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Victory: The Triumph and Tragedy of Just War
 2019944754, 9780198832911

Table of contents :
Preface
Contents
Introduction The Very Object of (Just) War?
1 Beneath Every History, Another History
2 Making a Desert and Calling It Peace
3 The Smell of Napalm in the Morning
4 The Usual Definition of Just Wars
5 The Right of Conquest
6 Mission Accomplished
7 The Disease of Victory
Conclusion The Art of Losing
Bibliography
Index

Citation preview

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Victory

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Victory The Triumph and Tragedy of Just War C IA N O’ D R I S C O L L

1

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1 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Cian O’Driscoll 2020 The moral rights of the author have been asserted First Edition published in 2020 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2019944754 ISBN 978–0–19–883291–1 DOI: 10.1093/oso/9780198832911.001.0001 Printed and bound in Great Britain by Clays Ltd, Elcograf S.p.A. Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

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Preface This book has its origins in a workshop I attended at Saint Andrews University several years ago. The workshop, which was a very enjoyable occasion, involved several just war theorists working onjus post bellum issues. When the conversation got bogged down in definitional disputes over how to define the ‘end’ or ‘endings’ of war, I suggested that we, as just war scholars, should perhaps think about using the more direct language of victory/defeat in its stead. While I will be the first to admit that my proposal, naïve as it was, was not especially interesting in its own right, the response it elicited surprised me. As I recall it, all the just war scholars in the room were convinced—emphatically so—that it was a verybad idea. I am accustomed to people disagreeing with me, but the unusual occurrence of so many academics agreeing with one another tweaked my curiosity. Why did they think it would be such a bad idea to connect just war theorizing to the discourse of victory, which is, after all, integral to how people think about warfare? What reasons might just war theorists have for their scepticism via-à-vis victory, and do they withstand scrutiny? Finally, what, if anything, might an analysis of these reasons tell us about victory, but also about the idea of just war itself? This book evolved as an attempt to address these questions. I have gone back and forth over the past few years with respect to how to pos­ition myself in the resulting text. Specifically, I have agonized over whether I should write in the first person or adopt a more detached tone. While I saw no reason to interject myself into the discussion too strongly, I also believed it would be disingenuous to adopt a pretence of scientific objectivity. In the end, I settled on what I hope is a happy middle-ground. Following Michael Walzer’s lead, I decided to use the terms ‘we’ and ‘our’ throughout the text in a bid to suggest that I am writing as a scholar interested in the ethics of war, an interest that I presume the reader shares with me. My use of ‘we’ and ‘our’ also indicates the extent to which I was reliant on the help and support of others in the writing of this book. The book has taken nearly ten years to write, and I have leaned heavily on friends and colleagues during this time. As is customary, I will take this opportunity to express my gratitude. I must begin with Nick Rengger, who sadly passed away this year. It was Nick’s invitation that brought me to St Andrews for the workshop mentioned above, and he has been a kind and supportive friend and colleague ever since I first met him all those years ago, when I was still a doctoral student. Nick’s work on the just war tradition has been a source of inspiration for me, and, like many others, I take

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vi Preface some comfort in the fact that I can still hear his voice whenever I read his books and essays. Toni Erskine and Ian Clark supervised my PhD and have continued supervising me ever since. I could not have asked for better mentors than Toni and Ian, and I am happy to think that the ties of friendship bind us now. I admire them both, not just as scholars, but as people. I have known Chris Brown and Tony Lang almost as long as I have known Toni and Ian. Both have been extraordinarily generous with their time and advice over the past few years. I wish I could write with as much humour as Chris, and I wish Tony hadn’t voted for Ralph Nader in 2000. I have also been boosted by the support of my fellow just war scholars. James Turner Johnson has also been exceptionally kind to me down the years, and I am so grateful for his interest in my work. I especially enjoyed the praise he bestowed on an earlier draft of this book: ‘You know, Cian, I initially thought this victory stuff wasbull, but you might just be onto something.’ This meant a lot. John Kelsay, ‘Flash’ to his friends, is a kind and thoughtful man to whom I’ve often turned for advice. It helps that we share a passion for sports teams that have seen better days. Daniel Brunstetter is a dear friend, a great travel-companion, and a scholar I look up to. Amy Eckert and Valerie Morkevius make ISA panels more fun than they really ought to be. Their recent books on (respectively) private military com­pan­ ies and realist ethics set a high bar for the rest of us. Daniel Schwartz was a source of advice on all things Neo-Scholastic. Larry May took the time to read a very early draft of this work, and Stephen Neff offered me encouragement just when I needed it most. Several people went the extra mile in terms of helping me prepare this book. Luke Glanville, Gregory Reichberg, Rory Cox, Chris Finlay, and James Pattison commented on full drafts of the text. Greg, James, and Chris have all recently published excellent monographs of their own, and I am excited for the forthcoming books that Luke and Rory are currently completing. Brent Steele has been a great source of support, good humour, hugs, and beer since my graduate days. Ken Booth has been a great source of grudge and critique—this book is in many ways a response to his ideas on just war. Eric Heinze, Seb Kaempf, Neil Renic, and David Karp have joined me on numerous panels devoted to contemporary just war theory and I have learned a great deal from them. I am grateful to Elke Schwartz, Janina Dill, and Rhiannon Neilsen for their advice on the tone and structure of the book, and to Harry Gould for detailed (and prudent!) commentary on early drafts of several chapters. Dan Bulley deserves a special mention for helping me pull together the proposal for this book at a time when I had my doubts. His encouragement meant a lot to me—it’s just a shame that it was too rude to repeat here. Jim Brassett assisted with comedy, Mathias Thaler with violence. Nick Vaughan-Williams was encouraging of this project from the start, and Liane Hartnett helped me finish it. She generously read multiple drafts of every chapter. I look forward to doing the same for her own forthcoming book.

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Preface  vii I owe my colleagues at Glasgow an apology for gloating about how much I was enjoying my study-leave while they were busy teaching. As well as being great friends, Kelly Kollman and Andy Judge made that period of study-leave possible for me by arranging my cover. I am very grateful for this. Ty Solomon, Sophia Dingli, and Beatrice Heuser commented on full drafts of this book. Going above and beyond what I would expect of departmental colleagues, their friendship has been a real boon for me. Other colleagues at Glasgow have offered feedback on specific chapters. Some have even endured me reading tricky paragraphs at them. Karen Wright, Georgios Karyotis, Chris Claassen, Mo Hume, Naomi Head, Alvise Favotto, Chris Berry, Craig Smith, Carl Knight, Ana Langer, Philip Habel, and Myrto Tsakatika all deserve special mention. Brian Girvin has taken time out of ‘retirement’ to help me fix the wonkier parts of my argument. I also benefited from the expert mentoring of Lauren McLaren and Jane Duckett and the supportive management of Chris Carman. Additionally, I have benefited greatly down the years from the vibrant (and collegial) research culture fostered by our IR and Political Theory research groups and also by the Glasgow Global Security Network. I feel lucky to have landed in such a great department. It would be remiss of me not to mention Alasdair Young. Alasdair left Glasgow for Georgia Tech some years back, but his influence is still discernible in Glasgow, most not­ ably in the high standards he set for professionalism and integrity. Andy Hom, another former colleague, has also contributed greatly to this book. He was a post-doctoral fellow at Glasgow when I was just starting out on this project. His critical questioning, willingness to talk an idea out, eagerness to tell me how wrong I am, and enduring interest in all things ‘theory’ have been a source of both pain and pleasure for me. He wouldn’t have it any other way. He has read several drafts of this book and it is better for his input. Phil O’Brien, whose contribution to War Studies at Glasgow was immense, is a great friend, and the first person I call when I need advice on how to approach a chapter and what brand of lounge-pants to buy. Working closely with Andy, Phil, and Kurt Mills, I was fortunate to receive an ESRC grant (ES/L013363/1) which provided me the time to eke out the hard yards on this book. This grant afforded me the opportunity to chat about long-bows with Matthew Strickland, Peter Jackson, and Stuart Airlie, and to work with the hugely talented Andee Wallace, Louis Bujnoch, and Gavin Stewart. Later in the life of the project, I received generous support from the Independent Social Research Foundation. The ISRF mid-career fellowship programme granted me the break from teaching and e-mail that I needed to finish this book. I also benefited from the opportunity to present elements of this book at different universities. I received helpful feedback from colleagues at: Warwick University, Edinburgh University, the University of Limerick, the University of Southern Denmark, CalTech, Florida State University, Johns Hopkins SAIS at Bologna, Georgetown University, the University of Dundee, the University of Bath, the

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viii Preface University of California at Irvine, Oxford University, Utah State University, Kiel University, and St Andrews University. Dominic Byatt at OUP has been fantastic to work with. Not only has he shown belief in this project from the very beginning, he has also become a trusted source of music tips. I am in his debt on both counts. I am also very appreciative of the care that Olivia Wells and her team at OUP have put into making this book a reality. Céline Louasli was especially helpful. She showed great patience in guiding me through the permissions process and preparing the manuscript for production. Together, Dominic, Olivia, and Céline have made what might have been a stressful process an enjoyable experience. I am also very thankful to the following publishers for granting me permission to reproduce material from the following texts. An excerpt from Hans-Georg Gadamer’sTruth and Method, translated by Joel Weinsheimer and D. G. Marshall (London: Continuum, 2004) is used by permission of Bloomsbury Publishing Inc. Cambridge University Press granted me permission to reproduce excerpts from: Beatrice Heuser, The Evolution of Strategy: Thinking War from Antiquity to the Present (Cambridge: Cambridge University Press, 2010). Taylor & Francis granted me permission to reproduce excerpts from: Ken Booth, ‘Ten Flaws of Just Wars’, International Journal of Human Rights 4:3–4 (2000): 314–24. Elements of the argument presented here have appeared in an essay I published in the European Journal of International Relations. I am grateful to the editors of both the journal and this press for permitting me to revisit this material. I am very grateful for the support of my friends, several of whom have taken an interest in this book. Alex Allen, Tom Bowser, and Steven Rice have a welcome way of getting me to think about things other than work—chiefly: rugby, red kites, and the relative merits of AC Jimbo and Barry Glendenning. Halle O’Neal has a filthy mouth and never ceases to make me laugh. As well as introducing me to the poetry of Elizabeth Bishop, Jen Bagelman helped me work out what the book was all about and helped me find the confidence to pursue it. I can’t thank her enough. Billy and Aileen Chapman, Ammon Cheskin, Steve Paterson, Dave Featherstone, and Lorenzo Ranalli have helped make Glasgow home for me. Fred Cartmel did more than anybody else to help me settle into working life at the university. We became firm friends when I arrived in Glasgow and I am so saddened by his passing earlier this year. ‘What time’s lunch, mate?’ Kieran and Julie Curran, Jon and Talia Dudley, Kieran McGourty, Karen Dolphin, Andrew O’Malley, and Bernadette Sexton are always on hand for a catch-up, a pint, an adventure, a protracted WhatsApp chat, and the occasional rave on a family farm. My greatest debt is of course to my family. My sister, Aoife, my brother, Cormac, and their partners, Eamon and Janet, make sure that I look forward to every trip I make back to Limerick. I hope they know how much I appreciate them. I also hope that someday Cormac will let me beat him at football, and that Aoife will do her fair share of the washing-up. Hope springs eternal. My nephews

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Preface  ix Tom and Felix are always on hand to remind me that I look silly, have an outsized head, and smell bad. They are growing up so fast that the day is swiftly approaching when I will no longer fancy wrestling them. It is, however, my parents, Peter and Jacinta, to whom I owe the most. They have worked hard to ensure that, alongside Aoife and Cormac, I have always had the opportunity to do whatever makes me happy. They have supported me in everything I’ve done, encouraged me every step of the way, and always been on hand to keep me updated with the latest scores in Munster matches. The pride they take in what I do is humbling. They light the way for me. This book is dedicated to them.

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Contents  

Introduction: The Very Object of (Just) War?

1

1.  Beneath Every History, Another History

19

2.  Making a Desert and Calling It Peace

36

3.  The Smell of Napalm in the Morning

54

4.  The Usual Definition of Just Wars

71

5.  The Right of Conquest

90

6.  Mission Accomplished

108

7.  The Disease of Victory

126



Conclusion: The Art of Losing

Bibliography Index

145 153 171

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Introduction The Very Object of (Just) War?

In war there can be no substitute for victory. General Douglas MacArthur1

Introduction Committing one’s country to war is a grave decision. Governments often have to make tough calls, but none are quite so painful as those that involve sending soldiers into harm’s way, to kill and be killed. The idea of ‘just war’ informs how we approach and reflect on these decisions. It signifies the belief that while war is always a wretched enterprise it may in certain circumstances, and subject to certain restrictions, be justified. The idea of just war has, of course, been subject to extensive refinement down the centuries. Even so, scholars have had little to say about what has historically been regarded as the very object of warfare: victory. What accounts for this oversight? I suggest in this book that the principal reason just war theorists have avoided talking about victory is because it raises awkward questions that risk unwelcome answers. What does victory mean in the context of a just war? What would winning a just war look like and can it ever be worth the suffering it causes? Cutting against the grain, I intend to argue that the fact that victory raises these questions is a reason, not for ignoring it, but for engaging it. In raising these questions, it reveals hard truths about the idea of just war itself. It forces us, on the one hand, to confront the fact that ‘just war is just war’, and, on the other, to see in that realization a case, not for disavowing the task of just war theory, but for committing ourselves to it with a deeper awareness of its tragic dimension.2

1  General Douglas MacArthur, ‘Farewell Address to Congress, 19 April 1951’. Available at: www. americanrhetoric.com/speeches/douglasmacarthurfarewelladdress.htm. Accessed: 18 January 2019. 2  Ken Booth, ‘Ten Flaws of Just Wars’, International Journal of Human Rights 4:3–4 (2000), pp. 316–17.

Victory: The Triumph and Tragedy of Just War. Cian O’Driscoll, Oxford University Press (2020). © Cian O’Driscoll. DOI: 10.1093/oso/9780198832911.001.0001

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2 Victory

Just War The idea of just war rests on the dual claim that war may sometimes be justified and that it is possible to discern between just and unjust uses of force. This way of thinking about war has a long history. Scholars usually trace its origins to early Christian political theology, though there is evidence to suggest that its roots extend deeper, into antiquity.3 Over time it coalesced around three discrete but interlocking sets of principles bearing on the conditions that justify the recourse to war (jus ad bellum), the limits that constrain the conduct of war (jus in bello), and the desiderata that should guide its conclusion (jus post bellum). Scholars sometimes quibble over the relative weighting assigned to different principles, but this should not obscure the fact that there is considerable consensus regarding the identity of these principles. Most scholars agree that jus ad bellum inquiries ne­ces­sar­ily revolve around the principles of just cause, proper authority, right intention, aim of peace, last resort, and reasonable chance of success; that jus in bello concerns pivot on the principles of discrimination (i.e., non-combatant immunity) and proportionality; and that the task of jus post bellum analysis is to parse the responsibilities of both the victors and the vanquished in the aftermath of armed conflict. There is, I trust, no need to gloss these principles here, save to note that they are best understood, not as criteria for a checklist, but as openended questions that may be usefully employed to structure and guide our ethical evaluation of warfare.4 The central proposition of just war theory is, therefore, that war can and should be subjected to moral scrutiny. The aim of this scrutiny is not to identify which wars are just and which are unjust. As Oliver O’Donovan has argued, ‘Major historical events cannot be justified or criticised in one mouthful; they are con­cat­en­ ations and agglomerations of many separate actions and many varied results.’5 3  The key texts on the history of the tradition are: James Turner Johnson, Ideology, Reason, and the Limitation of War: Religious and Secular Concepts, 1200–1740 (Princeton: Princeton University Press, 1975); James Turner Johnson, Just War Tradition and the Restraint of War (Princeton: Princeton University Press, 1981); Alex J. Bellamy, Just Wars: From Cicero to Iraq (Cambridge: Polity, 2006); and Frederick H. Russell, Just War in the Middle Ages (Cambridge: Cambridge University Press, 1975). On the move to look beyond the tradition’s putative roots in Christian thought: Rory Cox, ‘Expanding the History of Just War: The Ethics of War in Ancient Egypt’, International Studies Quarterly 61:2 (2017): 371–84; Gregory  A.  Raymond, ‘The Greco-Roman Roots of the Just War Tradition’, in Howard  M. Hensel (ed.), The Prism of Just War: Asian and Western Perspectives on the Legitimate Use of Military Force (Farnham: Ashgate, 2010): 7–29; Cian O’Driscoll, ‘Rewriting the Just War Tradition: Just War in Classical Greek Political Thought and Practice’, International Studies Quarterly 29:1 (2015): 1–10; and Cian O’Driscoll, ‘Keeping Tradition Alive: Just War and Historical Imagination’, Journal of Global Security Studies 3:2 (2018): 234–47. 4  Chris Brown calls them ‘aids to judgement’. Chris Brown, ‘Just War and Political Judgement’, in Anthony F. Lang, Jr., Cian O’Driscoll, and John Williams (eds.), Just War: Authority, Tradition, and Practice (Washington DC: Georgetown University Press, 2013), p. 46. For a primer on the principles of the just war tradition: Charles Guthrie and Michael Quinlan, Just War: Ethics in Modern Warfare (London: Bloomsbury, 2007). 5  Oliver O’Donovan, The Just War Revisited (Cambridge: Cambridge University Press, 2003), p. 13.

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The Very Object of ( Just ) War?  3 Rather, the purpose of just war theory is to guide our efforts to examine how the actions and results that wars entail might be interrogated in ethical terms. Within this, an issue that requires further attention is the question of how one should understand the relationship between the jus ad bellum and jus in bello judgements. Should a belligerent party’s jus ad bellum basis for resorting to war in the first instance be taken into account when considering what counts as permissible conduct in the course of that war? Michael Walzer, whose 1977 text Just and Unjust Wars has swiftly become a modern classic, has argued that, all things being equal, jus ad bellum and jus in bello considerations should be treated in­de­pen­dent­ly of one another.6 This opens up the possibility of judging an otherwise justified war to have been waged unjustly, and vice versa. Recent years have seen this proposition become the focus of a fierce debate between Walzer and his critics.7 Scholars such as Jeff McMahan have claimed that it reflects faulty reasoning.8 Their argument is that the strict separation of jus ad bellum and jus in bello considerations leads to wrongheaded thinking, such as, for instance, the belief that so long as he or she adheres to jus in bello norms, a soldier does no wrong by fighting for an unjust cause. I will have more to say about this debate, and its implications for the argument I seek to develop in this book, in Chapter 7. In the meantime, it is important to say something about why the idea of just war matters. Although the discussion has focused thus far on Latinate categories of analysis and abstract scholarly debates, one should not underestimate the practical edge of just war thinking and its significance for international politics. While it was possible in the past to discount the idea of just war as an obscure, recondite hobby pursued by Catholic theologians cloistered in ivy towers, its recent prom­in­ ence in the discourse of political and military leaders suggests a very different story.9 As numerous scholars have shown, just war has become the predominant frame through which western military and policy elites discuss matters of war and peace.10 Walzer has famously dubbed this development the ‘triumph of just war 6  ‘War is always judged twice, first with reference to the reasons states have for fighting, secondly with reference to the means they adopt.’ Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations—Fifth Edition (New York: Basic Books, 2015), p. 21. 7  There is a wealth of material available on this debate, which is often (misleadingly) cast as a clash between ‘revisionist’ and ‘traditionalist’ approaches to just war theory. For an overview: Seth Lazar, ‘Evaluating the Revisionist Critique of Just War Theory’, Daedalus 146:1 (2017): 113–24; and James Pattison, ‘The Case for the Non-Ideal Morality of War: Beyond Revisionism Versus Traditionalism in Just War Theory’, Political Theory 46:2 (2018): 242–68. 8  Jeff McMahan, ‘Innocence, Self-Defence and Killing in War’, Journal of Political Philosophy 2:3 (1994): 193–221. 9  President Barack Obama famously framed his Nobel Peace Prize address in the language of just war. Barack Obama, ‘Nobel Lecture’, 10 December 2009. Available at: www.nobelprize.org/prizes/ peace/2009/obama/26183-nobel-lecture-2009/. Accessed: 18 January 2019. Obama was not alone in invoking just war, however. Other leaders have also made extensive reference to it. See: Cian O’Driscoll, ‘Talking about Just War: Obama in Oslo, Bush at War’, Politics 31:2 (2011): 82–90. 10  For example: Mark Totten, First Strike: America, Terrorism, and Moral Tradition (New Haven: Yale University Press, 2010), pp. 80–3; and Daniel Brunstetter and Scott Brunstetter, ‘Shades of Green: Engaged Pacifism, the Just War Tradition, and the German Greens’, International Relations 25:1

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4 Victory theory’.11 He argues that since the Vietnam War just war discourse has emerged as the lingua franca of those in power. This, he notes, is a significant development. It indicates how deeply just war norms and concepts have become embedded in contemporary international relations. It is not merely that generals and presidents exploit the just war idiom for rhetorical purposes, it is that it has also been internalized by them and incorporated into military planning and operations at all levels. It is not going too far to suggest that the just war tradition has become the pre-eminent framework for examining the rights and wrongs of the use of force in inter­ national society.12

Victory Victory is integral to how we understand war. Aristotle and Cicero called it the ‘telos’ of military science, Sun Tzu hailed it as ‘the main object in war’, while General Douglas Macarthur proclaimed that it knows ‘no substitute’.13 But what is it? Victory is one of those concepts that, like time, appears simple to grasp until you actually start to examine it.14 The issue is that victory is simultaneously a rhet­oric­al­ly powerful concept but also a hopelessly vague one.15 On the one hand, it is a very resonant term. It conjures up images of soldiers driving enemies from the battlefield, planting a flag on a captured hill, seizing the enemy’s capital, and vanquishing their foes.16 In each case, victory is represented as something that is emphatic, decisive, conclusive. It stands for the termination of hostilities, the (2011): 65–84. It is also important to note the work being done by the adjective ‘western’. In terms of its provenance, just war theory is usually regarded as a western tradition. It does, however, have analogues in other cultures. My focus will be on western just war theory. On the comparative ethics of war: Gregory M. Reichberg, Henrick Syse, and Nicole M. Hartwell (eds.), Religion, War, and Ethics: A Sourcebook of Textual Traditions (New York: Cambridge University Press, 2014); Vesselin Popovski, Gregory  M.  Reichberg, and Nicholas Turner (eds.), World Religions and Norms of War (New York: United Nations University Press, 2009); and Richard Sorabji and David Rodin (eds.), The Ethics of War: Shared Problems in Different Traditions (Aldershot: Ashgate, 2006). 11  Michael Walzer, Arguing About War (New Haven: Yale University Press, 2004), pp. 3–22. 12 For a different take which emphasizes legalistic discourse: Fernando  G.  Nunez-Mietz, ‘Legalization and the Legitimation of the Use of Force: Revisiting Kosovo’, International Organization 72:3 (2018): 725–57. 13 Aristotle, Nicomachean Ethics, trans. by Harry Rackham (London: Wordsworth, 1996), p. 3 [1.i.3]. Marcus Tullius Cicero, ‘The Republic’, in The Republic and the Laws, trans. by Niall Rudd (Oxford: Oxford University Press, 1998), p. 83 [V.8]. Mark R. McNeilly, Sun Tzu and the Art of Modern Warfare (Oxford: Oxford University Press, 2015), p. 16. General Douglas MacArthur, ‘Farewell Address to Congress’. Available at: www.americanrhetoric.com/speeches/douglasmacarthurfarewelladdress.htm. Accessed: 18 January 2019. 14  ‘What then is time? Provided that no one asks me, I know.’ Augustine, Confessions, trans. by Henry Chadwick (Oxford: Oxford University Press, 1998), p. 230 [XI.xiv.17]. 15  Robert Mandel describes victory as a ‘fuzzy, contentious, and emotionally charged’ idea. Robert Mandel, The Meaning of Military Victory (Boulder: Lynne Rienner, 2006), p. 13. 16  Dominic  P.  Johnson and Dominic Tierney, Failing to Win: Perceptions of Victory and Defeat in  International Politics (Cambridge, MA: Harvard University Press, 2006), pp. 5–6. Also: Paul

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The Very Object of ( Just ) War?  5 settle­ment of a dispute, the end of ‘war-time’, and the resumption of peacetime.17 On the other hand, it can be hard to pin down exactly what victory means in practical terms.18 Although we know it stands for winning, what this means in practice is often anyone’s guess. Victory has historically been indexed to, among other things, body-counts, the occupation of enemy territory, and the winning of hearts and minds.19 Yet the fog of war is such that these indicators seldom give us little more than a very rough idea of what victory looks like in war. The tensions inherent in victory are observable in the wars of the post-9/11 era. President George W. Bush placed the goal of victory at the forefront of US war aims in Afghanistan, Iraq, and the so-called War on Terror more generally. Delivering an address on the Iraq War in 2005, for example, ‘Bush used the word “victory” fifteen times while standing in front of a sign that read “Plan for Victory” and pitching a document called “Our National Strategy for Victory in Iraq” .’20 Despite this, neither Bush nor his generals had, in Andrew Bacevich’s words, ‘the foggiest notion of what victory would look like, how it would be won, and what it might cost’.21 This was due in part to the nature of the struggle itself: waged over amorphous battlespaces against shadowy foes rather than on clearly demarcated battlefields against ranked and massed enemy armies, the wars the US waged in Afghanistan, Iraq, and elsewhere were not configured to generate readily identifiable victories. As General Petraeus put it, these were not the sort of struggles ‘where you take a hill, plant the flag, and go home with a victory parade’.22 President Obama subsequently sought to shift US strategic discourse away from any association with victory. The term ‘victory’ was unhelpful, he explained, because

Kekcskemeti, Strategic Surrender: The Politics of Victory and Defeat (Stanford: Stanford University Press, 1958). 17  Andrew R. Hom, ‘Conclusion’, in Andrew R. Hom, Cian O’Driscoll, and Kurt Mills (eds.), Moral Victories: The Ethics of Winning Wars (Oxford: Oxford University Press, 2017), p. 235. 18  Richard Hobbs, The Myth of Victory: What is Victory in War? (Boulder: Westview, 1979), pp. xvi–2; Tommy Franks, ‘What is Victory? A Conversation with General Tommy Franks’, The National Interest 86 (2006), p. 8. 19  Philip Caputo’s remarks are indicative: ‘Victory was a high body-count, defeat a low killratio, war a matter of arithmetic.’ Philip Caputo, A Rumour of War (New York: Henry Holt & Company, 1996), p. xix. On the metrics of winning: Leo J. Blanken, Hy Rothstein, and Jason J. Lepore (eds.), Assessing War: The Challenge of Success and Failure (Washington DC: Georgetown University Press, 2015); Gregory A. Daddis, ‘The Problem of Metrics: Assessing Progress and Effectiveness in the Vietnam War’, War in History 19:1 (2012): 73–98. 20  Dominic Tierney, The Right Way to Lose a War: America in an Age of Unwinnable Conflicts (New York: Little, Brown & Company, 2015), p. 145. 21 Andrew J. Bacevich, Washington Rules: America’s Path to Permanent War (New York: Henry Holt & Company, 2010), p. 10. 22  Mark Tran, ‘General David Petraeus Wars of Long Struggle Ahead for U.S. in Iraq’, Guardian, 11 September 2008. Available at: https://www.theguardian.com/world/2008/sep/11/iraq.usa. Accessed: 18 January 2019. Donald Rumsfeld went further, complaining that there was no ‘metrics to know if we are winning or losing the Global War on Terror’. Quoted in: Mandel, The Meaning of Military Victory, p. 135. For more on this: Jeffrey Record, Bounding the Global War on Terrorism (Carlisle, PA: Strategic Studies Institute, 2003), pp. 5–6.

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6 Victory ‘it invokes the notion of Emperor Hirohito coming down and signing a surrender to MacArthur’.23 Obama’s efforts to excise victory from the lexicon have since been reversed by President Donald Trump, in whose rhetoric ‘winning’ occupies pride of place.24 The wars of the post-9/11 era also illuminate the degree to which victory remains essential to how people think and talk about war. This underlines the need for a clear definition of victory. This is easier said than done. Victory defies parsimonious formulae. This is a reflection of its multivalence and historical mutability. Victory can denote a wide variety of outcomes and has been understood in very different ways at different times. As William C. Martel has observed, ‘victory describes in general terms a wide range of favourable or successful pol­it­ ical, economic, and military outcomes that routinely occur in war’.25 It is, in this sense, a very baggy or ‘imprecise’ term which only loosely captures a vast range of phenomena.26 Strategists and military historians have tended to respond to this problem (if that is indeed what it is) by elaborating complex typologies that are intended to reflect the different categories of victory that can be achieved through the use of force. Thus, for example, Colin Gray parses victory along operational, strategic, and political dimensions while the aforementioned Martel refers to the tactical, strategic, and grand-strategic levels of victory.27 The famous Prussian strategist Carl von Clausewitz furnishes us with another way of approaching the task of defining victory. Instead of accounting for its vicissitudes, he attempted to reduce it to its core essence. According to Clausewitz, victory is best understood in terms of the imposition of one’s will upon the ­enemy.28 As such, and unlike other similar terms such as ‘success’, it denotes a fundamentally zero-sum outcome. For one side to win, the other must lose, and for every victor there must be a vanquished.29 Victory, on this account, is a matter

23  Quoted in: Gabriella Blum, ‘The Fog of Victory’, European Journal of International Law 24:1 (2013), p. 421. On Obama’s efforts to excise victory from US discourse: William C. Martel, Victory in War: Foundations of Modern Strategy—Revised and Expanded Edition (Cambridge: Cambridge University Press, 2011), pp. 17–18. 24 It would be a missed opportunity not to include at least one quote evoking victory from President Trump: ‘You’re going to be so proud of your country. [. . .] We’re going to turn it around. We’re going to start winning again: we’re going to win at every level, we’re going to win economically [. . .] we’re going to win militarily, we’re going to win with healthcare for our veterans, we’re going to win with every single facet, we’re going to win so much, you may even get tired of winning, and you’ll say “Please, please, it’s too much winning, we can’t take it anymore”, and I’ll say “No it isn’t”, we have to keep winning, we have to win more, we’re going to win more!’ Quoted in: Cian O’Driscoll and Andrew  R.  Hom, ‘Introduction’, in Andrew  R.  Hom, Cian O’Driscoll, and Kurt Mills (eds.), Moral Victories: The Ethics of Winning Wars (Oxford: Oxford University Press, 2017), p. 3. 25 Martel, Victory in War, p. 19. 26 Ibid. 27 Colin  S.  Gray, Defining and Achieving Victory (Carlisle, PA: Strategic Studies Institute, 2002), p. 11. Martel, Victory in War, pp. 34–9. 28  Carl von Clausewitz, On War, trans. by Michael Howard and Peter Paret (Princeton: Princeton University Press, 1989), pp. 77 [I.I]; 142–3 [II.II]. Clausewitz is discussed further in Chapter 6. 29  Lawrence Freedman, Strategy: A History (Oxford: Oxford University Press, 2013), p. 71. Also: Michael Howard, ‘When Are Wars Decisive?’, Survival 41:1 (1999), p. 130.

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The Very Object of ( Just ) War?  7 of prevailing over one’s adversaries and of forcing them to taste defeat. This way of approaching victory emphasizes its antagonistic, conflictual character. This is very much in line with the synonyms people habitually substitute for it: conquest, triumph, vanquish, subdue, subjugate, and overcome.30 Each of these terms highlights the notion that victory is something that is achieved over others and at their expense through means of domination and/or violence. Furthermore, while the practice of characterizing a victory by reference to its degree of comprehensiveness (i.e., tactical, strategic, or grand-strategic) serves a practical purpose, it is predicated upon the fact that victory, unqualified, ordinarily carries connotations of decisiveness and totality.31

The Victory of Just War Having introduced the fundaments of just war and victory, the next challenge is to consider how they go together. This issue has not received much attention in recent just war scholarship. While books and essays have appeared on almost every conceivable issue relating to the ethics of war—from long-standing concerns regarding sovereignty and intervention to novel worries arising from the emergence of new military technologies—since the publication of Walzer’s Just and Unjust Wars, the relation between just war and victory has been largely overlooked.32 To put it more accurately, just war scholars have tended to avoid using the language of victory and winning. This is not to say that the concept of victory has been entirely absent from the current literature on just war. It does make an occasional appearance. The issue is that it is seldom handled with any care or concern for its full depth of meaning. Scholars evoke it but do not engage it. This is especially apparent in three domains of contemporary just war scholarship.

Reasonable Chance of Success We might expect to find a thoughtful discussion of victory and its relation to the idea of just war in analyses of the jus ad bellum principle of reasonable chance of success. This principle may be taken to suggest that a war that satisfies all the 30  These synonyms are listed in: Martel, Victory in War, p. 22. 31 Ibid. 32  There are several honourable exceptions. Janina Dill (ed.), ‘Symposium on Ending Wars’, Ethics 125:3 (2015): 627–80; Beatrice Heuser, ‘Victory, Peace, and Justice: The Neglected Trinity’, Joint Forces Quarterly 69 (2013): 1–7; Blum, ‘The Fog of Victory’; James Q. Whitman, The Verdict of Battle: The Law of Victory and the Making of Modern War (Cambridge, MA: Harvard University Press, 2011). There is also the collection of essays that I co-edited with Andy Hom and Kurt Mills: Andrew R. Hom, Cian O’Driscoll, and Kurt Mills (eds.), Moral Victories: The Ethics of Winning Wars (Oxford: Oxford University Press, 2017).

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8 Victory rele­vant jus ad bellum requirements would nevertheless only be justified if it is also a war that one is likely to win. It can in this form be traced back to the Neoscholastic writings of Francisco Suarez. As Suarez framed it, ‘For a war to be just, the sovereign ought to be so sure of the degree of his power that he is morally certain of victory.’33 The reason for this, he explained, is that ‘otherwise the prince would incur the evident peril of inflicting on his state losses greater than the advantages involved’.34 This is exactly how the principle is stipulated in contemporary just war theory. Consider for example the following exposition in Guthrie and Quinlan’s 2007 primer on the principles of just war: The ‘success’ criterion reflects the truth that, whatever may be thought of an individual’s entitlement to hazard or lose his or her life . . . it cannot be right for a national leader, responsible for the good of all the people, to undertake—or prolong—armed conflict, with all the loss of life and other harm that entails, if there is no reasonable likelihood that this would achieve a better outcome for the ­people than would result from rejecting or ending combat and simply doing whatever is possible by other means.35

Thus framed, the principle of reasonable chance of success does not demand the prospect of a certain victory as a condition for waging war. It merely rules out, or at least creates a prima facie case against, the recourse to force in cases where there is reason to believe it would be futile. In essence, it sounds a cautionary note against throwing soldiers’ lives after lost causes. This may appear a promising place to find a thoughtful discussion of victory and its relation to the idea of just war. The reality, however, is disappointing. The first hint of this arrives courtesy of the shift in vocabulary it introduces, from victory to success. We might suppose that this is just a matter of nomenclature, the significance of which should not be overstated. Yet this is not quite right. There is something lost when one substitutes success for victory in discussions bearing on the rights and wrongs warfare. The use of success nudges the tone of just war inquiry onto a euphemistic register by obfuscating the fact that, where war is concerned, anything resembling a ‘positive’ outcomes must always necessarily have been achieved at someone else’s expense. Put simply, it obscures the agonistic logic of warfare that victory captures. This lends the misleading impression that prevailing in war has nothing to do with the brutish, zero-sum realities of defeating the other party, when in fact it is grounded in them. Beyond this, the principle of reasonable chance of success is prone to dissolve upon contact into a mushy 33  Francisco Suarez, ‘A Work on the Three Theological Virtues: Faith, Hope, and Charity: Disputation XIII: On War’, in Selections from Three Works, ed. by Thomas Pink, trans. by Gwladys  L.  Williams, Ammi Brown, and John Waldron (Indianapolis: Liberty Fund, 2015), p. 937 [IV.10]. 34 Ibid. 35  Guthrie and Quinlan, Just War, p. 31.

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The Very Object of ( Just ) War?  9 form of proportionality calculation. This is evident in the emphasis Guthrie and Quinlan place upon the balancing of costs and benefits in their account of reasonable chance of success.36 Others, like James Turner Johnson, define it in a way that highlights its overlap with the principle of proportionality. In Johnson’s words, the reasonable chance of success principle enjoins ‘Prudential calculation of the likelihood that the means used will bring the justified ends sought.’37 Thus configured, it functions as a kind of rump utilitarian backstop designed to guard against feckless military adventurism. As such, it assumes rather than interrogates the concept of success, and is thereby symptomatic of the general failure of today’s just war theorists to acknowledge, let alone problematize, the relation between victory and just war.

Jus Post Bellum The other area of contemporary just war scholarship that purportedly addresses the relation between just war and victory is the jus post bellum. Jus post bellum analysis purports to address the ethical and legal questions that arise specifically when a war is in the process of being concluded. Approached as a discreet field of inquiry, jus post bellum analysis can be traced back to a 1994 essay by Michael Schuck in the Christian Century.38 Appalled by the triumphalism displayed by the US in the wake of the 1991 Gulf War, and in particular the attendance of military top brass at a victory parade hosted by a Disney theme park, Schuck lamented what he saw as his country’s lack of remorse for the losses that the war had occasioned on both sides.39 More deeply, he claimed, it exposed the general lack of thought devoted to the question of how states ought to comport themselves in the aftermath of war. As a remedy, Schuck coined the phrase jus post bellum and proffered it as the missing element of just war theory. Latterly, Brian Orend, Gary Bass, Larry May, Eric Patterson, Mark Allman and Tobias Winright, Louis Iasiello, Robert Williams and Dan Caldwell, and Alex Bellamy, among others, have endorsed the case for jus post bellum and argued that, rather than concentrating 36 Ibid. 37  James Turner Johnson, Morality and Contemporary Warfare (New Haven: Yale University Press, 1999), p. 29. Some scholars, Nicholas Fotion and A. J. Coates among them, have even gone so far as to identify reasonable chance of success as a subcategory of proportionality. Nicholas Fotion, War and Ethics: A New Just War Theory (London: Continuum, 2007), p. 15; A.  J.  Coates, The Ethics of War (Manchester: Manchester University Press, 1997), p. 179. Also: Frances  V.  Harbour, ‘Reasonable Chance of Success as a Moral Criterion in the Western Just War Tradition’, Journal of Military Ethics 10:3 (2011): 230–41. 38  Michael J. Schuck, ‘When the Shooting Stops: Missing Elements in Just War Theory’, Christian Century (26 October 1994), pp. 982–3. 39  I discuss this elsewhere: Cian O’Driscoll, ‘After Disneyland: The (Hollow) Victory of Just War’, in Daniel  R.  Brunstetter and Jean-Vincent Holeindre (eds.), The Ethics of War and Peace Revisited (Washington DC: Georgetown University Press, 2018): 287–302.

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10 Victory all their efforts on the initial resort to war and its subsequent conduct, theorists should devote more time to the ethical challenges that arise at war’s end.40 Jus post bellum scholars present victory as pivotal to their enterprise. Louis V. Iasiello equates jus post bellum analysis with parsing the liabilities and responsibilities that victors incur with respect to the societies whose armies they have defeated in combat. He writes that the task of the jus post bellum theorist is to devise ‘moral precepts to guide the post bellum activities of victors’.41 Alex J. Bellamy submits that the key division in the jus post bellum field is between minimalist and maximalist approaches, a distinction that turns on whether one apportions minor or extensive responsibilities to victorious parties for those societies that they have defeated in war.42 Finally, Larry May claims that the central jus post bellum question is ‘what difference should there be between victors and vanquished in terms of post war responsibilities?’43 Yet even though the concept of victory pervades jus post bellum analysis, it is not developed with any precision. This is because, despite its prominence in the literature, victory is not actually the central concern of conventional jus post bellum scholarship. Rather, as David Rodin has pointed out, the majority of jus post bellum scholars are actually less interested in what victory might mean than they are in discerning what principles should obtain after victory has already been achieved.44 Viewed in this light, jus post bellum analysis is not designed to shed any light on the concept of victory or its relation with just war. Instead, it treats victory as a point of departure or threshold condition for a schematic exam­in­ ation of what former belligerents owe one another after the war between them has been won.45

40  Brian Orend, ‘Jus Post Bellum’, Journal of Social Philosophy 31:1 (2000): 117–37; Brian Orend, ‘Jus Post Bellum: The Perspective of a Just-War Theorist’, Leiden Journal of International Law 20 (2007): 571–91; Gary Bass, ‘Jus Post Bellum’, Philosophy & Public Affairs 32:4 (2004): 384–412; Larry May, After War Ends: A Philosophical Perspective (Cambridge: Cambridge University Press, 2012); Eric Patterson, Ending Wars Well: Order, Justice, and Conciliation in Contemporary Post-Conflict (New Haven: Yale University Press, 2012); Eric Patterson (ed.), Ethics Beyond War’s End (Washington DC: Georgetown University Press, 2012); Mark J. Allman and Tobias L. Winwright, After the Smoke Clears: The Just War Tradition and Post-War Justice (Maryknoll: Orbis, 2010); Louis V. Iasiello, ‘Jus Post Bellum: The Moral Responsibilities of Victors in War’, Naval War College Review 57:3/4 (2004); Robert E. Williams and Dan Caldwell, ‘Jus Post Bellum: Just War Theory and the Principles of Just Peace’, International Studies Perspectives 7:4 (2006): 309–20; and Alex J. Bellamy, ‘The Responsibilities of Victory: Jus Post Bellum and the Just War’, Review of International Studies 34 (2008): 601–25. 41  Iasiello, ‘Jus Post Bellum: The Moral Responsibilities of Victors in War’, p. 40. 42  Bellamy, ‘The Responsibilities of Victory’, p. 602. 43 May, After War Ends, p. 1. 44  David Rodin, ‘Two Emerging Issues of Jus Post Bellum: War Termination and the Liability of Soldiers for Crimes of Aggression’, in Carsten Stahn and Jann  K.  Kleffner (eds), Jus Post Bellum: Towards a Law of Transition from Conflict to Peace (The Hague: TMC Asser Press, 2008): 53–77. 45  This is neatly summed up by Walzer’s statement of purpose in a 2012 essay he wrote on jus post bellum. ‘I am going to assume the victory of the just warriors and ask what their responsibilities are after victory.’ Michael Walzer, ‘The Aftermath of War: Reflections on Jus Post Bellum’, in Eric Patterson (ed), Ethics Beyond War’s End (Washington DC: Georgetown University Press, 2012), p. 37.

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The Very Object of ( Just ) War?  11

Jus Ex Bello Rodin used the essay referred to above as a springboard to propose a new pole of just war theorizing, jus terminatio, which would focus on the ethics of how wars are brought to an end. Independently but around the same time, Darrel Moellendorf issued a call for the development of what he called a jus ex bello pole of just war theory, devoted to the same purpose identified by Rodin.46 ‘Although there is a discussion of the morality of ending wars that goes back at least as far as early modern philosophy, in recent debates on just war theory, the questions of whether and how to end a war have received comparatively little attention.’47 This, he contended, urgently requires correction. These calls have since inspired a profusion of work.48 The key argument that this body of work advances is that just war theory would benefit from greater attention being paid to how we judge whether and when to end our wars.49 This would necessarily involve more systematic thinking about the coherence between the jus ad bellum basis of a war, the jus in bello restrictions that bear upon it, and the morally appropriate way to terminate it.50 Scholars interested in jus ex bello matters have set for themselves the task of examining whether belligerents waging a just war should always press on for victory, no matter how arduous and costly a task that might be, while also considering the possibility that there might be some point or threshold beyond which they ought to sue for peace.51 Though the authors involved generally steer clear of the idiom of victory, the premise of their work is that we as just war scholars need to pay more attention to the relation between just war and victory. This book seeks to build on this insight.

Triumph, Tragedy, Irony The purpose of this book is to examine the relation between just war and victory, and to use this focus as a prism through which to shed new light on the idea of just war, and in particular to highlight its tragic limitations. It will proceed by interrogating what I consider to be the seven major problems that victory raises for just war theorists. The aim in each case is to identify the parameters of the problem, establish why just war theorists regard it as a reason for avoiding the

46  Darrel Moellendorf, ‘Jus Ex Bello’, Journal of Political Philosophy 16:2 (2009): 123–36. 47  Darrel Moellendorf, ‘Ending Wars’, in Seth Lazar and Helen Frowe (eds.), The Oxford Handbook of Ethics of War (Oxford: Oxford University Press, 2015). 48  Most notably: Dill (ed.), ‘Symposium on Ending Just Wars’. 49  Darrel Moellendorf, ‘Jus Ex Bello in Afghanistan’, Ethics & International Affairs 25:2 (2011), p. 156. 50  Janina Dill, ‘Ending Wars: The Jus ad Bellum Principles Suspended, Repeated, or Adjusted?’, Ethics 125:3 (2015), p. 627. 51  Cecile Fabre, ‘War Exit’, Ethics 125:3 (2015), pp. 631–2.

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12 Victory concept of victory, show why this reason is actually a basis for engaging it, and consider what this tells us about how just war is understood. We will discover the same pattern at work across all seven problems. It will be demonstrated that the reason just war theorists are so circumspect about victory is because of what it reveals about just war: namely, that ‘just war is just war’.52 The claim that ‘just war is just war’ is usually asserted to undermine the idea of just war. It affects to lay bare the truth that even the wars that one might regard as justified are nasty affairs, no different from any other war. It thus suggests that just war theory both distracts from and sanitizes the horrors of modern warfare by dressing it up in the garb of moral principles. Ken Booth furnishes its classic formulation. ‘The idea of just war is beguiling’, he writes, ‘because it ennobles the profession of violence, and offers a set of conditions that seem to suggest rational control and restraint.’53 Yet it is susceptible to being ‘misused and manipulated’.54 The result is that it provides a source of legitimation for practices that should be condemned. When I suggest, then, that viewing it through the prism of victory will reveal just war to be just war, what I mean is that it will prick the pretensions of just war theory. Instead of imbuing the idea of just war with triumphalism, interrogating it through the lens of victory compels scholars to keep in mind that all wars, even just ones, are brutish affairs that involve armies doing their utmost to defeat one another. It follows that reflecting on just war in light of the kind of questions that victory raises—What does victory in a just war look like, and can it ever be worth the cost?—undercuts the impression that it is a rational, civilized, carefully calibrated, and orderly enterprise. Instead, it reveals it to be a wretched and bloody business that trades in death and devastation—no different, in other words, from any other kind of war. So far as thinking about victory obliges us to take this into account, this helps us to think more realistically and therefore also more prudently about just war—which can only be a good thing. This, then, is a reason for engaging victory, not ignoring it. At the same time, revealing just war to be just war might be taken as a damning critique of the idea of just war. Indeed, some scholars—most notably Booth, but also Andrew Fiala and Maja Zehfuss—have made exactly this case.55 They have suggested that it furnishes us with good grounds for dismissing the whole idea of just war as so much dangerous hot air. Just war theory, they argue, should be rejected as ‘the continuation of war by other rhetoric’.56 I draw the opposite conclusion, however. I contend that it is precisely because ‘just war is just war’, with all that this implies, that we must not shy away from just war theory, but should 52  Ken Booth, ‘Ten Flaws of Just Wars’, International Journal of Human Rights 4:3–4 (2000), pp. 316–17. 53  Booth, ‘Ten Flaws of Just Wars’, pp. 316–17. 54 Ibid. 55  Booth, ‘Ten Flaws of Just Wars’; Andrew Fiala, The Just War Myth: The Moral Illusion of War (Lanham: Rowman & Littlefield: 2008); and Maja Zehfuss, War and the Politics of Ethics (Oxford: Oxford University Press, 2018). I will discuss these scholars in depth in Chapter 7. 56  Booth, ‘Ten Flaws of Just Wars’, p. 317.

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The Very Object of ( Just ) War?  13 instead renew our commitment to thinking carefully and judiciously about it. Put differently, instead of treating the realization that ‘just war is just war’ as grounds for abandoning the task of just war thinking, we should take it as a spur to approach it with the intellectual honesty and seriousness it demands. I say this despite believing that the critics are correct when they say that just war is as much a part of the problem as the solution when it comes to limiting the scourge of war. Yet, unless we are willing to give up on the idea of subjecting war to moral judgement, which I am not, I see no other option than to persevere with the idea of just war, even as we—viewing it through the prism of victory—recognize the dangers it presents. Bringing all of this together, then, this book illuminates the tragedy of just war. By asking what victory means in relation to just war, it invites us to consider the limited return that can be expected from any use of force, regardless of whether it is intended to serve a just cause or not. Just war, it submits, cannot fix our problems for us; the best it can do is defer, allay, or contain them for a period, while producing others in their place. This book thus frames just war, not as a means of resolving the ills of the world, but as a symptom of them. Yet this does not mean we should wash our hands of it. On the contrary, acquiring a deeper awareness of its limitations is a reason for approaching just war with a renewed sense of purpose. This will involve acknowledging that the problems that just war is symp­tom­at­ic of are also what ­render it necessary in the first place. At the same time, it will also require us to be both more circumspect with respect to what we expect just wars to deliver, and more honest about the fact that, as Erasmus put it, ‘even the most just of wars brings with it a train of evils’.57 This, as we shall see, is itself a hard task, for the nature of the just war idea is such that it encourages those of us who engage it to forget that it is implicated in the problems it is intended to ameliorate.58 The aim of this book, therefore, might be described as ironic in the sense described by Paul Fussell. For Fussell, the ironic disposition stands in opposition to that brand of inquiry that ‘solves problems and cleans up the place, leaving you feeling tidy and satisfied’. Rather, it accentuates the intractability of the problems we face by complicating them and ‘leaving them messier than before’.59 The value of this approach is that it forces us to confront the tragic dimension of our politics where we might otherwise prefer to overlook. 57 Erasmus, The Education of a Christian Prince, trans. by Lisa Jardine (Cambridge: Cambridge University Press, 1997), p. 103. The argument that there is a need for more realism in just war theory is the centrepiece of an excellent recent book: Valerie Morkevicius, Realist Ethics: Just War Traditions as Power Politics (Cambridge: Cambridge University Press, 2018). 58  I am minded of what Niebuhr called ‘the ironic tendency of virtues to turn into vices when too complacently relied upon: and of power to become too vexatious if the wisdom which directs it is trusted too confidently’. Reinhold Niebuhr, The Irony of American History (Chicago: University of Chicago Press, 2008), p. 133. 59  Paul Fussell, Thank God for the Atom Bomb and Other Essays (New York: Summit Books, 1988), p. 42.

