Review of War and Ethics

I found Nicholas Fotion's book War and Ethics: A new just war theory a bit confusing. The book itself is well written and engaging, but I had assumed - because of its title that it would present a Just War Theory (JWT) that was different from the old one. The old JWT is, on my view, very out of date and thus I was looking forward to a new theory about how to morally assess a war. In some sense it eventually does present a new theory, but I was left somewhat baffled about what the new theory was. I'll explain.
Fotions's book does not exactly critique the standard Just War Theory (JWT). A critique of a philosophical theory shows how the theory's premises are in some way mistaken or lead to counterintuitive conclusions. Fotion's tactic is to show that the theory's premises are not used by the people who should use them.

Chapter One is an introduction to the idea that we take some principles or rules of ethics as accepted by most (1-2). Chapter two is an introduction to (what I call) the main dogmas of traditional JWT. These are the familiar restrictions on war that force one to invoke a just cause, competent authority, reasonable chance of
success, proportionality, discrimination, etc when entering into or fighting a war. Chapter three is called "Objections to JWT", and this is the part I found strange. There are four objections presented: 1) Nations do not employ JWT. 2) Nations hide behind JWT to justify their actions, not to attempt to use its principles. 3) JWT is plastic enough to be used to justify almost any side of an argument about just war. 4) JWT is too idealistic to be useful (25-27). These are interesting objections, but none of them are, except perhaps the third, objections to the theory. The theory is a normative theory, it tells us how one ought to behave. The objections mostly claim, in some way, that people do not in fact behave in the way the theory says they should. I suppose that if too few people behave in
accordance with a theory about how one ought to behave, and too few people think the theory is practical, one ought to have problems with the theory. But we do not find many philosophical arguments that point to all the thieves in all the prisons as proof that the "theory" that one ought not to steal is false. After all, one can claim that a complete prohibition against stealing is not practiced, not realistic, mostly used by people to justify why others shouldn't steal from them. . .

A counterargument to a normative theory is to show that one of its principles are counterintuitive or perhaps that the theory is somehow inconsistent. To show that something is not used is not to show that it is wrong. It is merely to state an empirical fact about the nature of some humans. That tells us little about the theory itself. But let me resume the discussion of the book itself.

Chapter four superficially analyzes a few "easy cases" of just war theory. That is, Fotion tells us that Germany was in violation of some Just War principles when she invaded Poland and when she conducted operation Barbarosa; and Japan was in violation of JWT when she invaded China in 1937 or attacked Pearl Harbor during WWII. I am not sure what this tells us about just war though, except that there is some matching up between the fact that many of us judge one side of a war to be bad and the fact that they violated some of the just war principles. Moreover, on Fotion's objections, Germany didn't seriously consider JWT when attacking (a point he later takes up) and I would doubt many people in Japan would have heard of JWT at the time - it is a set of dogmas that originates in Christian ethics and Christian thought was not widely known in Japan at the time.
The other case Fotion discusses under the banner of "easy cases" is the case of the Korean War. He judges the North Koreans to be the aggressors who started the war without a just cause (50). But then four pages later he makes the case that China, entering the Korean War to help North Korea, appears to have met the principles of JWT because their cause was just since they were helping an ally (54). This is on the one hand very counterintuitive but also rather interesting. If
one agrees with both of Fotion's assessments, then there is something counterintuitive about a pair of allies on one side of a war, one who is just in fighting it and the other who is not. On the other hand, if this can be the case, it is certainly worth exploring. But Fotion is content to point out that North Korea was unjust and China probably was just. But, under the heading of "hard cases" a few pages later Fotion proceeds to claim that Serbia's allies were unjust in helping Serbia fight World War I because the commitment to help an ally does not apply when the ally is the aggressor (60).

As an aside, in many cases Fotion takes care to point out that some of the principles of JWT were satisfied by one side of the conflict. But to my mind, it is does little to give me faith in the theory to tell me that Nazi Germany was a legitimate authority, so at least the Germans met one condition of the theory whilst invading Poland. Or even worse, Fotion points out that that at least Germany had a
reasonable chance of success when they were fighting Poland. Again, how is this supposed to show that Standard JWT is worth anything? So much worse for JWT, I say.

Moreover, Fotion keeps saying that "JWT can deal with" certain kinds of cases (e.g., 64). By this he appears to mean that if you break down the cause of a war into simple categories like "country X was the aggressor" or "country Y had a reasonable chance of success" then you get an answer about who was unjust and who was just. But a theory "dealing with a case" does not mean that you get an answer for each case, but rather that you get a good answer for each case. Fotion does nothing to show for any case that his answer is better than any other alternative. His theory can produce any answer and he would still be able to claim that JWT "deals with it".

What he might mean is that most wars can be described as having a clear aggressor and a clear victim or clear authority or not. But that hardly invokes our commonsense notion of justice. Looking at the hard cases we are still not given much insight into how JWT is supposed to work. A hard case is apparently one in which the facts are simply not clear. In Kosovo in 1999 it was actually unclear
to most observers how many people were killed when the Serbs counterattacked against the Kosovars after the Kosovars initiated actions aimed at ethnically cleansing the Serbs (66). But again, the facts may be unclear, but how does that impact the theory? Would it make sense to argue that frogs are a hard case for the theory of
evolution because they are hard to catch?

