The Justification of War and International Order – From Past to Present, Edited by Lothar Brock and Hendrik Simon (OUP 2021); Jacket image: Ingrid Krüger, Aquarelle, Tübingen 2002.

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Rethinking the Justification of War

A Case Study of the Fight Against the LRA

03.06.2021

A good book makes you rethink. It alerts you to things you didn’t know. It offers new ways of looking at what you already knew – or thought you knew. It is incomplete, as to leave room for the reader to add and fill in. So let me start with an episode that was familiar to me, yet appeared in a different light after reading “The Justification of War and International Order” (hereafter: “Justification”). And let me start with the same episode to illustrate where “Justification” may be supplemented.

March 21, 2012. Supported by 32 colleagues, U.S. Senator Chris Coons introduces a bipartisan resolution. The text condemns crimes against humanity committed by Joseph Kony and the Lord’s Resistance Army (LRA), supports ongoing international efforts to remove Kony from the battlefield, and calls upon the U.S. to continue to enhance its mobility, intelligence and logistical support of regional forces now pursuing the LRA. (S.Res.402 — 112th Congress (2011-2012)). According to the resolution, the leader of the LRA, Joseph Kony, “represents the worst of mankind”. The resolution was a response to increasing pressure from NGOs, together with a number of celebrities, to put an end to the atrocities committed by the Lord’s Resistance Army and to arrest LRA leadership. Central to the campaign was a documentary film called “Kony 2012”, produced by the Christian NGO “Invisible Children”. The film was to become the most viral video ever, according to Time Magazine. Its main focus were children victimized by the LRA; its main message was deceivingly simple: effectuate the arrest warrant against Kony issued by the International Criminal Court. How does this episode appear if read through the lens of “Justification”? Let me highlight three main points.

The Claim to Restore a Legitimate Order

First, it appears as an illustration of one of the main claims of the volume:  “By referring to order in their justification for war, political actors or theorists not only attempt to justify their own use of force as ‘appropriate behaviour’ in accord with the norms of the international order, they also claim to restore an order recognized as legitimate” (at 15). This claim runs through the entire book, although in some of the 28 chapters more explicitly than in others. The claim resonates, in particular because of the historical (genealogical) approach adopted in the volume. Whether it is early modern or 19th century Europe, Latin America during colonization, the Ottoman Empire during the First World War, Nazi justifications for colonial appropriation, Ecowas in the 1990s or changing attitudes towards humanitarian intervention by contemporary China—all the chapters revolve around: (a) the need to justify war or the use of force; (b) the way in which these justifications invoke ideas about international order more broadly.

The US support for Uganda and the African Union, mentioned above, fits this pattern. Formally speaking, the support could be treated as assistance provided upon request of a sovereign state, or sovereign states acting within the context of a regional organization. This would not only justify the support itself but also reaffirm a sovereignty-based order where incumbent governments may request assistance from their peers. However, when reading the Senate resolution, it turns out that there is more at stake. The assistance is also presented as a service to humanity; as a response to crimes that, to use the language of the Rome Statute, “deeply shock the conscience of humanity” (preamble). It invokes an imagery of world order organized around core values and the need to take action against those that undermine them. In that sense, it is a vivid illustration of the argument that the use of force “challenges and drives the formation of international order as an ‘order of justification’”(at 3).

Theory vs. Practice of Justifying War?

Second, the example confirms the “need to confront theoretical considerations with the actual practices of justifying war” (at 8). The need to go beyond theory and legal doctrine is well illustrated in Anuschka Tischer’s chapter on the justification of war in early modern Europe. Tischer discusses how legal and moral treatises were read and invoked selectively at best and how grounds dismissed by legal theorists could nevertheless make their way into official justifications. She also shows how official justifications were affected by the rise of new technologies (printing press), and driven by a “complex mixture of political, academic, and commercial interests” (at 68).