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14 Victory

Thinking with History This book comprises seven chapters, each one devoted to a different problem that the concept of victory raises for just war theorists. Before previewing the content of those chapters and showing how they hang together, it will be helpful to say something about the form that these chapters take. In addition to drawing on a range of classical and contemporary cases (or, to borrow a phrase, ‘historical illustrations’) to illuminate the nature of the problem it seeks to treat, each chapter will both excavate and then engage the formative articulation of that problem.60 What this means in practice is that each chapter will look to dig up and exposit the signature or paradigmatic expression of the given problem, and then use it as a springboard for analysis and argument. The writings of, among others, Saint Augustine, Marcus Tullius Cicero, Bernard of Clairvaux, Honore Bouvet, Christine de Pizan, Thomas Aquinas, Cardinal Cajetan, Francisco de Vitoria, Francisco Suarez, Alberico Gentili, Hugo Grotius, and Emer de Vattel, as well as of Jean Bethke Elshtain, Oliver O’Donovan, David Rodin, Jeff McMahan, and the aforementioned Michael Walzer, will all feature in this manner. The aim behind this approach is not, of course, to glean ready-made answers from our forebears about the proper relation between just war and victory, or to channel their theories so that they speak more directly to the questions we worry about today. Rather, it is to partake in what Carl Schorske has called ‘thinking with history’, a task that involves locating ourselves in history’s stream and working with ‘the materials of the past and the configurations in which we organize and comprehend them to orient ourselves in the living present’.61 It is, in other words, to employ the diverse range of how the great and the good of previous generations conceived of and responded to the problems of their day as a backdrop against which to set (and understand) the issues we confront today.62 This, then, is an exercise in expanding our horizons, not an act of deference to those who have gone before us.63 It posits the past, not as a mirror on the present, but as 60  I am invoking here the same methodological link that Walzer posits between the use of historical illustrations and the plural pronouns ‘we’, ‘ours’, and ‘us’. Walzer, Just and Unjust Wars, pp. xxvi, xxviii. For an analysis, Anthony F. Lang, Jr., ‘Politics, Ethics, and History in Just War’, in Lothar Brock and Hendrik Simon (eds.), The Justification of War and the International Order: From the Past to the Present (forthcoming). 61 Carl Schorske, Thinking with History: Explorations in the Passage to Modernism (Princeton: Princeton University Press, 1998), p. 3. 62  ‘He who would confine his thought to the present time will not understand present reality.’ Jules Michelet quoted in: Marc Bloch, The Historian’s Craft (Manchester: Manchester University Press, 1954), p. 35. 63  This approach reflects the influence of Quentin Skinner. See: Quentin Skinner, Visions of Politics, Volume I: Regarding Method (Cambridge: Cambridge University Press, 2002), p. 89. It is also inspired by the historical approach to the ethics of war. I have already mentioned Johnson, Russell, Bellamy, and Cox in this regard. I would add: Nigel Biggar, Chris Brown, Daniel Brunstetter, Luke Glanville, Pablo Kalmanovitz, John Kelsay, Tony Lang, Valerie Morkevicius, Stephen Neff, Gregory Reichberg, Nick Rengger, Daniel Schwartz, and Henrik Syse. I write about this approach elsewhere: Cian

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The Very Object of ( Just ) War?  15 a ‘set of counter-images’ that places the present in its proper perspective and reminds us of its contingency.64 Methodological snares abound with a work of this kind. As the list of thinkers furnished above suggests, this book covers a very wide historical period—from classical antiquity to the present day—and a great deal of material. In parsing this material for the purpose of this inquiry, I have tried to steer a course between the twin perils of anachronism and antiquarianism.65 This is no easy task. The approach adopted here reflects a pragmatic attempt to balance sensitivity to the particularities of historical context against the need to draw connections across time between homologous concepts. I have, in other words, attempted to pay due tribute to the stories of both change and continuity that we discover when we examine how victory has been related to just war down the centuries.66 Whether or not I have discharged this task satisfactorily will ultimately be for the reader to judge.

Seven Deadly Sins The book will proceed as follows. As noted above, it will comprise seven chapters, each one corresponding to a different problem that the idiom of victory poses for just war theorists. Chapter 1 kicks matters off by examining the stock belief that contemporary just war theorists do not so much have an issue with the category of victory as believe it to lie beyond their jurisdiction. Victory, on this view, has never been a topic of direct inquiry in the just war tradition—if it has ever been a problem, it has been somebody else’s problem. This chapter will expose this belief as bogus. Via a detailed engagement with the writings of Saint Augustine, it will reveal that, far from being neglected, victory was a central concern in the formative texts of the just war tradition. Indeed, it will show how victory featured in O’Driscoll, ‘The Historical Just War Tradition’, in Chris Brown and Robyn Eckersley (eds.), The Oxford Handbook of International Political Theory (Oxford: Oxford University Press, 2018): 209–20. Also: Cian O’Driscoll, ‘Divisions within the Ranks? The Just War Tradition and the Use and Abuse of History’, Ethics & International Affairs 27:1 (2013): 47–65. 64  John Tosh, Why History Matters (Basingstoke: Palgrave, 2008), pp. 28–9. 65  Anachronism involves reading the past in light of the present. Antiquarianism signifies a love of the past for its own sake and, as such, dissolves into romanticism. George Klosko, ‘Introduction’, in George Klosko (ed.) The Oxford Handbook of Political Philosophy (Oxford: Oxford University Press, 2013), p. 3. 66  I have been guided in this respect by the principle expressed by Richard Rorty, J. B. Schneewind, and Quentin Skinner that, as a scholar interested in intellectual history, I work, not for the sources I cite, but for the readers to whom I relate them. Richard Rorty, J. B. Schneewind, and Quentin Skinner, ‘Introduction’, in Richard Rorty, J. B. Schneewind, and Quentin Skinner (eds.), Philosophy in History (Cambridge: Cambridge University Press, 1984), p. 7. Trevor Roper’s remark that ‘the historian belongs not to the past but to the present’ is also apposite. Quoted in: E. H. Carr, What Is History? (London: Penguin, 1987), p. 25. Carr glosses: ‘The function of the historian is neither to love the past nor to emancipate himself from the past, but to master and understand it as the key to the understanding of the present.’

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16 Victory Augustine’s writings as the foil that brought the tragic dimensions of his vision of just war to light. Why, then, it asks, have just war scholars wrongly assumed that our predecessors did not address the topic of victory directly?67 It will submit that the reason we have been so reluctant to acknowledge the place of victory in the tradition is because it would force us—as it forced Augustine—to confront the tragic limitations of just war. Chapter 2 tackles the proposition that the desired end of a just war is peace, not victory, and that the latter, so far as it has the potential to impede the former, is a category to be avoided. The concern this raises, then, is not simply that peace and victory constitute distinct objectives for a just war. It is that they might also be mutually implicated yet incompatible aims. For a just war to advance the aim of peace it presumably must be consummated in victory. Yet, so far as victory glorifies the idea of prevailing over one’s enemies in combat, and encourages people to view war, not in terms of its relation to justice, order, and peace, but in a more reductive zero-sum logic, it appears more likely to confound rather than to advance that same aim of peace that the just war is intended to serve. Drawing on the writings of Cicero and Roman victory rituals, this chapter examines this possibility. It contends that the relation between victory and peace exposes what we might regard as the principal paradox of just war: the act of winning a just war is likely to undermine the peace that the just war is being fought to advance. Chapter 3 considers the view that, so far as victory is a strategic and not a normative concept, it is best ignored. The logic here is simple: because victory speaks to the kinetics of war rather than the ethics of war, we should refrain from en­gaging it. This chapter refutes this contention. Drawing on a range of historical sources, including Bernard of Clairvaux, Honore Bouvet, and Christine de Pizan, it reveals that the idea that victory is a purely strategic concept is actually out of step with how victory has generally been conceived down the centuries. From classical times through to the present day, victory has always been regarded as a concept that is, on some level at least, freighted with moral and even divine overtones. This history, it will be concluded, is not just interesting in its own right; it also exposes something very troubling about the idea of just war—namely, its propensity to seed a combination of complacency and self-righteousness in those who invoke it. Chapter  4 reflects on the view that victory has no place in just war theory because, despite what its name suggests, just war, properly understood, is not really a form of warfare, but is rather a mode of extra-territorial punishment. 67  Examples of this wrong assumption can be discerned in the premise put forward for why we need jus post bellum and jus ex bello domains of just war theorizing. It is, we are told, because just war theory has hitherto neglected to address the termination of war and its aftermath that we need these new frameworks. Victory is presumably encompassed within this claim. For example: Bass, ‘Jus Post Bellum’, p. 384; Moellendorf, ‘Ending Wars’. For a related argument: Eric Patterson, Just American Wars: Ethical Dilemmas in U.S. Military History (Abingdon: Routledge, 2019), pp. 162–6.

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The Very Object of ( Just ) War?  17 Adherents to this school of thought submit that just war is not so much a military contest between rival sovereigns, each vying to advance its own interests through armed combat, as an extension into the international sphere of the punitive function that the judiciary discharges in the domestic realm. This chapter explores this view as it has been, on the one hand, put forward by contemporary scholars like Oliver O’Donovan, Nigel Biggar, Jean Elshtain, and David Rodin, and, on the other, as it was formulated in the late Middle Ages and early modern period by Thomas Aquinas, Cardinal Cajetan, Francisco de Vitoria, and Francisco Suarez. It will conclude that the endurance of this school of thought discloses a delusional tendency at the heart of just war thinking to sanitize just war by disguising its brutish nature and re-casting as a rational and civilized mode of law enforcement where, in actual fact, it is a much grimmer affair. Chapter  5 focuses on the fact that the concept of victory carries negative connotations of conquest for just war theorists. These associations with conquest, which designates the subjugation and assumption of control over a people or place by military force, makes just war theorists deeply uncomfortable. Instead of contesting the claim that victory is connected to conquest, this chapter argues that the issue of conquest highlights a set of important questions bearing on the legal effects of victory that the idea of just war generates but which contemporary just war theorists tend to overlook. Does victory in a just war generate certain rights or entitlements for the victor, and, if so, on what basis? Is just war generative of what we might call a ‘right of conquest’? And does this right extend even to cases where the victor does not have justice on its side? Drawing on the seventeenth-century legal writings of Alberico Gentili and Hugo Grotius, this chapter contends that the answers just war thinkers have historically furnished to these questions reveal a degree of overlap with the doctrine of might is right that contemporary just war theorists have been conditioned to ignore and are likely to find disquieting. Chapter 6 considers what might be regarded as a more anodyne problem. It examines the view that, insofar as today’s wars are configured in such a way that they are basically unwinnable, it would be anachronistic to address them in the idiom of victory. The claim arising from this is that, because victory has little rele­vance to how contemporary armed conflicts end, just war theorists are correct to ignore it. This chapter assesses this contention. It confirms that, to the degree that victory is understood through the prism of so-called ‘decisive battles’, which is the standard way it has historically been conceived, its critics have a fair point. Very few wars in any age, not just the present one, have ever concluded with a clear-cut victory for one side and an emphatic defeat for the other. There is, then, a sound historical basis for declaiming victory as an obsolete concept. While this is true, it is not, however, the entire story. It overlooks the moral weight that this idealized vision of victory has historically carried in just war thought. Reflecting on this insight, which it substantiates by reference to the

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18 Victory writings of Emer de Vattel, this chapter concludes that what the examination of the relevance of victory to modern war reveals is the dated conception of war that underpins just war thinking. Chapter 7 addresses the worry that to speak about war in terms of victory is to court an escalatory logic that undercuts the spirit of moderation that the just war tradition champions. The pursuit of victory compels an uncompromising attitude toward the conduct of hostilities. It encourages an eyes-on-the-prize approach that inclines armies to set the rules aside and take the fight to their enemies with greater fury and less constraint. Playing to win, the argument goes, means playing hard. This chapter examines this concern. Turning it on its head, it contends that while the idiom of victory brings an escalatory logic with it, so too does the idea of just war. This is demonstrated by reference to the writings of two leading contemporary just war scholars: Michael Walzer and Jeff McMahan. The conclusion arising from this is not necessarily that we should back away from speaking about either victory or just war. It is, however, a reminder of both what is staked when we do engage them, and why they must always be approached with great caution. In addition, then, to offering an analysis of the problems that just war theorists perceive victory to pose, this book can also be engaged as a critical history of the just war tradition, from Cicero to McMahan, read through the lens of victory. It tells the story of the tradition as a tale of coming to terms (or not) with the hard questions that victory raises for the idea of just war.

Conclusion The argument arising from all of this is that, when it comes to just war thinking, victory appears as a glitch that has been built into the system: a glitch that cannot be fully figured out or fixed, but also a glitch without which the system would not operate. In light of this, it is possible to see that the reason just war theorists consider the problems posed by victory to be a cause for avoiding it—namely, that it reveals that ‘just war is just war’—should actually be taken as a cause for engaging it. It is precisely because victory forces us to confront the fact that just war is just war, with all that this implies, that we must think both more carefully and more deeply about it than we have so far been prepared to do. This should not be taken as a case for dismissing just war theory, however. Where the assertion that just war is just war is usually invoked to discredit the enterprise of just war theory, the argument I prefer to advance is that it should instead be taken as a reminder of why we need it in the first place. Viewed in this light, what is cast by Booth and others as a damning critique of just war theory is actually better understood as a restatement of its raison d’être. This in turn provides a platform for developing an account of just war that, highlighting its basis in tragedy, casts it as a function of loss.

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1

Beneath Every History, Another History It is the tyranny of hidden prejudices that makes us deaf to what speaks to us in tradition. Hans-Georg Gadamer1

Introduction Raising the issue of victory among contemporary just war scholars provokes ­consternation. The first reason for this is the stock belief that victory has never been a part of our brief. Even those scholars who have advocated for the extension of the just war framework to incorporate discrete jus post bellum and jus ex bello domains have assumed as their premise the claim that just war theorists have historically discounted victory as a primary object of analysis.2 Moved by Hilary Mantel’s ­pro­vocation that history is often more layered than we imagine, this chapter contests this claim.3 Courtesy of a detailed engagement with the writings of Saint Augustine, it will reveal that, far from being neglected, victory was a central concern in the formative texts of the just war tradition. Indeed, it will show how victory featured in Augustine’s writings as the foil that brought the tragic dimensions of his vision of just war to light. Why, then, have just war scholars wrongly assumed that our predecessors did not address the topic of victory? What explains our selective memory in this regard? I will suggest in this chapter that the reason we have been so reluctant to acknowledge the place of victory in the tradition is because it would force us—as it forced Augustine—to confront the tragic limitations of just war.

Two Cities Created by Two Loves The focus of this chapter will be upon what Augustine had to say about just war, victory, and the relation between them. However, a few words to introduce 1 Hans-Georg Gadamer, Truth and Method, trans. by Joel Weinsheimer and D.  G.  Marshall (London: Continuum, 2004), p. 272. 2  For example, Gary Bass, ‘Jus Post Bellum’, Philosophy & Public Affairs 32:4 (2004), p. 384. 3  Hilary Mantel, Wolf Hall (London: Fourth Estate, 2009), p. 66. The title of this chapter is an allusion to Mantel’s observation.

Victory: The Triumph and Tragedy of Just War. Cian O’Driscoll, Oxford University Press (2020). © Cian O’Driscoll. DOI: 10.1093/oso/9780198832911.001.0001

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20 Victory Augustine and the main tenets of his political theology are necessary before we go any further. Augustine was born in 354 ce in Thagaste, which is now Souk Ahras in Algeria, but was then a provincial town on the edge of the Roman Empire. His mother, Monica, was a devout Christian; his father, Patricius, a local official. A gifted student, Augustine excelled at school and graduated as a teacher of rhet­ oric. He had a wayward streak, however, and pained his mother by seeking spiritual guidance outside the Church. Augustine grappled throughout his life with the problem of evil in the world, searching for answers in what he would later characterize as all the wrong places. These aspects of Augustine’s life are familiar thanks to his autobiographical work, the Confessions.4 This book—among the first of its kind—traces Augustine’s spiritual journey from his early dalliances with Manichean thought to his dramatic conversion to Christianity circa 386 ce. Along the way, it records his intellectual debts to Cicero, whom we will meet again in Chapter 2, as well as the martyr Saint Paul, and the influential Bishop of Milan, Ambrose, under whose sway he fell when he was still a young man. It also describes how Ambrose’s teachings, combined with Monica’s persistent encouragement, eventually created the conditions for Augustine’s return to the Catholic faith and his ordination in 388 ce. His rise to prominence was swift and he was elected Bishop of Hippo in 395 ce. This was an important role and it placed him at the centre of several controversies, and even violent quarrels. He would serve in this position until his death in 430 ce.5 Isidore of Seville once quipped that Augustine wrote so many texts that anyone who claims to have read them all must be a liar.6 Augustine was indeed a prolific writer, authoring at least 113 works on a range of topics. This is in addition to the 300 letters he is estimated to have written, and the approximately 8,000 sermons he delivered. A number of these interventions were very influential, especially in respect of defining the Church’s response to other faiths and divisions within its own ranks. It is, however, his musings on just war that are of most interest here. While it would be an exaggeration to call Augustine the sole progenitor of the just war tradition, there is no doubting his importance as the keynote early Christian thinker and principal bridge between classical and medieval just war thought.7 4  Saint Augustine, Confessions, trans. by Henry Chadwick (Oxford: Oxford University Press, 1998). 5 On the life and times of Augustine: Gerald Bonner, St. Augustine of Hippo: His Life and Controversies (Norwich: Canterbury Press, 1986); Peter Brown, Augustine of Hippo: A Biography (Berkeley: University of California Press, 2000); Jean Bethke Elshtain, Augustine and the Limits of Politics (Indiana: University of Notre Dame Press, 1995). Also: Jean Bethke Elshtain, ‘Augustine’, in David Boucher and Paul Kelly (eds.), Political Thinkers: From Socrates to the Present (Oxford: Oxford University Press, 2003): 95–107. 6 R. W. Dyson, Normative Theories of Society and Government in Five Medieval Thinkers (Lampeter: Edwin Mellen Press, 2003), p. 3. 7  The relevant literature reveals, if not a lively debate, at least a healthy mix of views regarding the nature of Augustine’s contribution to the just war tradition. There are some who see him as the ‘fons et origo’ of the tradition. See: Jonathan Barnes, ‘The Just War’, in Norman Kretzmann, Anthony Kenny, and Jan Pinborg (eds.), The Cambridge History of Later Medieval Philosophy (Cambridge: Cambridge

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Beneath Every History, Another History  21 The problem arises, however, that whatever Augustine had to say on this topic was incidental to his primary purpose, which was to develop a Christian account of the human condition—an account that, in Peter Brown’s words, married a ‘preoccupation with the inner life’ with an emphasis on ‘otherworldliness’.8 Augustine believed that, as God’s children, all human beings have value. Their merit rests not in their capacity to perform courageous deeds or achieve excellence in some or other sphere of life, but in the virtue of their eternal souls, which bear the imprint of God’s saving grace. For so long as people are alive on this earth, however, their souls must be considered alienated from God, trapped as it were in their mortal bodies. During this time people will be tempted to distract themselves from their wretched condition by indulging themselves in earthly pleasures. This might involve activities that are usually considered wholesome, such as spending time with family and friends, as well as some, like fornication and gambling, that have historically been deemed base. Augustine rejected this distinction. He argued that both sets of pleasures, the wholesome as well as the base, should properly be regarded as vices. This is because they lead people away from what really matters, which is the love of God that is planted in the breast of every person. The more people indulge them, he argued, the more people are prone to forget that the true source of value in this world lies not in the satisfaction of earthly desires, but in devotion to the Lord. People, it followed, will only ever be at one with themselves when they orient their lives in respect of this, which means disregarding temporal goods as so many temptations to sin, and

University Press, 1982), p. 771. Also: John Mark Mattox, Saint Augustine and the Theory of Just War (London: Continuum, 2006), p. 14; William V. O’Brien, The Conduct of Just and Limited War (New York: Praeger, 1981), p. 4; Jean Bethke Elshtain, Just War Against Terror: The Burden of Order in a Violent World (New York: Basic Books, 2004), pp. 49–50; Innes Claude Jr., ‘Just War: Doctrines and Institutions’, Political Science Quarterly 95:1 (1987), p. 87; and William  R.  Stevenson, Christian Love and Just War: Moral Paradox and Political Life in Saint Augustine and his Modern Interpreters (Macon: Mercer University Press, 1987), p. 2. There are, however, others who argue that Augustine did not invent the idea of just war ex nihilo, but instead developed it from materials inherited from classical antiquity. See: James Turner Johnson, Just War Tradition and the Restraint of War (Princeton: Princeton University Press, 1981), p. xxiv; Alex J. Bellamy, Just Wars: From Cicero to Iraq (Cambridge: Polity, 2006), p. 29; Gregory M. Reichberg, Henrik Syse, and Endre Begby, ‘Augustine: Just War in the Service of Peace’, in The Ethics of War: Classic and Contemporary Readings (Oxford: Blackwell, 2006), p. 70; and Cian O’Driscoll, ‘Rewriting the Just War Tradition: Just War in Classical Greek Thought and Practice’, International Studies Quarterly 59:1 (2015), p. 1. 8  Peter Brown, The World of Late Antiquity ad 150–750 (London: Thames & Hudson, 1971), pp. 45; 52. Finally, James Turner Johnson has recently argued that, viewed in their own right, Augustine’s writings were not as formative for the development of the just war tradition as one might assume. Rather, Augustine’s influence upon the subsequent development of the just war tradition derives from the manner in which a restricted selection of his writings were interpreted and transmitted by medi­ eval interlocutors to subsequent generations. James Turner Johnson, ‘Saint Augustine’, in Daniel R. Brunstetter and Cian O’Driscoll (eds.), Just War Thinkers: From Cicero to the 21st Century (London: Routledge, 2017): 21–33. I take this argument seriously but nevertheless focus this chapter on Augustine’s writings rather than their later reception.

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22 Victory devoting themselves in an ascetic, self-giving way to living in joyful hope of the day when their souls will pass from this world and join God in the next one. The central ordering device in Augustine’s mature political theology was the proposition that humanity was delineated into two camps, the ‘city of God’ and the ‘city of man’.9 He elaborated this idea in his masterwork, The City of God against the Pagans.10 The two cities were not material entities that existed in determinate form in human history. Instead, they stood for the primary communities of belief that were immanent within humanity. What distinguished one city from the other was the direction of the unifying ‘love’ its members shared. Augustine elaborated this idea in Book XIV of the City of God: ‘Two cities, then, have been created by two loves: that is, the earthly by love of self, extending even to contempt of God, and the heavenly by love of God extending to contempt of self.’11 ‘The one’, he explained, ‘glories in itself, the other in the Lord; the one seeks glory from men, the other finds its highest glory in God, the Witness of our conscience. The one lifts up its head in its own glory; the other says to God “Thou art my glory, and lifter of mine head” .’12 The members of the city of God included all those, living and dead, who directed their loves to God. Despite being separated by whatever distance divides heaven from earth, the souls of the elect combine to form one unified society of grace. Within this totality, that contingent yet to ascend to heaven comprised a ‘small and temporarily stranded part of its total membership’.13 Emphasizing the idea that their time on earth was merely a temporary affair, a prelude to the enjoyment of eternal life with God in heaven, Augustine labelled them pilgrims.14 Upon their mortal demise, God would lift them up to join the rest of the angels and saints in ‘the Eternal City’, where they would enjoy perfect concord and life everlasting.15 The members of the city of man were less fortunate. Because this city comprised men who, by dint of the fact that they loved earthly goods ahead of God, were sinful, its members would not be resurrected when their lives on earth came to a close.16 ‘Estranged from God’, they had no hope of accession to the heavenly city.17 Meanwhile, because they were animated by sin rather than a properly ordered love, they would never know true peace or justice, and their time on earth would be plagued by struggle and disorder. The members of both cities lived among and alongside one another for such time as they were on this earth. Following R. A. Markus, Augustinian scholars 9  On viewing the two cities as ‘camps’: Frederick Coplestone, A History of Philosophy: Volume II (New York: Doubleday Books, 1946), p. 100. 10 Augustine, The City of God Against the Pagans, ed. and trans. by R.  W.  Dyson (Cambridge: Cambridge University Press, 1998). 11 Augustine, City of God, p. 632 [XIV.28]. 12 Ibid. 13 Dyson, Normative Theories of Society and Government, p. 19. 14 Augustine, City of God, p. 216 [V.16]. 15  Ibid., p. 216 [V.16]. 16  Ibid., pp. 638–9 [XV.4] 17  Ibid., p. 961 [XIX.26].

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Beneath Every History, Another History  23 tend to refer to the resultant mixed zone as the saeculum. ‘The saeculum for Augustine was the sphere of temporal realities in which the two “cities” share an interest’, Markus explains. It is ‘the whole stretch of time in which the two cities are “inextricably intertwined”; it is the sphere of human living, history, society, and its institutions, characterised by the fact that in it the ultimate eschatological oppositions, though present, are not discernible.’18 Though the saeculum was not entirely depraved, nor was it a happy place to be, especially for those members of the city of God who were exposed to the predations of their more sinful neighbours. Akin to a rough part of town, it was a fraught environment for any faithful pilgrims passing through it. Yet if life was gruelling in the saeculum, Augustine believed that this was all part of God’s plan. He cast the elect into this ante-chamber for a reason: to test and steel them. Pilgrims were exhorted either to prove themselves worthy of God’s grace or to be dragged down to the level of the sinners around them.19 The trials of the saeculum were not pointless, then. They provided the opportunity for pilgrims to display their worthiness of salvation.20 Augustine’s views appear quite strange today. They become more intelligible, however, when one considers that he lived at a time when Christians were still grappling with how to situate themselves in the world. Waiting in hope for the Second Coming of their Lord, which they believed would happen imminently, they expressed uncertainty about the merits of engaging with the political affairs of the saeculum. Should they get involved, and risk dirtying their hands, or should they stand back, and chance allowing the wicked to rule unchecked? If, as we have seen, Augustine’s answer to this question was that Christians should approach life on this earth as a trial to be endured en route to the heavenly kingdom, this was not a counsel of passivity or withdrawal. Instead, it was a command to train one’s heart toward God in hope of the resurrection to come, even while respecting and serving one’s earthly community in the saeculum. In light of these considerations, Christians were obliged, where necessary, to take up their position on the bench as judges, act as jailers and executioners, collect taxes, and—crucially for our purposes—contribute to the state’s defence and serve in its wars. It was as an extension of this latter duty that Augustine expounded his conception of just war.

18 R.  A.  Markus, Saeculum: History and Society in the Theology of Augustine (Cambridge: Cambridge University Press, 1970), p. 133. 19  ‘However, the threshing-floor bears a single threshing-sledge to remove the stubble and purge the grain. Again, the furnace of a goldsmith accepts only one fire for the dross to be reduced to ash, and the gold to be freed from impurities. Similarly, Rome too has endured a single time of trial. The pious have been chastened by this, but the impious condemned.’ Augustine, ‘Sermon: The Sacking of the City of Rome [c.410/11]’, in Political Writings, ed. by E. M. Atkins and R. J. Dodaro (Cambridge: Cambridge University Press, 2001), p. 213 [IX]. 20 Stevenson, Christian Love and Just War, pp. 28–30.

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24 Victory

The Necessity of Waging Just Wars Augustine’s forebears, the Early Christian Fathers, were generally agreed that Christians should refrain from contributing militarily to the wars waged by the Roman Empire.21 The problem with this approach was its flagrant hypocrisy. What were Romans of pagan stock to think when they observed Christians benefiting from the security that the Empire afforded them while doing nothing to support it? Augustine, who had experienced first-hand the anger vented at Christians by Rome’s pagan population in the aftermath of the sacking of the city in 410 ce by Alaric’s Goths, was moved by these concerns.22 Resigned to the fact that the Second Coming was not likely to happen any time soon, he believed that Christians had to find a new set of arrangements for being in the world. In particular, they could not continue to exempt themselves from contributing to the defence of the communities in which they lived. It was against this backdrop, then, that he mounted a theological case for why Christians should serve in just wars waged by Rome. What this amounted to in practice was a set of arguments, contra many of the Early Christian Fathers, for why and how Christians could contribute to Rome’s just wars by serving in them.23 If the challenge confronting Augustine was a novel one, his response to it borrowed from elements of Roman political thought, most notably the writings of Marcus Tullius Cicero—writings we will return to in Chapter 2.24 The definition of just war Augustine furnished in Questions on the Heptateuch followed that expounded by Cicero almost to the letter: ‘As a rule just wars are defined as those

21  Their scepticism was based on either outright hostility toward Rome, or, more typically, a preference that Christians should remain aloof from affairs of state. Jean-Michel Hornus, It is Not Lawful for Me to Fight: Christian Attitudes Toward War, Violence, and the State, trans. Alan Kreider and Oliver Coburn (Eugene: WIPF & Stock, 1980), pp. 25–32. Also see: Louis J. Swift, The Early Fathers on War and Military Service (Wilmington: Michael Glazier, 1983); Louis  J.  Swift, ‘Early Christian Views on Violence, War, and Peace’, in Kurt Raaflaub (ed.), War and Peace in the Ancient World (Oxford: Blackwell, 2007): 279–96; C. John Cadoux, The Early Christian Attitude to War: A Contribution to the History of Christian Ethics (London: Headley Brothers, 1919); John Helgeland, Robert  J.  Daly, and J. Patout Burns, Christians and the Military: The Early Experience, ed. by Robert J. Daly (Philadelphia: Fortress, 1985); and James Turner Johnson, The Quest for Peace: Three Moral Traditions in Western Cultural History (Princeton: Princeton University Press, 1987), pp. 23–32. 22  Augustine complained in the City of God of the pagan proclivity to blame Christians for all their woes: ‘No rain: blame the Christians!’ Augustine, City of God, p. 53 [II.3]. 23  This set of arguments was not coherent or especially developed. Augustine’s remarks on just war were scattered across various texts and often loosely formed. Henrik Syse, ‘Augustine and Just War: Between Virtue and Duties’, in Henrik Syse and Gregory M. Reichberg (eds.), Ethics, Nationalism, and Just War: Medieval and Contemporary Perspectives (Washington DC: Catholic University of America Press, 2007), p. 37. 24  Cicero’s definition of just war appears in Book III [35] of The Republic: ‘Wars are unjust when they are undertaken without proper cause. No just war can be waged except for the sake of punishing or repelling an enemy . . . no war is deemed to have been just if it has not been properly declared and proclaimed.’ I treat it in the next chapter. Augustine’s relation to Cicero was mediated (or at least abetted) by Saint Ambrose. For more on this: Joan D. Tooke, The Just War in Aquinas and Grotius (London: SPCK, 1965), p. 10.

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Beneath Every History, Another History  25 which avenge injuries, if some nation or state against whom one is waging war has neglected to punish a wrong committed by its citizens, or to return something that was wrongfully taken.’25 Any continuity that existed between Cicero and Augustine was, however, more formal than substantive. Augustine may have adopted Cicero’s definition of just war, but he infused it with new meaning by connecting it to Christian rather than Roman premises. Where Cicero had attached just war to preserving the Pax Romana, Augustine viewed it as a means of curbing the effects of sinful behaviour in the saeculum and thereby ensuring enough order to protect those pilgrims passing through on their way to the heavenly kingdom. To Cicero’s definition of just war, then, Augustine added a theological dimension that shifted its locus from temporal ideas of justice to the Christian economy of redemption. What was so morally problematic about war? Augustine had two principal misgivings. His first concern, which we will see was not strongly held, pertained to the hardships that war inflicted on people.26 War killed and maimed men, women, and children, tore towns and villages apart, and destroyed agricultural lands— frequently to little purpose. Augustine developed this theme in a sequence of chapters in Book III of the City of God that catalogued the grief arising from Rome’s historic victories over the Sabines and Carthaginians, among others. In the case of the war against the Sabines, Augustine argued that the Romans may have conquered their neighbours, but this victory was rendered ‘shameful and deplorable’ by the fact that it was ‘purchased only with great injuries to kinsfolk and neighbours alike, and many burials’.27 It was, however, the wars against the Carthaginians that truly proved beyond any doubt the ghastliness of war: ‘During these wars, how many smaller kingdoms were crushed, how many broad and noble towns destroyed, how many cities afflicted and lost! How many regions and lands far and wide were laid waste!’28 The atrocities suffered by both peoples were so extensive, he concluded, that it would be too great a task to recount them all. ‘These calamities’, he remarked in a manner that anticipates Erasmus’s critique of war, ‘were so great that the victor was more like the vanquished.’29 On this count, war may provide ‘amusement for the demons’ but it is utterly ‘lamentable to men’.30 As already indicated, Augustine did not ultimately attach much weight to this concern. While he was dismayed to hear of people losing their lives and 25  Augustine, ‘Questions on the Heptateuch [VI.10]’, in Gregory M. Reichberg, Henrik Syse, and Endre Begby (eds.), The Ethics of War: Classic and Contemporary Readings (Oxford: Blackwell, 2006), p. 82. 26  Richard Shelley Hartigan, ‘Saint Augustine on War and Killing: The Problem of the Innocent’, Journal of the History of Ideas 27:2 (1966), p. 201. 27 Augustine, City of God, pp. 107–9 [III.13]. 28 Augustine, City of God, p. 123 [III.18]. 29 Augustine, City of God, p. 125 [III.19]. Erasmus: ‘Very often the victor laments a victory bought too dearly.’ Erasmus, The Education of a Christian Prince, ed. by Lisa Jardine (Cambridge: Cambridge University Press, 1997), p. 107 [XI]. Erasmus will be discussed at more length in Chapter 7. 30 Augustine, City of God, p. 124 [III.18].

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26 Victory livelihoods, he was also aware that these goods would have perished sooner or later anyway. There was, it followed, little sense in mourning the passage of something that was always already in a process of passing, and even less sense in identifying that as the root of what is wrong with warfare. As Augustine put it, ‘What is it about war that is to be blamed? Is it that those who will die someday are killed so that those who will conquer might dominate in peace? This is the complaint of the timid, not of the religious.’31 Indeed, it would be a sin in its own right to invest so much love in transient earthly goods that one perceived their loss as an evil. This leads us to Augustine’s second, more substantive reason for regarding war as morally problematic. This is that war is often a spur to sinful behaviour among men. Augustine fretted that war awoke the proud, vicious, wrathful side of man’s nature, the part of him that turned away from, rather than to, God’s love. In particular, he worried that it would encourage a spiteful desire to dominate their enemies in the soldiers who waged it, or plant a cruel rage in their breasts. The image of a vengeful Achilles racing into battle with nothing in his heart but a furious desire to slay anyone who stepped up against him was, perhaps, the kind of case he had in mind.32 Augustine put it emphatically: ‘The desire for harming, the cruelty of revenge, the restless and implacable mind, the savageness of revolting, the lust for dominating, and similar things—these are what are justly blamed in wars.’ War for Augustine was, it follows, a source of evil in human life, but only to the degree that it lured those who waged it into vice.33 If Augustine was so painfully aware of the moral problems posed by war, why, then, did he argue that Christians should muster to Rome’s military banners? His primary contention was that the peace furnished by Rome was of sufficient value that Christians should rally to its defence. Augustine was, of course, under no illusions about the nature of that peace. It was provisional, imperfect, blighted, and freighted with injustice.34 As such, it was a far cry from the perfect peace that reigns in the city of God.35 Yet, Augustine argued, it was still worth striving for. While the peace furnished by Rome consolidated rather than transcended certain institutionalized forms of domination and injustice, it nevertheless provided the 31  Augustine, ‘Against Faustus the Manichean [XXII.74]’, in Gregory  M.  Reichberg, Henrik Syse, and Endre Begby (eds.), The Ethics of War: Classic and Contemporary Readings (Oxford: Blackwell, 2006), p. 73. 32  It is also possible to think of more contemporary examples. A war memoir written by a former member of the British army who served in Afghanistan casts light on this fear. The author recounts an occasion when his unit had to decide what to do with the body of a Taliban fighter who had accidentally blown himself up while planting a bomb. ‘As we debate whether to return his body to a mosque before sundown, like the soft, moral, Geneva-bound men we are, the Taliban prepare to ambush us at the mosque. Luckily, we don’t have the manpower. The family can collect him later. Then we find out about the ambush. Rage. Fuck them, the dirty despicable bastards. Is nothing sacred? Ambush your enemy as he returns your dead? Honour? You bastards. YOU FUCKING BASTARDS. I WILL KILL EVERY LAST ONE OF YOU.’ Patrick Bury, Callsign Hades (London: Simon & Schuster, 2010), pp. 218–19. Emphasis in original. 33  Augustine, ‘Against Faustus the Manichean’, p. 73. 34 Augustine, City of God, pp. 638–9 [XV.4]; also p. 934 [XIX.12]. 35  Ibid., p. 932 [XIX.10].

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Beneath Every History, Another History  27 modicum of order that enabled the pilgrims passing through the saeculum on their way to the heavenly kingdom to lead good lives.36 In Augustine’s own words: ‘For peace is so great a good that even in the sphere of earthly and mortal affairs, we hear no word more thankfully, and nothing is desired with greater longing: in short it is not possible to find anything better.’37 This peace, then, was worth preserving.38 The Christian, it followed, should be prepared to hold his nose and fight a just war for Rome where the peace it provided was jeopardized by an act of wrong­ doing on the part of an adversary. Augustine was careful to emphasize, however, that this was not a carte blanche for people to resort to un-constricted violence. Rather, certain restraints applied. For a war to be a just war, it had to be waged in response to, and to counter, some specific prior wrong. ‘It is’, he wrote, ‘the ini­ quity of the opposing side that imposes upon the wise man the duty of waging wars.’39 On this view, a just war was a remedial action or via negativa, a necessary but also limited response to a particular act of wrongdoing, and not a general invitation to use force, even for benign purposes. It was, in other words, a ‘vindicative’ act intended to preserve the order by checking any instances where it has been wrongfully threatened.40 Thus defined, a just war was, to borrow a recent formulation, a war of necessity, not choice.41 The wise man did not wage it as a matter of preference. Rather, he waged it because the same forces that drew a judge to service at the bench were operative: a sense of social obligation put him under compunction to do so.42 He was compelled by conscience to carry out the necessary task of preserving the peace that Rome provided. In Augustine’s words: ‘Personally, [the judge] would have liked to avoid bloodshed when sentencing; but maybe he did not want public order to collapse. He was obliged to act in this way by his office, by his authority, by the demands of his situation.’43 Moreover, he assumed this responsibility in full knowledge that it was not an easy road to walk: it would come, not with 36  The earthly peace, Augustine argues in Book XIX [13] of the City of God, facilitates the enjoyment of certain goods appropriate both to this life and for the spiritual preparation required for the next one. Ibid., p. 940. In this regard, it was in perfect accord with God’s propensity for using man’s propensity to sin as the remedy to its own ills. ‘A people estranged from God, therefore, must be wretched . . . For the time being, however, it is advantageous to us also that this people should have such peace in this life; for, while the two cities are intermingled, we also make use of the peace of Babylon.’ Ibid., pp. 961–2 [XIX.26]. 37  Ibid., pp. 932–3 [XIX.11]. 38  ‘Peace ought to be what you want, war only what necessity demands. Then God may free you from necessity and preserve you in peace.’ Augustine, ‘Letter 189: To Boniface [417]’, in Political Writings, ed. by E. M. Atkins and R. J. Dodaro (Cambridge: Cambridge University Press, 2001), p. 217 [VI]. 39 Augustine, City of God, p. 929 [XIX.7]. 40  The term ‘vindicative’ was popularized in just war thought by: Alfred Vanderpol, La Doctrine Scholastique du Droit de Guerre (Paris: A. Pedone, 1919). 41 Richard N. Haass, War of Necessity, War of Choice (New York: Simon & Schuster, 2009). 42 Augustine, City of God, p. 927 [XIX.6]. 43  Augustine, ‘Sermon 302: On the Feast of Saint Laurence’, in Political Writings, ed. by E. M. Atkins and R. J. Dodaro (Cambridge: Cambridge University Press, 2001), p. 116 [XVI].

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28 Victory personal glory, but with hard calls, dirty hands, and tragic outcomes.44 And just as the judge must be aware that, because he is fallible and does not have perfect knowledge, he might, despite his best intentions, wrongly condemn an innocent person, the wise man must be mindful that his sincere belief that his war is just might be revealed in the fullness of time to be mistaken.45 Both men, Augustine argued, must accept this possibility but not be deterred by it. This was a miserable task, but also, Augustine supposed, an essential one. It was, sharply put, a ‘necessary evil’.46 This is not all, though. If the waging of just war was a miserable but essential task, it was also a providential one. The Christian who served in Rome’s just wars did not merely fight Rome’s battles, he also did God’s work. By chastising the sinful and setting a good example for the pious, he provided a vessel through which God might test men and determine who would be saved and who would be damned on the Final Day. Those with and against whom the soldier waging the just war fought would be challenged by the force of his example to decline the temptation to sin and instead devote themselves to living in accord with God’s will.47 The practice of just war could thus be considered ‘an instrument of the Divine discipline by which mankind is punished and tested’.48 If this covered ‘why’ and for what purposes Christians should wage just wars, one crucial question remained: How they could do so without lapsing into sin? Augustine proposed that two closely related requirements must be met if one was to fight in a just war without sinning. The first was that the soldier waging a just war must fight in a spirit of obedience to an ordained authority, and not of his own volition or for personal animus.49 The second was that the soldier must conduct himself so that he acts only with benevolent intentions toward everyone he encounters, including his enemies.50 In other words, the soldier must always act with love in his heart, even for his foes. If both of these requirements were fulfilled, a soldier could be characterized as ‘an agent of the law’, and his acts of killing could be justified as a muscular expression of Christian charity rather than lamented as a sinful surrender to the libido dominandi.51 In a nutshell, then, whether a soldier incurred sin in the course of waging a just war was a function not so much of their material actions or even the consequences of those actions, but of the authority and intentions that guided them.

44 Markus, Saeculum, p. 100. 45 Augustine, City of God, p. 928 [XIX.6]. 46 Augustine, City of God, p. 161 [IV.15]. 47 Augustine, City of God, pp. 43–4 [I.29]. 48 R.  W.  Dyson, Natural Law and Political Realism in the History of Political Thought, Volume I: From the Sophists to Machiavelli (New York: Peter Lang, 2005), p. 184. 49  ‘The divine authority itself has made exceptions to the rule that it is not lawful to kill men . . . he who is commanded to perform this ministry does not himself slay. Rather, he is like a sword which is the instrument of its user.’ Augustine, City of God, pp. 33–4 [I.21]. 50  Augustine, ‘Letter 138: To Marcellinus [c. 411]’, in Political Writings, ed. by E.  M.  Atkins and R. J. Dodaro (Cambridge: Cambridge University Press, 2001), p. 38 [XIV]. 51 Augustine, On the Free Choice of the Will, trans. by Thomas Williams (Indianapolis: Hackett, 1993), pp. 6–10 [I.4–5].

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Beneath Every History, Another History  29

The Pride of Winning What, then, did Augustine have to say about victory? And how did it bear on his views on just war? It will surprise some people to learn that, in actual fact, Augustine had quite a lot to say about victory. The word victoria appears roughly 400 times in his surviving texts.52 The frequency with which he invoked it is indicative of its importance within his thinking. One of the major themes Augustine sought to develop in his writings was the moral inadequacy of the Roman view of victory. The Romans, as we will see in more detail in later chapters, viewed victory in war as both proof of divine favour and evidence of the justness of the Roman Empire and the Pax Romana it preserved. Victory, on this view, was proffered by the Romans as a testament to the greatness of their im­per­ ial city and a legitimation of its title to rule the whole of the known world. Augustine refuted this view of victory on the grounds that it could not bear the weight placed upon it. In its place he elaborated a much more tempered, even mordant, account of victory, one which, by amplifying its limitations, cast his vision of just war in a tragic light.

One Barren Evil after Another The place to start is Augustine’s efforts to diminish the esteem that people attached to victory. In fact, Augustine devoted the entirety of Book III of the City of God to systematically debunking the mythology of Rome’s great victories. Victory in war, he argued there, was neither as glorious nor as important as the Romans who came before him wished to believe. In Augustine’s hands, this argument took the form of a dismissal of the idea that it is of paramount importance to win just wars. Whether a just war ended in victory or defeat was, he argued, of little importance. It did not matter in the long run who won this or that battle, or how many enemies a king subdued, because such victories were mere distractions from what was truly important: namely, acting in accordance with love for God.53 Any goods that could be won (or lost) in such a war were necessarily fleeting, and therefore of limited value.54 They were, in Augustine’s words, ‘as smoke which has no weight’.55 Consequently, when men like Cicero praised Rome’s latest military success, they were missing the larger picture. As Augustine put it, the victories in 52  Phillip Wynn, Augustine on War and Military Service (Minneapolis: Fortress, 2013), p. 265. 53  ‘For we do not say that certain Christian emperors were happy because they ruled for a long time, or because they died in peace and left behind sons to rule as emperors, or because they subdued the enemies of the commonwealth . . . For even certain worshippers of demons, who do not belong to the Kingdom of God to which these emperors belong, have deserved to receive these and other gifts and consolations of this wretched life.’ Augustine, City of God, pp. 231–2 [V.24]; also p. 217 [V.17]. 54  Ibid., pp. 16–20 [I.10–11]. 55 Augustine, City of God, p. 218 [V.17].

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30 Victory which they exulted ‘were not the solid joys of the fortunate, but the vain comforts of miserable men’.56 Augustine cited several historical cases in support of this declamation, with Rome’s victory over the Albans chief among them. Commentators had long presented this victory as a glorious triumph for Rome. Yet the victory itself was, according to Augustine, a tawdry affair. It was not, he submitted, worth the blood spilt to secure it. ‘How frequently were massacres suffered by the Roman and Alban armies alike, and how great was the impoverishment of both cities!’57 Both sides, he added, suffered such harm that the very idea of there even being a winner in a war such as that seemed nonsensical. This was exacerbated by the fact that the two cities were sufficiently interdependent—Rome was originally a colony of Alba—that any harm done to one rebounded upon the other. How terrible, then, Augustine concluded, that Rome would later rejoice that ‘she had waged war against her mother city with such great slaughter, and had conquered by the effusion of so much kindred blood on both sides.’58 ‘Away’, he pleaded, with such ‘concealments and deceitful whitewashings’.59 When one pierced through the verbiage that accompanied them, one discovered that military victories such as that won by Rome over Alba were rarely worth the blood and treasure that were spent to secure them.60 Wars that publicists hailed as ending in great victories usually achieved little and ended in nothing other than ‘great slaughters’.61 Victories of the kind that the Romans celebrated were, for Augustine, not only costly, they were also wrapped up in vice and sinfulness. His debt to Sallust and the stoic teachings of Seneca is evident in this regard. Victories, Augustine contended, were both the cause and the effect of an inordinate desire for glory and domination, which was exactly what he identified as evil about war. The desire to prevail in battle was, Augustine imagined, fuelled by a hunger for glory, which, when fed, only grew more pronounced.62 Military victories in this sense were ‘no more than beguiling temptations to seek one barren evil after another’.63 They drove leaders to disturb the peace by seeking war after war, using victory in one as 56  Ibid., p. 118 [III.17]. 57  Ibid., p. 109 [III.14]. 58  Ibid., p. 110 [III.14]. Sulla’s victory over Marius in the Civil War presented a similar story. Each side inflicted such damage on the other that it was impossible to discern where the line between victory and defeat lay. When victory was wrested emphatically to Sulla’s side, the violence escalated. In the end ‘it was difficult to tell whether the victors had slain more men before the victory, in order to become victors, or after it, because they were victors.’ And this, Augustine noted, ‘when peace, not war, was raging!’ Ibid., pp. 135–8 [III.27–8]. 59  Ibid., p. 111 [III.14]. Further: ‘Why do our adversaries plead the words “praise” and “victory” to me? Take off the cloak of vain opinion and let such evil deeds be examined naked.’ Ibid. 60 Ibid. 61  Ibid., p. 112 [III.14]. 62  In this same spirit, Alberico Gentilii would later refer to victory being ‘insatiable’ while Prime Minister Churchill spoke of the ‘victory disease’. This will be discussed in Chapter 7. 63 Augustine, City of God, p. 118 [III.17]. Augustine expressed similar concerns but in a much more intimate context in his Confessions. There he lamented that as a young man he himself had been susceptible to an inordinate and ‘vain desire to win’. ‘I loved the pride of winning,’ he confessed. Augustine, Confessions, pp. 12 [I.X16]; 22 [I.XIX.30].

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Beneath Every History, Another History  31 a springboard to the next in a perpetual cycle of violence. The fate of Sulla, one of Rome’s most successful generals and the man who dragged her into a brutal civil war, was a case in point. Sulla had won one crushing victory after another over his foes, but, far from establishing his greatness, this experience locked him into a vicious spiral. Sulla, Augustine wrote, was overcome by the lust for glory and domination that his own victories, and in particular his emphatic defeat of Marius in the Roman Civil War, unleashed in him. ‘That victory brought him more greed than gain through honour. Through it he became immoderate in his desires . . . that his own moral ruin was greater than any bodily loss suffered by his enemies.’64

What Else is Victory but Subjugation? Augustine’s critique of victory extended to the quality of peace that it could yield. Victory is often posited as a means of bringing about or producing peace.65 Augustine was sceptical about this association. Speaking about life in the saeculum, he rejected the view that victory can ever be a means of achieving peace in the full sense of the term. So far as it can deliver any kind of peace at all—and even that much is uncertain—the peace it delivers will necessarily be imperfect. It will reflect the base interests and desires of those who won it. It is clear that peace is the desired end of war. For every man seeks peace, even in making war; but no one seeks war by making peace. Indeed, even those who wish to disrupt an existing state of peace do so not because they hate peace, but because they desire the present peace to be exchanged for one of their own choosing. Their desire, therefore, is not that there should be no peace, but that it should be the kind of peace that they wish for.66

The crux of Augustine’s message is clear: The only kind of peace that can arise from a victory is a victor’s peace—that is, a peace that reproduces the victor’s power over the vanquished. Moreover, Augustine believed that this applies to all victories in the saeculum, even those won in just wars. Those who wage just wars may be sincere in their desire for peace. Yet, insofar as winning a just war involves the subjugation of the enemy, any peace it produces will necessarily be based on

64 Augustine, City of God, p. 86 [II.24]. 65  The clearest expression of this arose in the course of the American Civil War when the Reverend Joseph P. Thompson delivered his sermon in the Broadway Tabernacle Church on 11 September 1864. It was published in both the Richmond Examiner and the New York Times under the title ‘Peace Through Victory: A Thanksgiving Sermon’. It is available at: www.nytimes.com/1864/09/19/archives/ peace-through-victory-a-thanksgiving-sermon-preached-in-the.html. Accessed: 1 July 2018. This will be discussed at greater length in the next chapter. 66 Augustine, City of God, p. 934 [XIX.12].

