The U.S. Military and Just War Theory: A Response to Jessica Whyte

This post is part of a symposium on Jessica Whyte’s essay “The ‘Dangerous Concept of the Just War.’” All contributions to the symposium can be found here.

Jessica Whyte has written a compelling and erudite critique of claim in the 2015 United States Law of War manual that the laws of war are “rooted in the Just War tradition” (314). She convincingly demonstrates that this seemingly innocuous statement is completely at odds with those made by U.S. officials during the negotiations of the Additional Protocols to the 1949 Geneva Conventions at the Diplomatic Conferences in the 1970s. Then, U.S. officials from George Aldrich to Richard Baxter condemned the just war tradition being espoused by the socialist and Third World states at the negotiations in Geneva “as licensing unlimited brutality” (328). So why, one might ask, is the U.S. military espousing this doctrine today?

As Whyte points out, the concept of “justice” being articulated by the diplomats at the Geneva Conference in the 1970s were at odds: whereas the U.S. and European officials were thinking of the just war tradition in Christian theological terms as being antiquated and not fit for the modern world, the socialist and Third World states had a completely different understanding of what constituted a just war. As Whyte explains, they “drew on the principles of anti-imperialism and self-determination to articulate a contrasting vision of justice that challenged the colonial configuration of international law and the privileging of Christian civilization” (323).

These differing concepts of the just war tradition being articulated by diplomats at Geneva remind me of my own work on self-determination, especially when Whyte wrote that into the 1970s, the United States “continued to view the extension of self-determination as ‘gradual, earned and peaceful’ and its officials were ‘appalled’ by the armed anticolonial self-determination struggles” (324). In my work, I have suggested that “self-determination” meant different things to do different officials and that what the liberal democracies / Western states understood by “self-determination” was completely at odds with what the socialist and Third World states understood by it.[1] In other words, the phrase “self-determination” just like the “just war” were being used for different ends. Whereas the liberal democracies / Western states associated self-determination with self-government—i.e. something that was, to quote Whyte again, “gradual, earned and peaceful”—for the socialist and Third World states self-determination justified violent revolution and efforts aimed at ending imperialism. There was simply no meeting of minds. In my view, it was this fundamental difference of opinion that killed the South West Africa Cases in the 1960s.[2]

I mention this because it demonstrates the importance of language and how different meanings can be ascribed to words over time. Or in the eloquent words of Whyte: “neither the language of just war nor the doctrine of human rights had a single meaning, and nor were the boundaries of a shared moral world defined in advance” (315). The question is, does this matter? Everyone knew, including the delegates at the Diplomatic Conferences in Geneva in the 1970s, that there were some fundamental areas of disagreement.[3] At one point in the negotiations, U.S. officials thought that the Diplomatic Conference would be a failure.[4] Yet they managed to press ahead and they met with success when an agreement was finally reached. Ironically, despite this success, President Reagan decided not to ratify the Additional Protocols, as Whyte notes (329), even though U.S. officials were primarily responsible for ensuring the success of the negotiations. This irony was not lost on Aldrich who repeatedly called on the United States to ratify the Additional Protocols in academic articles throughout the 1980s and 1990s to no avail.[5] America had changed in fundamental ways since the 1970s.

Differences of opinion, in my view, are a normal part of international diplomacy. Compromise is necessary. Bargains are made. Words always mean different things to different people but so long as there are records, everyone can see what was in dispute, and what compromises were made. There is a difference, however, when language is deliberately distorted to promote a specific agenda, and this is where I part company with Whyte’s argument as to the reasons for the return of the just war tradition in the 2015 Law of War manual, which she ascribes to “the moralization of international politics and the appropriation of the just war by the U.S. [that] reflects the transformed balance of power in the wake of the Cold War and the decline of the anticolonial defense of self-determination” (315). Certainly, the anticolonial success in framing colonialism and the war in Vietnam as “unjust” pushed the United States into an “antimoralist position,” but this does not explain how the United States came to invoke just-war language to legitimize U.S. military interventions in the postcolonial states where the U.S. legal rationale was dubious at best (315). Nor can the decline of the anticolonial defence of self-determination explain why the United States is espousing a just war tradition today.

