MA International Studies and DiplomacyInternational Security: 15PFFC016Lecturer: Dr. Rahul RaoTutor: Gonzalo Pozo

To what extent has the “war on terror” undermined just war norms in international affairs?

Olga Guerrero HorasStudent number 261969

Word Count: 4383 (incl. footnotes)

The political dominance of a state has always had an impact on the international order.

In the sixteenth century Spain redefined rules of territorial acquisition to promote its

territorial expansion and protect Spain’s power on the seas from other competitors1. In

the nineteenth century, Britain sought to preserve its advantage as a powerful state with

new and more favourable rules on piracy, neutrality and colonialism2. Hence

predominant states become the main drivers of the development of international law,

making use of the international legal order to stabilize and improve their position. That

international law becomes an “instrument of power and an obstacle to its exercise”3 is

certainly not a new issue.

Today, the presence of the United States as the single superpower in the international

community and the spread of the neo conservative doctrine have caused a shift within

the foreign policy framework. The security implications of the spread of terrorism,

weapons of mass destruction and religious extremism have been publicly acknowledged

and “war on terror” has been securitized4. After September 11, former President of the

United States, George W. Bush announced The National Security Strategy of the United

States of America, a new strategy to safeguard America’s position as a hegemon and the

security of its people. President Bush stated that: “We must be prepared to stop rogue

states and their terrorist clients before they are able to threaten or use weapons of mass

destruction against the United States and our allies and friends”5. Thereby implying that

the liberalist Just War norms that underpin the international system of law are being re-

evaluated and challenged by realist views calling for pre-emptive warfare as self-

defence and the rejection of international military laws such as human rights for

detainees6.

In order to consider the extent to which “war on terror” has undermined the Just War

doctrine in international affairs, I will begin by exploring the theoretical dimension of

Just War as a perspective to the ethics of war and peace. This will bring us to consider

1 Nico Kirsch, “International Law in Times of Hegemony: Unequal Power and the Shaping of the International Legal Order”,

European Journal of International Law 16 (2005), 382.2 Michael Byers, “Not yet havoc: geopolitical change and the international rules on military force”, Review of International Studies

31: S1(2005), 68.3 Nico Kirsch, “International Law in Times of Hegemony”,371.

4 For more on securitization of war on terror see: Ola Tunander, 'Security, Securitization and the War on Terror', presented at 9/11

Five Years After: Values, Risk and Identity in the War on Terror, PRIO, Oslo, 11–12 September 2006.5 The National Security Strategy of the United States of America. The White House: Washington D.C., September 2002.6 Quinn Newcomb, “Redefining the ‘Just War’ Doctrine: Implications of the New American Foreign Policy Framework’. Available at http://www.carleton.ca/e-merge/docs_vol5/articles/article_Newcomb.pdf

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the critiques from other international relations theories and non-Western political

norms. I will in turn consider the challenges “War on terror” poses to traditional Just

War norms such as self-defence, treatment of detainees and concepts of state-centrism

and political spaces and scales that become pertinent since September 11. Finally, I will

consider the impact that the US as a superpower has had over war norms and whether

there is scope for the development of new war norms in international affairs or if it is

best to “keep the rules in place and the powerful within the rules”7.

Just War

War is central to human history and politics. As President Obama remarked during his

Nobel prize speech: “War, in one form or another, appeared with the first man. At the

dawn of history, its morality was not questioned; it was simply a fact, like drought or

disease - the manner in which tribes and then civilizations sought power and settled

their differences.” Yet moral perspectives to the ethics of war and peace have long

questioned the nature, means and effects of war. Just War being one of them. It dates

back to Augustine in the late fourth century but other thinkers such as Vitoria, Suarez

and more contemporarily Michael Walzer have developed the Just War tradition8.

According to Just War theory “just war are limited wars, their conduct is governed by a

set of rules designed to bar, so far as possible, the use of violence and coercion.”9 In

other words, resorting to armed force can sometimes be morally justified. Furthermore,

Just War theory has penetrated the international legal system, legally justifying war.

This is not without critique from other ethical schools of thought and religious

traditions.

