Although I don’t do foreign news events, I actually am very well-acquainted with the ins and outs of so-called Just War Theory, having intensely studied it many years ago. To call it a “theory” is to give it too much credit of course. It is nothing more than a list of discrete rules and principles that are not derivative of any common moral framework, many of which rely on extremely shaky argumentative grounds. This is why I bored of the topic many years ago and more or less abandoned it altogether.
One of the critiques of Just War Theory that happens to be entirely correct is that, in practice, it is nothing but window dressing for war. That is, the existence of this theory and its various proponents does not constrain war actors that much. It just gives them a language with which to justify things they are going to do anyways. When military acts clearly run afoul of the principles, that doesn’t matter. Militaries still do them if they feel it is necessary and in their interests and supposed adherents to Just War Theory find ways to justify them nonetheless.
For evidence of this “window dressing” phenomenon, look no further than Yishai Schwartz’s piece “Israel’s Deadly Invasion of Gaza Is Morally Justified” in The New Republic. Schwartz starts off the piece as if he is going to apply the generic Just War rules and show Israel’s assault on Gaza is justified under it, but ultimately abandons them because they generate a conclusion he doesn’t like in this case.
Jus ad Bellum
Schwartz starts with whether Israel’s actions to go to war are justified. He concludes quickly that they are:
Israel acts on the most clear justification possible: self-defense after days of restraint, warnings, and pleas—as rockets continued to land on its cities and later, as militants sprang from tunnels to kill its citizens.
OK fine. It is true also on this analysis that Gaza’s actions towards war with Israel are justified by the siege and occupation. It also follows from this analysis that the 9/11 attacks, if you construe them as acts towards war, were justified (though you may quibble with the form they took, which is a separate thing). Nonetheless, I don’t want to quibble on this point because my real point is coming up.
Jus in Bello
Just because you are just to go to war, that does not mean you can do anything in war. You still are supposed to follow some rules of conduct in war in order to claim that you are conducting the war justly. Schwartz points out that Israel’s actions may have problems on this front:
But there is also a second, larger question: How should wars be fought? And here, Israel runs into a problem. Because in the conduct of war, we insist not only that combatants be the sole targets of military action or that steps be taken to reduce civilian deaths. But we also insist on proportionality; that the military value of a target must outweigh the anticipated harm to civilians.
He then admits that, in fact, Israel’s actions do run afoul of proportionality requirements:
The degrading of Hamas’ rocket capabilities, and most of all the destruction of its terrifying network of offensive tunnels (fortified by the limited cement that Israel permitted into Gaza for humanitarian purposes) are valuable military goals. But as the Palestinian death count rises above 500—many of these civilian—I find myself bewildered: Are these tunnels really worth the lives of all those children?
Open and shut case right? The principles of justice in war require proportionality. Israel’s attacks do not satisfy the demands of proportionality because, even if you think the targets are legitimate, there is no way the civilian death toll (and infrastructure destruction it should be pointed out) are worth whatever minimal gain is to be gotten by knocking out the targets. So Israel is not conducting the war justly, right?
It might seem that way, but, as Schwartz cleverly points out, your analysis will reach a different conclusion if you simply change the rules of Just War Theory on the fly:
But there is an alternative. We can say that there is a principle worth fighting and dying for: Civilians cannot be used to make just wars impossible and morality will not be used as a tool to disarm. And once we have that principle, the proportionality calculation changes.
The proposed new rule is that: if there is no way to fight a justified war than to violate the proportionality requirement, you may violate the proportionality requirement and still be deemed just.
And yes, this new rule could change the calculation. It turns out that when your conduct violates Just War Theory’s proportionality requirement, it can be made to not violate that requirement by just constructing a new ad-hoc exception to it. Indeed, anything can be justified by rules you are free to change when you break them.
To be clear, I am not interested in arguing that this ad-hoc change to Just War Theory is or isn’t a good addition to the canon. I find the whole canon quite silly. But my point is to say that the “window dressing” critique of Just War Theory is on full beautiful display in this Schwartz piece. When a military’s action you like coheres with Just War Theory, you aggressively cite that canon as justifying it. Whenever a military’s action you like doesn’t cohere with Just War Theory, you just ignore Just War Theory and make up new rules for what constitutes just wars that just so happen to accommodate the action you are seeking to justify. What a joke.