Review of Brian Orend's "The Morality of War"

OREND, Brian. The Morality of War. Broadview Press. 2006.

            Michael Walzer’s contribution to Just War doctrine is widely recognized today. I do not know if Orend was Walzer’s personal disciple, but he is certainly one of his most enthusiastic followers. Despite its tremendous relevance, Walzer’s work has lacked a full systematic organization. Orend’s book is a very successful attempt to organize the contents of Just War thinking. Thus, this book is structured very much as a textbook, ideal for college courses. Yet even if Orend shares Walzer’s views for the most part, Orend does express a few disagreements, builds a theory of his own, and offers his own judgment regarding specific cases of recent times. The result: a highly successful book, well-researched and well-thought.

I shall not attempt to summarize all the contents of the book. I agree with Orend’s views for the most part. He holds some controversial views (regarding preemptive strikes and humanitarian interventions), and I support those. I shall only try to highlight some of the points with which I would disagree, or at least, those for which I would require more elaboration.

My first disagreement comes with Orend’s views regarding the 1991 Persian Gulf War. Orend claims that Iraq’s invasion of Kuwait was unjustified. Part of the rationale offered by Saddam was Kuwait’s “slant drilling” across the border into Iraq’s wells. Orend claims that this allegation turned out to be false, and I agree.

However, in Orend’s view, even if the allegation were true, the invasion would not be justified, because demanding compensation would have sufficed. I agree that, before launching the invasion, compensation should have been demanded (this would fulfill the requirement of last resort). But, in the case that such compensation were refused, Orend seems to think that an invasion would still not be justified, for as Article 51 of the UN Charter states, wars are only justified as response to armed aggression. I think this standard is too high. If property is a right, then the violation of that right requires a response, and if non-armed options are exhausted, then an armed response would be legitimate. If, as Orend and other Just War theorists claim, the basis of a just war is to correct a wrong received, then “slant drilling” is indeed a wrong received, and it legitimates an armed response.

Orend shares Walzer’s view that the notion of “comparative justice” is incoherent. For them, a war is either just or unjust, and thus, whenever a combatant party in a war is just, its opponent must be unjust. I am inclined to disagree. There may very well be degrees of justice among parties in a war. There are, of course, wars in which it is easy to make up our minds. In World War II, the Axis were clearly the aggressors, the Allies were clearly justified in their intervention. But, this Manichean, black-and-white approach does not hold much water in various other wars. I, for instance, have not completely made my mind regarding the Israeli-Palestinian conflict, precisely because it seems to me that the complexity of the issue offers both sides a degree of justice. In the end, I would prefer to side with Vitoria, and allow the possibility that, indeed, all parties in a war may be partially right (t, and it may have to come down to decide who holds more justice in waging war.

Furthermore, there is a neglected aspect in Orend’s work: does the suffering of ius in bello violations offer a just cause for ius ad bellum, even if the sufferer were the initial aggressor? I am inclined to think so, yet Orend never really answers this question. Perhaps the Palestinians originally did not have sufficient cause for ius ad bellum (a debatable point, anyways), but the disproportionate response by Israelis and the violation of many ius in bello principles, it seems to me, does warrant legitimacy to the Palestinian side.

Orend also shares the traditional view that ius ad bellum requires a public declaration of war by a proper authority. I understand the historic reasons for this requisite (essentially, it is a means to prevent private warfare, and to fully acknowledge a belligerent state, so that rules come in effect). But, I think it is necessary to consider how much a public declaration spoils surprise tactics. Presumably, a just war would not really need the element of surprise, for just wars are always defensive, and inasmuch as they are defensive, the aggressor already knows what is coming.

But, as Orend reminds the reader frequently, just wars may also be waged to support an ally that has been attacked. Or, more controversially, Orend also accepts the legitimacy of preemptive warfare (under extreme circumstances). In these cases, surprise may indeed be a relevant tactical factor, and thus, the public declaration of war may spoil the whole purpose. Some further thought must be given to this issue.

Orend, along with Walzer, claims the Allies’ intervention was fully justified, as they met all the ius ad bellum criteria. I may have a small disagreement regarding Right Intention. Orend warns that this is a very tricky criterion, as we can never be inside someone’s head to judge subjective intentions. But, Orend still holds that intentions are morally relevant, and e can judge them through the observation of conduct. There may always be additional unrighteous intention in waging war, but if there is at least some measure of right intention, it shall be enough. I agree.

