Invasion Phase of the War in Afghanistan: A Jus post Bellum Analysis

Introduction

The War in Afghanistan occurred in two stages: the first was the invasion in 2001, the second was the insurgency phase which lasted from the end of the invasion until American withdrawal in 2021. The difference (besides switching from symmetric to asymmetric warfare) is usually accounted for by a change of enemy: during the invasion-phase the enemy was the Islamic Emirate’s military, and afterwards it was the Taliban.

This paper begins with a review of modern (“maximalist”) jus post bellum theory as exposed by Brian Orend. The theory is then critically examined both independent of the rest of Just War Theory as well as how jus post bellum relates to jus ad bellum and jus in bello. Finally, it is applied to the end of the invasion phase of the War in Afghanistan.

Jus post Bellum, Old and New

Frowe distinguishes¹ between a minimalist and maximalist approach to jus post bellum.

The minimalist approach, advocated by the diplomat and legal theorist Hugo Grotius, is designed to rein-in the zeal of the victor. It considers jus post bellum criteria as permissions: what the victors are allowed to do in victory. The minimalist theory allows the victors to take actions that “protect themselves, recover that which was illicitly taken, [and] punish the perpetrators.” Temporary occupation is acceptable, colonization is not. Further, it is unacceptable to force the inhabitants of the defeated nation into slavery.

The maximalist approach imposes obligations on the victors instead of granting them permissions. The concern is not that the victor’s actions must be limited, but rather that the victor will do too little, leaving the defeated nation a failed and dysfunctional state.

Orend’s Jus post Bellum Criteria

Orend claims² that a just peace must satisfy all of the following criteria:

Rights vindication – “The settlement should secure those basic rights whose violation triggered the justified war. The relevant rights include human rights to life and liberty and community entitlements to territory and sovereignty.”³

Proportionality and publicity – Conditions stipulated by the peace treaty should not be vengeful and should be publicly available.

Discrimination – Isolate civilians from punitive measures.

Punishment of leaders – Leaders of the defeated nation must be punished, as a deterrence to future aggression, to spur atonement, and “failing to punish the aggressor degrades and disrespects the worth, status, and suffering of the victim.”⁴

Punishment for war crimes – Combatants on all sides must be held accountable for any war crimes.

Compensation – Subject to proportionality and discrimination.

Rehabilitation – Aggressor state may require demilitarization and political rehabilitation (regime change).

Problems with Jus post Bellum Criteria by Itself

The main problem with jus post bellum criteria is that it commits the victor to nation-building. Orend requires that we restore rights, including “community entitlements to territory and sovereignty,” not just individual rights. He goes on to require that the victorious nation must⁵:

• “Provide effective military and police security for the whole country.”
• “Revamp educational curricula to purge past propaganda and cement new values.”
• “Ensure that the benefits of the new order will be (i) concrete, and (ii) widely – not narrowly – distributed.”

We must provide military defense, police, an educational system, and a distributive economic system for the defeated nation. We’re responsible for their long-term care, well-being, and protection. We’re not just stopping a war; we’re exporting a progressive’s conception of democracy. Orend explicitly acknowledges this, summoning the spirit of Immanuel Kant and stating that for the defeated nation, “the utmost which can be done to it in vindication of international law and order is the establishment of a more peaceable and progressive social order within it.”⁶

Frowe notes that the maximalist jus post bellum as espoused by Orend is grounded in liberal theory and international law⁷; she is being literal here, and the foreign policy required by Orend (and Kant) is best described as “liberal imperialism”⁸ and commits us to being not only the world’s policemen but also the world’s social workers.

Relationship to the Rest of Just War Theory

Other than the Doctrine of Discrimination, discussed in next section, the maximalist approach to jus post bellum interacts with at least two other criteria from Just War Theory: the “reasonable chance of success” criterion from jus ad bellum and the proportionality requirement from jus in bello.

If a likelihood of success is required before entering into war, then the nation building described above must be part of the calculation. Rebuilding a whole nation in the way described by Orend is a truly massive undertaking that is unlikely to succeed, as illustrated by the insurgency stage of the War in Afghanistan. Thus, the probability of success is lowered.

The type and amount of collateral damage inflicted must also be considered, as the victor nation is responsible for rebuilding the infrastructure damaged during the war. Under this, the cost of reconstruction must play a role in determining whether to attack a specific target, and not just military benefit. The evaluation of proportional response is thus distorted by economic concerns.

The Doctrine of Discrimination

The Doctrine of Discrimination, usually considered part of jus in bello, arises again in Orend’s jus post bellum criteria: the civilians⁹ of the defeated nation must be isolated from punitive economic measures enforced by the victor. The doctrine thus plays the same role in both jus post bellum and jus in bello theories: avoid harming the civilians. The Doctrine of Discrimination is problematic in both theories because it makes a crucial assumption about the civilians of the enemy nation: that they are “innocent.”

How do civilians get along in a totalitarian regime? It is popularly assumed that they have no choice in the matter, that they (as a whole) were forced to live in a dictatorship. Is this really the truth? There are numerous examples of dictators who won office through popular election.

Further, members of the populace frequently act as informants, collaborators, or private enforcers of the government edicts. A good example of this came after the fall of the Berlin Wall: once Germany was reunited, lists of collaborators with the East German Stasi were released, and it has been calculated that 18% of the population of the city of Rostock were informers.¹⁰

A more recent and close-to-home example of private individuals and companies taking on the role of law enforcement happened during the lockdowns, vaccine mandates, and mask mandates in 2020 – 2023: examples of government enforcement of these mandates (for example, discharging military members for refusing vaccination) did occur, but it was far more common to have private people and institutions act as enforcers¹¹.

No, private individuals and non-combatants are far from innocent, and this undercuts the Doctrine of Proportionality. This will become extremely relevant in the next section.

Conclusion - Application of Jus post Bellum to the War in Afghanistan

During both phases of the war, the United States clearly distinguished the military vs. civilian parts of Afghani culture and endeavored to avoid or at least limit the use of force against civilians as much as possible. In that, we followed the Doctrine of Discrimination, taking no punitive actions against non-combatants and requiring almost no cultural changes. In fact, we went out of our way to leave as little of an “American culture footprint”¹² as possible.

Examples of this were the so-called “Cultural Support Teams”¹³ and the “Female Engagement Teams.”¹⁴ The goals of both programs were to build relationships with Afghani women by sending female soldiers or Marines to meet with them and earn their trust. They were initially controversial because they involved placing females into combat situations. The real controversy should have been the extent that the teams kowtowed to the misogynistic aspects of Afghani culture: female soldiers and Marines were required to always wear head coverings and always have male escorts, even when security was not a major concern. Both CSTs and FETs were considered failures.

