Jus Intra Belligerans

A few years ago I gave a couple public lectures in which I argued for a third, or fourth, category of Just War Theory.

Traditionally, Just War Theory is divided into two general categories: jus ad bellum, or the justice of having this conflict at all, and jus in bello, or the justice of its prosecution. (And Brian Orend recently wrote a book articulating and defending a third category, Jus post Bellum, or justice in the conclusion and aftermath of wars.) Each category then covers a number of criteria. The modern classic of just war theory remains Michael Walzer’s Just and Unjust Wars.

In my public lectures I added to this mix by examining more deeply than usual one traditional Jus ad bellum criterion: that only a legitimate ruler may declare war.

What does this entail? I believe we can articulate a principle of what I call (with apologies to Latin scholars –please let me know what the correct term would be) Jus intra Belligerans, or justice within the warring party. This could apply to both the individual soldier and the state that wages war.

The basic idea behind Jus intra Belligerans is the observation that justice is a process and that wars take time. That a war is declared by a legitimate power says nothing about whether the power remains just throughout
the war. I was particularly concerned about the impact of domestic crisis provisions such as the USA PATRIOT Act and the apparent suspension, in the case of Jose Padilla, of habeas corpus. So this flavor of Jus demands that the warring party not only be legitimate at the start of the war but remain so throughout.

Americans—the free, the brave—typically argue against any criterion of Jus intra Belligerans. They do so by holding that war is hell, that war requires secrecy and covert operations and all sorts of government behaviors that would be rejected during peacetime. Everyone knows that truth is the first casualty of war; back in 2001, George W. Bush even told us flat out that he didn’t intend to tell us the truth all the time. And between Pentagon press pools, embedded reporters, and censorship (self- and otherwise), not to mention corporate self-interest and fear of being called “unpatriotic,” war leaves the free press flat on its back.

But let me offer three quick arguments for Jus intra Belligerans.

First, war is one of the most horrible activities that humans engage in. If it is ever justified, it is so only under the tightest, most careful and self-critical scrutiny.

Second, wars very often last longer than their initial legitimating reasons – the jus ad bellum, such as it was – persist. Thus war always requires reassessment of the “national interest” as well as cataloguing of the tradeoffs between values and aims that war has engendered. War also changes the relationships between the warring country and third parties, as witness the US’s decreased
capacities with respect to Iran, Korea, China, and other global claims on its attention.

Third, war typically empowers specific sectors of a society – generals, munitions manufacturers, and lately oilfield-services corporations – at the expense of enlisted soldiers, taxpayers, civilian/elected officials, and civil society. A criterion of Jus intra Belligerans would mitigate this tendency, though surely without eliminating it altogether.

How much does Jus intra Belligerans require? Does it require enhancing the degree to which the society is just, or merely ensuring that it does not become less just? Or perhaps it permits some erosion of justice provided some minimal threshold is not passed? I think the best case can be made for the first, enhancement, criterion, but any criterion of Jus intra Belligerans would be better than what we have now, which seems to me an absolute decline in the justice of American society.