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32 Victory domination.67 For Augustine then, the kind of peace that follows from victory in a just war is so compromised as to be barely recognizable as peace at all. Yet Augustine also accepted that, imperfect though it may be, the kind of peace produced by the victories achieved in just wars is still better in many cases than the alternative, which is no peace at all. This peace, then, has what Augustine presented as a residual, negative value. Augustine explained this in Book XV [4] of the City of God: But it is not rightly said that the goods which this [earthly] city desires are not goods; for, in its own human fashion, even that city is better when it possesses them than when it does not. Thus, it desires earthly peace, albeit only for the sake of the lowest kind of goods; and it is that peace which it desires to achieve by waging war. For, if it conquers, and there is no one left to resist it, there will be peace, which the opposing parties did not have while they strove in their unhappy poverty for the things which they could not possess at once. It is for the sake of this peace that wearisome wars are fought.68

This is not a message to infuse the troops with martial zeal. It does not promise soldiers that victory will deliver world peace. Rather, it offers a more modest, more sombre account of what victory in a just war can yield. The wise man who wages a just war will not, it suggests, win true peace; the most he can hope for is a slightly less malign status quo than obtained before he took up arms. Even then, Augustine supposed, for all the reasons set out a moment ago, the wise man must also recognize that whether the status quo is more or less malign is ultimately of little significance.69 Yet, because he knows it could be worse, and because he is obliged by a sense of duty to ensure that the worst forms of disorder are curbed so that the pilgrims among us are not forced into wickedness, he is compelled to wage just war in its name.70 The necessity of acting in this way, Augustine concluded, was a ‘miserable’ one.71 What we observe here, then, is a profound ambivalence toward the kind of victories that the Romans had hailed as proof of their greatness. On the one hand, Augustine was prepared to embrace victory in a just war as a welcome outcome. ‘Indeed, when victory goes to those who fought for the juster cause, who will doubt that such victory is a matter for rejoicing and that the ensuing peace is to be desired?’ These things are ‘goods’, he continued, and ‘are without doubt gifts of 67  ‘Just as there is no one who does not wish to be joyful, so there is no one who does not wish to have peace,’ he explained. ‘Even when men choose to wage war, they desire nothing but victory. By means of war, therefore, they desire to achieve peace with glory; for what else is victory but the subjugation of those who oppose us?’ Ibid., p. 934 [XIX.12]. Also see: Augustine, ‘Letter 189: To Boniface’, p. 217 [VI]. 68 Augustine, City of God, p. 639 [XV.4]. 69  ‘As far as this mortal life is concerned, which is spent and finished in a few days, what difference does it make under whose rule a man lives who is soon to die’? Ibid., p. 217 [V.17]. 70  Ibid., pp. 927–8 [XIX.6]. 71  Ibid., p. 928 [XIX.6].

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Beneath Every History, Another History  33 God’.72 On the other hand, he also expressed concern that the value of these goods is habitually overstated. As we have seen, Augustine was equivocal on the quality of peace that victory in a just war delivers. He tempered his appreciation of its virtues with a keen sense of its limitations. He also recognized, however, that, regardless of its limitations, victory has a way of beguiling those who experience it. As the case of Sulla demonstrated, victory is a siren song that can seduce even the strongest of men, luring them away from the path dictated by a rightly directed love and onto the rocks of sinfulness. But if the higher goods are neglected, which belong to the City on high, where victory will be secure in the enjoyment of eternal and supreme peace: if these are neglected, and those other goods desired so much that they are thought to be the only goods, or loved more than the goods which are believed to be higher, then misery will of necessity follow, and present misery will be increased by it.73

Bringing this together, Augustine’s argument was that, while victory should be understood as a lower good that is nevertheless worth striving for, the very act of striving for it will always be a fraught affair that draws man to sinfulness. Victory, on this view, is worthy and corruptive in equal measures—and necessarily so.

Final Victory and Perfect Peace Very different from how one might intuitively think about what it means to win a war, Augustine’s vision of victory is fascinating in its own right. But what I want to draw attention to here is the light it casts on Augustine’s account of just war. Augustine’s vision of victory problematized his account of just war by amplifying its tragic dimensions. What does it mean to win a just war? And what does the answer to this tell us about the idea of just war? Augustine’s response to these questions were reliably bleak. As we have seen, there was no deliverance, for Augustine, in winning a just war. To win a just war was not to achieve something good in its own right or in the full sense of that term. Rather, as he pitched it, to win a just war was merely to have successfully resisted or overturned a particularly heinous act of wrongdoing or status quo. This should neither be sneezed at, nor have its significance overstated. Any achievements of this kind, while welcome, were only of fleeting importance. Checking injustices may make people’s lives more tolerable in the here-and-now, but it will make no difference to what really matters, which is life 72  Ibid., p. 639 [XV.5]. 73  Ibid. This is redolent of the sporting cliché that victory is not the most important thing, it’s the only thing. I will have more to say about this general idea in Chapter 7.

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34 Victory in the sweet hereafter.74 Even then, what just wars can achieve in the quotidien is strictly limited. The most one can achieve by winning a just war is the forcible attainment of a slightly less malign status quo. Such an outcome will not bring about true peace. Nor will it resolve the ills of the world; it will merely defer, allay, contain, and, as such, perpetuate them. Despite being so marginal, these gains are both hard-won and come at a steep cost. In striving for the victory that will secure them, men will necessarily be exposed to the temptation to act in ways that lead them toward excess and sinfulness. When it comes to just war, it seems that, for Augustine, winning is always suffused with losing. And yet, so far as the wise man bears an obligation to check injustice whenever he encounters it, he will recognize and indeed accept his unenviable duty to wage just war.75 Viewed through the prism of victory, then, Augustine’s just war is revealed as deeply tragic. For Augustine, the bleakness of this vision was offset only by his belief that God was active in and through human history, directing it toward its fulfilment in ‘the final victory and perfect peace’ in His Kingdom at the end of time.76 In contradistinction to the kind of peace that is attainable in the saeculum, this peace would not be limited or provisional. It would be perfect in every way. Just war fitted within this eschatological vision as an instrument of providence. It served as a means of both sorting and preparing people for their final fate: eternal damnation for members of the city of man or salvation through grace for the angelic denizens of the city of God. As Augustine put it, just war served as a kind of ‘threshing floor’ where, instead of the wheat being separated from the chaff, the elect were peeled away from the damned.77 Even those just wars that ended in defeat, handing victory to the unjust side, advanced a divine purpose. The victory of the unjust party offered the damned nothing more than another opportunity to seal their miserable fate, while the occasion of defeat presented a further trial to fortify the elect. In Augustine’s words: ‘For even when a just war is waged, it is in defence of his sin that he against whom it is waged is fighting; and every victory, even if it goes to the wicked, is a humiliation inflicted upon the conquered by divine judgement, either to correct their sins or to punish them.’78 Viewed in this light, just war, as both an instance of and a response to sin, becomes one of the means by which God bends history toward His will. This is all well and good, but the limitations of Augustine’s approach are evident. Faith is, of course, a theological virtue, and his appeal to providence is only available to those who share his Christian faith. For those who do not, what is left behind is a rump account of just war that, as its relation to victory reveals, is unrelentingly tragic.

74 Augustine, City of God, pp. 218–23 [V.18]. 75  Ibid., p. 928 [XIX.6]. 76  Ibid., pp. 4–5 [I.1]; 11–13 [I.8]. 77  Augustine, ‘Sermon: The Sacking of the City of Rome [c.410/11 ce]’, p. 213 [IX]. 78 Augustine, City of God, p. 943 [XIX.15]; also pp. 227–8 [V.21].

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Beneath Every History, Another History  35

Conclusion This chapter has addressed the view that victory has never been a topic of direct discussion in the just war tradition. It tackled this view by excavating, in Hilary Mantel’s words, the history beneath the history. This involved returning to the source of the just war tradition and examining the role that victory played in the writings of Saint Augustine. Three principal findings arise from this exercise. The first finding is that, contrary to what one might have expected, Augustine actually engaged extensively with the topic of victory. Far from neglecting it, he placed it at the heart of his thinking on just war. This suggests that victory has been a matter of direct concern for just war theorists right from the start. The second finding is that victory features in his writings as a focal point that brings the tragic dimension of his view of just war into relief. Functioning almost as a prism, it illuminates his belief that just war is not a glorious enterprise, or a pointless endeavour, but a terrible burden that must be borne. The final finding is that, unless one wishes to follow him in offsetting the bleakness of this vision by locating it within a broader eschatological framework, a move that most contemporary just war theorists are unwilling to make, what Augustine gives us is an account of just war that crystallizes as tragedy. My purpose in this book is to reflect on these findings. This will require me to consider two related possibilities. On the one hand, I will consider whether the reluctance of contemporary just war theorists to engage the concept of victory derives from an unwillingness on our part to admit the tragic dimensions of just war. Is it possible, I ask, that we have bracketed victory from our analyses because it raises awkward questions about the limits of just war that we would rather duck? On the other hand, I will consider the possibility that it is because it raises such questions that we need to properly engage victory. I will explore the prop­os­ ition, in other words, that it is exactly so that we might come to terms with the basis of just war in tragedy that we must follow Augustine’s lead and interrogate it via the concept of victory.

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2

Making a Desert and Calling It Peace Do you want to win, or do you want peace?

Martti Ahtisaari1

Introduction Chapter 1 channelled the spirit of Augustine to suggest that the reticence of contemporary just war theorists to engage the concept of victory reflects their apprehensiveness to address the questions it raises. One such question bears on the relation between victory and peace. It is a time-honoured and indeed axiomatic belief among just war theorists that the desired end of a just war should be peace, not victory. This chapter interrogates this proposition. It asks what kind of relation, if any, should we envisage between peace and victory in respect of the ends of just war? The concern this question raises is not simply that peace and victory constitute distinct objectives for a just war. It is that they might also be mutually implicated yet incompatible aims. For a just war to advance the aim of peace it presumably must be consummated in victory. Yet, so far as victory glorifies the idea of prevailing over one’s enemies in combat, it appears more likely to confound rather than advance that same aim of peace that the just war is intended to serve. Delving even deeper into the history of the just war tradition to draw on the writings of Marcus Tullius Cicero, this chapter examines this concern and reflects on what it tells us about the idea of just war. It contends that the relation between victory and peace exposes what we might call the paradox of just war: the act of winning a just war is likely to undermine the peace that the just war is being fought to advance.

Aiming Only at Peace Our point of departure is Marcus Tullius Cicero, whom we have already met in Chapter  1. Cicero was born to a respectable family in 106 bce in Arpinium, a 1  This was the question the Nobel Peace Prize winner Martti Ahtisaari put to rival delegates in the course of the Aceh Peace Talks. Quoted in: Beatrice Heuser, The Evolution of Strategy: Thinking War from Antiquity to the Present (Cambridge: Cambridge University Press, 2010), p. 472.

Victory: The Triumph and Tragedy of Just War. Cian O’Driscoll, Oxford University Press (2020). © Cian O’Driscoll. DOI: 10.1093/oso/9780198832911.001.0001

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Making a Desert and Calling It Peace  37 small town not far from Rome.2 A gifted scholar, the young Cicero learned Greek by translating texts by Xenophon and studied philosophy at Rome and Rhodes, as well as Athens, where he came into contact with Stoic teachings. Cicero would return to philosophy as a form of consolation later in life. By that stage, however, he had already made his name in other fields. He first earned renown as an ambitious lawyer who thrilled in challenging vested interests. He exploited this platform to overcome his lack of noble blood and military experience and rise to the pinnacle of Roman politics, the consulship, in 63 bce. As consul, he thwarted the Catiline conspiracy, a feat for which he was widely celebrated—not least by himself.3 Thereafter, until his murder at the hands of Mark Antony’s death squad in December 43 bce, he played a leading role in the state’s affairs. The final decades of his life were dominated by the Roman Civil War on the one hand, and marital discord and the loss of his beloved daughter on the other. His tribulations mirrored the fate of the Roman republic, to which he was so committed, and his untimely death foreshadowed its demise. Posterity has been generous and harsh in equal measures to Cicero. As we have already seen, none less than Augustine declared that the beauty of Cicero’s writing was enough to stir ‘a zeal for wisdom’ in the breast of man, while later commentators grumbled that, although Cicero had a fine way with words, he never essayed an original thought of his own.4 The harshness of this latter judgement is attested to by the fact that Cicero’s contribution to political thought has in recent years been the subject of a more positive re-appraisal.5 Cicero is interesting for present purposes as he played a seminal role in the development of the just war tradition. He was arguably the first to write about the relation between justice and war in a systematic way.6 So long as one is seeking only a general overview, Cicero’s account of just war is easily glossed. The key 2 On Cicero’s life and times: Thomas Wiedemann, Cicero and the Fall of the Roman Republic (London: Bristol Classics Press, 1994); Elizabeth Rawson, Cicero: A Portrait (London: Bristol Classics Press, 1983). 3 Seneca wrote that Cicero lauded his own achievements ‘not without cause but without end’. Quoted in: Kathryn Tempest, Cicero: Politics and Persuasion in Ancient Rome (London: Bloomsbury, 2014), p. 3. 4 Augustine, Confessions, trans. by Henry Chadwick (Oxford: Oxford University Press, 1998), p. 145 [VIII.vii.17]. For an example of a critical commentator: George  H.  Sabine, A History of Political Theory—Fourth Edition (Fort Worth: Harcourt Brace College Publishers, 1973), p. 159. 5  Neal Wood, Cicero’s Social and Political Thought (Berkeley: University of California Press, 1988), p. 12. 6  As Gavin Stewart notes, Cicero ‘was among the first thinkers to offer a systematic ethical project in which the concept of just war had a firm place’. Gavin Stewart, ‘Marcus Tullius Cicero’, in Daniel Brunstetter and Cian O’Driscoll (eds.), Just War Thinkers (London: Routledge, 2018), p. 8. Gregory Raymond describes him as ‘the first Western writer to make a systematic effort to articulate a theory of just war’. Gregory  A.  Raymond, ‘The Greco-Roman Roots of the Just War Tradition’, in Howard M. Hensel (ed.), The Prism of Just War: Asian and Western Perspectives on the Legitimate Use of Military Force (Farnham: Ashgate, 2010), p. 10. Gregory Reichberg, Henrik Syse, and Endre Begby state: ‘Cicero is in fact one of the first thinkers to insist on the need for developing a legal and normative framework for war.’ Gregroy M. Reichberg, Henrik Syse, and Endre Begby, ‘Cicero: Civic Virtue as the Foundation of Peace’, in The Ethics of War: Classic and Contemporary Readings (Oxford: Blackwell, 2006), p. 51.

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38 Victory principles of his just war doctrine are stated in Book III [35] of The Republic: ‘Wars are unjust when they are undertaken without proper cause. No just war can be waged except for the sake of punishing or repelling an enemy . . . no war is deemed to have been just if it has not been properly declared and proclaimed.’7 Cicero later devoted a lengthy and tightly argued section of On Duties to elaborating what this might mean in practice.8 He began by articulating the conditions that governed when war may be undertaken. The rules he listed were not his own creations, but a distillation of Roman customs. ‘A fair code of warfare has been drawn up in accordance with religious scruple in the fetial laws of the Roman people’, he proclaimed. ‘From this we can grasp that no war is just unless it is waged after a formal demand for restoration, or unless it has been formally announced and declared beforehand.’9 Cicero’s principal intention, it seems, was to emphasize the cause for which a war was fought and the process by which it was authorized. A war could only be justified, he argued, if it had been preceded not only by some act of wrongdoing on the part of Rome’s enemy, but also by Rome’s issuance of a demand for redress, and the failure of the aforementioned enemy to satisfy that demand. These customs to which Cicero alluded can be traced to Rome’s fetial college, an order of state-sanctioned priests that was collectively responsible for conducting Rome’s diplomacy and declaring its wars. How the fetial college conducted its business was a complex affair.10 In cases where Rome discerned a grievance with another state, the fetial priests travelled to the frontier of that state where, calling upon the god Jupiter to act as their witness, they would issue a demand for redress. If thirty-three days then lapsed without any offer of satisfaction from that rival state, the fetials would serve notice that Rome was now at liberty to pursue justice by force. The fetials would return the issue to the Senate, where a vote would be held about whether or not to proceed against the rival state by force. In cases where the Senate voted in the affirmative, the fetials would at this point return one final time to the frontier, this time to declare war—a task completed by 7  Marcus Tullius Cicero, ‘The Republic’, in The Republic and The Laws, trans. Niall Rudd (Oxford: Oxford University Press, 1998), p. 69. 8  Marcus Tullius Cicero, On Duties, ed. by M. T. Griffin and E. M. Atkins (Cambridge: Cambridge University Press, 1991), pp. 14–19 [I.34–41]. 9  Ibid., pp. 15–16 [I.36]. 10  This draws on Livy. Titus Livy, The Early History of Rome: Books I–V of The History of Rome from its Foundations, trans. by Aubrey de Selincourt (London: Penguin, 2002), pp. 69–71 [I.32–3]. There is doubt regarding the historicity of Livy’s account and whether the process he describes was still extant in Cicero’s day. Alex J. Bellamy, Just Wars: From Cicero to Iraq (Cambridge: Polity, 2006), p. 19. For more on the fetials: Alan Watson, International Law in Archaic Rome: War and Religion (Baltimore: Johns Hopkins University Press, 1993); Thomas Wiedemann, ‘The Fetiales: A Reconsideration’, The Classical Quarterly 36:2 (1986): 478–90; David  J.  Bederman, International Law in Antiquity (Cambridge: Cambridge University Press, 2001), pp. 231–41; Stewart Irvin Oost, ‘The Fetial Law and the Outbreak of the Jugurthine War’, American Journal of Philology 75:2 (1954): 147–59; and P. A. Brunt, ‘Laus Imperii’, in P. D. A. Garnsey and C. R. Whittaker (eds.), Imperialism in the Ancient World (New York: Cambridge University Press, 1979), pp. 176–7.

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Making a Desert and Calling It Peace  39 hurling a spear across the border into what was now enemy territory.11 The purpose of this elaborate ritual was to establish the culpability of Rome’s enemies and thereby justify Rome’s war against them. There was, it is important to be clear, no intimation here that the act of war itself was akin to a form of divine tribunal that would determine on which side of the conflict justice lay. Instead, it was believed that the culpability of the guilty party, presumably Rome’s enemy, would be confirmed via the fetial process even before fighting began, meaning that the ensuing war was constituted, not as a practice of judgement in its own right, but as the enactment of a prior judgement.12 Where Cicero’s writings on just war intersect with the immediate concerns of this chapter is his formative expression of what contemporary theorists refer to as the ‘aim of peace’. Underpinning Cicero’s just war doctrine was a firm conviction that the sole purpose for which war could legitimately be waged was the advancement of a just peace. Wars, Cicero contended, only ‘ought to be undertaken for this purpose, that we may live in peace, without injustice’.13 That is to say, war should only be waged to correct a prior act of wrongdoing and thereby restore the conditions for a harmonious peace between states.14 In addition to stipulating the general end for which a war may be fought, the aim of peace had implications for how a war should be waged. It enjoined that just wars should be waged in a manner that is compatible with the quest for a peace without injustice—and should never be conducted in a manner that would prejudice or foreclose such an outcome. In Cicero’s own words, ‘War should always be undertaken in such a way that one is seen to be aiming only at peace.’15 In practical terms, this meant that war should be waged openly and fairly, and that belligerents should refrain from using any means that could conceivably foster bad blood and hamstring any potential for the eventual restoration of cordial relations between belligerents.16

11  This practice has recently been evoked in a discussion about how wars are declared today. See: Eric Grynaviski, ‘The Bloodstained Spear: Public Reason and Declarations of War’, International Theory 5:2 (2013): 238–72. 12  I will have more to say about this in Chapter 3. 13 Cicero, On Duties, p. 15 [I.35]. On the aim of peace: Mona Fixdal, Just Peace: How Wars Should End (New York: Palgrave Macmillan, 2012); and James Turner Johnson, Morality and Contemporary Warfare (New Haven: Yale University Press, 1999), pp. 33–4. 14  Cicero associated the ideal of a just peace, not with some abstract conception of justice, per Plato, nor with a vision of the heavenly city, as Augustine later would, but with the Pax Romana. In simple terms, the idea of Pax Romana signified the order established by Roman military pre-eminence. See: Adrian Goldsworthy, Pax Romana: War, Peace, and Conquest in the Roman World (London: Weidenfeld & Nicolson, 2016), p. 13. Also: Greg Woolf, ‘Roman Peace’, in John Rich and Graham Shipley (eds.), War and Society in the Roman World (London: Routledge, 1993): 171–94. 15 Cicero, On Duties, p. 32 [I.80]. It is interesting to note that soldiers often harken to this general principle when reflecting on their military service. Consider Patrick Bury’s remarks: ‘For every civilian we kill, accident or not, uncles, brothers, and sons are pushed toward the Taliban. So we have to tread lightly . . . We have to avoid shooting [the locals] if we can. We have to treat captured Taliban correctly. Otherwise we might as well not bother coming out here.’ Patrick Bury, Callsign Hades (London: Simon & Schuster, 2010), p. 234. 16 Cicero, On Duties, pp. 16–17 [I.38]; 19 [I.41].

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40 Victory Finally, and most importantly, Cicero counselled that wars should be concluded in a manner conducive to the achievement of a just peace.17

Peace and/or Victory It is this latter requirement, that wars should be concluded in a manner congruent with the aim of peace, that I want to focus on here. Specifically, I want to inquire about the relation between peace and victory. My query is simple: Is the need for a just war to advance the aim of peace confluent with the need to win it? There are two possible ways of responding to this question.

Peace Through Victory On the one hand, there is the view that victory is not only compatible with peace, but the best way of achieving it. This position was expressed in a sermon delivered against the backdrop of the American Civil War by Reverend ­ Joseph P. Thompson in the Broadway Tabernacle Church in September 1864. ‘The path of victory is the path of peace’, he declared, and victory alone can bring peace.18 The reasoning behind this position is that the best way of securing peace is by roundly defeating one’s enemies in combat, leaving them no choice but to capitulate. This, of course, presupposes a very particular conception of victory. It presumes that victory must be sufficiently emphatic that it leaves no room for ambiguity. It must, in other words, be so decisive, so clear-cut, so self-evident, so incontrovertible as to preclude any doubt. Expressions of this view are not hard to find. Michael Howard writes that, for a victory to stand, ‘the defeated party must accept the fact of defeat and realise that there is no chance of reversing the verdict in the foreseeable future’.19 Brian Bond contends that victory is predicated on compelling ‘the vanquished to accept the verdict of battle’.20 Victory, Dominic Johnson and Dominic Tierney write, is conditional upon the defeated party ­recognizing the ‘reality of defeat’.21 Lawrence Freedman asserts that victory depends 17  Ibid., p. 15 [I.35]. 18 This sermon was published in the New York Times under the title ‘Peace Through Victory: A Thanksgiving Sermon’. It is available at: www.nytimes.com/1864/09/19/archives/peace-through-victorya-thanksgiving-sermon-preached-in-the.html. Accessed: 1 July 2018. See: James M. McPherson, ‘No Peace Without Victory, 1861–65’, American Historical Review 109:1 (2004), p. 14. 19  Michael Howard, ‘When Are Wars Decisive?’, Survival 41:1 (1999), p. 130. 20 Brian Bond, The Pursuit of Victory: From Napoleon to Saddam Hussein (Oxford: Oxford University Press, 1996), p. 61. 21  Dominic P. Johnson and Dominic Tierney, Failing to Win: Perceptions of Victory and Defeat in International Politics (Cambridge, MA: Harvard University Press, 2006), p. 6.

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Making a Desert and Calling It Peace  41 on the defeated party receiving a sufficiently comprehensive beating that they have no choice but to accept the result.22 This view has also been articulated by scholars associated with the just war tradition. Glossing Hugo Grotius (about whom we will have more to say about in Chapter 5), Jean Barbeyrac remarked: ‘To be really Victor, even when victorious, it is necessary that the vanquished should confess it.’23 Only, it is assumed, when a victory of this certitude is achieved, and the vanquished enemy forced to accept its fate, will peace become a possibility. The logic behind this position is clear. To let a defeated enemy off the hook by not forcing it to confront the fate that has befallen it would invite problems further down the line. It was in this vein that Allied leaders identified the failure of the international community to press home to Germany its defeat in the First World War as a root cause of the outbreak of the Second World War a generation later.24 Insofar as the victorious powers refrained from forcing Germany to own its defeat in 1919, they granted its leaders enough leeway to propagate the myth that the German army had never been defeated in the field—only stabbed in the back by traitors at home.25 When the time came to conclude the Second World War, Allied leaders expressed their determination not to repeat this mistake. They subsequently argued that, as their goal was a victory conducive to a stable peace, it was incumbent upon them to impress upon their enemies the reality of their defeat and to show them ‘beyond question that they have really lost the war’.26 The doctrine of ‘unconditional surrender’ marked the culmination of this way of thinking. More recently, President George H. W. Bush worried along similar lines that the failure of the Allied powers to wring a concession of defeat from President Saddam Hussein of Iraq in the aftermath of the 1991 Gulf War would come back to haunt them. Writing in his diary on the evening the war ended, Bush expressed his fear that, despite their superiority, the victory achieved by Allied forces over the Iraqi army was still somehow incomplete. Still no feeling of euphoria. I think I know why it is. After my speech last night, Baghdad Radio started broadcasting that we’ve been forced to capitulate. I see on the television that public opinion in Jordan and on the streets of Baghdad is that they have won. It is such a canard, so little, but it’s what concerns me. It hasn’t been a clean end—there is no battleship Missouri surrender. This is what 22  Lawrence Freedman, Strategy: A History (Oxford: Oxford University Press, 2013), p. 71. 23 Hugo Grotius, The Rights of War and Peace, trans. by Jean Barbeyrac, ed. by Richard Tuck (Indianapolis: Liberty Fund, 2005), p. 1580 [III.XX.XLV]. 24 Paul Kecskemeti, Strategic Surrender: The Politics of Victory and Defeat (Stanford: Stanford University Press, 1958), pp. 164–6. 25  ‘No enemy has vanquished you’ were the words that Friedrich Ebert, the president of the Weimar Republic, used to greet troops returning from the front. Quoted in: Robert Gerwarth, The Vanquished: Why the First World War Failed to End, 1917–23 (London: Allen Lane, 2016), p. 106; also p. 124. 26  Senator George Russell quoted in: Kecskemetti, Strategic Surrender, p. 166.

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42 Victory is missing to make this akin to WWII, to separate Kuwait from Korea and Vietnam.27

Because Allied forces had pulled their punches in the final stages of the war, the impression was fostered that the victory they had achieved was merely marginal rather than comprehensive, and the Iraqi government had been able to ‘avoid the crushing psychological burden of defeat’.28 This, Bush was worried, did not bode well for the future peace. Looking ahead to little over a decade later, it is possible to interpret President George  W.  Bush’s haste in pronouncing ‘mission accomplished’ in the 2003 Iraq War as a result of his determination not to make the same mistake his father had made.29 The lesson had been internalized that, so long as the victories one won were sufficiently emphatic that ‘nobody could be left in any doubt about what had just happened’, they would constitute a viable path to peace.30

Peace Without Victory On the other hand, there is a rival view that victory is not a path to peace, but an impediment to it. This position makes much of the danger that, in the quest for clarity of outcome, a victory can be pushed so far that it becomes toxic. If the winner must be seen to win, and the loser must be seen to lose, the stage is set for the victor to indulge in hubris. Instead of being satisfied with a narrow victory over its foes, the winning party will be tempted to hammer home its superiority. This may involve exulting in the downfall of one’s stricken adversaries, kicking them when they are already down, rubbing their noses in the dirt, or otherwise glorying in their plight. It is in this light that we should interpret Henry Kissinger’s advice to President George W. Bush in the aftermath of the 9/11 attacks that the US must seek, not just to defeat the terrorists who had targeted it, but to humiliate them.31 The problem with this is that, instead of advancing the cause of peace, such conduct is likely to sow the seeds for further bitterness and dispute. As Brian Orend observes, ‘To beggar thy neighbour is to pick future fights.’32 The same historical examples that were cited in support of the view that victory is a path to peace can also be invoked in support of the claim that it is an 27 George  H.  W.  Bush and Brent Scowcroft, A World Transformed (New York: Vintage, 1998), pp. 486–7. 28  Gideon Rose, How Wars End: Why We Always Fight the Last Battle (New York: Simon & Schuster, 2011), pp. 216; 226. 29  Michael Mandelbaum, Mission Failure: America and the World in the Post-Cold War Era (Oxford: Oxford University Press, 2016), p. 206. I will discuss this moment in more detail in Chapter 6. 30 Rose, How Wars End, p. 216. 31  Bob Woodward, Plan of Attack: Bush at War Part III (London: Simon & Schuster, 2006), p. 408. 32  Brian Orend, ‘Justice After War’, Ethics & International Affairs 16:1 (2002), p. 48.

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Making a Desert and Calling It Peace  43 obstruction to peace. Where the First World War was concerned, it was their awareness of the dangers that a punitive victory would produce that inclined the leaders of the international community to adopt a lenient stance toward Germany in 1919.33 President Woodrow Wilson was the chief exponent of this view. He delivered an address entitled ‘Peace Without Victory’ to the US Senate in January 1917 in which he urged the Allied powers to refrain from seeking victory over Germany as the only ‘peace’ it would produce is one ‘forced upon the loser’ and ‘accepted in humiliation, under duress, at an intolerable sacrifice’. Instead of paving the way for post-conflict reconciliation, he argued, such a victory would ‘leave a sting, a resentment, a bitter memory upon which terms of peace would rest, not permanently, but only as quicksand’.34 Victory, in other words, could be no basis for peace. Wilson’s stance can be traced back to his experience of the aftermath of the American Civil War, and in particular his memories of the triumphalism of the victorious North, or, as he put it, ‘the dangerous intoxication of an absolute triumph upon the side that won’.35 Wilson, as we know, lost the argument. The Versailles Treaty that ended the war contained terms (most obviously the so-called ‘War Guilt Clause’) that would subsequently come to be regarded in Germany as draconian. Critics of the Versailles Treaty have argued that it was the fact of its harshness, rather than the putative failure of the Allied powers to convince the Axis powers of the reality of their defeat, that paved the way for the outbreak of the Second World War just twenty years later.36 Similar concerns arose in respect of the 1991 Gulf War. Following a protracted air campaign, the Allies launched a punishing ground offensive. The first wave of troops entered Kuwait on 24 February. Within five days, they had achieved mastery of the battlefield. Fleeing Iraqi soldiers took to the road in a desperate bid to escape across the Iraqi border. Many did not make it. Stuck in slow-moving convoys on isolated roads, such as Highway 80 which linked Kuwait City to Basra, they were sitting ducks for aerial bombardment. The media compared events with a turkey shoot and members of the Bush administration fretted that, if they did not cease military operations immediately, the Allies would be seen to be both piling on ‘after the whistle’ and ‘killing for the sake of killing’.37 Their worry, in other words, was that, insofar as it might cloud the prospects for a future peace, too much victory would be a bad thing. President Bush agreed and ended the war earlier than he had initially planned.

33  Gerhard Weinberg, Visions of Victory: The Hopes of Eight World War II Leaders (Cambridge: Cambridge University Press, 2005), pp. 149–50; 179. 34  President Woodrow Wilson, ‘Peace Without Victory: Address to Senate, January 22, 1917’. The full text is available at: www.digitalhistory.uh.edu. Accessed: 21 June 2018. 35  Quoted in: Rose, How Wars End, p. 31. 36  Richard Hobbs, The Myth of Victory: What is Victory in War? (Boulder: Westview, 1979), p. 47. 37  Lawrence Freedman and Efraim Karsh, The Gulf Conflict 1990–91: Diplomacy and War in the New World Order (Princeton: Princeton University Press, 1993), p. 404; Rose, How Wars End, p. 224.

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44 Victory

Striking the Right Balance The dilemma arising from this appears stark: ‘Do you want to win, or do you want peace?’38 Yet this puts things too crudely. The dilemma, such as it is, is better framed as a tension that bears on how we understand the relation between victory and peace. If a victory is to yield peace, it must strike the right balance between two imperatives that pull in rival directions. On the one hand, there is the need to ensure that a victory is sufficiently emphatic that the vanquished party is compelled to accept defeat. Unless this is achieved, backsliding and further hostilities, not peace, are likely to ensue. According to this way of thinking, peace is best fostered through victory. On the other hand, there is the concern that the quest for such an outcome may induce the victor to prosecute its hapless enemy with the kind of excessive zeal that will foster bad blood and provoke a desire for revenge down the line.39 If a victory is pushed too far, it is likely to hamper rather than help the prospect of future peace. Viewed from this perspective, peace can only be achieved, as Wilson submitted, without victory. There is more than a hint of the dialectic about all of this. Just as a victory should not be too subtle, nor should it be too overwhelming. The key must lie, then, in striking a balance between these poles: that is to say, in achieving a victory that is sufficiently incontrovertible to settle a conflict conclusively without being in any way excessive. But is such a balance possible? Or does the requirement for a victory to be decisive necessarily induce the victor to overstep the mark—and to do so in a way that is invidious to the hopes of future peace? The next section returns us to the Rome of Cicero’s day in order to explore this question via an examination of the triumph, a ceremonial parade devoted to celebrating Rome’s military victories.

The Triumph of Rome Rome was a highly militarized society, and the award of a triumph was the highest honour that it could bestow upon a citizen.40 A source of immense prestige, it was

38  Martti Ahtisaari quoted in: Heuser, The Evolution of Strategy, p. 472. 39  Consider the foreboding observation rendered by the narrator in Brian van Reet’s excellent 2017 novel on the Iraq War: ‘Once you start in with trophies . . . the nastier shit is bound to follow.’ Brian van Reet, Spoils (London: Jonathan Cape, 2017), p. 46. 40  Rome went to war on an almost annual basis, maintained up to one fifth of the eligible population under arms at any one time, and built an empire that spanned the whole of the known world on the back of its military victories. Doyne Dawson, The Origins of Western Warfare: Morality and Militarism in the Ancient World (Boulder: Westview Press, 1996), p. 114. Strictly speaking, the triumph tradition did not originate in the Roman republic. Etruscan societies celebrated triumphs before Rome, but they were ‘simple affairs’. Robert Payne, Rome Triumphant: How the Empire Celebrated its Victories (New York: Barnes & Noble, 1993), p. 13.

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Making a Desert and Calling It Peace  45 an award reserved for generals who had overseen a victorious military campaign, and who had been acclaimed by the troops under their command as imperator— from which the title of emperor derived. The award of the triumph marked out the great from the merely good in Roman public life, and so, naturally enough, was a keenly desired prize. Indeed, triumphs were so competitively sought after that Roman generals were not averse to engineering otherwise unnecessary battles so that they might have an opportunity to win one. Even worse, the competition between generals for the right to celebrate a triumph was sufficiently intense that it sometimes intruded upon, and indeed led to the bungling of, military operations.41 Pompey, Julius Caesar, and Caesar Augustus each celebrated multiple triumph ­ceremonies, and took great pride in the fact. Pompey famously never missed a chance to remind anyone who would listen that he had won three triumphs— indeed, he even wore a signature ring advertising this accomplishment.42 Others, such as Piso, were scorned for their failure to translate promising military commands into triumphs, while Cicero was bitterly disappointed that the Senate never saw fit to reward his military successes by awarding him the honour of a triumph.43 A source of much fascination down the years right up until today, the triumph itself was an occasion of tremendous pageantry. The honoured general, or triumphator, was invited by the Senate to stage a dramatic, ritualized return to Rome. Subject to minor variations over time, triumphs typically followed a more or less set format.44 The victorious commander, having been granted permission by the Senate to host a triumph, would return to Rome from his camp, entering through the Porta Triumphalis, and lead his troops through the streets of the city via an ordained route to the Capitol, where he would lay a spray of laurel in the lap of the statue of Jupiter—who was, the reader will recall, the same god petitioned in the course of the fetial procedure. Preceded by a chain-gang of shackled enemy soldiers, and accompanied by trumpeters, standard-bearers, troops bearing aloft trophies, and carts laden down with booty, the commander rode in a ceremonial

41  Cicero, who served for a brief period as a commander c.51 bce, noted his personal experience of this in a letter he wrote to his friend Atticus. See the letter listed as number 47 in: Marcus Tullius Cicero, Selected Letters, trans. by D. R. Shackleton Bailey (London: Penguin, 1986), p. 121. 42  Mary Beard, The Roman Triumph (Cambridge, MA: Harvard University Press, 2007), p. 15. 43  Cicero led the goading of Piso about his lack of triumphs. Marcus Tullius Cicero, ‘Against Piso’, in The Orations of Marcus Tullius Cicero: Volume III, trans. by C. D. Yonge (London: George Bell & Sons, 1913), pp. 358–9; 385–7 [XV; XXXVII–XXXVIII]. Cicero’s own lack of success in this department was not for want of trying. He petitioned the Senate for a triumph after troops under his command secured a minor victory at Pindenissum in 51/50 bce, but Cato blocked its award. Cicero remarks upon this affair at length and with some bitterness in letters 53 and 54 of his Selected Letters, pp. 130–2. 44  There is an extensive literature on triumphs. This account draws principally on three primary sources: Plutarch’s essays on Aemillius Paullus and Pompey, and Cassius Dio’s account of Octavian’s triumph. Plutarch’s essays are available in: Plutarch, Roman Lives, trans. by Robin Waterfield (Oxford: Oxford University Press, 1999), pp. 36–76; 216–96. Cassius Dio, The Roman History: The Reign of Augustus, trans. by Ian Scott-Kilvert (London: Penguin, 1987), pp. 81–2 [51.21]. It also makes use of the excellent composite account of a triumph presented by Mary Beard in The Roman Triumph, pp. 81–2.

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46 Victory chariot. Garbed in a purple tunic embroidered with stars, and with his face dyed red, he carried a sceptre. Flanking him in the chariot, a slave was tasked to hold a golden crown over his head and whisper softly in his ear a warning that all glory is fleeting: ‘Remember you are just a man.’ The lavish pageant would culminate with the execution of a selection of captives and the dispatch of others to slavery, the performance of thanksgiving sacrifices, and a rowdy street-party that would go long into the night. The meaning of this practice is shrouded in mystery, but speculation is possible. Besides permitting Romans an opportunity to get together and blow off steam by marking their most momentous victories in style, the triumph may have served a number of functions. There is conjecture that the triumph offered Rome a means of expiating ‘blood-guilt’ incurred in the course of its military campaigns.45 This may or may not have been the case. The evidence is not clear. The more obvious (and better supported) supposition is that the triumph acted as a marker or final proof of victory for the many wars that Rome waged.46 According to this view, the triumph confirmed that whatever conflict it was intended to celebrate was now concluded, and indeed concluded in Rome’s favour. By presenting before them what Cicero referred to as ‘the gratifying spectacle of captured enemies in chains’, triumphs ensured that the people of Rome could be left in no doubt that the wars fought on their behalf had been won.47 Such sights were as necessary as they were welcome, he elaborated, ‘because there is nothing sweeter than victory, and there is no more definite proof of victory than seeing the people you have many times been afraid of led in chains to their execution’. This brings us to the crux of the matter. If the triumph was a ritual for confirming victory in a given war, it also appears to have been a means of revelling in the glory of Rome, its leaders, and the troops who fought on its behalf. As Polybius remarked, triumphs furnished Rome with an opportunity to translate its victories into a ‘glorious spectacle’, and for its leaders to thereby ‘display’ their magnificent achievements to the world.48 The manner by which this was accomplished is revealing. Triumphs trumpeted Rome’s greatness by emphasizing the subjugation of its foes. The sight of erstwhile proud enemy leaders brought to heel, publicly humiliated, and driven as chattel before a Roman chariot underscored this

45  Hendrik Simon Versnel, Triumphus: An Inquiry into the Origin, Development and Meaning of the Roman Triumph (Leiden: E. J. Brill, 1970), p. 138; 174. 46 Versnel, Triumphus, p. 139. 47  Marcus Tullius Cicero, ‘In Verrem’, in Political Speeches, trans. by D. H. Berry (Oxford: Oxford University Press, 2006), p. 55 [II.5.66]. 48 Polybius, The Histories, trans. by Robin Waterfield (Oxford: Oxford University Press, 2010), p. 383 [VI.15]. As Hugo Grotius would comment many centuries later, the cruel and degrading treatment dished out to Rome’s vanquished enemies was a testament to (and endorsement of) ‘the boldness of the Roman Empire’. Grotius, The Rights of War and Peace, pp. 1436–7 [III.XI.VII].

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Making a Desert and Calling It Peace  47 message.49 The fact that those forced to trudge ahead of the triumphator’s chariot were, more often than not, also trussed up in native costume only added to the effect. Moreover, the ostentatious display of booty and plunder seized from foreign lands advertised that it was not only enemy soldiers and leaders who had been so mastered, but entire nations. The triumph, it seems, was not merely a marker of success in battle; it was a propagandistic celebration of Roman conquest, and of Rome’s superiority over its enemies.50 The appearance of trophies in the triumph procession confirms this impression. Like the Greeks before them, the Romans marked famous victories with trophies.51 There was, however, some variance with respect to how the Romans approached them. Where for the Greeks trophies were immovable, non-replicable structures that were rooted to the battlefields where they had been won, the Romans created duplicate trophies that could be borne aloft through the streets of Rome in the course of a triumph.52 In some but not all cases they might have the name of the victory they represented inscribed upon them. This shift is important. As Michael McCormick observes, it suggests that trophies had lost ‘their specific historical references and become universal, abstract symbols of imperial victory’.53 Victory was, it seems, no longer affixed to particular battles; it was now connected to the extension of Roman dominion over the entirety of the known world.54 Furthermore, if victory had come for the Romans to be associated with conquest, it was also invoked to justify it. The achievement of victory was presumed to demonstrate Rome’s superiority over those it defeated, and therefore to legitimate the extension of its rule over them. Viewed in this light, the triumph procession was not merely a way of celebrating Roman victories, or the extension of the Roman Empire, but a justification of that empire. Victory thus became synonymous not only with the glory of imperial conquest, but with the greatness of Rome and the justness of its title to empire.55 I will discuss conquest further in Chapter 5. The point to emphasize presently is a simple one: namely, that a close look at the classic ritual expression of victory, 49  As Susan Mattern writes, ‘Triumphal processions also featured a parade of prisoners, which i­ deally included the conquered barbarian king, in chains. This aspect of the ceremony—the humiliation of the enemy leader—was critical.’ Susan Mattern, Rome and the Enemy: Imperial Strategy in the Principate (Berkeley: University of California Press, 1999), p. 168. 50  Consider Plutarch’s description of the captive Macedonian king in Aemillius Paullus’ triumph: ‘Behind the children and their retinue came Perseus. He wore a grey cloak and Macedonian boots and looked as though he was utterly astounded and bewildered by the magnitude of the disaster that had happened to him. . . . [He] became a part of his own spoils.’ Plutarch, ‘Aemillius Paullus’, pp. 71–2 [34]. 51  I will return to subject of the Greek battlefield trophy in more detail momentarily. 52  For example, the essays by Plutarch and Cassius Dio noted earlier refer to such trophies. 53  Michael McCormick, Eternal Victory: Triumphal Rulership in Late Antiquity, Byzantium and the Early Medieval West (Cambridge: Cambridge University Press, 1986), p. 26. 54  Further evidence of this is furnished by the Fasti Triumphales. See: Beard, The Roman Triumph, pp. 61–7. 55  On this idea: Rudolph  H.  Storch, ‘The “Absolutist” Theology of Victory: Its Place in the Late Empire’, Classica et Medievalia 29 (1968): 197–206.

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48 Victory the Roman triumph, discloses the troubling link between victory and hubristic excess. Triumphs served an essential function as ‘proofs of victory’.56 By locking in a victory, they provided the Romans with their own version of what President Bush called a Battleship Missouri moment. Yet, insofar as they relied upon the ritualized humiliation of the defeated enemy to produce that proof, they ‘kindled’ a destructive triumphalism on the part of the victor and risked provoking a spirit of animus on the part of the vanquished.57 How could such a practice serve as a foundation for the aim of peace that Cicero hailed as the sole justification for going to war? This is a circle that cannot easily be squared. The example of the Roman triumph suggests, then, that the achievement of victory is dependent in some essential way upon the degradation of the vanquished foe and, as such, is bound to foster hubris and ultimately confound the aim of peace. It is perhaps with this in mind that we should interpret Tacitus’ quip that the Romans were habituated to ‘make a desert and call it peace’.58 It would be easy to dismiss the cautionary tale of the Roman triumph as ancient history that has no relevance today. But it would also be wrong. Echoes of the Roman triumph can still be heard today, most obviously in gaudy ticker-tape parades staged to greet troops returning from far-flung battlefields and celebrate victories won in foreign wars.59 The problems revealed by the triumph endure today.

Trophy Victories There are, however, other historical illustrations that tell a very different story. The practice in classical Greece of erecting a battlefield trophy to mark a victory has already been mentioned in passing. The erection of a battlefield trophy was the principal means by which Greek armies affirmed the achievement of victory in war.60 These trophies were typically quite rudimentary. They usually took the form of a wooden post driven into the ground and fastened with a cross-beam, from which the captured weapons and armour of slain enemy fighters could be 56 Grotius, The Rights of War and Peace, p. 1581 [III.XX.XLV]. 57  The word ‘kindled’ is from Sallust, who identified triumphalism and hubris among the causes of Rome’s downfall. Sallust, ‘Catiline’s War’, in Catiline’s War, The Jugurthine War, Histories, trans. by J. Woodman (London: Penguin, 2007), pp. 7–10 [VII.3–XI.8]. 58 Tacitus, ‘Agricola’, in The Agricola and Germanicus of Tacitus, trans. by K.  B.  Townshend (London: Methuen, 1894), p. 33 [XXX]. 59  On contemporary echoes of the Roman triumph, see: Karl Marlantes, What It’s Like to Go to War (London: Corvus, 2012), p. 195; Michael J. Schuck, ‘When the Shooting Stops: Missing Elements in Just War Theory’, Christian Century, 26 October 1994, pp. 982–3. Also see: Paul Fussell, Thank God for the Atom Bomb and Other Essays (New York: Summit, 1988), pp. 45–52. 60  This earliest reference to the battlefield trophy appears in Homer’s Iliad, but the discussion that follows will focus primarily on their role in Greek warfare of the sixth and fifth centuries bce. Homer, The Iliad, trans. by E.  V.  Rie, revised and updated by Peter Jones (London: Penguin, 2003), p. 176 [X.460–5]. Glossing this passage, M.  I.  Finley notes: ‘The one indisputable measure of success is a trophy.’ M. I. Finley, The World of Odysseus (New York: New York Review of Books, 2002), p. 121.

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Making a Desert and Calling It Peace  49 hung.61 The symbolism was clear: nothing signified a glorious victory better than the sight of a spear that once belonged to a feared enemy dangling uselessly from a trophy. This symbolism was underlined by the site of the trophy. Trophies were usually erected at the exact spot where the enemy army had first broken ranks and fled.62 The victors often went to the trouble of inscribing the salient details of the battle—who had led both armies, on what date it had been fought, and so on—on the base of the trophy for posterity. Geography permitting, there was also a preference for erecting the trophy on high ground.63 This was so that trophies would be visible from afar. Our sources record that the last thing toops would do before filing from the battlefield was gather round the trophy to offer a prayer of thanks to the gods for the victory they had just won.64 These rituals, which mirrored those practised prior to the commencement of the battle, represented the closing of the circle that was opened when the war was begun.65 By advertising the fact that the losing army had been forced to flee and were now powerless to prevent their enemies assuming full command of the battlefield, the erection of a trophy confirmed the outcome of a battle. It signalled the victory of the party who stood in possession of the battlefield and locked in the defeat of the army they had driven from it. The only way for the losing army to gain re-admission to the battlefield in order to retrieve its dead—a sacred duty in classical Greece—was to formally accept defeat by acknowledging the trophy. This was what normally happened. The historical record suggests that victors almost always greeted the heralds from vanquished armies politely and granted their request.66 So long as the defeated army recognized the trophy and the victory it symbolized, there was no need for the victor to torment them further.67

61  Yvon Garlan, War in the Ancient World: A Social History, trans. by Janet Lloyd (London: Chatto & Windus, 1975), p. 62. 62  This spot was known in Greek as the trope, or turning point, and it is from this root that the word ‘trophy’ is derived. W. R. Connor, ‘Early Greek Warfare as Symbolic Expression’, Past & Present 119 (1988), pp. 14–15. 63 Jutta Stroszeck, ‘Greek Trophy Monuments’, in Simone Bouvrie (ed.), Myth and Symbol II: Symbolic Phenomena in Ancient Greek Culture (Bergen: Norwegian Institute at Athens, 2004), p. 315. 64  See: Xenophon, A History of My Times, trans. by Rex Warner (London: Penguin, 1979), p. 206 [IV.3.21]. Xenophon makes reference to the erection of thirty trophies over the course of this book. Thucydides makes reference to fifty-eight trophies in his history of the Peloponnesian War. William Kendrick Pritchett, The Greek State at War: Part II (Berkeley: University of California Press, 1974), p. 270. 65  Louis Rawlings, The Ancient Greeks at War (Manchester: Manchester University Press, 2007), pp. 97–9. 66  Hans van Wees, Greek Warfare: Myths and Realities (London: Duckworth, 2004), p. 136. 67  It is tempting to connect this restraint in victory to the existence of a broader norm against the pursuit and rout of a fleeing foe. This, for instance, is what Josiah Ober does in an influential essay on the Greek ethics of war. Josiah Ober, ‘Classical Greek Times’, in Michael Howard, George J. Andreopoulos, and Mark R. Shulman (eds.), The Laws of War: Constraints on Warfare in the Western World (New Haven: Yale University Press, 1994), p. 13. This has been disputed by Peter Krentz, who argues that the limits on pursuit were practical rather than derived from any kind of normative rule or protocol. Peter Krentz, ‘Fighting by the Rules: The Invention of the Hoplite Agon’, Hesperia 71 (2002), p. 31.

