-conflict situations. 9 Instead, then, of illuminating the concept of victory, jus post bellum analysis treats it as a threshold condition for an account of how belligerents should comport themselves after victory has already been achieved.

The general point to take from this, then, is very simple. It is that just war scholars have tended to either circumvent the language of victory altogether or skim over it in a manner that invokes it without investigating it. Why is this? And what do we discover when we think more directly and substantively about victory in relation to just war? The answers to these questions turn out to be quite interesting.

The Irony of Just War

Just war theorists appear ill at ease with the language of victory. They reject the discourse of winning and losing as too adversarial, and too prone to tempt the kind of triumphalism and excess that runs counter to the spirit of the just war idea. This rejection takes many forms—too many, in fact, to recount in this short essay. I treat them all in some detail, however, in my forthcoming book, Victory: The Triumph and Tragedy of Just War. What I can say here is that a common concern unifies them. This is the worry that, so far as the idiom of winning requires there to also be a loser, the language of victory highlights the conflictual character of just war. It draws attention to the fact that, so far as just war is a means of resolving disputes, it represents a basic willingness to accept that matters of right can be settled by a contest of might. This is deeply uncomfortable for just war theorists as it suggests that the idea of just war rests in some part at least upon an acceptance of ‘might is right’. 10 Victory, in other words, lays bare the compromise that lies at the heart of just war thinking. It reveals the willingness of just war theorists to accept that war can (and must) sometimes be relied upon to determine who is right as well as who is left. 11

Just war scholars have historically attempted to circumnavigate this fact by presenting just war as something other than war. By casting just war not as a type of war but as a form of law enforcement, they seek to obscure the degree to which victory in a just war denotes the ‘successful exercise of power but not of right’. 12 The risks inherent in this move are obvious. It sanitises just war by concealing its underlying brutishness.

The argument that arises from this may be summed up in terms of two ironic reversals. First, what just war theorists appear to regard as a good reason for ignoring victory, I take as a reason for engaging it. Where, in other words, they see the propensity of victory to reveal the fact that ‘just war is just war’ as a reason for avoiding it, I contend that it is a reason for engaging it. 13 It is precisely because victory compels us to acknowledge the fact that ‘just war is just war’, with all that this implies, that they must think about it more carefully than they have heretofore been prepared to do. Second, where the assertion that ‘just war is just war’ is usually invoked (most notably by Ken Booth) to tarnish and indeed discredit the idea of just war theory, I want to suggest that it is more helpful to think of it as a reminder of why we need it in the first place. It is, I want to argue, precisely because ‘just war is just war’, that we need to think so assiduously about it. Instead of being taken as a damning critique of just war theory, the realisation that ‘just war is just war’ should be treated as a restatement of its raison d’être.

Conclusion

What, then, do we discover about just war when we account for its relation to victory? We discover that, in the end, just war is indeed just war. It is neither a force for good in the world, nor a solution to its ills. Rather, it is a symptom of them. But this does not mean that we should wash our hands of it. This is not a case for its repudiation. On the contrary, the source of its limitations is also the reason we need it. It is because there are problems that are not conducive to tidy, diplomatic solutions but that nevertheless must be tackled that we find ourselves reaching for some means of reconciling the demands of justice with the exigencies of war. Unless one is willing to surrender the conviction that we can and should subject war to ethical scrutiny, the determination to discern between the just and unjust use of force ought to be respected for what it is, namely, a tragic but also noble commitment to ordering (as best we can) the affairs of international society according to the principles of justice.

This is not an easy path to tread. It is fraught with dangers. The language of just war is seductive. It has a way of lulling people into a sanguine acceptance of war by leading them to believe that, so long as the relevant principles have been heeded, the use of force can be a good thing or a meritorious activity. The idea of just war can, in this way, be mistaken for a solution to the very problem of which it is a part. So long, however, as one resists such hubris, and is mindful of the limitations baked into the very idea of just war, this is a snare that can be, if not avoided or disarmed, at least anticipated.

