Pedro Tiago Ferreira

 

[Versão em português / Portuguese translation]

 

The central thesis advanced by John W. Lango in The ethics of armed conflict is that, “in contemporary theorising about just war principles, there ought to be a paradigm shift from a state-centric approach to a cosmopolitan approach” (p. 7). According to the author,

 

a state-centric just war theory understands just war principles as primarily applicable to wars between states. More explicitly, according to a state-centric just war theory, the primary agents that apply just war principles are states (or rulers of states), and the primary targets to which those agents apply just war principles are states (or the military actions of states). (p. 6)

 

By contrast, “a cosmopolitan just war theory is a morally universalist theory” (p. 66) because “[j]ust war principles are moral principles” (p. 7). However, “the idea of cosmopolitanism should not be simply a moral idea. It should also be a political idea. Indeed, it should involve a conception of moral universalism, but it should also involve political conceptions of global governance and global citizenship” (p. 7) with a view to realize one of its fundamental purposes, namely “to save the peoples of the world from the scourges of all forms of armed conflict, both by morally constraining responsible agents from using armed force unjustly and by morally constraining responsible agents to use armed force justly” (p. 9). A cosmopolitan approach to just war theory is therefore superior to a state-centric approach inasmuch as it, unlike the latter, “is a sort of human security approach, because it prioritises the defence of individual human beings” (p. 202) over, for example, the national interests of states, which too often motivate their actions (pp. 9-10).

I believe Lango’s position to be meritorious in the goals it attempts to achieve and his arguments to be fundamentally sound. There is indeed an outdated flavour to state-centric just war doctrines, which basically reserve to states the right to wage war. Notwithstanding the ancient roots of cosmopolitan thought, which date back to at least Ancient Greece, a cursory overview of the philosophical texts that deal with the question of just war theory from that period to the present era reveals that cosmopolitan views never took hold in this field; the tenor of the overwhelming majority of such works is indeed state-centric, as war is traditionally deemed the sole province of the polis, the civitas, the kingdom or the state. More than a conscious decision on the part of political and legal philosophers, this stance actually reflects humankind’s prevalent thought of the last 2500 years, which can be summed up thus: war is a political problem which arises out of political disputes between political organizations. When Carl von Clausewitz, for instance, states that “war is not merely an act of policy but a true political instrument, a continuation of political intercourse, carried on with other means,” (Clausewitz 1989: 87) he has something like this is mind. Under this view, war is an instrument of political action because it is a tool available to political organizations for the settling of political quarrels. The fact that it is a highly destructive instrument, at least potentially, does not, in itself, make it something a-political, or beyond politics.

Lango’s cosmopolitan view does not necessarily upset the conception of war as a political instrument to be used by political organizations such as states, but it removes the notion that it is an instrument exclusively available to states. Under a state-centric view of just war theory, individuals or organizations other than states may not use force in order to achieve political goals, whatever they are. This means that insurgent groups, revolutionary or reactionary, terrorist networks and individuals are all classed together and dealt with under the applicable provisions of the criminal law of the states in whose territory they have employed force. In other words, state-centric just war theories have the effect of disallowing the application of just war doctrine both to the individual, considered in itself (i.e. as not part of state machinery), and to groups which are not states, thus labelling them all simply as criminals under the positive law. For Lango, this is unfortunate because “some uses of armed force are just, and some uses of armed force are unjust. The problematic of just war theorising is to formulate and support moral principles by means of which responsible agents can determine correctly whether a particular use of armed force would be just or unjust.” (p. vii) A responsible agent, however, need not be necessarily a state:

 

… who are the responsible agents? State-centric just war theories empower rulers of states as the morally right authorities for war-making. However, by signing the UN Charter, the 193 Member States of the United Nations have committed themselves to comply with it. In particular, according to Article 24, the 193 Member States of the United Nations ‘confer on the Security Council primary responsibility for the maintenance of international peace and security’. (p. 9)

 

Thus, under international law the Security Council of the United Nations is the primary responsible agent as far as the use of armed force is concerned; states are secondary agents. As “[j]ust war theory is a moral theory […], cosmopolitan just war principles ought to morally constrain the Security Council from authorising unjust uses of armed force.” Lango lays stress on cosmopolitan just war principles because “[b]oth the Security Council and individual states ought to be motivated basically by a cosmopolitan ideal of the equality of interests of every human being everywhere in the world.” (p. 10) Still, it is possible that,

 

in a particular case of armed conflict, the Security Council fails to act or acts wrongly. A cosmopolitan just war theory can acknowledge that the Security Council has the primary responsibility for security, without accepting a legitimate authority principle as a core just war principle. Accordingly, another main thesis is that there may be alternative agents that have secondary responsibility for security – for instance, regional organisations, ad hoc coalitions of states or the United States alone. (p. 10)  

 

Lango’s list of responsible agents, which is not closed, also extends to terrorist networks and revolutionary groups (p. 13). The author’s rationale to allow for such a heterogenous list of responsible agents for the use of armed force has to do with the fact that any individual, or group of individuals, has moral authority to judge whether to apply, in any given situation, the “received just war principles of just cause, last resort, proportionality and noncombatant immunity” (p. 12) because they