Just war theory

To explain the concept of a just war, we must realise that war is judged twice, thus its

moral reality becomes divided into two parts10. War is judged with reference to the

reasons states have for fighting prior to the outbreak (jus ad bellum) and also with

7 Michael Byers, “Not yet havoc: geopolitical change and the international rules on military force”, Review of International Studies

(2005), 70.8 Judith Lichtenberg. “Some Central Problems in Just War Theory”, in Just War and Jihad: Historical and Theoretical Perspectives

on War and Peace in Western and Islamic Traditions, ed. John Kelsay and James Turner Johnson (Greenwood, 1991),15.9 Martin Shaw, War and Genocide: Organized killing in Modern Society, (Cambridge: Polity Press, 2003), 27.

10 Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (Basic Books, 2000), 21.

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reference to the means used to fight in war (jus in bello)11. Such a division creates

independence between the legitimacy of war the conduct of war. Therefore, a war can

be fought unjustly and an unjust war can be fought justly12.

As Jus ad bellum concerns the justifications for waging war, it is mainly addressed to

heads of states. Although the criteria relating to the justification for war vary, there are

three classical conditions put forward by Thomas Aquinas. First of all, a just cause is

required for the right to self-defence, so that those who are attacked deserve such a

treatment13. Also, there must, as St. Augustine explained, be a proper authority since

“the power and decision to declare war should lie with the rulers”14, who are responsible

for extending a formal declaration of war. Furthermore, the only legitimate intention of

war is to secure peace and thus war should only be used as a last resort15.

The Jus in bello requires us to make judgements about the conduct in the mist of war.

For that there are several criteria to consider. According to the principle of

discrimination, because war is an act of government, there is an injunction to distinguish

between combatants and civilians at all times during armed conflicts. Non-combatants

and innocent people should not be harmed16. The principle of proportionality establishes

that the means used in fighting should be proportional to the end war seeks to achieve,

furthermore, soldiers should avoid forbidden weapons and evil means such as rape,

poison or ethnic cleansing17. Finally, unconditional surrender, reprisal or the complete

obliteration of the social or political institutions are considered unreasonable according

to the principle of limited objectives18.

A third category has been developed in Just War theory regarding the justice after war

or jus post bellum. Orend has put forward several principles: the principle of

discrimination, which calls for the distinction between different participants of war

(soldiers, politicians, civilians) to remain when punishment is to be meted out; the

11 Ibid, 21.

12 Ibid.

13 Thomas Aquinas, Aquinas: Selected Political Writings, ed. A. Passerin d'Entrèves. Trans.: J. G. Dawson. (Blackwell's Political

Texts: B. Blackwell, Oxford, 1948), 80.14

Quoted in: Thomas Aquinas, Aquinas Selected Political Writings, 80. 15

Thomas Aquinas, Selected Political Writings, edited (Oxford: Blackwell, 1959), 80.16

John F. Johnson, “Can War Be Just?”, http://www.mtio.com/articles/bissar96.htm.17

Ibid.18

Ibid.

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respect the rights or traditions of the defeated deserve; the proportionality of the terms

of surrender; and the need to rehabilitate the aggressor19. It is important to note that

some of the claims developed within this category are new and highly controversial.

The Just War criteria whereby Christians predicted the justice of warfare, as developed

by Augustine and Aquinas has become highly influential. It has come to dominate the

moral discourse of war but also the international legal framework through its inclusion

in the United Nations Charter and the Geneva Convention. When the United Nations

was created in 1945, Article 2(4) in the Charter asked states to “refrain in their

international relations from the threat or use of force against the territorial integrity or

political independence of any state, or in any other manner inconsistent with the

Purposes of the United Nations”20. The prohibition of use of force can be overruled in

the case of self-defence (Article 51) and in the case of threat to peace, breach of peace

or act of aggression (Chapter VII).21 These exceptions are clearly an influence of the

Just War dialectic, making the use of military force both legal under international law

and legitimate (universally accepted).