More egregious examples of this “cultural support” were the continuation of child marriages and bacha bazi, the latter being the purchase and use of adolescent and pre-adolescent boys for sex by mature male adults. Bacha bazi was outlawed by occupation forces¹⁵ as well as by the Taliban (both before and after American withdraw). However, U.S. forces were explicitly instructed to ignore instances of such sexual abuse. According to the father of one Marine in Afghanistan, “my son said that his officers told him to look the other way because it’s their culture.”¹⁶ A Special Forces soldier was relieved of his command after acting against an Afghan perpetrator.¹⁷ The practice continues unabated.

Bacha Bazi in Afghanstan. Photo from the Indian Times

While all this was happening, foreign policy experts were arguing for “the separation of mosque and state.”¹⁸ It was clear that the Americans thought it was sufficient to replace the Islamic Emirate with the Islamic Republic, substituting one system of government with another.

Was the period following the end of the combat phase of the War in Afghanistan a just peace? In one sense it was, because we undertook the process of rebuilding that nation. In another sense it was not, because we never defeated the real enemy, the “innocent” Afghan civilians.

Footnotes

1. Helen Frowe, The Ethics of War and Peace. Routledge, 2022.
2. Brian Orend, “Jus Post Bellum: The Perspective of a Just-War Theorist.”
3. Ibid.
4. Ibid.
5. All quotes from ibid.
6. Ibid.
7. Helen Frowe, The Ethics of War and Peace. Routledge, 2022.
8. Dan Cox, “The Age of Liberal Imperialism: Twenty-Five Years of a Flawed U.S. Foreign Policy.”
9. Orend specifies “civilians” and avoids discussion of non-combatants and other edge-cases.
10. Peter Wensierski, "East Germany thrived on snitching lovers, fickle friends and envious schoolkids."
11. Madeline Chambers, “Germans snitch on neighbours flouting virus rules, in echo of the Stasi past.”
12. Ben Connable. “Human Terrain System is Dead, Long Live … What?”
13. Megan Katt, “Blurred Lines: Cultural Support Teams in Afghanistan.”
14. Anna Coll, “Evaluating Female Engagement Team Effectiveness in Afghanistan.”
15. Chris Mondloch, “Bacha Bazi: An Afghan Tragedy.”
16. Joseph Goldstein, “U.S. Soldiers Told to Ignore Sexual Abuse of Boys by Afghan Allies.”
17. Ibid.
18. Alexander Bernard, “The Advantage to Islam of Mosque-State Separation: What the American Founders can teach.”

Bibliography

Bernard, A. “The Advantage to Islam of Mosque-State Separation: What the American Founders can teach.” Hoover Institution, 29 January 2008. Retrieved 4 May 2024 from https://www.hoover.org/research/advantage-islam-mosque-state-separation

Chambers, M. “Germans snitch on neighbours flouting virus rules, in echo of the Stasi past.” Reuters, 2 April 2020. Retrieved 4 May 2024 from https://www.reuters.com/article/idUSKBN21K2RD/

Coll, A. “Evaluating Female Engagement Team Effectiveness in Afghanistan.” Wellesley College Honors Thesis Collection, April 2012. Retrieved 5 May 2024 from https://core.ac.uk/download/pdf/217003814.pdf

Connable, B. “Human Terrain System is Dead, Long Live … What?” Military Review, January-February 2018. Retrieved 5 May 2024 from https://www.armyupress.army.mil/Journals/Military-Review/English-Edition-Archives/January-February-2018/Human-Terrain-System-is-Dead-Long-Live-What

Cox, D. “The Age of Liberal Imperialism: Twenty-Five Years of a Flawed U.S. Foreign Policy.” Orbis 57 no. 4, Autumn 2013. https://doi.org/10.1016/j.orbis.2013.08.010

Frowe, H. The Ethics of War and Peace. Routledge, 2022.

Goldstein, J. “U.S. Soldiers Told to Ignore Sexual Abuse of Boys by Afghan Allies.” New York Times, 20 September 2015. Retrieved 5 May 2024 from https://www.nytimes.com/2015/09/21/world/asia/us-soldiers-told-to-ignore-afghan-allies-abuse-of-boys.html

Katt, M. “Blurred Lines: Cultural Support Teams in Afghanistan.” Joint Force Quarterly 75, no. 4. October 2014. Retrieved 5 May 2024 from https://ndupress.ndu.edu/JFQ/Joint-Force-Quarterly-75/Article/577569/blurred-lines-cultural-support-teams-in-afghanistan/

Mondloch, C. “Bacha Bazi: An Afghan Tragedy.” Foreign Policy, 28 October 2013. Last retrieved on 4 May 2024 from https://foreignpolicy.com/2013/10/28/bacha-bazi-an-afghan-tragedy/

Orend, Brian. “Jus Post Bellum: The Perspective of a Just-War Theorist.” Leiden Journal of International Law 20, no. 3, September 2007. https://doi.org/10.1017/S0922156507004268

Wensierski, P. "East Germany thrived on snitching lovers, fickle friends and envious schoolkids." Australian Financial Review, 23 December 2015. Last retrieved 5 May 2024 from https://www.afr.com/life-and-luxury/arts-and-culture/stasi-snitches-all-around-records-reveal-true-extent-of-telling-on-others-20151116-gkzu44

Another Jus in Bello Evaluation of Hiroshima and Nagasaki

Just finished responding to a jus in bello analysis of Hiroshima and Nagasaki written by an active-duty Marine. He is a Staff Sergeant who is also an assistant instructor at a Naval ROTC program at a midwestern state university. Said Marine wrote an essay stating that using nuclear weapons on Hiroshima and Nagasaki were morally wrong. He was using the same Just War Theory and he sites the exact same facts as I did in my previous post, but he drew the exact opposite conclusion.

Unfortunately his post is private and I don't have permission to republish it here. Below is my hastily-written response. If it wasn't so rushed, I would expand on the "non-combatant vs supporter" theme by writing:

Just War Theorists go through considerable wrangling to determine who is a legitimate target and who isn't. In her text, Frowe talks about how "wide" to cast a net in order to catch the right targets:
     too wide = all combatants plus some non-combatants
     too narrow = some (but not all) combatants plus no non-combatants.
If we do cast too wide, which non-combatants are to be included as targets? The obvious targets, like civilians working in armament plants, makes sense. I would claim that the "journalists" who screeched for war, the politicians who clamored for war, and the defense contractors who profit before, during, and after the war make for far better targets than the actual combatants due to the amount of harm they cause.

An assumption that needs to be checked is the "innocence" of non-combatants. It may be more accurate to call them "supporters" or "enablers," or at least some of them. Their innocence is problematic because of the way the general citizenry frequently get along in a totalitarian country such as Imperial Japan. When Germany was reunited after the fall of the Berlin Wall, lists of collaborators, informants, and other people who worked with the East German Stasi were released, and those were not short lists!

