Archive for the ‘Law’ Category
Who is the father of Just War Theory? Some occasional nods in the direction of Plato and Aristotle notwithstanding, this honor usually falls to St. Augustine, but there are good reasons to question that choice. Here we shall consider arguments for selecting the great Roman politician, orator and philosopher, Cicero (106 BC – 43 BC) for the distinction. At the same time we shall explore a second question, one of perhaps more practical relevance, namely whether Cicero’s writings may have unique value to inform and clarify modern concepts of just warfare.
The Father of Just War Theory?
First we should note that Cicero (who wrote four centuries before St. Augustine), presents a clear just war theory, acknowledging virtually all the commonly recognized principles associated with the just war tradition. It helps that his main treatment of the subject occurs in one source, Book 1 of On Moral Duties (De officiis), written close to the end of his life. There his just war theory is fully integrated within a larger, cogent and consistent ethical framework. An integral connection of his just war theory to his political thought is similarly found in a single source, his On the Commonwealth (De res publica).
We should further consider the several ways in which Cicero was in a unique position to formulate a just war theory. To begin, there is his political experience. Rising through the ranks of the Roman cursus honorum, Cicero held progressively more responsible civil appointments, including that of consul (i.e., one of two annually elected ‘presidents’ of the Roman Republic) in 63 BC, senatorship thereafter, and, in 51 BC, governorship of the Roman province of Cilicia in Northern Turkey (where he directly oversaw and participated in military actions.)
Cicero was also a direct witness and participant in the tumultuous political changes that marked the transition between the Roman Republic and Roman Empire. These included numerous civil wars and insurrections, international wars, conquests, threats of invasions, and, in general, military conflicts of every form and scope. Moreover, Cicero was an intimate friend, relation, or working colleague of many of the other Roman leaders and generals of the age, including Julius Caesar, Pompey, Octavian, Cato the Younger, Brutus and Cassius. Combining this with his excellent knowledge of Greek history, Cicero could command an immense amount of knowledge about warfare, politics, and law in formulating his just war theory.
It is of further help to us that Cicero was not just an excellent writer, but, in the estimation of many, one of the greatest literary geniuses of history, being noted for exceptionally clear prose.
To these credentials we should add another important one: his unique command of the entire Greek philosophical tradition since Socrates. Educated by the best philosophers of the times, Cicero freely took and integrated what was best in each of the dominant philosophical schools that emerged in the wake of Socrates: Platonism, Stoicism, Aristotelianism, and (to a lesser extent) Epicureanism. The Socratic philosophical tradition has obviously exerted enormous impact on the Western mind, and it was Cicero who first integrated this into something like a coherent whole and considered its practical implications.
One might ask, If Cicero is so important for Just War Theory, why hasn’t his role been emphasized previously? To address this we must first recognize that today’s Just War Theory has evolved almost exclusively in the Christian tradition, and Cicero has, generally, been problematic for Christian writers. Dismissing the superficial and somewhat irrelevant complaints lodged against him (e.g., that he divorced his wife unfairly, or was either too eager, or too hesitant, to oppose the ambitious reforms of Julius Caesar), some Christian writers have found it awkward to recognize the virtue and lofty morality of the pagan, Cicero. As often happened, Cicero’s ideas were absorbed by Christianity, without due credit being given.
Not just Christian writers, but secular writers since the Enlightenment have also generally found little use for Cicero, perhaps because they have deprecated his strong religious orientation. A contributing factor is that one of Cicero’s most important political works, On the Commonwealth (De res publica) was lost for over a millennium until its rediscovery in 1820. The net result of these factors is that Cicero’s ideas on just war are much less known today than they deserve. A corollary of this, however, is that, as his contributions become better known, they will almost certainly achieve greater appreciation.
Before proceeding further we should perhaps back up the claim that Cicero’s writings include all the main elements of what today we call Just War Theory. This topic is broadly treated by John Mark Mattox in St. Augustine and the Theory of Just War, who supplies examples from Cicero’s writings of the specific principles of just cause, last resort, comparative justice, right intention, public declaration, proportionality, discrimination, and good faith. One may also easily identify these principles for oneself with reference to a single, short section, On Moral Duties 1.11.33 – 1.13.41. A fuller treatment of Cicero’s just war principles and theory, however, rightly deserves a dedicated article or book.
A Modern Foundation?
As already suggested, precisely because Cicero’s just war writings have been neglected by both Christian and modern writers, his works now offer the general advantage of a fresh perspective with many unique ideas. We may point to several specific examples of this, as described below.
The similarities between Cicero’s Rome and today’s United States are numerous, striking, and important. Like today, Cicero’s times were ones of immense cultural and political upheaval. Rome was emerging as something like an unrivaled global super-power. The Roman military machine was unparalleled in technological sophistication. Like today, imperial expansion was judged as an economic necessity. But also like contemporary America, Cicero’s Rome was marked by a distinct sense of exceptionalism, and a conviction that imperial ambitions were not entirely selfish. That is, they were partly justified (or perhaps rationalized) as a humanitarian and mutually beneficial attempt to unite all nations in a single, civilized community, where Rome was only a ‘first among equals’.
