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Waging War: Filling the Gap in Just War Theory

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Waging War: Filling the Gap in Just War Theory Waging War: Filling the Gap in Just War Theory by James M. Dubik Lieutenant General, U.S. Army, Retired A dissertation submitted to Johns Hopkins University in conformity with the requirements for the degree of Doctor of Philosophy. Baltimore, Maryland June 18, 2014 © 2014 James M. Dubik All Rights Reserved Abstract 1. Statement of the Problem. Just war theory’s account of jus in bello is deficient. Michael Walzer, the prime representative of the prevailing view in the United States, restricts jus in bello to combat, war-fighting, then constructs a theory of responsibility and presents a set of principles that guide action when fighting: the principles of combatant/noncombatant distinction, proportionality, double effect and double intent, as well as the principle of due care/due risk—all of which arise amid the tension between winning and fighting well. 2. Procedures and methods. This study establishes and describes the gap in the prevailing view’s treatment of jus in bello, then investigates alternative ways to fill that gap. Throughout, the study combines elements of moral philosophy, political philosophy, and strategic studies with historical and contemporary case illustrations of war. 3. Results. This study finds that the prevailing view is necessary but insufficient; it omits jus in bello’s strategic, war-waging dimension which involves a tri-partite tension: (a) setting war aims and making strategy, policy, and campaign decisions that increase the probability of being right, or at least less wrong than those one is fighting; (b) translating those decisions into action to achieve war aims at the least cost, in lives and resources, and least risk to one’s political community and adapting aims, strategies, policies, and campaigns to the changing realities of war as they unfold; and (c) doing all of the foregoing while observing the war convention, sustaining the war’s legitimacy in the eyes of the political community, and maintaining proper subordination of the military to civilian ii leadership. In the end, waging war is about using and risking lives: lives of the citizens-who-become-soldiers, lives of the innocent, and the life of the political community. The study finds that war-waging dimension of jus in bello is governed by five principles which arise from the above tension: the principles of continuous dialogue, final decision authority, managerial competency, war legitimacy, and resignation. 4. Conclusions. This study concludes that a complete account of justice in the conduct of war, jus in bello, must include both its war-fighting and war-waging dimensions. Defense Committee: Dr. Hilary Bok, Department of Philosophy, Johns Hopkins University; Dr. Richard Bett, Chairman, Department of Philosophy, Johns Hopkins University; Dr. Steven David, Professor and Vice Dean of Undergraduate Education, Department of Political Science, Johns Hopkins University; Dr. Steven Gross, Associate Professor of Philosophy, Johns Hopkins University; and General (Retired) Stanley McChrystal, previous Commander, International Security Assistance Force and U.S. Forces, Afghanistan and now founder and partner of the McChrystal Group. iii Preface Some of the ideas in this dissertation came from my 37 years of experience in the U.S. Army where I rose to the rank of lieutenant general. I was an infantryman, a paratrooper, and a ranger. I had the privilege of commanding soldiers in a variety of units, some in active operational environments—Haiti, as a colonel; Bosnia, as a brigadier general; and Iraq, as a lieutenant general. Each assignment caused me to delve deeper into the moral dimension of using force. I was also fortunate to have received a Masters of Arts degree in Philosophy from Johns Hopkins before teaching ethics and just war theory at West Point and the theory and application of military force at the Army’s School of Advanced Military Studies. These teaching opportunities provided me the time to study the moral dimension in more detail. Throughout my career, I have had great senior commanders, mentors, peers, and subordinates who shared my interest and concern for the moral aspects of our profession. Conversations and arguments with them helped shape many of the ideas in this dissertation. Dr. Hilary Bok, my primary dissertation advisor—a as well as Drs. Richard Bett, Steven David, and Eliot Cohen—continued shaping and improving my ideas through their insightful questioning, probing into my rationale, and offering challenging alternative arguments. I am grateful for their significant contributions of time and substance. I must also thank other readers of earlier drafts, friends, retired general officers, and former governmental officials, whose comments also helped me better form my arguments and ideas. Any faults in this dissertation, however, are mine alone. iv The motivation to complete this dissertation came from two sources. The first is found in the soldiers that I served. These sons and daughters of America are the ones who bear the final burden of war. The costs of the war aims, strategies, policies, and military campaigns that senior political and military leaders conceive of are paid by these soldiers and their families. If this dissertation can help increase the probability that their sacrifices will be made on behalf of better thought out aims, strategies, policies, and campaign, then I will have done my duty to them. The second is found in my wife, Sharon Basso, whose encouragement and support gave me the time and space necessary to research, think, write, and edit. For this, and so many other reasons, I will always be in her debt. v Table of Contents Abstract……………………………………………………………………………p. ii Preface……………………………………………….