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.
It is wonderful to have the opportunity to engage with the questions posed by these astute and thoughtful responses to my work. Those questions are as numerous as they are provocative, and here I focus on several themes that allow me to bring into sharper focus and extend the claims of my original essay. That essay challenges moralizing accounts of the rise of just war language by confronting them with a history of argumentation about the justice of wars of national liberation. It shows that, when faced with what they read as the “just war” arguments of supporters of national liberation struggles, delegates from major military powers, led by the United States, depicted the just war as a medieval license to cruelty. The critical impetus of the article was to de-stabilize the argument, made most prominently by Michael Walzer, that the embrace of the language of just war by recent U.S. administrations is evidence of moral progress. But I also sought to show that understanding the shift from U.S. denunciations of the just war in the 1970s to the mobilization of just war language by recent U.S. administrations requires that we return to the fraught debates about wars of national liberation that were so central to the revision of international humanitarian law in that decade.
One of the important questions that emerges from the responses concerns divergences within what I refer to as the “anti-colonial” bloc at the Diplomatic Conference convened by the International Committee of the Red Cross from 1974–77 to revise international humanitarian law. I use this term to refer to the loose collection of socialist and post-colonial states and national liberation movements who fought to recognize national liberation struggles as international armed conflicts. Boyd van Dijk questions the extent to which this bloc had a unified vision, and worries that it may appear from my treatment of the debates as though the socialist delegates and the “anti-colonial coalition” shared a single ideological position regarding humanity in warfare. Emma Stone Mackinnon similarly questions the extent to which these delegates were united in defending the justice of wars of national liberation, noting that certain defenders of the international status of wars of national liberation explicitly rejected the accusation that they were making just war arguments.
Van Dijk is right to note the major ideological divergences between defenders of national liberation movements, who included socialists and delegates from fiercely anti-communist states. It is nonetheless significant that the Diplomatic Conference did not see the fierce conflicts that had punctuated the Bandung Conference decades earlier, notably over whether the Soviet Union should be included among the “imperialist” powers. Instead, the shared commitment to re-characterizing wars of national liberation as international armed conflicts, and to granting Prisoner of War status to national liberation fighters, tended to push other ideological conflicts into the background—as least at the conference itself.
The key instance of division within this coalition, which I discussed in the original article, concerned which conflicts should be classed as international armed struggles. What ultimately became Article One, Paragraph Four of Additional Protocol I (the so-called “just war” article) was a compromise between supporters of two distinct amendments, both of which sought to grant international status to wars of national liberation. Looking in more detail at the history of these amendments tells us much about the conflicts internal to this coalition and about the way in which the imperative to produce a consensus led to alliances that papered over key differences, particularly regarding the legitimacy of self-determination struggles outside of the context of European colonialism.
Many of the strongest U.S. and European criticisms of the supposed importation of “just war” criteria into humanitarian law were aimed at an amendment sponsored by the socialist bloc which sought to extend international status to situations in which people struggled against “colonial and alien domination and against racist regimes” (CDDH/I/5). The point of specifying these situations was to extend international status not only to struggles against “classical colonial rule” but also to those against settler colonialism (notably the Palestinian struggle) and racist regimes such as South Africa.[1] Yet this specification also aimed to limit the extension of the category of the international armed conflict to struggles against European colonial powers. The “defensive reflex of States” led many of the same delegates who demanded international status for wars of national liberation to exclude secessionist struggles within their own borders from that category.[2] It is here, even more than in the relative disinterest of these states in internal armed conflicts, which Van Dijk highlights, that the limits and contradictions of socialist and post-colonial defenses of national liberation were located.
In contrast, the second amendment (CDDH/I/11), which was “basically a non-aligned initiative,” proposed to grant international status to struggles for self-determination—with no qualifications. While Western states claimed that references to racist regimes, alien occupation and colonial domination introduced subjective criteria into the laws of war, supporters of the second amendment argued that their position was a legal one, which required no grounding in contested assumptions about the justice of particular struggles. This contrasted with the position articulated by many defenders of the first amendment, according to which, in the words of the Albanian delegate, the “distinction between just and unjust wars…should be the principal criterion in the development of international humanitarian law.”[3] This does not mean that the question of justice was absent from the arguments of defenders of the second amendment however. The jurist Georges Abi Saab, the Egyptian delegate who worked to provide a rigorous legal basis for international status for wars of national liberation, shared the view that national liberation struggles are distinguished by the convictions of their participants that they are fighting for a just cause.
