ECPR Grenoble workshop 25 - Theories of War/Théories de la guerre
Just Internal War, its Possibility and Limits
© David A. George, 30 March 2001
Abstract
This paper examines a neglected aspect of the predominantly state-centric character of the just war
tradition, namely, its applicability to non-national (or intrastate) armed conflicts.
First, it seeks to determine what, historically, inhibited its application to internal armed conflicts. It is
claimed that the reason is not the modern context of just war theory - the rise of sovereign states, nor
the longstanding distinctions between public bellum and private duellum, and between war and crime,
as mutually exclusive and exhaustive applications of armed force.
It is suggested instead,
conventionally, that the solution to the problem lies in the contingent existence of legal institutions to
administer justice (= the redress or punishment of justiciable wrongs) within states, and the absence of
justice (in the same sense) at the inter-state level though the contingent lack of equivalent, international
institutions. Second, and consequently, just war theories are applicable in principle to intrastate armed
conflicts only in circumstances in which the legal institutions of state are incapable of providing
justice, that is, where justiciable wrongs exist which cannot (as distinct from may not) be rectified
internally.
In the just war tradition between 1272 and 1740 (from Aquinas to Vattel), those
circumstances were identified as the presence of tyrannical government, it is further claimed. Thus the
medieval and post-mediaeval application of just war principles to internal armed conflict resulted in
resistance theory, that is, doctrines of just rebellion against tyranny and the legitimacy of tyrannicide.
Third, the revival of the just war tradition during the twentieth century has widened its range of
application to intrastate armed conflicts.
Its current focus of attention is on armed struggle or
insurgencies (i.e., terrorism/guerrilla warfare/wars of national liberation/ethnic armed conflict).
Contemporary just war theorists (Walzer, Johnson, O'Brien) have argued, inter alia, that these
insurgencies violate the ius in bello principle of discrimination; lack both rightful authority and right
intention; and pursue causes which do not count as just. On their arguments, these breaches of just war
principles in insurgent armed conflicts are contingent occurrences. Fourth, the further question is:
could such violations be logically necessary. Are they, in principle, inevitable ? There are two steps in
this argument. In the first place, it is claimed that other just war principles are logically dependent
upon the principle of just cause. In the second, that the cause pursued in insurgencies is either unjust,
because it is not directed to rectifying justiciable wrongs, or, alternatively, if these are its concern, the
wrongs in question can be rectified within a constitutional/non-tyrannical state, although in contingent
practice they may not be. In this connection, particular attention is given to national self-determination
as an insurgent cause. It is concluded that contemporary armed struggle/insurgency is necessarily
unjust and, consequently, that the just internal war to date is limited to the single case of armed
resistance to tyrannical regimes.
Since the second World war there has been a marked revival in the just war tradition.
Yet, for the most part, it has not been focused on the kind of wars which have
predominated in the period since 1945, namely, those internal, or intrastate, wars
which jurists term non-international armed conflicts. Instead, it continues to be
preoccupied with a body of theory originally developed in the context of inter-state
wars. Thus, although there has been a successful rehabilitation of ius ad bellum and
its restoration to a proper place at the centre of just war theory, there has been an
equally conspicuous failure to adapt, much less to develop, the principles of just war
in relation to the new kind of internal wars of the late twentieth century. Indeed, even
the application of long-standing just war principles to such armed conflicts is a rather
marginal concern. The purpose of this paper is to establish what provision, if any, is
made for internal war in the just war tradition and, if any provision can be found for
just internal war, whether it extends to cover that contemporary pattern of civil strife
and ethnic conflict which seems to be endemic in Africa and the Balkans - the ‘new
wars’, (Kaldor, 1999: 1-12) -or the earlier wars of independence or national liberation
fought by European colonies in the name of self-determination.
In the writings of the theorists who have been principally responsible for the recent
renewal of the just war tradition, the peripheral concern with internal wars is very
clear. O’Brien devotes only two of fourteen chapters to the topic of insurgencies or
what he terms ‘revolutionary war’ (O’Brien, 1981: passim); Johnson spends just ten
out of one hundred and ninety pages on the subject of insurgency and terrorism in his
moral analysis of modern wars (Johnson, 1984, 53-63); Walzer provides one chapter
each on guerrilla war and terrorism of a total nineteen chapters, though some
discussion of various aspects of internal wars can be found elsewhere, notably in a
chapter on interventions. (Walzer, 1977: 176-206, 91-108) In Walzer’s case this is,
perhaps, especially surprising.
His classic work, Just and Unjust Wars, was an outcome of a personal involvement
in the anti-Vietnam war movement of the 1960s and 1970s and, as the book’s subtitle
indicates, his argument is developed with historical illustrations. (Walzer, 1977: xixii) Nevertheless, only some twelve pages of the three hundred and thirty five page
monograph are directly devoted to applying just war principles to Vietnam , namely,
the discussion of US intervention in the conflict and an in bello argument about rules
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of engagement. (Walzer, 1977: 97-101, 188-196) Walzer’s analysis of US
responsibility for the war revolves around the question of democratic responsibility,
while his analysis of the My Lai atrocity is simply directed to the issue of superior
orders (as opposed to non-combatant immunity), neither of which, it seems to me,
form part of just war theory. Moreover, it could be argued that in any case Vietnam
was not an internal war, but a conventional armed conflict between two belligerent
states, North and South Vietnam, though with an admixture of insurgency directed
against the government of the latter belligerent. But to develop this would be just to
labour even more the point I want to make, which is, that even when it is at its most
intellectually receptive to the phenomenon of internal wars, the just war tradition
remains predominantly a state-centred body of thought.