The following is my response to his essay.

Respectfully sir, you are wrong. Here's why...

In Chapter 5, Frowe¹ lays all the cards on the table regarding jus in bello criteria. After giving a straw-man version of "realism," the main part of the chapter begins by saying that jus ad bellum and jus in bello must be kept logically separate. One of the reasons given is that the combatants may be conscripts, therefore the warfighters are tools and cannot be held morally responsible for their leaders. Those who accept that reasoning don't realize that at any point in history where conscription was used, there have always been draft resisters. For those who do volunteer, Frowe states² that "by enlisting, they wave their right not to be killed in battle by the other side. They are therefore not wronged by being killed..." It isn't exactly clear how they give up their right to life, and many would claim that the right to life is one of the reasons why we do fight.

To get the Principle of Discrimination working, Frowe then attempts to distinguish between "combatants" and "non-combatants". A "Realist War Theorist" (the belief system I hold) would instead distinguish between "combatants" and "enablers" or "combatants" and "supporters," but let's continue with her dichotomy. For JWT, this creates a 4-way classification system - friendly combatants, our non-combatants, enemy combatants, and enemy non-combatants. There is much wrangling in Chapter 5 about the "value" assigned to the people in each class. There's nothing wrong with this.

On friendly combatants vs enemy combatants, the Just War Theorist Michael Walzer states³ "the moral status of individual soldiers on both sides is very much the same" and that "they face one another as moral equals." Really? By this, US Marines and soldiers are morally equivalent to the Japanese soldiers who participated in the "rape of Nanking." This was a six week long massacre that started when the Imperial Japanese Army invaded the Chinese city of Nanking⁴ in December 1937, during which 200,000 to 300,000 residents were killed, anywhere from 20,000 to 80,000 women and children raped, and 30,000 to 40,000 POWs executed.

An Imperial Japanese soldier, smiling, prepares to publicly behead a Chinese boy. Bettmann/Getty Images

Combining Walzer's position with the above quote from Frowe means our men are not wronged by being killed. As leaders, the men under our command are the most valuable things in the world. Those who have not been in that position would say "if they were so valuable, you would take them out of the combat zone." That only shows a lack of understanding of what warfighters and leading warfighters are all about: they follow you because they wish to follow themselves through you.

The Principle of Discrimination requires friendly non-combatants and enemy non-combatants to also be morally equal: they are both innocents not to be harmed. Really? When I read that, the following comparison jumped to mind: when 9/11 occurred, there were pictures of New Yorkers running away from the collapsing buildings, and there were pictures of people in the Middle East jumping with joy. People who hold non-combatants on both sides are equal must say that those are the same pictures.

Our combatants are more valuable than enemy combatants, and our non-combatants are more valuable than enemy non-combatants. This is why you fight for the men beside you and those behind you. This is also why you don't change sides. Believing this doesn't make you a “rampaging militiaman” as Frowe dismissively states⁵ (she's obviously never met a militiaman), it just means you have your priorities straight.

Regards,
Mike K

Footnotes

1. Helen Frowe, The Ethics of War and Peace.
2. Ibid.
3. Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations.
4. Iris Chang, The Rape of Nanking: The Forgotten Holocaust of World War II.
5. Helen Frowe, The Ethics of War and Peace.

Bibliography

Chang, I. The Rape of Nanking: The Forgotten Holocaust of World War II. Basic Books, 2012.

Frowe, H. The Ethics of War and Peace. Taylor & Francis, 2022.

Walzer, M. Just and Unjust Wars: A Moral Argument with Historical Illustrations. Basic Books, 2015.

War of 1812: A Jus ad Bellum Analysis

Introduction

In this paper the War of 1812 is examined through the lens of the jus ad bellum criteria. We begin with the historical context and major issues that lead to the war. The criteria that form the jus ad bellum – just cause, reasonable chance of success, legitimate authority and public declaration, right intention, and last resort - are evaluated using relevant historical information, and it is found that the War of 1812 satisfies those criteria.

Particular attention is paid to the diplomatic and economic means employed by the Americans in order address one of the modern criticisms of the war: that it was not a war of last resort.

Finally, the outcomes of the war are listed. While at first glance it seems counterintuitive to consider the outcomes while performing a jus ad bellum analysis, it is necessary due to a certain ambiguity in the Just War Tradition.

Historical Context

Prior to the start of the War of 1812, Great Britain and France were engaged in the Napoleonic Wars. The United States was neutral in this conflict and conducted free trade with both belligerents. As a result, both the British and French interfered with American shipping, but what earned Britain the special ire of the United States was the fact that they impressed American sailors (from both merchant and military vessels) into British service. Further, the British were inciting revolt in certain American Indian tribes against the United States.

The issues that lead the United States to declare war on Britain were as follows:

• Impressment of American sailors by the Royal Navy
• Stopping, searching, and seizing the cargos of American ships
• Trade restrictions on our economic activities with France
• Disregard for American neutrality during the Napoleonic wars
• British support for American Indians who acted against the United States

Great Britain, meanwhile, sought to limit American expansion, specifically to prevent the annexation of Canada, to nullify the recently completed Louisiana Purchase, and to use Native Americans to create a barrier state/client state.

Application of Jus ad Bellum Criteria

When applying Just War Theory to any conflict, it is necessary to specify the time at which the evaluation is performed. Jus ad bellum criteria are used to determine whether entry into a war is just, but the evaluation of the criteria can be performed at any time, before the start of a particular war, or during that war, or after the end of that war, and it may give different results when they were applied.

To make this more complicated, evaluation of a war changes in the years following its conclusion. There are several reasons for this: first, the outcome of the war is known; second, additional information (such as government documents or tell-all biographies) becomes available; third, tempers which once ran hot have cooled, and once vivid memory has faded; fourth, veterans and other participants pass away; fifth, the general population’s level of knowledge and overall political philosophy will change; sixth, leaders may find certain aspects of a war “inconvenient” and so attempt to revise history.

McMahon¹ makes a similar point (that jus ad bellum and jus in bello can get switched around temporally) when he states that proportionality should be included in jus ad bellum, under the just cause criterion, as proportionality should be debated prior to the initiation of conflict. This leads to yet another ambiguity – proportional response by whom? The United States at the start of the war was not a significant military force in comparison to Great Britain so a non-proportional response to anything would be unlikely. Would Britain’s responses (such as the burning of Washington) be proportional, and should that be considered in our calculation of just cause?

With the War of 1812, there were no hidden documents and no scandalous memoirs. There were alternative motives (the desire to annex Canada in particular), but those were not hidden motives. The following analysis is an application of jus as bellum criteria using information prior to the start of the war.