……………………………p. iv Introduction……………………………………………………………………….p. 1 Chapter One, Walzer and the Prevailing View of Jus In Bello…………….……..p. 11 Chapter Two, Waging War: The Missing Piece in Just War Theory…………….p. 45 Chapter Three, The Relationship between Senior Political and Military Leaders..p. 85 Chapter Four, Argument, Debate, and Dialogue…………………………..…….p. 132 Chapter Five, The Dialogue-Execution Cycle………………………………...…p. 168 Chapter Six, The War-waging Principles of Jus in Bello………………………..p. 202 Epilogue………………………………………………………………...………..p. 252 Bibliography………………………………………….………………………….p. 261 Curriculum Vitae……………………………………………………………...…p. 276 vi This page intentionally left blank. vii Introduction In 2011, America began its second decade at war, finding out once again that war is one of the most complex and, in many ways, most inscrutable of human activities. In conducting the wars in Afghanistan, in Iraq, and against Al Qaeda and their affiliates, the United States also relearned that war is a multi-dimensional phenomenon involving matters of the human heart, the variety of communities that humans form, and the multiple ways these communities interact. Americans have relearned too that the moral dimension of war is as much part of war’s essence as are its other dimensions, for war involves life and death. Governments who conduct war necessarily use the lives of their citizens and risk the lives of innocents and sometimes even the life of their political community. Those who use and risk lives in war include both the soldiers and combat leaders on the battlefield and the senior political and military officials who send them there. Both, therefore, have jus in bello responsibilities; battlefield responsibilities are just more direct and apparent than are the others. The American dialogue about its post 9/11 wars reflects war’s complexity. Some of this dialogue is technical, part of America’s continual fascination with machines and technology; some has been strategic, wondering about America’s role in the world; and some socio-political, questioning the kind of community America is or ought to be. Some of the dialogue has resurrected the language and logic of just war theory, that portion of philosophy responsible to study war from its moral perspective. Perennial questions have arisen: “Are these wars justified?”—concerns of jus ad bellum; “Have we conducted these wars justly?”—matters of jus in bello; and “Are we ending these wars justly?”— 1 issues of jus post bellum. These are certainly important questions that deserve continued attention. Answers to these questions will emerge over time, and the arguments that precede the answers will contribute to a deeper understanding of war from the moral perspective. At various times, the public dialogue in the United States concerning conducting its wars has focused on the Abu Ghraib prison abuses, rendition and secret prisons, interrogation techniques and torture, the difficulties in distinguishing combatants from noncombatants, crimes committed by U.S. combatants, rules of engagement applied in combat, and collateral damage caused by drones and other area-effects weapons. A discussion of behavior in combat requires an understanding the principles governing jus in bello. This is an important understanding, especially now, for the tools of war are changing, as are its methods. Moral philosophers have an important role in this time of change. 1 This study intends to contribute to the understanding of jus in bello. In fact, the intent is to narrow the focus to only one aspect of one jus in bello issue: war-waging responsibility. This study will build upon the continuing influential work done by Michael Walzer in Just and Unjust Wars and other of his writings on war.2 As Brian Orend points out in The Morality of War, “Michael Walzer’s Just and Unjust Wars of 1977 remains the breakthrough work of that decade, directly inspired by Vietnam. It is not much of an exaggeration to say that this work has been to current just war theory 1 Three of the more useful works concerning the changes in the tools and conduct of war are these: Rupert Smith, The Utility of Force: The Art of War in the Modern World (London: Penguin Books, 2006); David Kilcullen, Out of the Mountains: The Coming of Age of the Urban Guerrilla (New York: Oxford University Press, 2013); and General Gordon Sullivan and Colonel James M.
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