Not only was Cicero an experienced politician himself, but the work that contains the essence of his just war theory, On Moral Duties, was written specifically as a long letter of advice to his son. Cicero had every reason to expect his son would, like him, one day reach a position of leadership (the younger Cicero did, in fact, later become consul). Cicero thus imbued this work with the kind of loving attention and inspired wisdom characteristic of a parent. It is a very practical and honest work.
These complex factors, when blended with Cicero’s characteristic warmth, kindness, humanitarianism and love of country, produced a highly nuanced just war theory, something we might call semi-realist in orientation, in contrast with the hard-line Realpolitik so typical today. For example, at the same time Cicero can regret as inhumane and unnecessary the Roman destruction of Corinth, yet accept as necessary (and, hence, just) the similar razing of Carthage. The difference was that Carthage was a genuine threat and (in the Romans’ eyes) a brutal enemy, while Corinth was merely a potential threat to Roman hegemony.
Last, we must give special attention to the distinctly religious orientation of Cicero’s works. Modern cultural commentators have pointed to the desirability of developing a non-sectarian spiritual framework for understanding and coping with the problems of the modern world. Ideally such a framework should be compatible with basic religious beliefs common to all religions, and also congenial to secular institutions like governments, public universities, etc. Cicero’s just war theory, along with the rest of his ethical writings, is firmly rooted in Platonic-Stoic religious ideas and virtue ethics. In particular, it is wedded to Stoic Natural Law theory; this holds, basically, that all that happens in the world is orchestrated by a Divine Intelligence, and that both justice and personal happiness are achieved by acting in concord with this plan. Failure to do so – for example, to wage war unjustly – must necessarily meet with divine disapproval and corrective punishment. This provides an additional incentive for nations to act justly. Importantly, this framework establishes a basis for judging an action moral or immoral that is absolute, not relative or merely based on expedience or utility. Indeed, one of Cicero’s main philosophical achievements is to drive home the point that (in war, as generally), what is immoral can never truly be expedient or advantageous.
A second, related legacy of Cicero’s Stoic leanings is his emphasis on cosmopolitanism. That is, for Cicero, all human beings, enemies included, are part of the human family, to all of whom we have strong moral responsibilities.
As part of a non-sectarian religious philosophy, Cicero’s just war theory is something that can be discussed and developed by members of all religions on an equal footing – something equally acceptable to Christians, Jews, Muslims, Hindus, Buddhists, Wiccans, New Age hippies, and agnostic theists alike. At present, any serious discussion of religious or spiritual moral principles by government officials, intellectuals, or public news media is a taboo. In consequence we have totally dissociated Just War Theory from spiritual and transcendental principles, which is both ineffective and absurd.
Let us, then, give Cicero’s just war theory a unprejudiced and thorough look. We may discover that Providence has, in his works, supplied many treasures.
Regrettably, the US government is continuing its shell game of distraction, disinformation, and shifting definitions to thwart any serious attempts to impose transparency on its drone killing campaigns in Pakistan, Yemen and Somalia. A good example is found in the headlines of Monday, May 21, 2012. One news story reported that several anonymous government officials disclosed (off the record) certain new regulations concerning selection of drone strike targets. The new regulations probably mean very little, since, as we shall observe below, targeted strikes of terrorist kingpins are relatively infrequent. But ironically, a second story summarized the latest brief issued by the CIA in its ongoing legal battle with the ACLU (the ACLU is suing, under the Freedom of Information Act, for the government to supply more information about drone strikes, including data on civilian casualties.) The gist of the CIA response is that, even though the existence of drone strikes is common knowledge, and the government informally acknowledges the strikes, it does not officially acknowledge them, and to do so would somehow jeopardize national security. So, in short, on the same day the government is both leaking carefully prepared propaganda about the strikes in an evident move to assuage public opinion; and also refusing to admit that the CIA conducts strikes in Pakistan or elsewhere.
In the face of such contradictory and confusing tactics, we, the American public have only one recourse: to doggedly pursue the truth, and to not cease asking questions until we are entirely satisfied with the answers.
We must begin with clear terms, and that is the purpose of the present article. Drone strikes, that is, the launching of explosive missiles from a remotely operated aerial vehicle, come in four varieties: targeted killings, signature strikes, overt combat operations, and covert combat operations. We shall consider each in turn.
- Targeted killing. This occurs when a drone strike is used to kill a terrorist whose identity is known, and whose name has been placed on a hit list, due to being deemed a ‘direct and immediate threat’ to US security. The government would like people to think this means these strikes target a terrorist literally with his or her hand on a detonator. But, in actuality, the only real criterion is that the government believes the target is sufficiently closely affiliated with terrorist organizations (e.g., a propagandist or financier) to justify assassination. This is likely the rarest form of drone strike. However it receives the most publicity, because the government likes to crow when it kills a high-ranking terrorist.