Just Cause

Augustine listed three just causes for war: defending innocents against attack, recapturing things taken, and punishing those who have done wrong. Britain had an ongoing habit of attacking our merchant and military vessels, of seizing cargo, and of forcing American sailors to join the Royal Navy. These would clearly count as just causes according to all three of Augustine’s just causes.

Right Intention

America’s intention for declaring war against the British was to redress the injuries described in the previous paragraph. There is no evidence that the intention was to militarily eliminate the United Kingdom, so it can be taken that the goal was re-establish peace once the issues that prompted the war were addressed. This peace would be preferable to that which prevailed prior to the start of the war as impressment of sailors and harassment of American shipping would end.

There were ambitions among some of the politicians strongly in favor of war, the so-called “War Hawks,” that we should annex Canada. These ambitions were not part of the official reasons for going to war, and our defeat of the Battle of Queenston Heights put an end to any such ambition.

Last Resort

Roger Peace describes² the war as a “war of choice.” He notes that “all of the problems cited by Madison in justifying the war were long running concerns that had risen and fallen in importance over the previous two decades.” Further, Peace notes that “[T]he British exerted no sudden demands on the U.S. in 1812”³ and that “Great Britain did not attack or threaten to attack the United States in 1812.”⁴

His analysis fails for several reasons: there was considerable effort by the United States to use economic and diplomatic means to halt the grievances committed by Great Britain, as detailed below. Economic sanctions take time to be effective, and the United States gave Britain that time. Impressment of American sailors did occur in 1812, and would no doubt be ongoing.

There is a more fundamental problem with Peace’s analysis: The fact that Britain made no threats nor militarily attack (outside of the impressments) particularly in the year 1812 is irrelevant; there were all the previous and ongoing actions to be addressed.

Individuals and nations do not return to a state of tabula rasa from millisecond to millisecond as Peace seems to imply. There’s a continuity (with individuals this is called “character” and with nations it is called “policy”) that simply cannot be ignored. To phrase this another way: suppose Britain did militarily attack (outside of the impressments) at 11:59 PM GMT on 31 Dec 1811 – the fact that the attack occurred in the previous year by one second doesn’t make it a non-issue in the current year.

To avoid military confrontation with the British, American politicians attempted to find ways to economically sanction the British. Further, negotiations between them were attempted, but failed to resolve the issues. Despite all this, British impressment and interference in shipping continued. A history of these pre-war events is as follows⁵:

The Non-Importation Act of 1806 was the first attempt to sanction Great Britain over the issues that would lead to the War of 1812. The Act, passed 18 April 1806, was less than a full embargo of all British goods, and instead banned the import of specific items such as woolen clothes above a certain value, silver, paper, playing cards, beer, etc. The Act did permit the import of iron, coal, and steel which were considered too vital our economy. The Act proved to be unworkable, as other countries were found carrying banned goods on their ships. The Act was replaced by a general embargo, the Embargo Act of 1807.

In 1806 President Jefferson tasked James Monroe and William Pinkney to negotiate a treaty with Great Britain to end the impressment of American sailors and the harassment of American ships. The final version of the treaty, the Monroe-Pinkney Treaty of December 1806, did not end the practice of impressment, and so Jefferson refused to forward it to Congress for ratification.

Britain’s willingness to continue harassing American sailors and ships was demonstrated by the so-called Chesapeake-Leopard Affair (June 1807). In this, three sailors from the HMS Melampus jumped ship and joined the crew of the USS Chesapeake. The British Council asked that they be returned, but an investigation by the Secretary of the Navy revealed that the three sailors in question were all American citizens who were previously impressed into British service, so cannot be considered deserters, and thus were not returned.

In response, the British Admiralty issued an order to the captains of all British ships along the American coast requiring them to board the USS Chesapeake, should they meet her, and search for and detain British deserters.

On 22 June 1807, the HMS Leopard encountered the Chesapeake. The Chesapeake’s captain refused to allow the British to perform a search. The Leopard then fired upon the Chesapeake, killing three and injuring 18; the Americans surrendered and allowed their roster to be inspected. The British removed the three previously impressed sailors along with a fourth man.

M Dubourg, Boarding and Taking the American Ship Chesapeake, by the Officers and Crew of H.M. Ship Shannon, Commanded by Capt. Broke, June 1813 (c. 1813)

Prior to the Chesapeake-Leopard Affair, British impressment of American sailors was limited to merchant vessels. The Leopard targeted instead a military vessel and was thus an escalation.

As news of these events spread, the press whipped-up popular outrage and called for war⁶. Jefferson realized the gravity of the events, writing⁷ to James Bowdoin that “this country has never been in such a state of excitement since the battle of Lexington,” but he refused to convene Congress, stating in the same letter that “we propose to give Gr. Br. An opportunity of disavowal & reparation, and to leave the question of war, non-intercourse, or other measures, uncommitted to the legislature.”⁸ Jefferson thus allowed tempers to cool and for additional economic sanctions to be imposed.

In response to the Chesapeake-Leopard Affair and the failure of the Non-Importation Act of 1807, the Embargo Act of 1807 was passed. This wide-ranging Act banned exports to all foreign countries and further restricted British imports. Foreign ships already in American ports were permitted to depart with their cargo intact.

Great Britain was anticipating an American embargo, so it established trade with Spanish and Portuguese colonies in South America. The net result of the Embargo Act was to further British success in that region as it removed the United States as a competitor.

For Americans, the net result of this Act was an economic downturn in the New England area. It also undermined Jefferson’s traditional advocacy of free trade.

The Non-Intercourse Act of 1809 replaced the Embargo Act of 1807. One of the last acts of the Jefferson presidency, it lifted trade embargos on all countries except for Great Britain and France. The Act suffered from problems of enforceability just like the earlier Acts and proved to be ineffective against both Great Britain and France.

Macon’s Bill Number 2, which went into effect on 14 May 1810, was yet another attempt to stop both British and French interference in American shipping. The Bill operated by lifting embargoes against both countries for three months. If either the British or the French ceased disrupting American shipping, then America would embargo the other, unless that other country also agreed to cease interference. President Monroe was an opponent of the Bill, believing that Napoleon would exploit it to force Britain and the United States into war, but he did sign it into law. Napoleon did indeed manipulate the situation as Monroe thought he would.

In the six years prior to the start of the War of 1812 we see the United States attempting negotiations and imposing economic sanctions directly in response to most of the issues for which the war was initiated. While these non-violent attempts were made, Britain continued to harass American ships and sailors. Other sanctions, such as blockading British ports, were outside the abilities of the US Navy at that time. The War of 1812 can thus be considered a war of last resort.

It is worth noting that attempts at economic sanctions against Great Britain continued even after the War of 1812 started.