The same is true of that close relative of just war theory – the laws of war. A
typically traditional, juristic, conception of war is of, ‘a contention between two or
more States through their armed forces, for the purposes of overpowering each other
and imposing such conditions of peace as the victor pleases’. (Oppenheim, 1952, 202)
The first move towards legalising internal war occurred in 1861 when the US
Congress took the discretionary decision to recognise the American civil war as a
legal state of war between the Union and the states of the Confederacy; with both
parties having a belligerent legal status. As long as rebel forces observed the laws of
war, Congress decided they were to be treated as legitimate armed forces, despite the
illegitimacy of their governments. According to one influential jurist this was to treat
civil war as ‘real war’ (Oppenheim, 1952, 660) Further movement towards
regularising intra-state armed conflicts occurred with the legal definition of
belligerent status in the Hague Regulations of 1907. That status was restricted to
conventional armies, but it could include their militia or volunteer corps, under certain
conditions. Belligerent status was also extended to the levee en masse. (Best, 1980,
200) It was only after the second World War, however, that intrastate armed conflicts
were brought fully within the scope of the laws of war. Common article 3 of the four
Geneva Conventions (1949) provided a strictly limited legal protection to the hostile
parties in non-international armed conflicts. (Green, 1993, 42-3) In 1977, the series
of legal developments culminated in the two Protocols additional to the Geneva
Conventions of 1949. The first dealt with inter-state armed conflicts and, to an extent,
with armed conflicts that hitherto had been treated as internal. Additional Protocol I
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determined that wars of national liberation should now be legally treated as
international armed conflicts and thus subject to the international humanitarian law of
armed conflict. Additional Protocol II dealt exclusively with internal armed conflicts
by extending to them the humanitarian legal provisions of the Geneva Conventions,
though some doubts exist over its threshold of application. It might only be
applicable to full-scale civil war. (de Lupis,1987, 170-4)
Both the laws of war and the just war tradition are characteristically state-centric it
would seem, and this has been responsible for first (apparently) excluding and then
later allowing, but marginalising, their application to intra-state armed conflicts. The
important point for this paper, however, is not the fact that the just war tradition is
state-centered, but why this is the case and, a fortiori, whether it is a contingent fact
or necessarily the case. For, once the explanation for that characteristic is found, not
only it will be seen to be bound up with considerations of rectificatory justice, but also
it will also show those same considerations meant the just war tradition between 1272
and 1740 (or from Aquinas to Vattel), was able to admit the justice of a certain type of
internal war, in other words, rebellion against tyrannical government.
I
No doubt there may be a multitude of contingent reasons why the just war tradition
has been predominantly concerned with inter-state warfare, although the rise of the
international sovereign state-system in the sixteenth and seventeenth centuries does
not appear to be among them. Johnson argues, convincingly, that over the past three
hundred years the just war principle of legitimate (or moral) authority to wage war has
been subordinated to, and even identified with, the legal and political principle of
state sovereignty. (Johnson, 1984: 23) On this interpretation of the principle, any
sovereign state, which has a government in effective control of the territory over
which it claims jurisdiction, has a right to wage war. Conversely, any body lacking
the attribute of sovereignty has no such right to the sword. Therefore a resort to arms
by such individuals or groups will not be war and hence neither subject to the laws of
war nor amenable to the moral principles of just war. But the equation of the just war
principle of the legitimate authority to wage war with the fact of state sovereignty
should not obscure the difference between, on the one hand, a moral criterion and, on
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the other, a legal and political fact. Furthermore, the principle of legitimate authority
antedates the rise of the international sovereign state-system in the sixteenth and
seventeenth centuries. Indeed, it goes back to the beginnings of the just war tradition.
Thus the state’s right to wage war cannot be derived from the fact of its sovereignty.
On one view, what is excluded from war waged by legitimate authority is either
brigandage or piracy, that is, a criminal use armed force. “The enemy are those who
upon whom the Roman people has officially declared war, or who have themselves
declared war upon the Roman people. All others are termed pirates or brigands”,
declared Ulpian. And such people do not emancipate themselves from subjection to
the law by their criminal conduct, for no one is entitled to improve his legal status by
transgression, according to Gentili. (1612/1933:16, 22) It would be equally ridiculous
to attempt to apply just war principles to the depredations of the likes of Long John
Silver on the high seas or to gangland slayings on the streets of Chicago in the era of
Al Capone. They are neither just nor unjust wars, because, simply, they are not wars
at all, but mere crimes.
On another view, what is excluded from public bellum is the private use of armed
force, duellum, as morally illegitimate. This distinction had become blurred during
the Middle Ages due to the dual nature of medieval political authority. As ruler by
God’s grace, a king could be considered to exercise power and authority for the public
good, but as feudal owner of extensive property in land he had a right to rule his lands
and their inhabitants as landlord, that is, in his own interest. (Ullman, 1975: *-*) As
participant in the feudal hierarchy he exercised lordship (dominium) by pursuing his
private interest as a property owner and served the private interests of his feudal
superior (lord) and inferior (vassal). Consequently, when he waged war as a feudal
lord he was engaged in a private duellum, but simultaneously, as rex dei gratia, he
waged it as a public bellum. Although this confusion of public with private war had a
beneficial result in that the private chivalric code of the knight in feudal duellum was
imported into public bellum where it mutated into the public principles of ius in bello
(Johnson, 1981: 44-49), it had the major drawback that feudal dominium , as political
authority, permitted a legitimate private resort to arms by lords on a widespread scale.
This was curbed in just war theory by the canon lawyers Gratian, the Decretists and
the Decretalists during the twelfth and thirteen centuries who redrew the distinction
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between bellum and duellum and restricted moral legitimacy to the former. (Russell,
1975: 55-212) (One of several defects in Vom Kriege is the reintroduction of the
confusion of bellum and duellum into the theory of war: “War is nothing but a duel on
an extensive scale.” (Clausewitz, 1968: 101).)
In both medieval Christendom and its successor, the European society of
independent states, the moral right to wage war was due neither to the public bellum/
private duellum distinction, nor to the legal and political fact of sovereignty: it was
derived from membership of such societies insofar as they were moral communities.
As members, states shared the common values of this community and were bound by
same body of laws rooted in them, for these laws and values were constitutive of the
international society. Vitoria, in the sixteenth century, used the normative conception
of natural law as a law common to the society of the human race, to extend just war
principles beyond Europe to embrace the Indians of South America. (Vitoria, 1539/
1991: 233-292) But however narrowly or broadly international society was
conceived, states were required, as an implicit condition of their membership, to
adhere to and uphold its constitutive common laws and values. In the absence of an
international regime or government, the enforcement of international law upon other
members of the international society - and, thereby, the defence of its order and the
promotion of its common good. - was the contingent business of all its members.
(Coates 1997: 126-128) To the extent that they behaved in this way, member states
acted in a public capacity as representative agents of the entire international society of
states. War, on this interpretation, was a legal instrument; the sword of war was that
coercive power which used to enforce international law, and the right to exercise it –
legitimate authority – belonged equally to every member of the international society.