In other words, Whyte has not explained why the just war tradition is being invoked by the U.S. government today when it had so strenuously objected to its use in the past. While the end of the Cold War explains why self-determination no longer has the “punch” it arguably once had that allowed post-colonial states to “defend” their sovereignty, this does not explain why the Unites States is justifying its interpretation of the laws of war by reference to a historical trajectory that supposedly began with the “just war.”

My hunch is that the appropriation of just war tradition by U.S. military officials has something to do with the transformation of political culture in the United States since the 1970s, when powerful domestic political constituencies with foreign policy agendas came to prominence. I doubt that President Obama’s speechwriters (or any other President’s speechwriters) were well acquainted with the nuances of the laws of war or that we should give much credence to Obama’s Nobel Prize Speech that Whyte quotes from (331). U.S. Presidents have invoked moralizing language since the founding of the Republic. But the 2015 United States Law of War manual is another matter entirely. Senior lawyers in the U.S. Government would have reviewed the manual. The claim that the laws of war are rooted in just war tradition in that manual is therefore glaring, considering the position taken by U.S. diplomats on the laws of war in the 1970s where they strenuously objected to its invocation.

This is one of the limitations with focusing on language in scholarship alone. Of course, words are important, but equally as important are the actors that claim to speak with authority. We need to look at the individuals that are trying to shape international law, and not just at the language being used.[6] This is especially so in the United States, where political appointees are commonplace in the U.S. Government and where large well-funded lobbies in Washington DC jockey for position and influence in each transition after a presidential election.

Returning to the use of just war language since the 1970s, I suspect that we will find amongst those forcefully articulating such language: Neoconservatives and Evangelicals upset with Jimmy Carter’s foreign policy and those liberal human rights “warriors” trying to save humanity, about which much has been written.[7] And I would suggest that given the composition of President Trump’s cabinet too little attention has been devoted by international law scholars to the Evangelical strain that influences U.S. policy, and which might have something to do with the use of just war language being articled in Christian theological terms which has deep historical roots in international law.[8] While the 2015 United States Law of War manual predates Trump’s term in office, Evangelicals have been influential within the Republican Party since at least Ronald Reagan’s presidency and the Moral Majority movement, and despite Obama’s liberal rhetoric there was much continuity between his administration and the Bush administration before it.[9] I doubt that the individuals who drafted and reviewed Law of War manual were old enough to have participated in the Diplomatic Conference on Humanitarian Law in Geneva in the 1970s. We are living in a different world.

Of course, it can be difficult for scholars to identity individuals associated with any of these groups, or with those who drafted the 2015 Law of War manual, but it is not impossible if you know where to look.[10] It may also be the case that what might be termed “the Evangelical strain” in U.S. foreign policy and the increasing talk of “Judeo-Christian” values since 9/11 has become so pronounced in popular culture and in mainstream political discourse in the United States that policymakers have unconsciously internalised this discourse through a process of “osmosis” that they simply believe that the laws of war in the United States emanate from just war tradition and that there has been no profound break with the past.[11]

NOTES

[1] See Victor Kattan, “Self-determination as Ideology: The Cold War, the End of Empire, and the Making of UN General Assembly Resolution 1514 (14 December 1960),” forthcoming in International Law and Time: Narratives and Techniques, ed. Klara van den Ploeg et al. (Geneva: Springer).

[2] See Victor Kattan, ‘‘There Was an Elephant in the Courtroom’: Reflections on the Role of Judge Sir Percy Spender (1897-1985) in the South West Africa Cases (1960-1966) after Half a Century,” Leiden Journal of International Law 31, no. 1 (2018): 147–70. See also, Victor Kattan, “Decolonizing the International Court of Justice: The Experience of Judge Sir Muhammed Zafrulla Khan in the South West Africa Cases,” Asian Journal of International Law 5, no. 2 (2015): 310–55.

[3] As Edvard Hambro lamented, “the law could only function within a structure of shared assumptions”. See the statement by Mr Hambro (Norway) in Official Records of the Diplomatic Conference Vol V, 91, para. 2.

