As war loomed over Kosovo 10 years ago, Germany’s then foreign minister, Joschka Fischer, explained that the principle that had always governed his involvement in politics was: “Never again war; never again Auschwitz!” Ethnic cleansing and violence in Kosovo, however, soon made it clear to him that there were moments when one had to choose between those two imperatives: a new Auschwitz sometimes could be prevented only by means of war.
The idea of a “just war,” legitimised by a justa causa (just cause), though scorned for many years, is thus back in vogue. The notion used to be frowned upon because any warring party tends to view its own cause as just. Moreover, in the absence of an impartial judge, a winner can always impose his “truth” upon the vanquished, as happened with the Treaty of Versailles after World War I.
While “just wars” seem to be back, international law has also come to condemn waging aggressive (“unjust”) war as a punishable crime, with the consequence that every warring party now declares its wars to be a defense against foreign attack, much as Hitler did in 1939. (Indeed, all war ministries have become “defense ministries,” leaving one to wonder against whom a country must be defended if there are no longer any attackers.) But in this matter as well, the winner gets to judge who was the aggressor, so it is fortunate that Hitler did not prevail.
Of course, military intervention for purposes beyond defending one’s country remains possible, but requires a UN Security Council resolution. The latter alone, provided no permanent member of the Security Council disagrees, can decide whether a war is legitimised by a “just cause” (nowadays generally a gross breach of human rights).
The Security Council’s permanent members thus remain legibus soluti , i.e., sovereign in the seventeenth-century sense of the word, meaning “able to do evil with impunity.” The right of humanitarian intervention limits the sovereignty of all other countries. Behind this is the notion that respect for human rights can be enforced externally, together with the hope that rulers will behave better because they recognise that they may be held accountable for violating human rights.
Whether this hope is justified remains to be seen. In the meantime, the return to the idea of a “just cause” carries big risks, especially evident when, as happened in Georgia, a great power claims the mantle of a protector of the rights of its nationals in a neighbouring country. If this idea stands, Russian minorities from the Baltic to the Crimea may turn out to be ticking time bombs.
The idea of the “moral indifference” of the law of war is based on the recognition that wars will not be eliminated, and that they should instead be limited and their horrors mitigated by universally applicable rules of conduct. Precisely because it is less ambitious than the principle of “just war,” moral indifference has been tremendously successful in mitigating war’s horrors by banning some particularly inhuman types of weapons, forcing armies to protect civilians and accord humane treatment to prisoners of war, banning annexations, etc.
The pacifist Leo Tolstoy, in his novel War and Peace , regarded this pruning and tending of war as cynical. Wars shouldn’t happen at all, he believed. On the other hand, Tolstoy justified the unrestrained and unregulated eruption of public anger and the furious slaying of retreating French soldiers by Russian peasants. Mao would approve.
Pacifists want to understand war as a lawless condition that should be abolished. But those who recognise that humanity won’t succeed in stopping war seek, instead, to contain and “humanise” it. The medieval Popes practiced this wisdom when they limited permissible wars to certain times of year. But any “last stand” type of warfare refuses to recognise the possibility of a future war for which it may be a precedent. Such a war will always be without rules, always a total war. After all, when it’s do or die, no laws apply.
So the object of international law is not to ban “unjust” wars and permit “just” ones, but to assure that wars are waged for limited aims, so that they don’t rage out of control. You have to be able to lose without losing everything. The language of justice and injustice, and demands of unconditional surrender and criminal retribution for the vanquished only promote – indeed, provoke – total war.
The flip side of the criminalisation of “aggressive” war is the fact that peace is also no longer a reliable legal state that can be ended only by a formal declaration of war. When state leaders decide to bomb a city like Belgrade without any formal end to peace, they are not engaging in war, but in a form of state terrorism.
Terrorism will prevail if its mentality infects the civilised world, and if state leaders resort to terror to fight terror. Fighting terrorism is not a war, because terrorism itself is not a warring party, but a means to an end. Terrorists, when caught, are subject to criminal sanctions and punishment under the law.
Countries unwilling or unable to prevent terrorist violence emanating from their territory forfeit their right to territorial integrity, and others can declare war on them to pursue the problem at its root. But those who adhere to the motto “Terror can only be countered with terror” should remember who coined that phrase: Adolf Hitler.
Robert Spaemann is a leading Roman Catholic philosopher, Professor of Philosophy at both the University of Munich and the University of Salzburg.
Copyright: Project Syndicate/Institute for Human Sciences, 2008.