The reason for this may be more easily seen by turning from the just war theory to
Locke’s cosmopolitan conception of the state of nature, for the rightful authority of a
state to wage war, in the just war tradition, is analogous to the executive power of the
law of nature in Locke’s account of the state of nature. A brief consideration of that
argument may help to clarify the concept of legitimate authority to wage war, in
particular the derivation of the right from membership of a moral human community
and the concept of individual states acting in a public capacity as agents of the
community.
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Locke’s state of nature, it may be recalled, consisted of free and equal individuals
joined together to form a natural society by the bonds of natural law, being subject to
no other rule or ruler. In that social condition, and in the absence of any government,
Locke argues the enforcement of natural law upon the individual members of the state
of nature (mankind) is placed equally into the hands of every individual member of
the society, ‘whereby every one has a right to punish the transgressors of that Law to
such a Degree, as may hinder its Violation’, selecting, proportionally, from a range of
penalties up to and including that of death. If any one has this right - and someone
must, for otherwise the guilty would not be restrained and the innocent preserved –
then everyone must have it, since all members of the society are natural equals; no
one has superiority (ie., natural authority/ natural jurisdiction) over another natural
person. Breach of natural law is not just a crime, however. It also an injury to some
particular person or persons. Violation of the law of nature entails the natural right/s
of some member/s are infringed by the crime - they have been wronged or suffer an
injustice – for the law of nature rationally obliges everyone not to harm the life,
health, liberty or possessions of any other person. Wronged individuals have a
particular right to seek reparation for the injury done to them in addition to their
general (ie., common to all individuals) right to punish the crime of violating natural
law. These two rights together comprise what Locke terms, ‘the executive power of
the law of nature’.
Within the cosmopolitan society of mankind in the state of nature then, every
individual member has this same power or right to enforce the laws of the society and
thereby protect those natural rights, including his own, which all individual members
possess equally under that law. So, if an individual exercises his executive right of
nature to punish a particular violation of the law which infringes his own natural
rights and seeks reparation for the infringement, he acts not only in defence of his
own rights, but also in defence of the natural rights of all. In other words, through
upholding the laws of nature, and thereby maintaining the public order and common
good of the community, he acts in a public, representative capacity. Locke concludes
his discussion of the state of nature by replying to the standard objection that it has
never existed with the following observation: ‘That since all Princes and Rulers of
Independent Governments all through the World, are in a State of Nature, ‘tis plain
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the World never was, nor ever will be, without Numbers of Men in that State.’
(Locke, 1690/1963: 311-318)
The legitimate authority to wage war, as the counterpart to Locke’s executive right
of nature, is therefore a right to enforce the constitutive laws of international society
and thereby uphold the rights of its individual member states which are infringed by
their violation. It is a public act done on behalf of the international society of states,
in defence of its order and to promote its common good. If, and only if, the legal
rights of a member state have been infringed through a breach international law will
there be a generic just cause for resort to war. Any state, not merely the one wronged,
may enforce the law of nations, through punishing the crime and redressing the
wrong, by going to war against the guilty state. In classic just war thought, it was just
to draw the sword against those people who had wronged a state , but unjust to do so
against those who had done the community no wrong (Vitoria, 1539/ 1991: 303-04).
Strictly, this principle applies only to offensive just war, where redress of a wrong
done, or a right infringed, or a crime punished, is initiated through the force of arms,
because it cannot be remedied in any other way. Offensive war involves a first use of
armed force, as does a war of aggression, but in the former case this is to remedy the
infringement of a right, in the latter there is no such just cause. When people react to
an unjust lethal attack by repelling it with armed force, any private individual is
entitled to wage this defensive kind of just war “without any other person's authority”.
(Vitoria,1539/1991: 299). Nor is a special justifying ground needed for the response
of defensive war, since it is an involuntary act which just and peaceful people are
forced to take against unjust aggression. Or, as Vitoria (1539/1991, 297) quoted from
the Digest, “force is lawful to repel force [vim vi repellere licit].” In this kind of just
war, not only is the principle of legitimate authority inapplicable then, but so too is
the principle of just cause; offensive wars alone require a just cause and a legitimate
authority. (Finnis, 1996: 19, 21; Vitoria, 1539/1991: 303; Suarez, 1621/1944: 815-16)
It will be seen below that this is a key move in the argument for just internal war.
To recapitulate, the just cause for resort to an offensive just war is an injustice or
wrong done to the political community. If an attack is initiated by the state to secure
retributive punishment or reparation for a wrong done to it (other than an unjust
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attack) or to another member of the international society of states in a just war of
intervention, and the guilty party has refused or failed to redress this injustice, it has a
transparently verifiable, just cause for resort to war. What counts as a wrong to the
political community is indicated by Suarez (1621/1944, 817). He listed the seizure of
property by a foreign sovereign and refusal to restore it; a denial, without reasonable
cause, of the common rights of nations, such as the rights of transit and trading; and
“any grave injury to one's reputation or honour,” although comparable lists by other
writers in the classic just war tradition inevitably vary. As Grotius observed
(1625/1925, 171), “[i]t is evident that the sources from which wars arise are as
numerous as those from which lawsuits spring; for where judicial settlements fail, war
begins.” The economist Adam Smith echoed Grotius in his lecture,‘Of The Laws of
Nations’, when addressing the question, ‘when is war lawful ?’. His reply was: “In
general, whatever is the foundation of a proper law suit before a court of justice may
be a just occasion of war. The foundation of a law suit is the violation of some
perfect right whose performance may be extorted by force…” (Smith,1763:PtV) In
making this claim , Grotius and Smith were in the mainstream of the just war tradition
stretching back to Gratian’s argument in Causa 23 of the Concordia Discordantium
Canonum or Decretum (1140). There the great canon lawyer, compared war with the
judicial process in the courts, emphasising the similarity between the two. Both were
recourses to force in order to rectify an injustice, the one by ordinary legal means, the
other by extraordinary means warranted by the circumstances. A just war then, was
one waged by a legitimate authority to redress wrongs brought about by violation of
the legal rights of a political community or, in Gratian's summary, it was “to avenge
injuries”.