Furthermore, the ideology of jus in bello has framed the Geneva Conventions (the 1st-

4th). These agreements, based upon the 1907 Hague Convention Respecting the Laws an

Customs of War on Land, codify restrictions on war related to the treatment of prisoners

of war, the alleviation of suffering of the wounded combatants in the field or at sea and

the protection of civilian persons during war22. Thus, Article 13 provides that Prisoners

of War “must at all times be protected, particularly against acts of violence or

intimidation and aginst insults and public curiosity”23. This is reinforced by Article 14,

which states that prisoners of war “are entitled in all circumstances to respect for their

persons and their honour”24.

Critique to Just War

19 Stanford Encyclopedia of Philosophy, “War”, http://plato.stanford.edu/entries/war/. See B. Orend's “Justice After War” for more

on Jus Post bellum.20

Gareth Evans, “When is it Right to Fight?” Survival 46:3 (2004),60.21

Ibid.22

Geneva Convention, The Legal Information Centre, http://public.getlegal.com/legal-info-center/international-law/geneva-convention. 23

Michael Byers, “Not Yet Havoc”, 65.24

Ibid.

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Nevertheless, the ubiquity of Just War theory has been highly contested. Realists,

pacifists and non-Christians thinkers remain sceptic about the moral legitimacy the

tradition allows.

Realists find no place for law and morality within war, as war goes beyond moral

judgment25. They are defenders of the Inter arma silent leges, ie. in time of war the law

is silent 26. In response to this, Walzer has argued that the “moral posture of mankind”27

is imbedded in human beings and the language we use to judge war is moral in itself28.

Moreover, the realist perspective calls for war in response to aggression, which is in line

with Just War thinking, but then the problem remains to define “aggression”.

On the other hand, the pacifists do find moral concepts useful for determining whether a

war is just, but war will always be wrong and never justified as a solution therefore

arguing for non-violent defence29. Clearly Walzer opposes this way of thinking which

does nothing against the aggressors as entails no defence at all30. He reconciles pacifism

and Just War by stating that “the restraint of war is the beginning of peace”31.

Finally, I believe it is important to remember that Just War theory, as well as most of

the alternative moral perspectives discussed, provide a Western understanding of the

political use of violence. In order to “fight” terrorism and to provide a valid universal

legal framework, Islamic norms of jihad and shahadat have to be taken into

consideration. Western and Islamic norms of violence share principles of

proportionality, moderation, last resort and self defence. They also share norms

regarding fighting behaviours32. This is not to justify terrorism or extremist ideas but to

realise that “by emphasizing the similarities in norms between the two views, a more

equal and balanced approach toward eliminating human tragedies that result from

political violence can be formulated.”33

25 Michael Walzer, Just and Unjust Wars, 3.

26 Ibid.

27 Ibid.

28 Ibid.

29 Stanford Encyclopedia of Philosophy,”War”, http://plato.stanford.edu/entries/war/.

30 Michael Walzer, Just and Unjust Wars, 329- 332.

31 Ibid, 335.

32 See: Adam L. Silverman, “Just war, jihad, and terrorism: a comparison of Western and Islamic norms for the use of political

violence”, Journal of Church and State 44(1): 91 (2002).33

Adam L. Silverman, “Just war, jihad, and terrorism”

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‘War on terror’ as a challenge to Just War

Yet the critiques to Just War theory do not only stem from alternative theoretical

perspectives. The September 11 attacks have marked a turning point in history and in

security studies. The presence and attacks of terrorist groups, which do not fit the

categories of polities, states and nations that Just War Theory dealt with, question the

contemporary validity of Just War theory34. In these lines of thought, President Bush has

declared “global war on terror is a different war than any our nation has ever faced”35.

As a result, the American foreign policy has become enshrined with a more realist and

unilateral perspective and the laws of war have been scrutinized36. Several categories

such as the legitimacy of torture, pre-emptive use of military force, the role of the

United Nations are now being questioned.