Importantly, support for one or the other of these amendments did not necessarily map on to larger geopolitical or ideological conflicts: The first amendment was supported by both Algeria and Morocco, which had fought a border war and sharply differed over the self-determination struggle of the Saharawi of the Moroccan occupied Western Sahara.[4] The second amendment was supported by both India and Pakistan, and also gained the early support of Australia and Norway. Nor were these blocs exclusive ones: numerous delegates declared their support for both amendments—including the delegates of Algeria and the Palestine Liberation Organization—and expressed their hope that they could be merged. That these two amendments were ultimately unified was thanks largely to the intransigence of members of the “Western and others group” (UN parlance for a “regional” bloc comprised essentially of Western European states and settler colonies, such as Israel, South Africa, Australia, and Canada) who refused any attempt to extend international status to wars of national liberation.
What is significant about the various uses of what I call the “language of the just war” in the course of the Diplomatic Conference is the variety of conceptions of justice in warfare this language articulated, and the strikingly different attitudes taken to arguments about the relation of law and justice that have existed even in very recent history. My intention is not to “conscript others” into a “just war tradition” as Mackinnon implies. Quite the contrary, in speaking of a language (rather than a tradition), I aim to destabilize attempts to construct a coherent just war tradition, by showing, as Gordon neatly puts it, that “even though the different actors use the same signifier (i.e., just war) the signified is fluid.”
Just as the language of “just war” lacked a single meaning at this point, the law was also a field of tensions. Against my argument that delegates from former colonies and national liberation movements sought to replace “colonial law” with the “law of decolonization” (in the words I borrow from Mohammad Bedjaoui) Mackinnon argues that these delegates “were not altering international law, but clarifying it, so that its application would be less easily contestable by colonial regimes.” She further argues that my characterization of Bedjaoui’s account of the progressive transformation of international law as having been achieved through “fire and sword” as akin to a Nietzsche’s understanding of law as a reflection of power relations “seems to elide the multiple temporalities and meanings of law that were in play at the time.”
Yet, the strategic relation to the law, even amongst those who grounded their arguments in the principle of self-determination, were complex and cannot simply be reduced to an attempt to clarify the law; the impact of decolonization on international law was far more than simply a clarification. Defenders of national liberation struggles spoke both of affirming and of transforming the law, and to understand why they did both it is necessary to recognize that their attempt to overcome “colonial law” relied on an argument that this law was already an anachronism that recent legal developments had decisively overturned.
In defending the international status of wars of national liberation through reference to self-determination, Abi Saab sought to ground his arguments on the solid foundations of the UN Charter. To do so, he characterized recent UN General Assembly resolutions (such as the “Declaration on the Granting of Independence to Colonial Countries and Peoples,” and the “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations” as confirmations of the fact that references to self-determination in the UN Charter were applicable to colonized peoples. Abi Saab used the same strategy—and it was a strategy—in relation to the development of international humanitarian law. Recognizing that colonial powers and “racist regimes” were unlikely ever to ratify the Additional Protocols, he sought to construe these newer protocols not as legal innovations (which would lack both binding force on non-signatories and status as customary international law) but as binding interpretations of the earlier 1949 Geneva Conventions, and the Hague rules.
The force of this argument consisted in bringing later developments to bear retroactively on treaties and customary international law developed without the participation of colonized peoples. Yet it simultaneously rested on the contention that, without renovation and transformation, international law was in danger of “losing its tenuous hold on social reality and eventually becoming irrelevant.”[5] What the Algerian delegate Raof Boudjakdji described as the “desire to continue to impose a colonialist and imperialist civilization and the so-called ‘classic system of international law’ on the peoples of the southern hemisphere” was construed as an attempt to salvage an anachronism that would ultimately damage international law.[6] Both claims of radical renovation and claims for continuity could co-exist, because, as Bedjaoui articulated most clearly, law itself had multiple temporal registers. Describing the role of the “rapid and modern” UN Resolution in bringing the weight of the decolonized world to bear on international law, the Algerian jurist contended that the “seen in terms of power relations, ‘universal awareness’ ends by breaking the constraints which, until now, have been stifling international law.”[7] Far from eliding the multiple temporalities of law, the argument that law was a product of power relations and therefore subject to transformation when those relations changed brought into relief the temporal multiplicity embedded in the law.
Another important question posed by the responses concerns the what Van Dijk describes as my article’s “blind spot” in relation to the contribution of Western human rights NGOs (and especially of Seán MacBride) to the revision of IHL. Citing Amanda Alexander’s important work on the “short history of international humanitarian law,” van Dijk argues that “HRW [Human Rights Watch] and Amnesty International were as important in the dissemination and acceptance of international humanitarian law as the ICRC.”[8] MacBride’s contribution has been dealt with well by others, but it is worth noting that, as a former Chief of Staff of the Irish Republican Army and a founding member of the Amnesty International and the International Commission of Jurists, MacBride occupied a unique, liminal position between the armed national liberation movement and the “Western human rights NGO.” Many subsequent NGO figures would be far less sympathetic to armed national liberation struggles. Moreover, as Alexander notes, the transformation of international humanitarian law by human rights NGOs such as HRW and AI did not take place until the 1990s, in the context of the war in Kosovo and the rise of humanitarian intervention.