All the wrongs which could be listed, however, have two crucial common features:
first, they are all justiciable, that is, subject to the jurisdiction of, or liable to trial
before, a court of justice. They are analogous to a ‘cause of action’ in AngloAmerican law, for which a remedy (redress) may be sought before a law court (Finnis
1998, 284). Grotius (1625/1925, 555) held that claims not actionable at law cannot be
prosecuted in war. So, if war may be “a mere continuation of policy by other means”
(Clausewitz, 1968: 119), just war is merely legal action carried on by other means. In
the absence of an international court for states and their governments to secure the
redress denied them and the punishment of an international crime committed, resort to
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war to secure them is just. Second, redressing the specific wrongs listed (and also the
just repulsion of an aggressive attack) will have the conservative function of restoring
the moral status quo ante bellum of international law and society which has been
disrupted by the breach of law and the consequent injustice done to a particular state.
The end of a just war is a just peace, the remedy of "restitutio in integrum". (Rachel,
1676/1916: 183)
In this crucial respect, it is quite different from a holy war fought to promote "some
political structure or course of political events in this world" held to be God's
providential will for the human race (Riley-Smith, 1992: 8), the pursuit of which
converts the limited warfare permitted by just war principles into the unrestricted and
gratuitous violence of a crusade. (Johnson 1973, 220) The just war differs also from
the contemporary counterpart to the medieval holy war, namely, wars fought to
promote an idelogical goal,such as a revolutionary polity, or which are launched to
advance a revolutionary course of socio-political events in accordance with the Laws
of History or some other secular substitute for the will of God. A just cause for resort
to war cannot be the promotion of (putatively) good ends such as the liberation of the
Holy Land from the infidel or the attainment of, say, class-less communist society
(contra Teichman,1992: 33). Just war is about implementing rectificatory justice and
not about promoting the good. If war is to be just then, it must be for transparently
verifiable reasons or on non-metaphysical grounds, that is, “in principle open to
judgement by third parties standing outside the conflict” (Johnson, 1984: 61, 194) and
this will be the case if it is concerned only with righting justiciable wrongs to secure a
just peace.
This conclusion is a crucial move in establishing the possibility of just internal war.
In the next section, it will be claimed such a war is possible in the absence of a just
cause and legitimate authority, provided it is purely defensive. It will further follow
that if contemporary armed struggles are not fully defensive in character , but pursue
ideological objectives rather than rectificatory justice in the above sense, then they
will be unjust internal wars, because devoid of both just cause and rightful authority.
II
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The intrastate counterpart to the sword of war held by the government of a state is
what Aquinas called the material sword, (1272/1974: 159). This is the coercive
power of punishment exercised by governments through enforcing the laws of the
state upon its citizen members and thereby protecting their legal rights. In so doing, it
acts in a public representative capacity, that is, on behalf of the moral and political
community which is the state, in defence of its constitutive laws and public order and
for the promotion of the common good of its citizens. It follows there is no legitimate
scope for citizens to employ armed force in an attempt to punish crime and redress
wrongs done to either themselves or to other citizens. Within the state, such actions
would be purely private or without legitimate authority, and therefore unjust. Only if
a state should lack a government to uphold the law and rectify injustices done to its
citizens might there be a case for the public enforcement of law and the defence of its
members legal rights being undertaken by individual citizens on behalf of the political
community.
Vitoria, it will be recalled, held that a defensive war against unjust attack was just.
On the basis of the natural law right to self-defence articulated in the Digest as vim vi
repellere licet, he wrote: “Any person, even a private citizen, may declare and wage
defensive war.” If force may resisted by force, it followed, “that any person may
wage war without another person’s authority, not only for self defence but also for the
defence of their property and goods.” (Vitoria, 1539/1991: 299) Vitoria goes on to
qualify his statement, like other just war theorists who also insisted on the legitimacy
of armed force used in self-defence. Among these qualifications is that morally
legitimate self-defence must be, “in response to immediate danger, made in the heat
of the moment or incontinenti as the lawyers say.” (Vitoria, 1539/1991:300) Grotius
similarly allows a legitimate right of self-defence against violent attack. That right,
he holds, “has its origin directly, and chiefly, in the fact that nature commits to each
his own protection, not in the injustice or crime of the aggressor.” (Grotius 1625/
1925: 172) The act of warding off an “injury” by force is private war and it is not in
conflict with the law of nature (Grotius 1625/1925: 91). And although its scope is
severely restricted by the existence of the state, and in particular by its courts and their
judicial procedure, it may still be exercised legitimately where and when judicial
procedure is unavailable in the state. Should a person’s life be in imminent danger –
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for example, by being confronted by a known vicious or insane killer who is armed the right of self-defence is exercised legitimately by that individual (and by other
individuals who assist him in his defence) and it includes the use of lethal force.
Grotius also allows the legitimate exercise of the right of self-defence when other
individuals who are subject to a court’s jurisdiction are able to disregard it or when
the judge “openly refused to take cognizance” of a breach of law. (Grotius
1625/1925:92). (One of the more innovative moves made by Grotius (Book II, ch.1)
in De Jure Belli ac Pacis was to assimilate all the traditional just causes for offensive
war into the category of defensive war. He did this by making the individual right of
self-preservation and self-defence the foundation for all just causes. The effect of this
innovation was to erase the distinction between defensive and offensive wars, though
later just war theorists and international lawyers have followed his lead. However,
that distinction will be preserved in the present paper since it was employed by
contemporary theorists in order to argue for a just internal war.)
Some writers argue there is further case where judicial procedure is unavailable and
defensive war is therefore justly undertaken, namely, in the case of tyrannical
government. Tyranny is the generic term for illegitimate, unconstitutional rule.
Traditionally, it was thought to be either an illegal seizure of power (usurpation), and
thus private rule in the interest of the ruler, or else it was the oppressive use of power
for the ruler's private benefit, not for the public good, by a legitimate ruler exceeding
the powers of his political office. In both ways its crucial features were lawless,
violent rule that was utterly unjust. By ruling in this extra-legal fashion, a tyrant
attacked his subject's lives, liberties and property, he eroded the practices of civilised
living and undermined the very basis of the political community, its bonds of law. A
common subjection to the rule of law is the essential condition of the maintenance and
preservation of human society, argued George Buchanan in De Iure Regni apud
Scotos (1579: 51--53). Its absence or presence was the true test of tyranny. Where the
rule of law prevails, government is limited and constitutional, for law makes the king
(not vice versa) and it does so in such a way as "to keep the king within bounds"
(1579: 85) Law is always "superior in authority to the king, and is a corrector and
governor of his desires and actions" (1579: 85). Where law does not rule, tyranny
prevails and society tends towards dissolution. Given the defective nature of this type
of rule, Aquinas held there is neither genuine law nor judicial procedure in the
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tyrannical state; its decrees are not real laws and the judgments of its courts are
perversions of what is now called due process. He held they had the same status as
the demands of a bandit and therefore could legitimately be resisted in exactly the
same way as individuals are entitled to respond to the attacks and threats of armed
bandits, namely, by using lethal force in self-defence (Finnis, 1998: 288-289).