- Signature strikes. In signature strikes, the target is a person whose name is not known, but whose actions fit the profile (or ‘signature’) of a high-ranking terrorist. There is some ambiguity concerning the meaning of this term. Some use it in the sense just stated — i.e., a strike against an anonymous terrorist leader. Others use it more broadly to include killing of any non-identified militants, whether high-ranking or not. However from the moral standpoint it makes a major difference whether an anonymous targeted victim is a high-level leader, or simply an anonymous combatant. For this reason it is advantageous to restrict the term “signature strike” to the targeting of anonymous high-level leaders, and to assign strikes against anonymous non-leaders to the two further categories below.
- Overt combat operation. This category includes drone strikes conducted as part of regular military operations. These strikes are presumably run by uniformed military personnel according to codes of military conduct, and are, logically and legally, not much different from ordinary air or artillery strikes. As a part of routine warfare, such strikes are subject to the provisions of the Geneva Conventions. Three items of the Geneva Conventions are of special interest here: (1) strikes should occur only in the context of a legally declared war; (2) they should be conducted by lawful combatants (which, many experts believe, excludes use of non-uniformed, civilian contractor operators); and (3) standard provisions concerning the need to report casualties, especially civilian casualties, are in effect.
- Covert combat operation. Finally, there are covert combat operations. These, like the former category, are launched against usual military targets – e.g., any hostile militant, not just high-ranking ones. But why should these strikes be covert? The obvious answer is: to mask something shady. Covert combat strikes can evade all those irritating constraints on military tactics imposed by the Geneva Conventions, International Law, public opinion, and basic human decency.
The specific terms used above to distinguish these four kinds of strikes are admittedly arbitrary, and perhaps some other nomenclature would be more advantageous. But we need some fixed set of terms to refer to these fundamentally different kinds of strikes. Without such terms, the US government will continue to have its way by relying on public confusion and terminological sophistry. For example, if there is only a single generic term, the government may issue a claim such as “drone strikes comply with international law.” This is perhaps technically true for, say, overt military drone strikes, but it is not true for signature strikes. With more precise terms, it would be more difficult for the government to mislead the public.
The last two categories of strikes correspond to what (according to the New York Times) the Department of Defense calls TADS, for Terrorist Attack Disruption Strikes. This term is a misleading euphemism, however. It invites the interpretation that such strikes aim to disrupt potential terrorist attacks on the US. But what these strikes actually seek to counter are things like cross-border raids from Pakistan to Afghanistan, attacks on supply lines, militant engagements with US forces, and actions of insurgents within their own countries.
Statistical tabulations compiled by the Bureau of Investigative Journalism and other sources show convincingly that most strikes in Pakistan must belong to the last category, covert combat operations. The sheer number (300 strikes, with thousands of casualties) rules out targeted killings and signature strikes: there simply aren’t that many high-level terrorists. What seems much more likely is that the US military feels the need to attack Taliban fighters within Pakistan – both to prevent Afghan Taliban members from hiding in Pakistan, and to counter strikes by the Pakistan Taliban and affiliated groups on NATO supply trains.
This, of course, is completely illegal, inasmuch as the US is not at war with Pakistan, or, for that matter, with the Pakistan Taliban.
“But”, drone strike zealots will plead, “what if we have the permission of the host government to conduct strikes in their territory?” This is bogus logic to begin with. Suppose some brutal dictator gives the US permission to launch drone strikes against innocent civilians in his country? Would that permission somehow make the strikes just and legal? And in any case, what good does such permission mean if it is not public, not acknowledged by the host country?
What really appears to be going on in Pakistan is this: the US military in Afghanistan has a decided military interest in launching combat operations against the Pakistan Taliban. However, this is illegal. Meanwhile, conservative factions of the Pakistani government would love to see the Pakistan Taliban eliminated. Unfortunately, the hands of this faction are tied by an uncooperative and unreliable military, and by other powerful Pakistani factions that are not so interested in seeing the Taliban destroyed, and certainly not at the price of trashing national sovereignty.
The solution is obvious. The Pakistani conservatives give a wink and a nod to the US to do the dirty work. “You launch the strikes, then we’ll officially disapprove of them.” This works until the toll of innocent civilians killed by the strikes becomes too great, and pressure mounts on the Pakistani government to denounce them. But, as modern politicians understand so well, the public has a short attention span. All that need happen is for the strikes to subside for a few weeks until the anger abates, only to begin again.
To summarize, the US government thus far has promoted and capitalized on public confusion about the nature and purpose of drone strikes. Most strikes in Pakistan and Yemen are likely covert combat operations. The government, however, would gladly have the public believe these are targeted killings and signature strikes against high-level terrorists. As covert combat operations, the strikes are illegal under international law, and extremely harmful to US dignity and security. Further, unlike targeted killings or signature strikes, which might potentially prevent a terrorist act, collateral civilian damage of covert combat drone strikes is unacceptable.
John Uebersax is a psychologist, writer and former RAND Corporation military analyst.