The concept of ‘war on terror’ extends “beyond the current armed conflict that arouse

out the attacks of September 11, 2001, and embraces all facets of continuing U.S efforts

to bring an end to the scourge of terrorism”37. It has given rise to a debate about the

“exceptionality” of the situation. Given that such a form of violence does not fit into the

existing legal framework and multilateral security order, it has began to question the

global security landscape38. Discourses of barbarism and civilisation have been used to

distinguish between ‘our enemies’ and ‘us’39. President Bush has referred to ‘war on

terror’ as the “the world’s fight. This is civilization’s fight40”. Such rhetoric do not just

limit the scope of laws of war when dealing with ‘barbarians’ but also established a

Western superiority. As reflects Keegan’s remark, “This war belongs within the much

larger spectrum of a far older conflict between settled, creative productive Westerns and

34 T. Brian Mooney. “Just War and Terrorism in Responding to Terrorism”, Just War and Jihad: Historical and Theoretical

Perspectives on War and Peace in Western and Islamic Traditions, ed. John Kelsay and James Turner Johnson (Greenwood, 1991), 220.35

Helen M. Kinsella, “Discourses of difference: civilians, combatants and compliance with the laws of war”, Review of International Studies 31: S1 (2005), 51-70.36

Quinn Newcomb, “Redefining the ‘Just War’ Doctrine: Implications of the New American Foreign Policy Framework or Just ad bellum to Jus ad Bush: Unleashing the Dogs of War”, www.carleton.ca/e-merge/docs_vol5/articles/article_Newcomb.pdf, 2.37

National Strategy for Combating Terrorism (National Security Council, 2006), http://hosted.ap.org/specials/interactives/wdc/documents/wh_terror060905.pdf38

Jef Huysmans, “International Politics of Insecurity: Normativity, Inwardness and the Exception”, International Security 37:1 (2006), 13-14.39

Helen M. Kinsella, “Discourses of difference”, 165-166.40

“President’s Remarks to the Nation”, http://www.whitehouse.gov/news/releases/2002/09/20020911-3.html.

7

predatory, destructive Orientals41”. Furthermore, it allows the United States to legitimise

the so-called “exceptionality” of the circumstances, non-complying with some of the

law of war.

There are certainly some difficulties “war on terror” encounters in making its war a just

one following just ad bellum and jus in bello criteria.

Within the just ad bellum norms, the first problem concerns the lack of a proper

authority against which to declare war, as terrorist groups are not a political entity. The

state-centrism of just war theory can grant those fighting the ‘war on terror’ the sense

that the non-territorialized ethical codes of just war theory cannot be the frame of

reference42. This explains the tactic that the United States followed after the September

11 attacks. They declared war against terrorism but given the global scale of this, they

narrowed it down to the Taliban, who were to blame for supporting Osama Bin Laden,

other terrorist attacks and were a threat to the stability of Afghanistan43. By focusing on

the Taliban of Afghanistan, a territorial space was found and the attack was justified44.In

addition, the authority of a state to declare war on another is now restrained by the

overarching authority of liberal international institutions such as the United Nations.

Anyhow, as ‘wars on terror’ against Afghanistan and Iraq have proven, a coalition of

states lead by the US can use international organisations and bypass them as they will45.

These actions also set precedent, which will later enable them to invoke support for less

clear cases46.

The second objection to Just War theory results from the conception of the right to self-

defence included in the doctrine. The case of ‘The Caroline’ in 1837 established the

criteria of necessity and proportionality of self-defence, later included in the UN

Charter47. According to this, a state can resort to self-defence if subject to an ‘armed

attack’ although it would need to report its intention to the Security Council and the

41 John Keegan, “In this war of civilisations, the West will prevail”, Daily Telegraph, October 8, 2001.

42 John Williams, “Space, Scale and Just War: meeting the challenge of humanitarian intervention and transnational terrorism”,

Review of International Studies 34:4 (2008), 596.43

Michael Byers, “Not Yet Havoc”,57.44

Brian Mooney, p. 5745

John Williams, “Space, scale and just war”,597.46

Michael Byers, “Not Yet Havoc”, p58.47

Ibid

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right to respond finishes once the Council takes action48. However, when a terrorist

attack has already been committed, is military action against the perpetrators of the act

really in self-defence?49. It resembles more an act to punish than to repel. Furthermore,

the rules regarding pre-emptive self-defence are quite ambiguous. The Caroline criteria

declared that “pre-emptive action is justified if there is a necessity on self-defence,

instant, overwhelming, leaving no choice of means and no moment of deliberation”50.