Locke similarly argues that tyranny begins where law ends. The usurper is a private
individual who has seized political office, often by force. The power he wields is thus
illegitimate and this moral fact entails the usurper always rules in a private capacity in
pursuit of his private interests. The tyrant ab exercito is an otherwise lawful ruler
who consistently exceeds his lawful powers. By his ultra vires exercise of power, he
is no longer a lawful ruler acting on behalf of the political community and promoting
the common good of its citizens , but, like the usurper, he acts in a purely private
capacity pursuing his own interests at the expense of the communal good. In both
cases then, the tyrant is simply a private individual using force without right. (Locke,
1690/1963: 445-448) An arrest by a tyrant or his officials, for example, would not be
a public act on behalf of the political community: it would merely be an unlawful act
of aggression, an attack, by private individuals on other private individuals. Locke
argues that by acting in this unlawful way, the tyrant “puts himself into a state of War
with those, against whom he so uses it, and in that state all former Ties are cancelled,
all other Rights cease, and every one has a Right to defend himself, and to resist the
Aggressor.” (Locke, 1690/ 1963: 467)
In this, as in other just wars, only one belligerent will be acting justly, the party of
resistance. The other belligerent, the tyrant, wages his war unjustly because it is a war
of aggression. Moreover, in just internal war the tyrant and his agents alone are
legitimate targets to their enemies, for it is they who perpetrate the attacks against
which defensive war is waged. On the side of aggression, they alone are combatants.
But on the opposite side it is not necessarily just those who defend themselves against
attacks who are combatants; all members of the political community could have this
status, since everyone is entitled to intervene to assist those who are exercising their
right of self-defence.
13
In a consitutional state, a criminal breaks a law and is duly punished. But the
tyrant, who breaks all the bonds of law by his violent,lawless rule is infinitely worse.
Individuals of this sort, says Buchanan, "should be regarded as enemies to God and
men". (1579: 56) As hostis humani generis, a tyrant was also deemed by Buchanan to
have already placed himself in a state of war with his subjects and with the entire
human race. By abandoning the human way of law and reason in favour of the way of
beasts – violence - the tyrant was regarded by resistance theorists as having taken on a
ferine jural status. Such creatures as tyrants should not be treated as men, but as
“wolves or other predatory animals” wrote Buchanan, (1579: 56), and Locke agreed.
A tyrant was like a “a Lyon or a Tyger”, he claimed (1690/1963:315). There could be
no society and no security with such wild and noxious beasts, only a relation of war in
which they might be legitimately destroyed. A war of this type would not only be
just, it would be the most just of all, (1579: 97) and for the general benefit (1579: 56)
according to Buchanan.
Such an internal war would not be what Grotius termed a mixed war between a
public belligerent on one side and a private belligerent on the other side (1625/1925:
91): as a defensive war against the unlawful private attacks of a tyrant, it would be a
wholly private war on both sides. Its justice on the part of the resistance was
grounded on the natural right of self-preservation and the derivative right of selfdefence and on nothing else. The purpose of just internal war in post–medieval
European history was not the rectification of wrongs done by tyrants through armed
force; it had no just cause. Nor was it waged by a legitimate (public) authority. The
war was fought by private individuals acting either alone (tyrannicide) or jointly
(rebellion), but always on their own private authority which, in the absence of the rule
of law and judicial procedure, was legitimate in just war resistance theory. Yet, as
Buchanan’s comment about wars of this type being for the general benefit of the
community indicates, there was a sense among theorists of armed resistance that the
resistance forces were acting in something like a public capacity.
Both rebellion and tyrannicide were regarded as applications of the principle, vim vi
repellere licet, that is, as permissible uses of violence to oppose violence against the
individual and, beyond that, to repel and exclude violence from the public domain. In
other words, they were modes of resistance to hostile violence introduced into the
14
public sphere by another party, the tyrant. Thus there was always one law the tyrant
could not evade when man-made laws and constitutions are inefficacious, provided of
course that it is enforced against him by other men. In both forms of armed resistance
a guilty tyrant would be punished for his crimes of usurping and abusing power and
thereby overthrowing the rule of law. It was precisely because the crime of tyranny
was so great, Aristotle said, that the honours paid to a tyrannicide were also so great.
(Politics, 1267a15) Mill put this same point in a slightly different way when he
claimed that tyrannicide was an act of a private citizen who punished “a criminal, who
by raising himself above the law, placed himself beyond the reach of legal
punishment or control” (1859: *). Mill's version intimates what is the crux of the just
internal war of tyrannicide and rebellion, its ultimate constitutional purpose. The
significance of both forms of armed resistance is as one of several solutions to a
central concern in the 'classical' style of politics, namely, how to prevent the abuse of
political power. Power, it was supposed, was always apt to be abused irrespectively
of who wielded it, and hence it was viewed with considerable suspicion. Permanent
safeguards were therefore sought to prevent, or at least curtail, its abuse when that
danger inevitably arose. These safeguards were the familiar devices of constitutional
government such as the separation of powers, together with the rule of law (human,
natural and divine). A major problem arose when constitutional government broke
down or was subverted and overthrown, for then the abuse of political power - now in
the extreme form of violence used by rulers against the ruled - was subject to no
institutional restraint whatever.
