I noted in the previous essay that one of the justificatory catalysts for entering into war against an aggressor is retributive, the punishment of evil. This is not without controversy.
International Law is, often enough, particularly uncomfortable with the idea. It much prefers self-defense to be the primary—essentially sole—just cause for fighting. Allowance is made, under Responsibility to Protect and other frameworks for intervention, for something more than—though akin to—purely self-defense: the defense of other innocents elsewhere. In this, International Law is simply catching up with the classic just war tradition’s first cause for war—protection of the innocent.
One reason behind the general endorsement of self-defense even as the idea of punishing evil is prohibited hinges on the fact that, most often, self-defense is an immediate concern. It cannot wait. When the beasts are beating in your gates, even the most pie-in-the-sky idealist knows now is the time to drive them back. Punishment, however, is can include retributing wrongs already committed and not currently underway. So it enjoys a seeming lack of urgency. Other measures can, in principle—detractors say–be employed to rectify past wrongs. Punishment by force, then, smells not of justice but merely of the quid pro quo of retaliation. So, in 1993 when President Bill Clinton ordered the missile attack on the Mukhabarat—the Iraqi Intelligence Service—headquarters in Baghdad in response to the Mukhabarat’s attempted assassination of former President George H.W. Bush, the attack was condemned by some on the grounds that the assassination attempt had occurred more than two months previous. Clinton stood his ground and sought to justify the attack in the language of international law.
He would have done better to use just war language. The reason that the just war tradition—following Thomas Aquinas who followed Augustine—posits punishment of evil as a legitimate justification for war has much to do with the nature and consequence of evil and the regard the Christian ought to have for the good. The assertion is rather simple: when encountering an act of injustice, any act of injustice, the Christian, because of the dominical command of neighbor love, cannot avert his eyes. Because an evil act deprives some particular good of some measure of its goodness, love, because it is love, will hate both the act and the deprivation. Clear-sighted love, thereby, necessitates requiting injustice with some measure of retribution with an eye toward the restoration of justice. Retribution—payback—ranges in degree in correspondence to the offense along a spectrum from the simple expression of opprobrium to restraint to punishment to threat of force to lethal restraint. This is critical, in part, because retribution helps allow the vindication of the victims. Retribution says: “you went too far” and refuses to allow the injustice to pass without comment–or response. To not vindicate victims is to hold their value in contempt. This is not to say there is no appropriate place for mercy. But mercy must always follow judgment. Moreover, probably in most cases, mercy follows some recognition by the wrongdoer of their guilt. This should issue in their rejection of their wrongdoing, penance and restitution where possible, and by actions that render credible the hope that they have turned from their evil ways.
In the case of punishment under the guidance of just war, the nation taking retributive action will likely have one or more of three immediate objectives: 1) the punishment of private or particular individuals outside of their own nation; 2) the punishment of political or military leaders of another nation; 3) the punishment of another nation as a collective. Of course, the question of jurisdiction is important. By what right did President Clinton have for punishing the citizens of another nation who no longer threaten immediate harm? Here, I’ll name just two. The first is the basic responsibility a political authority has for protecting the order, justice, and peace of the political community over whom they exercise authority. For instance, in 1916 when President Wilson ordered General Pershing to lead a contingent of Marines into Mexico to punish Poncho Villa’s raid on Columbus, New Mexico, it can be credibly asserted that this punitive expedition was self-defensive in nature. It had as its first goal the capture of Villa—ending his ability to torment Americans living near the border. Additionally, Pershing’s efforts to seek, attack, and destroy Villa’s militia similarly served in the first place as a direct means of protecting Americans from further attack—dead men don’t launch cross-border harassments—and, in the second, of deterring other would-be militias from attacking the United States. Similarly, Clinton’s attack against the Iraqi intelligence community served to issue the same kinds of warnings. In this case, punishment and self-defense significantly overlap.
Incidentally, it will be worth noting here that given modern tendencies, there are some today who would push against calling actions such as Clinton’s launching of a few dozen Tomahawk missiles war. Such acts are not acts of war per se, but something else—call them, perhaps: force short of war. A niche is developing within the academic study of just war therefore that would analyze such actions under the rubric of jus ad vim—or, essentially, an analysis of “just force.” I don’t want to have that debate here. I’m content to follow the late UChicago political theorist Quincy Wright—who knew a bit about war—and his simple definition (or one of his definitions) of war as “an act or series of acts of violence by one government against another.” That definition allows the term “war” to capture a good number of things that that I’m perfectly happy to have the term capture.
The question of authority in international relations is exacerbated, of course, by the simple fact that—pace the United Nations—there is no “head” of the international community. The just war tradition understands war—in the manner in which I’m using the term—therefore, to be a paradigm case of iudicium cessans, or ‘judgment unavailable,’ a situation in which, as Oliver O’Donovan says in his magnificent The Ways of Judgment, “the appropriate judicial authority is unavailable or unable to function” and in which, therefore, “authority for judgment reverts to the holder of provisionary power…on the spot, who becomes, as it were, a primitive monarch…exercising all the powers of judgment necessary for the emergency.” TL;DR: self-help is the order of the day.
In sum: just war is part of a tradition of retributive justice. Punishment—retribution—is, properly understood, the proportionate and discriminate application of penalty against one to whom such penalty is owed. While the punishment is ideally aimed at restoration, the wrongdoer is not always amendable to correction. In such a case, the application of justice is a good sufficient to itself, especially in so far as it vindicates victims, rights wrongs, and develops in the punishing agent a love for justice.
The observant reader might now offer a challenge. While it might be clear how, say, a war launched against Hitler’s Germany could serve as an act of retributive justice in punishing Hitler and his regime of evil thugs, what are we to do about the simple German conscript who is no ideologue, who has no love of the Nazi party, and who would really rather be anywhere else? Monsters, even in war—and even in the military of the aggressor—are few. Most of those who fight their nation’s wars are not monsters. Is war really a punishment—an act of retributive justice—against them?
There’s much more to be said here than can be. Sufficient for now is simply to turn to the idea of distributive justice. Used in the context of the moral analysis of harms done in warfare, distributive justice is the unsettled recognition that a certain quantity of harms are necessarily going to be done in the pursuit of even justified war aims. The just warrior, in the prosecution of a just war, must distribute those harms in the most justified manner possible. Happy—enough—is the occasion in which those harms can be distributed directly and solely to those who truly deserve them. War rarely allows so pure a luxury.
One might think here of the British mining of Norwegian waters in 1940 to prevent Hitler’s Germany from transporting iron ore through neutral Norwegian waters to sustain his war effort or, later that year, of the British attempt to sink the French fleet at Mers-el-Kébir near Oman so that it didn’t fall into German hands. In cases such as these—and in the case of the poor German conscript—the justification for the harms done against nations or persons who do not directly deserve those harms is not—as Prov-friend Joe Chapa puts it in a magnificent essay at The Strategy Bridge—retribution for past wrongs, but “forward-looking defense against future unjust harms.”
If this sounds grim and even rather tragic it is only because it is in fact rather tragic and grim. Resolutions to moral conflicts—the dilemma that ensues when two or more goods are in competition—usually are. Ethics in war are not always—nor perhaps often—akin to mathematical proofs that lead to easy and incontrovertible answers. Moral conflicts don’t always tally neatly, without remainder.