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50 Victory Two famous battles involving trophies appear in the classic texts of Greek literature. The first battle, the 547 bce combat between the Spartans and the Argives over the disputed land of Thyrea, is recorded by Herodotus.68 It was waged by an elite company of 300 champions from each side. By the time dusk descended on the battlefield, only three men were left standing: two Argives and one Spartan. Assuming victory was theirs, the Argives departed the battlefield. This left the remaining Spartan alone on the battlefield. Seizing the opportunity, he hastily erected a trophy and (cheekily) proclaimed victory for Sparta. The second famous battle took place in Sybota, 433 bce, between the Corinthians and the Corcyraeans.69 Thucydides reports that both sides, having wreaked a certain amount of damage upon their enemies and recovered some spoils, believed they had been victorious and erected rival trophies. Because convention dictated that there could only be one trophy, this was a cause of great consternation and led to further wrangling. Though both of these battles are atypical, they nevertheless reveal the importance that the Greeks attached to the trophy and the role it played in the confirmation of victory and termination of war. Given the prestige that the Greeks attached to the trophy, it is intriguing to note that they did not cast them in marble or any other kind of stone. Instead, they were constructed of wood and other perishable materials. This meant that, if left alone, they would rot to nothing over the course of a generation.70 This is very different to how war memorials are approached today, where the emphasis is very much on the erection of monuments designed to last forever, but it was exactly what the Greeks intended.71 They designed their trophies so that they would be susceptible to ‘erosion and decay over time’.72 Proof of this lies in the fact that, just as Greek communities were barred from tampering with, vandalizing, or pulling down trophies that reminded them of defeats they had suffered, they were also banned from renewing, repairing, or replacing trophies that commemorated victories they had won when they fell into disrepair.73 The reasoning behind this was straightforward. Instead of seeking to sustain them in perpetuity, the Greeks preferred to let their trophies, and thus the memories of their conflicts they represented, fade away.74 Thus Plutarch extolled the practice of allowing trophies to 68 See: Herodotus, The Histories, trans. by Robin Waterfield (Oxford: Oxford University Press, 1998), pp. 37–8 [I.82]. 69 Thucydides, The War of the Peloponnesians and the Athenians, trans. by Jeremy Mynott (Cambridge: Cambridge University Press, 2013), p. 34 [I.54]. 70 Bederman, International Law in Antiquity, p. 260. 71  On contemporary war memorials: Jenny Edkins, Trauma and the Memory of Politics (Cambridge: Cambridge University Press, 2003), pp. 57–110; and Alan Borg, War Memorials from Antiquity to the Present (London: Leo Cooper, 1991). Also: Jay Winter, Sites of Memory, Sites of Mourning: The Great War in European Cultural History (Cambridge: Cambridge University Press, 1996). 72  William C. West III, ‘The Trophies of the Persian Wars’, Classical Philology 64:1 (1969), p. 10. 73  Pierre Ducrey, Warfare in Ancient Greece, trans. by Janet Lloyd (New York: Schocken Books, 1985), p. 270. 74  There is very strong evidence, however, that Greek communities did not extend this courtesy to cases where the defeated enemy was non-Greek. Greek communities constructed permanent

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Making a Desert and Calling It Peace  51 ‘disintegrate with the passage of time’ while also implying that any refusal to do so should be treated as a ‘malicious act’ designed to keep an old grudge alive.75 The Syracusan Nikolaos is quoted by Diodoros to much the same effect. ‘For what reason’, he asks, was it ordained that the trophies ‘set up in celebrating victories in war be made, not of stone, but of any wood at hand? Was it not in order that the memorial of the enmity of hostility, lasting as they would for only a time, would quickly disappear?’76 What is interesting for present purposes about the battlefield trophy is the light it casts on the connection between victory and hubris. It intimates that while the quest for an incontrovertible victory is prone to sliding into excess, the nature of this relation is contingent rather than necessary. It is possible, it seems, to achieve a victory that avoids rather than assumes the humiliation of the vanquished. Such a victory, one may conjecture, might even provide a platform for peace and reconciliation rather than further conflict. The events that heralded the end of the American Civil War suggest that this possibility was not unique to classical Greece. With his forces encircled by Union armies, the leader of the Confederate forces, General Robert  E.  Lee, agreed to meet with his Union counterpart, General Ulysses S. Grant, at the Appomattox Courthouse on 9 April 1865 to discuss the possibility of capitulation.77 The meeting went better than anyone could have hoped: Grant was ‘magnanimous in victory’, Lee was ‘gracious . . . in defeat’, and the two leaders agreed terms that matched the needs of the losing side to the expectations of the winning side.78 Grant made meaningful concessions to Confederate soldiers—he promised they would be permitted to retain their side-arms and horses, and guaranteed that they would not be prosecuted for treason or forced to endure a victory parade—which ensured that they had dignity in defeat.79 Grateful for this, Lee observed that Grant’s considerate approach to the enemy his army had just defeated would monuments made of stone to commemorate victories won over barbarian enemies, e.g., at Marathon. For more on this: Eugene Vanderpol, ‘A Monument to the Battle of Marathon’, Hesperia 35:2 (1966): 93–106; also Stroszeck, ‘Greek Trophy Monuments’, p. 312. 75  Quoted in: Pritchett, The Greek State at War, p. 253. 76  Ibid., p. 10. Interestingly, Alberico Gentili endorsed this logic. Alberico Gentili, De Iure Belli Libri Tres, trans. by John C. Rolfe (Oxford: Clarendon Press, 1933), p. 289 [III.I]. 77  The historiography of Appomattox is contested. The narrative I present here follows the mainstream version of events, which can be traced to the Union general Joshua Chamberlain, presented by Jay Winik. Jay Winik, April 1865: The Month that Saved America (New York: Harper, 2001). There is, however, a rival school of thought which contends that the reality of what happened at Appomattox was less heroic. Luke Campbell and Brent J. Steele, ‘The Scars of Victory: The Implied “Finality” of Success in War’, in Andrew R. Hom, Cian O’Driscoll, and Kurt Mills (eds.), Moral Victories: The Ethics of Winning Wars (Oxford: Oxford University Press, 2017), pp. 149–51. The historicity of the mainstream narrative is not, however, especially important for my argument. My interest is in the narrative itself, not its veracity. 78 Winik, April 1865, pp. 193–4. 79  David A. Crocker, ‘Ending the US Civil War Well’, in Eric Patterson (ed.), Ethics Beyond War’s End (Washington, DC: Georgetown University Press, 2012), p. 153.

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52 Victory ‘do much toward conciliating our people’.80 Terms agreed, the generals courteously tipped their hats to one another and took their leave. Shortly after departing the courthouse, Grant encountered some Union troops expressing their jubilation at the news of the Confederacy’s surrender. Grant’s response was to instruct his men to cease their raucous celebrations. ‘We did not’, he later wrote, ‘want to exult over their downfall.’81 The logic of the Greek battlefield trophy echoes in the Appomattox story.82 It is the perfect exemplar of ‘a firm, demarcated moment when soldiers, formerly in fierce and gruesome struggle, put fighting in the past, and the reunion of their country in the present and future’.83 By virtue of their graciousness, and deter­ mination not to humiliate or impose harsh terms upon the defeated Confederate army, Grant and Chamberlain did their utmost to ensure that the peace which ensued from the armistice would be a permanent one, and not one built on quicksand. To the degree that they succeeded—and there are many commentators who believe that they did indeed succeed—this would seem to suggest that triumphalism can be trumped by the adoption of a more enlightened approach to the termination of wars, and that consequently there might indeed be some substance to the idea that victory can be a path rather than an impediment to peace.84 Cynics might cavil, however, that we should not attach too much weight to these ­examples, but rather regard them as the exceptions that prove the rule.

Conclusion The just war tradition places great emphasis on the ‘aim of peace’. Cicero, the author of the first systematic treatment of just war, contended that the sole justification for going to war is the pursuit of peace without injustice. He further argued that warfare must only be waged in a manner congruent with this desired end. These views have since become axiomatic within the just war framework. The question this chapter has examined is whether there is any place for the idiom of victory within this framework. In other words, is a focus on victory compatible with the idea of just war as underpinned by the aim of peace? The problem identified in this chapter—and illuminated by the Roman triumph— is that the concept of victory, predicated as it is on decisiveness, spurs a form of triumphalism that undercuts rather than advances the aim of peace. Insofar as the 80  Quoted in: Doris Kearns Goodwin, Team of Rivals: The Political Genius of Abraham Lincoln (New York: Simon & Schuster, 2005), p. 713. 81  Crocker, ‘Ending the US Civil War Well’, p. 154. 82  I am not the only person to draw this connection. Also see: Louis J. Iasiello, ‘Jus Post Bellum: The Moral Responsibilities of Victors in War’, Naval War College Review LVII: 3/4 (2004), p. 41. 83  Campbell and Steele, ‘The Scars of Victory’, p. 149. 84  As we have seen, President Wilson was not among those who saw the Reconstruction in this light.

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Making a Desert and Calling It Peace  53 pursuit of victory requires armies to confirm their advantage over their adversaries by pressing it home, it primes them to humiliate those they have defeated. Such behaviour is more likely to sow festering resentment on the losing side and provoke further conflict than pave the way for a subsequent peace. The upshot of this would seem to be that one can either seek peace, or seek to win, but not both. Of course, the Greek predilection for perishable trophies and the magnanimity displayed at Appomattox provide grounds for believing that that the opposition between victory and peace is contingent, not essential. Yet, insofar as the happy ending that these cases represent is the exception and not the rule, this tells its own story. Victory and peace are not easy bedfellows. In conclusion, while one should not be tempted to draw too firm an opposition between victory and peace, it is possible to observe that the very act of winning a just war is likely to undermine the peace that the just war is ostensibly being fought to serve. This tells us something about the tragic character of just war. On the one hand, just wars must be won if they are to yield the peace for which they have been fought; on the other, they cannot be won without creating conditions that threaten to overwhelm their own purpose.

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3

The Smell of Napalm in the Morning War does not determine who is right—only who is left. Bertrand Russell1

Introduction Chapter 2 addressed the contention that peace rather than victory should be regarded as the proper end of just war. It argued against this that peace and victory cannot be viewed apart from one another, yet also acknowledged the pro­ found tension between them. The third problem that victory poses for just war theorists arises from the view that it is a part of the strategic rather than norma­ tive vocabulary of warfare. To the degree that victory is a function of might rather than right, the argument goes, just war theorists have no business engaging it. The logic is simple: because it is a contingency of combat, and not an ethical good per se, it lies beyond the purview of just war theory. It is, so to speak, a function of the kinetics of war rather than the ethics of war. This chapter examines this conten­ tion. Drawing on the writings of Bernard of Clairvaux, Honore Bouvet, Christine de Pizan, and others, it reveals that the idea that victory is an amoral category is out of step with how victory has been conceived down the centuries. From clas­ sic­al times to the present day, victory has always been regarded as a concept that is, on some level at least, freighted with ethical and even divine overtones. My purpose in highlighting this is to draw attention to what it reveals about the idea of just war: namely, how it is prone to seed a dangerous combination of compla­ cency and self-righteousness in those who invoke it.

A Function of Might Not Right We may begin by setting out the scope of the problem. Our starting point is a passage in Sebastian Junger’s 2011 book on the conflict in Afghanistan, War. The 1  This quotation is often attributed to the twentieth-century Welsh philosopher Bertrand Russell (1872–1970) but no sources exist to support this claim. On Russell’s views on war and peace: Irving Louis Horowitz, ‘Bertrand Russell on War and Peace’, Science and Society 21:1 (1957): 30–51.

Victory: The Triumph and Tragedy of Just War. Cian O’Driscoll, Oxford University Press (2020). © Cian O’Driscoll. DOI: 10.1093/oso/9780198832911.001.0001

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The Smell of Napalm in the Morning  55 remarks in question arise in the course of a broader discussion about the realities of killing in modern war, and, more specifically, how notions of honour and fair­ ness drop out of the frame on the field of battle. ‘Much of modern military tactics is geared toward manoeuvring the enemy into a position where they can essen­ tially be massacred from safety’, Junger observes. ‘It sounds dishonourable’, he continues, ‘only if you imagine that modern war is about honour; it’s not. It’s about winning, which means killing the enemy on the most unequal terms possible.’2 While we might query the finer points of Junger’s claims, his contention that vic­ tory is an entirely separate matter to considerations of honour and fairness, and that it boils down to nothing more than getting the better of the enemy in a fight, resonates with the intuition that victory is an exclusively strategic concept, not a normative one. A brief discussion of two sources will allow us to ascertain the pervasiveness of this point of view, while also furnishing us with further insight regarding its entailments. The first is an article published by Lieutenant Colonel William I. Gordon in the Military Review in 1966.3 What makes this essay an especially useful touchstone is that it draws together writings on victory from several differ­ ent sources and periods. It begins with a survey of how victory was defined in the context of Gordon’s own day, which was of course a period of intense superpower rivalry. To win, according to the dictionary definition of the time, was ‘to over­ come an opponent’ or ‘to conquer in or as if in battle and to take into possession’.4 Looking beyond dictionaries, Gordon also profiles the discussion of victory to be found in the sociological literature on war. He proceeds by quoting Hans Speir: ‘What constitutes victory? Winning a battle? Winning a campaign? The occupa­ tion of a province or of the enemy’s whole territory? The establishment of military superiority? The suppression of all organised resistance?’5 The common denom­ inator linking these different possibilities is the assumption that victory involves the achievement of the upper hand over an adversary in battle. The impression this imparts is that victory is nothing more (but also nothing less) than a function of military prowess. This impression is reinforced by Gordon’s examination of how victory was conceived by the great military minds of the past. For Frederick the Great (1712–86), Gordon argues, victory meant ‘compelling your opponent to yield his position’.6 For Antoine-Henri Jomini (1779–1869), the Swiss tactician, it enjoined the occupation of ‘all or part of the enemy’s territory’.7 Last but not least, for Carl von Clausewitz [1780–1831] it necessitated the disarming or overthrow of the enemy, and the imposition of one’s own will upon them.8 In all cases, then, victory was rendered as the material outcome of a military action, and was not attributed any deeper moral meaning. 2  Sebastian Junger, War (New York: Twelve, 2011), p. 140. Italics added. 3  William I. Gordon, ‘What Do We Mean by “Win”?’, Military Review XLVI (1966): 3–11. 4  Ibid., p. 3. 5  Ibid., p. 4. 6 Ibid. 7 Ibid. 8 Ibid.

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56 Victory The second source is Robert Mandel’s 2006 excellent monograph, The Meaning of Military Victory.9 Mandel’s purpose in this book is both to analyse the various ways that victory has historically been understood, and to develop an account of victory that is applicable to the unique challenges posed by contemporary war­ fare. What is most striking about this book for present purposes is that while it includes a chapter on the morality of victory, ethical concerns are largely ancillary to its principal argument. Synonymous with the defeat of the enemy, victory, Mandel explains, is best understood in the rationalist language of cost–benefit ratios and the attainment of war aims.10 Mandel is not, of course, alone in fram­ ing victory in such baldly utilitarian terms. Raymond G. O’Connor, for instance, argues that victory ‘consists not solely of overcoming the enemy forces; it must also include the attainment of the objective for which the conflict was waged’.11 General Tommy Franks similarly equates victory with the defeat of the enemy and ‘the accomplishment of objectives and goals’.12 Finally, Dominic P. Johnson and Dominic Tierney speak of victory in terms of ‘score-keeping’, whereby the winner in any contest is determined by the balance of gains and losses incurred.13 This has in the past given rise to the proclivity to associate victory with, among other things, enemy body-counts.14 The instrumental character of victory is underscored by Mandel’s claim that it can be understood on two levels, the military and the strategic. Victory at the military level is attained, he contends, by ‘overpowering the enemy’s military capacity’ and thereby establishing dominance over it.15 It generally consists of thwarting the enemy in battle or forcing their capitulation. Victory at the strategic level has deeper connotations for Mandel. ‘Well beyond prevailing in combat on the battlefield, strategic victory entails accomplishing the short-term and longterm national, regional, and global goals for which the war was fought.’16 This, Mandel is clear, is likely to comprise inter-related military, political, economic, and diplomatic elements. Once again, Mandel is not alone in presenting victory in this light. Other authors join him in defining victory in a typological manner, though they argue that it is best understood as comprising three rather than two levels. Colin S. Gray differentiates victory along operational, strategic, and pol­it­ ical dimensions, while William Martel refers to the tactical, strategic, and 9  Robert Mandel, The Meaning of Military Victory (Boulder: Lynne Rienner, 2006). 10  Ibid., pp. 5–7. 11  Raymond G. O’Connor, ‘Victory in Modern War’, Journal of Peace Research 6:4 (1969), p. 368. 12 Tommy Franks et al., ‘The Meaning of Victory: A Conversation with Tommy Franks’, The National Interest 86 (2006), p. 8. 13  Dominic P. Johnson and Dominic Tierney, Failing to Win: Perceptions of Victory and Defeat in International Politics (Cambridge, MA: Harvard University Press, 2006), pp. 22–30. 14  As Philip Caputo writes of the Vietnam War, ‘Victory was a high body-count.’ Philip Caputo, A Rumor of War (New York: Henry Holt & Company, 1996), p. xix. Also see: Gregory A. Daddis, ‘The Problem of Metrics: Assessing Progress and Effectiveness in the Vietnam War’, War in History 19:1 (2012): 73–98. 15 Mandel, The Meaning of Military Victory, p. 16. 16 Ibid.

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The Smell of Napalm in the Morning  57 grand-strategic levels of victory.17 These minor differences are, however, incidental to the key point, which is that victory is treated in all of these cases, not as a concept imbued with moral content, but merely as a signifier for prevailing in a contest of might. The reasons for treating victory in this way have been stated by a succession of notable figures associated with the just war tradition. Christian Wolff (1679–1754) argued that victory bears no relation to justice and is properly regarded as a function of the exigencies of conflict: that is to say, of military fortune alone. ‘Victory’, he wrote, ‘is no indication of the justice of a war.’18 Emer de Vattel (1714–67) made the same point but in a more prolix style: ‘War does not decide the question; victory only compels the vanquished to subscribe to the treaty which ter­min­ates the difference . . . Victory usually favours the cause of strength and prudence rather than that of right and justice.’19 Immanuel Kant (1724–1804) put the matter more directly: ‘Nations can press for their rights only by waging war and never in a trial before an independent tribunal, but war and its favourable consequence, victory, cannot determine the right.’20 Hans Kelsen made the same point in the twentieth century: ‘In war not he who is right is victorious, but he who is strongest.’21 This line of thought has over time come to occupy the centre-ground of just war thinking. Writing on the history of the law of nations, Stephen C. Neff associ­ ates the view on victory expressed by Wolff, Vattel, and Kant with the mainline of the just war tradition. He contends that the idea of just war has evolved in such a way as to suppose that ‘if the wicked side happened to prevail in a war, then its victory could represent nothing more than a purely material triumph, a success­ ful exercise of power but not of right’.22 The most recent expression of this view, however, arises in the course of Tamar Meisels’ 2018 book, Contemporary Just War. The relevant passage is worth quoting in its entirety: Wars do not effectively arbitrate between just and unjust parties, even at the collective level, though we do love to believe that they do. We might conceive of wars as extensions of old-fashioned duels, exclaiming ‘May the best man win!’, 17 Colin S. Gray, Defining and Achieving Decisive Victory (Carlisle, PA: Strategic Studies Institute, 2002), p. 11. William  C.  Martel, Victory in War (Cambridge: Cambridge University Press, 2011), pp. 34–9. 18  Quoted in: Joachim von Elbe, ‘The Evolution of the Concept of the Just War’, American Journal of International Law 33:4 (1939), p. 682. 19  Emer de Vattel, The Law of Nations, ed. by Bela Kapossy and Richard Whatmore (Indianapolis: Liberty Fund, 2008), p. 489 [III.III.38]. We will return to Vattel in Chapter 6. 20 Immanuel Kant, ‘To Perpetual Peace: A Philosophical Sketch’, in Perpetual Peace and Other Essays, trans. by Ted Humphrey (Indianapolis: Hackett, 1983), p. 116. 21  Hans Kelsen, Law and Peace in International Relations (Cambridge, MA: Harvard University Press, 1942), p. 47. 22 Stephen  C.  Neff, War and the Law of Nations: A General History (Cambridge: Cambridge University Press, 2005), pp. 66–7.

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58 Victory but even this call crowns the better swordsman or marksman as the winner, and not necessarily the more virtuous. Wars are communal contests of brute force in which ‘God fights on the side with best artillery,’ as Napoleon observed. It is the stronger, not necessarily the worthier or less blame-worthy who ultimately prevails.23

Meisels’ observation that, even today, people still treat the achievement of victory as proof of God’s favour and, by extension, the justness of a war anticipates the next issue we must consider.24 Her purpose, however, is to remind her readers that this approach should have no place in just war thinking because victory in war, properly understood, is a function of might rather than right: that is to say, of military prowess and not the justice of a cause. Victory, on this account, is a topic for strategists and generals to consider, but not just war theorists.

A Moral History of Victory The fact that such an illustrious succession of scholars, from Wolff to Meisels, felt compelled to repudiate the idea that victory is a proof of the justness of a war is intriguing. It suggests that, historically speaking, that idea must actually have enjoyed some degree of favour. This impression is confirmed by an historical analysis of how victory has been understood down the ages, from classical an­tiquity through to the present day.

Classical Antiquity We start with the Greeks, who treated victory not as a function of the exigencies of conflict, but as a gift from the gods. This idea, which can be traced in a variety of Greek texts, is most evident in the writings of Xenophon (430–354 bce).

23  Tamar Meisels, Contemporary Just War: Theory and Practice (Abingdon: Routledge, 2018), p. 34. 24  On the evocation of this association by political and military leaders: William C. Martel, Victory in War: Foundations of Modern Strategy—Revised and Expanded Edition (Cambridge: Cambridge University Press, 2011), p. 179. Two speeches by General Francisco Franco, delivered in 1964 and 1971, are also notable. The first: ‘The God of battles does exist. The intentions and the will of men are always overruled by the will of God who grants victories and triggers defeats. God is not in the habit of abandoning just causes nor those who serve him in good faith. If within this theological framework we attempt to observe the military victories which constitute the pivots of the history of the world, we will easily uncover the indices of the designs of divine will.’ The second: ‘War is more easily waged when one has God for an ally.’ Quoted in: Georges Duby, The Legend of Bouvines: War, Religion and Culture in the Middle Ages, trans. by Catherine Tihanyi (Berkeley: University of California Press, 1990), p. 179. Joseph Stalin can also be cited: ‘Ours is a just cause; victory will be ours.’ J. V. Stalin, ‘On the Great Patriotic War of the Soviet Union—Speech delivered November 6th, 1941’. Available at: https://www.ibiblio.org/hyperwar/UN/USSR/GPW/index.html#page18. Accessed: 24 October 2018.

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The Smell of Napalm in the Morning  59 Xenophon’s texts reflect the widely held belief that it was the gods who determined to whom victory went in any conflict.25 They are peppered with references to the gods swinging battles for their favourites and punishing those who angered them with defeat. For instance, Xenophon reported commanders regularly assur­ ing their troops that it is the ‘help of the gods’ that wins battles.26 He also cited several specific cases where the gods had intervened to shift the course of battle decisively in the favour of one side over another.27 Elsewhere, he depicted the occurrence of thunder and lightning, freak storms, and the sudden appearance of providential tides as indicators that a divine will was at work, ensuring victory went to the army that the gods supported.28 Earlier Greek sources, most notably Homer, had gone so far as to depict the gods actively taking part in human battles, swaying them this way or that, depending on how the mood took them.29 The two gods who featured most prominently in this way were, predictably enough, the war gods, Ares and Athena. If Ares, depicted by Homer as coarse and mindless, stood for the unreconstructed brutishness and violence of war, Athena, who never appeared as anything other than a fiercely intelligent and controlled presence, symbolized the rightly regu­ lated force of arms.30 As such, she embodied the hope that war can be harnessed so that it serves rather than disrupts the ideal of a just order. It is interesting to note, then, that Athena was characteristically portrayed in the company of Nike, the Greek goddess of victory—who, for her part, was seldom represented without Athena by her side.31 I will have more to say about Ares and Athena in Chapter 4. What is important here, however, is the close association between victory and justice in war that the relation between Athena and Nike signifies, such that one apparently assumed the other in the Greek imaginary.32 25  Xenophon is an excellent source on matters such as this because, unlike Plato and Aristotle, he was quite conventional in his moral and religious beliefs, and therefore more reflective of Greek norms. K. J. Dover, Greek Popular Morality: In the Time of Plato and Aristotle (London: Hackett, 1994). On Xenophon and just war: Cian O’Driscoll, ‘Keeping Tradition Alive: Just War and Historical Imagination’, Journal of Global Security Studies 3:2 (2018): 234–47. 26  Xenophon, ‘How to be a Good Cavalry Commander’, in Hiero the Tyrant and Other Treatises, trans. by Robin Waterfield (London: Penguin, 1997), p. 80 [V.14]. Also: Xenophon, The Education of Cyrus, trans. by Wayne Ambler (Ithaca: Cornell University Press, 2013), p. 106 [III.3.34]; and Xenophon, The Persian Expedition, trans. by Rex Warner (London: Penguin, 1972), p. 318 [VII.3]. 27 Xenophon, A History of My Times, trans. by Rex Warner (London: Penguin, 1979), pp. 211–12 [IV.4.11–12]. 28  Ibid., pp. 127 [II.4.13–14]; 346 [VII.1.31]. Also: Xenophon, The Persian Expedition, p. 74 [I.4]. 29  See: Mary Lefkowitz, Greek Gods, Human Lives: What We Can Learn from Myths (New Haven: Yale University Press, 2003), pp. 53–85; Walter F. Otto, The Homeric Gods: The Spiritual Significance of Greek Religion, trans. by Moses Hadas (London: Thames & Hudson, 1954), p. 45; and W. K. C. Guthrie, The Greeks and Their Gods (London: Methuen, 1950), Chapter 4. 30  J. P. Darmon, ‘The Powers of War: Ares and Athena in Greek Mythology’, in Y. Bonnefoy (ed.), Greek and Egyptian Mysteries (Chicago: University of Chicago Press, 1991), p. 14. 31  See: Susan Deacy, Athena (Abingdon: Routledge, 2008), p. 7. 32 On the significance of the gods: Ken Dowden, The Uses of Greek Mythology (New York: Routledge, 1992); also Paul Veyne, Did the Greeks Believe in Their Myths: An Essay on the Constitutive Imagination, trans. by Paula Wissing (Chicago: University of Chicago Press, 1988).

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60 Victory The Romans also held that the gods played a key role in determining the direction of victory in battle. The assumption for the Romans, however, was not that the gods capriciously bestowed victory upon whichever side happened to please them on a given day; it was that they bestowed victory on the side fighting for a just cause. As such, similar to how the experience of defeat indicated that right has not been on one’s side, the achievement of victory amounted to a retro­spect­ive confirmation of the justice of the cause for which one had been fighting.33 It is important to be clear about the precise nature of the connection that the Romans posited between victory and the possession of a just cause. As noted in Chapter 2, the Romans did not regard war as a crucible in which, overseen by the gods, the justice of an army’s cause would be either refuted through defeat or vin­ dicated by victory. Rather, their belief was that the justice of an army’s cause was established prior to the commencement of war through the repetitio rerum ritual conducted by the fetial priests. The purpose of this process was not simply to lobby the gods for their support, it was to demonstrate before them the culpabil­ ity of Rome’s enemies and thereby pre-establish the justice of Rome’s decision to go to war against them. The effect of this was to constitute the wars that Rome waged, not as a means of testing whether Rome’s cause was just, but as a means of enforcing a cause that had already been validated. It was only a small step from here to what scholars have termed the Roman ‘theology of victory’.34 This was the conviction that, if victory in war affirmed the justness of Rome’s cause, it also confirmed the greatness of Rome and the legitimacy of its empire. Military suc­ cess thus came to stand for far more than simply prevailing in battle. It could now be interpreted as justifying Roman conquest.35 More than just a function of mili­ tary might, victory, thus construed, was both a source and proof of right. This way of thinking was prefigured by the fact that the Roman understanding of victory was primed by ethical considerations. For the Romans, a victory had to be won justly for it to qualify properly as a victory at all. Conversely, a victory won by unjust means was tarnished and therefore unworthy of the name. Two sources affirm this. The first is Cicero. To count as a bona fide victory, he wrote, a victory has to generate glory for the winning party, and for this to happen, it has to be won by fair means.36 Glory denotes the social approbation an actor receives for the display of excellence, and is indexed to the acclaim of one’s peers, the admiration of the masses, or the receipt of an award.37 Accordingly, if a putative victory has been won by underhand means, it will earn contempt rather than 33 William  V.  Harris, War and Imperialism in Republican Rome, 327–70 bc (Oxford: Clarendon Press, 1979), p. 170. 34  The key reference is: Rudolph H. Storch, ‘The “Absolutist” Theology of Victory: Its Place in the Late Empire’, Classica et Mediaevalia 29 (1968): 197–206. 35  Von Elbe, ‘The Evolution of the Concept of the Just War’, p. 666. 36  Marcus Tullius Cicero, On Duties, ed. by M. T. Griffin and E. M. Atkins (Cambridge: Cambridge University Press, 1991), p. 26 [I.63]. 37  Ibid., p. 74 [II.31].

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The Smell of Napalm in the Morning  61 acclaim, and so, Cicero claimed, cannot be classified as a meaningful victory. Cicero illustrated this point with the metaphor of a race: an athlete who crosses the line first by virtue of cheating wins only a hollow victory—the kind that is scorned rather than celebrated.38 In much the same way, then, that we today might disregard a victory won by dirty means as false—‘a victory maybe, but empty’—Cicero’s argument was that a true victory had to be won fair and square.39 As the famous French general Ferdinand Foch (1851–1929) would later put it, ‘The decisive victory, the true victory, is bound to be a moral victory.’40 The second source is the set of protocols that governed the award of triumphs.41 To warrant a triumph, a commander had to win a victory in the field. But as Cicero learned to his dismay, not every victory was deemed worthy of a triumph. To merit a triumph, a commander had to win a complete victory, which meant that it had to be of a sufficient magnitude, contribute to the expansion of the Roman Empire, and, most crucially for our purposes, be won in a just fashion.42 The first of these criteria was elaborated by Valerius Maximus, a first-century ce historian, who noted that ‘it was stipulated that nobody could have a triumph unless he had killed 5,000 soldiers in battle’.43 The second criterion stipulated that triumphs would only be granted for victories that extended Rome’s dominion. Triumphs would not be celebrated for defensive wars, or for wars that recovered territories that Rome had previously lost; they were reserved for victories that brought new lands under Roman sway.44 The final requirement was that only a victory won in accordance with the fetial procedures could be awarded a triumph. Victories won in wars that had not been properly authorized or declared would be denied formal recognition, as would wars waged against irregular opponents. As Aullus Gellius put it, only ‘wars that have been declared in due form’ were ­eligible for a triumph.45 The existence of these criteria, as well as the way victory was posited in the writings of Xenophon and Cicero, and in Greek mythology, suggests that victory was approached in classical political thought and practice, not as a category exter­ nal to ethical reasoning. On the contrary, it suggests that victory was approached 38  Ibid., p. 115 [III.42]. 39  The reference is to: Brian van Reet, Spoils (London: Jonathan Cape, 2017), p. 157. 40  Quoted in: Martel, Victory in War, p. 93. 41  For more on triumphs, refer back to Chapter 2. 42  Victories that did not satisfy these criteria were acknowledged with an ovatio, a lesser tribute. See: Aullus Gellius, Attic Nights, trans. John  C.  Rolfe (Cambridge, MA: Harvard University Press, 1927), pp. 396–7 [V.VI]. 43 Valerius Maximus, Memorable Deeds and Sayings: One Thousand Tales from Ancient Rome, trans. by Henry John Walker (Indianapolis: Hackett, 2004), p. 69 [II.8.1]. Aullus Gellius also claimed that triumphs were withheld for victories that were ‘dustless’ or ‘bloodless’ (i.e., easy). Gellius, Attic Nights, pp. 396–7 [V.VI]. 44 Valerius Maximus, Memorable Deeds, p. 71 [II.8.4]. Victories in civil wars were also deemed ­undeserving of triumphs. Cicero described such victories as ‘the worst of all calamities’. Marcus Tullius Cicero, ‘Letter 87’, in Selected Letters, trans. by D. R. Shackleton Bailey (London: Penguin, 1986), p. 167. 45  Aullus Gellius, Attic Nights, p. 396 [V.VI].

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62 Victory by Greeks and Romans alike as an inherently normative category: that is to say, as a category constituted by ethical considerations.

The Crusades As we have already examined Augustine’s writings in some depth in Chapter 1, it makes sense to skip over them here, and instead examine how his ideas were carried forward into medieval political theology. Toward this end, this section will focus on the holy war thought of the middle ages. While holy war thought would later come to be regarded as separate to, and even in tension with, the just war tradition, it also represents an important stage in the development of that trad­ition.46 This is nowhere clearer than in the writings of the founder of the Cistercian order, Bernard of Clairvaux, a man often described as the most influ­ ential churchman of the twelfth century.47 Bernard was born in Fontaines-les-Dijon in France in 1090 and died at Clairvaux in 1153. Despite being raised in a family with military connections, he opted not to become a soldier, but to enter monastic life.48 In 1111 he presented himself, along with thirty companions, to a small monastery in Citeaux. Three years later, he founded his own monastery at Clairvaux. A powerful orator and gifted polemicist, he soon became a figure of formidable influence in the Church, and, beyond it, in the royal courts of Europe. He acted as a mentor to Pope Eugenius III and is usually credited as the intellectual architect of the doomed Second Crusade.49 Bernard also played a leading role in the establishment of the Knights Templar, one of the most powerful monastic orders in Christendom.50 Founded by Hugh of Payns and Godfrey of Saint-Omer in 1119 to provide not just spiritual guidance but also military protection for pilgrims travelling through the Holy Lands, the order would eventually comprise over 7,000 knights, who might be better termed as warrior monks, and boast 870 castles to its name.51 Bernard’s principal 46  The idea of holy war would later be severed from just war, most notably by Francisco de Vitoria, Francisco Suarez, and Hugo Grotius. On the relation between holy war and just war: James Turner Johnson, The Holy War Idea in Western and Islamic Traditions (University Park, PA: Pennsylvania State University Press, 1997), p. 10. 47  Norman Housley, Fighting for the Cross: Crusading to the Holy Land (New Haven: Yale University Press, 2008), p. 8; Thomas Asbridge, The Crusades: The War for the Holy Land (London: Simon & Schuster, 2010), p. 206. 48  He never quite left his military origins behind, however, and would later become famous for, among other things, modelling the monastic vocation upon the ideal of military service. 49  On his life and times: G. R. Evans, The Mind of Saint Bernard of Clairvaux (Oxford: Clarendon, 1983); John G. Rowe, ‘The Origins of the Second Crusade: Pope Eugenius III, Bernard of Clairvaux, and Louis VII of France’, in Michael Gervers (ed.), The Second Crusade and the Cistercians (New York: St Martin’s Press, 1992): 79–90; and James  A.  Brundage, ‘St. Bernard and the Jurists’ in Michael Gervers (ed.), The Second Crusade and the Cistercians (New York: St Martin’s Press, 1992): 25–34. 50  Sharon Newman, The Real History behind the Templars (New York: Berkely Books, 2007), p. 28. 51 Malcolm Barber, The New Knighthood: A History of the Order of the Temple (Cambridge: Cambridge University Press, 1994), p. 1.

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The Smell of Napalm in the Morning  63 contribution was to gain papal support for the order by singing its praises at the Council of Troyes in 1129. The text of that sermon was subsequently published as In Praise of the New Knighthood.52 It introduces the Knights Templar as a new species of knighthood, one that was free of all the problems that Bernard detected in the military companies of the time. Where the standard knight fought for friv­ olous causes and devoted himself to pomp and vanity, the members of the Knights Templar led a more disciplined, ascetic, and ultimately virtuous existence.53 Committed to a truly pious, chaste way of life, Bernard argued, the Knights Templar avoided the snares of earthly ambition, avarice, and carnal desire, and so were better able to serve their fellow Christians and also, ultimately, God.54 They are truly the best of all knights, Bernard said of the Knights Templar, for they are protected not just by swords and shields but by ‘the armour of faith’.55 The distinction Bernard drew between regular knights and the Knights Templar—a distinction he summed up by means of a clever punning contrast between militia and malitia—extended to the question of victory.56 No matter how they fared in battle, a terrible fate awaited regular knights—or ‘knaves’ as Bernard labelled them. Even if they prevailed over an enemy in combat, and thus won a victory of an earthly variety, it would ultimately rebound upon them. Because it was bound up with prideful behaviour, such a victory would be tainted by sin, the wages of which were eternal damnation. ‘What an unhappy victory— to have conquered a man while yielding to vice, and to indulge in an empty glory at his fall when wrath and pride have gotten the better of you’, wrote Bernard. Such conquests amounted to murder, not just warfare, and led in­ex­or­ably to hell.57 ‘This sort of victory I would not call good, since bodily death is really a lesser evil than spiritual death.’58 52  Bernard of Clairvaux, ‘In Praise of the New Knighthood’, in The Works of Bernard of Clairvaux: Volume 7, trans. by Daniel O’Donovan (Kalamazoo: Cistercian Publications, 1977): 125–68. 53  Bernard rhetorically addresses the knights of his day: ‘What then, O knights, is this monstrous error and what this unbearable urge which bids you fight with such pomp and labour, and all to no purpose except death and sin? You cover your horses with silk, and plume your armour with I know not what sort of rags; you paint your shields and saddles; you adorn your bits and spurs with gold and silver and precious stones, and then in all this glory you rush to your ruin with fearful wrath and fear­ less folly. Are these the trappings of a warrior or are they not rather the trinkets of a woman?’ Ibid., p. 132 [I.2]. 54  The concerns Bernard expressed about regular knights were not unusual; in fact, they were prob­ ably quite standard for the time. See: Richard  W.  Kaeuper, Holy Warrior: The Religious Ideology of Chivalry (Philadelphia: University of Pennsylvania Press, 2009), pp. 16–17; Maurice H. Keen, Chivalry (New Haven: Yale University Press, 2005), pp. 224–34. 55  Bernard of Clairvaux, ‘In Praise of the New Knighthood’, p. 130 [I.1]. 56  See: Philippe Contamine, War in the Middle Ages, trans. by Michael Jones (Oxford: Blackwell, 1986), pp. 74–5. Also: Aryeh Gragois, ‘Militia and Malitia: The Bernardine Vision of Chivalry’, in Michael Gervers (ed.), The Second Crusade and the Cistercians (New York: St Martin’s Press, 1992): 49–56. 57  ‘If you happen to be killed while you are seeking only to kill another, you die a murderer. If you succeed, and by your will to overcome and to conquer you perchance kill a man, you live a murderer. Now it will not do to be a murderer, living or dead, victorious or vanquished.’ Bernard of Clairvaux, ‘In Praise of the New Knighthood’, p. 131 [I.1]. 58 Ibid.

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64 Victory The opposite was true for the Knights Templar. Because they fought for God, and with nothing but love for Him in their hearts, they simply could not lose— even, odd though this may sound, if they were ostensibly defeated in battle. Whether they killed their foes, or were themselves killed, eternal salvation would be theirs. Thus, Bernard exhorted them: Go forth confidently then, you knights and repel the foes of the cross with Christ with a stalwart heart. Know that neither death nor love can separate you from the love of God which is in Jesus Christ, and in every peril repeat, ‘Whether we live or whether we die, we are the Lord’s.’ What a glory to return in victory from such a battle! How blessed to die there as a martyr! Rejoice, brave athlete, if you live and conquer in the Lord; but glory and exult even more if you die and join your Lord. Life indeed is a fruitful thing and victory is glorious, but a holy death is more important than either. If they are blessed who die in the Lord, how much more are they who die for the Lord!59

The good knight, the Knight Templar, should not fear death in battle or any other earthly setbacks, Bernard was arguing, because they ultimately did not matter. Instead, earthly defeats should be greeted with joy. As the manifestation of the knight’s faith, they yielded the only victory that mattered, resurrection and the enjoyment of life everlasting in the heavenly city. This way of thinking about knightly service supposed a very particular concep­ tion of war as a form of armed pilgrimage. The soldiers who undertook it were styled as ‘soldiers of Christ’, expected to pin a fabric crucifix to their cloaks and approach their duties as a penitential exercise.60 By scourging themselves in the heat of battle, and therein risking martyrdom, they were both evoking and seek­ ing to participate in the salvific example of Jesus Christ, who had given himself up to die on the cross so that humanity might be rescued from its own sinful nature.61 Viewed against this backdrop, victory does not reduce simply to the outcome of this or that military contest, but is instead more accurately regarded as spiritual redemption. It is a triumph, not of force of arms against a flesh and blood enemy, but of the spirit over sinfulness, and of God’s love over death itself.62

59  Ibid. Italics added. 60  Malcolm Lambert, Crusade and Jihad: Origins, History, Aftermath (London: Profile, 2016), p. 74. 61 Penny  J.  Cole, The Preaching of the Crusades to the Holy Land, 1095–1270 (Cambridge, MA: Medieval Academy of America, 1991), p. 218. E.  O.  Blake, ‘The Formation of the “Crusade” Idea’, Journal of Ecclesiastical History 21:1 (1970), p. 13. Also: Ernst  H.  Kantorowicz, ‘Pro Patria Mori in Medieval Political Thought’, American Historical Review 56:3 (1951): 472–92. 62  Think here of the exhortation issued by a preacher to would-be participants in the First Crusade: ‘Now eternal life is at hand for you, indeed for anyone who might be crowned a martyr in battle! Go forth confidently against these enemies of the living God, and God will allow you to achieve victory!’ Quoted in: Jay Rubsenstein, Armies of Heaven: The First Crusade and the Quest for Apocalypse (New York: Basic Books, 2011), p. 24.

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The Smell of Napalm in the Morning  65

The Late Middle Ages The late Middle Ages witnessed a debate about a very particular approach to thinking about victory in moral terms.63 The judicium Dei, a way of conceptualizing war that equated victory with the judgement of God, originated as a form of ‘ordeal’.64 An ordeal was a means of adjudicating an allegation of wrongdoing by resort to a physical test of some sort. For instance, if a person was accused of committing a crime and had no other way of clearing his or her name, he or she might undertake to prove their innocence by carrying out a feat that they could only accomplish with God’s intervention. Thus, he or she might pledge to carry a hot iron or plunge their hand into boiling water without incurring any burns, or to vanquish their accuser in a duel. In the absence of material proof, success in these ventures was interpreted as God’s endorsement of their innocence.65 Although the ordeal assumed different forms, the principle remained the same: in cases where a defendant could not prove their innocence by regular means, he or she could call God as their witness by resorting to the ordeal.66 As it was believed that God would ‘give victory to him that hath right’, the outcome of the ordeal could be taken as an authoritative ruling on which party to the dispute had justice on its side.67 This article of faith was expressed most clearly by Agobard of Lyon. ‘Is it not true’, he enquired, ‘that the event of national wars and combats is directed by the judge­ ment of God, and that His providence awards victory to the juster cause?’68 A classic example of an ordeal occurred when England’s most lauded knight, and a decorated member of the Knights Templar, William Marshal (1147–1219), offered to prove his innocence by defeating in a duel the men who had accused him of betraying the faith of his lord.69 William had been the victim of snide allegations that he was involved in an adulterous affair with the wife of the young 63 Colin Morris, ‘Judicium Dei: The Social and Political Significance of the Ordeal in the 11th Century’, Studies in Church History 12 (1975), p. 96. 64  Robert Bartlett, Trial by Fire and Water: The Medieval Judicial Ordeal (Brattleboro: Echo Point Books, 2014). 65  W. G. Aitcheson, ‘Trial by Ordeal’, Juridical Review 38 (1926), pp. 78–80. 66  Morris, ‘Judicium Dei’, p. 96. 67  This quote is from a fourteenth-century legal case. Quoted in: M. J. Russell, ‘Trial by Battle and Writ of Right’, Journal of Legal History 111 (1980), p. 111. Resort to the ordeal represented a ‘way of transferring to the Almighty the responsibility for deciding between the two parties to a dispute’, Nigel Saul explains. The Almighty was expected to indicate through the ordeal ‘which of the claimants He believed to have the better right’. Nigel Saul, For Honour and Fame: Chivalry in England 1066–1500 (London: Pimlico, 2011), pp. 186–7. 68  Quoted in: A. Forbes Sieveking, ‘Duelling and Militarism’, Transactions of the Royal Historical Society 11 (1917), pp. 169–70. 69  David Crouch, William Marshal: Knighthood, War, and Chivalry 1147–1219 (London: Longmans, 2002), pp. 47–52. On the high esteem in which William was held: John Gillingham, ‘War and Chivalry in the History of William the Marshal’, in P. R. Coss and S. D. Lloyd (eds.), Thirteenth Century England: Volume II (Suffolk: Boydell Press, 1988), p. 2. Also: Thomas Asbridge, The Greatest Knight: The Remarkable Life of William Marshal, the Power behind Five English Kings (London: Simon & Schuster, 2015).

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66 Victory King Henry, in whose mesnie he served. Lacking any material evidence of his innocence, the only way to clear his name was by calling God to be his witness, which could be achieved by challenging his detractors to a trial by combat. They demurred. This would not be the only occasion in Marshal’s career when he threw down the gauntlet to rivals who had impugned his good name: he did it again in 1205 and 1210 when charges of treason hung over his head, and in 1217 encouraged the men under his command to treat the battles they joined as ordeals.70 The presumption in each of these cases was that the ordeal constituted a form of legal process, the outcome of which amounted to God’s authoritative judgement on the issue in question.71 As such, it functioned to reveal which side in a conflict was in the right, in the eyes of God, and which side was in the wrong. Within this framework, victory signified far more than just a military outcome; it cast light on the deeper, providential question of which side was acting in and for the right.72 The judicium Dei extended the logic of the ordeal into the domain of warfare. Instead of private persons being subjected to horrendous physical tests to ascer­ tain their guilt or innocence, the judicium Dei involved sovereigns testing the justice of their respective causes by pitting their armies against one another in battle. To offer some examples, the Hundred Years War saw several such chal­ lenges issued by sovereigns on both sides of the dispute. David Whetham recounts one memorable episode: In 1340 Edward III sent a challenge to King Philip to meet him in a duel ‘in order to bring our rightful challenge to a quick conclusion’. In order to avoid the unnecessary death of Christians, Edward suggested ‘that the debate of our chal­ lenge be conducted by our two bodies.’ Failing that, Edward suggested the two kings and one hundred of their liegemen should battle each other. If that was unacceptable, then Edward asked Philip to designate a time and place within ten days of the date of his letter where their whole forces could decide the issue.73

Approached as a judicium Dei, war was not regarded as a mechanism by which a side fighting on behalf of a pre-determined just cause enforced justice upon its 70  ‘It was as if ’, David Crouch writes, ‘the very threat of a physical encounter would absolve him of suspicion, a clear act of the body to override the dark and dirty insinuations of wicked and envious minds.’ Crouch, William Marshal, pp. 50; 119–33. Georges Duby, The Legend of Bouvines: War, Religion, and Culture in the Middle Ages, trans. by Catherine Tihanyi (Berkeley: University of California Press, 1990), pp. 113–15. Alternatively, one could cite William the Conqueror’s challenge that he would settle his differences with Harold by ‘ventilating’ them with the sword. Quoted in: George Neilson, Trial by Combat (Glasgow: William Hodge & Company, 1890), p. 29. 71  Morton  W.  Bloomfield, ‘Beowulf, Byrhtnoth, and the Judgment of God: Trials by Combat in Anglo-Saxon England’, Speculum 44:4 (1969), p. 552. 72  Ibid., p. 551; Sieveking, ‘Duelling and Militarism’, pp. 169–70. 73 David Whetham, Just Wars and Moral Victories: Surprise, Deception, and the Normative Framework of European War in the Later Middle Ages (Leiden: Brill, 2009), p. 106.

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The Smell of Napalm in the Morning  67 opponents; rather, it was viewed as a means of discovering on which side justice lay in the first place. War, on this view, was the crucible in which warring so­ci­eties, guided by a divine hand, worked out which side was in the right and which was in the wrong.74 Victory was simply the manifestation of this, and whoever prevailed in combat could reasonably deduce that their side had benefited from divine sup­ port and therefore must have been championing a just cause.75 The judicium Dei was, however, controversial. This is nowhere more apparent than in the writings of two important medieval thinkers who have since come to be closely associated with the just war tradition: Honore Bouvet (c.1340–c.1405) and Christine de Pizan (1364–c.1430).76 Bouvet and Christine articulated similar accounts of just war. Both affirmed that God has ordained that there are causes for which it may be justified to levy war, and that any evils caused by the waging of war are not proof that war itself is inherently evil, only that it has been mis­ used.77 More pertinently, both ruminated extensively on the rights and wrongs of the judicium Dei. Bouvet addressed it at length in Book IV [LII] of his classic work, The Tree of Battles, under the heading, ‘Who are stronger in battle, the just or the sinners?’78 His answer to this question was nuanced. On the one hand, he observed that victory will always naturally go to the side with more military might (rather than justice) on its side. For proof of this, he argued, one need look only to Alexander the Great, who was the most reprehensible sinner and yet con­ quered the whole of the known world. On the other hand, alluding to the parable of David and Goliath, he conjectured that an army that had earned God’s favour on account of its rectitude could fairly expect to gain victory through His grace. Christine was similarly torn. In the first instance, she counselled that any side fighting for a just cause ‘ought to have good hope’ that God will ‘allow the matter to be brought to a good and suitable conclusion’.79 Yet she also qualified this by warning princes fighting for a just cause that, instead of relying on God to win their battles for them, they must bear in mind that He only helps those who help themselves. 74  Sean McGlynn, By Sword and Fire: Cruelty and Atrocity in Medieval Warfare (London: Phoenix, 2009), p. 12. 75 James  Q.  Whitman, The Verdict of Battle: The Law of Victory and the Making of Modern War (Cambridge, MA: Harvard University Press, 2012), pp. 33–4. Also: Sieveking, ‘Duelling and Militarism’, pp. 168–70; and Russell, ‘Trial by Battle and Writ of Right’, p. 127. 76 On their contribution to the tradition: James Turner Johnson, Ideology, Reason, and the Limitation of War: Religious and Secular Concepts 1200–1740 (Princeton: Princeton University Press, 1975), p. 66. For an excellent discussion of Bouvet and Christine that sets them in their historical con­ text: Craig Taylor, Chivalry and the Ideals of Knighthood in France during the Hundred Years War (Cambridge: Cambridge University Press, 2013). 77  Honore Bouvet, ‘The Tree of Battles’, in G. W. Coopland (ed.), The Tree of Battles of Honore Bonet (Liverpool: Liverpool University Press, 1949), p. 125 [IV.I]; Christine de Pizan, The Book of Deeds of Arms and of Chivalry, trans. by Sumner Willard (Philadelphia: Pennsylvania State University Press, 1999), p. 14 [I.II]. 78  Bouvet, ‘The Tree of Battles’, pp. 156–7 [IV.LIII]. 79 Pizan, The Book of Deeds, pp. 163–4 [III.XIII].