Potential rebels or tyrannicides were in agreement over the nature of the problem
and the moral validity of its solution; the forcible elimination of the tyrant from public
office, and his destruction. They might differ marginally over how this is to be done,
and considerably over the question of, by whom. Was it to be a quasi-public act of
levying war against the tyrant by holders of inferior public offices (in contemporary
language, the lesser magistrates) or the Estates of the kingdom (rebellion), on the one
hand, or could the war be levied by an individual citizen or a very small band of such
private persons (tyrannicide) ?. Most resistance theorists of the sixteenth and
seventeeth centuries rejected tyrannicide in favour of armed rebellion because of their
concerns about the vagaries of private convictions and private conscience in a resort
to arms. They were especially alarmed about the inherent dangers of private war and
15
the private execution of justice and so gravitated toward the quasi-constitutionality of
rebellion by public bodies. (eg., Hotman, Francogallia (1573); Mornay, Vindiciae
conta Tyrannos (1579); Locke, Two Treatises of Government (1690) ) But even
tyrannicide was affected by this ambient quasi-constitutionalism, for it had to be, in
some sense, a representative act “on behalf of the community, in defense of values
generally shared, against a tyranny generally recognised as such” (Jaszi & Lewis,
1957: 91). Those resistance theorists like Buchanan and Mariana (De Rege et Regis
Institutione (1599) who argued for tyrannicide did so in the conviction that such
prima facie private acts were in reality public deeds. In exercising the right of
personal self-defence against tyrannical attacks by taking the life of the tyrant, the
tyrant slayer was acting on behalf of the political community through reasserting its
violated laws in an act of punishment. But in asserting a right to punish a tyrant for
his crimes much more was being claimed that a simple right to resist based upon
legitimate self-defence. It was an implicit claim to have a just cause and so dispense
rectificatory justice. But this was not the ultimate objective of the just internal war.
Whichever variety of internal war was adopted, its agreed ultimate purpose was to
destroy the lawless, unjust (mis)rule of the tyrant, and so to restore some form of
constitutional government to the political community. And if such an ambition seems
archaic today, it is only partly because of the impersonal, bureaucratic organisation of
modern society. It also seems due to our present carelessness of legality and our
current unconcern (a mixture, perhaps, of complacency and indifference) about the
constitutionality of government. Rebellion and tyrannicide, in summary, served the
public order and the public good in a formal way in aiming at removing an intrusion
of unconstitutional, violent private rule from the public sphere by extra-constitutional
means, when constitutional methods were no longer effective. The restoration of
constitutional government to the political community was the restitutio in integrum of
just internal war. It was its version of the just peace, which is the end of war.
III
During the twentieth century and thus far into the twenty-first century, there has been
a notable renewal of the just war tradition. That doctrinal revival, as O’Brien rightly
observed, has not extended to contemporary armed struggle or insurgent/revolutionary
16
war. He writes: “Logically there should be an elaborate jus ad bellum and jus in bello
for revolutionary war, but the development of such a doctrine has never been
seriously attempted. As a result. the issues of revolutionary war tend to be treated on
an ad hoc basis as a special cases vaguely related to the regular categories of just
war.” His own treatment is no exception, as he admits, though he attempts to pinpoint
the special problems of insurgent war when it is assimilated into the traditional just
war categories. (1981:18). The same may be said of the other two main contributors
to the revival of just war theory, Michael Walzer and James Turner Johnson. (Paul
Ramsey is the fourth member of the quartet who revived the just war tradition over
the past few decades. His major works The Just War (1963/1986) and War and the
Christian Conscience (1961) are omitted here since they do not address the topic of
revolutionary insurgent warfare. Ramsey’s account of a justifiable revolution relates
to Protestant resistance theory in early modern Europe (1961: 114-133), while his
general approach to just war theory is indicated by the subtitle of his earlier book,
“How shall modern war be conducted justly ?”. In other words, his is an exclusively
jus in bello approach to just war and so it omits major considerations of justice bound
up with ius ad bellum.) O’Brien has a more restrictive view of contemporary armed
struggle than Walzer and Johnson and so the subject matter of all three will be
considered. Between them they provide a moral analysis of three types of
revolutionary war or insurgent armed struggle: terrorism, ethnic conflict and guerrilla
warfare.
Terrorism is treated in fairly summary fashion by both Walzer and Johnson.
Walzer’s definition of terrorism as “the random murder of innocent people” (1978:
200) rules out the possibility of its moral justification in any set of circumstances on a
deontological ethic (in which harming the innocent is invariable morally wrong).
Johnson similarly sets insurgent terrorism aside as a form of armed “force which aims
directly at noncombatants, attempting by creating fear among the defenceless to
undermine the political structures that are supposed to provide protection.” (1984: 61)
Attacks on non-combatants are attacks on the innocent and thus inherently immoral.
Johnson, in his more elaborate analysis of this kind of armed violence, also notes that
terrorists lack just causes since their goals are ideological, not the rectification of legal
wrongs in international society. They also lack legitimate authority , even on a fairly
relaxed interpretation of that principle as merely enjoying popular support. in the
17
community on whose behalf the purport to act. Finally, terrorists are devoid of right
intention in their use of violence. (1984: 61-62).
Again both Walzer and Johnson, though not O’Brien, discuss the second type of
armed struggle, war against civilians. Strictly, the consideration of this category in
Walzer does not count, since it is focused exclusively on this tactic in conventional
war. Only Johnson examines what Kaldor terms “New Wars” of which an essential
component is a strategy of atrocious attacks on non-combatants, sieges, destruction of
historic monuments etc. (1999: 8) Johnson takes two case studies – the war against
refugees in Rwanda-Zaire and the siege of the cities in the Bosnian armed conflict.
His analysis is learned, subtle and discriminating, but, fundamentally, there is a single
just war principle – non-combant immunity from attack - which is systematically
violated and this ensures these ethnic armed conflicts are all cases of unjust war.
Guerrilla warfare too contravenes many of the key principles of just war according
to Johnson and O’Brien. O’Brien notes that “whole categories of persons who are
clearly noncombatants under the traditinal jus in bello are held to be proper targets for
attack under the logic of revolutionary war. “ (1981: 180) This logic, on inspection,
consists in the insurgents’ claim to be fighting a people’s war so that those who
oppose, disagree or even hesitate to side with the “people” and its self appointed
protagonist are its enemies, irrespective of whether or not they bear arms as
combatants. Johnson also contends that the principle of non-combatant immunity is
frequently violated in guerrilla war and that legitimate authority, in its normal just war
sense, is missing. Johnson tends to treat the formal requirement of legitimate
authority as inessential and so devises a substitute. His observation is pertinent here:
"Perhaps more than any other just war concept, that of right authority may seem
irrelevant to an age when such cynicism exists about state power and in which, by
contrast, popular revolutionary movements have for some persons taken on the
presumption of legitimacy that formerly attached to the state." Turner goes on to
argue that by 1982 the PLO "had certainly reached the stage of de facto legitimacy,"
that is, "enjoying right authority or having compétence de guerre" through being well
consolidated politically and by virtue of possessing extensive military forces which
were increasingly engaged in conventional military actions (Johnson 1984, 53-54).
