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.

In her essay, Jessica Whyte persuasively refutes what she takes to be a hegemonic narrative of the development, and triumph, of ideas of just war. Reading together Walzer, O’Brien, and the 2015 United States Law of War Manual, she shows what a revisionist story they collectively offer, in part because of their reliance on a narrative in which the history of the concept is understood as the gradual revelation of true moral principles that are universally valid. In contrast, she reconstructs an anticolonial conception of justice as it relates to international humanitarian law, which, she argues, “mobilized the language of just war” even as it drew on different sources than those of Christian theology. The language of just war, she shows, has itself been contested over time, which should both render untenable any narrative of gradual revelation of moral truths, and also allow us to pluralize its conceptual histories.

Central to Whyte’s argument are the deliberations over the Additional Protocols to the Geneva Conventions, taking place across several meetings between 1974 and 1977. Of particular importance was the debate over Part 1, Article 1, paragraph 4, the final version of which would explicitly include “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in their exercise of the right of self-determination, as enshrined in the Charter of the United Nations” within the purview of international conflicts. If deemed international conflicts, they would be covered by the third Geneva Convention, which mandates certain standards of treatment for prisoners of war. On Whyte’s account, anticolonial delegates sought to justify the inclusion of this language through appeal to a view of those conflicts as just wars.

But where Whyte draws together a coherent project from among the anticolonial delegates, as I read the records of the conference proceedings, the “anticolonial” delegations did not hew to so singular a line. This raises some initial issues about what fragmentation and contestation within anticolonial legal thought, both among different countries and across time, might tell us about anticolonialism in legal thought as a project. More specifically here, though, the precise nature of their disagreement raises questions about the coherence of the “language of just war,” and what it would mean to “mobilize” it.

Especially in the conversations about what would become the paragraph on struggles against colonial domination, many of the anticolonial actors whom Whyte discusses in fact actively disavowed of the language of just war, insisting that that was not what they were drawing on. Indeed, the question of whether or not to mobilize the language of just war was a matter of explicit contention, actively contested among the delegations at the Geneva Conference—and the anticolonial delegations were not consistently on the same side. In the debates, in addition to the division between “Western” and “anticolonial” delegates that Whyte highlights, there was an important fault line among those who supported the new provision between those delegates who argued that the law should be changed to incorporate the principle of the justice of wars against colonial domination (a minority among those who spoke), and those delegates who insisted, instead, that they were simply looking to make explicit what fell within the category of “international armed conflict.”

Indeed, much if not most of the use of the language of “just and unjust wars” comes from the delegations opposing the new paragraph four, and served to characterize the position to which they are objecting. Representatives of the United States, United Kingdom, and Israel suggested that other delegations were trying to introduce the question of the justice of a conflict, which, they argued, should have no place in considerations of international humanitarian law, as it is untenably subjective. Whyte summarizes their argument, focusing on a comment from the UK delegation, as dismissing the anticolonial position as “medieval”—though medievalism was alleged only that once, and the tone did not characterize all of their interventions. They accused proponents of the paragraph of blurring the lines between jus in bello and jus ad bellum, and raised other concerns, specific to the inclusion of anticolonial conflicts, about reciprocity and compliance. They wondered whether national liberation movements were prepared to uphold their obligations under the conventions, both in treatment of captured prisoners of war and in respecting the principle of distinction in the presentation of their fighters as soldiers, not as civilians. That point was at times connected to a concern of not making the law disproportionately onerous on one side such that states might simply decide not to even make an effort to comply—underscoring a view of international humanitarian law as a tentative and contingent construction, not a statement of absolute morality.[1]

In response, many of the so-called anticolonial delegations insisted that they were not introducing any consideration of the justice or injustice of a conflict, as did some of the other delegations that joined them in supporting the language. The Nigerian delegation, replying to U.S. objections, said explicitly that “the amendment…did not speak of ‘just’ or ‘unjust’ wars, but of wars of national liberation, which was a perfectly objective concept.”[2] The Tanzanian delegate similarly insisted that this was simply about the international status of a conflict.[3] Against concerns that the obligations would fall unequally, binding only colonial powers, the Egyptian delegation pointed out that so far the opposite had been the case: national liberation movements had a better record of acting according to IHL than their opponents, and clarifying their status would only make things more equal. These were international conflicts, they argued, not because they were just, but because the national liberation groups already had international legal personality according to existing law, as evident in their representation at the conference as well as references to them as territories under colonial control.[4] The representative of the Mozambique Liberation Front (FRELIMO) affirmed that FRELIMO held “a policy of clemency toward captured enemies” and that “it had been shown in practice that, despite disparities in the resources of the parties involved, nothing prevented the national liberation movements from respecting the principles of international law.”[5]

Important to this line of argumentation was an insistence that they were not altering international law, but clarifying it, so that its application would be less easily contestable by colonial regimes. The Algerian delegate described this as a kind of “progress” to embrace “new realities.”[6] This seems in line with Whyte’s argument, referencing Mohammed Bedjaoui, that “colonial law” was being replaced by “the law of decolonization.” But importantly, at the time, the delegates were at pains to emphasize that what they were doing was updating the law to ensure its more even application amid changing circumstances. The quotations Whyte offers from Bedjaoui’s 1961 work, similarly, do not describe what he took as the true meaning of existing law before the Additional Protocols, but the French interpretation of them, as reflected in the position France had taken during the war for Algerian independence. His 1961 book, along with the white paper of the Algerian provisional government (GPRA), offers arguments that this was not the proper interpretation, as the conflict was international. To reduce this to a Nietzschean view of law as a reflection of power relations, changing as those relations change, seems to elide the multiple temporalities and meanings of law that were in play at the time, as well as the tensions between contemporaneous legal discourse and retroactive historical description.

