[January 8, 2008

THE JUST WAR PRINCIPLE OF LEGITIMATE AUTHORITY

John W. Lango

Professor

Department of Philosophy

Hunter College of the City University of New York

695 Park Avenue, New York, NY 10065 USA

john.lango@hunter.cuny.edu

Questioning the Legitimate Authority Principle

There are three sessions in this conference with the title "Emerging Issues in Just War Theory." In accordance with a standard conception of applied ethics, just war principles have been applied to such emerging issues as armed humanitarian interventions and counterinsurgency operations, and usually these applications have proven controversial. Moreover, there have been controversies about the principles themselves. Presently, there are different versions of just war theory, and different versions of just war principles. For instance, another speaker in this session refers in her title to a prima facie version of just war theory. Just war theory itself is an emerging issue in just war theory.

About ten years ago, A. J. Coates observed that the legitimate authority principle "has become the most neglected" of the just war principles (1997, p. 123). (This principle has also been called the competent authority principle, the proper authority principle, and the right authority principle.) A traditional version of the principle was summarized by Richard Regan thus: "Just-war theory requires that decisions to wage war be made by those who are legally authorized to do so" (1996, p. 20). A few years after Coates's observation, when NATO intervened in the crisis in Kosovo (March 1999), there was controversy about whether this armed humanitarian intervention had to be legally authorized by the Security Council (Coppieters 2002, pp.211-13). Similarly, before the onset of the recent Iraq War, there also was controversy about legal authorization by the Security Council. In addition to controversy about how the legitimate authority principle pertains to individual states, regional organizations, and the Security Council, there was controversy about the principle itself. Once relatively neglected, the legitimate authority principle itself has become one of the emerging issues in just war theory.

Let me suggest that a multitude of questions may plausibly be raised about the legitimate authority principle, among which are the following. Why should a just war theory include such a principle? Which version of the principle is most acceptable? Is the idea of legitimacy different from the idea of legality? Is the idea of legitimacy different from the idea of morality? Should a moral conception of legitimate authority be subordinated to a legal conception of state sovereignty? Should the principle be applicable to uses of military force by nonstate actors -- e.g., revolutionary groups and private military organizations? In addition to requiring that decisions to resort to war must be made by persons who are authorized to do so, should the principle require that the conduct of war must be controlled or regulated by them? What is the role of the principle when authority for uses of military force is delegated from leaders to subordinates -- e.g., from the President to the Secretary of Defense, or from a commanding military officer to subordinate military officers?

In a brief talk, I cannot try to answer so many questions. I shall concentrate primarily on the last question, the one about the delegation of authority. For the sake of concreteness, some of the main points are illustrated by means of the chapter "Leadership and Ethics for Counterinsurgency" in the new U.S. Army/Marine Corps counterinsurgency field manual (COIN FM 2006).

Revising the Traditional Legitimate Authority Principle

Frequently, with the advent of the modern international system of sovereign states, the traditional legitimate authority principle has been understood as pertaining to wars between states. Recently, for instance, such a version of the principle was formulated by Brian Orend as follows. "A state may go to war only if the decision has been made by the appropriate authorities, according to the proper process, and made public, notably to its own citizens and to the enemy state(s)" (2000, p. 49). However, this version of the principle is too restrictive. For example, it apparently is inapplicable to armed humanitarian interventions or counterinsurgency operations by NATO or other coalitions of the willing.

My view is that traditional just war principles should be generalized, so that they are applicable to forms of armed conflict other than interstate wars -- for example, not only armed humanitarian interventions and counterinsurgency operations but also revolutionary wars and civil wars (Lango 2007). (Henceforth the term "war" is used to encompass all forms of armed conflict.) Consequently, to be acceptable, the traditional legitimate authority principle should be generalized, so that it is applicable to all forms of armed conflict. To clarify how it should be generalized, I need to make some additional broad remarks about just war theory.

Just war theory is a moral theory, and just war principles are moral principles. More specifically, they are deontological principles. Because they are deontological, they are agent-centered, and they hold primarily of the actions that agents perform. A deontological principle might be formulated as a moral obligation. Alternatively, it might be formulated as a moral permission or as a moral prohibition. Often, but not always, an action performed by an agent is directed at a target. Typically, a deontological principle morally obligates or permits or prohibits doing something to a target.