Fotion is to be admired for his treatment of the Iraq war - the final hard case. As we learn at the end of chapter 6, for reasons he does not explain he believes that the current Iraq was started unjustly. But in chapter 5 he rehashes in the most short and superficial terms liberal boilerplate arguments against the war: It was a
neo-conservative plot, there were no serious humanitarian issues, and no weapons of mass destruction found. Therefore the war was unjust. QED. Alone this would make him a run of the mill liberal pundit, and not a very good one at that. But chapter 6, despite its ending on an unsupported negative judgment about the justice of the war, is dedicated to explaining how the mere few paragraphs explaining that there were no WMDs found in Iraq, is simply an inadequate way of making a reasonable judgment about a war. The war was started for a wide range of reasons and some of them have some moral merit. Alone, most of the reasons do not justify going to war, but collectively, they may even add up to a compelling case for some. Pedagogically, there is great merit in showing 1) that it is rare that a case for or against a just war can be made in a mere few paragraphs; 2) that is is not only
the big reasons that count. The fact that Saddam Hussein did not fire a nuclear weapon at the United States, does mean that there can be no case made that the US was still justified in attacking him.

Chapter 7 continues on the theme of explaining that JWT is inadequate. However, by "inadequate" Fotion usually seems to mean that a superficial analysis will not do and what is really required is a more nuanced look at the causes of a war. The more nuanced look will often show that the superficial look was just quot;inadequate". But when we take a more nuanced look we see what appears to be a counterexample to some principle or other of JWT. So Fotion claims that JWT needs some kind of exception. For example, Castro didn't look like he had a
chance of success, so we gerrymander Castro's rebellion in to the kind that does not need a good chance of success. Fotion does not tell us that it might just be the case that Castro was unjust because he didn't have a good chance of success. Then again, Fotion, like us, takes it for granted that Castro, in actuality, did succeed. So Castro's chances of success might not have actually been low enough to warrant the exception in the first place and hence our intuition that it is worth making it for this case.

Similarly for proportionality: sometimes we are told that it is "the nature of the beast" (91). If that counts as a good excuse, so does anything. After all, lots of things are the nature of war, and the goal of JWT is not to tell us the nature of war, but rather to strictly delineate what can and cannot be done in the context of entering or prosecuting a war.

Nonetheless, these sorts of exceptions form the heart of his "new just war theory". Fotion's suggestion is that there is standard just war theory (JWT-R) that be kept in place for regular conflicts, and a second just war theory (JWT-I) that be emplaced for irregular conflicts. Those are the conflicts that typically involve "rebels" or irregular fighters who fight symmetrically. JWT-I allows for different sets of rules to apply for different sides so that, for example, the just cause restrictions are relaxed in the case of smaller groups of rebels who have a legitimate grievance against the larger entity (e.g., a nation-state) and the discrimination restriction is relaxed for an entity like a nation-state who is fighting a group with no uniform that looks like any other group of civilians.

I am not completely sure what the new version of JWT actually does beyond saying that our judgments about war are sometimes different from what JWT says they should be, so we come up with a new version to JWT to accommodate this new one. So in case the some aspect of JWT does not seem to apply, you have JWT-I that does. But JWT-I is just either a set of exceptions to JWT or worse, it is the opposite, assuring us that one of them will give us the judgment that we want. While I do not like this, my bigger problem with the book still rests on the constant focus that Fotion places on the fact that JWT is worthwhile because it is so often invoked and the biggest threat to JWT is that it is not invoked often enough. I still do not understand how that is a threat to the theory. I suspect that it is not invoked as much as we would like for a number of reasons. First, it relies on categories of war that are no longer applicable. It is the same reason we do not invoke Sun Tzu often in addressing the nature of war - because his work is obsolete. He is quotable, but not very informative. Also, JWT is very Western. Moreover, as I mentioned above, it is Christian. Fotion's discussion of the conflict in Sri Lanka in terms of JWT is odd precisely because it would probably be very foreign to all participants: one side of which is Hindu and the other which is Buddhist. Foisting these odd categories of proportionality, discrimination, legitimate authority, etc on places that have no such concept is akin to buying real estate from peoples who have no concept of ownership of land - it just makes little sense to them. It is a paragon of cultural ethnocentrism to expect them adhere to it.

But nonetheless Fotion's concern to prop up JWT is admirable and his efforts heroic. I would prefer to see a good defense of the dogmas though. I find few of the "criteria" for a just war under the theory intuitive and would never invoke it unless I was attempting to convince someone who could be made to believe that those criteria are important. And at the end I am not convinced that JWT stands or falls on whether it is invoked by the public any more than legal realism or legal positivism stands or falls whether the populace, criminals, politicians, lawyers, or judges invoke it. It is a theory that has merits and problems regardless of which are invoked and that is the standard by which it should be judged.