Prof. Bainbridge was kind enough to respond, and offered the critically important distinction between jus ad bellum and jus in bello, that is, justness up to war and justness in war. This gets at the difference between justification for the cause or occasion for war, causus belli, and the way in which that war is conducted.
Bainbridge concludes, “As I understand it, violations of jus in bello do not affect the jus ad bellum question. As an example, I think most people have concluded that the RAF’s deliberate targeting of civilians during WWII violated the principles of jus in bello. But I don’t know anybody who thinks that WWII therefore was an unjust war.”
He also refers the matter to Prof. Anthony Clark Arend of Georgetown, who affirms this distinction, but who also passes along the take of his mentor, the late William V’ O’Brien of Georgetown, on the relationship between the two senses of just war: “for O’Brien, for a party to be deemed to be acting justly in a given conflict, it would have to ‘meet substantially’ both the jus ad bellum and jus in bello criteria.”
My questions and confusion certainly arises from a conflation of the two senses of just war, as Bainbridge rightly points out. I do think, however, that such a conflation or composite sense of the term is the popular usage. Certainly, at least, on its own the term just war is ambiguous, especially if it has this divided sense betwen jus ad bellum and jus in bello. The meaning of simply calling a particular war just is not clear in and of itself, and raises the sorts of questions I had yesterday. Is a particular war just in its causes, its execution, or both? If each is distinction is a necessary but not sufficient condition for describing a war as just, perhaps we ought only to use the bare term just war by itself to refer to this composite sense.
One implication of this question is what I was trying to get at yesterday…that is, that the way in which a particular war is waged can make a war unjust, even when the criteria for jus ad bellum is met. This is also what Prof. Bainbridge was arguing in his TCS Daily column. Prof. Arend also gives us his judgment in this matter: “To me that does not mean that every single use of force by each and every soldier be proportionate or discriminate for the war to be just, but rather that the general policy and practice of the belligerent is to use force in a proportionate and discriminate manner.”
This raises the further prudential issue of judging what is the general policy and practice of the nation at war. Does the use of WMD as a policy negate the jus in bello and therefore make the war unjust? This gets back to my question about the use of annihilating tactics in WWII. It is hypothetically possible that a war that is just in its causes can be executed in a way that makes the war itself unjust. This is in fact what Prof. Bainbridge seems to be arguing in the case of the current Israel/Lebanon conflict, but also what he does not acknowledge with regard to WWII. Or again, perhaps in the case of WWII the preponderance of Allied policy and practice met the criteria for jus in bello, and therefore this condition was met, despite the firebombing of Dresden and the nuclear attacks on Nagasaki and Hiroshima.
Update: Exhibit A…The Remedy’s Michael Brandon McClellan concludes regarding the Israel/Lebanon conflict, “This is war, and it is a just war.” It is unclear to me whether he is looking exclusively at what we would label the ius ad bellum issues in making this judgment, or arguing that the ius in bello criteria need to be contextualized within the broader historical situation.
Update #2: A round-up of related commentary has been posted at Against the Grain.