 

should be generalised, so that they are applicable to all forms of armed conflict. Accordingly, they would be applicable not only to interstate wars, but also to civil wars, armed humanitarian interventions, armed revolutions, counterinsurgency operations, counterterrorism operations, military operations by UN peacekeeping missions and so forth. (pp. 12-3)

 

To encompass terrorist networks in this list is, however, counterintuitive due to the way those groups operate. If, on the one hand, Lango is right in arguing that everyone, individuals, states or other organizations, is subject to just war theory and has the moral legitimacy to apply the received just war principles mentioned above, as well as others that may be important, on the other hand one cannot fail to notice that, were terrorist networks to apply such principles, they would, by definition, stop being terrorist, as the main feature of terrorism is the absence of proportionality in its actions and the intentional breach of the noncombatant immunity principle. In other words, terrorist groups that act proportionally and respect the immunity of noncombatants are not, in reality, terrorist.

There is, furthermore, one other aspect of Lango’s cosmopolitan view of just war theory that should be amended. Lango contends that “the set of core just war principles does not contain a legal authority principle” because,

 

[a]ccording to the autonomy principle, every human being, anywhere in the world, has the moral authority to decide whether [a] particular use of armed force is just. To decide that it is just, he or she has the burden of proving that it has a just cause, that it is a last resort, that it would be proportionate and that it would not grievously harm noncombatants intentionally. To decide that it is just, he or she does not have the additional burden of proving that he or she has the legal authority to decide whether it is just. (p. 194)

 

Though sensible in itself, this statement directly contradicts one of Lango’s early considerations in his work, quoted at the beginning of this review: “the idea of cosmopolitanism should not be simply a moral idea. It should also be a political idea. Indeed, it should involve a conception of moral universalism, but it should also involve political conceptions of global governance and global citizenship.” (p. 7) If cosmopolitanism is not only a moral idea, but a political idea as well, it should produce palpable effects in the world. In other words, it should not be merely a theory of judgement, but equally a theory of action. Being a political theory, cosmopolitan just war theory cannot satisfy itself with the assertion that “every human being, anywhere in the world, has the moral authority to decide whether [a] particular use of armed force is just.” This is certainly correct from a moral point of view, but cosmopolitan just war theory, stated in these terms, is a far cry from a political theory. Indeed, if all one can do is judge whether a specific instance of armed conflict is just, then this theory is no more than contemplative. In order to be a political theory, cosmopolitanism, both in general and as applied to just war theory, has to be a theory that permits one to act within the boundaries of the law. As it stands, individuals and groups besides the state have moral legitimacy to decide whether any given armed conflict is just, and presumably are morally entitled to intervene according to the postulates of just war theory, but it is illegal for them to do so.

The non-inclusion of the principle of legal authority in the set of core just war principles thus undermines Lango’s argument because it reduces it to a moral theory; if, however, cosmopolitanism should also be a political theory, then individuals and groups besides the state must have legal legitimacy to engage in warfare. Contrary to what Lango seems to think, the importance of the principle of legal authority has nothing to do with enjoying authority to decide whether a particular use of armed force is just. In this respect, the author is absolutely right in arguing that one does not need legal authority to make such a decision. One does nevertheless need legal authority to act once one has decided that it is morally permissible to engage in armed conflict. Otherwise, individuals and groups besides the state shall not acquire belligerent status, and states shall deal with them as criminals, stopping cosmopolitan just war theory from doing what Lango thinks it should do. Then, cosmopolitan just war theory must be labelled a moral theory, apt to judge right conduct, but not a political theory, as such theories are, among other things, theories about who can do what under certain circumstances.

In order to be a theory of action, cosmopolitan just war theory ought to include the principle of legal authority. This principle must, however, be altered; as it stands, it confers solely on states legal authority to wage war. Under a cosmopolitan view on just war theory, however, other agents, such as the ones in Lango’s list, ought equally to have legal authority to act. This means that the paradigm shift from a state-centric to a cosmopolitan approach which Lango advocates has necessarily to have legal repercussions; otherwise, it does not make sense to talk of such a shift, as it is not in the least controversial to grant that everyone is capable of judging whether a particular use of armed force is just. What is polemical is to argue that other agents besides the state ought to have legal authority to act because they are morally in the right. If, however, one is morally entitled to use force, there are no reasons to deny, in principle, legal authority to do what is right.

Just like one can use force in self-defence when the state cannot intervene in time to stop an injury, one can use force to assert one’s rights if the state is unable, or refuses to do so. In terms of just war theory, this simply means that individuals and groups besides the state ought to have legal authority to engage in warfare when the state that is supposed to protect them fails to do so, or outright attacks them. In an otherwise very good work, Lango should have discussed the nuances of a possible modification of the principle of legal authority, instead of merely asserting that one does not need legal authority to decide whether a particular armed conflict is just.

 

References

Clausewitz, Carl von. (1989). On War. (M. Howard, P. Paret, Eds., M. Howard, & P. Paret, Trans.). Princeton, New Jersey: Princeton University Press.