However, I disagree that, in World War II, the Allies’ intentions were as benign as Orend claims. Orend believes that the post-war reconstruction plans reveal that the Allies were indeed driven by right intention. But, at least in the case of America’s intervention, more attention should be given to the fact that, under Keynesian economics (the same paradigm that articulated the New Deal), America’s military campaign was a useful tool to boost the economy. Perhaps Roosevelt had all of this in mind. This, of course, does not make the war unjust, but nevertheless, we should not leave aside the fact that there may have been some unjust intentions.

Orend dedicates most of chapter 3 to argue in favor of the idea that there may be just wars waged against non-State agents. The State may legitimately wage war against terrorist organizations, or against States that, even if they are not direct aggressors, nevertheless sponsor terrorist groups. I agree with all of this. Yet, Orend neglects the rights of non-State agents to wage war against the State. Strictly speaking, the right of revolution is not part of the Just War doctrine. But, then again, the legitimacy of guerrillas should be considered. Orend briefly discusses the legitimacy of guerrilla tactics in the context of ius in bello, but some attention should also be given to guerrilla’s ius ad bellum.

This, of course, is a very complex issue. For, how exactly are we to ponder whether or not a guerrilla has the right to wage war against the State? Some guerrillas have not suffered direct armed aggression from the State. Yet, they still attempt to justify their insurgence on the grounds of social and economic oppression. Orend does discuss “Minimally Just Political Communities” to establish the legitimacy of States, but perhaps his criteria are not strong enough. Maybe some Marxist consideration should be given to this issue. Originally, for example, FARC guerrillas in Colombia attempted to justify their insurgence by claiming to suffer economic oppression in land grants, low wages, and so on. The Colombian State did not actually attack population directly, and under Orend’s criteria, met the requirements to be “minimally justified”. But, in Marxist reasoning, social injustice is itself a kind of aggression, and thus, offers a just cause to wage war against the State. Thus, any State with considerable social injustice (even if it is a liberal democracy) is not itself legitimate. At least some thought should be given to this approach.

  Orend also leaves aside the issue of the legitimacy of secession. I think this is a major omission, taking into account that, especially in the 20^th Century, most civil wars have been fought over secession. I tend to agree with plebiscitary theories of secession: whenever a political community manifests the desire to secede, secession must be granted. I thus partially disagree with Orend’s approach to the American Civil War. He claims that the Confederacy was the original aggressor (by attacking Fort Sumter), and that the South did not meet the requirements of a minimally just society, due to slavery.

As far as I can tell, the legitimacy of the Fort Sumter attack has not been settled among historians. Lincoln had clearly stated that he would not tolerate secession, so a threat from the Union was very plausible. In such a manner, the attack on Fort Sumter was a preemptive strike. Orend himself allows the legitimacy of preemptive strikes (it would remain to be seen, however, if the Union’s attack was indeed imminent). As for slavery, I agree that the Confederacy lost legitimacy in this war by upholding this institution. Yet, by the same token, the Union incorporated Maryland, a slave-holder State. It is not all that clear to me, then, that slavery is the ultimate measure of legitimacy in the American Civil War. Furthermore, the Union massively violated ius in bello principles. As I mentioned above, Orend does not tell us whether an unjust war may become just if the originally unjust party is victim of atrocities during the course of war. But, if that is indeed the case, then the Confederacy may have been justified in continuing the war.

Orend’s discussion of ius in bello coincides with much thinking in the Just War tradition, but I consider it necessary to at least challenge a few assumptions. It all amounts basically to the dispute between utilitarians and deontologists. Following Just War doctrine, Orend upholds the idea that civilians must never be directly targeted, there are some means mala in se (rape, torture, etc.), and so on. He, along with Walzer, allows for “supreme emergency” scenarios, when truly horrific regimes threaten the most basic measure of dignity: in those cases, ius in bello may be violated (Walzer and Orend agree that, so far, only Nazism has represented such a threat). But, when there is no longer such a threat, ius in bello must always be upheld. Thus, for Orend, the Hiroshima and Nagasaki bombings clearly have no justification.

Traditionally, the bombings have been justified by arguing that they saved lives (an invasion would have taken a larger number of lives). Walzer considers this is sheer speculation. I agree that, in the case of Hiroshima, it may have been speculation. But, it seems to me that counter-factual calculations need not always be speculative. When considering the risks of vaccines, we always ponder that, even if vaccines result in some deaths, more deaths would be brought about if vaccines were not administered. I do not see why we could not make the same calculation regarding wars.

Walzer and Orend still claim that, even if, indeed, there would have been more deaths with an invasion, this still does not justify the bombing of civilians. I think this view is open to criticism. Are we really willing to sacrifice more lives, just to keep some abstract moral principle? I, for one, am not so willing to do justice even if the heavens fall.