[4] The United States would have walked out of the conference had the Provisional Revolutionary Government of the Republic of South Vietnam (the “Viet Cong”) been invited to attend, as it almost was. A proposal to invite a delegation from the Viet Cong to participate in the conference was narrowly rejected by 38 votes to 37, with 33 abstentions. See Official Records of the Diplomatic Conference, Vol. V, 52–53 (no para number provided).

[5] See, for example, George Aldrich, “Some Reflections on the Origins of the 1977 Geneva Protocols” in Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, ed. Christophe Swinarski (1984), 129–37. George Aldrich, “Progressive Development of the Laws of War: A Reply to Criticisms of the 1977 Geneva Protocol 1,” Virginia Journal of International Law 26 (1986): 693–720. George H. Aldrich, “Prospects for United States Ratification of Additional Protocol I to the 1949 Geneva Conventions,” The American Journal of International Law 85, no. 1 (1991): 1–20. George H. Aldrich, “Why the United States of American should Ratify Additional Protocol I,” in Humanitarian Law of Armed Conflict: Challenges Ahead, ed. Astrid J.M. Delissen and Gerard J. Tanja (The Hague: T.M.C. Asser Instituut, 1991), 127–44. George H. Aldrich, “Comments on the Geneva Protocols,” International Review of the Red Cross 320 (31 October 1997): https://www.icrc.org/eng/resources/documents/article/other/57jnv2.htm.

[6] See my work on the so-called “Bethlehem Principles” on the use of force by states. See Victor Kattan “Furthering the ‘War on Terrorism’ through International Law: How the United States and the United Kingdom Resurrected the Bush Doctrine on Using Preventive Military Force to Combat Terrorism,” Journal on the Use of Force and International Law 5 (2018): 97–144. See also Victor Kattan, “‘The Netanyahu Doctrine,’ the National Security Strategy of the United States of America, and the invasion of Iraq,” in Human Rights and America’s War on Terror, ed. Satvinder Juss (New York: Routledge 2019), 1–28.

[7] On Neoconservatives and U.S. foreign policy see Murray Friedman, The Neoconservative Revolution: Jewish Intellectuals and the Shaping of Public Policy (Cambridge: Cambridge University Press, 2005); Justin Vaïsse, Neoconservatism: The Biography of a Movement (Cambridge, Mass. Harvard University Press, 2011). On Evangelicals and U.S. foreign policy see Elliott Abrams, ed., The Influence of Faith: Religious Groups and U.S. Foreign Policy (Lanham, Mary.: Rowman & Littlefield Publishers, 2001). D. Michael Lindsay, Faith in the Halls of Power: How Evangelicals Joined the American Elite (Oxford: Oxford University Press, 2007). Mark R. Amstutz, Evangelicals and American Foreign Policy (Oxford: Oxford University Press, 2013). On the human rights movement see David Kennedy, “The International Human Rights Movement: Part of the Problem?” Harvard Human Rights Journal 15 (2002): 101–26. David Kennedy, “The International Human Rights Regime: Still Part of the Problem?’ in Examining Critical Perspectives on Human Rights, ed. Rob Dickson et al. (Cambridge: Cambridge University Press 2012), 19–34.

[8] On this, see John D. Haskell, “Divine Immanence: The Evangelical Foundations of Modern Anglo-American Approaches to International Law,” Chinese Journal of International Law 11 (2012): 429–67.

[9] See the sources cited in note 7 above.

[10] See my comments on ascertaining the provenance of the “Bethlehem Principles” in Kattan, “Furthering the ‘War on Terrorism’ through International Law,” esp. 144.

[11] This has been explored in the work of Tony Carty. See Anthony Carty, Philosophy of International Law (Edinburgh: Edinburgh University Press, 2007), esp. chap. 5, 140–62.

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About Victor Kattan

Victor Kattan is an Associate Fellow at the Faculty of Law of the National University of Singapore, and a Senior Research Fellow at the Middle East Institute where he heads the law cluster. He is the editor, most recently, with the late Peter Sluglett, of the book Violent Radical Movements in the Arab World: The Ideology and Politics of None-State Actors (London: I.B. Tauris. 2019).


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