The same could be said of the US involvement in Uganda. Only looking at legal doctrinal justifications obscures how the intervention came to be justified in practice. Just like in early modern Europe, media as well as a complex of actors and interests affected the justification. The involvement of the ICC made this more than a security issue; it became a matter of cosmopolitan law-enforcement: enforcing arrest warrants against those who shocked humanity’s conscience. The involvement of film and celebrities made this more than a regional war: it became a matter of global concern, based on sentimental education and videos going viral. Or was it? Ironically, some of the most victimized communities themselves were unable to watch the film because of poor internet connection. When the film was shown in a separate screening, the audience was so offended that some started to throw rocks at the screen. This says much about who gets to self-identify as ‘global’ and who is seen as the ‘local’; who is portrayed as active savior and who as passive victim.

Patterns of Justification Throughout History

The Uganda example also illustrates a third core topic of the book. The book shows how patterns of justification recur throughout history. Versions of just war thinking, for example, keep reappearing over time and are not likely to wane in the years to come. However, repetition is not the same as copy-pasting. Repetition breeds similarity and difference at the same time; it creates novelty by presenting the past anew. In this context, the editors quote Koselleck, saying: “in every repetition there is rupture and therefore the possibility of something new” (at 503). In this way, the book also points at some of its own limits. While it does an excellent job in showing patterns and continuity throughout the history of war justification, it does leave out some of the novelties that repetition has bred.

The US assistance in the fight against Kony, for example, can be construed as the reappearance of just war thinking and the re-emergence of the justus hostis (Kony as the “representing the worst of mankind”). Yet, the episode also shows how justifications of war appear anew. It is, for example, difficult to make sense of the whole episode without considering the role of the ICC. It was through cooperation with the ICC that Uganda managed to label its opponents as enemies of mankind; it was because of an arrest warrant that ‘Kony 2012’ could be narrated as a crime fighter movie. This reflects a more general trend in the justification of war and warfare. By now, international courts and tribunals play an important role in defining what counts as ‘war’ (armed conflict) and how conduct during conflict is regulated by international law. More generally, international criminal law has become a reference point in many debates about war and justice (see here).

Focusing on New Subjects: Legal Experts And Emotions

It would be interesting to see how some core insights from “Justification” could be applied to international courts and tribunals; to see, for example, how they “claim to restore an order recognized as legitimate”. The same would be true for another group that is missing in the volume (and in my own example, but I bring them up nevertheless):  internationally constituted groups of legal experts. Legal experts play a pivotal role in the development of laws of armed conflict today, e.g. in the form of the ICRC customary law study or the several ‘manuals’ produced by ad hoc committees on topics such as aerial warfare, war at sea or cyberwar (and most likely in the near future: outer space war). Here too, combing the existing literature on expert committees with insights from “Justification” looks promising.

After all, expert committees do more than restate the law; they also restate notions of order and accepted patterns of justification. Let me mention one last example: the role of ‘actants’, such as film and social media. To be sure, the volume does have a chapter on documentary film. However, while this chapter is certainly a very interesting read, its main focus is on what two documentary films illustrate about the way in which soldiers on the ground carry out, justify, and criticize wars. Their role as drivers of action, as in the Kony 2012 example, is beyond the scope of the chapter. It would be interesting to extend the analysis of the role of new media today, following the footsteps of, for example, Tischer’s chapter on early modern Europe. This would also open the possibility to zoom in more specifically on the mobilization of emotions in justifications of war. The US intervention, after all, was fed by stereotypical images of what Anne Orford has called ‘muscular humanitarianism’: vulnerable children, a man who “represents the worst of mankind” and powerful NGO’s pressuring Western governments to come to the rescue. This not only tells much about the order that is claimed to be legitimate, it also illustrates how such claims are mediated.

Ok, let’s end with the beginning. A good book makes you rethink. It alerts you to things you didn’t know. This is what “Justification” definitely does. The chapters are so rich and varied that any reader is bound to find new stories, new theorizations, new problems.  For me, especially the stories on early modern Europe shed new light on some of the issues I had been working on for years, such as the role of film and conceptions of justice or the role of experts and conceptions of war.  This is also where the book forms a new beginning.    It can be linked to the rise of new agents in the conceptualization of war, such as courts or documentary film-makers, it can be used to rethink cases one thought to know, such as the US support for Uganda that I started out with.

Author
Wouter Werner

is professor for international law at the Centre for the Politics of Transnational Law at Vrije Universiteit Amsterdam. He also holds an extraordinary chair in international law at the University of Curacao.

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