The same goes for torture. Orend emphatically rejects the legitimacy of torturing. But, Orend never considers the now famous ticking bomb scenarios: a terrorist knows the location of a ticking bomb that will kill thousands of people, but will not say where it is. Should we torture him in order to save lives? What about torturing his innocent son, knowing in advance that, with that kind of pressure, he will speak? I dare not go to such lengths, but some further thought should be given to the utilitarian challenge. Peter Singer, particularly, has made a strong point in favor of utilitarianism and against the doctrine of double effect, although, to the best of my knowledge, has not explored its implications in war scenarios.

In discussions of ius in bello, there are also some tricky cases that Orend fails to consider thoroughly, and I personally would have enjoyed knowing his opinions on these. There is a case famously approached by Walzer: French resistance guerrillas dressed as peasants attack unsuspecting occupying Nazi soldiers. Were these soldiers noncombatants, inasmuch as they were not put in combat properly? Similar questions arise: are ambushes out of bounds in ius in bello? There are conventions on the use of military uniforms, white flags, and so on. But, it seems to me asymmetrical warfare demands a reconsideration of all this. Orend rightly argues that the fact that a warring party may be weaker does not entitle to violate ius in bello. But, perhaps, if ius ad bellum is on a party’s side, and that party is itself the weaker one, then the legitimacy of alternative tactics should be reconsidered.

Orend’s special contribution is in his discussion of ius post bellum. Much of what he writes is praiseworthy. Yet, again, some questions are left unanswered. In his discussion of reconstruction, peace-settling and so on, he offers guidelines for victors assuming the victors were originally justified in going to war, i.e., the victors were the good guys. It seems to me this is not always the case. For example, Orend expresses some serious doubts about the just cause of the 2003 Iraq invasion. Yet, he offers guidelines for the role of American reconstruction in Iraq. Now, it seems to me there is a crucial difference between reconstructing a country while being an aggressor, and reconstructing a country while being a victim. Barack Obama clearly believed the war on Iraq was unjust (or, at least, he did not vote in its favor as a senator). Surely, when he arrived in power and inherited the consequences of Bush’s decision, his policies towards Iraq should have been different than if he had originally believed the war was just.

There are also other unanswered important questions in Orend’s discussion of ius post bellum. Above, I wondered whether being a victim of ius in bello violations provides a country with a new just cause to wage war, even if originally that just cause was lacking. Now I wonder something similar: if a peace treaty is extremely harsh, does the defeated country have just cause to wage war again? I would be inclined to think so. I do not think I would be too heretical if I argued that Hitler did have some reasonable demands taking in consideration the harshness of the Treaty of Versailles.

History, of course, is full of injustices. A relevant question is: when does it stop being legitimate to attempt to undo them? When does injustice simply become a fait accompli? Some thoughts on irredentism or territorial claims would have been welcome. I do not think Mexicans would be entitled today to reclaim California. But, it seems to me that Palestinians do have a high degree of legitimacy in their protest of the 1948 partition. And, this brings me back to ius ad bellum: I would not agree that a just cause is solely brought by armed aggression. My understanding of it is broader: just cause is more about the correction of a wrong received. An unjust colonial partition of a territory is not per se armed aggression, but it nevertheless provides a just cause for armed response.

Orend’s criticism of realism and pacifism is also praiseworthy. Yet, I would be more cautious in doing away with descriptive realism. Orend believes that human beings are genuinely moral, and there have been many cases where States pursue a moral course of action, even against their own self-interest. Orend’s favorite example is the elimination of the slave trade by the British: it clearly was not in their economic interests to do so. I would handle this example with greater caution. Adam Smith’s abolitionist argument, after all, was deeply utilitarian: slaves are a hindrance to capitalism, because they are not productive enough. Smith did not take much into account the fundamental moral reasons to oppose slavery. I do not know whose abolitionist views were more influential, Smith or Wilberforce’s. But, it does seem to me that, on a State level, genuine moral action is harder to find than in daily communal interaction.

As a citizen of the Third World, I am more suspicious of great powers’ abilities to suspend self-interest in favor of morality; in such a manner, I would not be so hasty to critique descriptive realism. Yet, I wholly agree with Orend’s critique of prescriptive realism, by invoking the need to overcome the naturalist fallacy: the fact that States are immoral does not imply that they should be. I should add that, by invoking a moral duty even if it is at odds with self-interest, it seems to me that Orend (and any critic of prescriptive realism) must eventually embrace some variant of deontological ethics. And, I am not sure a deontological ethic is compatible with metaphysical materialism. If there is moral duty beyond our sheer pleasure and self-interest, then that moral duty must be something additional to mere matter. At any rate, this does not concern Just War doctrine, but it is an interesting implication that could be explored in the future.