Notably, of course, not all the “anticolonial” delegates disavowed the language of just war in their support for including anticolonial struggles as international ones. As Whyte highlights, several delegations embraced the idea that the justice of the conflict was relevant, and that struggles against colonial oppression were just wars. China was perhaps the most adamant about this, with Madagascar and Somalia referencing “just struggles” at times as well.[7] Albania referenced “freedom fighters” and spoke of “unjust wars”; the German Democratic Republic also used the language of “crime” and “aggression” to insist the justice of the struggle was relevant.[8] The composition of this coalition (if we can call it that) is notable, and complicates the description of their position as the “anticolonial” one.

The disagreements among the anticolonial delegates played out in other ways, too. Whyte insists that “certainly, just war language was used to legitimate anticolonial violence, but those who affirmed the justice of such violence aimed to extend the realm of international law, not to exempt anticolonial fighters from legal restraints” (328). That is true to a point, but also obviates the differences among them. As Kinsella shows, the North Vietnamese inveighed against the idea that the distinction between combatant and civilian must be made visible, whereas during the Algerian war for independence, Bedjaoui and the GPRA had publicly embraced the idea of visible distinction, at least for the formal army. Similarly, the GPRA’s white paper insisted that the Algerian national liberation fighters were affording full protections to captured French prisoners, and the GPRA did make a point of cooperating with the ICRC; as Whyte documents, the North Vietnamese did not take the same stance.

My point here is not that it is incorrect to describe the proponents of the inclusion of struggles against colonial domination as part of a history of ideas of justice in war, or even of just and unjust wars. But it does seem significant that many of them explicitly refused such a mantle. This is also not to say that they were not engaged in some of the other arguments that Whyte, helpfully, tracks, about self-determination and anti-imperialism as principles that could challenge the current configurations of international law. Along those lines, it is relevant that those who refused the label of “just war” often did so by insisting on self-determination as a principle already enshrined in international agreements (as reflected in the reference to the UN Charter). And it is notable that they pointed to recent precedent, not to older agreements or to general descriptions of “the laws of nations” (as some of the European powers occasionally did). In this sense, they were participating in a broader argument about whether and how past international agreements would be binding on newly independent states that had not been present when those agreements were made—an argument about the very nature of “international law” and of postcolonial sovereignty.

But Whyte’s article raises a question not just of who gets to claim the just war tradition but also of who gets to conscript others into it. She denounces the attempt to attribute to anticolonial legal thinkers a “medieval” idea of just war. She likewise denounces efforts by Michael Walzer, William O’Brien, the U.S. Law of War Manual, and various U.S. presidents to claim the tradition as their own, to place the Geneva Conventions within it, and to declare its triumph. Yet she also wants to insert the anticolonial delegates into that history. Is this as tenable for the anticolonial and other delegations who disavowed the language of just war, insisting that they were interested solely in clarifying the meaning of “international armed conflict,” as it is for the minority who openly avowed the language of just war?

If so, that opens a bigger question, of what precisely defines the “language of just war”—is it about the actual use of precise terms, or is it about the deployment of a broader set of concepts? And how broad a set would that be? On a strict reading, the language of just war might include certain precise terms, but Walzer also seems to suggest a looser understanding, and one into which actors might lapse unwittingly. As Whyte quotes, Walzer recalls “talking the language of just war….though we did not know that that was what we were doing” (320) and recalls that “almost against its will….the left fell into morality” (313). Whyte also quotes Walzer describing what she terms “a conversation with a distinct structure: ‘Like characters in a novel,’ he writes, ‘concepts in a theory shape the narrative or the argument in which they figure’” (320–21). His claims seem consistent with his broader view, which Whyte opposes, that the language of just war has a sort of moral truth to it, a logic being gradually uncovered. If we reject that viewpoint and take both the concepts and the narrative as sites of contestation, what defines “the language of just war” as a language?

NOTES

[1] See especially U.S. comments at CDDH/I/SR.2, paragraphs 50-52, and CDDH/I/SR.14, paragraph 26–27; UK at CDDH/I/SR.4, paragraph 25; Israel at CDDH/SR.36 paragraphs 59-60. On subjectivity of judgement, also see comments from the UK and France at CDDH/I/SR.2, paragraphs 44–49.

[2] CDDH/I/SR.14, paragraph 31. The surrounding paragraphs also contain relevant supporting comments from representatives of Cameroon and Zaire.

[3] CDDH/I/SR.3, paragraphs 22–23.

[4] CDDH/I/SR.2, paragraphs 8–11.

[5] CDDH/I/SR.4, paragraph 46. FRELIMO’s comments followed on comments from Norway, which had also affirmed that, in practice, “national liberation movements were already applying the Conventions to a large extent” (paragraph 45).

[6] CDDH/I/SR.3, paragraphs 41–42.

[7] See comments from China at CDDH/I/SR.4, paragraphs 16–18; Madagascar at CDDH/I/SR.2 paragraph 56; Somalia at CDDH/SR.36, paragraph 128.

[8] Albania at CDDH/I/SR.5, paragraphs 11–12; GDR at CDDH/I/SR.2 paragraph 6.