In the preceding version of the traditional legitimate authority principle, the agent is "a state" and the target is "the enemy state(s)." Note also that this principle is formulated as a moral permission. To generalize it, so that it is applicable to counterinsurgency operations, the class of targets has to be generalized to include insurgent groups. To generalize it, so that it is applicable to revolutionary wars (e.g., the American Revolution), the class of agents has to be generalized to include revolutionary organizations. In short, to generalize it sufficiently, both the class of agents and the class of targets have to be generalized.

Individual states, regional organizations, the Security Council, insurgent groups, and revolutionary organizations are collectivities, or collectivities of collectivities. However, if the legitimate authority principle is to be sufficiently general, the class of agents should include individual human beings, as should the class of targets. It is sometimes convenient to regard states and other collectivities as agents, but the primary agents are individual human beings who are members of the collectivities. Actions of a collectivity are derivative from actions of human beings. The waging of war by a state or other collectivity can be explicated in terms of the military actions of human beings -- most basically, their uses of armed force, the targets of which are, most basically, other human beings. In brief, what is primary are individual human agents, their actions, and the individual human targets of those actions.

A different version of the traditional legitimate authority principle was mentioned above, one that "requires that decisions to wage war be made by those who are legally authorized to do so" (Regan 1996, p. 20). So as not to beg the question of whether the idea of legitimacy is different from the idea of legality, the word "legally" should be replaced by the word "properly." Who are these properly authorized agents? Traditionally, when the principle was restricted to interstate wars, properly authorized agents were leaders or rulers of states. Accordingly, in generalizing it, so that it is applicable to other types of collectivities than states, the class of properly authorized agents should be enlarged to include those persons who are in relevant senses leaders or rulers of collectivities of the other types -- for example, leaders of revolutionary organizations (e.g., George Washington). Presumably, in a constitutional democracy, the class of properly authorized leaders is identical to the class of legally authorized leaders. However, in collectivities of many of the other types, the idea of being properly authorized has to be conceptualized differently.

Why should a just war theory include such a principle? James Childress has expressed succinctly one reason for having a legitimate authority principle: it is the principle that "determines who is primarily responsible for judging whether the other criteria [i.e. the other just war principles] are met" (1982, p.74). I want to emphasize that such a responsibility is a moral responsibility. Those agents who are properly authorized have the moral responsibility for judging whether the other just war principles are satisfied.

Consider, for example, the just cause principle. It is a deontological principle, and so it is agent-centered. Formulated as a moral prohibition, it prohibits agents from resorting to interstate war or any other form of armed conflict if there is not a just cause for doing so. The other just war principles are deontological principles, for instance, the last resort principle, which prohibits agents from resorting to interstate war or any other form of armed conflict if every reasonable nonmilitary measure has not been attempted first -- e.g., negotiations (Lango 2006).

Sadly, all too many properly authorized agents ignore this moral responsibility for judging whether the just cause principle, the last resort principle, and the other just war principles are satisfied. However, as a moral theory, a just war theory involves an ideal of moral responsibility, the ideal that properly authorized agents ought to make sound moral judgments about whether the other just war principles are satisfied. The other just war principles are moral principles, and properly authorized agents ought to be bound by them. Additionally, the legitimate authority principle ought to be morally binding. Ideally, agents who have the power to make decisions about whether to resort to interstate war or any other form of armed conflict ought to engage in moral self-reflection, and ask themselves such questions as: do I really have the proper authority to make such decisions?

The Question of Delegation of Authority

The reason expressed by Childress for having a legitimate authority principle contains the word "primarily." Presumably, then, properly authorized leaders or rulers of a particular state have the primary moral responsibility in that state for judging whether the other just war principles are satisfied. The reason also is pertinent to leaders or rulers of collectivities other than states. For instance, properly authorized leaders of a revolutionary group have the primary moral responsibility in that revolutionary group for judging whether the other just war principles are satisfied. Also, properly authorized leaders of a counterinsurgency operation have the primary moral responsibility in that counterinsurgency operation for judging whether the other just war principles are satisfied.

In this talk, I am concentrating on the question: what is the role of the principle when authority for uses of military force is delegated from leaders to subordinates? To answer this question about the delegation of authority, the class of properly authorized agents should be further enlarged to include subordinates of leaders or rulers. By means of the delegation of authority from properly authorized leaders or rulers, subordinates can also be properly authorized (cf. Lango 2008). In their delegated spheres of authority, properly authorized subordinates are morally responsible for judging whether the other just war principles are satisfied. Indeed, leaders or rulers have that moral responsibility, but so do their subordinates. For example, in the United States, the President, as Commander in Chief of military forces, is (presumably) a properly authorized leader. (I am presuming this, and setting aside the question of whether members of Congress, who have the power to declare war, are properly authorized leaders.) Accordingly, the President, as Commander in Chief, may delegate authority (through a chain of command) to, for instance, the commander of a counterinsurgency operation. In his delegated sphere of authority, that commander also is morally responsible for judging whether the other just war principles are satisfied.