1. For the standard history of the just war idea see: Jonathan Barnes, ‘The Just War’, in Norman Kretzmann, Antony Kenny, and Jan Pinborg (eds.), The Cambridge History of Later Medieval Philosophy (Cambridge: Cambridge University Press, 1982). On its classical antecedents: Rory Cox, ‘Expanding the History of the Just War Tradition: The Ethics of War in Ancient Egypt’, International Studies Quarterly 61:2 (2017): 371–384. The classic treatment of the history of just war thinking is provided by James Turner Johnson across several texts, most notably: Ideology, Reason, and the Limitation of War: Religious and Secular Concepts, 1200–1740 (Princeton: Princeton University Press, 1975); and Just War Tradition and the Restraint of War (New Haven: Yale University Press, 1981).

2. For example: Alex J. Bellamy, Just Wars: From Cicero to Iraq (Cambridge: Polity, 2006). Also: Nicholas Fotion, War & Ethics: A New Just War Theory (London: Continuum, 2007).

3. Chris Brown, ‘Just War and Political Judgement’, in Anthony F. Lang, Cian O’Driscoll, and John Williams (eds.), Just War: Authority, Tradition, and Practice (Washington DC: Georgetown University Press, 2013), p. 46.

4. Mark Totten, First Strike: America, Terrorism, and Moral Tradition (New Haven: Yale University Press, 2010), pp. 80–83. Nicholas J. Rengger, ‘The Wager Lost by Winning? On the Triumph of the Just War Tradition’, in Lang, O’Driscoll, and Williams (eds.), Just War. President Obama’s 2009 Nobel Peace Prize is perhaps the chief example of a political leader invoking the just war idea. Barak Obama, ‘Nobel Lecture: A Just and Lasting Peace’, available at: www.nobelprize.org/prizes/peace/2009/obama/lecture/ (accessed: 18 May 2019).

5. Michael Walzer, ‘The Triumph of Just War Theory (and the Dangers of Success)’, in Arguing About War (New Haven: Yale University Press, 2004).

6. Aristotle, Nicomachean Ethics, trans. by Harry Rackham (London: Wordsworth, 1996), p. 3. General Douglas MacArthur, ‘Farewell Address to Congress, 1951’, available at: www.americanrhetoric.com/speeches/douglasmacarthurfarewelladdress.htm (accessed: 18 May 2019).

7. The classic expression of the principle is furnished by Francisco Suarez: Francisco Suarez, Selections from Three Works, ed. by Thomas Pink (Indianapolis: Liberty Fund, 2015), p. 937. For a contemporary account: A. J. Coates, The Ethics of War (Manchester: Manchester University Press, 1997), p. 139. Also see: Frances V. Harbour, ‘Reasonable Probability of Success as a Moral Criterion in the Western Just War Tradition’, Journal of Military Ethics 10:3 (2011): 230–241.

8. Louis V. Iasiello, ‘Jus Post Bellum: The Moral Responsibilities of Victors in War’, Naval War College Review 57:3/4 (2004), p. 40.

9. David Rodin, ‘Two Emerging Issues of Jus Post Bellum: War Termination and the Liability of Soldiers for Crimes of Aggression’, in Carsten Stahn and Jan K. Kleffner (eds.), Jus Post Bellum: Toward a Law of Transition from Conflict to Peace (The Hague: Asser, 2008). Also see the recent emergence of what is being called jus ex bello theorising. The key work in this area is: Darrel Moellendorf, ‘Jus Ex Bello’, Journal of Political Philosophy 16:2 (2008): 123–136.

10. Recognition of this fact underpinned Immanuel Kant’s scepticism of just war. He argued, ‘Nations can press for their rights only by waging war and never in a trial before an independent tribunal, but war and its favourable consequences, victory, cannot determine the right.’ Immanuel Kant, ‘To Perpetual Peace: A Philosophical Sketch’, in Perpetual Peace and Other Essays (Indianapolis: Hackett, 1983), p. 116.

11. This is a play on the phrase attributed to Bernard Williams that war does not determine who is right, only who is left.

12. Stephen C. Neff, Justice Among Nations (Harvard: Harvard University Press, 2018), p. 34.

13. Ken Booth, ‘Ten Flaws of Just Wars’, The International Journal of Human Rights 4:3–4 (2000): 314–324.