In the period I focus on, the 1970s, Amnesty International was still largely focused on its core mission of supporting prisoners of conscience, and HRW’s precursor group, Helsinki Watch was single-mindedly focused on Soviet violations of the Helsinki Accords. The story of how HRW came to take up IHL says much about the shifting landscape of interventionism in the period after the finalization of the Additional Protocols. As the executive director of HRW Kenneth Roth has noted, his organization began to use IHL in the early 1980s as a set of principles that would allow it to move beyond criticizing state practice (the exclusive role of human rights, in his view) and criticize the practice of rebel groups. It was Americas Watch that first used IHL to criticize abuses by the Cuban-backed Faribundo Marti Liberation Front (FMLF) in El Salvador and to criticize both the U.S.-backed Contras and the left-wing Sandinistas in Nicaragua. In doing so, Americas Watch “took a fairly flexible approach to interpreting IHL” as Roth acknowledges, treating it as a set of de-formalized principles that could be used to criticize the conduct of warfare, rather than as a binding international law.[9] This approach has since transformed conceptions of what is now commonly understood as “international humanitarian law,” and in that sense that efforts of humanitarians and human rights NGOs have exerted a similar retrospective force to earlier post-colonial argument.[10]
Just as my essay seeks to challenge teleological accounts of the progressive unfolding of a just war tradition, it also questions the narrative according to which the rise of a new generation of humanitarian and human rights NGOs led straight-forwardly to a humanization of the law. Van Dijk articulates a common view when he argues that socialist delegates and many postcolonial delegates were often far more interested in “spreading anti-Western propaganda than strengthening law’s protections for victims of state terror.” In a similar vein, David P. Forsythe, who attended the Diplomatic Conference as a Red Cross observer, argued in the wake of the first session that “the victims of wars were largely forgotten” in the midst of debates about the participation of national liberation movements and the international status of wars of national liberation.[11] Yet, as Neve Gordon points out here, the adoption of the Additional Protocols also represented the “high point in civilian value” in that the populations of decolonized states were accepted into the “fold of civilianhood.” I can only agree with Gordon that the subsequent period has seen the pendulum swing backwards. The contemporary “triumph” of just war and the de-formalization of law in support of humanitarian interventions has re-configured the civilian in such a way that only passive figures of victimhood can be seen as deserving of the protections owing to civilians. Gordon’s own work with Nicola Perugini has strikingly revealed the fact that the “humanization” of warfare can mesh with the evisceration of the civilian, as entire populations are deprived of civilian status because they are viewed as too active, too political, insufficiently like the passive victim that international humanitarian law requires.
Now let me address Mathias Thaler’s questions about the relevance of history for contemporary debates. On the one hand, Thaler rightly notes that much contemporary just war theory today is informed by analytic philosophy and, as such, eschews history altogether in favor of an attempt to refine moral intuitions through the use of thought experiments. I share Thaler’s discomfort about such trends—Jeff McMahan’s reliance on examples taken from science fiction to challenge the norm against targeting noncombatants, for instance, abstracts entirely from the deep contests about justice that my article intends to highlight. To my mind, the history of colonial conflicts offers a better guide for thinking about contemporary conflicts than imaginary scenarios about people with implants in their brains that implacably drive them to kill.[12] Such experiments de-historicize the law and universalize historically and culturally situated intuitions. Thaler is no doubt right that the vision of “universal justice” underpinning such accounts requires scrutiny.[13] My task, however, was a different one: my essay sought to challenge the mobilization of one version of history as a support for contemporary militarism. Although I focus on Walzer as the most prominent just war theorist to mobilize a historical narrative of the progressive humanization of law, it was the incorporation of the same teleological interpretation of the history of just war thinking into the 2015 United States Law of War manual that really prompted me to challenge it.
