While Jessica Whyte’s brilliant essay focuses on a particular historical moment, it also addresses a longstanding puzzle. She ponders why, in their effort to frame violence as ethical, some actors invoke the just war tradition and others the laws of war. She also asks why an actor who in the past has appealed to the laws of war to justify acts of violence suddenly invokes the just war tradition.
Although the just war tradition and the laws of war emerged from the same cradle, their paths separated some time ago. Just war has its origins in the writings of Catholic theology and has always assumed a universal morality. Its proponents aim to reveal what this morality is, to deduce a series of propositions from it, and to apply these propositions to hostilities. The laws of war initially developed in a similar fashion, but in the late 19th century the entire system of international law was reconstructed under a new paradigm. The idea that state action had to be guided by a universal morality was rejected and the sovereign state became the highest authority “bound only to that which it had agreed.”
According to state-centric jurisprudence, laws of war are formulated following careful study of the actual behavior of states and are based upon the notion that states are formally equal. Moreover, international law is meant to regulate relations among states and not between civilians and the state. Precisely because the colonies were not state actors, international law was deemed inapplicable to colonial conflicts and anti-colonial liberation movements were rendered illegal.
All of this, however, merely serves as the background to Whyte’s essay, which shows how the just war tradition and the laws of war continued to be invoked differently by the colonial states of old and the new decolonized states during the Diplomatic Conference, leading to the formulation of the 1977 Additional Protocols to the Geneva Conventions. Whyte reveals how the position of these actors within the international arena and their political goals helped to determine whether they appealed to the one or the other to support their claims, and what the ramifications of these choices have been. Finally, she exposes how just war and the laws of war have been used as interpretive weapons aimed at determining which violence is ethical and which is not.
Whyte lays bare how during the Diplomatic Conference debates anti-colonialists drew on principles of “anti-imperialism and self-determination” when discussing just wars, and that they used the just war framework in a very creative and non-Walzerian way in order to expand the scope of international law as a way of legitimating the liberation struggles waged by non-state armed forces. By contrast, western states, which excluded terms like imperialism, racism, colonialism and capitalism in their conception of just wars, perceived the just war framework as bad because they believed it helped expand the laws of war in a dangerous way. Whyte manages to reveal that at the root of the western aversion toward the expansion of just war is not only a fear of legitimating anti-colonial armed struggles but also a deep-seated racism toward non-whites.
She demonstrates that even though the different actors use the same signifier (i.e., just war) the signified is fluid, or as she puts it: at the high-point of anticolonial legal activism, neither the language of just war nor the doctrine of human rights had any one single meaning.
While I agree with Whyte’s analysis, in my reading of this historical moment, the key for understanding when and why different actors invoke the just war tradition as opposed to the laws of war (and vice versa) is also tied to the status of the civilian in general, and, more specifically, to the status of civilians who resist “colonial domination and alien occupation and [who struggle] against racist régimes in the exercise of their right of self-determination.” Whyte is clearly aware of this, but the essay does not sufficiently highlight the profound animus states have toward the active civilian who refuses to act at their behest.
I am confident she would agree that the history she is tracing runs more or less parallel to the history of the civilian in international law. In short, the status of the civilian has been changing along the trajectory of a pendulum. We can first identify a movement from the 1863 First Geneva Convention to the Additional Protocols that includes two major components: an increase in the protections bestowed on civilians alongside the expansion of the category of civilian to include more people; this culminated in the acceptance of the decolonized population within the fold of civilianhood. Indeed, the moment Whyte analyzes marks the high point in civilian value; yet, since the formulation of the Additional Protocols “the emancipatory teleology of modernization and liberation” (to cite Joseph Slaughter) has been recoiling and the pendulum has begun to swing backward.
Whyte’s essay focuses on the final moments in the pendulum’s climb upward, and only briefly alludes to the descent. She shows how the United States, which had denigrated the just war tradition during the debates leading to the formulation of the Additional Protocol, reverted back to the just war idea in the following years in order to legitimize military interventions. As she articulates it: “Rather than constraining military action, the language of justice served to make unlawful violence palatable and to justify humanitarian interventions, police efforts, and ‘wars on terror’ across the globe.”
In my reading of her analysis of the present moment, just war replaces the laws of war as the major moral frame because the Additional Protocols ostensibly offer too much restraint on interventionist policies. The triumph of just war, as Walzer called it, is in Whyte’s account a sign of the erosion of the nonintervention paradigm enshrined in the UN Charter and the victory of moral justifications for military intervention.
Thus, I would add a number of further insights to Whyte’s analysis: namely, that the current triumph of just war is, on the one hand, part of a pushback against the protections the Additional Protocol bestows on civilians, and, on the other hand, an effort to bolster the kind of civilian imagined in international law—the passive civilian who cannot participate in any way in the war effort, even if the participation is nonviolent or an act of antiwar resistance. Indeed, the erosion of the nonintervention paradigm is intricately tied to the erosion of the agentive civilian.
Just war is thus reintroduced not in order to replace international law, but, once again, as a tool to interpret it. Consider for a moment Michael Walzer’s relatively recent claims about human shields, people who either volunteer or are forced to serve as a buffer between a warring party and its enemy. Discussing U.S. and Israeli interventions in Afghanistan and Gaza, where thousands of civilians have been killed, Waltzer writes:
The IDF and the US Army should avoid collateral damage if they can, fighting with as much precision as they can manage, but damage to human shields isn’t “collateral” in the usual sense. These people aren’t disengaged from the business of war; they have been conscripted, and if they are killed, their deaths are on the heads of the people who conscripted them, the people who are using them.
Note how Walzer conceptualizes the civilian as completely passive, a mere tool who insurgents use as a human shield. The notion that a civilian might conceive of war as an integral part of politics rather than as a separate sphere, and is someone who is killed after deciding to serve as a shield to protect one side from the lethal violence of its enemies—precisely like Rachel Corrie did in Gaza—appears to be beyond Walzer’s imagination. Moreover, since such civilians are not “disengaged from the business of war” we are told that they can no longer be characterized as “collateral damage” when they are killed. Indeed, according to Walzer, these civilians become killable subjects, people who can be killed without committing a crime.
Whether civilians choose to serve as shields or are compelled to is no doubt important, but the danger in the eyes of the just war theorist emerges primarily from the willingness of the civilian to engage in the business of war. The danger is the active and agentive civilian.
 David Kennedy, Of War and Law (Princeton: Princeton University Press, 2009).
 Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2007).
 Additional Protocol I, Article 1 para 4.
 Helen Kinsella, The Image before the Weapon: A Critical History of the Distinction Between Combatant and Civilian (Ithaca: Cornell University Press, 2011).
 Michael Walzer, “The Risk Dilemma,” Philosophia 44, no. 2 (2016), 289–93.
 For an analysis of human shielding in Gaza see Neve Gordon and Nicola Perugini, “The Politics of Human Shielding: On the Resignification of Space and the Constitution of Civilians as Shields in Liberal Wars,” Environment and Planning D: Society and Space 34, no. 1 (2016): 168–87.