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68 Victory Bouvet and Christine worried that the identification of victory with the divine introduced three specific problems.80 The first problem was empirical. If the the­ ory was that the just side was bound to prevail in an ordeal, the historical records told a different story. Several cases could be cited wherein victory evidently went to the unjust side. As Bouvet explained, ‘it has often been experienced that the man who had right on his side has, notwithstanding this, lost the battle’.81 The second problem was theological. The charge in this case was that the ordeal was tantamount to, in Bouvet’s words, ‘tempting God’.82 Christine also spoke to this claim. Insofar as ordeals were waged to lure God into helping men to identify the party with justice on its side, she argued, they tested His will. ‘For we say that ask­ ing for something against nature . . . is presumptuous, and so it is displeasing to God to believe that the weak will vanquish the strong, the old the young, or the ill the healthy, on the strength of having the right . . . such an act is tempting God.’83 The third problem related to the conflation of divine and human judgement. Specifically, it involved the concern that the ordeal verged on lese-majeste. If God’s judgement is properly reserved for the afterlife, Christine argued, it should not be sought in the present one. This, she wrote, ‘is confirmed by the decretal that says that if all sins were punished in this world, God’s judgement would not take place’.84 These problems were serious enough for the practice of waging war as a judicium Dei eventually to be declared unlawful according to the prescripts of divine law, natural law, civil law, and canon law.85 Despite this, it survived in customary law and practice—so much so that scholars like Francisco Suarez, who was writ­ ing over a century after Christine’s death, were obliged to acknowledge it as a part of the legal landscape.86 In fact, the idea that victory denoted not just a military 80  It is interesting to note that the same line of critique is later iterated by Francisco Suarez. Drawing on the writings of Gratian and Cardinal Cajetan, among others, Suarez wrote that a duel waged with­ out a just cause is ‘wicked’ insofar as it risks innocent lives and tempts God. Francisco Suarez, ‘A Work on the Three Theological Virtues: Faith, Hope, and Charity: Disputation XIII: On War’, in Selections from Three Works, ed. by Thomas Pink, trans. by Gwladys  L.  Williams, Ammi Brown, and John Waldron, and rev. by Henry Davis (Indianapolis: Liberty Fund, 2015), pp. 978–9 [IX.I]. There will be more on Suarez and Cajetan in Chapter 4. 81  Bouvet, ‘The Tree of Battles’, p. 117 [III.I]. The example offered by Bouvet involved two brothers from Spoletum who were found guilty via an ordeal of a crime that was later, courtesy of freshly dis­ covered evidence, proven to have been committed by another man. Also see: Pizan, The Book of Deeds, p. 198 [IV.VII]. Defenders of the ordeal, such as Pope Innocent III, responded by hedging that the party found guilty may have been innocent of the specific charge levied, but was presumably guilty of other hidden sins, and it was these that the ordeal detected. Bloomfield, ‘Beowulf ’, p. 553. 82  Bouvet, ‘The Tree of Battles’, p. 117 [III.I]. 83 Pizan, The Book of Deeds, p. 198 [IV.VII]; Bouvet, ‘The Tree of Battles’, pp. 195–6 [IV.CXI]. 84 Pizan, The Book of Deeds, p. 198 [IV.VII]. 85  Bouvet, ‘The Tree of Battles’, pp. 195–6 [IV.CXI]. 86  The ordeal lingered on in vestigial form in some legal systems until the nineteenth century. Robertson, ‘Trial by Combat’, p. 84. Bouvet and Christine both acknowledged its endurance: ‘Although wagers of battle is reproved by law, custom and usage tolerates it in certain conditions.’ Bouvet, ‘The Tree of Battles’, pp. 196–8 [IV.CXII]; Pizan, The Book of Deeds, pp. 199–203 [IV.VIII–IX]. On Suarez, see fn. 80.

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The Smell of Napalm in the Morning  69 outcome or the function of superior might, but a divine endorsement of the justness of the cause for which that victory had been won, is still occasionally evoked today. It resonates, for example, in the modern tendency to speak about the ‘verdict of the battlefield’, and in the enduring habit of depicting wars as—to recall a phrase from Tamar Meisels that was quoted earlier—‘extensions of oldfashioned duels’. It has also occasionally been evoked by military and political leaders, and it forms a key refrain in the US national anthem: ‘Then conquer we must, When our cause it is just / And this be our motto: “In God is our trust.” ’87

The Present Day It is tempting to assume that these ideas do not carry any serious weight today and have instead become little more than a rhetorical device that political and military leaders are wont to lean on when rallying their constituencies for an upcoming fight. There is something to this. Yet it also overlooks the extent to which just war scholars still habitually (if also largely unreflectively) intimate an association between victory and the justice of war. Proof of this is the assumption that underpins so much of the contemporary literature on jus post bellum: namely, that the victors of a just war will be the party with justice on its side.88 So far as jus post bellum scholars seek to parse the moral responsibilities that accrue to the victors in a just war, they tend to presume that the victors were, so to speak, the good guys. One of the scholars who have made this assumption explicit is Michael Walzer, whom I will introduce in Chapter 7. For now, I merely want to note the prefatory remarks he attached to a 2012 essay on jus post bellum: ‘I am going to assume the victory of the just warriors and ask what their responsibilities are after victory.’89 These remarks can be interpreted as simply establishing the focus and scope of the essay in question. They do, however, correspond with Walzer’s conviction that the best way of winning a just war is by waging it justly. Walzer elaborated this position in a 2013 essay devoted to refuting the charge that armies that adhere to the rules of war are unlikely to win.90 There he argues that a loosely framed har­ mony of interests ensures that waging a just war justly is conducive to victory.91 87  Quoted in: Martel, Victory in War, p. 179. 88  On this: Mona Fixdal, Just Peace: How Wars Should End (New York: Palgrave Macmillan, 2012), p. 17. 89  Michael Walzer, ‘The Aftermath of War: Reflections on Jus Post Bellum’, in Eric Patterson (ed.), Ethics beyond War’s End (Washington DC: Georgetown University Press, 2012), p. 37. 90  As Walzer puts it: ‘I am arguing only against the claim that fighting justly puts victory out of reach . . . [that] the good guys cannot win without acting like the bad guys.’ Michael Walzer, ‘Coda: Can the Good Guys Win?’, European Journal of International Law 24:1 (2013), pp. 441; 433. 91  ‘If we understand the morality of war rightly, and if we persuade other people to understand it rightly, the claim that it is not possible to win within the rules will fail. The rules will accommodate what the soldiers or insurgents (really) have to do: the restraints they must accept will not close off all paths to

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70 Victory To borrow Walzer’s casual way of putting it, the good guys, by virtue of acting like good guys, are more rather than less likely to win their wars. The point to draw from this is that there is a venerable but also extant habit of treating victory as somehow indexed to right as well as might.

Conclusion There is a famous scene in Francis Ford Coppola’s Apocalypse Now which involves Colonel Bill Kilgore, who is played by Robert Duval, addressing his troops: ‘I love the smell of napalm in the morning. It smells like—victory.’ This evokes the con­ cern tackled in this chapter: as victory is a function of how armed forces fight, and not of the justice of the causes for which they fight, it is no business of just war theorists. What this chapter has demonstrated, however, is that this is a pecu­ liarly modern way of thinking about victory. The norm, historically speaking, has been to view victory as concomitant with justice and divine favour. Indeed, while different historical societies perceived the mutuality between victory and being in the right in quite different ways, they nevertheless shared a common belief in that mutuality. From classical Greece to the late Middle Ages, with echoes still evident today, victory was treated as a retrospective proof of just cause and perhaps also, by inference, of heavenly support. The problem, of course, is the association that is thereby planted in our minds between justness and victory in war. An expectation is fostered that, not only will there be an identifiable difference between the armies fighting for and against just­ice—that is, between the good guys and the bad guys—but also the former will ultimately always win. We may regard this as naïve complacency, or as a resi­ due of the Socratic belief that the just always prosper. It does not take a genius, however, to perceive a dangerous idealism in this tendency. It encourages a very black-and-white approach to the question of justice in war that tempts self-­ righteousness, demonization of the enemy, escalation, and the practice of victor’s just­ice. We will return to some of these themes in later chapters. The point to stress presently is that, far from having no relation to victory, conceived merely as a material outcome, closer inspection reveals that the idea of just war has his­tor­ic­ al­ly been quite closely bound up with the belief that the good guys always win. To invoke the idea of just war is, it follows, also to evoke these historical associations. This is a tinderbox that must be handled with great care. victory; and if they fight well, they will find support and reinforcement in the court of public opinion— which is, these days, an important part of what it means to “win”. ’ Walzer, ‘Can the Good Guys Win?’, p. 435. Also: Gabriella Blum, ‘The Fog of Victory’, European Journal of International Law 24:1 (2013), p. 414. Blum writes: ‘When a war is waged for the “hearts and minds” of the local population, the moderation counselled by the classical just war theory for purposes of restoring peaceful relations is now, more than ever before, not only an ethical prescription but a matter of self-serving strategy.’

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4

The Usual Definition of Just Wars The usual definition of just wars is that they are those which avenge injuries in cases where a nation or a city is to be scourged for having failed to punish the wrongdoing of its own citizens or restore property which has been unjustly stolen. Francisco de Vitoria1

Introduction The fourth problem that victory is perceived as posing by just war theorists bears on the modality of just war. There is a school of thought which supposes that victory does not fit easily within the just war rubric because, despite what its name suggests, just war is not actually a form of warfare at all. Adherents to this school submit that just war is not so much a military contest between rival sovereigns, each vying to advance its own interests through combat, as an extension into the international sphere of the punitive function that the judiciary discharges in the domestic realm. Just war, on this account, is best understood, not as a form of war, but as a type of punitive action, wherein one sovereign, acting as an agent of the legal order, employs penal force against communities that have committed serious wrongs against either their own people or other communities. This conception of just war prescinds from any consideration of victory: in the same way a judge does not win when she sends a criminal to the gallows, nobody wins a just war. This chapter will draw upon David Rodin’s modern classic, War and SelfDefence, and the scholastic texts of Thomas Aquinas, Francisco de Vitoria, and Francisco Suarez to investigate this way of thinking about just war. It will conclude that it discloses a problematic tendency at the heart of just war thinking to sanitize war.

1  Francisco de Vitoria, ‘On the Laws of War’, in Vitoria: Political Writings, ed. by Anthony Pagden and Jeremy Lawrance (Cambridge: Cambridge University Press, 1991), p. 298 [1.1.§1]. Thanks to Craig Smith for bringing this issue to my attention.

Victory: The Triumph and Tragedy of Just War. Cian O’Driscoll, Oxford University Press (2020). © Cian O’Driscoll. DOI: 10.1093/oso/9780198832911.001.0001

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72 Victory

Punitive Measures The idea that just war is a punitive enterprise has attracted support from a wide cross-section of scholars. Writing in the aftermath of the First World War, Cornelius von Vollenhoven equated the legitimate recourse to war with the vocation of law enforcement. As he described it, war was always an act of ­criminality on one side and an act of justified punishment on the other.2 A generation later, Hans Kelsen argued that the resort to war must in every case be either a delict or a sanction: that is, a crime or an act of punishment.3 This framing became sufficiently commonplace that, by the late twentieth century, International Relations scholars could casually refer to the ‘judicial theory’ of war, by which they meant the conviction that the use of force must always comprise, on the one side, an infringement of the law and, on the other, an act of law enforcement.4 As one such scholar, Michael Donelan, put it, ‘In this tradition, when going to war we are being judges . . . War is a judicial act, similarly directed to judging and punishing criminals. . . . In going to war we are, or ought to be, making just war. By this is meant acting as judges.’5 More recently, Simon Chesterman has described just war as ‘the quasi-judicial police measure of war against the other’.6 Moreover, this way of talking about just war is not unique to scholars. It also finds its way into the discourse of political and military leaders. Proponents of the 2003 invasion of Iraq, including President George  W.  Bush and Prime Minister Tony Blair, justified it as, among other things, a righteous act of punitive law enforcement.7 Focusing our analysis more tightly, three prominent contemporary just war theorists have also written at length about, and indeed endorsed, this way of thinking about just war. Jean Bethke Elshtain, Oliver O’Donovan, and Nigel Biggar share the belief that the idea of just war as it has been passed down the ages carries at its core a punitive logic.

2  Cornelius von Vollenhoven, The Three Stages in the Evolution of the Law of Nations (The Hague: Martinus Nijhoff, 1919), p. 65. 3  Hans Kelsen, Law and Peace in International Relations (Cambridge, MA: Harvard University Press, 1942), p. 35. 4  Hedley Bull, ‘The Grotian Conception of International Society’, in Herbert Butterfield and Martin Wight (eds.), Diplomatic Investigations: Essays in the Theory of International Politics (London: George Allen & Unwin, 1966), pp. 57; 69. One scholar referred to the judicial theory as the ‘cops and robbers’ model of war. Inis L. Claude, Jr., ‘Just Wars: Doctrines and Institutions’, Political Science Quarterly 95:1 (1980), p. 92. 5  Michael Donelan, ‘Grotius and the Image of War’, Millennium: Journal of International Studies 12:3 (1983), p. 233. 6  Simon Chesterman, Just War or Just Peace: Humanitarian Intervention and International Law (Oxford: Oxford University Press, 2001), p. 10. 7 See: Cian O’Driscoll, ‘Renegotiating the Just War: The Invasion of Iraq and Punitive War’, Cambridge Review of International Affairs 19:3 (2006): 405–20.

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The Usual Definition of Just Wars  73 Jean Bethke Elshtain (1941–2013) was one of the foremost but also most c­ ontroversial just war theorists of the latter half of the twentieth century.8 Raised in a Lutheran family in the US, Elshtain pursued a PhD in Political Theory before developing an academic career that spanned the disciplines of Theology, International Relations, and indeed Political Theory. Although it is arguably not her most important work, Elshtain’s most widely debated contribution to the just war canon is her 2003 text, Just War Against Terror.9 Many of Elshtain’s peers in the academy were critical of the support it articulated for what they saw as American militarism, with some branding her an apologist for the War on Terror.10 At the heart of this book lay a muscular account of just war that was both too permissive vis-à-vis the recourse to force and too reliant on the motif of punishment for the comfort of many contemporary just war theorists. This robustness of spirit is nicely captured in her use of The Man Who Shot Liberty Valance, the classic John Ford western, as an allegory for just war: according to Elshtain, this movie illuminates the core insight of the just war tradition, which is that war should sometimes be waged in order to punish wrongdoers, uphold the rules of decent society, enforce justice, and protect the innocent.11 As she put it, ‘the basic point’ of just war ‘is a presumptive case in favour of the use of armed force by a powerful state or alliance of states who have the means to intervene, to interdict, and to punish on behalf of those under assault’.12 Thus, ‘the basic presupposition of just war thinking is that war can sometimes be an instrument of justice . . . by using force to stop wrongdoing and to punish wrongdoers’.13 O’Donovan, who is an Anglican bishop, was Professor of Christian Ethics and Practical Theology at the University of Edinburgh from 2006 to 13 and, before this, the Regius Professor of Moral and Pastoral Theology at Oxford. O’Donovan endorsed the punitive view of just war in his own 2003 book, The Just War Revisited.14 He argues in this book that the term ‘just war’ should be understood, not as a synonym for defensive war, but as denoting ‘a praxis of judgement’.15 Thus

8  Nicholas Rengger, ‘Jean Bethke Elshtain’, in Daniel R. Brunstetter and Cian O’Driscoll (eds.), Just War Thinkers: From Cicero to the 21st Century (Abingdon: Routledge, 2018): 216–26. 9  Jean Bethke Elshtain, Just War Against Terror: The Burden of American Power in a Violent World (New York: Basic Books, 2003). 10  Three essays from the time offer a good sense of the controversy that the appearance of Just War Against Terror provoked: Nicholas Rengger, ‘Just a War against Terror? Jean Bethke Elshtain’s Burden and American Power’, International Affairs 80:1 (2004): 107–16; Anthony Burke, ‘Just War or Ethical Peace? Moral Discourses of Strategic Violence after 9/11’, International Affairs 80:2 (2004): 329–53; and Cian O’Driscoll, ‘Jean Elshtain’s Just War Against Terror: A Tale of Two Cities’, International Relations 21:4 (2007): 485–92. 11 Elshtain, Just War Against Terror, p. 55. 12 This quote is from a companion-essay to Just War Against Terror. Jean Bethke Elshtain, ‘International Justice as Equal Regard and the Use of Force’, Ethics & International Affairs 17:2 (2003), p. 67. Italics added. 13 Elshtain, Just War Against Terror, pp. 50; 52. Italics added. 14  Oliver O’Donovan, The Just War Revisited (Oxford: Oxford University Press, 2003). 15  Ibid., p. 8.

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74 Victory construed, just war assumes the character of a penal action undertaken to ­vindicate the moral and legal order in cases where it has been violated by the wrong­doing of another party. This way of thinking presents just war as a form or mode of law enforcement. O’Donovan’s decision to refer to just war as ‘the judicial proposal’ emphasizes this connection, as does his observation that the ‘authority to make war is at root a judicial authority’.16 The reasoning behind O’Donovan’s position is straightforward. He supposes that communities may justifiably go to war against other communities for the same reason they are entitled to enact violence against their own citizens: namely, to prevent them from doing wrong and to punish them when they have done so. Just war, on this view, represents an extension into the international sphere of the idea that states are imbued with a form of judicial authority that entitles them to use violence to enforce the law against external malefactors.17 Biggar, who is also an Anglican bishop, succeeded O’Donovan as the Regius Chair at Oxford in 2007—a post he still holds today. Biggar devotes considerable attention to the proposal that just war is a punitive response to wrongdoing in his 2013 book, In Defence of War. There he argues that ‘the idea that war is basically a form of punishment was present right at the beginning of Christian thinking about the justified use of force, and it remained influential thereafter’.18 Biggar substantiates this claim by reference to the canonical texts of the just war trad­ ition. He then uses this material as a platform to propose that punishment is the master-code for just war, or, put differently, the sign under which just war must be understood. Just war is a hostile response to injustice directed against the agents who cause it. Within this basic, punitive form, however, a variety of ends are sought: to fend off and stop the injustice, to vindicate actual victims and reassure potential ones, to deter other potential wrongdoers, and to bring home to these wrong­ doers the significance of what they have done for the sake of their own moral and spiritual health. The punitive response is a means to all of these ends— defensive, vindicative, deterrent, and reformative—and so long as the means are proportionate to the ends, the wrongdoers deserve whatever harms they impose.19

16  Ibid., pp. 8; 25. He also remarks that the role of the soldier and the judge are ‘analogous’. Ibid, p. 1. 17  He notes an ‘analogy between ordinary acts of judgement internal to government and a praxis of judgement that used the means of armed conflict to reach beyond the . . . sphere of the autonomous political society to deal with crimes committed by nations against each other.’ Ibid., p. 18. The ‘central proposal’ of just war is that ‘armed conflict is to be reconceived as an extraordinary extension of or­din­ary acts of judgement’. Ibid., p. 14. ‘Judgement in war . . . held out the promise of extending the ordinary means and widening the scope of ordinary judgement to encompass international disputes.’ Ibid, p. 18. 18  Nigel Biggar, In Defence of War (Oxford: Oxford University Press, 2013) , p. 161. 19  Ibid., p. 167.

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The Usual Definition of Just Wars  75 Going beyond this, Biggar contends that not only is just war a punitive endeavour, it is also an inherently retributive one. Retribution, as he defines it, is not a specific type of punishment; rather, reflecting the axiomatic belief that acts of injustice should be met with a ‘hostile corrective response’, it is what lends punishment its essential character.20 ‘Retribution’, he writes, ‘is not a specific mode of punishment alongside others, but rather the basic form of its several modes. Therefore, whenever war is punitive, it must also be retributive.’21

Parents, Prosecutors, Policemen The works of Elshtain, O’Donovan, and Biggar offer us a glimpse into how the idea of just war as a punitive practice is evoked by religiously inclined just war theorists. David Rodin, a moral philosopher who has taught in, among other places, Oxford and Florence, presents us with a different perspective. His major work, War and Self-Defence, is one of the key texts within the revisionist school of just war theory.22 I will return to revisionism in Chapter 7. I want in the meantime to focus on what Rodin has to say about the idea that just war is a punitive practice. Rodin’s views on this issue are complex but also revealing. His engagement with it arises on the back of his realization that just war, which he associates with the cause of nationaldefence, cannot be coherently accounted for as a defensive practice.23 Using this discovery as a pivot, he asks whether just war can instead be grounded in ‘an account of law enforcement and punishment’.24 He addresses this question by elucidating three different accounts of how the authority to wage just war might be grounded in a concept of punishment. His analysis, then, furnishes us with a way of both unpacking and, as we shall see in the section that follows, interrogating what is entailed by treating just war as a punitive practice.

Parents The first way of grounding just war in punishment identified by Rodin is what he calls ‘the parent model’.25 He grants it this name because it characterizes the right to wage just war in terms analogous to ‘the rights of punishment possessed by 20  Ibid., p. 170. 21 Ibid. 22  David Rodin, War and Self-Defence (Oxford: Oxford University Press, 2002). 23  That is to say, it is not amenable to being grounded in a ‘theory of defensive rights, as such.’ Ibid., pp. 175–6. The relation between just war and national-defence is introduced on pp. 2–3 and 108–9 of the same text. 24  ‘We must, therefore, take seriously the possibility that the justice of defensive wars is grounded not in a theory of defensive rights, as such, but in an account of law enforcement and punishment.’ Ibid., pp. 175–6. 25  Ibid., p. 177.

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76 Victory parents over their children’.26 Formulated in these terms, just war is equated with the exercise of tough love wherein parents takes stern action against their c­ hildren when they misbehave. The purpose of such action is to not to hurt the children for its own sake, but to discipline them, and thereby ward them away from further wrongdoing and back toward the path of righteousness. If sparing the rod is believed to risk spoiling the child, the judicious use of it promises to keep them on the straight and narrow. Just war, it is posited, serves a parallel purpose. It provides an instrument by which societies can check acts of wrongdoing in international society and discipline the parties responsible for them. As such, it serves as a means of both correcting the wrongdoer and restoring the sanctity of the moral and legal order that their act of malfeasance had violated. The example of the 2003 Iraq War is once against instructive. In addition to citing humanitarian and defensive justifications for the use of force, members of the Coalition framed the war as a punitive response to Iraq’s contravention of its responsibilities under international law. The aim of this activity, according to spokespersons for the Coalition, was both to reaffirm the writ of international law and to return Iraq to compliance with it.27 The key features of the parent model are set out by Rodin. He notes that the authority of parents to punish their children does not derive from the children’s consent to be punished or from any kind of formal contractual relationship. Rather, this authority stems from three aspects of the filial relationship: (a) the fact that parents are naturally superior to children in knowledge, wisdom, experience, and power; (b) the fact that parents presumably have a natural attitude of love and care towards their children; and (c) the fact that parents and their children are bound by reciprocal duties: obedience on the part of the children, care and protection on the part of the parents.28 Wielded within the framework, punishment is not so much about ensuring that justice is served as it is about ad­van­ cing the ‘overall welfare and development’ of the children who are its intended recipients.29 The touchstone for extending this line of reasoning to just war is Saint Augustine. Augustine’s connection to the parental model of punishment is sufficiently pronounced that some scholars have labelled it ‘the Augustine formula’.30 Their principal point of reference is the definition of just war Augustine formulated in Questions on the Heptateuch: ‘As a rule just wars are defined as those which avenge injuries, if some nation or state against whom one is waging war has neglected to punish a wrong committed by its citizens, or to return something that

26  Ibid., p. 178. 27  Cian O’Driscoll, Renegotiation of the Just War Tradition and the Right to War in the Twenty-First Century (New York: Palgrave, 2008), pp. 54–7. 28 Rodin, War and Self-Defence, p. 178. 29  Ibid., pp. 178–9. 30  David Luban, ‘War as Punishment’, Philosophy & Public Affairs 39:4 (2012), pp. 307–12.

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The Usual Definition of Just Wars  77 was wrongly taken.’31 Elsewhere, Augustine argued that it is precisely so that such things as ‘the desire for harming, the cruelty of revenge, the restless and implacable mind, the savageness of revolting, [and] the lust for dominating’ might be ‘justly punished’ that just wars must sometimes be waged.32 In both cases just war is cast as a punitive instrument that princes may avail of in order to maintain a basic level of order in the saeculum. It is, however, Augustine’s account of how a just war might achieve that end that is of most interest here. If the wa­ging of a just war provided the prince with a means by which to keep lawlessness in check, Augustine hoped that it would achieve this end by compelling wrongdoers to cease their wicked ways and behave better. There is, as one scholar has noted, a ‘strong paternal tendency’ at work here.33 So far as just war is a punitive act, its ultimate purpose is to save wrongdoers by teaching them the error of their ways. In much the same way, then, that parents do not punish their children to be cruel, but with the benign intention of guiding them away from a life of vice and toward one of virtue, just war should be treated as an exercise in benevolent severity designed to discipline wrongdoers and thus return them to rightful conduct.34

Prosecutors The second way of grounding just war in punishment identified by Rodin is ‘the contract model’.35 It supposes that the authority to inflict punishment derives not from a duty of filial care but from the fairness of the process that generated said authority. Rodin explains it in simple terms. If one actor seeks redress by force against a rival it has accused of wronging it, we are ‘disinclined to call this punishment’ because, as an interested party, the first actor does not possess the authority to punish.36 Suppose, however, that the disputants were in a position to refer their quarrel to a neutral third party whose judgement they were happy to accept as binding; this third party would, most people will agree, possess the requisite authority to settle the dispute and administer any punishment due. This, Rodin argues, suggests ‘a model of authority with two constitutive elements, two elem­ ents by which a person may be raised from the private sphere to become

31  Augustine, ‘Questions on the Heptateuch [VI.10]’, in Gregory M. Reichberg, Henrik Syse, and Endre Begby (eds.), The Ethics of War: Classic and Contemporary Readings (Oxford: Blackwell, 2006), p. 82. Italics added. 32  Augustine, ‘Against Faustus the Manichean [XXII.74]’, in Gregory  M.  Reichberg, Henrik Syse, and Endre Begby (eds.), The Ethics of War: Classic and Contemporary Readings (Oxford: Blackwell, 2006), p. 73. 33  John Langan, ‘The Elements of St. Augustine’s Just War Theory’, Journal of Religious Ethics 12:1 (1984), p. 25. 34  Augustine, ‘Letter 138: To Marcellinus’, in Augustine: Political Writings, ed. by E. M. Atkins and R. J. Dodaro (Cambridge: Cambridge University Press, 2001), p. 38. 35 Rodin, War and Self-Defence, p. 177. 36 Ibid.

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78 Victory competent to administer justice and dispense punishment; namely, impartiality and consensual submission’.37 Rodin explains both of these requirements. The impartiality requirement stems from the nature of justice itself. Those who administer justice must be neutral: that is, they must not have a vested interest in the case they are deciding. Bias is thus precluded. It is for this reason that it is regarded as unjust for a party to a dispute to act as judge in his or her own case. Indeed, Rodin suggests, a party’s involvement in a dispute negates its claims to be acting as a judge. As he puts it, ‘their involvement in the dispute alters the character of their action, giving it the quality of revenge or reprisals rather than punishment’.38 The requirement of impartiality, he concludes, is therefore ‘in­tern­al to the idea of punishment itself ’.39 It follows, then, that, unless it is satisfied, acts of force that might otherwise be characterized as punitive should not actually be counted as punishment at all.40 The requirement of consent is linked to the requirement of impartiality. It reflects the belief that, in order for a punishment to be seen as legitimate, the people who are subject to it must acknowledge the validity of the rules that constitute it.41 When we agree to abide by the rules of the community in which we live, we also, therefore, accept the right of the community to punish us if we violate those same rules. It is not, it follows, an option for any of us to accept the benefits that come from living in a particular community and yet reject the authority of its courts to punish us when we break its laws.42 However, if the case should arise that a person or group starts ‘to withdraw their consent from a system of laws because they believe, on reasonable grounds, that an administrator of justice or the system of rules as a whole is partisan, then those judgements cease to be punishment and become a simple mechanism of domination’.43 In such cases, Rodin concludes, ‘there is an important sense in which such people are not being punished, they are being fought against’.44 Bringing all of this together, the contract model provides us with a second way—one that emphasizes the value of impartiality and consent—of distinguishing punishment from other forms of force. The way of conceptualizing just war as punishment stipulated by the contract model has deep roots in the just war tradition. Its lineage can be traced to the Neo-Scholastic tradition of just war scholarship which took as its locus the writings of Thomas Aquinas.45 Aquinas was born near Naples in 1225. After an expensive education, he dismayed his family by opting to join the Dominicans, a recently 37 Ibid. 38 Ibid. 39  Ibid., p. 178. 40 Ibid. 41 Ibid. 42 Ibid. 43 Ibid. 44 Ibid. 45  The period in which Neo-Scholastic thought came to the fore has been described by Daniel Schwartz as ‘possibly the most fecund and philosophically interesting phase in the just war tradition’s development’. Daniel Schwartz, ‘Late Scholastic Just War Theory’, in Seth Lazar and Helen Frowe (eds.), The Oxford Handbook of Ethics of War (Oxford: Oxford University Press, 2016), p. 2. For more on the Neo-Scholastic tradition: Bernice Hamilton, Political Thought in 16th Century Spain: A Study of the Political Ideas of Vitoria, de Soto, Suarez, and Molina (Oxford: Clarendon Press, 1963).

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The Usual Definition of Just Wars  79 founded mendicant order of dubious social standing.46 Perhaps his f­ amily should not have worried so much, for he went on to a controversial but also highly successful career as a churchman and professor. His impact on western thought was profound.47 Aquinas presented his views on just war in a pithy passage [IIaIIae40] buried deep in his Summa Theologiae.48 Building explicitly on Augustine’s legacy, Aquinas claimed that for a war to be justified, three jus ad bellum requirements—proper authority, just cause, and right intention—must be satisfied. While right intention enjoined that a prince should only wage war with the aim to either ‘promote a good cause or avert an evil’, Aquinas’s treatment of proper authority and just cause advanced a close connection between just war and punishment.49 It achieved this by casting the former as an extension of the latter into the sphere of intercommunal relations.50 Proper authority, as defined by Aquinas, stipulated that only the prince was en­titled to levy war. As there existed no tribunal above him to which he could refer disputes with other princes, the only means available to him for prosecuting his rights, and indeed those of his community, was through armed force, Aquinas explained the basis of this licence to war by analogy to punishment. ‘And just as it is lawful for [princes] to use the material sword in defence of the commonwealth against those who trouble it from within, when they punish evildoers,’ he wrote, ‘so too it pertains to them to use the sword of war to protect the commonwealth against enemies from without.’51 The requirement of just cause, which Aquinas explained next, extended this reasoning. Drawing on Augustine’s definition of just war as a war waged to avenge injuries, Aquinas argued that the requirement of just cause stipulated that ‘those against whom war is to be waged must deserve to have war waged against them because of some wrong-doing’.52 Aquinas was followed by another Dominican, Thomas de Vio, better known as Cardinal Cajetan. Born in Italy in 1468, Cajetan made his name as a commentator on Aquinas’s Summa Theologiae.53 Cajetan died in 1534 but his writings would

46  The story behind this is quite bizarre: it involves the kidnapping of Aquinas by his own family and his chaste refusal of a prostitute commissioned by his brothers to tempt him into abandoning his commitment to the Dominican order. Denys Turner, Thomas Aquinas: A Portrait (New Haven: Yale University Press, 2013). 47 On his contribution to western political thought: R.  W.  Dyson, Natural Law and Political Realism: The History of Political Thought, Volume I (New York: Peter Lang, 2005), pp. 209–40. Also: Fergus Kerr, Thomas Aquinas: A Very Short Introduction (Oxford: Oxford University Press, 2009). 48  Thomas Aquinas, ‘Summa Theologiae IIaIIae 40: On War’, in R. W. Dyson (ed.), Thomas Aquinas: Political Writings (Cambridge: Cambridge University Press, 2002) , pp. 240–1. 49  Ibid., p. 241. 50 Stephen  C.  Neff, War and the Law of Nations: A General History (Cambridge: Cambridge University Press, 2005), p. 47. Also: Stephen C. Neff, Justice Among Nations: A History of International Law (Cambridge, MA: Harvard University Press, 2014), p. 70. 51  Aquinas, ‘Summa Theologiae IIaIIae 40’, p. 240. 52  Ibid., pp. 240–1. 53 Gregory  M.  Reichberg, ‘Culpability and Punishment in Classical Theories of Just War’, in Anthony F. Lang, Jr., Cian O’Driscoll, and John Williams (eds.), Just War: Authority, Tradition, and Practice (Washington DC: Georgetown University Press, 2013), p. 166.

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80 Victory play a pivotal role in the development of the just war tradition. He sought to follow in Aquinas’s footsteps by defining just war in terms of ‘desert’ and treating it as a penal response to a culpable act of wrongdoing. Cast in these terms, the purpose of just war was to bring the weight of the law down on those who had wilfully violated it. The community that was the target of a penal action could have no grounds for complaint because it had, by its own misdeeds, rendered itself li­able to such measures. By the same token, the actions of the community inflicting the punishment were justified as a legitimate form of redress for wrongs done to it in the past. Where a community had suffered unjust harm, Cajetan explained, it was entitled ‘to exact revenge for injuries . . . not only against its subjects, but also against foreigners’.54 In this way, Cajetan defined just war as a punitive response to a prior act of culpable wrongdoing. Viewed in this light, it was, Cajetan elab­­ orated, congruent with a criminal trial. As Cajetan formulated it: ‘The prosecutor of the just war functions as a judge of criminal proceedings.’55 By framing just war as a ‘judicial proceeding’ that dispenses punishment to wrongdoers, and likening the role of the party who wages a just war to an amalgam of prosecutor, judge, and executioner, Cajetan set the terms for what we, following Rodin, call the contract model of just war as punishment.56 The influence of Aquinas and Cajetan is discernible in the writings of Francisco de Vitoria. Born in Burgos in the fifteenth century, Vitoria, who was a Dominican and a professor at the University of Salamanca, rose to prominence on the back of the role he played in challenging the cruel practices of the Spanish crown in the Americas.57 By the time he died in 1546 he had established himself as one of the most distinguished figures of the sixteenth century.58 His contribution to just war thinking was immense. As Alex Bellamy has written, Vitoria’s writings not only tackled both the idea and practice of just war, they also ‘captured the main elem­ ents of the tradition as it had developed thus far and laid the foundations for its future development and continuing relevance in a secular age’.59 Most saliently, Vitoria endorsed the association Cajetan drew between just war and penal 54  Cajetan’s Commentary on ‘Summa Theologiae IIaIIae 40: On War’ is excerpted in: Cajetan, ‘War and Vindicative Justice’, in Gregory M. Reichberg, Henrik Syse, and Endre Begby (eds.), Ethics of War: Classic and Contemporary Readings (Oxford: Blackwell, 2006), p. 242. Italics added. 55  Excerpt from the Summula quoted in: Cajetan, ‘War and Vindicative Justice’, p. 247. Italics added. 56  Luban, ‘War as Punishment’, pp. 309–10. 57  Some sources say he was born in 1485, others 1492. On Vitoria’s debt to Aquinas, one author has remarked that Vitoria ‘consecrated’ himself to Aquinas. James Brown Scott, The Spanish Origins of International Law: Francisco de Victoria and his Law of Nations (Oxford: Clarendon Press, 1934), p. 68. Michael Walzer describes the challenge Vitoria mounted to the Spanish crown as an ‘heroic moment’. Michael Walzer, ‘The Triumph of Just War Theory (and the Danger of Success)’, in Arguing About War (New Haven: Yale University Press, 2004), p. 4. For further context: J. A. Fernandez-Santamaria, The State, War and Peace: Spanish Political Thought in the Renaissance, 1516–59 (Cambridge: Cambridge University Press, 1977). 58  Arthur Nussbaum, A Concise History of the Law of Nations (New York: Macmillan, 1947), p. 59. 59  Alex J. Bellamy, ‘Francisco de Vitoria’, in Daniel R. Brunstetter and Cian O’Driscoll (eds.), Just War Thinkers: From Cicero to the 21st Century (London: Routledge, 2018), p. 88.

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The Usual Definition of Just Wars  81 measures and echoed his assertion that the prince who prosecutes a just war should be viewed as a judge tasked with dispensing punishment to wrongdoers. He drew liberally on the judicial analogy developed by Cajetan. He expressed it most fully in Article 4 of On the Laws of War: ‘If there was a legitimate arbiter to judge between the two parties to a war, he would have to condemn the unjust aggression . . . But a prince who wages a just war acts the part of the judge in the contention which is the cause of war.’60 Elsewhere he described the prince who ordered a just war against an enemy as both the prosecutor and ‘the judge in the case’ while casting the soldiers he commissioned to wage that war as its ‘executors’.61 What we see here, then, is a further tightening of the link drawn in NeoScholastic thought between just war and punishment. This reached its apogee in the work of Vitoria’s successor at Salamanca, Francisco Suarez (1548–1617). Like Vitoria, Suarez argued that the right of war is best understood as ‘a power of jurisdiction, the exercise of which pertains to punitive justice . . . wherefore, just as the sovereign prince may punish his own subjects when they offend others, so may he avenge himself on another prince or state which by reason of some offence becomes subject to him’.62 He also made extensive use of the judicial analogy. The classic example is Suarez’s statement in Section IX of the disputation he devoted to war: Just as within a state some lawful power to punish crimes is necessary to the preservation of domestic peace; so in the world as a whole there must exist, in order that the various states may dwell in accord, some power for the punishment of injuries inflicted by one state upon another; and this power is not to be found in any superior, for we assume that those states have no commonly acknowledged superior; therefore the power in question must reside in the sovereign prince of the injured state, to whom, by reason of that injury, the opposing prince is made subject; and consequently, war of the kind in question has been instituted in place of a tribunal administering just punishment.63

While Suarez admitted both that this commitment requires states waging just wars to act as ‘both plaintiff and judge’ in their own case, and that this is problematic, he argued that they must nevertheless still seize this responsibility.64 What is 60  Francisco de Vitoria, ‘On the Law of War’, in Vitoria: Political Writings, ed. by Anthony Pagden and Jeremy Lawrance (Cambridge: Cambridge University Press, 1991), p. 304 [1.4.§17]. 61  Ibid., pp. 309 [2.3.§27]; 324 [3.7.§53]. 62 Francisco Suarez, ‘A Work on the Three Theological Virtues: Faith, Hope, and Charity: Disputation XIII: On War’, in Selections from Three Works, ed. by Thomas Pink, trans. by Gwladys L.  Williams, Ammi Brown, and John Waldron, and rev. by Henry Davis (Indianapolis: Liberty Fund, 2015), p. 917 [II.1]. Also: Joseph Henry Fichter, Man of Spain: Francisco Suarez (New York: Macmillan, 1940). 63  Suarez, ‘A Work on the Three Theological Virtues’, p. 932 [IV.5]. 64  Ibid., pp. 933–4 [IV.5–6].

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82 Victory important to note here, however, is the central role that the judicial analogy had come to play in the Neo-Scholastic account of just war by his time, and the equiva­lence it inferred between just war and punishment.

Policemen The third model for conceptualizing just war as punishment is the law enforcement paradigm. Rodin introduces this model as a project for the future. If the problems that Suarez identified as besetting the contract model—namely, that states must act as both plaintiff and judge in their own cases—could be overcome, Rodin argues, the way would thus be paved for a plausible account of just war as law enforcement. In his own words: ‘The considerations which demonstrate the illegitimacy of law enforcement by individual states serve also to reveal how genu­ine and legitimate law enforcement may be possible.’ If, he continues, ‘there were a body which was genuinely impartial and which had a recognized authority to resolve disputes and enforce the law, then its prosecution of military action against international aggressors could be justified’.65 Rodin, who is mindful of the inadequacies of the United Nations, is under no illusion that such a body is already in place. As such, he admits that the law enforcement paradigm is currently no more than a utopian dream. Still, he submits, it is a dream worth chasing. ‘The conditions’ required to support the practice of just war as law enforcement are, he writes, ‘not yet realised in the world, for there is no impartial international body capable of enforcing a genuine international law’.66 But if such a body could be constructed—and this is not beyond our imagination—there would be a strong case for re-casting just war as a modality of law enforcement.67 Just war would thus become an instrument for punishing violations of the law. It would, as such, have to be seen as a truly unilateral endeavour, meaning that it could only ever be just on one side. This would be the true realization of Hans Kelsen’s view (cited earlier) that war must always be a delict on one side and a sanction on the other and comport with Inis Claude’s assertion that just war leads toward a ‘cops and robbers’ model of war. I will refrain from saying much about the roots of this view in the just war trad­ition. It can, however, be discerned in outline form in the writings of Hugo Grotius. Grotius argued that just wars must always be directed toward ‘the enforcement of rights’. Citing Demosthenes, he proposed that the idea of just war is co-extensive with law enforcement: ‘No war ought to be undertaken but for the obtaining of Right . . . War is made against those who cannot be constrained in a 65 Rodin, War and Self-Defence, p. 180. David Luban echoes this proposal. Luban, ‘War as Punishment’, p. 325. 66 Rodin, War and Self-Defence, p. 188. 67 Ibid.

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The Usual Definition of Just Wars  83 judicial way . . . [To] render Wars just, they are to be waged with no less Care and Integrity, than judicial proceedings are usually carried on.’68 It is more interesting to note that this way of viewing just war has traction today. Mary Kaldor, for example, re-brands just war as ‘cosmopolitan law enforcement’, which she describes as ‘somewhere between soldiering and policing’.69 Similarly, George Lucas describes just wars as ‘constabulary operations’.70 Finally, Daniel Bell suggests that ‘just war is nothing but just policing writ large’.71 The convergence of just war and law enforcement is also present in everyday discourse about war, with references to global policemen and world sheriffs abounding.72 So far as this suggests a direction of travel whereby war is ‘reduced to the status of police action’, it also edges us closer to ‘forever wars’: that is, open-ended deployments that not only will not end with victory for one side and defeat for the other, but will not end at all.73

An Error of Judgement? Each of the three models elucidated by Rodin have been subject to sustained critique—in two cases by Rodin himself. These critiques are worth exploring. They illuminate the tendentiousness of the view that just war is not actually a form of warfare but is instead more akin to a punitive measure. This in turn has something to tell us about the moral trap into which the idea of just war tempts us. To get to that point, however, we must return to the three models elucidated by Rodin and their critiques. Mirroring the previous section, I will treat all three in turn, but will devote the bulk of attention to the second model, as it represents

68 Hugo Grotius, The Rights of War and Peace, trans. by Jean Barbeyrac, ed. by Richard Tuck (Indianapolis: Liberty Fund, 2005), pp. 101–2 [I.Prolegomena.XXVI]. The view of just war as law enforcement is also immanent in Walzer’s legalist paradigm: ‘* Any use of force or imminent threat of force by one state against the political sovereignty or territorial integrity of another constitutes aggression and is a criminal act. * Aggression justifies two kinds of violent response: a war of self-defence by the victim and a war of law enforcement by the victim and any other member of international society. * Once the aggressor state has been militarily repulsed, it can also be punished.’ Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations—Fifth Edition (New York: Basic Books, 2015), p. 62. 69  Mary Kaldor, New and Old Wars: Organized Violence in a Global Era (Cambridge: Polity, 2001), p. 125. 70  George R. Lucas, ‘Jus Ante and Post Bellum: Completing the Circle, Breaking the Cycle’, in Eric Patterson (ed.), Ethics beyond War’s End (Washington DC: Georgetown University Press, 2012), p. 50. 71  Daniel M. Bell, Jr., Just War as Christian Discipleship (Grand Rapids: Brazos, 2009), p. 194. 72  Mark Neocleous, War Power, Police Power (Edinburgh: Edinburgh University Press, 2014), p. 9. 73  Michael Hardt and Antonio Negri, Empire (Cambridge, MA: Harvard University Press, 2000), pp. 12–13; Max Boot, ‘Why Winning and Losing are Irrelevant in Syria and Afghanistan’, The Washington Post, 30 January 2019. Available at: https://www.washingtonpost.com/opinions/global-opinions/the-uscant-win-the-wars-in-afghanistan-and-syria--but-we-can-lose-them/2019/01/30/e440c54e-23ea-11e990cd-dedb0c92dc17_story.html?utm_term=.2c90638a156d. Accessed: 12 February 2019.

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84 Victory what one scholar has called ‘the cornerstone and the arch’ of the idea that just war is punishment.74

Poor Parenting Rodin is critical of the parent model. This is on account of two flaws it exhibits. The first is that the analogy it rests upon bears no relation to the actualities of international relations. States do not relate to one another in a manner redolent of the relation that obtains between, say, a father and his son. Rather, their relations are conditioned by the idea of the sovereign equality of states. Accordingly, states are inclined to guard their independence and autonomy jealously and, as a corollary of this, to display a marked reluctance to cede any kind of jurisdiction over their own affairs to other states. As Rodin puts it, ‘The [parental] model could not provide an explanation of the right of one state to punish another because a fundamental assumption of the international order . . . is the sovereign equality of states.’75 David Luban has expanded upon this objection, which he designates ‘the sovereignty objection’.76 Citing the Latin maxim, par in parem non habet im­per­ ium, equals have no dominion over equals, Luban comments that states lack the authority to punish one another, by warfare or any other means.77 The second flaw is even more obvious. How can the duty of parental care be interpreted as a model for waging war against a community? How, in other words, can filial love be deemed a basis for sending young men and women into harm’s way to kill and be killed by one another? Once again, both Rodin and Luban express this point in forceful terms. ‘It is difficult to see’, Rodin wryly remarks, ‘how the infliction of punishment unto death could ever be justified on a parental model of punishment, which, as we have seen, is directed most fundamentally toward the benefit and development of the agent being punished.’78 Luban is even more scathing. ‘If this is Augustine’s argument for punishment through warfare,’ he writes, ‘it fails rather spectacularly, because his analogy of warfare to paternal “correction” is absurd. Fathers do not correct their wayward sons with sword and fire, and if they did we could hardly describe their severity as loving or benevolent.’ In the end, he concludes, the parental model is revealed as nothing more than an ‘unsupported assertion, a dogma’.79 There is, however, an important sense in which both Rodin and Luban miss the point of the parental model, at least as it was formulated by Augustine. Because Augustine believed that this earthly life is but a prelude to the second, more meaningful life that awaits us all on the other side of Judgement Day, he saw no 74 Scott, The Spanish Origins, p. 153. 75 Rodin, War and Self-Defence, pp. 179–80. 76  Luban, ‘War as Punishment’, pp. 314–16. 77 Ibid. 78 Rodin, War and Self-Defence, pp. 179–80. 79  Luban, ‘War as Punishment’, p. 308.

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The Usual Definition of Just Wars  85 contradiction with punishing someone with sword and fire out of love for them. By saving the wrongdoer from committing further misdeeds, the person who inflicts punishment upon them acts in their favour.80 And as love is a matter of internal disposition, not external conduct, it is not necessarily in tension with the use of force; soldiers can love their enemies even as they wage war against them. Yet, unless one shares Augustine’s belief in resurrection, the concerns expressed by Rodin and Luban will resonate, and the parental model will evoke the idea of soldiers destroying villages to save them.

The Prosecution Rests The contract model is even less persuasive. It collapses under scrutiny. This is the case in three respects. In the first instance, the fact that it relies upon a state acting as both judge and plaintiff in the same case is deeply problematic. It confounds the claim that such a use of force should be classified as punishment. Rodin and Luban offer clarity on this point. There is, Rodin argues, a ‘deep moral distinction between punishing someone and fighting against them. States cannot be said to punish those against whom they fight, for they are rather participants in a dispute in which the question of justice is precisely one of the issues between them.’81 Luban refers to this problem as ‘the biased judgement objection’ and he regards it as decisive. It is, he remarks, compelling because ‘it rests solely on appreciating the impossibility of impartial judgement by belligerents, coupled with understanding that the institution of punishment demands impartial judgement’.82 Rodin and Luban thus expose the idea that just war is an extension of the punitive function that the judiciary discharges in the domestic realm as a misnomer. Second, the roots of the contract model are less secure than they first appear. While the historical narrative of Neo-Scholastic thought appears to affirm the view that just war is a punitive practice, it rests on a sandy bottom. Peter Haggenmacher and Gregory Reichberg have both argued convincingly that it relies on a flawed reading of Aquinas.83 They suggest that, contrary to how he has 80  Augustine, ‘Letter 138: To Marcellinus’, p. 38. 81 Rodin, War and Self-Defence, pp. 180–1. 82  Luban, ‘War as Punishment’, p. 318. Luban elaborates: ‘When a state launches a punitive war, in Suarez’s words, “the same party in one and the same case is both plaintiff and judge, a situation which is contrary to natural law.” Suarez’s objection to warring parties making themselves judges and executioners of punishment remains powerful. . . . [It] is impossible to expect states to judge the impartiality of their own wars impartially. All states believe that justice lies on their side, and that their adversary has committed abominable injustice. And, therefore, the punishment theory of just cause is an open invitation to self-serving, unfair, overly harsh, and excessive punishment. Call this the biased judgement objection.’ 83  Peter Haggenmacher, ‘Just War and Regular War in 16th Century Spanish Doctrine’, International Review of the Red Cross 32:290 (1992): 434–45. Gregory M. Reichberg, Thomas Aquinas on War and Peace (Cambridge: Cambridge University Press, 2017), pp. 148–64.

