Some thoughts on war

Introduction

Ok, this site has been dead for a year, but there has been an interesting burst of articles in the libertarian world about the legitimacy of war, and I want to express my views. Let's begin by saying that I don't like articles such as "Barnett is no longer a libertarian because he doesn't agree with my dogmas": they strictly resemble the attitude of the Marxists. I also add that I mostly agree with Barnett: there is something wrong with the libertarian approach to I.R. (International Relations).

Here there is a good summary by Kinsella of the opinions expressed so far, which contains links to whatever I've read about the discussion: http://blog.mises.org/archives/006901.asp.

In a debate mainly based on juridical arguments it is not clear whether or not geo-political and historical considerations are on-topic. What is evident is that, while "moderate" libertarian think tanks like the Cato Institute invest huge resources in careful and detailed analyses of strategic problems, the Mises Institute does not seem interested in real strategic issues, but mainly on a deontological stance against war itself. It is strange: radical libertarianism has lots of important economists (e.g. Rothbard), lots of important jurists (e.g. Leoni), and no International Relation expert at all. That's not fun, especially if in the future, as every political movement hopes, they time will come to think about concrete political problems instead of political theory.

Most libertarians think that those who have enemies have done something to deserve it: this opinion is clearly evident even in Prof. Murphy's article, linked above. But it is indefensible: I call it the "a raped woman is a whore" theory, thanks to the inspiration of a Swedish thrash metal band (were they Terror2000? I don't remember.). The inhabitants of Melos weren't doing anything evil before behind slaughtered by the Athenians; neither the Jews in 1943; nor the American Indians, nor the human race in Independence Day.

In order to avoid quibbling about modern and contemporary history, which would be off-topic, I will avoid in what follows direct references to Iraq, Afghanistan, WWI, WWII, the Cold War, etc.

I will mostly talk about the problem of "What's lawful?" and not about the related problem of "Who decides what's lawful?". This is not to understate the importance of the latter question. But the former is logically prior, as far as we don't accept a Schmittian view of political relations, in which the former question does not play any role.

Here there is somewhat a methodological problem. In real societies, if we apply the Leonian "Id quod plerumque accidit" (what usually occurs) criterion of validity for legal rules, it's the common acceptance of rights, duties and procedures which gives life to the legal order. In war, this common legal order does not exist, almost by definition, and, so, the problem of law enforcing and legal judgement are particularly critical. Anyway, here we are interested in a purely deontological approach: that is, "what is right?".

A further methodological problem arises because of the "thymological" nature of human history. Ideas and concepts are as clear in theory as opaque in history. We all know what risk is: but there is no criterion for a "proper burden of risk". But legal judgements are about the latter, not the former, problem. There is no "natural" "proper burden of risk", as a criterion; there is only a "qualitative" principle. That's the Popperian principle/criterion dichotomy reapplied. Most of the things I will say in the following are principles and not criteria: they are a rough guide, but cannot substitute judgement.

Lawful Collateral Damage - Or "Rothbard Pro-War"

Rothbard said: "But suppose, on the other hand, that the Martians also had the characteristics, the nature, of the legendary vampire, and could only exist by feeding on human blood. In that case, regardless of their intelligence, the Martians would be our deadly enemy and we could not consider that they were entitled to the rights of humanity. Deadly enemy, again, not because they were wicked aggressors, but because of the needs and requirements of their nature, which would clash ineluctably with ours." (http://www.mises.org/story/2581).

Is there a duty to cause one's own self-destruction to avoid damage to third parties? A duty to commit suicide by omission? Ayn Rand would say "No", and her response comes at no surprise, given the premises of her system of thought. I would tell also Rothbard would say "No", considering his quotation, and applying it to a more realistic situation: which are the responsibilities of a person who causes collateral damage to third parties while defending his own legitimate rights against aggression? Proportionality, a corner stone of the Rothbard’s system, obviously has to play a role, but there is a case to legally justify collateral damages in life/death situation, when it is unavoidable.

Rothbard says it is legitimate to kill a rational alien being if its nature is incompatible with ours. Evidently, the fact of being rational does not imply the possession of natural rights, even in the Rothbardian framework (personally, I don't believe in natural rights anyway...). But what if the situation in which an individual acts is such that the defence of his rights requires to damage the rights of others?

The solution is to introduce several degrees of "aggression". Everybody does a distinction between these three cases:

1. A uses coercion against B

2. B, to defend himself, overreacts and damages C

3. B, to defend himself, has to damage C

If we don't consider (3) a crime, but only a tort (C has a right to defend himself, and to obtain reparations), it's because we don't believe in the natural duty to cause one's own self-destruction. Not even a totalitarian like Hobbes has denied individuals this right, even against his beloved Leviathan.

Can I shoot a soldier hidden behind a human shield? What if I kill the human shield? On the other hand, can I bomb an airport from which bombers take off to bomb my property? What if I kill a civilian?

It doesn't make much sense to have a natural duty to leave the world in the hands of those who use innocents as human shields, and commit suicide for worship of non-aggression.