Legitimate Authority

In a message sent to Congress on 1 June 1812, then-president James Madison detailed grievances against the United Kingdom. He did not explicitly call for a declaration of war. The House and Senate, in closed debates, deliberated the proper course of action, eventually voting in favor of a declaration of war.

The vote was far from unanimous: the main opponents were members of the Federalist Party. They favored strong economic ties with Great Britain, and being based in New England, they were hurt by Jefferson’s various embargos. As Britain and Canada were New England’s primary trading partners, the war would be sure to do further damage to that region’s economy.

The Constitution places the ability to declare war on the shoulders of Congress, and Congress did exactly that by passing “An Act Declaring War between the United Kingdom of Great Britain and Ireland and the Dependencies Thereof and the United States of America and Their Territories” on 18 June 1812, which was signed by Madison.

Reasonable Chance of Success

The JWT principle requiring the reasonable chance of success can be thought of as a prohibition against “wars of bravado” or “hopeless cause wars,” meaning wars that were initiated solely on issues of national pride or honor, or for the signaling of righteousness, etc. Politicians of this era were well-acquainted with this principle. For example, Jefferson, while he was Vice President under John Adams, realized that the fledgling US Navy was insufficient to contend with the Barbary pirates, and so agreed to pay them tribute even though he was opposed to doing so. This changed by 1801, and the Tripoli War (First Barbary War) was undertaken only following the naval buildup that occurred during the Quasi-War of 1798-1800.

Despite this increase in the US Navy’s size, the Royal Navy was still the superior force. However, the bulk of Britain’s land and naval forces were engaged in the Napoleonic Wars.

Following his defeat in Russia and the loss of Paris, Napoleon was forced to abdicate on 12 April 1814 and go into exile in Elba⁹. Some British forces were then transferred to fight the Americans¹⁰. The United States’ odds of victory decreased because of the arrival of additional British forces, but the end of the Napoleonic Wars could not be predicted prior to the start of the War of 1812.

It must be remembered that the British weren’t our only enemies in the War of 1812: there were British allies amongst the Native Americans, particularly the Iroquois and Tecumseh’s Confederacy. The militias of the various states were well-versed in irregular warfare and were qualified to fight them.

Thus, even before the end of the Napoleonic Wars, an American victory was not a foregone conclusion. Absent the additional British forces made available by the cessation of conflict in Europe, an American defeat was not guaranteed, either.

Outcomes of the War

Some have criticized the War of 1812 because under the Treaty of Ghent, the territory claimed by both sides remained unchanged¹¹. This misses the point of the war: the War of 1812 was not fought over land. America may have wanted to annex Canada, and Great Britain may have wanted to nullify the Louisiana Purchase, but those were not among the issues for which we entered the war. Instead, the issues were the rights of sailors and of shipping and the use of American Indians by the British to interfere with our internal affairs.

Another criticism is that the War had no winners¹². This is not correct either – the United States was certainly the winner¹³. The British impressment of American sailors stopped, as did the habit of stopping, searching, and seizing American vessels. There was also a “moral victory” in what could be called the Second American Revolution¹⁴. We entered the so-called “Era of Good Feelings” - particularly after our victory in the Battle of New Orleans. The US Navy grew to the point that we were able to use “gunboat diplomacy” to quickly end the Second Barbary War. The war also created a new set of post-Revolutionary War heroes, including Andrew Jackson, William Eaton, Presley O’Bannon, Oliver Hazard Perry, and so on.

The war also had a clear loser: the Indians. Tecumseh’s Confederacy dissolved after the Battle of the Thames, and the Creek Nation ceded territory (what is now Alabama and southern Georgia) after losing the Battle of Horseshoe Bend (27 March 1814).

Conclusion

The War of 1812 clearly satisfies the jus ad bellum criteria, with the possible exception of the guarantee of success doctrine.

It was declared by the proper authority using the correct legislative process.

It was fought to defend the rights of American sailors, of maritime commerce, and consequently American sovereignty. These goals, these just causes, are usually summed up in the phrase “freedom of the seas.”

Despite Roger Peace’s protestations¹⁵, the United States did attempt diplomatic and economic solutions, and while these attempts were ongoing, British impressment not only continued against merchant vessels, but expanded to military vessels. The war was certainly one of last resort.

America’s success was not a forgone conclusion. At the start of the War of 1812, Britain was involved in the Napoleonic Wars, which consumed a great amount of their military capabilities. So, while Britain was a formidable enemy it was not an invincible one as the outcome of the war demonstrated. America’s second enemy in the war, the American Indian tribes who allied themselves with Britain, were no match for our militia forces.

Finally, we had the right intentions: the goal was to reaffirm the rights of sailors, to defend shipping, and halt British influence among the American Indians. Further, the resulting peace was a better one than existed prior to the war. The extent we were successful in both was described thusly by Theodore Roosevelt:

“We were contending for "Free Trade and Sailors' Rights": by the former expression, freedom to trade wherever we chose without hindrance save from the power with whom we were trading; and by the latter, that a man who happened to be on the sea should have the same protection accorded to a man who remained on land. Nominally, neither of these questions was settled by, or even alluded to, in the treaty of peace; but the immense increase of reputation that the navy acquired during the war practically decided both points in our favor. Our sailors had gained too great a name for any one to molest them with impunity again.”¹⁶

 

Footnotes

1. McMahan, J. “Just Cause for War.” Ethics and International Affairs 19, no. 3 (2005):1-21.
2. Roger Peace. “The War of 1812.” United States Foreign Policy History and Resource Guide website, 2016, https://peacehistory-usfp.org/the-war-of-1812.
3. Ibid.
4. Ibid.
5. The following is from Allan R. Millett, Maslowski, P., & Feis, W. B. For the common defense: A military history of the United States from 1607 to 2012 Free Press, 2012 (3rd ed.).
6. Edwin M. Gaines. “The Chesapeake Affair: Virginians Mobilize to Defend National Honor” The Virginia Magazine of History and Biography 64, no. 2 (April 1956): 131-142. https://www.jstor.org/stable/4246209
7. Jefferson, T. “From Thomas Jefferson to James Bowdoin, 10 July 1807” https://founders.archives.gov/documents/Jefferson/99-01-02-5926
8. Ibid.
9. David Bell. The First Total War: Napoleon's Europe and the Birth of Warfare as We Know It. Mariner Books, 2014
10. Hickey, D. The War of 1812: A Forgotten Conflict. University of Illinois Press, 2012.
11. Roger Peace. “The War of 1812.” United States Foreign Policy History and Resource Guide website, 2016, https://peacehistory-usfp.org/the-war-of-1812.
12. David Bell. The First Total War: Napoleon's Europe and the Birth of Warfare as We Know It. Mariner Books, 2014
13. Willard Sterne Randall. Unshackling America: How the War of 1812 Truly Ended the American Revolution. St. Martin's Press, 2017.
14. Walter R. Borneman. 1812: The War that Forged a Nation. Harper Perennial, 2005.
15. Roger Peace. “The War of 1812.” United States Foreign Policy History and Resource Guide website, 2016, https://peacehistory-usfp.org/the-war-of-1812.
16. Roosevelt, T. The Naval War of 1812, or the history of the United States Navy during the last war with Great Britain, to which is appended an account of the Battle of New Orleans. G.P. Putnam's Sons, 1882.