How these attributes are supposed to confer moral legitimacy, as distinct from power
18
and force, is unclear, for legitimate authority is a de jure, not a mere de facto, concept.
What appears to have happened is the moral concept of right authority has been
replaced by the conception of compétence de guerre as a technical capability for
conducting conventional military operations. Similarly, legal facts about revolutionary
insurgents, such as having a public purpose, a degree of organization and a modicum
of success, in addition to their readiness to adhere to the laws of war, neither
constitutes legitimate (moral) authority, nor confers that moral status on the
revolutionary group (pace O'Brien 1981: 19, 158-62).
It is striking feature of both discussions that the key principle of just cause is
neglected. Johnson omits any discussion, while O’Brien correctly argues that
internal revolutionary war must be defensive war against a tyrannical regime, but
never succeeds in showing that the insurgents are actually pursuing the goal of
destroying the tyranny to restore the just peace of constitutional government. Indeed,
his own account of people’s wars would suggest otherwise, for the cause of the
revolutionaries seems to be entirely ideological, namely, the Marxist-Leninist one of
overthrowing the existing regime (which may indeed be a tyranny) in order to
establish a revolutionary democratic dictatorship of proletariat and peasantry, that is, a
people’s state. On an earlier argument, that does not count as a just cause. This
neglect of just cause in guerrilla wars has an important consequence. It undermines
the discussion of the just war principle of proportionality in this type of war by both
theorists (O’Brien, 1981:163-164; Johnson, 1984: 53-60). To satisfy the principle, the
probable good resulting from a just war must be greater than the probable evil it leads
to in terms of loss of life, injuries, the destruction or severe damage done to property,
and so on. Both O’Brien and Johnson note both the extreme commitment of
insurgents to the cause for which they fight and their insistence that its moral
importance is overriding, but their cause is invariably ideological and therefore not a
just one. But the consequences which count in this means/end analysis are those
which result from the achievement of a just cause and hence the realisation of a just
peace, and not the putatively beneficial consequences of achieving some other
(ideological) cause. That consideration is irrelevant to the just war principle of
proportionality.
19
Walzer’s analysis of guerrilla warfare is a more nuanced account than those of
Johnson and O’Brien. He recognises that guerrillas commonly attack noncombatant
civilians, but claims this is a contingent feature of their armed struggle. He largely
avoids the issue of legitimate authority by his emphasis on the popular support for the
guerrillas, although that fact is not its equivalent. Like Johnson, he omits just cause
from his analysis and never suggests that such wars are defensive against tyrannical
governments and aim to restore the rule of law and constitutional government. To
suggest that was the aim of the Marxist guerrillas of the Viet Cong would plainly be
ridiculous. Instead, Walzer focuses on what he holds to be the necessary character of
guerrilla warfare, that it is subversive of what he terms the “war convention”. Acting
as a military force but appearing in the guise of civilians, the guerrillas force their
enemy into waging indiscriminate war, that is, not to differentiate between legitimate
targets (combatants) and illegitimate targets of attack (non-combatants). Walzer
morally endorses the guerrilla mode of war largely on account of the injustice of
counter-insurgency warfare which, he argues, must wage war on civilians. (1978:
176-196)
It is a rather obvious point to make that the injustice of the enemy does not entail
the justice of his adversary: both parties to the conflict may be waging unjust war in
an unjust way. Moreover, if it is permitted to set aside legitimate authority and just
cause from the moral argument, and if its is accepted that counter-insurgency warfare
is necessarily indiscriminate and not merely a contingent feature of the Vietnam war,
Walzer’s argument still runs into a major just war objection. The key part of his
analysis is the claim that guerrilla armed struggle “is subversive not merely to the
occupation or to their own government, but with reference to the war convention
itself.” (1978: 179). This war convention appears to be the laws of war supplemented
by sundry customs, religious-cum-philosophical principles and professional codes.
(1978: 44-46) The classical just war theorists’ objection to this mode of war was
summed up by Gentili in his discussion of why brigands do not wage war. The laws
of war are derivative of the laws of nations, he argued, and “malefactors do not enjoy
the privileges of a law to which they are foes.” This law of nations, he continues,
which is an agreement or compact (among members of the international society of
mankind), cannot “extend to those who have withdrawn from the agreement and
20
broken the treaty of the human race…” It is for this reason that pirates and brigands
are the enemies of the human race (Buchanan and Locke, among others, extended this
category to include tyrants for their subversion of the law) and are never accorded the
rights of lawful belligerents. (1612/1933: 22) There seems no obvious reason why
Gentili’s strictures do not equally apply to guerrillas, unless of course Walzer is
mistaken in his view that their subversion of the laws of war is a necessary feature of
their revolutionary armed struggle.
Walzer’s position over terrorism and guerrilla warfare are similar in one important
respect; both are accounts of what he takes to be their necessary features. This is in
contrast to the just war analyses of O’Brien and Johnson which represent their failure
to implement just war principles as contingent facts about these insurgencies The
final part of this paper will attempt to address the difficult problem which is raised
here: are insurgencies contingently or necessarily unjust ?.
IV
In the previous sections it has been argued that various just war principles are
logically tied to the principle of just cause. A just peace is the consequence of
achieving the just cause of the war, it has been argued earlier. This in turn means that
the ius ad bellum principle of right intention is fulfilled, for right intention in a just
war means an overall concern to attain a just peace, whilst restraining evil. (It may
also imply a commitment not to harm innocents intentionally, according to Finnis
(1998: 285) Right intention thus excludes what St Augustine called, “the desire of
harming, the cruelty of avenging, an unruly and implacable animosity, the rage of
rebellion, the lust of domination and the like (quoted in Aquinas 1974: 161), which
are common features of insurgent warfare.)