Anyway, if this principle is accepted, war is not inherently unjust, and no legal difference between privates and states is necessary in order to show this legitimacy. Collateral damages can be lawful, at least from a criminal point of view. The alternative is, by our hypotheses, mandatory suicide (uh… another thrash metal band… Slayer!).

Types of military attack

Most libertarians only think in terms of armies invading territories, backed by tanks, artillery, helicopters, ships, airplanes, cruise missiles. This is not always the case. Blockades, support to terrorism, cyber-attacks to communication infrastructures are forms of military attacks, too.

Only direct invasions and blockades, at least sometimes, can be counteracted by simply counterattacks against enemy forces. But even in this very simple case, counterattack can be harmful to privates (e.g. other invaded civilians); besides, it is highly unlikely that this simple form of counterattack will force the attacker to yield. Invading his territory, bombing his ports and airports, bombing his railways and highways, paying his domestic enemies can be necessary military actions.

Alliances and allied

There is no theoretical case for isolationism based on libertarian grounds. The old Washington Doctrine made sense: in a world without Ballistic and Cruise Missiles, without Airplanes, without Warships made of steel, the US were in the enviable position of being able to live safely without direct involvement in wars abroad. At least up until a global superpower would have established its supremacy in the rest of the world, and its bases in the American continent.

If there is, anyway, a weak case for isolationism from a historical perspective, there is none from the theoretical point of view. Any social action is based on cooperation: common defence has to be considered a form of cooperation, too. To fight united against a direct invasion is no different from looking for allies in the rest of the world.

D. Friedman, in his "The machinery of freedom", shows that a world made of hundreds of small communities can fall prey to one only super-power by the simple use of nuclear threat. If there are more nukes than suicidal communities, the terror equilibrium can be stable, and everybody would be forced to yield. Nobody has answered the question, as far as I know. Anyway, two thousand years before the Manhattan Project, the Romans already recognized the maxim "Divide et Impera" (divide and rule).

Historically, three solutions have been given to the problem of security. The most common one is the Empire: a hegemonic power performs the defence tasks in place of its clientes (which may or may not play a minor role). The original solution is cooperation: citizens federated in the Polis, or in the Boroughs, for common defence. The most sophisticated solution is the Balance of Power, when it is possible to face inner and outer menaces together (both with collective security and, more likely, with flexible alliances), but no one is capable of creating an Empire.

Whatever the solution, the problem exists. I've no much sympathy for the first one. But in order to apply the other two, alliances and allied are necessary, unless you are the Empire.

At the edge of crime

Unfortunately, the idea of "necessity" is opaque, and it is not clear whether a certain collateral damage is to be considered lawful or a war crime. It is fairly easy to be so loose to justify any crime, or to be so strict to make defence impracticable. It’s a good compromise that it’s difficult to find.

So, there are many cases which are not easily solved, and whose answer somehow depends on the geopolitical conditions and the state of the technology. For example, the Greeks, as reported by Thucidides, destroyed the fields around fortified cities in order to conquer them. Was it terrorism? Like the one of the Athenians against Melos? No, it was a strategic choice. Ok: but when shall we trace the border line between legitimate military actions and terrorism? As usual, there are no criteria at hand. At the end, I cannot imagine justice without good sense.

There are more terrible examples. What about the position of neutrals? Suppose that our region, A, borders with the sea and region C; region B borders with the sea and region C. B attacks A by sea, having the strongest navy, but A has the strongest army. Can A invade B in order to attack C?

In truth, there is a scale of different cases: a region can be already exploited by the attacker, even if formally neutral; in this case, I have no doubts. If the neutral region is politically weak, and in perspective can become a base for the attack, is a Protectorate legitimate? And, finally, what if a region is completely neutral, and has no role in the war, except for being a nice path for the troops? The right answer lies somewhere among the two extremes.

Combatants, belligerents, non-belligerents

A distinction, proposed by a friend of mine, can help restrict the generality of the principle of "necessity" and smooth its excessive elasticity (which should be the role of "in bello" jurisprudence: the law during war).

A combatant is the one who actively fight the war (for example, the Greek Hoplites). The belligerent is the non-combatant who plays a role in the logistics of war (for example, the Greek farmer invaded by the enemy army). The non-belligerent is the perfect neutral.

I believe that the rights of non-combatants should be taken into high consideration, and that their reaction to an attack is just.

Is there a case for a theory of just war?

If we accept our conclusions, there is a fairly strong case for just wars, and for lawful collateral damage, and whatever military action is necessary in the geo-political environment in which we have to act, at least against belligerents (casualties among combatants cannot be considered collateral damages).

A war can be just if:

1. It is for defence, both self-defence and defence of the allies against an attacker

2. It makes technically (strategically) sense to fight it

3. Third party damage is minimized (foreign citizens are obviously included).

If there is no juridical duty to cause one's own death by omission, there is a case for just collateral damages. If there is not, a free world would fall in the hands of the first sociopath walking the earth. And I'd bet there are many.

Look: I haven't said anything about Iraq and Afghanistan. Everything I’ve said is valid both for states and for private defence agencies.