Kofi Annan has recognised the woeful shortcomings of international law and the organs of the United Nations in the face of phenomena with which we are increasingly familiar. States are identifying armed threats to their populations and launching pre-emptive military action to disable the potential aggressor. They are also sending armed forces to rescue a population from humanitarian catastrophe generated by its own government's policies or by the disintegration of a failing State.
Can centuries of Christian reflection on the moral legitimacy of armed conflict contribute to the current debate? This collection of lectures and essays by Oliver O’Donovan allows an affirmative answer. They may be regarded as his learned commentary on the Suarez dictum: “It is necessary to preserve in war the same quality as a just judgement”. The paradigm for war is an act of judgement made by appropriate public authority with the aim of establishing peace.
This paradigm allows O’Donovan to reject the sceptical assertion that going to war is not justiciable. It is, but the appropriate organ of judgement is the UN Security Council. More conventional judicial organs are appropriate for determining breaches of international humanitarian law (IHL) committed in the course of armed conflict. It is unfortunate that the essay on war crimes appears to have been written before the July 1998 signing of the Rome Treaty establishing the international criminal court. It would be interesting to hear O’Donovan's view of the Treaty's capacitating the Security Council to indefinitely suspend prosecutions for genocide, crimes against humanity or war crimes. Surely, a confusion of tribunals? I suspect he would not disapprove. He is surprisingly lukewarm to the idea of ascribing personal criminal responsibility to individuals. Thus, inter alia, he considers it may be preferable to impose economic sanctions on a population rather than arrest and prosecute the political leadership. In my opinion we may be grateful that Louise Arbour, the then prosecutor of the War Crimes Tribunal, held her nerve and issued an arrest warrant against Slobodan Milosevic. Commanders In Chief are on notice that there is no impunity for those politically responsible for attacks on innocent civilians. Again, O’Donovan considers there should be a time limit on prosecutions for breaches of international humanitarian law. Would Professor O’Donovan not agree to the prosecution of an alleged murderer linking him by freshly available DNA evidence to the scene of a crime of fifty years ago?
O’Donovan does not like the term “Just War”. For him it is too reifying of a complex of actions and can obscure discernment of transgressions of moral principles within a conflict. However, I think it is a very useful term in its modern usage which confines it to the question of the moral legitimacy of launching military operations by public authority.
As a member of the Australian government during the first Gulf War in 1991, I was quite clear that the term “Just War” dealt with the decision to go to war. The rules of engagement would then incorporate principles of IHL so that the war would be conducted justly. For those in the highest echelons of political decision making, the term “Just War” is useful and enables conversation around agreed criteria. O’Donovan's describing of those criteria is somewhat innovative. Rather than ticking off traditional ius ad bellum criteria he uses the one governing idea of proportionality, so that war is a reactive pronouncement upon an offence and is waged and limited to righting the wrong. Then the criteria of discrimination and proportionality ensure that the just order of peace is attained by means morally compatible with that end. O’Donovan is marvellously lucid in insisting that discrimination looks to the intention of the actor. In the military operation, is it intended only to attack those engaged in wrongful conduct, i.e. practically engaged in doing harm?
In an era of conscript armies and highly propagandized troops, I am not sure of the utility of the term “guilty” to describe an average soldier under legitimate discriminating attack. Despite O’Donovan's best endeavours it connotes a personal blameworthiness. The distinction between combatants and noncombatants is, I think, a more useful one.
O’Donovan seems to press the paradigm of war as judgement too far in describing economic or political sanctions as war by means other than military. It is true that each is imposed by public authority to right a wrong. Quite apart from the fact that there is often an admixture of economic sanctions secured by military blockade, even O’Donovan recognizes that such sanctions are precisely targeted at the innocent civilian population with the aim of fomenting rebellion against its government. The criterion of discrimination, so essential to the moral waging of war, might be applied at the margins (as with medical supplies) but not comprehensively as this would defeat the purpose of the sanctions.
But, overall, this little book has the great merit of presenting a comprehensive and coherent account of the moral principles which could underlay a Christian response to Kofi Annan's call for reform of international law and its structures.