Similarly, it has been argued in the previous section that the just war principle of
proportionality is tied to that of just cause. A war cannot fulfil this ius ad bellum
criterion unless the probable good resulting from the war that is weighed against the
probable evils of waging the war is that which results from the securing redress of the
wrong or the attainment of the just cause. (Vitoria 1991, 304; Suarez 1944, 805-06,
817-18;)
21
To this may be now added the key ius in bello principle of discrimination which
confines hostilities to the morally nocent (combatants) and prohibits them against the
innocent (non-combatants). Historically, the principles of ius in bello developed
independently of, and later than, those of ius ad bellum. They were derived from the
medieval code of chivalry and that original disjunction has tended to persist in both
the just war tradition and in its offspring, the modern laws of war. That is to say, the
discussion of discrimination has traditionally taken place without any reference to ius
ad bellum, for it has been assumed that the question, can war be undertaken justly ? is
unconnected to the question, can war be waged justly ? They are, however, logically
connected through the principle of just cause. The moral distinction between noncombatants and combatants (or between illegitimate and legitimate targets of attack),
is derived from the logically prior ius ad bellum principle of just cause as follows.
The generic just cause for a just resort to war is that a wrong had been done to the
political community so that the war is undertaken to rectify, and where needed, to
punish, that wrong. Consequently, as Vitoria had argued, it was just to draw the
sword against those individuals who had wronged the community, but unjust to do so
against those who had done it no wrong (Vitoria 1991, 303-04). The just cause
therefore determines not only when war may be a legitimate recourse, but also those
persons against whom it may be justly waged (combatants) and those who are morally
exempted from attack (non-combatants) (Finnis 1998, 284-85). (In the case of an
internal war against tyranny, it only the hostile attacks of the tyrant and his agents that
are defended against, if that war is justly fought.) That is, only those responsible for
the wrong are legitimate targets in a justly fought war. On the face of it then, only the
ius ad bellum principle of legitimate authority, of the key just war principles, seems
unconnected to the prima facie, logically prior, principle of just cause. Nevertheless,
if a war lacks a just cause it will be unjust on several other counts, though, arguably,
non-fulfilment of a single principle is sufficient to ensure the war is unjust.
Many, possibly most, insurgencies since 1945, have pursued ideological, not just
causes, and so are unjust wars. Others may have sought to rectify justiciable wrongs.
But provided the rule of law prevails in the particular state in which the insurgency
occurs, such an internal war will be unjust, for a function of the constitutional state is
to facilitate redress of justiciable wrongs through the judicial procedure of its courts.
22
Any other attempt to rectify the wrong would not be a public act and hence must be
unjust. National liberation wars do not appear to be collective attempts to redress a
justiciable wrong arising from breach of the constitutive rules and norms of
international society by the act of an international legal persona. On the contrary,
their goal – national self-determination - is, on the face of it, an ideological one, since
it is specified as a desirable political end by the ideology of nationalism. Given this,
there is no just cause and so these wars will also be unjust. But against this is may be
urged that the rules and norms of the contemporary international society of states
make national self-determination or independent nation-statehood a right of all
peoples. Indeed, the two International Covenants on Rights of 1966 declare: “All
peoples have the right of self-determination,” and from this point, it is a short step to
take to suppose that a denial of this right to a people is a wrong which justifies a resort
to arms against the state which forcibly deprives it of that right. It has previously be
noted that Additional Protocol I (1977) to the 1949 Geneva Conventions determined
that wars of national liberation should hereafter be legally treated as international
armed conflicts and thus subject to the international humanitarian law of armed
conflict, although that in itself is no guarantee a just cause will be present. Inis
Claude has pointed out where that occurs, namely, in UN General Assembly
resolution 3314 on aggression (1974) which, he claims,“converts aggression into just
war” when the “certified good cause” is national self-determination. (1980, 95).
There is a case then for considering the witholding of national self-determination by a
state as a justiciable wrong in international law, and therefore constituting a just cause
for the nation or nations affected.
Against this position it should be observed that, despite the universalist language of
the 1966 International Covenants and similar UN documents, it is a contingent fact
that there is no agreed legal definition of a "people," and so there is no universal
criterion of nationality, nor any agreed procedure for determining the "national
territory" on which an independent nation-state is to be established. Indeterminacy is
the result. It is therefore unsurprising that in practice the UN has restricted the
application of the right to colonies, where a single and separate nation or people (on
any definition) rarely exists, on the one hand, and on the other, has extended it to
those citizens of independent states who are deemed to be subject to "racist" regimes
or to "alien occupation and domination" (often supposed to be non-whites in apartheid
23
South Africa and Palestinians in the territories of Gaza and the West Bank, occupied
by Israel since 1967). In effect, the UN overcame the problem of indeterminacy by
arbitrarily stipulating the meaning of "peoples" for the purpose of application of the
right and this arbitrarily rules out the right of national self-determination elsewhere.
Effectively, national self-determination has become a Third World, not a universal,
right, and, as such, its violation is disqualified from counting as a just cause of war.
If the arbitrary restriction imposed by the UN on the application of the right of
national self-determination is removed, however, it will not thereby be converted into
a universal right, because the concept of the nation and its identity is intrinsically
indeterminate and hence its application will inevitably be discriminatory. Selfdetermination, that is, is incapable of universal implementation as the indeterminacy
of “peoples” entails the implementation of the right in some cases is only possible by
not implementing or denying it others. For example, if the Protestant population of
Northern Ireland is part of the Irish nation, as Irish nationalists insist, then the right of
national self-determination should be applied to the entire population of Ireland, the
Irish nation. But the same Protestant population consistently denies its alleged Irish
national identity, and asserts it is part of another people, the British. In which case,
the principle of self-determination should be applied to them as British, not as Irish.
Whichever way the right of self-determination is implemented, it will always be for
one nation at the expense of another; the right’s application is discriminatory.
V
The conclusion of this paper is that there is no just cause in any contemporary form of
armed struggle. But even if a tolerably plausible case could be made for some cause
as just – as I have attempted to do with national self-determination – it will only be
just, if at all, in the context of an international war. Since there are no just causes in
internal wars and because this is necessarily the case, as has been argued above, it
follows there is only one situation in which internal wars will be just. This is where
the war is undertaken solely in self-defence against attacks made by private men who
wear, without entitlement, the robes of government office, or who stretch beyond their
robes. To date, therefore, the just internal war is limited to the single case of armed
resistance to tyrannical regimes.
24
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