Bibliography

Bell, D. The First Total War: Napoleon's Europe and the Birth of Warfare as We Know It. Mariner Books, 2014

Borneman, W. 1812: The War that Forged a Nation. Harper Perennial, 2005.

Gaines, E. “The Chesapeake Affair: Virginians Mobilize to Defend National Honor” The Virginia Magazine of History and Biography 64, no. 2 (April 1956): 131-142. https://www.jstor.org/stable/4246209

Hickey, D. The War of 1812: A Forgotten Conflict. University of Illinois Press, 2012. 

Jefferson, T. “From Thomas Jefferson to James Bowdoin, 10 July 1807” https://founders.archives.gov/documents/Jefferson/99-01-02-5926

McMahan, J. “Just Cause for War.” Ethics and International Affairs 19, no. 3 (2005):1-21. 

Millett, A. R., Maslowski, P., & Feis, W. B. For the common defense: A military history of the United States from 1607 to 2012 Free Press, 2012 (3rd ed.).  

Peace, Roger. “The War of 1812.” United States Foreign Policy History and Resource Guide website, 2016, https://peacehistory-usfp.org/the-war-of-1812

Randall, W. Unshackling America: How the War of 1812 Truly Ended the American Revolution. St. Martin's Press, 2017.

Roosevelt, T. The Naval War of 1812, or the history of the United States Navy during the last war with Great Britain, to which is appended an account of the Battle of New Orleans. G.P. Putnam's Sons, 1882. https://ia902600.us.archive.org/32/items/navalwarof1812or00roosuoft/navalwarof1812or00roosuoft.pdf

Just War Analysis of the 2003 American Invasion of Iraq

Introduction

The purpose of this paper is to evaluate the 2003 American Invasion of Iraq according to jus ad bellum criteria – were we in the right to start that war? We begin with the historical context including the faulty information about Iraq’s weapons of mass destruction. That history is then used to determine whether the invasion passes the jus ad bellum standards of Just War Theory.

Historical Background¹

Official build-up for the invasion began with the “Authorization for Use of Military Force Against Iraq Resolution of 2002”, also known as the “Iraq Resolution”, which was passed in October 2002 by the U.S. Senate and House of Representatives. It authorized the use of American forces against Iraq in what would be called “Operation Iraqi Freedom.” The factors used to justify the war included:

1. Iraq’s development and possession of weapons of mass destruction (WMDs) as well as operation of mobile weapons labs
2. Their possession of unmanned aerial vehicles to deliver said WMDs
3. Their support for terrorism, including harboring members of al-Qaeda and paying bounties to the families of suicide bombers
4. Saddam Hussein’s repression of the Iraqi people and the Kurds

This was followed by the passage of UN Security Council Resolution 1441 of November 2002 which demanded that Iraq allow weapons inspectors back into the country. Iraq appeared to comply with the resolution.

In early 2003, President George Bush and British PM Tony Blair stated that Iraq was hindering the UN weapons inspectors. Leaders of Germany and France sought extended inspections and wanted to give Iraq more time to comply with the inspectors.

On 5 February 2003 Secretary of State Colin Powell gave a presentation to the UN Security Council claiming that Iraq had maintained its stockpile of WMDs, that it was hiding evidence of its WMDs from UN weapons inspectors, that it silenced its weapons scientists, and that it continued to harbor al-Qaeda terrorists. These were the reasons used to start the war.

On 17 March, President Bush gave Saddam an ultimatum: leave Iraq in 48 hours. He didn’t.

On 20 March 2003 kinetic operations began with precision-guided missile attacks against the suspected location of Saddam Hussain, followed by bombings of government and military buildings. Major operations were completed six weeks later, and the occasion was marked by President Bush’s “Mission Accomplished” speech on 1 May 2003.

On 30 September 2004 the Iraq Survey Group, a multinational group organized by the CIA and the Pentagon, released a report (the Duelfer Report) stating that Iraq had no significant amount of chemical WMDs³. It was believed that the WMDs did exist – and were used against the Kurds – but the weapons were sent to Syria. The idea that Iraq was a state sponsor of terrorism remains unclear.

The justification for the war changed at this point to the plight of the Iraqi and Kurdish people under Saddam, and the goal became removing him and the Arab Socialist Ba’ath Party from power.

The war did not end by this time, for once we defeated the Ba’ath Party, the insurgency started. Politics abhors a vacuum, and we began fighting a new enemy.

Just Cause

St. Augustine lists² three jus ad bellum conditions: defending against attack, recapturing things taken, and punishing a nation that has done wrong. According to (faulty) intelligence, Iraq’s people and its neighbors were in immediate danger from WMDs, and according to (accurate) intelligence, Saddam’s regime was actively violating the individual rights of its citizens. Thus, our invasion of was justified because we were defending others against imminent danger and punishing Iraq for doing wrong by the Kurds and other Iraqi people.

Proportionality

Proportionality is a slippery concept in action. The broad idea is that when an enemy destroys one of our ships, we destroy one of theirs, when the enemy downs one of our airplanes, we do the same to one of his airplanes, and so on. The enemy is supposed to remain stationary while we pursue a proportionate response. Nice theory, but in practice things don’t work that way.

The reality is more like this: the enemy destroys one of our vessels, and in our act of responding proportionally, the enemy sends fighters to stop our response, we then use surface-to-air missiles, and so on. Each combatant is starring in his own “Saving Private Ryan” movie, and once the situation escalates it becomes extremely difficult to stop.

An alternative to proportionality is this: does our response not only stop the immediate harm but also removes the capability of performing similar harm in the future? The American forces disabled Iraq’s air defense system, which allowed the ground invasion to go forward unencumbered. We targeted only government and military installations, and the government and military were the ones harming people. We not only stopped them doing harm and we also prevented them from repeating this harm in the future. This theory has plenty of edge cases, and it may not be possible to justify this approach within Just War Theory.

Reasonable Chance of Success

The 2003 invasion of Iraq was a well-designed and well-implemented plan that involved combined use of air and ground forces. Our Air Force, Marines, and Army were far superior to the corresponding Iraqi forces, so we had a very reasonable chance of success.