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86 Victory typically been interpreted, Aquinas did not base just war on the notion of ‘culpability’ and thereby cast it as an essentially punitive activity. The impression that he did is a result of the misleading gloss applied by Cajetan. The key points of the argument proffered by Haggenmacher and Reichberg are easily summarized: (a) Aquinas’s engagement with the terminology of retribution was sparing and largely restricted to quotations from Saint Paul and Augustine; (b) Cajetan overstated the congruence between just war and judicial punishment implied by Aquinas’s use of the domestic analogy to elucidate the notion of legitimate warmaking; (c) Aquinas generally steered clear of vocabulary bearing on culpability and desert; (d) Aquinas used ‘neutral’ terms instead of the language of punishment and sanction to describe military actions undertaken by the just belligerent; and (e) Aquinas did not mention the relation between just war and punishment when elsewhere discussing punishment.84 For these reasons, Haggenmacher and Reichberg conclude that Aquinas’s just war, properly understood, turned, not on notions related to punishment and desert, but on the imperative to uphold and/or re-establish rights that have been violated.85 As such, Aquinas actually opened up rather than closed down the possibility of non-punitive just war.86 The errors introduced by Cajetan bled into and indeed shaped the development of later just war thought. When Vitoria and Suarez engaged the question of just war, they adopted and carried forward, not Aquinas’s ideas, but rather the ideas (wrongly) attributed to him by Cajetan. This meant that they placed excessive weight on the punitive element of just war. Two results followed directly from this. On the one hand, it essentialized the link between just war and punishment such that the former came to be understood almost exclusively in terms of the latter. On the other, it locked that linkage in by shutting down the possibility for thinking about just war in non-punitive terms. Taking all of this into account, it appears that the emergence of an ever-closer association between just war and punishment in Scholastic thought reflects, not so much a meaningful historical development, as the effect of an interpretative error compounded by path-dependency. The problems with the historical narrative do not end there, though. Rather, they lead to the third point. The narrative also omits the extent to which Vitoria and Suarez problematized the strictures of the judicial proposal. They did so in a subtle but far-reaching manner. Scholars familiar with the history of the just war tradition will already have some knowledge of the ideas of ‘invincible ignorance’

84 Reichberg, Thomas Aquinas on War and Peace, pp. 148–55. 85  As Reichberg explains, Aquinas’s account of just war ‘does not hinge specifically on the dual concepts of culpability and desert. The hinge is rather the idea of injustice or injury done. The underlying or primary aim of just war is to efface an injury, to re-establish a right. . . . In other words, the notion of a violated right is at the foreground of his analysis, while culpability plays a background or supporting role.’ Ibid., p. 153. 86  Ibid., pp. 130; 141.

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The Usual Definition of Just Wars  87 and ‘simultaneous ostensible justice’, and the question of whether a war can be just on both sides. Moved by an awareness that cases might arise where it would be difficult to discern which side had a just cause, or where one side was likely to be ignorant of what justice demanded of it, the Neo-Scholastics questioned whether the basis for just war should be shifted away from the identification of culpable wrongdoing and toward the receipt of material injury.87 Such a shift would permit a community to wage a just war against an enemy who had attacked it on the basis of a sincere but mistaken belief that it possessed a just cause.88 But it would do so only by lowering the threshold requirement for waging a just war from the enemy’s commission of a deliberate act of wrongdoing to the mere fact that their actions had contributed, even inadvertently, to a harm.89 Neither Vitoria nor Suarez was especially clear on this issue. Yet the mere fact that they engaged it at all indicates an opening toward what some scholars have called the idea of ‘regular war’ (as opposed to ‘just war’). I will save further discussion of regular war for Chapter 5. For now, it will suffice to note that it intimates a loosening of the key proposition that the contract model of just war as punishment advances: namely, that just war is a punitive practice. This is further evinced by the fact that references to victory do not just endure in the writings of Vitoria and Suarez, they pervade.90

Police Brutality As we have seen, Rodin is critical of the two models of just war as punishment that we have so far considered. He is, however, supportive of the third model, the law enforcement paradigm. While recognizing that it is not currently a feasible option, he endorses it as both an ideal to aim for and a direction of travel. I want to argue here, however, that it too fails. Moreover, as I hope to demonstrate in the concluding remarks to this chapter, the reasons for its failure tell us something important about the problematic nature of the idea of just war itself. Just war is not law enforcement. It is not an exercise of civil power, it does not permit the accused an opportunity to prove themselves innocent of the charges laid against them, and it punishes the innocent along with the guilty. To pretend, then, that just war is akin to an act of law enforcement is to endow it with a sheen 87 Frank Bartholomew Costello, The Political Philosophy of Luis de Molina (Spokane: Gonzaga University Press, 1974), p. 113. 88  Vitoria, ‘On the Law of War’, p. 313 [2.4.§32]. 89 See: Pablo Kalmanovitz, ‘Aggression and the Symmetrical Application of International Humanitarian Law’, International Theory 7:1 (2015), pp. 8–9. 90  Suarez is a case in point. He divides war into three stages, each of which relates to victory, formulates the first expression of the principle of reasonable chance of success, and indexes military necessity to victory. Suarez, ‘A Work on the Three Theological Virtues’, pp. 916 [I.7]; 954 [VII.1]; 937 [IV.10]; 958–9 [VII.6].

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88 Victory of politeness that it does not merit. Worse than this, it distracts from the brutality of war by dressing it up in the garb of law and order. This has the effect of en­nob­ ling the recourse to arms and thereby rendering it more palatable for general consumption. In actuality, as Ken Booth points out, ‘just war is just war’.91 Like any other kind of war, it entails brute violence. In just wars no less than in unjust wars, ‘buildings are blown up, essential infrastructure is destroyed, and lives are ended’.92 Vitoria put it starkly when he observed that just wars trade in ‘slaughter, fire, devastation’.93 And instead of limiting the worst effects of violent conflict, just war theory risks adding to them. As A. J. P. Taylor observed, where realists such as Bismarck ‘fought “necessary” wars and killed thousands’, those ‘idealists’ who claim the mantle of fighting just wars have caused the deaths of ‘millions’.94 The point is that it is misleading to equate just war with law enforcement. Once again, the Greek gods of war provide an interesting perspective on this general issue. The Greeks recognized both Athena and Ares as the deities responsible for warfare. As discussed in Chapter 3, Athena was usually depicted in Greek myth as the more impressive of the two gods. Whereas Ares cut a loutish figure and was always on the losing side, the elegant and composed Athena kept the company of Nike, the Greek goddess of Victory, and invariably emerged tri­umph­ant from the din of battle.95 Athena’s superiority corresponded to her cap­acity to rise above and channel the violence of combat so that it served rather than undermined the ends of justice and order.96 In this respect, she stood for the belief that war, when harnessed to justice, will not only yield victory, it will also be transmuted into a form of law enforcement.97 It was not, however, quite this simple. The Greeks did not imagine Athena as the antidote to Ares, the remedy to the problem that he posed. Rather, they saw Athena as the twin of Ares, separate from but also indelibly connected to him.98 No matter, then, how tempted they might have been to identify warfare with Athena alone, and thus view it solely as an instrument of order, the Greeks also believed that it could not be fully disaggregated from the destructive 91 Ken Booth, ‘Ten Flaws of Just Wars’, International Journal of Human Rights 4:3/4 (2000), pp. 316–17; Andrew Fiala, The Just War Myth: The Moral Illusions of War (Lanham, MD: Rowman & Littlefield, 2008). 92  Maja Zehfuss, War and the Politics of Ethics (Oxford: Oxford University Press, 2018), p. 54. David Luban adds: ‘War is a blunt instrument . . . and even the most discriminate war breaks whatever it touches.’ Luban, ‘War as Punishment’, p. 326. 93  Vitoria, ‘On the Law of War’, p. 304 [1.3.§14]. 94 Quoted in: Geoffrey Best, Humanity in Warfare: The Modern History of the Law of Armed Conflict (London: Methuen, 1980), pp. 6–7. 95  See Chapter 3 for an introduction to the Greek gods. 96  For example: Homer, The Iliad, trans. by E.  V.  Rieu (London: Penguin, 2003), pp. 374–5 [XXI.389–434]. For discussion, Mark Edwards, Homer: Poet of the Iliad (Baltimore: Johns Hopkins University Press, 1987), p. 133. J. P. Darmon, ‘The Powers of War: Ares and Athena in Greek Mythology’, in Yves Bonnefoy (ed.), Greek and Egyptian Mysteries (Chicago: University of Chicago Press, 1991), p. 114. 97  See: Aeschylus, The Oresteia, trans. by Robert Fagles (London: Penguin, 1979). 98  Indeed, Athena shared many characteristics with Ares: like him, she was a rouser of battle, a keen warrior, and a cruel and vindictive prosecutor of her enemies. For example: Homer, Iliad, p. 309 [XVII.397].

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The Usual Definition of Just Wars  89 violence that Ares represented.99 War, on this view, might be employed for a higher purpose, but it could never transcend its own base nature. To view just war as law enforcement is, it seems, to make exactly this mistake.100

Conclusion This chapter has considered the argument that because just war, properly understood, is more akin to a supranational form of punishment or law enforcement than to war per se, it naturally has no place for the concept of victory. To this end, it examined recent articulations of the so-called judicial proposal by Oliver O’Donovan, Nigel Biggar, Jean Bethke Elshtain, and David Rodin, as well as the classical expression of this idea in the texts of Thomas Aquinas, Cardinal Cajetan, Francisco de Vitoria, and Francisco Suarez. Taken at face-value, this combined body of work suggests that, when it comes to just war, the concept of victory is indeed a non-sequitur. The real story here, however, is what this tells us about how just war tends to be understood. It indicates that exponents of the just war idea are keen to endow it with a veneer of civility that it does not merit. In pressing the case that just war is not a form of war, but is instead a punitive mode of law enforcement, we risk whitewashing its brutality and messiness. By distracting from the fact that just wars proceed by dispatching young men and women to kill and be killed and wreak devastation wherever they go, we help paint a picture of just war as something judicious, orderly, tidy, and discriminate—like a court hearing or the sentencing of a convicted criminal. This allows us to sanitize just war, to disguise (even from ourselves) the violence that it involves, and thereby to make it more palatable and an easier idea to both subscribe to and sell. This is not a good basis for making determinations about the rights and wrongs of warfare. Rather, one should always keep in mind, as the Greeks did, that, while war might be employed to serve a higher purpose, it can never transcend its own base nature. It is as much about Ares as it is about Athena, with the latter always entailing the former. I think that we, as just war theorists, should face up to this fact, not hide from it. I will return to this point in the chapters that follow, and especially in the Conclusion. In the meantime, we must turn to the next problem victory poses for just war theorists: its association with conquest. 99  See: Susan Deacy, ‘Athena and Ares: War, Violence, and Warlike Deities’, in Hans van Wees (ed.), War and Violence in Ancient Greece (London: Duckworth, 2000): 285–98. Interestingly, this is a point that has also been made by a contemporary commentator: Chris Hedges, War is a Force that Gives Us Meaning (New York: Anchor, 2003), p. 101. 100  This is also the mistake that so-called ‘traditionalist’ just war theorists accuse (reductivist) ‘revisionist’ just war scholars of making. See: Seth Lazar, ‘Just War Theory: Revisionists versus Traditionalists’, Annual Review of Political Science 20 (2017), p. 40. I will return to the revisionist argument in Chapter 7.

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5

The Right of Conquest Emphasising the inadmissibility of the acquisition of territory by war . . . United Nations Security Council Resolution 2421

Introduction The fifth problem victory raises for just war scholars is that it carries negative ­conceptual baggage. Specifically, it evokes conquest. These connotations are engrained in the word itself: victory derives from the Latin root vinco victus, which means to conquer.2 This is problematic because conquest, which designates the subjugation of a land or people by military force, is widely deemed to be antithetical to the idea of just war. This chapter does not contest the claim that victory is connected to conquest. Rather, taking that as a given, it argues that the issue of conquest raises a set of questions bearing on the legal effects of victory that contemporary just war theorists tend to overlook. Does victory in a just war generate certain rights or entitlements for the victor, and, if so, on what basis? Is just war generative of what we might call a ‘right of conquest’? And does this right extend even to cases where the victor does not have justice on its side? Drawing on the early modern legal writings of Alberico Gentili and Hugo Grotius, this chapter contends that the answers just war thinkers have historically furnished to these questions reveal a degree of overlap with the doctrine of might is right that contemporary just war theorists have been conditioned to ignore and are likely to find disquieting.

The Prizes of Victory The very idea of conquest stirs up awkward questions for just war theorists. What are the legal effects that follow from a just war? If a community wages and wins a 1  Resolution 242 was adopted unanimously by the United Nations Security Council in November 1967 in response to the events of the Six Day War. It required ‘the withdrawal of Israel armed forces from territories occupied in the recent conflict’. The full English-language text is available at: https:// www.securitycouncilreport.org/un-documents/document/ip-s-res-242.php. Accessed: 13 April 2019. President Donald Trump’s recognition of Israeli sovereignty over the Golan Heights in March 2019 represents a break from this legal principle. 2 William  C.  Martel, Victory in War: Foundations in Modern Strategy—Revised and Expanded Edition (Cambridge: Cambridge University Press, 2011), p. 21. Victory: The Triumph and Tragedy of Just War. Cian O’Driscoll, Oxford University Press (2020). © Cian O’Driscoll. DOI: 10.1093/oso/9780198832911.001.0001

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The Right of Conquest  91 just war, should it be entitled to retain the goods and property it seized during the course of that struggle? Does victory in a just war generate certain legal rights or entitlements for the victor over the vanquished? If so, on what basis? Though obviously of considerable importance, these questions have largely been overlooked by contemporary just war theorists. Indeed, while we have been busy formulating new categories of just war analysis and extending its reach into every conceivable domain, from the use of force short of war to the realm of cybersecurity, today’s just war scholars have steered clear of any meaningful discussion of what Xenophon called the ‘prizes’ of victory, which is merely another name for what is commonly referred to as the spoils of war.3 The phrase ‘spoils of war’ conjures up images of ‘piles of treasure, looted and plundered’.4 The classic example is the British and French sack of the Summer Palace of the Emperor of China in 1860, which took place as the Opium War was coming to an end. It saw bands of soldiers marauding through the city and hauling off anything of value that they could get their hands on. Nothing was safe from them, with golds, jades, furs, silks, and porcelain all seized. This is not what I mean by spoils in this instance, however. Rather, I use the term in a narrower sense to designate the political claims, such as the right to govern or annex a particular territory, that arise from victory in war. It was once common for states to assume such entitlements were a natural result of what was called ‘the right of conquest’.5 To the victor, it was simply assumed, went the spoils of war. Thus, for example, in the aftermath of the Franco-Prussian War of 1870–1, the victorious German Empire demanded title to Alsace-Lorraine as well as a sizeable cash indemnity (of 5 billion francs) from the defeated French.6 Such demands were supported by international law and custom. As Sharon Korman has observed, ‘the proposition that a state that emerges victorious in war is entitled to claim ownership or jurisdiction of territory of which it has taken possession during a war was [until relatively recently] a recognized principle of international law’.7

3 Xenophon, The Education of Cyrus, p. 74 [II.3.2]. James Q. Whitman has also noted the lack of attention paid to this topic. James  Q.  Whitman, The Verdict of Battle: The Law of Victory and the Making of Modern War (Cambridge, MA: Harvard University Press, 2012). 4 Joseph O’Mahoney, Denying the Spoils of War: The Politics of Invasion and Nonrecognition (Edinburgh: Edinburgh University Press, 2018), p. 3. 5 Ibid. 6 O’Mahoney, Denying the Spoils of War, p. 1. There are, of course, further examples that could be cited. Prussia claimed title to Schleswig and Holstein through right of conquest, Britain and France seized large chunks of Africa and Asia in this manner, and the US fought wars in 1846 and 1898 that resulted in the annexation of Texas, the Philippines, Cuba, and Puerto Rico. The right of conquest was also accepted as custom in the period from 1815 to 1914. Sharon Korman, The Right of Conquest: The Acquisition of Territory by Force in International Law and Practice (Oxford: Clarendon Press, 1996), p. 80. For a related discussion on the history of military occupation: Peter M. R. Stirk, A History of Military Occupation from 1972 to 1914 (Edinburgh: Edinburgh University Press, 2016). 7 Korman, The Right of Conquest, p. 1. Korman also cites the work of six leading twentieth-century legal scholars to substantiate the claim that there was ‘virtually unanimous agreement about the presence of the right of conquest among the rules which were recognized by international law.’ Ibid., pp. 7–8.

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92 Victory This norm has since lapsed. Few states or legal scholars today recognize the right of conquest. Instead, there is a wide consensus that war is not an appropriate means by which to advance political and territorial claims that come at the expense of other societies. The turning point can be traced to 1917. The revolution in Russia, the entry of the US into the First World War, the ensuing calls for peace without annexations, and the proclamation of the right of all nations to self-determination created a new reality that was not conducive to the right of conquest. These events combined to render ‘the old-style annexationist policies of the belligerents impossible to sustain. For such blatant expansionism . . . was inconsistent with the new moral tone in which international relations were now being conducted.’8 The proscription of the right of conquest was subsequently affirmed in the Covenant of the League of Nations and the United Nations Charter. The enduring effect of this proscription on the custom and practice is evidenced by the international community’s repudiation of, for example, Turkish claims to northern Cyprus, Iraq’s to Kuwait, and Russia’s to southern Ossetia and the Crimea. In these cases, and others like them, the international community has been very clear that it will no longer recognize ‘political concessions obtained by the illegitimate use of force’.9 The legal situation in respect of the right of conquest appears clear—where once it was supported by international law, it is now strictly ruled out—but it leaves important questions not only unanswered, but even unasked. The first set of questions pertain to cases when the side fighting for a just cause prevails in battle. What entitlements or rights, if any, flow to the just victor on account of its success in combat? And on what grounds do these entitlements rest? Are they, for instance, generated by the simple fact of victory itself, by the underlying justness of the war, or by some combination of the two? In other words, should we regard victory in a just war as a legitimate basis for the assertion of particular political claims, such as the right to govern or annex a territory, and, if so, on what basis?10 The worry here must be that, so far as one considers the ‘raw fact of victory’ in war to be generative of rights, one veers dangerously close to the doctrine of might is right.11 This set of questions may be illuminated by reference to the aftermath of the 1967 Arab–Israeli War. Setting aside the (thorny and not unrelated) question of the legitimacy of the 1948 border that Israel shared with its neighbours, it seems fair to suppose—as Michael Walzer does—that Israel’s recourse to force in May 1967 was a justified act of anticipatory defence against the United Arab Republic.12 The right of anticipatory defence that accrued to Israel extended to seizing parts 8  Ibid., p. 135. 9  O’Mahoney, Denying the Spoils of War, pp. 1–3. 10  Henry Sidgwick reluctantly conceded that Germany’s claim to Alsace-Lorraine in 1871, though based on nothing more than military victory, could be a basis for legitimate title. Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations—Fifth Edition (New York: Basic Books, 2015), p. 56. 11  Brian Orend, ‘Jus Post Bellum’, Journal of Social Philosophy 31:1 (2000), p. 122. 12  Michael Walzer, ‘The Four Wars of Israel/Palestine’, in Arguing about War (New Haven: Yale University Press, 2004), pp. 115–17.

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The Right of Conquest  93 of the West Bank and Gaza in order to forestall their involvement in further attacks on its border areas. What claims to title, if any, did Israeli success in this regard and subsequent occupation of parts of the West Bank and Gaza generate? Because Israel seized these lands for just reasons in a just war, did it thereby acquire rights over them? Conversely, if the Palestinians, acting in conformity with the rules of war, were to succeed in driving Israel from Gaza and the West Bank today, would that be sufficient to restore their claim to title over the land? While one might acknowledge a justifiable claim to right underpinning both cases, these questions do not beget easy answers.13 The second set of questions are, if anything, even trickier. They pertain to cases when a side fighting an unjust war prevails in combat. What entitlements, if any, does victory in an unjust war generate for the winner? And how, if at all, should international society recognize those entitlements? On the one hand, it would be a bad thing to recognize an unjust victory as a source of title in international relations. This would be the equivalent of rewarding aggression. The concern here is that any recognition of victory as a source of title would risk undercutting one of the central tenets upon which the idea of law rests: namely, that legal rights should never follow from unjust acts—ex injuria jus non oritur. If, in other words, just war theorists were to recognize victory as a source of title, claims generated by unjust wars would have to be counted as no less legitimate than those generated by just wars. A regime would be created wherein aggression could stand and crime pay.14 On the other hand, to refuse all such claims would also be bad policy. There will be occasions when prudence demands that the international community ought to swallow its pride and accept the resolution provided by an unjust victory. Otherwise, such victories would remain open wounds tempting further discord: the vanquished would retain carte blanche to rescind any peace terms they signed and resume hostilities at any time, while the victor would be incentivized to prevent this happening by, not just defeating its enemies in the first instance, but thoroughly routing them.15 Once again, this set of questions can be illuminated by reference to current dilemmas in international relations. At what point, if any, should the international community acknowledge the Bashar al-Assad regime as the victor in the ongoing Syrian conflict? If and when it does, should the international community also then recognize the regime’s claims to be the legitimate government of Syria? This, it may be hoped, would at least bring some closure to the situation, and would

13  Ahron Bregman, Cursed Victory: A History of Israel and the Occupied Territories (London: Allen Lane, 2014). 14 Korman, The Right of Conquest, p. 94. 15  Conversely, if belligerents were assured that, regardless of whether it favoured the just or the unjust side, the result of a war would be regarded as binding, the winner would have no incentive to carry the fight on beyond the point of victory, and the loser no basis for later resuming the conflict. Ibid., p. 26.

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94 Victory remove Assad’s incentive to escalate the war even further. Yet whether or not this would be the right thing to do is still a murky question. Contemporary just war theorists have had little to say about either of these sets of questions. Jus post bellum scholars, who might otherwise be expected to address the issue of right of conquest, address their inquiries to the re­spon­si­bil­ ities rather than the entitlements that follow from victory in war. In this regard, they appear to view their task as refining the pottery barn rule that the former Secretary of State Colin Powell articulated in relation to Iraq in advance of the 2003 war: ‘If you break it, you own it.’16 Larry May, for instance, argues that the key question for jus post bellum scholars is ‘what difference should there be between victors and vanquished in terms of post-war responsibilities?’17 Alex Bellamy equates jus post bellum analysis with the job of figuring out whether the victor in a just war ought to assume maximalist or minimalist post-war re­spon­si­ bil­ities for the vanquished state.18 Walzer frames his approach to jus post bellum analysis in similar terms: ‘I am going to assume the victory of the just warriors and ask what their responsibilities are after victory.’19 George R. Lucas defines the remit of jus post bellum inquiry likewise: ‘Just victors should acquire obligations to restore the circumstances of the unjust, defeated enemy.’20 What these ex­amples illustrate is how the contemporary jus post bellum framework has focused almost exclusively on the responsibilities that victors incur in the aftermath of a just war, with no reference to the entitlements they might also accrue. Questions pertaining to the right of conquest have not, however, always been overlooked by just war theorists. They attracted considerable attention in the sixteenth century, when they animated the writings of some of the foremost contributors to the just war tradition. We have already encountered Francisco de Vitoria and Francisco Suarez, the key figures in the Neo-Scholastic tradition of just war thought. Both men had quite a lot to say about the legal effects that follows from victory in a just war. In both cases they granted the victors of a just war extensive rights over their vanquished foes. They agreed that the victors in a just war may, circumstances permitting, seize booty from their defeated enemy; occupy and keep the enemy’s forts; expropriate enemy lands; and impose tributes and even penalties on the defeated enemy.21 The source of these rights was not, 16  Quoted in: Bob Woodward, Plan of Attack (New York: Simon & Schuster, 2004), p. 150. 17 Larry May, After War Ends: A Philosophical Perspective (Cambridge: Cambridge University Press, 2012), p. 1. 18  Alex J. Bellamy, ‘The Responsibilities of Victory: Jus Post Bellum and the Just War’, Review of International Studies 34:4 (2008): 601–25. 19  Michael Walzer, ‘The Aftermath of War: Reflections on Jus Post Bellum’, in in Eric Patterson (ed.), Ethics beyond War’s End (Washington DC: Georgetown University Press, 2012), p. 37. 20  George R. Lucas, Jr., ‘Jus Ante and Post Bellum: Completing the Circle, Breaking the Cycle’, in Eric Patterson (ed.), Ethics beyond War’s End (Washington DC: Georgetown University Press, 2012), p. 55. 21  Francisco de Vitoria, ‘On the Law of War’, in Vitoria: Political Writings, ed. by Anthony Pagden and Jeremy Lawrance (Cambridge: Cambridge University Press, 1991), pp. 322–5 [III.7–8]. Francisco Suarez, ‘A Work on the Three Theological Virtues: Faith, Hope, and Charity: Disputation XIII: On

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The Right of Conquest  95 however, the hard fact of victory. That is to say, they did not regard victory by itself as generative of any kind of political claim. It was not the accomplishment of winning a just war, but the justice of the cause that underlay that war, that produced the rights that accrued to the victor. The corollary of this was that victories won by unjust parties counted for little in formal terms. A community waging an unjust war could not acquire new rights for itself by winning that war. It so happened, however, that the Neo-Scholastic account of the right of conquest came under sustained scrutiny at the turn of the sixteenth century. Two figures played a leading role in this. Alberico Gentili and Hugo Grotius were key figures in the advent of modern international law. The rest of this chapter will examine how they addressed the right of conquest in their writings. It will be argued that where the Neo-Scholastics believed that it was the underlying justness of a war and not the fact of winning it that generated title, Gentili, drawing on the humanist idea of regular war, argued the opposite. He contended that, regardless of whether it favoured the just side, victory is constitutive of title. Grotius tried to have it both ways. He melded Neo-Scholastic just war doctrine and humanist regular war ideas to argue that the legal effects of a just war are indexed to a combination of the fact of victory and the justness of the cause it served. Their arguments, I wish to suggest, raise interesting questions for us today.

Alberico Gentili Alberico Gentili was born in San Ginesio, in the Italian province of Macerata, in 1552.22 The son of a physician, he chose to study Law, and acquired a doctorate by the age of twenty. He was well versed in the Roman code and classical political thought, but also the writings of the Neo-Scholastics, including Francisco de Vitoria and Francisco Suarez, whose views he was wont to dismiss occasionally with a curtness verging on contempt: ‘Let the theologians keep silence about a matter which is outside of their provenance.’23 Before, however, he could build on what had been a promising start to his career in Italy, religious controversy intervened. Along with his father and brother, Gentili was excommunicated from the Catholic Church and hounded out of Italy. He fled to England, where he found a warm reception and assumed a teaching post at Oxford University. He would enjoy an illustrious career at Oxford, cultivating the favour of Queen Elizabeth and publishing several important works, among them De Iure Belli Libri Tres. War’, in Selections from Three Works, ed. by Thomas Pink, trans. by Gwladys  L.  Williams, Ammi Brown, and John Waldron, and rev. by Henry Davis (Indianapolis: Liberty Fund, 2015), p. 971 [VII.20]. 22  On Gentili’s biography: John Kelsay, ‘Alberico Gentili’, in Daniel R. Brunstetter and Cian O’Driscoll (eds.), Just War Thinkers: From Cicero to the 21st Century (London: Routledge, 2018), pp. 119–20. 23 Gentili, De Iure Belli Libri Tres, trans. by John C. Rolfe (Oxford: Clarendon Press, 1933), p. 57 [I.XII].

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96 Victory Gentili died in 1608. His work lived on, however. His ideas on the laws of war were later very influential for Hugo Grotius—even if Grotius did not always care to admit it.24 Initially, posterity was not very generous to Gentili: eclipsed by Grotius, his contribution to the development of modern international law was largely forgotten. Gentili’s reputation was, however, revived in the late nineteenth century by Thomas Holland, a fellow Oxford University professor of Law, who made him the subject of his inaugural lecture. Holland’s efforts were not in vain, and recent years have witnessed an upsurge in academic interest in Gentili.25 De Iure Belli Libri Tres, first published in 1598, remains Gentili’s best-known work.26 Gentili opened this text with a series of chapters devoted to explicating the concept of war.27 This was no mere throat-clearing exercise. Rather, it was the opportunity for a thoughtful re-evaluation of exactly what is signified by the term ‘war’. Gentili argued that war should be understood first and foremost as ‘a just and public contest of arms’.28 As such, it necessarily involved the use of violent force for legitimate public ends by two or more belligerents who recognized one another as formal enemies. In Gentili’s words, ‘War is carried on by means of arms and weapons. . . . Furthermore, the strife must be public . . . And the arms on both sides should be public, for bellum, “war”, derives its name from the fact that there is a contest for victory between two equal parties.’29 While it is interesting that Gentili incorporated both justness and victory into the definition of war, the point to which he attached most importance was the public character of war. For a violent conflict to count as a war, it had to be waged on both sides by sovereigns acting on behalf of their polities. In Gentili’s own words: ‘The war on both sides must be public and official and there must be sovereigns on both sides to direct the war.’30 This stipulation recalled Roman law, wherein the category ‘war’ was reserved for violent disputes between foes designated as hostes: that is to say, as formal enemies who were expected to treat one another as moral and legal equals.31 It also, quite significantly, evoked what has since come to be known as the idea of ‘regular war’. 24  Grotius admitted to finding Gentili’s work helpful but complained that, in addition to his other shortcomings, Gentili was ‘faulty’ in his style and method. Hugo Grotius, The Rights of War and Peace, ed. by Richard Tuck (Indianapolis: Liberty Fund, 2005), p. 110 [I.Prolegomena.XXXIX]. 25 The lecture is reproduced in: Thomas  E.  Holland, Studies in International Law (Oxford: Clarendon Press, 1898), pp. 1–39. For analysis: Peter Haggenmacher, ‘Grotius and Gentili: A Reassessment of Thomas  E.  Holland’s Inaugural Lecture’, in Hedley Bull, Benedict Kingsbury, and Adam Roberts (eds.), Hugo Grotius and International Relations (Oxford: Oxford University Press, 1990): 133–76. 26  Kelsay, ‘Alberico Gentili’, p. 121. 27 Gentili, De Iure Belli Libri Tres, pp. 12–14 [I.II]; 15–21 [I.III]; 22–6 [I.IV]. 28  Ibid., p. 12 [I.II]. 29 Ibid. 30  Ibid., p. 15 [I.III]. 31  Ibid., pp. 12–13 [I.II]; also: pp. 22–6 [I.IV]. The idiom of hostes was a Roman inheritance. It is discussed by Cicero in On Duties. Marcus Tullius Cicero, On Duties, ed. by M.  T.  Griffin and E. M. Atkins (Cambridge: Cambridge University Press, 1991), p. 16 [I.37]. For a recent analysis of this idiom: Wouter  G.  Werner, ‘From Justus Hostis to Rogue State: The Concept of the Enemy in International Legal Thinking’, International Journal for the Semiotics of Law 17 (2004): 155–68. The

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The Right of Conquest  97 The idea of regular war can be traced to that line of medieval humanist thought which took Roman law as the foundation for developing an account of the rights of war.32 Where the Neo-Scholastics viewed war as always either a delict or a sanction, exponents of regular war approached it differently. Instead of defining the right to war as a function of ‘the wrongs committed by one party and the rights conferred thereby on the other’, they framed it as a bounded contest between rival sovereigns, each equally entitled under law to advance its own rights and interests through armed combat.33 The key feature of this approach was the understanding of war, not as comprising a series of discrete, unilateral acts of force carried out by states against one another, but as a kind of state or background condition that sovereigns initiated and which then prevailed between them, constituting them as enemies, until such time as they terminated it. By initiating a state of war, then, states effectively agreed not only to settle their dispute by arms, but also to accept the outcome of that clash as authoritative. ‘War thus becomes in itself a source of legal effects, which occur on both sides without distinction, irrespective of the cause of the war.’34 In a nutshell, the idea of regular war supposed that: the declaration of war between two sovereigns instituted a state of affairs; whereby rival belligerents were constituted not as cops and robbers but as legally equals adversaries; who had opted to settle their differences by war; and who in so doing committed themselves to accepting the outcome of that war as conclusive; regardless of which cause it favoured. The idea of regular war conditioned Gentili’s treatment of the legal effects of war. Gentili contended that the kind of legal effects a war produced followed

idiom of hostes would also later play an important part in Carl Schmitt’s critique of just war thinking. I will, however, defer any further discussion of Schmitt till Chapter  7. On the relation between Gentili and Schmitt: Claire Vergerio, ‘Alberico Gentili’s De Iure Belli: An Absolutist’s Attempt to Reconcile the Ius Gentium and the Reason of State Tradition’, Journal of the History of International Law 19:3 (2017): 1–38. 32  Instead of subscribing to a vision of just war that was predicated upon the moral and legal unity of Christendom, as the Scholastics did, those associated with the humanist school interpreted the idea of just war in light of the emergence on the Italian peninsula and elsewhere of increasingly autonomous and quarrelsome city-states. To this end, they drew less upon theological sources than upon classical political thought and Roman law as collated in the Corpus Juris Civilis of Justinian, as well as the medieval commentaries it inspired. The key text on the humanist tradition is: Richard Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (New York: Oxford University Press, 1999). It is often traced to the writings of Raphael Fulgosius (1367–1427) in particular. Excerpts from the works of Raphael Fulgosius are available in: Gregory  M.  Reichberg, Henrik Syse, and Endre Begby (eds.), The Ethics of War: Classic and Contemporary Readings (Oxford: Blackwell, 2006), pp. 227–9. 33  Peter Haggenmacher, ‘Just War and Regular War in 16th Century Spanish Doctrine’, International Review of the Red Cross 32:290 (1992), p. 436. 34  Ibid. Arising from this, proponents of regular war advanced a robust account of jus in bello norms. While the traditional just war view rendered them subordinate to jus ad bellum imperatives— Vitoria et al. had argued that where one had a just cause to use force, this implied a licence to do whatever was necessary to vindicate that cause—Fulgosius’s followers presented jus in bello norms as ‘an objective rule of conduct applying equally to all adversaries’, irrespective of just cause.

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98 Victory directly from the ‘nature’ of that war.35 Gentili spelled this out in Book III of De Iure Belli Libri Tres, where he argued that the legal effects of a conflict were in large part determined by the character of that conflict. Accordingly, if a conflict had been formally constituted as a war, meaning it had been launched by public authorities in accordance with jus ad bellum and jus in bello norms, a full range of rights and entitlements accrued to the victor.36 Conversely, if a conflict was either unjust or private, and therefore could not be formally designated a war, let alone a just war, it generated fewer entitlements for the victor. In essence, Gentili was claiming that only a small subset of armed conflicts had the capacity to generate legitimate legal consequences: only formally constituted wars, which were by definition both public and just, produced lawful title to the spoils that they produced. By contrast, any spoils produced in the course of private or unjust wars should be discounted as stolen goods.37 On what basis could victory in such a war be said to generate a legitimate claim to title? Gentili’s answer to this question is subtle and requires careful unpacking. Where, as we have seen, the Neo-Scholastics had likened just war to a criminal prosecution, Gentili compared it to a civil proceeding.38 Because all parties to a war are naturally inclined to believe that their own cause is just, rendering it hard to discern where the truth lies between rival claims, Gentili argued that it makes sense to posit war, neither as a modality of law enforcement, nor as an ordeal, but as a forum in which sovereigns settle their differences by arms.39 For Gentili, then, just war should not be viewed as a struggle between law-breakers and lawenforcers. Rather, it should be regarded as a contest in which sovereigns sought to advance rival claims to justice, either or both of which could be true, by force. Two implications follow. First, because the belligerents were posited as rival litigants, and not as cops and robbers, the laws of war were equally binding on both sides.40 Second, the outcome of a war should not be taken as proof of the justice (or lack thereof) of a belligerent’s cause.41 It merely denoted that the victor had come out on top in a physical fight. Yet this still counted for something. Although 35 Gentili, De Iure Belli Libri Tres, p. 293 [III.II]. I highlight this point because, as Ian Clark has pointed out, contemporary theorists tend to overlook the importance of the relation between war and just war: Ian Clark, Waging War: A New Philosophical Introduction (Oxford: Oxford University Press, 2015), pp. 1–4. On a related note: Jens Bartelson, War in International Thought (Cambridge: Cambridge University Press, 2018). 36 Gentili, De Iure Belli Libri Tres, p. 307 [III.V]. 37 This approach had deep roots. Maurice  H.  Keen, The Laws of War in the Late Middle Ages (London: Routledge & Kegan Paul, 1965), p. 65; G. I. A. D. Draper, ‘Grotius’s Place in the Development of Legal Ideas about War’, in Hedley Bull, Benedict Kingsbury, and Adam Roberts (eds.), Hugo Grotius and International Relations (Oxford: Clarendon, 1990), p. 183; and James A. Brundage, ‘Holy War and Medieval Lawyers’, in Thomas Patrick Murphy (ed.), The Holy War (Columbus: Ohio State University Press, 1976), p. 109. 38 Gentili, De Iure Belli Libri Tres, pp. 298–9 [III.III]. 39 Ibid., p. 298 [III.III]. Joachim von Elbe, ‘The Evolution of the Concept of the Just War in International Law’, American Journal of International Law 33:4 (1939), pp. 677–8. 40 Gentili, De Iure Belli Libri Tres, p. 33 [I.VI]. 41  Ibid., p. 299 [III.III].

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The Right of Conquest  99 victory did not validate the winner’s cause, it conferred on its consummation a kind of ‘prima facie’ or procedural legitimacy.42 This carried over to the prizes it yielded. It was, then, the simple fact of winning a just war, and not the justice of the cause that underlay it, that generated the right to any spoils resulting from it. In a nutshell: ‘Victory constituted title.’43 Gentili also encouraged victors to act judiciously rather than vindictively in their moment of triumph and even elaborated a framework, the jus victoria or ‘law of victory’, to provide guidance on how this might be achieved.44 I am not so much interested here in these aspects of his writings, however. Instead, I want to shift my attention to an examination of how the themes Gentili introduced in his discussion of spoils found their way into what Grotius had to say about just war, where they crystallized and arguably received their fullest expression. In particular, I am keen to trace how, in treating the legal effects of just war, Grotius sought to temper Gentili’s claim that victory constitutes title by combining it with elem­ ents of Neo-Scholastic just war doctrine.

Hugo Grotius The son of a burger from Delft, Hugo Grotius was born on Easter Sunday 1583 and died in 1645.45 His was an extraordinary life. A child prodigy, he was fluent in Greek and Latin long before his tenth birthday and admitted to the bar of Holland at the age of sixteen. His academic reputation was such that Henry IV of France dubbed him ‘the miracle of Holland’.46 Others were less impressed: James I of England described him as ‘tedious and full of tittle-tattle . . . a pedant, full of words, but no great judgements’.47 Grotius was commissioned by the Dutch East

42  Alexis Blane and Benedict Kingsbury, ‘Punishment and the Ius Post Bellum’, in Benedict Kingsbury and Benjamin Straumann (eds.), The Roman Foundations of the Law of Nations: Alberico Gentili and the Justice of Empire (Oxford: Oxford University Press, 2010), p. 257. Also see: Randall Lesaffer, ‘Alberico Gentili’s Ius Post Bellum and Early Modern Peace Treaties’, in Benedict Kingsbury and Benjamin Straumann (eds.), The Roman Foundations of the Law of Nations: Alberico Gentili and the Justice of Empire (Oxford: Oxford University Press, 2010), p. 225. 43  Lesaffer, ‘Alberico Gentili’s Ius Post Bellum’, p. 230. 44  There is a mass of interesting material here that jus post bellum scholars may benefit from investigating. Randall Lesaffer provides an excellent overview of Gentili’s jus victoria. Ibid., pp. 224–30. 45 For an excellent biographical essay on Grotius, see: C.  G.  Roelofsen, ‘Grotius and the International Politics of the Seventeenth Century’, in Hedley Bull, Benedict Kingsbury, and Adam Roberts (eds.), Hugo Grotius and International Relations (Oxford: Oxford University Press, 1990), p. 98. Given the focus of this chapter, it would be remiss not to note that, for many scholars, the story of Grotius’s contribution to the just war tradition is also a story of conquest and colonialism. See: Edward Keene, Beyond the Anarchical Society: Grotius, Colonialism, and Order in World Politics (Cambridge: Cambridge University Press, 2002). 46  Quoted in: Anthony F. Lang, Jr., ‘Hugo Grotius’, in Daniel R. Brunstetter and Cian O’Driscoll (eds.), Just War Thinkers: From Cicero to the 21st Century (London: Routledge, 2018), p. 130. 47  Quoted in: Karma Nabulsi, Traditions of War: Occupation, Resistance, and the Law (Oxford: Oxford University Press, 1999), p. 130.

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100 Victory Indies Company in 1604 to author a legal defence of its seizure of a Portuguese boat. This led to the publication of two major works: De Jure Praedae and Mare Liberum—though the latter was little more than an excerpt from the former.48 These successes led to Grotius’s appointment as the Advocate-General of Holland and his embroilment in Dutch politics. Grotius was not a canny operator, however, and, having backed the losing side in a bitter power struggle, he was accused of treason in 1619 and sentenced to life in prison. This did not hold him back. He effected a daring escape from prison in 1621—stowed in a book-chest and then smuggled aboard a boat to France—but not before he had used his time in jail to write the bulk of what would become his masterpiece, De Jure Belli ac Pacis.49 Grotius would spend the rest of his life in various diplomatic roles, which he performed poorly, and writing books on all manner of controversy. Although he deemed himself a failure, Grotius would come over time to be fêted as the father of international law and of the modern international system.50 Grotius published De Jure Belli ac Pacis in 1625. Best described as baroque, it is a difficult book to read. Its dense prose and staggering eclecticism can overwhelm even the most dedicated student. Indeed, Martin Wight once compared the ex­peri­ence of reading it with trying to pick a path through a rhododendron bush: an abundance of boughs and thickets, precious few flowers.51 This was a natural consequence of Grotius’s way of proceeding, which involved searching for consensus on issues among different traditions of thought. This required him to examine how an issue has been treated historically, cross-culturally, and (risking anachronism) inter-disciplinarily. Grotius’s superior erudition enabled him to succeed in this task. Even so, the result could be confusing for the reader.52 Easing the pain somewhat, the book is is divided into four parts. The Prolegomena previews Grotius’s argument. Book I defines the concept of war. Book II details the jus ad bellum grounds for war. And Book III elaborates a set of jus in bello norms to apply to the conduct of war. Working within this schema, Grotius followed the course established by Suarez by separating out—though not entirely divorcing—the norms of war found in natural law from those codified in the ius gentium, with the latter anticipating what would later be called the 48  Hugo Grotius, Commentary on the Law and Prize of Booty, ed. by Julia van Ittersum, trans. by Gwladys L. Williams (Indianapolis: Liberty Fund, 2006); Hugo Grotius, The Free Sea, trans. by Richard Hakluyt, ed. by David Armitage (Indianapolis: Liberty Fund, 2004). 49 Hugo Grotius, The Rights of War and Peace, trans. by Jean Barbeyrac, ed. by Richard Tuck (Indianapolis: Liberty Fund, 2005). 50  His last words are said to have been: ‘By attempting many things, I have accomplished nothing.’ Quoted in: Karma Nabulsi, ‘An Ideology of War, Not Peace: Jus in Bello and the Grotian Tradition of War’, Journal of Political Ideologies 4:1 (1999), p. 14. 51  Martin Wight, Systems of States, ed. by Hedley Bull (Leicester: Leicester University Press, 1977), p. 127. 52  This was the subject of wry observation from none less than Voltaire. Speaking of Grotius, he complained: ‘he is very learned . . . but what does circumcision have to do with the laws of war and peace?’ Quoted in: Renee Jeffery, Hugo Grotius in International Thought (New York: Palgrave, 2006), p. 2.

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The Right of Conquest  101 customary law of nations.53 This approach was not conducive to clarity. Confronted with rival legal codes, Grotius’s reader had to decide which one ought to be given priority. As G. I. A. D. Draper has complained, while Grotius wrote expansively on what the ius gentium and natural law prescribed on any number of issues, he offered little guidance regarding what the law, understood as whole, demanded in any given case.54 Grotius’s approach was not without its own logic, however. In his hands, the ius gentium comprised a body of rules, formulated over time by states and their representatives, which determined what actions carried out in the international sphere were punishable by civil authorities. Man-made, these rules did not align perfectly with the demands of justice or charity. Nor did they prescribe what an actor must or ought to do in any given situation. They merely codified what states could do without incurring legal censure.55 Natural law, on the other hand, was a more exacting master. It stipulated not what counted as permissible conduct, but what counted as right conduct.56 Where, then, the ius gentium provided a min­ imal set of legal rules by which states and those who acted in their name could hold one another to account, natural law promulgated the higher standard binding on them in the court of conscience. Grotius extrapolated different norms of war from these different sources of law. The norms of war that Grotius discerned in the ius gentium aligned closely with the idea of regular war derived from the humanist tradition.57 Against this, the norms he discerned in natural law resembled those elucidated by Neo-Scholastic just war thinkers.58 Grotius did not view these different frameworks as working in opposition to one another. Rather, he perceived them as working in tandem. If all states were bound by the ius gentium to act in conformity with the jus ad bellum and jus in bello rules of regular war, natural law added a further set of demands that was modelled on scholastic just war doctrine but binding only in conscience. Supplementing the minimal and rather thin rules of regular war with more

53  In adopting this view, I follow: Stephen C. Neff, Justice among Nations: A History of International Law (Cambridge, MA: Harvard University Press, 2014), pp. 158–66. For a rival view: Lang, ‘Hugo Grotius’, p. 131. 54  In Draper’s own words, Grotius informed ‘his readers of the position under divine law, natural law, and the ius gentium, but it is often impossible to ascertain his views on what the law actually is or was on any given case.’ Draper, ‘Grotius’s Place’, p. 193. As Draper’s remark suggests, I have simplified what Grotius had to say by focusing exclusively on his treatment of natural law and the ius gentium. Grotius also spoke about divine law as well as a variety of other sources and types of law. Where I have cut corners, it is for ease of exposition. 55 Grotius, Rights of War and Peace, pp. 1272–3 [III.IV.I]. 56  Ibid., pp. 1480 [III.XIII.IV]; 1411–14 [III.X.I]. 57  Grotius referred to ‘solemn wars’ and ‘wars made in due form’. Ibid., pp. 250–1 [I.III.IV]. I retain the term ‘regular war’ for simplicity. 58  Gregory M. Reichberg, ‘Just War and Regular War: Competing Paradigms’, in David Rodin and Henry Shue (eds.), Just and Unjust Warriors: The Moral and Legal Status of Soldiers (Oxford: Oxford University Press, 2008), p. 205. Also see: Michael Donelan, ‘Grotius and the Image of War’, Millennium Journal of International Studies 12:3 (1983): 233–43.

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102 Victory extensive albeit unenforceable obligations derived from a thicker conception of justice could take two different but related forms. On the one hand, it could require states to refrain from or temper acts that would be lawful but also unjust or contrary to charity. On the other, it could impose on states a duty to undertake actions that would otherwise be deemed permissible but not obligatory.59 This way of proceeding shaped how Grotius approached questions pertaining to the legal effects of war. These questions occupied a prominent position in his writings. Indeed, his first engagement with the just war tradition took the form of an extended interrogation of the law of prize and booty.60 Similarly, De Jure Belli ac Pacis was the site of lengthy and often complex discussions of what Grotius variously termed the ‘right of war’, the ‘peculiar effects of right’, ‘the effects proper to a just war’, the ‘right of acquiring things taken in war’, the ‘effects of war’, and the ‘effects of Right’.61 Sticking with the first of these labels, Grotius treated the right of war in relation to a series of particular issues: wasting and plundering; the right to things taken in war; the right over prisoners; the jurisdiction that victors gain over those they conquer; and postliminy.62 Consistent with his general approach, Grotius assigned a pair of chapters to each of these issues, with the first chapter stating what the ius gentium permitted in each case, and its match noting any modifications or further requirements enjoined by natural law. In this way, Grotius supplemented a discussion of what the law allowed victors to do with some further thoughts on what morality required of them. For the sake of brevity, I will focus my analysis primarily on Grotius’s treatment of the right to things taken in war and of the jurisdiction that victors gain over those they conquered— two topics which, in any case, lie at the heart of this inquiry. Grotius’s account of the rights to things taken in war is spread across Chapters VI and XIII of Book III of De Jure Belli ac Pacis. Chapter VI explicitly relates what the ius gentium says about the issue to the regular war framework. It states: ‘By the law of nations, not only he who makes war for a just cause, but every man in a solemn [i.e., regular] war acquires the property of what he takes from the 59  Grotius set this out in a key passage: ‘I must now reflect, and take away from those that make war almost all the rights, which I may seem to have granted them; which yet in reality I have not. For when I first undertook to explain this part of the law of nations, I then declared that many things are said to be of right and lawful, because they escape punishment, and partly because courts of justice have given them their authority, though they are contrary to the rules, either of justice properly so-called, or of other vertues, or at least those, who abstain from such things, act in a manner more honest and more commendable in the opinion of good men.’ Grotius, Rights of War and Peace, p. 1411 [III.X.I]. Elsewhere: ‘Everything that is conformable to right properly so called is not always absolutely lawful; for sometimes our charity to our neighbour will not suffer us to use this rigorous right.’ Ibid., p. 1188 [III.I.IV]. Also: ‘It is one thing to have a regard to the laws and another to consider what justice demands.’ Ibid., p. 1274 [III.IV.II]. 60 Grotius, Commentary on the Law and Prize of Booty. 61 Grotius, Rights of War and Peace, pp. 1543 [III.XIX.XX]; 634 [II.VIII.I]; 1246 [III.III.I]; 1268 [III.III.XII]; 1358 [III.VI.XXVII]; 392 [II.I.I]. 62  These topics are treated respectively in Chapters V and XII; VI and XIII; VII and XIV; VIII and XV; and IX and XVI of Book III of the Rights of War and Peace.