Ethics and Leadership in Counterinsurgency Operations

To illustrate my contention that properly authorized subordinates also are morally responsible for judging whether the other just war principles are satisfied, I shall discuss the chapter "Leadership and Ethics for Counterinsurgency" in the new U.S. Army/Marine Corps counterinsurgency field manual (COIN FM 2006).

Among the ethical ideas discussed in that chapter, there is the idea of acceptance of risk: "Combat, including counterinsurgency and other forms of unconventional warfare, often obligates Soldiers and Marines to accept some risk to minimize harm to noncombatants" (7-21). (Such references are to paragraphs in chapters; in this case, the reference is to paragraph 21 in chapter 7.) Traditionally, in just war theory, such an idea of risk acceptance is grounded on the just war principles of proportionality and discrimination (or noncombatant immunity). Together, these two principles morally prohibit intentionally or disproportionately harming noncombatants, even if military force could be used more effectively by inflicting such harm. Comparably, in the COIN FM, the idea of risk acceptance is grounded on the core ethical requirement that: "Soldiers and Marines are not permitted to use force disproportionately or indiscriminately" (7-22). During counterinsurgency operations, those officers to whom authority has been delegated should be morally responsible for judging whether the proportionality and discrimination principles are satisfied.

The subject of judgment is included in the COIN FM: effective counterinsurgency operations have a "mosaic nature," they are "decentralized"; consequently, even at the lowest level of command, local commanders are expected "to use initiative and judgment to accomplish the [local] mission" (1-145). Accordingly, even local commanders should be expected to use moral judgment. In discussing the idea of risk acceptance, the COIN FM provides the following remarkable example from the Iraq War, entitled "Defusing a Confrontation":

[On 3 April 2004, a] small unit of American soldiers was walking along a street in Na-jaf [en route to meeting with a religious leader] when hundreds of Iraqis poured out of the buildings on either side. Fists waving, throats taut, they pressed in on the Americans, who glanced at one another in terror.... The Iraqis were shrieking, frantic with rage.... [It appeared that a shot would] come from somewhere, the Americans [would] open fire, and the world [would] witness the My Lai massacre of the Iraq War. At that moment, an American officer stepped through the crowd holding his rifle high over his head with the barrel pointed to the ground. Against the backdrop of the seething crowd, it was a striking gesture.... "Take a knee," the officer said.... The Soldiers looked at him as if he were crazy. Then, one after another, swaying in their bulky body armor and gear, they knelt before the boiling crowd and pointed their guns at the ground. The Iraqis fell silent, and their anger subsided. The officer ordered the men to withdraw [and continue on their patrol].

In this example, it would appear that the commanding officer of the small unit of American soldiers used his moral judgment, and decided how the ideas of proportionality and discrimination were best satisfied. During counterinsurgency operations, even local commanders should be morally responsible for judging whether the proportionality and discrimination principles are satisfied.

Legitimate Authority and Last Resort

Furthermore, during counterinsurgency operations, those officers to whom authority has been delegated should be morally responsible for judging whether the remaining just war principles are satisfied -- for example, the last resort principle. Accordingly, the idea of risk acceptance in the COIN FM should be extended to include the risk that soldiers and marines would incur by using nonmilitary measures rather than military force. In the quoted example, it would appear that the commanding officer also used his moral judgment about the idea of last resort. For he decided not to use military force, and instead ordered his soldiers to take a knee. Strikingly, this nonmilitary measure that he ordered his soldiers to use is a paradigm of methods of nonviolent direct action, methods used by Mohandas Gandhi and Martin Luther King (cf. Sharp 2005).

The COIN FM has obvious relevance for the current insurgencies in Afghanistan and Iraq. However, in the words of the Foreword, "it addresses the common characteristics of insurgencies," and it "takes a general approach to counterinsurgency operations." Let me suggest that its approach should be more general. It acknowledges that there are "many forms" of insurgencies (1-15), and that insurgents "may resort to violence because of regime changes or government actions" (1-9). Nevertheless, it focuses on unjust insurgencies against legitimate governments (5-2). Apparently, it presupposes a dichotomy between legitimate and illegitimate governments (1-113). Instead, it should presuppose a spectrum of government legitimacy and illegitimacy, and correlatively a spectrum of insurgent justice and injustice. To take a more general approach, it should enlarge its focus so as to range also over partly just insurgencies against partly illegitimate governments.