Legitimate Authority and Public Declaration

Congress has the power to declare war, and while the Iraq Resolution was approved by Congress, it did not declare war. The Resolution only authorized President Bush to use military force against Iraq. However, the Iraq Resolution can be seen as a public declaration announcing America’s intention to initiate military action against that country.

Right Intentions

If Iraq possessed WMDs and weapons labs, and if Iraq possessed the capability to deliver the WMDs, and if Saddam had plans of using these weapons on the Iraqis or other people, then we had the right intentions for invading Iraq with the goal of removing those weapons and delivery capabilities.

As it goes, Iraq didn’t have WMDs, but the treatment of the Iraqis and Kurds under Saddam and the Ba’ath Party was still an issue. Our intentions to drive Saddam from power and to De-Ba’athify the government were good intentions, and our actions were in support of those intentions.

Does this mean America must topple oppressive governments all over the world? It does not, for doing so does not further any pressing national interest. National interest does not play a direct role in Just War Theory, however.

Last Resort

At the time of the 2003 invasion, economic sanctions against Iraq were still in place. These sanctions were in response to Iraq’s 1990 invasion of Kuwait. Further economic pressure could not be applied.

Multiple diplomatic solutions (the Iraq Resolution, Resolution 1441, Colin Powell’s presentation to the UN Security Council, and finally the 48 hour demand of Saddam to leave the country) were attempted but each proved unsuccessful. All non-violent options were exhausted, and so the war was indeed one of last resort.

Conclusion

Based on all the usual criteria of jus ad bellum - principles of just cause, proportionality, reasonable chance of success, legitimate authority and public declaration, right intention, and last resort – it can be concluded that we were justified in this military action according to Just War Tradition. This conclusion holds regardless of the existence of WMDs.

From a “realist war theory” perspective, the invasion cannot be justified. If anything, the invasion violates the realpolitik “Pottery Barn rule” – you break it, you buy it. By eliminating Saddam Hussein’s regime, we metaphorically broke Iraq, dysfunctional that it was, and we ended up buying it over the next 8 years.

References

1. Draper, R. (2020). To Start a War: How the Bush Administration Took America into Iraq. Penguin Books.

2. Holmes, A. F. (2005). War and Christian Ethics. Baker Academic.

3. Ricks, T. E. (2006). Fiasco: The American Military Adventure in Iraq. Penguin Press.

Thomas Aquinas’ Just War Theory

Introduction

This post recites Thomas Aquinas’ just war theory as described in Summa Theologica I-II Q. 91 and 94, and II-II Q. 40-42. His jus ad bellum is explained as well as his tentative steps in developing jus in bello criteria. A psychological interpretation of the “good intentions” criteria is given, and finally a comparison with Aristotle’s “bottom up” approach to the ethics of warfare is made. All quotations from the Summa Theologica are taken from Holmes (2005).

Grounding JWT in Terms of Divine, Natural, and Human Laws

Thomas Aquinas sets up a “hierarchy of laws” as the foundation for the ethical evaluation of warfare. This hierarchy moves from the divine (Eternal Law), through natural laws, finally ending with concrete human laws.

The Eternal Law, also called Divine Reason or Divine Law, is the operation of Divine providence. Everything is subject to such law, and it is unchangeable and eternal. (ST I-II, Q. 91, Art 1)

Natural laws are the way rational creatures participate in the Eternal Law (ST I-II, Q. 91, Art 2). Natural laws are specifically applicable to rational animals, unlike Eternal Law which has universal applicability.

Human laws are needed because we do not fully participate in the dictates of Divine Reason (ST I-II, Q. 91, Art 3). Further, human laws do not have the inerrancy possessed by the demonstrated conclusions of the natural sciences.

Why then do we even need an Eternal Law? The Eternal law directs man towards his last end, eternal happiness, but this end is inproportionate to man’s rational faculty (ST I-II, Q. 91, Art 4). Further, conflicts in human law can and do occur, because of errors in judgement. Such conflicts cannot occur within Eternal Law. Finally, human law can neither forbid or punish all evil deeds; Divine Law fills this gap and is thus needed to forbid all sins.

Statement of Just Reasons to Go to War

It is not always sinful to initiate or wage war, according to Aquinas, and he posits three conditions that must be met to initiate a just war. (ST II-II, Q. 40, Art 1)

First, war must be called for by sovereign authority. “It is not the business of a private individual to declare war, because he can seek for redress of his rights from the tribunal of his superior.”

Second, just cause is required – “those who are attacked, should be attacked because they deserve it on account of some fault.” Aquinas uses specific examples given by Augustine – to avenge wrongs, to punish a nation for refusing to make amends for the wrongs inflicted by its subjects, or to restore that which has been seized unjustly.

Third, belligerents must have good intentions. They must seek to advance the good, or to avoid evil at least. Examples of ill intentions include aggrandizement or cruelty.

Interlude: the “Dispassionate Warrior”

This third jus ad bellum criterion is a claim about the psychology of a justly acting warfighter: his goal is to “uplift the good,” perhaps in a dispassionate manner. Aquinas quotes Augustine who notes that “passion for inflicting harm, the cruel thirst for vengeance, an unpacific and relentless spirit, the fever of revolt, the lust of power, and such like things, all these are rightly condemned in war” (ST II-II, Q. 40, Art 1). Aquinas continues, removing agency from the warfighter, stating that “to have recourse to the sword… by the authority, so to speak, of God, is not to take the sword, but to use it as commissioned by another, wherefore it does not deserve punishment.”

Compare this (Kaurin, 2017) with the stance taken by one of the soldiers in Shakespeare’s Henry V: “If his cause be wrong, our obedience to the King wipes the crime of it out of us.” Aquinas goes further, replacing relief of moral responsibility with a form of technocratic detachment.

Does the concept of a dispassionate warrior make sense? To successfully prosecute a war, a certain joie de guerre is required, a passion needed for accomplishing what must be done - and a source of distress for the warfighter when he realizes he has trouble turning it off. This is the very opposite of dispassion.

Just Conduct in War

Compared to his jus ad bellum, Aquinas’s jus in bello is considerably less developed. He addresses only a few aspects of what constitutes just conduct in war: the role of religious personnel, the use of ambushes, and the ethics of strife and sedition.

Is it lawful for priests and clerics to fight in a war? Aquinas answers (ST II-II, Q. 40, Art 2) in the negative, but in defense of this position, he quotes Gregory who uses a shepherd/wolf/sheepdog analogy: “The wolf comes upon the sheep, when any unjust and rapacious man oppresses those who are faithful and humble. But he who was thought to be the shepherd, and was not, leaveth the sheep, and flieth, for he fears lest the wolf hurt him, and dares not stand up against his injustice.”