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The Right of Conquest  103 enemy.’63 It further clarifies that this entitlement applies ‘without rule and without measure’, meaning that the amount of property a victor may claim is not subject to limitation.64 Grotius cited aphorisms put forward by several authorities in support of this claim. To quote just a few examples: • Xenophon: ‘It is an eternal law with all men, when a city is taken by force, the goods all belong to the conqueror.’ • Plato: ‘All that belonged to the conquered now belong to the conqueror.’ • Aristotle: ‘The law, which is a kind of general agreement, has allowed that the goods and effects of the conquered should become the conquerors.’ • Plutarch: ‘What did belong to the vanquished ought to be esteemed the vanquishers.’ • Plutarch: ‘The goods of those overcome in war are the reward of the victor.’ • Aeschines: ‘If you fight with us and take our city by arms, you justly possess the rule over it by the laws of war.’ • Cajus the Lawyer: ‘What is taken from the enemy, by the Law of Nations, immediately becomes the Captor’s.’ • Diodorus Siculus: ‘That we ought not to give up what we acquire by the right of war.’ • Dion Cassius: ‘What was the conquered’s becomes the conqueror’s.’ • Antiphanes: ‘We ought to wish our enemies abundance of riches without valour, for in that case they belong, not to their present possessors, but their conquerors.’ • Cicero: ‘Mytilene became the Romans’ by right of war and victory.’65 Grotius’s intention in citing so many sources was, we can assume, to demonstrate that there was a broad historical consensus that the victor in a war waged in due form was fully entitled to take possession of any goods and lands that had formerly been the property of the vanquished.66 Grotius tempered these claims in Chapter XIII. There he explained that while the ius gentium granted the victor of a regular war the right to expropriate the property of the vanquished, natural law limited this entitlement. Although a state was legally permitted under the terms of ius gentium to claim its winnings, justice and charity might demand it refrain from exercising this right in full. The understanding at work here was that, when it comes to staking a claim over goods that belonged to an enemy one had defeated in war, there is often a difference between what can be done lawfully and what it is right to do. The latter, it was supposed, 63 Grotius, Rights of War and Peace, pp. 1316–17 [III.VI.II]. 64 Ibid. 65  Ibid., pp. 1317–19 [III.VI.II]. 66  Grotius devoted considerable attention to delineating how different forms of property (e.g., lands, moveable goods, items found aboard enemy ships) could be claimed by the victor. These issues are treated on pp. 1320–5 [III.VI.III–VII].

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104 Victory was less permissive than the former. Specifically, it enjoined the victor to refrain from taking more from the enemy than is strictly just or necessary: For if we respect that which is done rightly, it is not really lawful to take, or keep from the enemy more than may be justly due from him, except what things (beyond the same due) we are obliged to detain for our necessary security; but when the danger is over, they are also to be restored in, either in kind or to the full value.67

Grotius did, however, concede that the right to seize the goods of the enemy could extend to the property of enemy subjects who had played no part in the war. Even though this involved imposing a burden on people who had done nothing to deserve it, it could be justified—according to both natural law and the ius gentium—by the victor’s right to satisfaction for both the initial wrong done to it, which was the occasion for the war, and any further damages it incurred in the course of the fighting that followed.68 All the same, Grotius counselled not only that states should act graciously by staying the hand where possible, but also that this was the surest way to consolidate a victory.69 A similar pattern is evident in Grotius’s treatment of the jurisdiction that victors gain over those they conquer. Grotius filed the first part of this discussion under the heading: ‘Of Empire Over the Conquered’. There he established that the ius gentium treats victory in war as a source of title. If, Grotius argued, the victor can make the vanquished his slave—which he believed to be the case—the victor may on the same basis ‘impose a subjection on the whole body, whether it be a state or part of a state’.70 This was tantamount to claiming ‘sovereignty may be acquired by conquest’.71 It confirmed victory as a legal basis for the annexation of the vanquished society.72 This generated considerable licence. It ordained that the right to rule that had previously resided in the government of the vanquished state now passed to the victor.73 Grotius devoted the second chapter on the jurisdiction that 67  Ibid., p. 1475 [III.XIII.I]. 68  Ibid., pp. 1476–8 [III.XIII.I–III]. 69  ‘The rules of charity reach farther than those of right. He that abounds in wealth is guilty of gross inhumanity if he strips his poor debtor of all that ever he is worth, by the rigour of the law, to satisfy his own debt . . . Wherefore, humanity requires us to spare the goods of those who are in no fault concerning the war, and who are no otherwise concerned than by way of suretyship . . . but especially if it appear that they shall receive no reparation from their own state.’ Ibid., p. 1480 [III.XIII.IV]. 70  Ibid., p. 1375 [III.VIII.I]. 71  Ibid., pp. 1376–7 [III.VIII.I]. 72  Grotius cited several authorities in support of this view. He noted how Tertullian had admitted that ‘empires are gained by arms and enlarged by conquests’ and commended Ninus as ‘the first who enlarged the bounds of his Empire, and subdued other countries by war, and from him it became a custom.’ Ibid., p. 1376 [III.VIII.I]. 73  ‘But as the goods of every particular prisoner, by the right of war, belong to the captors, so the goods of the people in general belong to the conquerors, if they please.’ Ibid., p. 1378 [III.VIII.IV]. Even, he continued, ‘those incorporeal rights, which belonged to the state, shall become the conqueror’s as far as he pleases . . . For he that is master of the persons, is also of the things, and of the rights belonging to them.’ Ibid., p. 1380 [III.VIII.IV]. Grotius elsewhere argued that the law of nations stipulated that anyone made captive in a regular war became the slave of their captor and could have their property expropriated. He later qualified this by noting that there is ‘a vast difference between what

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The Right of Conquest  105 victors gain over those they conquer to qualifying many of the permissions he had just seemingly endorsed. When, he argued, the fate not just of individuals but of entire nations was at stake, victors should tread gently and act with considerations of ‘humanity’ foremost in their minds.74 Accordingly, he urged victors to seek no further power over the vanquished society than justice demanded or was strictly necessary for security purposes. ‘As other things may be obtained in a just war, so the right of a sovereign over a people, and the right which the people themselves have, in regard to the sovereignty, may be acquired; but only so far as the degree of the punishment due to their crimes, or the value of any other debt, may justify.’75 Two fundamentally different accounts of how just war generates legal effects can thus be discerned in Grotius’s treatment of the rights of war. The first account derived from the classic scholastic doctrine of just war which Grotius preserved in his treatment of the natural law. Approached from this angle, victory in a just war could contribute to the realization of pre-existing legal rights, but not the constitution of new ones.76 Victory, then, was not a source of legal effects in its own right.77 Contrary to Gentili, it was not the simple fact of winning a just war, but the justice of the cause that underlay it, that produced what Grotius referred to as the rights of war.78 The second account derived from the regular war framework which Grotius enshrined in the ius gentium. Approached from this direction, victory could by itself constitute a claim to title—regardless of whether or not it had been won in the service of a just cause. This was based on a view of war as akin to a form of civil trial or ‘contract’ between the belligerents wherein they pledged to accept the verdict of battle as an authoritative resolution of their ­dispute.79 By committing to this, belligerents staked their claims to title, not on the justness of their causes, but on the ‘dice of Mars’.80 In direct opposition to the may be done to a slave by the law of nations, and what by natural right’. Ibid., pp. 1359–61 [III.VII.I]; 1483 [III.XIV.II]. 74  Ibid., p. 1498 [III.XV.I]. 75  Ibid. Grotius followed this up by detailing a list of less intrusive measures that victors could impose on the vanquished in lieu of wholesale annexation and conquest. These included the establishment some form of home rule constitutional arrangement, the stationing of military garrisons on the territory of the defeated power, etc. Ibid., pp. 1499–506 [III.XV.III–VIII]. 76  ‘If the just side was fortunate enough to triumph,’ Stephen Neff explains, ‘then it was entitled to recover the res [i.e., object or cause] over which the war was fought. But the just victor must go no further than that. He is only entitled to gain (or recover) possession of that which was already his, in the eyes of the law, before the war began.’ Neff, Justice among Nations, p. 70. 77 Stephen  C.  Neff, War and the Law of Nations: A General History (Cambridge: Cambridge University Press, 2005), p. 67. 78  The corollary of this was that victories won by unjust parties counted for very little in formal terms. An army fighting for an unjust cause could not acquire or generate any new rights or claims for itself simply by winning a war. Grotius, Rights of War and Peace, pp. 1417–18 [III.X.V–VI]. 79  Ibid., pp. 1417–18 [III.X.V]; 1543–5 [III.XIX.XX]. 80  The classic articulation of this view was furnished not by Grotius, but by his follower, the eminent German jurist Samuel Pufendorf (1632–94): ‘Practically all formal wars, certainly those where a peaceful agreement has been rejected by both sides, and the gage of battle taken up, appear to suppose an agreement that he upon whose side the fortune of war has rested can impose his will upon the

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106 Victory Neo-Scholastic just war doctrine that Grotius tied to natural law, this way of thinking about how war generates legal effects both rested upon and propagated the idea that might could make right.81 The tension between these two accounts of how war generates legal effects came to the fore when Grotius turned to the topic of unjust conquest. In cases where a belligerent had seized possession of another state in a formal but unjust war, should that claim be admitted or rejected? Are states obliged to accept the results of war even when they are manifestly contrary to justice? Grotius’s answer proceeded in three parts. In the first instance, he supposed that, so far as the law of nations was concerned, the result ought to stand. The belligerents had made an agreement to settle their dispute by war, and as such were under an obligation to accept the outcome of that war as binding.82 Second, he qualified this by noting that what appeared in the ius gentium as a cast-iron entitlement could nevertheless be deemed illegitimate under natural law. So it was for Grotius in this case: while he found no basis in the ius gentium for repudiating unjust conquests, he located one in the natural law.83 The final part of Grotius’s argument was, however, the clincher. It involved the contention that there issues from the natural law an imprimatur to abide by the ius gentium in cases where, even though it may depart from the strict demands of justice, doing so will contribute to the general good.84 This applied to unjust conquests. Although it is displeasing to admit unjust conquest as a fact of law, Grotius ceded, as it violates the principle that crime should never pay and smuggles in the might is right doctrine by the backdoor, he was willing to do so on the basis that it would contribute to the ‘good of Mankind’ by making wars easier to conclude and harder to re-kindle.85 conquered . . . [Whoever] resolved to take up war against another, when he could have settled the controversy by peaceful negotiations, is understood to have left the decision of the issue to the dice of Mars.’ Samuel Pufendorf, De Jure Naturae et Gentium, Libri Octo, trans. from 1688 edition by C. H. Oldfather and W. A. Oldfather (Oxford: Clarendon, 1934), p. 521 [V.IX]. On Pufendorf ’s treatment of these issues: Whitman, The Verdict of Battle, pp. 51–2; 78. Stephen Neff provides a useful gloss: ‘The essence of the war contract was that the winner . . . would acquire full legal title to the res that was being fought over without regard to how strong or weak its legal claim might have been beforehand.’ Neff, War and the Law of Nations, pp. 139–40. 81  Ibid., p. 140. 82  Pufendorf glossed Grotius’s position on this matter in a beautifully concise manner: ‘For in that case there is an open appeal to the arbitrament of Mars, and both sides enter the conflict with the thought: “Either I will revenge my right or injury in war, or else I will lose still more.” When those who rush into war in such fashion as this come out the worse for it, they can no more complain of the injury which they receive than can the man who is wounded in a duel of his own making.’ Pufendorf, De Jure Naturae et Gentium, pp. 901–2 [VIII.VIII]. 83  If a person ‘keeps in his possession a thing taken away by another in an unjust war, he is obliged to restore it.’ Grotius, Rights of War and Peace, pp. 1418 [III.X.VI]; 1417–18 [III.X.V]. For analysis: Korman, The Right of Conquest, p. 22. 84  The reader may recall that Grotius never entirely separated the ius gentium from natural law, but instead nested it loosely within it. On this point: Korman, The Right of Conquest, pp. 22–3. 85 Grotius, The Rights of War and Peace, pp. 1544–5 [III.XIX.XI]. Otherwise, as Jean Barbeyrac noted, ‘the conqueror could not be assured of the peaceable possession of what he had taken, or forced

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The Right of Conquest  107

Conclusion Victory evokes conquest. It conjures images of subjugation. Given this, it is understandable that contemporary just war theorists have been reluctant to engage this idiom. This has had the negative consequence, however, of ensuring that perfectly valid (and indeed important) questions about the legal effects of victory in a just war have been overlooked. Does victory in a just war generate certain rights or entitlements for the victor, and, if so, on what basis? Is just war generative of what we might call a ‘right of conquest’? And does this right extend even to cases where the victor does not have justice on its side? These are im­port­ ant issues, yet they have been neglected by today’s theorists.86 This means that when it comes to working through the kind of problems that the international community currently confronts in Libya, Syria, and the Crimea, to name just a few examples, policy-makers have no guidance available to fall back on beyond Colin Powell’s pottery barn rules. This is an unsatisfactory situation. It is interesting to note, then, that just war theorists have not always shied away from these questions. They were the object of sustained inquiry in the seventeenth century. Gentili and Grotius, two men who would play a vital role in the advent of international law, were at the forefront of this. In both cases, they provided a justification for the view that victory in war should be regarded as generative of rights, including in some cases the right of conquest. Their belief that this rule applied regardless of whether the victory had been won in a just or unjust war indicated a willingness on the part of the progenitors of modern just war thought to accept might as the basis of right. Is this a patrimony that today’s just war theorists would be well advised to disavow, or an inheritance we should (cautiously) re-claim? I will return to this question in the Conclusion.

the conquered to give him . . . since they might re-take it from him by the same right of war’. Ibid., pp. 1374–5 (fn. 1) [III.VIII]. 86  There are some partial exceptions. Brian Orend and George Clifford deny that victory is generative of rights in a just war. Orend writes that ‘the raw fact of victory does not itself confer rights upon the victor . . . Might does not equal right.’ Clifford identifies a tension between the idea of just war and the adage, ‘To the victor go the spoils.’ Orend, ‘Jus Post Bellum’, p. 122. George M. Clifford III, ‘Jus Post Bellum: Foundational Principles in a Proposed Model’, Journal of Military Ethics 11:1 (2012), p. 53.

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6

Mission Accomplished Major combat operations in Iraq have ended. In the Battle of Iraq, the United States and our allies have prevailed. President George W. Bush1

Introduction The penultimate problem that just war theorists find with victory pertains to the contingencies of modern warfare. It derives from a simple observation: Insofar as today’s wars are configured in such a way that they are fundamentally ‘unwinnable’, it would be anachronistic to address them in the idiom of victory.2 The claim arising from this is that, because victory has little relevance to what happens in contemporary wars, or, more specifically, to how they end, just war theorists are correct to ignore it. There is, it is submitted, no point in engaging a moribund concept. This chapter assesses this contention. It confirms that, to the degree that victory is understood through the prism of so-called ‘decisive battles’, which is the standard way it has historically been conceived, its critics have a fair point. Very few wars in any age, not just the present one, have ever concluded with a clear-cut victory for one side and an incontrovertible defeat for the other. There is, then, a sound historical basis for declaiming victory as an obsolete concept. While this is true, it is not, ­however, the entire story. It overlooks the moral weight that this idealized vision of victory carries today, and indeed has always carried. Reflecting on this insight, this chapter concludes that what the examination of the relevance of victory to modern war reveals is the dated conception of war that underpins just war thinking.

After Victory? The charge that victory is an obsolete concept can be, and indeed has been, ar­ticu­ lated in two different ways. The first approach, the more radical of the two, 1  President George W. Bush, ‘President Bush Announces Major Combat Operations in Iraq Have Ended, May 1st, 2003.’ Available at: https://georgewbush-whitehouse.archives.gov/news/releases/2003/ 05/20030501-15.html. Accessed: 10 April 2019. 2  This is a reference to the title of Theo Farrell’s magisterial history of Britain’s war in Afghanistan. Theo Farrell, Unwinnable: Britain’s War in Afghanistan, 2001–14 (London: Vintage, 2018). Victory: The Triumph and Tragedy of Just War. Cian O’Driscoll, Oxford University Press (2020). © Cian O’Driscoll. DOI: 10.1093/oso/9780198832911.001.0001

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Mission Accomplished  109 supposes that modern warfare is a sufficiently ghastly endeavour that any attempt to apply the language of victory must be in bad taste. When it comes to the mech­ an­ized slaughter of contemporary armed conflict, nobody wins. Rather, everybody loses.3 This view was famously expressed by Aristide Briand, a co-signatory of the Kellogg–Briand Pact of 1928 and the Premier of France for periods either side of the Great War: ‘In modern war there is no victor. Defeat reaches out its heavy hand to the uttermost corners of the earth and lays its burdens on victor and vanquished alike.’4 Bao Ninh, a veteran of the North Vietnamese army, put it in simpler but equally damning terms: ‘In war, no one wins or loses. There is only destruction.’5 Scholars of International Relations and military strategists have also expressed this view. Writing in the late nineteenth century, Ivan Bloch attracted attention with his wishful prediction that there would be no more wars in the future because, not only would they be impossible to win in any meaningful sense, they would also destroy all who partook in them. These views were popularized in the decades that followed by Norman Angell, who expounded repeatedly and at great length on the impossibility of victory in war in the modern era.6 The advent of nuclear weapons lent this view both greater credence and urgency. Bernard Brodie asserted that while the chief purpose of military establishments had thus far been to ‘win wars’, their main focus after Hiroshima must be to ‘avert them’.7 The British strategist Basil Liddell Hart concurred. Nuclear weapons, he argued, had made a mockery of traditional approaches to military science: ‘To aim at winning a war, to take victory as your object, is no more than a state of lunacy.’8 Finally, none less than the doyen of structural realism, Kenneth Waltz, opined that modern war produces no winners, only losers. ‘Asking who won a given war’, he argued, ‘is like asking who won the San Francisco earthquake. In war there is no victory, only varying degrees of defeat.’9 These claims are intuitively appealing, but they are overstated. It is too glib to declare victory in modern war an untenable proposition on the grounds that it can only be purchased at a terrible cost in human lives and suffering. The value of 3  One might think here of the line muttered by the protagonist in Brian van Reet’s recent war novel: ‘Even if you win, you lose.’ Brian van Reet, Spoils (London: Penguin, 2017), p. 199. 4  Quoted in: Richard Hobbs, The Myth of Victory: What is Victory in War? (Boulder: Westview, 1979), p. 477. 5  Quoted in: Christopher Finlay, Is Just War Possible? (Cambridge: Polity, 2019), p. 50. 6  The views of Bloch and Angell are discussed in: Margaret MacMillan, The War that Ended the Peace: How Europe Abandoned Peace for the First World War (London: Profile Books, 2013), pp. 270–3. 7  Bernard Brodie, The Absolute Weapon (New York: Harcourt Brace, 1946), p. 7. 8  Quoted in: Beatrice Heuser, The Evolution of Strategy: Thinkers from Antiquity to the Present (Cambridge: Cambridge University Press, 2010), p. 454. These sentiments gained enough traction that strategists have refuted them directly. Colin  S.  Gray, ‘Nuclear Strategy: The Case for a Theory of Victory’, International Security 4:1 (1979): 54–87; Colin S. Gray and Keith Payne, ‘Victory is Possible’, Foreign Policy 39 (1980): 14–27. 9  Kenneth Waltz, Man, the State, and War: A Theoretical Analysis (New York: Columbia University Press, 2001), p. 1.

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110 Victory a victory may be diminished but not entirely negated by a steep price-tag. For instance, while few people would celebrate the carnage of the First World War, it has to be admitted that it yielded several favourable outcomes: for example, the restoration of Belgian neutrality and the neutralization of the threat posed by Germany to the low countries. Similarly, while Allied operations in the Second World War produced a truly barbaric body-count and phased in the Cold War, they also contributed to the overthrow of Nazism. More recently, although the 1991 Gulf War arguably created more problems than it solved, it also reversed Iraqi aggression in Kuwait. In fine, although victory can be hideously costly in modern war, and it invariably achieves far less than it is intended to achieve, it is not an entirely vacuous concept.10 This brings us to the second way in which the contention that victory is an obsolete concept has been framed. A more refined position, it suggests that what has been rendered anachronistic by the advent of modern war is not the general concept of victory itself but the expectation that a victory, by its very nature, must be decisive. Several scholars have associated themselves with this view. Robert Mandel is a case in point. ‘There has been an observable decline in the proportion of wars in which there is a clear-cut winner or loser’, he writes. ‘It appears that wars do not end the way they used to, with fewer terminating in clean decisive victory for one side or the other.’11 Kevin Wang and James Lee Ray similarly observe that contemporary armed conflicts are highly unlikely to ‘end in overwhelming victory for one side or the other’ and instead tend to produce fudged or ‘ambiguous’ outcomes.12 Dominic Johnson and Dominic Tierney contend that ‘victory and defeat used to be far more obvious than they are today’, with Tierney also claiming both that we now live in ‘an age of unwinnable wars’ and that the notion of decisive victory has become little more than a ‘pipe-dream’.13 The contention in each of these instances is not, one will note, that the general idea of victory itself is past its sell-by date. Rather, it is the narrower expectation that a

10  John David Lewis, Nothing Less than Victory: Decisive Wars and the Lessons of History (Princeton: Princeton University Press, 2010); Edward  N.  Luttwak, ‘On the Meaning of Victory’, Washington Quarterly 5:4 (1982), p. 20; Michael Clarke, ‘The Ending of Wars and the Ending of Eras’, RUSI Journal 160:4 (2015), p. 5. 11  Robert Mandel, The Meaning of Military Victory (Boulder: Lynne Rienner, 2006), p. 12. Italics added. Also see: Robert Mandel, ‘Defining Postwar Victory’, in Jan Angstrom and Isabelle Duvesteyn (eds.), Understanding Victory and Defeat in Contemporary War (Abingdon: Routledge, 2007), p. 18. 12  Kevin Wang and James Lee Ray, ‘Beginners and Winners: The Fate of Initiators of Interstate Wars Involving Great Powers since 1945’, International Studies Quarterly 38:1 (1994), p. 143. Italics added. 13  Dominic P. Johnson and Dominic Tierney, Failing to Win: Perceptions of Victory and Defeat in International Politics (Cambridge, MA: Harvard University Press, 2006), p. 5; Dominic Tierney, The Right Way to Lose a War: America in an Age of Unwinnable Conflicts (New York: Little Brown & Company, 2015), p. 5; also see: Dominic Tierney, ‘The Ethics of Unwinnable War’, in Andrew R. Hom, Cian O’Driscoll, and Kurt Mills (eds.), Moral Victories: The Ethics of Winning Wars (Oxford: Oxford University Press, 2017), p. 125.

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Mission Accomplished  111 victory must, by definition, be decisive that is posited as out of step with contemporary realities. It is this view that I wish to explore.

The Myth of Decisive Victory The association between victory and decisiveness carries great resonance. Victory has historically been understood as closely associated with—or even predicated upon—the defeat of the enemy in so-called ‘decisive battles’. From classical Greece to the present day, the archetypal victory has been envisioned as something that is won, not by the use of strategic gambits or trickery, but by smashing the enemy army in open combat on the battlefield. This is evident in the visual representations that attach to victory in war. Pictures of soldiers erecting a trophy, planting a flag, taking a hill, and receiving the surrender of their erstwhile enemies are the images most commonly used to depict military success.14 The close relation between victory and decisive battle is also evident in the usage of the word ‘victory’ itself. The Oxford English Dictionary defines it as ‘the position or state of having overcome an enemy or adversary in combat, battle, or war; supremacy or superiority achieved as the result of armed conflict’.15 War memoirs suggest that the relation between victory and decisive battle is firmly embedded in the minds of soldiers too: the essence of victory, their authors tell us in a common refrain, is prevailing over one’s enemies in armed combat.16 This association between victory and decisive battle is usually traced (at least in its current usage) to the writings of Sir Edward Creasy, and in particular to his 1851 opus, Fifteen Decisive Battles of the World.17 Re-issued thirty-eight times between 1851 and 1894, it rivalled Charles Darwin’s Origin of the Species as one of the most popular books of the Victorian age.18 It purports to tell the story of western civilization by focusing on the major battles—for example, Marathon,

14  We have already seen in earlier chapters how victory in Greek and Roman times was dependent upon the erection of a trophy marking the point on the battlefield where the enemy army broke ranks and fled. The celebrated photographer Robert Capa has also written eloquently about how the Allies exploited ritualized surrender ceremonies to stage photographs intended to convey the moment and meaning of victory. Robert Capa, Slightly Out of Focus (New York: The Modern Library, 1999), p. 103. 15  Quoted in: Gabriella Blum, ‘The Fog of Victory’, European Journal of International Law 24:1 (2013), p. 394. Also see: William C. Martel, Victory in War: Foundations of Modern Strategy—Revised and Expanded Edition (Cambridge: Cambridge University Press, 2011), p. 21. 16  For example: Patrick Bury, Callsign Hades (London: Simon & Schuster, 2010), pp. 278–9; Philip Caputo, A Rumor of War (New York: Henry Holt & Company, 1996), p. xix; and Andrew Exum, This Man’s War (New York: Gotham Books, 2005), p. 234. One might also think of President George H. W. Bush’s observation (see fn. 27 of Chapter 2) that what it takes to confirm a victory is a ‘battleship Missouri surrender’. 17 Edward Creasy, Fifteen Decisive Battles of the World: From Marathon to Waterloo (London: Bentley, 1851). 18 John Keegan, The Face of Battle: A Study of Agincourt, Waterloo, and the Somme (London: Pimlico, 2004), pp. 57–64.

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112 Victory Syracuse, Gaugamela, Hastings, and Waterloo—that, as Creasy viewed it, not only settled wars but also decided the fate of nations for centuries to come and thus swayed the fortunes of mankind.19 Gauche though it was, Creasy’s exposition proved influential. It was soon taken up by other scholars and the study of de­cisive battles became a veritable cottage-industry—one that endures to the present day.20 Consequently, as generation upon generation of historians have posited pitched battles as the nodal points of history, it has become orthodox to believe not only that the fate of every nation hinges on victory in war, but also that victory in war is achieved by emphatically vanquishing one’s enemies in pitched battle.21 There is plenty of evidence to support the view that, when it is parlayed in terms of decisiveness achieved through success in pitched battle, victory has little relevance to contemporary armed conflict. Today’s wars hardly if ever culminate in a climactic battle where the winner takes all and the losing side has no choice but to accept the result. They are not configured this way. Today’s wars are more likely to descend into quagmire or drag out into some form of protracted lowintensity conflict. The best example of this is the 2003 Iraq War—a war initiated by the US and its allies as one front in the War on Terror.22 Military operations commenced in Iraq on 20 March 2003. Less than two months later, on 1 May, President George W. Bush declared victory. Speaking from the flight deck of the USS Abraham Lincoln and in front of a banner emblazoned with the words ‘Mission Accomplished’, President Bush proclaimed that the US and its allies had emerged as victors from the battle of Baghdad. That boast rings hollow today: Iraq is still a conflict-zone and the US is still embroiled in the region.23 What is most striking about this episode is not, however, the prematurity of the President’s remarks. Rather, it is the naivety of his belief that wars still end in this way: that is, decisively, with a clear-cut victory for one side and an admission of defeat on the other. If the war in Iraq has taught us anything, it is that this model of victory is now more ‘mission impossible’ than ‘mission accomplished’. 19 For a critique of this approach which stresses its whiggishness and ethnocentrism: Dennis Showalter, ‘Of Decisive Battles and Intellectual Fashions: Sir Edward Creasy Revisited’, Military Affairs 52:4 (1988), p. 206. 20  To list a few recent texts in this genre: Paul Davis, 100 Decisive Battles from Ancient Times to the Present (Oxford: Oxford University Press, 2001); Mir Bahmanyar, Vanquished: Crushing Defeats from Ancient Rome to the 21st Century (Oxford: Osprey, 2009); and Richard Overy, A History of War in 100 Battles (Oxford: Oxford University Press, 2014). 21 Yuval Noah Harari, ‘The Concept of “Decisive Battles” in World History’, Journal of World History 18:3 (2007), p. 251. 22  The War on Terror is an interesting case. Many commentators have declared it ‘unwinnable’ by design and dubbed it a ‘forever war’. For scholarly analysis: Michael Mandelbaum, Mission Failure: America and the World in the Post-Cold War Era (Oxford: Oxford University Press, 2016), p. 145; Mark Danner, Spiral: Trapped in the Forever War (New York: Simon & Schuster, 2016); Jan Angstrom, ‘The United States Perspective on Victory in the War on Terrorism’, in Jan Angstrom and Isabelle Duvesteyn (eds.), Understanding Victory and Defeat in Contemporary War (Abingdon: Routledge, 2007): 94–113. 23  See: Carter Malkasian, Illusions of Victory: The Anbar Awakening and the Rise of the Islamic State (Oxford: Oxford University Press, 2017).

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Mission Accomplished  113 Yet this is not all. Some scholars claim that the idea of decisive victory predicated on success in battle did not suddenly become problematic with the advent of the War on Terror, nor even with the birth of modern warfare. Rather, they argue, it has always been problematic.24 Russell F. Weigley is the leading pro­ pon­ent of this view. He contends that the idea of decisive victory through battle is a romantic trope left over from the only time in history when wars were routinely decided by a single clash of arms: that is, the long century book-ended by the battles of Breitenfeld (1631) and Waterloo (1815).25 Equal parts spectacular and appalling, but also particular to their historical context, the set-piece battles of this period, Weigley argues, have had a distorting effect upon how war has been understood ever since. Captivated by the drama and intensity of these clashes, military historians (and their readers) have come habitually to overstate their significance vis-à-vis warfare more generally.26 Ignoring the fact that that attrition and siege-craft, rather than grand battles, have been the principal means by which wars have been waged down the centuries, they have mistaken a particularity for the norm. Taking this into account, one is obliged to consider that the idea of decisive victory predicated on success in battle is an historical curio that, one interlude aside, has seldom had much relevance to the material realities of war.

The Power of Myth This, one might think, should be the end of the matter. The critics of victory have, it seems, been vindicated; their doubts proven. It is not merely that victory, couched in terms of decisiveness and indexed to success in pitched battle, has little salience to the vagaries of contemporary warfare, it is that—the seventeenth century aside—it has never had any salience. This is not, however, the whole story. While it is true that the idea of decisive victories achieved through pitched battle may be regarded as a product of bad historiography, or even a myth, this should not be taken to mean that it is of no importance to how warfare is understood and practised. Even if it is just a myth, the idea of victory through decisive battle still bears significant normative clout—what we might call moral weight. It does so by functioning as a regulative ideal that guides people’s understanding, not so much 24 Russell F. Weigley, The Age of Battles: The Quest for Decisive Warfare from Breitenfeld to Waterloo (Bloomington: Indiana University Press, 1991). Also: Cathal Nolan, The Allure of Battle: A History of How Wars have been Won and Lost (Oxford: Oxford University Press, 2017). 25  Brian Bond disagrees with Weigley’s periodization and also with some of his more emphatic conclusions (e.g., that war is no longer viable as an instrument of decision), but concurs with Weigley that the relation between victory and decisive battle has been overstated. Brian Bond, The Pursuit of Victory: From Napoleon to Saddam Hussein (Oxford: Oxford University Press, 1996), pp. 19–20. Weigley, The Age of Battles, p. 381. 26  Michael Howard speaks of military historians being seduced by the ‘historical pornography’ of decisive battles. Michael Howard quoted in: Nolan, The Allure of Battle, p. 5.

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114 Victory of how wars actually end, but of how they ought to end.27 Decisive victories may well be a rare beast, historically speaking, but they are also widely posited as the summum bonum of warfare, the goal toward which all military actors should strive. This does not, of course, rule out the possibility of other conceptions of victory. People, including military practitioners, occasionally speak about victory in other terms.28 For instance, the controversial ‘mowing the lawn’ strategy that the Israeli Defence Force is currently pursuing in Gaza assumes a vision of victory that is partial and provisional rather than decisive.29 These instances are, however, the exceptions that prove the rule. Decisive victory achieved through battle remains the ideal.30

The Western Way of War This argument can be derived from the writings of, among others, the controversial historian Victor Davis Hanson. Hanson has devoted several influential books to making the case that the idea of decisive victory through battle continues to carry moral weight in western culture even though a very long time has passed since it was salient in a military sense.31 Hanson accounts for the enduring moral weight of this idea by reference to its centrality in the taproots of western political culture. If ancient Greece was the cradle of western civilization, it was also the culture that gave birth to the idea of decisive victory through battle.32 It fostered the belief that the best way for communities to settle any disputes that diplomacy

27  It is useful to recall the distinction John Lynn draws between the ‘discourse of war’ and the ‘reality of war’. The discourse of war conveys a ‘perfected version of reality’ that is comprised by ‘conceptions of how war should be’. It operates in tandem with the reality of war, guiding our understanding of it. I want to argue, then, that the idea of decisive victories through battle is part of the discourse of war. John A. Lynn, Battle: A History of Combat and Culture (Cambridge, MA: Westview Press, 2003), p. xix. 28  See: Eric Patterson, ‘Victory and the Ending of Conflicts’, in Andrew R. Hom, Cian O’Driscoll, and Kurt Mills (eds.), Moral Victories: The Ethics of Winning Wars (Oxford: Oxford University Press, 2017), p. 104. 29  Efraim Inbar and Eitan Shamir, ‘“Mowing the Grass”: Israel’s Strategy for Protracted Intractable Conflict’, Journal of Strategic Studies 37:1 (2014): 65–90. 30 Eric Patterson, Just American Wars: Ethical Dilemmas in U.S.  Military History (New York: Routledge, 2019), p. 161. 31  Among these works are: Victor Davis Hanson, Carnage and Culture: Landmark Battles in the Rise of Western Power (New York: Anchor Books, 2001); Victor Davis Hanson, The Western Way of War: Infantry Battle in Classical Greece (Berkeley: University of California Press, 2009); and Victor Davis Hanson, The Soul of Battle: From Ancient Times to the Present Day, How Three Great Liberators Vanquished Tyranny (New York: Anchor Books, 2001). Also: James Q. Whitman, The Verdict of Battle: The Law of Victory and the Making of Modern War (Cambridge, MA: Harvard University Press, 2012), pp. 37–40. 32  ‘Where did the idea arise that men would seek their enemy face-to-face, in a daylight collision of arms, without ruse or ambush, with the clear intent to destroy utterly the army across the plain or die honourably in the process? Decisive battle evolved in early 8th century bce Greece and was not found earlier or elsewhere.’ Hanson, Carnage and Culture, pp. 92–3; also Hanson, The Soul of Battle, p. 37.

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Mission Accomplished  115 could not unlock was to send citizen armies to face one another across an open battlefield and there fight it out. In Hanson’s own words, ‘hoplite infantry battle was at the symbolic centre of Greek warfare. It proved the most decisive means to settle disputes—instantaneously, economically, ethically.’33 Underlying this way of resolving conflicts was a faith in the integrity of battle. The Greeks, according to Hanson, identified ‘an inherent truth in battle’.34 By confronting one another across an open plain in a kill-or-be-killed scenario, they committed to testing not only their valour but also the values they fought for against one another in the white heat of combat.35 What transpired was to be respected as ‘the verdict of the battlefield’.36 Hanson’s overarching argument is that these ideas, which he bundles together as the western way of war, still resonate today.37 Though some aspects of Hanson’s argument are simplistic, and others downright chauvinistic, he is correct to argue that the western tradition has always assigned greater moral value to a victory won through a pitched battle than to one won by any other means. The history of western thinking about war from classical Greece to the present day is marked by both a ‘repugnance’ for the adoption of tactics (such as terrorism and hit-and-run guerrilla skirmishing) that circumvent the opportunity for pitched battle, and a readiness to sneer at any victories won by those means as somehow less worthy.38 This suggests that Creasy did not, so to speak, invent the idea of decisive victory through pitched battle. He was merely the first to formalize a trope that had long been prevalent in western thinking about war. There is an abundance of evidence to support this view. In the classical world, Odysseus was scorned for his predilection for overcoming his enemies by guile rather than by hand-to-hand combat. Hecuba famously disparaged him as ‘a foul man of trickery, an enemy of justice, a lawless monster who turns everything inside out and then back again with his double tongue’.39 Herodotus recorded Tomyris, the Queen of Massagitai, lambasting the Persian king for relying on trickery to overcome a foe ‘rather than conquering him by force in battle’.40 Thucydides’ history of the Peloponnesian War captures the Spartans deriding an Athenian victory gained by the use of stand-off tactics as ill-gotten.41 In the fourth century bce, Alexander the Great valorized victories won by direct confrontation in pitched battles. He responded with contempt when his adviser Parmenio 33 Hanson, The Western Way of War, p. xxxvi. 34 Hanson, Carnage and Culture, pp. 6–7. 35 Hanson, The Soul of Battle, p. 5. Hanson, Carnage and Culture, pp. 6–7. 36 Hanson, Carnage and Culture, pp. 6–7. 37 Hanson, The Western Way of War, p. 227. 38 Hanson, The Western Way of War, pp. 13–14; xv. 39  Euripides, ‘The Trojan Women’, in Euripides: The Trojan Women and Other Plays, ed. and trans. by James Morwood (Oxford: Oxford University Press, 2001), p. 46 [283–8]. 40 Herodotus, The Histories, trans. by Robin Waterfield (Oxford: Oxford University Press, 1998), p. 93 [I.212]. 41 Thucydides, The War of the Peloponnesians and the Athenians, ed. and trans. by Jeremy Mynott (Cambridge: Cambridge University Press, 2013), pp. 254–9 [IV.30–40].

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116 Victory proposed launching a night-time ambush on their foes: ‘The policy you are ­suggesting is one of bandits and thieves. . . . I am resolved to attack openly and by daylight. I choose to regret my good fortune rather than be ashamed of my victory.’42 Beyond the classical world, knights in the middle ages were wont to burnish their victories by exaggerating the importance of battles, and downplaying the part played by more humdrum modes of warring, such as raiding, in delivering them.43 These views also carried over into the canon of modern strategic thought. The two seminal figures in this tradition, Niccolò Machiavelli and Carl von Clausewitz, did a great deal between them to advance and indeed consolidate the view that, despite its lack of connection with the historical realities of warfare, the concept of decisive victory through success in pitched battle nevertheless ­carries (and indeed has always carried) considerable normative weight.

Machiavelli Born in Florence in 1469, Machiavelli was (no pun intended) the very definition of a Renaissance man: a diplomat, historian, philosopher, politician, and playwright, he also wrote poetry and is often credited as the first political scientist and a founding father of Strategic Studies.44 He served as a senior official in the Florentine Republic when the Medici were in power but is best known for The Prince, a mirror-for-princes text he composed in 1513.45 It is, however, his military treatise The Art of War, published in 1521, six years before his death, that interests us here.46 ‘An awkward attempt to combine the form of the humanist dialogue, inspired by Plato and Cicero, and the subject-matter of ancient military treatises, notably that of Vegetius’, the aim of The Art of War was to ‘provide a blueprint for a revival of ancient Roman military methods and values and to define the proper place of war and a correctly organized military in a state’s political and military culture’.47 A powerful statement of civic republicanism applied to military 42  Plutarch quoted in: Hanson, The Western Way of War, p. 14. Much the same story can be told about the Romans, who juxtaposed their distaste for victories won by underhand tactics with their admiration for victories won by prowess in open combat. 43  The biography of William Marshal (who we met in Chapter 3) is a case in point, and it is notable that the chroniclers of the Hundred Years War placed the battles of Crécy, Poitiers, and Agincourt central to their narratives, even though they did not play a determining role in the outcome of the war. On William Marshal: David Crouch, William Marshal: Knighthood, War and Chivalry, 1147–1219 (London: Longman, 2002). On the Hundred Years War: Nolan, The Allure of Battle, pp. 39–41. 44  James B. Atkinson, ‘Niccolò Machiavelli: A Portrait’, in John M. Najemy (ed.), The Cambridge Companion to Machiavelli (Cambridge: Cambridge University Press, 2010): 14–30. 45 Niccolò Machiavelli, The Prince, ed. by Quentin Skinner and Russell Price (Cambridge: Cambridge University Press, 1988). 46  Niccolò Machiavelli, The Art of War, trans. by Ellis Farneworth, rev. by Neal Wood (Cambridge, MA: Da Cap, 2001). 47  Mikael Hornqvist, ‘Machiavelli’s Military Project and the Art of War’, in John M. Najemy (ed.), The Cambridge Companion to Machiavelli (Cambridge: Cambridge University Press, 2010), p. 121.

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Mission Accomplished  117 matters, it would later be cited by both Frederick the Great and Clausewitz as among their favourite works.48 The Art of War is a multifaceted book, but I want to concentrate on just one aspect of it: the importance it ascribed to pitched battle. The heart of the book is devoted to an account of an imaginary battle (modelled on the battle in Xenophon’s Cyropaedia between Cyrus and Croesus) pitched in the present tense and written with an urgency that the rest of the book lacks. The signal is given . . . See with what virtu our men charge . . . The two armies are now engaged . . . Behold what havoc they wreak among the enemy; see with what virtu, confidence and coolness they press upon them; see how closely they are engaged with them . . . What carnage! How many wounded men! They are beginning to flee . . . The battle is over. We have won a glorious victory.49

The vigour of Machiavelli’s presentation is consistent with his underlying purpose, which was to impress upon his readers that ‘the aim of war must be to face an enemy in the field and to defeat him there; this is the only way to bring a war to a happy conclusion’.50 Battle, Machiavelli wrote, could serve this purpose because, by presenting men with the option to ‘conquer or die’, it challenged them to be the best they could be.51 Consequently, where a general had the opportunity to press his cause by means of open battle, he ought always to do so. Failure to do so must, he concluded, be regarded as a stain on his reputation.52

Clausewitz Like Machiavelli, Clausewitz scarcely needs any introduction.53 Born in a small town 70 miles southwest of Berlin in 1780, he experienced his first taste of war at the age of twelve when he helped drive the French army from the Rhineland. He later fought against the armies of Napoleon at Jena and (for Russia) at Borodino, partook in the Waterloo campaign, and assumed the directorship of the Prussian Military Academy. He died in 1831. His opus, On War, a work that brought German philosophical idealism and the influence of Machiavelli to bear on the subject of warfare, was published in unfinished form in 1832 by his wife, Countess Marie von Bruhl. On War is now widely recognized as the classic work in the field of Strategic 48  Felix Gilbert, ‘Machiavelli: The Renaissance of the Art of War’, in Peter Paret (ed.), Makers of Modern Strategy: From Machiavelli to the Nuclear Age (Oxford: Clarendon, 1986), p. 27. 49 Machiavelli, The Art of War, pp. 92–4 [III]. 50  Gilbert, ‘Machiavelli’, p. 23. 51 Machiavelli, The Art of War, p. 129 [IV]. 52  Ibid., pp. 122–7 [IV]. Machiavelli did allow, however, that this expectation was only binding in cases where joining battle would be advantageous. Ibid., p. 125 [IV]. 53  These biographical remarks draw on: Paret, ‘Clausewitz’, in Peter Paret (ed.), Makers of Modern Strategy: From Machiavelli to the Nuclear Age (Oxford: Clarendon, 1986): 186–213.

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118 Victory Studies.54 Its contribution, as identified by Christopher Coker, was to reveal for the very first time the full extent of the unfathomable complexity of war.55 Clausewitz argued in On War that war is defined by the end that governs it, victory, which he equated with overcoming the enemy. ‘To overcome the enemy or disarm him—call it what you will—must always be the aim of war.’56 The best way of achieving this objective was, for Clausewitz, through the act of fighting itself. ‘The whole of military activity must therefore relate’, he wrote, to combat. ‘The end for which a soldier is recruited, clothed, armed, and trained, the whole object of his sleeping, eating, drinking, and marching is simply that he should fight at the right place and the right time.’57 Instead, then, of directing the efforts of an army toward manoeuvre, its leader, if he is smart, will seek to engage the enemy in a pitched battle. Clausewitz elaborated: The major battle is therefore to be regarded as concentrated war, as the centre of gravity of the entire conflict or campaign . . . all forces and circumstances of war are united and compressed to maximum effectiveness in the major battle . . . Even under general conditions of inactivity—so characteristic of many wars—the possibility of battle always remains a focus for both sides, a distant aim toward which their courses of action can be directed.58

Whenever a state seeks victory in war, Clausewitz concluded, battle is the best way of attaining it.59 ‘The decision by arms is for all major and minor operations in war what cash payment is in commerce.’60 Clausewitz was not, however, blind to the brutishness of battle. ‘Battle is the bloodiest solution’, he wrote, and it trades in slaughter.61 But battle, for Clausewitz, was not just a physical test. It was also a moral one: ‘Physical casualties are not the only losses incurred by both sides in the course of the engagement: their moral strength is also shaken, broken, and ruined. . . . Every engagement is a bloody and destructive test of physical and moral strength.’62 The implication of this, which Clausewitz endorsed, was that decisive victory, when won through battle, unified ‘might and right’.63 The broader point, however, is that, regardless of its practicality or lack thereof, Clausewitz, like Machiavelli before him, lauded decisive victory through pitched battle as the acme of warfare. This view would acquire potency in the centuries that followed. In the eighteenth and nineteenth cen­tur­ ies, for example, Machiavelli and Clausewitz found apostles in Frederick the 54  See: Colin  S.  Gray, The Strategy Bridge: Theory for Practice (Oxford: Oxford University Press, 2010), pp. 1–2. 55  Christopher Coker, Rebooting Clausewitz: On War in the 21st Century (London: Hurst, 2017), p. 157. 56  Carl von Clausewitz, On War, ed. and trans. by Michael Howard and Peter Paret (Princeton: Princeton University Press, 1989), pp. 77 [I.I]; 142–3 [II.II]; 595–6 [VIII.IV]. 57  Ibid., p. 95 [I.II]. 58  Ibid., pp. 258–9 [IV.IX]; also p. 248 [IV.IX]. 59  Ibid., pp. 258–9 [IV.IX]. 60  Ibid., p. 97 [I.II]. 61  Ibid., p. 259 [IV.IX]. 62  Ibid., pp. 231–2 [IV.IV]. 63  Ibid., p. 232 [IV.IV].

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Mission Accomplished  119 Great and Napoleon, both of whom proclaimed themselves disciples of the view that ‘war is decided only by battles and is not finished except by them’.64

The Victory of Vattel’s Just War This leads us, finally, to the just war tradition. Is it also wedded to the morally resonant view of decisive victory as a function of battle? The mid-eighteenth century writings of Emer de Vattel are reflective of the course of the tradition in this respect. Vattel was born in the Swiss canton of Neuchâtel in 1714 a year after the conclusion of the Treaty of Utrecht.65 The son of Protestant refugees, he enjoyed a comfortable upbringing. Educated in the humanist tradition, he spent his youth reading the great works of classical antiquity as well as the writings of Grotius, Pufendorf, and of course Christian Wolff, whose systematic approach to the law of nations Vattel later sought to emulate. Vattel graduated from his studies to become a talented diplomat—though not talented enough to secure the post he sought in the service of Frederick the Great in 1742.66 Later in his career he served Augustus III. What gave rise to this opportunity was the acclaim that Vattel’s landmark work, The Law of Nations or the Principles of Natural Law Applied to the Conduct and to the Affairs of Nations and Sovereigns (hereafter The Law of Nations), generated upon its publication in 1758. From the moment of its appearance, it attracted great interest. ‘Numerous editions and translations followed, and its influence reached across the Channel to England and from there to the United States, where the book soon became a reference manual in American universities.’67 Although it fell out of favour in the twentieth century, the status of The Law of Nations was uncontested till then: ‘quoted by judicial tribunals, in speeches before legislative assemblies, and in the decrees and correspondence of executive officials, it was the manual of the student, the reference-work of the statesman, and the text from which the political philosopher drew inspiration’.68 Its success was justified. The Law of Nations is a monumental work. Published at the midpoint of the Seven Years War (1556–63), its principal purpose was to revise the moral and legal rules that governed relations between communities in 64  Frederick the Great quoted in: Lynn, Battle, p. 130. On Napoleon, see pp. 199–200 of the same text. 65 See: Theodore Christov, ‘Emer de Vattel (1714–1767)’, in Daniel  R.  Brunstetter and Cian O’Driscoll (eds.), Just War Thinkers: From Cicero to the 21st Century (Abingdon: Routledge, 2018), pp. 156–7. 66  Stephane Beaulac, ‘Emer de Vattel and the Externalization of Sovereignty’, Journal of the History of International Law 5 (2003), p. 243. 67  Emmanuelle Jouannet, ‘Emer de Vattel (1714–1767)’, in Bardo Fassbender and Anne Peters (eds.), The Oxford Handbook of the History of International Law (Oxford: Oxford University Press, 2012), p. 1118. 68  Charles G. Fenwick, ‘The Authority of Vattel’, American Political Science Review 7:3 (1913), p. 395.

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120 Victory light of, on the one hand, the crystallization in Europe at least of a society of sovereign, equal, and independent states and, on the other, the lingering presence of confessional and dynastic threats to that society. The point of departure for this exercise was the insight that the law of nature cannot be applied to sovereign states in the same way it is applied to individuals. Vattel framed it thus: ‘The rules and decisions of the law of nature cannot be purely and simply applied to sovereign states . . . they must necessarily undergo some modifications in order to accommodate them to the nature of the new subjects to which they apply.’69 Vattel’s response to this challenge was intriguing. Following Grotius, he submitted that states were obliged to ‘respect and follow in all their actions’ the ‘necessary law of nations’, which was effectively the natural law as it was traditionally understood, while concern for the general welfare enjoined them to tailor their inter­ actions with one another to conform with the ‘voluntary law of nations’, which was another label for what Grotius had called the ius gentium.70 Vattel’s discussion of warfare is confined to Book III of the text. Noting the awfulness of war, it opens with a statement that any prince who initiates it unjustly is culpable of a terrible crime: ‘The violences, the crimes, the disorders of every kind attendant on the tumult and licentiousness of war, pollute his conscience and are set down to his account as he is the original author of them.’71 War may, however, be justified in cases where a prince, acting on authority and without regard to his own advantage, seeks to prosecute a lawful cause: The right of employing force, or making war, belongs to nations no farther than is necessary for their own defence and for the maintenance of their rights. Now if any one attacks a nation, or violates her perfect rights, he does her an injury. Then, and not till then, that nation has a right to repel the aggressor, and reduce him to reason. Further, she has a right to prevent the intended injury, when she sees herself threatened with it. Let us then say in general that the foundation or cause of every just war is injury, either already done or threatened.72

Alongside this, Vattel, citing the Roman fetial laws as a precedent, proposed that the prince was obliged to formally declare war.73 These stipulations permitted Vattel to keep faith, superficially at least, with the traditional scholastic axiom that 69 Vattel, The Law of Nations, p. 10 [Preface]. 70  Ibid., p. 17 [Preface]. What this meant has been the subject of dispute. While it is clear that Vattel conceived of the necessary law of nations as an expression of traditional just war doctrine and regarded the voluntary law of nations as a vehicle for the precepts of regular war, the relation between these two bodies of law has been fiercely contested. See: Richard Devetak, ‘Law of Nations as Reason of State: Diplomacy and the Balance of Power in Vattel’s Law of Nations’, Parergon 28:2 (2011): 105–28; Ian Hunter, ‘Vattel’s Law of Nations: Diplomatic Casuistry for the Protestant Nation’, Grotiana 31 (2010): 108–40; and Simone Zurbuchen, ‘Vattel’s Law of Nations and Just War Theory’, History of European Ideas 35 (2009): 408–17. 71 Vattel, The Law of Nations, pp. 482–3 [III.III]. Also: pp. 586–8 [III.XI]. 72  Ibid., p. 483 [III.III]. 73  Ibid., pp. 500–8 [III.IV].