This has been stretched and pre-emptive warfare was included in America’s National

Security Strategy: “We must be prepared to stop rogue states and their terrorist clients

before they are able to threaten or use weapons of mass destruction against the United

States and our allies and friends”51.

Challenges also arise against the jus in bello norms. In a “global battlefield”52 it

becomes harder to establish the categories of combatant or non-combatant and thus to

comply with Articles 13 and 14. Captured combatants can be granted protection under

Prisoner of War status if they are captured whilst under command, carrying their arms

openly and wearing a distinctive emblem53. Nowadays, this right is hindered by the lack

of uniforms of both Taliban soldiers and US soldiers on special missions. They are not

entitled to the Prisoner of War protection if they are not wearing a uniform54. Moreover,

a violation of prisoner’s rights against detainees in Afghanistan, Iraq and Guantánamo

Bay has been commited55. Hundreds of prisoners, considered as ‘unlawful combatants’

have been held incommunicado and subjected to torture56.

The analysis provided illustrates the overall perspective of the complex and dynamic

ways in which ‘war on terror’ can weaken the fundamental pillars of the Just War

dialectic. It has allowed us to reflect upon the flaws of the legal framework when

dealing with contemporary issues. ‘War on terror’ has raised questions about traditional

48 Ibid 52.

49 T. Brian Mooney. “Just War and Terrorism in Responding to Terrorism”, Just War and Jihad: Historical and Theoretical

Perspectives on War and Peace in Western and Islamic Traditions, ed. John Kelsay and James Turner Johnson (Greenwood, 1991),229.50

Michael Byers, “Not Yet Havoc”, 59.51

Quinn Newcomb, “Redefining the Just War doctrine”,2.52

John Williams, “Space, scale and Just War”, 597.53

Michael Byers, “Not Yet Havoc”, 63.54

Ibid, 63-64.55

Ibid, 64.56

Quinn Newcomb, “Redefining the Just War doctrine”,14.

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state-centric norms of war, called for pre-emptive self-defence and even lead to the

violation of basic human rights of detainees. As the international scholar John Williams

stated: “Our political ethics, including the ethics of war, are under renewed pressure and

in need of renewed innovation”57.

Have Just War norms changed as result of ‘War on terror’?

That ‘war on terror’ has overstretched just war norms is undeniable. However, the

question of whether Just War norms have actually changed as a result of ‘war on terror’

remains. As a hegemon, the United States faces a trade-off with the existing

international laws. It relies on the compliance of those norms by other states, yet these

norms sometimes bind their own interests58. However, September 11 provided the Bush

administration with an excellent opportunity to modify certain rules by a growing

sympathy towards the US and the spread of fear of Islamic terrorism59. Let us now look

at the influence the US has had on Just War theory, to then consider the validity of the

legal tools and discuss the potential changes that could be made to reconciliate this

traditional framework with contemporary issues.

The United States have called for an adjustment of the right to pre-emptive war as a

result of current global threats60. The number of actions that preceded 2001 attack such

as the 1993 bombing of the World Trade Centre and the blasts at the embassies in

Nairobi and Dar el Salaam in 1998 were used to illustrate that action needed to be taken

to forestall further attacks61. Once war on Afghanistan was ‘justified’ by alleged self-

defence, they were able attack Iraq62. Although war on Afghanistan was called a

“triumph of Just War theory”63, the legitimacy and justification of war on Iraq are a lot

more doubtful.

57 John Williams, “Space, scale and Just War”, 600.

58 Michael Byers, “Not Yet Havoc”, 68.

59 Ibid..

60Quinn Newcomb, “Redefining the Just War doctrine”,4.

61 Ibid, 10.

62 Ibid, 11.

63 Noam Chomsky, “A just war? Hardly”, http://www.commondreams.org/cgi-bin/print.cgi?file=/views06/0510-33.htm.

10

Despite these efforts, the rules have proven quite resistant64. This is partly due to the

increasing complexity and multiple actors involved such as MNCs and NGOs and also

to the reluctance to changes, for fear of a less peaceful and secure outcome65. The

respect for international rules bears a sense of reciprocity whereby one will be respected

according to the laws66. Moreover, the fact that the United States actually tries to extend

these laws to justify ‘war on terror’ symbolises how the concept of just war is still

pertinent.