Aquinas rejects this analogy, stating that participation in warfare is incompatible with the duties of priests and clerics, because warlike pursuits are tumultuous, hindering the mind from the contemplation of divine things, prayers for the people, etc. It is unbecoming for religious personnel to slay or shed blood, says Aquinas, and “it is more fitting that they should be ready to shed their own blood for Christ, so as to imitate in deed what they portray in their ministry.” The proper way to resist an enemy of the flock is through “spiritual weapons”.

The only military tactic Aquinas mentions specifically is that of ambushes, which he states are not a form of deception but rather one of concealment. Thus, laying ambushes is a lawful activity when done in times of war. (ST II-II, Q. 40, Art 3)

Strife is described by Aquinas (ST II-II, Q. 41, Art 1) is a form of private war that is not declared by a sovereign. Because of this, it is unjust. Resistance against strife may however be without sin when it is done in self defense and with due moderation.

Sedition, the act of sewing dissent, is viewed by Aquinas (ST II-II, Q. 42, Art 1) as a sin as it is contrary to the unity of the multitude – the people of a city or kingdom, and it undermines the common good. Taken by itself, this stance would preclude both civil wars and wars of independence.

Conclusion

It is interesting to note how far Aquinas diverges from “the Philosopher” (Aristotle) on the issue of just war. Aristotle holds that it is proper for a man to engage in military training so as not to become the slave of other men, and for the same reason it is proper for the state to defend itself (Aristotle, Politics, Book 7). This is a bottom-up approach similar to what Frowe (2015) calls the “domestic analogy,” and is the opposite of Aquinas who grounds just war on Eternal, natural and human laws, and in which self defense is seen as political resistance against strife.

References

Aristotle (2020). Politics. William Ellis, trans. Independently published

Frowe, H. (2015). The Ethics of War and Peace: An Introduction. 2nd Edition. Routledge.

Holmes, A. F. (2005). War and Christian Ethics. 2nd Edition. Baker Academic.

Kaurin, P. S. (2017). “Beyond the Band of Brothers: Henry V, Moral Agency, and Obedience”. Last retrieved on 28 March 2024 from https://thestrategybridge.org/the-bridge/2017/3/1/beyond-the-band-of-brothers-henry-v-moral-agency-and-obedience

Just War Tradition as Compared to Realism

Introduction

This paper outlines at an extremely high level the Just War Theory and the rival realist theory. Both theories broadly describe the conduct of warfare but differ in their details as well as their aims. These differences are enumerated, and finally a cursory analysis of both is presented.

Just War Tradition

The Just War Theory is fundamentally a list of rules for restraining war - it is a set of criteria that must be satisfied in order for a war to be considered "just." It is founded on the belief that war can be a moral undertaking. JWT is thus a framework or guide for when to resort to force and how use that force. The Just War Tradition is the doctrine tracing the evolution of JWT by Christian thinkers.

The criteria in the JWT are divided into three stages: before (jus ad bellum), during (jus in bello), and after (jus post bellum). Jus ad bellum are the criteria for when a nation-state should resort to war or use military force in general. These criteria include that the leader declaring war have legitimate authority, that is to be waged for just causes and good intentions, and (maybe) that there is a high probability of success. Once war has broken out, conduct should be governed by jus in bello criteria: there should be discrimination between military and civilian targets (principle of non-combatant immunity), attacks should be performed only out of military necessity, and that force be limited by some doctrine of proportionality. Just post bellum is apparently a recent addition to JWT, and it concerns justice once the guns have fallen silent. There doesn't seem to be a short and stable list of criteria. This will be addressed in the conclusion.

Realism

This presentation of realism follows Frowe Ch 5. The core idea of realism is embodied by Cicero's phrase "laws are silent in times of war" (silent enim leges inter arma). This means that war lies outside of both moral and legal boundaries, so the only proper constraints on warfare are that actions should advance national interests.

Realism can be divided into two camps: prescriptive realism and descriptive realism. The former claims that war should not be regulated, the latter that war cannot be regulated. Frowe criticizes descriptive realism by noting that individual combatants do follow strict moral codes - they fight honorably. Prescriptive realism falls short because both sides of a war share common interests in protecting their citizens, their infrastructure, and their heritage, or so Frowe claims.

Comparison

JWT and realism have distinct aims: JWT seeks to reduce the frequency and severity of warfare, whereas realism focuses attention on the successful completion of warfare, with the possible consequence that wars would be shorter in duration but more brutal.

JWT and realism, at this level of abstraction, both accept the reality of violence and that, under certain circumstances, its usage is permissible. Also, both seem isolated from the "domestic analogy" - individual self-defense and national self-defense are treated as independent issues, which they have been historically for most nations. So, on the issues of violence, admissibility of violence, and the "domestic analogy" they are similar.

Neither theory directly address the relation between warfare and the military virtue of courage alluded to by Hegel (Holmes, pp. 286-287). JWT would seem to be more compatible as both justice and courage are moral virtues.

While both theories address conduct during war, neither address the conditions under which war should be ended. What counts as peace, and whether the conditions for peace should set at the beginning or near the end of a war, is left unspecified.

Frowe Ch 5 doesn't mention whether realism has its own jus ad bellum - the inapplicability of rules during warfare does not imply that rules cannot function before a war begins. If there are realist rules governing the initiation of conflict, they would certainly include likelihood of success as well as something to the effect that the war must be in the nation's self-interest. Other than this, we would expect both JWT and realism to have similar criteria for initiating warfare.

Frowe also doesn't mention whether there is a realist jus post bellum.

The primary difference between JWT and realism is in the conduct of war, the jus in bello. JWT posits that rules are needed to restrain the scope of warfare - protect non-combatants, force should be applied according to some scale of proportional response, and actions must serve some military necessity. With realism, the gloves are off - rules are legitimate to the extent that they further successful completion of the war.

Analysis and Conclusions

At this level of abstraction, both JWT and realism come off as "straw man" theories, particularly realism. This is understandable given the source material used. The details of JWT will certainly be fleshed-out, and it would be interesting to see a final form of the doctrine of proportionality. Something sorely missing in JWT at this level is the relation of national interest to the initiation and pursuance of war. Also missing is the targeting of military actions - it is just assumed that that military actions should be aimed at the enemy.

It is also curious that jus post bellum - justice following the conclusion of war - is seen as an afterthought. Even a cursory study of history shows that wars recur frequently, and the reason they repeat is either laid-out in print, such as in Mein Kampf, or can be directly experienced when travelling, like when visiting south of the Mason-Dixon Line. As such, any theory that attempts to limit the scope and severity of warfare cannot afford to ignore jus post bellum.

References

Frowe, H. (2015). The Ethics of War and Peace: An Introduction. 2nd Edition. Routledge.

Holmes, A. F. (2005). War and Christian Ethics. 2nd Edition. Baker Academic.