Wednesday, July 22, 2009

Just War Theory Encounters Terrorism

Just War Theory presumes that States are at war.

But terrorists such as Bin Laden are 'stateless.' It is not accurate to say that "Afghanistan is at war with the US" although BinLaden lives there with his personal goat.

So what happens to Just War Theory?

You'll find a variety of answers in this Catholic News Service story.

"In a duly constituted war, anybody on the front lines is fair game," said Margaret O'Brien Steinfels, co-director of the Fordham University Center on Religion and Culture and the Jesuit-run New York school's journalist in residence.

But "it seems to me that Mr. Bush's declaration of a war on terror is of dubious legality and dubious morality, as well as that it's a war that seems to have no clear endpoint, as long as you can name people who are potential terrorists or actual terrorists. This is a war that can go on forever," Steinfels added in an interview with Catholic News Service. "I have never seen an argument that says that the war on terror is a legitimately justly declared war."

Ms. Steinfels is a Lefty, if you couldn't tell--and a friend of Rembert. I disagree with her assessment that the WOT 'is of dubious legality,' insofar as the Congress agreed with the President's decision. Maybe Margie doesn't read the Constitution.

On the other hand:

David L. Perry, who concluded a six-year stint this year as ethics professor at the Army War College in Carlisle, Pa., wrote in the spring 1995 issue of the Journal of Conflict Studies: "Just as it is not a crime to kill the enemy during wartime, so too should it not be regarded as a crime or a morally reprehensible act when a nation, acting in concert with its obligation to protect its own citizens from harm, seeks out and destroys terrorists outside its borders who have committed, or are planning to commit atrocities on its territory or against its citizens."

"The assassin in effect acts as prosecutor, judge, jury and executioner combined; the target is precluded from being represented by counsel before an impartial court," added Perry, who earlier lectured in philosophy and religious studies at Jesuit-run Santa Clara University in California. "These concerns suggest that assassination ought only to be used as a last resort."

His take is sensible, especially since he underlines 'concerns' suggesting that assassination is really a last resort. It is.

The nexus of the problem, however, was expressed here:

Gerard F. Powers, director of Catholic peace-building studies at the Kroc Institute for International Peace Studies at the University of Notre Dame in Indiana, sought to make a distinction among targets of assassination.

"You're not talking about killing political leaders. You're talking about killing al-Qaida leaders. You're talking about killing terrorists," he told CNS.

"If terrorism is treated primarily as a crime, then the targeted killings would probably be problematic unless they occurred in the effort to arrest. And all the normal rules of police work apply," Powers added.

"But to the extent that terrorism can be seen as an act of war, then the targeted killings of known terrorists who are actively engaged in terrorism, or actively planning terrorist acts, then the terrorist becomes more like a combatant in war," he explained. "And the same criteria that would apply to war would apply to the killings of terrorists."

In the case of al-Qaida, Powers said, there "are elements akin to war" and "others more akin to crime. That's where the issues become blurred."

Somebody will have to revise JWT a bit to accomodate non-State entities.

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