For example, suppose that the current crisis in the Darfur region of the Sudan is transformed as follows. The present government in Khartoum is replaced in a coup d'etat by a less illegitimate government, one that is willing to negotiate a genuine peace agreement with the rebel groups in Darfur. At the invitation of the new Sudanese government, a U.S. military force enters Darfur, with a mission that includes providing security for civilians and providing security for negotiations. Unfortunately, because of misunderstandings or misperceptions or miscalculations, an insurgency begins. Rebel forces launch military strikes against military forces of the Sudanese government, and a U.S. counterinsurgency operation follows. But the insurgents are not wholly unjust. Instead of simply military victory, the goal of the U.S. counterinsurgency operation should include helping to bring about a fair peace agreement between the rebel groups and the Sudanese government.

The last resort principle prohibits agents from using armed force if every reasonable nonmilitary measure has not been attempted first -- for example, negotiations. Although the topic of negotiations is not prominent in the COIN FM, there is this significant admission (in Appendix A): "Achieving success means that, particularly late in the campaign, it may be necessary to negotiate with the enemy" (A-52). To take a more general approach, it should be recognized that the insurgents are not always simply the enemy. Sometimes, by means of nonmilitary measures, partly just insurgents could be pressured to negotiate with a partly illegitimate government, which also might have to be pressured. The last resort principle morally obligates a U.S. counterinsurgency operation to use nonmilitary measures to bring about negotiations, whenever it is reasonable to do so. In general, during counterinsurgency operations, those officers to whom authority has been delegated should be morally responsible for judging whether the last resort principle is satisfied.

The COIN FM "provides principles and guidelines for counterinsurgency operations" (Foreword). In conclusion, my suggestion is that, in addition to discrimination and proportionality principles, it should provide other just war principles, including a last resort principle and a legitimate authority principle.

Works Cited

Childress, James F. 1982. "Just-War Criteria," in his Moral Responsibility in Conflicts: Essays on Nonviolence, War, and Conscience (Baton Rouge: Louisiana State University Press).

Coates, A. J. 1997. The Ethics of War (Manchester: Manchester University Press).

COIN FM. 2006. Counterinsurgency, U.S. Army Field Manual No. 3-24 & Marine Corps Warfighting Publication No. 3-33.5. Also available as: The U.S. Army/Marine Corps Counterinsurgency Field Manual (Chicago, IL: University of Chicago Press, 2007).

Coppieters, Bruno, and Nick Fotion, editors. 2002. Moral Constraints on War: Principles and Cases (Lanham, Md.: Lexington Books).

Lango, John W. 2006. "The Just War Principle of Last Resort: The Question of Reasonableness Standards," Asteriskos: Journal of International and Peace Studies 1:1-2 (2006): 7-23. Available at http://www.igesip.org/asteriskos/1_2/galego/art1.pdf. Part of an earlier draft of this paper was presented at 2006 JSCOPE ("Last Resort and Coercive Threats: Relating a Just War Principle to a Military Practice").

_____. 2007. "Generalizing and Temporalizing Just War Principles: Illustrated by the Principle of Just Cause," in Rethinking the Just War Tradition, ed. Michael Brough, John W. Lango, and Harry van der Linden (Albany, State University of New York Press).

_____. 2008. "Military Operations by Armed UN Peacekeeping Missions: An Application of Generalized Just War Principles," forthcoming in The Moral Dimension of Asymmetrical Warfare: Counter-terrorism, Western Values, Military Ethics, ed. Ted van Baarda and Desirée Verweij (Leiden: Martinus Nijhoff). Part of an earlier draft of this paper was presented at 2007 ISME ("UN Peacekeeping Missions and Just War Principles: The Cases of Rwanda and Darfur").

Orend, Brian. 2000. War and International Justice: A Kantian Perspective (Waterloo, Ontario: Wilfred Laurier University Press).

Regan, Richard J., 1996. Just War: Principles and Cases (Washington, D.C.: Catholic University of America Press).

Sharp, Gene. 2005. Waging Nonviolent Struggle: 20th Century Practice and 21st Century Potential (Boston: Porter Sargent).

Notes