As Victor Kattan notes, the claim in this manual that the laws of war are rooted in the just war tradition is a “glaring” misrepresentation of the U.S. position on just wars, in a manual that would have been reviewed by senior U.S. government lawyers. In Kattan’s view, understanding the provenance of this claim requires more than a focus on shifting language; it requires us to track the individuals who used this language and their purposes in doing so. More specifically, he hypothesizes that the increasing recourse to just war language reflects the increasing influence of evangelicals in U.S. foreign policy circles, more than the “moralization of international politics” that I trace. Kattan is right to note the importance of evangelicals in U.S. politics—an influence that has only intensified since the election of Donald Trump. Nonetheless, I am less convinced that the rising influence of evangelical Christians can be rigorously separated from the broader moralization of international politics that has seen increasing recourse to narratives of good versus evil, justice versus injustice, and humanity versus barbarism. As recent scholarship has shown, conservative Christians were central to the rise of human rights in the twentieth-century.[14] It is also not for nothing that Walzer describes the language of just war breaking out of its seclusion within the theology departments of Catholic universities to permeate U.S. political discourse. The detailed work that Kattan calls for to identify the specific figures who promoted just war language and their purposes is essential, yet it is not at odds with a focus on the broader moralization of political discourse—something, in my view, that the anti-colonial defense of self-determination once provided a bulwark against.
Today, even more than at the time I wrote this essay, we are seeing the rise of a politics of human rights marked by affirmations of the superiority of “Western civilization” and Christianity and a disconnect, if not active opposition to, agendas of economic, racial, and gender justice. These strands of moral politics have culminated in the Trump administration’s recently announced Department of State Commission on Unalienable Rights, which aims to “provide fresh thinking about human rights discourse where such discourse has departed from our nation’s founding principles of natural law and natural rights.”[15] Nonetheless, as I show in my forthcoming book The Morals of the Market: Human Rights and the Rise of Neoliberalism, conservative Christians and neoliberal thinkers joined forces as early as the 1940s in an attempt to mobilize human rights to defend “Western civilization” against domestic demands for redistribution and post-colonial demands for greater international equality. We do indeed live in a different world to that of the 1970s, as Kattan suggests. Yet the contours of our world had been sketched decades ago by those whose vision of justice licenses the use of force by the most powerful states in the territories of those who resist them.
NOTES
[1] Georges Abi-Saab, “Wars of National Liberation in the Geneva Conventions and Protocols,” Collected Courses of the Hague Academy of International Law 165 (1979): 394.
[2] Ibid., 396.
[3] Mr. Angoni, “Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts,” Geneva, (1974-1977) Vol. 8, (CDDH/I/SR.12), 83.
[4] Umut Özsu, “Determining New Selves: Mohammed Bedjaoui on Algeria, Western Sahara, and Post-Classical International Law,” in The Battle for International Law: South-North Perspectives on the Decolonization Era, ed. Jochen von Bernstorff and Philipp Dann, The History and Theory of International Law Series (Oxford: Oxford University Press, 2019).
[5] Abi-Saab, “Wars of National Liberation,” 366.
[6] Raof Boudjakdji, “Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts,” Geneva, (1974-1977) Vol. 5, (CDDH/SR.4), 38.
[7] Mohammed Bedjaoui, Towards a New International Economic Order (New York: Holmes & Meier Publishers, 1979), 189. Bedjaoui wrote these words in the context of the campaign for a New International Economic Order.
[8] Alexander cited in Van Dijk. For the original article, see Amanda Alexander, “A Short History of International Humanitarian Law,” European Journal of International Law 26, no. 1 (2015): 136, https://doi.org/10.1093/ejil/chv002. On MacBride, see also Keith Suter, An International Law of Guerrilla Warfare: The Global Politics of Law-Making (New York: St Martin’s Press, 1984).
[9] Kenneth Roth, “The Human Rights Movement and International Humanitarian Law,” in Human Rights: From Practice to Policy: Proceedings of a Research Workshop, Gerald R. Ford School of Public Policy, ed. Carrie Booth Walling and Susan Waltz (Ann Arbor, Mich.: University of Michigan, 2011).
[10] Alexander provides an excellent account of the way international lawyers came to follow HRW’s interpretation of the customary status of the Additional Protocols in the context of the Kosovo conflict.
[11] David P. Forsythe, “The 1974 Diplomatic Conference on Humanitarian Law: Some Observations,” The American Journal of International Law 69, no. 1 (1975): 77, https://doi.org/10.2307/2200192.
[12] McMahan uses this thought experiment in Jeff McMahan, “The Ethics of Killing in War,” Philosophia 34, no. 1 (January 2006): 23–41, https://doi.org/10.1007/s11406-006-9007-y.
[13] Ibid., 31.
[14] Samuel Moyn, Christian Human Rights (Philadelphia: University of Pennsylvania Press, 2015); Marco Duranti, The Conservative Human Rights Revolution: European Identity, Transnational Politics, and the Origins of the European Convention (Oxford: Oxford University Press, 2017).
[15] United States Department of State, “Department of State Commission on Unalienable Rights” (Federal Register, May 30, 2019), 25109.