Possible reforms

The legal scholar Michael Byers has observed that the international community is

“unable to impose new rules on the single superpower, able to impede its law-changing

efforts, and fully aware that too much intransigence could carry a heavy price”67. It is

therefore worth considering the possible reforms of the international legal order that

have been suggested to create a new consensus.

First of all, there have been proposals to re-evaluate the concept of a threat to security

and to reconsider when should states go to war68. It has been argued that for a less state-

centrist just war, so that a broader agenda of security threats includes non-state actors

and attacks allowed by a state69. Moreover, a more dynamic solution that deals with the

larger scale of the ‘battlefield’ globalisation has allowed for has also been

considered70.Secondly, the new framework should also call not just for action but for

prevention71. Even if regulations can prevent proliferation, understanding why states

resort to terrorism and acquire weapons of mass destruction is key to promote non-

proliferation72. Finally, when reforming the international system, it has been argued for

the role of the exiting international authorities to be strengthened so that “ the task is not

to find alternatives to the Security Council as a source of authority but to make the

64 Michael Byers, “Not Yet Havoc”, 69.

65 Helen M. Kinsella, 175-177

66 Helen M. Kinsella, 175-177

67 Michael Byers, “Not Yet Havoc”, 70.

68Gareth Evans, “When is it Right to Fight?”, 71

69 Ibid.

70 See John Williams “Space, scale and just war”.

71Gareth Evans, “When is it Right to Fight?”, 72.

72Gareth Evans, “When is it Right to Fight?”.72.

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Security Council work better than it has”73. The legal tools within the Security Council

regarding the use of force, Articles 51 and Chapter VII, should remain and be applied.

They allow us to protect human, national and international security by responding

reactively, pre-emptively and preventively74.

Conclusion

Throughout this essay, I have attempted to explain the magnitude of the impact of ‘war

on terror’ has had on just war norms.

Just war has been the most influential moral perspectives to the ethics of war and peace.

I analysed the judgements the theory makes about war, discussing the norms regarding

the reasons for starting a war and the norms for fighting in war. I found that just war

criteria have exerted an enormous influence in the international legal framework of the

United Nations Charter and the Geneva Conventions. Through the studied literature, I

understand that the dominance of the just war dialectic is highly contested, thus I briefly

discussed realist and pacifists arguments and I highlighted the Western and state-centric

perspective of just war theory. I then went on to discuss the challenges ‘war on terror’

has brought upon just war theory, including the concepts of self-defence, pre-emptive

warfare and prisoners of war status. I found that ‘war on terror’ has overstretched just

war norms and managed to start an unjust and illegitimate war in Iraq. However, the

laws have remained quite resistant and the case for pre-emptive warfare is still

controversial. Finally, I concluded that potential reforms, such as reconsidering what

constitutes a threat and increasing efforts for prevention, could be introduced and that

the role of international organizations should remain strong.

From the analysis provided, I conceive the theory of just war theory to be currently

under pressure. Considering current challenges and making the theory, and thus the

legal tools, more suitable for contemporary issues such as humanitarian intervention and

‘war on terror’ are a good start. Balancing such a Western perspective with Islamic

norms of violence can also help towards global compliance with the norms. Pacifist

doctrines might ideally better, but at least just war theory and international norms

73 International Comission on Intervention and State Sovereignty (ICSS), The Responsibility to Protect, 2001, 49, http://www.iciss-

ciise.gc.ca. 74

Gareth Evans, “When is it Right to Fight?”,72.

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request leaders to justify their actions and establishes a moral leadership. In the words

of the Australian politician Gareth Evans, “Judging when it is right, and not right, to

fight is about the hardest call that anyone in high public office is ever called upon to

make. But the stakes are huge, and one has to nurture the hope that good leaders, if not

always born, can – with good process added to basically sound law and institutions – at

least be made”

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