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Mission Accomplished  121 a war can only be just on one side.74 Yet Vattel also qualified his commitment to this position by admitting that, although a war cannot be just on both sides, it may be prudent to treat both armies as acting lawfully ‘at least as to external effects and until the decision of the cause’.75 Elements of both just war and regular war thinking thus informed his approach.76 Vattel curbed the jus ad bellum licence to wage war with a robust statement of jus in bello principles. While a prince was entitled to use all means necessary in the pursuit of a just cause, Vattel argued, he was not permitted to do anything that went beyond what necessity covered. ‘Right’, he noted, ‘goes hand in hand with necessity and the exigency of the cause but never exceeds them.’77 He also argued that war should be waged in a manner that treated the enemy with respect and did not foreclose the possibility of peace being restored in the aftermath of war. ‘Let us never forget that our enemies are men’, he counselled, lest we destroy the possibility of all future concord. ‘Though reduced to the disagreeable necessity of prosecuting our right by force of arms, let us not divest ourselves of that charity which connects us to all mankind . . . Let our valour preserve itself from every stain of cruelty and the lustre of victory will not be tarnished by inhuman and brutal actions.’78 It was in the course of translating these general principles into action-guiding laws that pertained to some of the more controversial aspects of eighteenth-century warfare—namely, the use of poison and stratagems—that Vattel addressed the matter of victory. He posited victory through decisive battle as the end that these means should be evaluated against. His reasoning is instructive in both cases. Labelling it ‘treacherous murder’ and positing it as contrary to ‘honour’, Vattel rejected the use of poison in war.79 His complaint was that the use of poison against an enemy does not allow the victim a chance to defend him or herself. It precludes the possibility of a fair fight between warriors who accepted the mutual risk of death at one another’s hands. Vattel cited several examples from antiquity to support his contention that victories won in this manner are of less value than victories won through battle. It was a maxim of the Roman Senate, he noted, that war was to be ‘carried on with arms and not with poison’.80 He also approvingly quoted Tiberius’ refusal to consider poisoning Arminius on the grounds that ‘it was the practice of the Romans to take vengeance on their en­emies by open force, and not by treachery and secret machinations’.81 Vattel’s 74  Ibid., pp. 487–8 [III.III]. 75  Ibid., p. 489 [III.III]. 76 Ibid., pp. 589–93 [III.XII]. On Vattel’s approach to regular warfare: Pablo Kalmanovitz, ‘Sovereignty, Pluralism, and Regular War: Wolff and Vattel’s Enlightenment Critique of Just War’, Political Theory 46:2 (2018): 218–41. 77 Vattel, The Law of Nations, pp. 541–2 [III.VIII]. 78  Ibid., pp. 563–4 [III.VIII]. 79  Ibid., pp. 557–9 [III.VIII]. Also see: ‘In treacherously administering poison there is something still more odious than in assassination: it would be more difficult to guard against the consequences of such an attempt; and the practice would be more dreadful; accordingly it has been more generally detested.’ Ibid., p. 560 [III.VIII]. 80  Ibid., p. 561 [III.VIII]. 81 Ibid.

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122 Victory conclusion was emphatic: ‘Assassinations and poisoning are therefore contrary to the laws of war, and equally condemned by the law of nature and the consent of all civilised nations. The sovereign who has use to such execrable means should be regarded as the enemy of the human race.’82 Vattel devoted more attention to stratagems.83 He argued that, so long as they could be passed off as an extension of pitched battle, they should be considered justifiable.84 He did not perceive a meaningful distinction between, say, cunning tactical manoeuvres on the battlefield and the practice of ambushing an enemy in a surprise attack. Rather, he was happy to approve the latter on exactly the same grounds that he approved the former. In his own words: ‘When, by leading the enemy into an error, either by words in which we are not obliged to speak truth, or by some feint, we can gain an advantage in the war, which it would be lawful to seek by open force, it cannot be doubted that such a proceeding is perfectly justifiable.’85 Indeed, so long as it does not depart from the norms of open battle, such a course of action may even be desirable. By accelerating and sharpening the moment of pitched combat, without in any way betraying its spirit, stratagems promise to make warfare less destructive, and are therefore a morally attractive proposition. Vattel put it thus: ‘Since humanity obliges us to prefer the gentlest methods in the prosecution of our rights—if, by a stratagem, by a feint void of perfidy, we can make ourselves masters of a strong place, surprise the enemy, and overcome him, it is much better, it is really more commendable, to succeed in this manner than by a bloody siege or the carnage of battle.’86 Insofar, then, as Vattel was willing to approve stratagems, this was only to the degree that they promised, not to diminish, but to expedite and thus enhance the experience and indeed efficacy of open combat. It is, however, the rider that Vattel attached to this qualified defence of stratagems that is the key to this discussion. It proceeded from his critical discussion of the Romans’ disdain for ‘every kind of artifice, surprise, or stratagem in war’.87 82  Ibid., p. 562 [III.VIII]. 83  Following in the footsteps of Christine de Pizan, among others, he drew a sharp distinction between perfidy and stratagems. Perfidy entails acts of trickery that violate an oath sworn to the enemy. A pernicious exploitation of the enemy’s good faith, it undermines the sanctity of the rules of war and jeopardizes future prospects of a just peace. Perfidy, Vattel argued, was to be condemned. Stratagems, including ambushes, guile, and snares, are not duplicitous in the same way. Although they too rely on sleight of hand, they do not involve the contravention of an oath. Vattel, The Law of Nations, pp. 579–80 [III.X]. Christine de Pizan, The Book of Deeds of Arms and of Chivalry, trans. by Sumner Willard, ed. by Charity Cannon Willard (University Park, PA: Pennsylvania State University Press, 1999), pp. 163–4 [III.XIII]. 84  Stratagems attracted a great deal of attention in eighteenth-century discussions of the laws of war. This is presumably a consequence, in part at least, of the importance attached to them by Frontinus and Vegetius, the authors of Roman treatises on war that proved highly influential on medieval and early modern thinking about war. On this: David Whetham, Just Wars and Moral Victories: Surprise, Deception and the Normative Framework of European War in the Later Middle Ages (Leiden: Brill, 2009). 85 Vattel, The Law of Nations, p. 579 [III.X]. Italics added. 86  Ibid. Italics added. 87  Ibid., p. 580 [III.X].

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Mission Accomplished  123 As Vattel saw it, the Roman refusal to countenance any use of guile whatsoever was admirable but foolish. His primary concern was that it failed to pay due regard to the fact that the object of war is not to display prowess, but to defend one’s country. That being the case, Vattel concluded, one is obliged to employ the most certain means of attaining that end, so long as those means are not inherently unlawful.88 To do anything less, he believed, would be a dereliction of duty. Yet, naïve though it was, Vattel also saw some merit in the Roman position. It must be confessed, he granted, that ‘when we defeat an enemy by open force in pitched battle, we may entertain a better-grounded belief that we have subdued him and compelled him to sue for peace than if we had gained the advantage over him by surprise’. Therefore, he continued, ‘when plain and open courage can secure the victory, there are occasions when it is preferable to artifice, because it procures the state a greater and more permanent advantage’.89 What we see here is final proof of Vattel’s underlying attachment to the ideal of victory through decisive battle. While he was prepared to accept that stratagems will sometimes get the job done, his general assumption was that defeating one’s adversaries in open battle was still the surest way to win a decisive victory. This mattered, moreover, because winning a decisive victory was the surest path to peace. Vattel’s views on these matters were not unusual. They corresponded neatly with how earlier just war thinkers tackled the question of the relation between the quality of a victory and how it was won. Alberico Gentili, for example, expressed qualified approval for the use of guile in war while at the same time expressing a preference for victories won in battle. On the one hand, he contended that Xenophon, Brasidas, and Thucydides had been right to reject the old adage, ‘shameful the victory won by craft’.90 On the other, he endorsed the view that that ‘a “regular victory”, meaning one that is great and decisive’ is best won by ‘regular pitched battle’.91 Hugo Grotius argued likewise. He acknowledged the right of states to avail of certain forms of trickery in war, while also attaching strict limits to that right, and praising victories won through battle as the most valuable. He quoted passages from several classical figures, including Alexander the Great, Eurypides, Polybius, Livy, and Tacitus, in support of the view that a victory won by means other than a fair fight was a victory stolen.92 He endorsed the idea that the Romans could be considered truly valiant because they overcame their en­emies, not by craft and subtlety, but by ‘plain force’.93 Finally, he suggested that a victory won by pitched battle was more likely to result in a stable peace than any other kind of victory because the defeated party could have no doubt that it had been ‘fairly vanquished’.94 88  Ibid, p. 581 [III.X]. 89  Ibid., pp. 581–2 [III.X]. Italics added. 90  Alberico Gentili, De Iure Belli Libri Tres, trans. by John  C.  Rolfe, ed. by Coleman Phillipson (Oxford: Clarendon Press, 1933), p. 143 [II.III]. 91  Ibid., pp. 13–14 [I.II]. 92 Grotius, The Rights of War and Peace, pp. 1228–9 [III.I.XX]. 93 Ibid. 94 Ibid.

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124 Victory These ideas still resonate in contemporary just war theory. This is most evident in the work of Michael Walzer, who has argued that one of the main problems with irregular warfare is that, to the degree that it precludes a fair fight between the belligerents, it cannot produce a morally meaningful outcome.95 The unease that attends the waging of war by predator drones stems from a similar source.96 The conclusion to draw here is that decisive victory through success in pitched battle may be a myth, but it still carries considerable normative clout. This is reflected in the role it has played in the writings of Emer de Vattel and, sprouting from this, in the historical development of the just war tradition more generally.

Conclusion There is a scene in Shakespeare’s Macbeth when the murdered Banquo shows up at a feast, where, as a ghost, he remains unseen by everyone except the man who killed him, Macbeth.97 The idea of victory predicated on decisive battle has a similarly spectral presence. If there are reasons for believing that this conception of victory is no longer relevant, and indeed was only ever relevant in the period from 1631 to 1815, this truth does not yet seem to have been accepted by everyone. Military and political leaders, commentators, and scholars alike continue to talk about victory in its terms. Though long dead, it, like Banquo, continues to haunt us. President Bush’s insistence on declaring ‘mission accomplished’ can be taken as proof of this—as indeed can Prime Minister David Cameron’s decision to extend this claim to Afghanistan in 2013.98 Two conclusions follow. The first is that rumours of the demise of victory are greatly exaggerated. While it is true that the standard account of victory, which involves one army prevailing over another in a climactic encounter, has little pertinence to the military realities of modern war, it still guides our understanding of warfare.99 The second conclusion follows directly from this. So far 95  Michael Walzer, ‘Coda: Can the Good Guys Win?’ European Journal of International Law 24:1 (2013): 433–44. Also see Chapters 6, 11, and 12 of: Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations—Fifth Edition (New York: Basic Books, 2015). 96  On this unease: Peter Lee, Reaper Force: Inside Britain’s Drone Wars (London: John Blake, 2018), pp. 35–6. 97  William Shakespeare, Macbeth (London: Penguin, 2000). 98 Rowena Mason, ‘Mission Accomplished in Afghanistan, Declares David Cameron’, The Guardian, 16 December 2013. Available at: https://www.theguardian.com/uk-news/2013/dec/16/ afghanistan-mission-accomplished-david-cameron. Accessed: 27 February 2019. 99  For proof of this, see General Douglas Macarthur’s assertion, offered in respect of the failure of the US and its allies to bring the Korean War to a decisive conclusion, that ‘war’s very object is victory, not prolonged indecision’. General Douglas MacArthur, ‘Farewell Address to Congress, 19th April 1951’. Available at: https://www.americanrhetoric.com/speeches/douglasmacarthurfarewelladdress. htm. Accessed: 30 October, 2018. Alternatively, consider President Donald Trump’s promises to restore America to winning ways.

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Mission Accomplished  125 as the understanding of warfare that underpins just war thinking is based on a vision of victory that has little to do with the material realities of contemporary armed conflict, just war thinking surely loses something in terms of realism, and its action-guiding potential must subsequently be diminished. This would seem to be a serious problem. If just war scholars are to remain relevant, we must address it.

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7

The Disease of Victory You ask, what is our aim? I can answer in one word: Victory—victory at all costs, victory in spite of all terror; victory however long and hard the road may be; for without victory, there is no survival. Prime Minister Winston Churchill1

Introduction We have thus far explored six problems just war theorists perceive with victory. The final problem is arguably the most obvious. It attaches to the central tension between just war and victory. It reflects the belief that to speak about war in terms of victory is to court an escalatory logic that undercuts the spirit of moderation that the just war tradition champions. The pursuit of victory compels a ruthless and ‘uncompromising’ attitude toward the conduct of hostilities.2 It encourages an eyes-on-the-prize approach that inclines armies to set the rules aside and take the fight to their enemies in a no-holds-barred manner. This chapter examines this concern. Turning it on its head, it contends that while it is true that the idiom of victory tempts an escalatory logic, so too does the idea of just war. This is demonstrated by reference to the writings of two leading contemporary just war the­or­ists: Michael Walzer and Jeff McMahan. The conclusion arising from this is not necessarily that we should back away from speaking about either victory or just war. It is, however, a reminder of both what is staked when we do engage them, and why they must always be approached with great circumspection.

1 Prime Minister Winston Churchill, House of Commons Debate, 13 May 1940, Volume 360, Column 1502. Available at: https://hansard.parliament.uk/Commons/1940-05-13/debates/8954756e525b-448e-bb4d-5cc77d60aaf1/HisMajestySGovernment?highlight=have%20nothing%20offer%20 blood#contribution-f03873fc-31e4-41ff-bf8c-6d1b7241ecbe. Accessed: 13 April 2019. 2  Daniel Statman, ‘Ending Wars Short of Victory? A Contractarian View of Jus ex Bello’, Ethics 125:3 (2015), p. 76. Andrew Fiala has made much the same point: ‘In order to win a war, injustice may be necessary. There is an irresolvable tension between the demands of morality and the need to win.’ Andrew Fiala, The Just War Myth: The Moral Illusions of War (Lanham, MD: Rowman & Littlefield, 2008), p. 6.

Victory: The Triumph and Tragedy of Just War. Cian O’Driscoll, Oxford University Press (2020). © Cian O’Driscoll. DOI: 10.1093/oso/9780198832911.001.0001

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The Disease of Victory  127

The Perils of Victory The belief that the pursuit of victory encourages a win-at-all costs mentality scarcely needs any introduction. It will already be familiar to anyone who enjoys watching competitive sport. Winning, we are told by those in the know, is not just the most important thing; it is the only thing.3 The implication here, of course, is that victory matters so much that one should do everything in one’s power— including, perhaps, breaking the rules—to achieve it. Winning is everything, we are told, and to be a winner one needs to be single-minded. The general idea, then, is fairly clear. This section will elaborate it by profiling the four main ways in which concern for victory is understood to undermine the possibility of restraint in war.

Moral Crusading As discussed in earlier chapters, victory carries overtones of the emphatic defeat of one’s enemies.4 As such, it is an evocative and rhetorically powerful term. It carries great emotional resonance and, for this reason, is a favoured rallying cry for war-time leaders. Thus, General George S. Patton famously bragged in June 1944 that ‘Americans play to win’ while President George W. Bush sought in 2005 to stiffen his country’s commitment to staying the course in Afghanistan and Iraq by insisting that Americans must ‘never accept anything less than complete victory’ in the War on Terror.5 For presumably the same reasons that war-time leaders are drawn to the rhetoric of victory, however, they tend to present it in very grandiose and even epic terms. For example, President Bush defined victory in the War on Terror as the triumph of freedom over fear and the achievement of global security, while President Wilson equated victory in the First World War with the defeat of warfare itself and the ushering in of a new era of international harmony.6 The underlying dynamic in these cases is easily discerned. In order to present a given victory as worth the pain and sacrifice that its pursuit would 3  This saying is widely but wrongly attributed to the American Football coach Vince Lombardi. Thanks to James Turner Johnson and Andy Hom for bringing this example to my attention. 4  Colin  S.  Gray, ‘Nuclear Strategy: The Case for a Theory of Victory’, International Security 4:1 (1979), pp. 62; 82. 5 Patton is quoted in: Dominic Tierney, The Right Way to Lose a War: America in an Age of Unwinnable Conflicts (New York: Little, Brown, & Company, 2015), p. 7. Bush is quoted in: Jan Angstrom, ‘The United States Perspective on Victory in the War on Terror’, in Jan Angstrom and Isabelle Duvesteyn (eds.), Understanding Victory and Defeat in Contemporary War (London: Routledge, 2007), p. 98. 6  On Bush’s definition of victory: Robert Mandel, The Meaning of Military Victory (Boulder: Lynne Rienner, 2006), p. 135. On Wilson: Cara Lea Burnidge, ‘Woodrow Wilson’s Christian Internationalism and the Pursuit of a Just and Lasting Peace’, Soundings: An Interdisciplinary Journal 101:3 (2018): 219–37.

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128 Victory surely require, war-time leaders feel compelled to dispense with nuance and cast it in exaggerated or hyperbolic terms. The problem is that this inflates the im­port­ ance both of the war and of winning it. This is not conducive to moderation. In fact, it works against it. By heightening the stakes, it risks not only exacerbating the conflict, but also turning it into a crusade.7

A Source of Hubris Victory has the potential to stir the libido dominandi of political and military leaders and to induce hubris. Alberico Gentili testified to this when he remarked that ‘the nature of victory is insatiable’.8 Gentili’s choice of words evokes the advice that Cyaxares offered Cyrus in Xenophon’s The Education of Cyrus: If, then, when we enjoy good fortune, we guard it moderately, it would perhaps be within our power to grow old in happiness without risk. Yet if we are in­sa­ tiable in this, and try to pursue first one and then another, watch out that we do not suffer what they say that many have suffered at sea, to be unwilling—on account of their good fortune—to cease sailing until they perish; and they say that many, chancing on one victory but desiring another, throw away the first.9

The point which Gentili and Cyaxares are keen to impress upon their audiences is that it is a quirk of human nature that one victory is never enough; the taste of victory always begets an appetite for more. This is what Prime Minister Winston Churchill referred to as ‘the disease of victory’.10 To invoke victory is thus to set oneself down the road to endless struggle. This was discussed in Chapter 1 in relation to Saint Augustine. He argued that the desire to prevail in war was fuelled by a hunger for glory which, when fed, only grew more pronounced. Military vic­tor­ ies in this sense are ‘no more than beguiling temptations to seek one barren evil after another’.11 They drive leaders to disturb the peace by seeking war after war,

7 Paul Keckskemeti, Strategic Surrender: The Politics of Victory and Defeat (Stanford: Stanford University Press, 1958), p. 26. Also: George F. Kennan: ‘A war fought in the name of high moral prin­ ciple finds no early end short of some total domination . . . The legalistic approach to international problems is closely identified with the concept of total war and total victory, and the manifestations of the one spill over only too easily into the latter.’ Quoted in: A. J. Coates, The Ethics of War (Manchester: Manchester University Press, 1997), p. 26. 8  Alberico Gentili, De Iure Belli Libri Tres, trans. by John  C.  Rolfe, ed. by Coleman Phillipson (Oxford: Clarendon Press, 1933), p. 291 [III.I]. 9 Xenophon, The Education of Cyrus, trans. by Wayne Ambler (Ithaca: Cornell University Press, 2001), p. 115 [IV.I.15]. 10  Quoted in: Richard Hobbs, The Myth of Victory: What is Victory in War? (Boulder: Westview, 1979), p. 45. 11 Augustine, The City of God against the Pagans, ed. and trans. by R.  W.  Dyson (Cambridge: Cambridge University Press, 1998), p. 118 [III.17].

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The Disease of Victory  129 using victory in one as a springboard to the next in a cycle of perpetual violence. To talk the language of victory is to tempt this pathology.

All Means Necessary Victory is a demanding taskmaster. Where one’s aim is to win, it follows that one is incentivized to do everything in one’s power to win. While one might not like to go quite as far as to state that, where victory is concerned, the end justifies the means and anything goes, it is nevertheless the case that framing one’s military objectives in terms of winning puts pressure on actors to discount the restraints on how this is achieved. Consider, for example, the case of Francisco Suarez, whom we met in Chapter 4. Suarez advised that where an army is seeking to vindicate a just cause, it may, within reason, use all means necessary to attain that end. As Suarez put it, a belligerent waging a just war should be permitted to employ any means ‘essential to victory’, for ‘whoever has the right to attain the end sought by war has the right to use the means to that end.’12 For a more recent expression of this general idea, one could look to Prime Minister Churchill’s statement of Allied war aims in the Second World War: ‘what is our aim? I can answer in one word: Victory—victory at all costs, victory in spite of all terror; victory however long and hard the road may be.’13 It also finds its way into contemporary just war theory, most notably in Michael Gross’s commitment to what he calls the ‘right to a fighting chance’.14 This entails the view that, where an army is fighting for a just cause, the rules of war should not be allowed to get in its way. The Weinberger–Powell doctrine offers another expression of the view that when a state commits an army to the field it is beholden to equip it with the means necessary to achieve victory.15 Where this kind of thinking is operative, the quest for victory is primed to override constraint in war.

Dying to Win Victory has historically been invoked as the debt that the living owe the fallen.16 President Abraham Lincoln’s Gettysburg Address provides an eloquent expression 12 Francisco Suarez, ‘A Work on the Three Theological Virtues: Faith, Hope, and Charity: Disputation XIII: On War’, in Selections from Three Works, ed. by Thomas Pink, trans. by Gwladys  L.  Williams, Ammi Brown, and John Waldron, and rev. by Henry Davis (Indianapolis: Liberty Fund, 2015) , p. 968 [VII.17]. Also see: Ibid., p. 965 [VII.15]. 13  Quoted in: Bond, The Pursuit of Victory, p. 142. See fn. 1. 14 Michael L. Gross, Moral Dilemmas of Modern War: Torture, Assassination, and Blackmail in an Age of Asymmetric Conflict (Cambridge: Cambridge University Press, 2010), p. 38. 15  On the Weinberger–Powell doctrine: Jeffrey Record, ‘Back to the Weinberger–Powell Doctrine?’, Strategic Studies Quarterly 1:1 (2007), p. 81. 16  On sunk costs: David Rodin, ‘The War Trap: Dilemmas of Jus Terminatio’, Ethics 125:3 (2015): 674–95.

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130 Victory of this idea: ‘From these honoured dead we take increased devotion to the cause for which they gave the last full measure of devotion—that we here resolve that these dead shall not have died in vain.’17 On this view, the achievement of anything short of victory in an ongoing war does a disservice to those who have already given their lives in it. To quote Wilfred Owen: ‘Peace would do wrong to our ­undying dead / The sons we offered might regret they died / If we got nothing lasting in their stead.’18 Michael Walzer acknowledges this duty in his writings on just war. ‘A just war is a war that is morally urgent to win,’ he writes, ‘and a soldier who dies in a just war does not die in vain.’19 Dominic Tierney also treats this sentiment in his writings on victory in war. Victory, he writes, is a spur to keep fighting in a bid to honour the dead and redeem their sacrifice. It also provides soldiers with a way of rationalizing the risk of their own death in combat. Where few soldiers are motivated ‘to die for a tie’, soldiers often express their willingness to lay down their lives for victory.20 This is the road to more, not less, violence.

The Perils of Just War These arguments are powerful. Although they reflect certain variations, they all pivot on a common inference: namely, that to introduce the concept of victory into just war discourse is akin to inviting a cuckoo into the nest. It precipitates a brute consequentialism that will eventually overpower all other moral con­sid­er­ ations (e.g., deontological commitments and concerns relating to virtue) and nudge them out of the frame.21 The worry that arises from this for just war the­or­ ists is that talking about victory ultimately leads to a crude Machiavellian position where the only moral principle that is recognized is that the end justifies the means. On this view, a belligerent is permitted to do anything that contributes to achieving victory—even if this involves transgressing norms otherwise regarded as sacrosanct. According to this way of thinking, victory does not just pose a difficult challenge for the idea of just war, it dissolves it. It is, however, possible to reject this conclusion. One can push back against it either by tackling it on its own terms or by turning it on its head. 17  Quoted in: Tierney, The Right Way to Lose a War, p. 81. 18  Wilfred Owen, ‘Smile, Smile, Smile’, in Anthem for Doomed Youth (London: Penguin, 2015), p. 17. For further discussion: Cian O’Driscoll and Andrew  R.  Hom, ‘Introduction: Moral Victories—The Ethics of Winning Wars’, in Andrew R. Hom, Cian O’Driscoll, and Kurt Mills (eds.), Moral Victories: The Ethics of Winning Wars (Oxford: Oxford University Press, 2017), pp. 1–2. 19  Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations—Fifth Edition (New York: Basic Books, 2015), p. 81. 20 Tierney, The Right Way to Lose a War, p. 5. 21  ‘Winning’, as a marquee basketball player, Kobe Bryant, recently observed, ‘takes precedence over all.’ Quoted in: T. J. Simers, ‘It has Come to Pass for Kobe Bryant’, L.A. Times, 1 February 2013. Available at: http://articles.latimes.com/2013/feb/01/sports/la-sp-simers-kobe-bryant-20130201/2. Accessed: 4 November 2018.

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The Disease of Victory  131

On Its Own Terms Tackling it on its own terms is relatively easy. In the first instance, one might like to challenge the assumption that the utilitarianism presaged by the concept of victory is necessarily antithetical to just war thinking. There are plenty of ­scholars, from Richard Brandt to William Shaw, who not only argue that a utilitarian approach to ethical reasoning can reinforce rather than undermine just war thinking, but who also employ victory as a load-bearing and constraining term in their formulations.22 Alternatively, one could simply point out that the concept of victory is already presupposed by the idea of just war itself. After all, for a war to be regarded as a just war it must be vital to win it, and it would be a non sequitur to think otherwise.23 To cast a war as a ‘just war’ is also, it follows, to claim that it is war that must be won. As Michael Walzer expresses it: ‘A just war is one that is morally urgent to win.’24 The Jesuit commentator, James G. Murphy, puts the matter just as directly: ‘If it is morally necessary to go to war, it is morally obligatory to win. One has no business going to war except to win, and one shouldn’t go to war unless one has a substantial probability of success.’25 Because war often involves mass-killing and destruction, the argument goes, it is important not only that it is justified, but that it is ‘consummated in victory’.26 Thus, the concept of victory is not an externality that undermines just war thinking. Rather, it is both endogenous to it and entailed by it. By tackling it on its own terms, one can, then, highlight the laziness of assuming that the integrity of just war thinking would be destroyed by the introduction of victory within its frame.

On Its Head Turning this argument on its head is a more radical undertaking. It involves pointing out that insofar as some just war scholars are inclined to reject the discourse of victory on the basis that it reflects an escalatory logic, the idea of just war itself can be repudiated on the exact same grounds. This is not, of course, a new line of argument. It received its classic expression in the writings of the controversial German legal theorist, Carl Schmitt. Schmitt, who was born in the Rhineland in July 1888, established himself as a leading intellectual in Weimar 22  Richard B. Brandt, ‘Utilitarianism and the Rules of War’, Philosophy & Public Affairs 1:2 (1972): 145–65; William H. Shaw, Utilitarianism and the Ethics of War (Abingdon: Routledge, 2016). 23  This is enshrined in the principle of ‘reasonable chance of success’ discussed in the Introduction. 24 Walzer, Just and Unjust Wars, p. 110. Italics added. 25  James  G.  Murphy, SJ, War’s Ends: Human Rights, International Order, and the Ethics of Peace (Washington DC: Georgetown University Press, 2014), p. 154. Cecile Fabre expresses similar views. Cecile Fabre, ‘War Exit’, Ethics 125:3 (2015), p. 634. 26 Eric Patterson, Just American Wars: Ethical Dilemmas in U.S.  Military History (New York: Routledge, 2019), p. 166.

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132 Victory Germany before joining the Nazi party in 1933 and transforming himself into ‘the crown jurist of the Third Reich’ and a virulent anti-Semite.27 He published a series of highly regarded texts between the 1920s and 1960s and he was a major influence upon some of the most notable post-war thinkers, including Walter Benjamin, Leo Strauss, and Hans Morgenthau. He died in 1985 but, in a twist that few would have foreseen, his writings have latterly been revived by a generation of critical International Relations theorists keen to champion his views on sovereignty and what he called ‘the concept of the political’. It is Schmitt’s views on just war that are of interest here, however. Schmitt was an obdurate critic of the idea of just war.28 Schmitt’s principal misgiving about the just war was its potential to inflame the animosity rival belligerents felt for one another. This hinged on the centrality within just war thinking of the principle of just cause. As Schmitt saw it, where a state believed itself to be fighting for a just cause, it must also believe its adversaries—whom it perceives as engaged in an effort to thwart the advance of justice—are wicked. In this way, the path is cleared for demonizing the enemy and presenting its actions, not as the prerogative of a rival belligerent, but as a criminal enterprise. This in turn generated a licence for the soldiers on the so-called ‘just’ side to assume that they were acting as agents of the good and to take the fight to their enemies with righteous zeal.29 Soldiers animated by this belief were unlikely to respect any legal or moral constraints on how they conducted hostilities and were motivated to seek the ‘annihilation’ of the enemy army rather than a negotiated peace with them.30 What results is ‘both a moral fundamentalism and a legal criminalization of the enemy that ultimately sanctions all measures taken by the “just” belligerent’.31 In a nutshell, Schmitt’s critique was that, by bringing the claims bearing on just cause front and centre, the idea of just war fostered the

27  Louiza Odysseos and Fabio Petito, ‘Carl Schmitt’, in Jenny Edkins and Nick Vaughan-Williams (eds.), Critical Theorists and International Relations (Abingdon: Routledge, 2009), p. 305. 28  Gabriella Slomp, ‘Carl Schmitt’s Five Arguments against the Idea of Just War’, Cambridge Review of International Affairs 19:3 (2006), p. 435. While he did not devote the entirety of any particular text to a detailed elaboration of his views on this topic, ‘the rejection of the idea of just war is a recurring theme throughout his writings’. He tackles it in The Concept of the Political, Ex Captivitate Salus, and Theory of the Partisan. Its most sustained treatment was, however, in Nomos of the Earth, which was published in 1950. 29  As the song goes, ‘You don’t count the dead with God on your side.’ Evidence of this dynamic at work on the battlefield can often be found in war memoirs and reportage. Consider, for example, the report of Lieutenant Colonel Gary Brandl’s address to his US Marines unit immediately prior to their advance on Fallujah in 2005: ‘The enemy has got a face. He’s called Satan. He’s in Fallujah. And we’re going to destroy him.’ Mike Marqusee, ‘A Name that Lives in Infamy’, Guardian, 10 November 2005, p. 32. Available at: https://www.theguardian.com/world/2005/nov/10/usa.iraq. Accessed: 5 November 2018. 30  Carl Schmitt, The Nomos of the Earth, trans. by G. L. Ulmen (Candor, NY: Telos Press Publishing, 2006), p. 142. For an excellent summary of Schmitt’s views: Christopher Finlay, Is Just War Possible? (Cambridge: Polity, 2019), p. 45. 31 William Rasch, ‘A Just War? Or Just a War? Schmitt, Habermas, and the Cosmopolitan Orthodoxy’, Cardozo Law Review 21 (2000), p. 1680.

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The Disease of Victory  133 dehumanization of the enemy and thereby created the conditions for more rather than less violent conflict.32 Schmitt did not, however, think that just war was the only game in town. In fact, he believed that its pathologies had largely been circumvented, in the European context at least, by the development of a very particular form of legal order, which he termed the jus publicum Europaeum.33 Schmitt traced the early blueprints for this order to the late sixteenth-century writings of Balthazar Ayala and Alberico Gentili but added that it did not receive its paradigmatic expression until Emer de Vattel tackled it in his masterwork, The Law of Nations.34 As its association with Gentili and Vattel suggests, the jus publicum Europaeum reflected the institutionalization of the doctrine of regular war, which Schmitt saw as the antidote to all that was wrong with just war thinking. Accordingly, it enshrined four axiomatic commitments: (i) the lawfulness of war was reconceived as a function of state sovereignty not just cause; (ii) the enemy was to be categorized as a legal and moral equal [a justus hostis] and not a criminal or deviant; (iii) it was the exclusive prerogative of the state to determine whether or not it had a just cause for war; and (iv) there was no obvious way of discerning whether the just causes claimed by states were objectively valid.35 When combined in a legal order, Schmitt argued, these axioms contributed to the ‘bracketing of war’, by which he meant its effective regulation.36 War, when approached in this manner, rather than via the prism of just war, could remain a limited endeavour, and need not spiral out of control into a paroxysm of annihilation. The urgency of Schmitt’s critique of just war stemmed from his belief that the integrity of the jus publicum Europaeum had been fractured over the course of the First World War. The demonization of Germany, the determination on the part of the Allied powers to present the defence of neutral Belgium as a just cause, the subsequent insertion of a ‘war guilt clause’ into the Treaty of Versailles, and the structure of the Kellogg–Briand Pact of 1928 suggested a return of just war ­reasoning to the main stage.37 For all the reasons canvassed above, Schmitt saw this as a negative development that had to be resisted. Ken Booth is not a scholar one would naturally associate with Carl Schmitt, yet, when it comes to the issue of just war, he follows closely in his footsteps. Booth developed his own critique of just war in a 2000 essay entitled ‘Ten Flaws of Just Wars’.38 Booth argues that, instead of acting as a force for restraint, just war 32  Slomp, ‘Carl Schmitt’s Five Arguments against the Idea of Just War’, p. 435. 33 Schmitt, The Nomos of the Earth, p. 141. 34  Ibid., pp. 154–67. 35  Ibid., p. 154. 36  Ibid., p. 55. 37  Ibid., pp. 259–60. Schmitt was not alone in identifying this development. Also see: Joachim von Elbe, ‘The Evolution of the Concept of Just War in International Law’, American Journal of International Law 33:4 (1939): 665–88; and Cornelis von Vollenhoven, The Three Stages in the Evolution of the Law of Nations (The Hague: M. Nijhof, 1919). 38 Ken Booth, ‘Ten Flaws of Just Wars’, International Journal of Human Rights 4:3–4 (2000): 314–24.

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134 Victory thinking ‘has often served to excuse or provoke excess’.39 He identifies the same dynamic at work as Schmitt: just war thinking encourages states to demonize their enemies, couch their own actions in Manichean terms as a fight of good against evil, and cultivate a militarized form of self-righteousness that is conducive to the adoption of heavy-handed tactics.40 Like Schmitt, Booth lays the blame for this squarely on the priority that just war thinking affords the principle of just cause: Because a just cause demands unconditional commitment, the desire for justice and the injunction to respect proportionality are necessarily in tension. The former pushes toward the extremes, the latter toward restraint. In an ideological age, and with the options opened up by technology, the ancient doctrine of restraint became a modern justification for totality.41

In support of this claim, Booth quotes A.  J.  P.  Taylor’s caustic observation that wars fought by realists may have killed thousands of people but those waged in the name of just war killed millions.42 He concludes: ‘If one’s cause is “just”, it seems any level of escalation can be justified, even nuclear Armageddon. When governments persuade themselves they are fighting a just war . . . escalation is inevitable, unless the enemy quickly collapses.’43 Booth is not alone in following Schmitt down this path. Maja Zehfuss and Andrew Fiala have also articulated forceful critiques of just war as an escalatory discourse. Zehfuss argues in War and the Politics of Ethics that just war thinking has the perverse effect of aggravating rather than alleviating the horrors of warfare. ‘War is presented as a solution to ethical problems such as what came to be called ethnic cleansing in Kosovo or brutal dictatorship in Iraq’, she writes. Such war is always ‘war for freedom, human rights, and equality. Morality thus precipitates rather than prevents war. . . . [Yet] war is highly destructive. Using lethal force in the name of protecting ordinary people and their human rights comes to mean (risking) killing people in the name of protecting their freedom.’44 Zehfuss subsequently quotes A. J. Coates that, unless it is used judiciously, just war thinking is liable to intensify war: ‘Transformed into a moral crusade, its critical and constraining function is lost and it becomes a prime catalyst of war.’45 Fiala advances a similar argument. There is, he writes, ‘an irresolvable tension between the demands of morality and the need to win’.46 If the possession of a just cause

39  Ibid., p. 314. 40  Ibid., pp. 315–19. 41  Ibid., p. 314. 42  Ibid., p. 315. 43 Ibid. 44  Maja Zehfuss, War and the Politics of Ethics (Oxford: Oxford University Press, 2018), pp. 16–17. 45  Quoted in: Ibid., p. 34. Coates also writes: ‘A “moral” war readily becomes a war fought without compromise, to which it is difficult to see any end short of the enemy’s annihilation.’ 46 Andrew Fiala, The Just War Myth: The Moral Illusions of War (Lanham, MD: Rowman & Littlefield, 2008), pp. 6–7.

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The Disease of Victory  135 imposes certain demands on a belligerent—namely, to consummate that cause in victory, pressure will mount to do whatever is necessary to attain this end. ‘If the cause is perceived as being just, then it becomes easy to justify atrocity in pursuit of this cause . . . Victory requires that we sacrifice morality.’47 Fiala concludes that this ‘points us toward a tragic conclusion’.48 I will return to this in the Conclusion of this book.

Dispatches from the Frontline In the meantime, it will be useful to examine whether and to what degree these issues have manifested in contemporary just war theory. How, if at all, has the tension identified by Schmitt, Booth, Zehfuss, and Fiala been negotiated by contemporary just war theorists? This section will examine this question with reference to the work of two leading contemporary just war theorists who are often understood as spokespersons for rival positions: Michael Walzer and Jeff McMahan. It will demonstrate that their arguments can be read as variations on the same theme: both reflect sophisticated attempts to negate the fact that it is difficult to talk about war in relation to justice without also risking its escalation.

Michael Walzer Michael Walzer was born in New York in 1935. An Emeritus Professor at the Institute for Advanced Study in Princeton, he is a prominent public intellectual in the US today, and one of the leading voices on the social democratic left. He is the co-editor of Dissent magazine and the author of several highly influential books, including Spheres of Justice (1983), Thick and Thin (1994), and Just and Unjust Wars (1977).49 It is the latter book that is of most interest here. Written in the aftermath of the Vietnam War—which Walzer opposed—it immediately established itself as the most important work in the field of modern just war theory. It has since become a standard text on curricula at military academies the world over, has inspired countless symposia, has provoked a ‘revisionist’ response (more on which later), and has arguably done more than any other work to re-establish just war discourse as the lingua franca of war and peace. All of this is quite ironic, because, as Chris Brown has pointed out, while Walzer might well be ‘the single 47 Ibid. 48 Ibid. 49  Michael Walzer, Spheres of Justice: A Defence of Pluralism and Equality (Oxford: Blackwell, 1983); Michael Walzer, Thick and Thin: Moral Argument at Home and Abroad (Notre Dame, IN: University of Notre Dame Press, 1994); and Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations—Fifth Edition (New York: Basic Books, 2015). These are just a few of Walzer’s most not­able titles.

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136 Victory most influential just war thinker of the last hundred years’, he is not, ‘in any considered sense of the term, a just war thinker at all’.50 Instead of seeking to situate his views on the rights and wrongs of war within the historical stream of the just war tradition, Walzer’s modus operandi has been to extrapolate a theory of just war from the institutionalization of war in the norms and laws of international society and to re-cast it in the modern language of rights.51 In Walzer’s own words, his purpose is to ‘recapture the just war for political and moral theory’.52 The theory of just war distilled by Walzer in Just and Unjust Wars is anchored in his awareness of—and also profound sense of angst regarding—the escalatory potential of talking about war in terms of justice, and in particular of relating it to just cause.53 He elaborates these concerns in four critical passages. The first of these passages takes the form of a repudiation of General Sherman’s maxim that war is hell. ‘In his view’, Walzer writes, ‘war is entirely and singularly the crime of those who begin it, and soldiers resisting aggression (or rebellion) can never be blamed for anything they do that brings victory closer.’54 Walzer is critical of those who cleave to this view, however, arguing that by reducing the ethical dimension of war to the question of who fired the first shot it liberates the putative victim state and its allies to discount any notion of jus in bello constraints and respond as they see fit.55 The second passage arises in the context of a discussion of the rules of war. It acknowledges the attraction of the argument that the more just an army’s cause is, the fewer constraints should attach to its prosecution. Prodding the ghost of President Wilson, Walzer grants that, where an army is fighting for a cause such as the end of war itself, it would be ‘foolish’ to demand that it ‘fight according to the rules’. Rather, one would wish it to set those rules aside and do everything in its power to win.56 This dispensation would, then, come at a high cost: a slide into licentiousness. Such cases, Walzer concludes, suggest that the very fact of having a just cause is injurious to the possibility of jus in bello limitations on war.57 The third passage bears on guerrilla war, and, more specifically, Mao TseTung’s argument that any constraints that impeded his side’s opportunity to win its wars should be discarded as ‘asinine ethics’.58 Walzer glosses Mao’s position by 50  Chris Brown, ‘Michael Walzer (1935–Present)’, in Daniel  R.  Brunstetter and Cian O’Driscoll (eds.), Just War Thinkers: From Cicero to the 21st Century (Abingdon: Routledge, 2018), p. 205. 51  See: Ronan O’Callaghan, Walzer, Just War, and Iraq: Ethics as Response (Abingdon: Routledge, 2016), pp. 5–6. Also: Brian Orend, Michael Walzer on War and Justice (Cardiff: University of Wales Press, 2000); and Hedley Bull, ‘Recapturing the Just War for Political Theory’, World Politics 31:4 (1979): 588–99. 52 Walzer, Just and Unjust Wars, xvi. 53  Michael Walzer, ‘Emergency Ethics’, in Arguing about War (New Haven: Yale University Press, 2004): 33–50. 54 Walzer, Just and Unjust Wars, p. 32. 55  ‘When we focus exclusively on the fact of aggression, we are likely to lose sight of [the responsibility that all belligerents have for their own conduct] and to talk as if there were only one morally relevant decision to be made in the course of a war: to attack or not to attack . . . But there is a great deal to be said about its interior regions . . . Even in hell, it is possible to be more or less humane, to fight with or without restraint.’ Ibid., p. 33. 56  Ibid., pp. 47–8. 57  Ibid., p. 48. 58  Ibid., p. 226.

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The Disease of Victory  137 noting that it acquires greater force ‘when winning is seen to be morally im­port­ant, that is, only when the outcome of the struggle is conceived in terms of justice’.59 Where the cause for which a war is fought is described in terms of just­ice, Walzer comments, it is tempting to abandon the rules of war. ‘On this view’, he writes, ‘the rules have no standing in any war that is worth fighting.’60 Walzer’s riposte is to the point. So long as they are properly understood, the rules of war are not so easily discounted. Because they protect the rights of people who have done nothing to render themselves liable to armed attack, ‘they cannot simply be set aside; nor can they be balanced, in utilitarian fashion, against this or that desirable outcome. For the rights of innocent people have the same moral ef­fect­ive­ness in the face of just as unjust soldiers.’61 The fourth passage converts this tension into schematic form. Specifically, it posits the existence of a ‘sliding scale’ approach to determining the relation between just cause and the conduct of war: ‘the more justice, the more right . . . The greater the justice of my cause, the more rules I can violate for the sake of the cause—though some rules are always inviolable.’62 The intuitive attraction of this position, according to Walzer, is that it ‘allows the justice of one’s fight to make a difference in the way one fights’.63 Yet the downsides of this approach are also plain to see. ‘The sliding scale makes way for those utilitarian calculations that rules and rights are intended to bar’, writes Walzer. ‘It creates a new class of generally inadmissible acts and quasi-rights, subject to piecemeal erosion by soldiers whose cause is just—or by soldiers who believe their cause is just.’64 Moreover, when pushed to its logical conclusion, the sliding scale leads back to the maxim that war is hell. The extreme version of the sliding scale argument is the claim that soldiers fighting a just war can do anything at all that is useful in the fighting. This effectively annuls the war convention [i.e., the jus in bello rules of war] and denies or suspends the rights that the convention was designed to protect. The war rights of the just are total, and any blame their actions entail falls upon the leaders of the other side. General Sherman took this view.65

A single concern unifies all four of these passages, then, and it is redolent of Schmitt’s fear that any account of just war that either pivots on or somehow pri­ ori­tizes just cause is likely to produce a more rather than less ferocious brand of warfare. Walzer circumvents this concern by insisting on the independence of the jus in bello from the jus ad bellum. ‘War’, he writes, ‘is always judged twice, first with reference to the reasons states have for fighting, secondly with reference to the 59  Ibid. Italics in original. 60  Ibid., pp. 227–8. 61  Ibid., p. 128. 64  Ibid., p. 230. 62  Ibid., pp. 228–9. 63  Ibid., pp. 229. 65 Ibid.

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138 Victory means they adopt. . . . The two sorts of judgement are logically independent. It is perfectly possible for a just war to be fought unjustly and for an unjust war to be fought in strict accordance with the rules.’66 It follows from this that whether or not an army has a compelling just cause for war is immaterial to how that army should conduct its war. Walzer admits that thinking about just war in this way produces some puzzling outcomes.67 He is nevertheless adamant that, because it ensures that considerations of just cause do not leach into and undermine the jus in bello rules of war, it is the right way of thinking about just war. Viewed as a whole, the purpose of Just and Unjust Wars is to present an extended argument in support of this view. It is fascinating to note, then, that Walzer never fully manages either to resolve or to escape the concern that, by framing war in terms of justice and relating it to just cause, just war thinking generates an escalatory discourse. His struggles in this regard are most apparent in respect of what he (following Prime Minister Winston Churchill) calls a ‘supreme emergency’ situation.68 A supreme emergency arises when the very existence of a community is under severe and imminent threat. Walzer is clear that the risk of defeat in war is not by itself enough for claiming a supreme emergency. Rather, a supreme emergency only arises when that risk of defeat is accompanied by a clear and present danger to the ‘ongoingness’ of a community.69 The example cited by Walzer is the situation in which Britain found itself in 1940 when Nazi Germany looked set to sweep all before it and destroy European civilization. In cases such as this, ‘where our deepest values are radically at risk’, Walzer concedes that the regular rules do not hold.70 Because the cause is so profound, and the stakes are so high, the jeopardized community may violate jus in bello constraints that would otherwise be sacro­sanct. This invites a host of questions, such as whether the existence of a supreme emergency justifies or merely excuses the violation of jus in bello constraints, and whether their violation is better characterized as an override or a suspension. What I want to highlight here, however, is how, rather than negating it, the concept of supreme 66  Ibid., p. 21. 67  ‘It is a crime to commit aggression, but aggression is a rule-governed activity. It is right to resist aggression, but the resistance is subject to moral and legal restraint.’ Ibid., p. 21. These puzzling outcomes have subsequently been highlighted by Jeff McMahan and other revisionist just war theorists. I will say more about them momentarily. 68  Walzer elaborates the concept of supreme emergency in Chapter 16 of Just and Unjust Wars. It has been the subject of several critiques. The best are: Brian Orend, The Morality of War (Peterborough, Ontario: Broadview, 2006), pp. 140–59; Joseph Boyle, ‘Just and Unjust Wars: Casuistry and the Boundaries of the Moral World’, Ethics & International Affairs 11 (1997): 83–98; Grady Scott Davis, Warcraft and the Fragility of Virtue: An Essay in Aristotelian Ethics (Eugene: WIPF & Stock, 1992), pp. 175–6; Brian Orend, ‘Is There a Supreme Emergency Exemption?’, in Mark Evans (ed.), Just War Theory: A Reappraisal (New York: Palgrave Macmillan, 2005): 134–53; and also Nicholas Rengger, Just War and International Order: The Uncivil Condition in World Politics (Cambridge: Cambridge University Press, 2013), Chapter  5. For a critical response to Walzer’s just war theory in toto: O’Callaghan, Walzer, Just War and Iraq. 69  Walzer, ‘Emergency Ethics’, p. 46. 70  Ibid., pp. 39–40.

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The Disease of Victory  139 emergency simultaneously reveals and enshrines the escalatory logic of just cause as the constitutive outside of Walzer’s just war theory.

Jeff McMahan The root of Walzer’s difficulty is his determination to, on the one hand, retain the principle of just cause as the basis for distinguishing between just and just wars and, on the other, to compartmentalize it so that it does not spill over into jus in bello determinations. The period since the end of the Cold War has witnessed the emergence of a new approach to thinking about just war that challenges Walzer on exactly these grounds. This approach is usually referred to as ‘revisionist’ just war theory. Revisionist just war theory is so called because it repudiates the central planks of Walzer’s just war theory, which it identifies both as the orthodoxy and as deeply problematic. Rooted in the approaches to thinking about justice and rights developed by twentieth-century Anglo-American political philo­ sophers, the principal exponents of revisionist just war theory include: Seth Lazar, Cecile Fabre, Henry Shue, David Rodin, James Pattison, Darrel Moellendorf, Seba Bazargian, Jonathan Parry, Adil Haque, Chris Finlay, and Helen Frowe.71 The key figure is, however, Jeff McMahan. McMahan has been at the forefront of the revisionist approach to just war theory since first publishing his thoughts in this area in 1994.72 He has since published several influential essays and a seminal monograph, Killing in War.73 As Heather M. Roff has written, McMahan’s unique contribution to contemporary just war theory has ‘opened new horizons of debate amongst moral philosophers, political theorists, and legal scholars’.74 McMahan takes the arguments developed by Walzer as his point of de­part­ ure.75 He establishes two methodological commitments that set him at odds with Walzer. The first is a commitment to what philosophers call ‘reductivism’. 71  This list is not exhaustive. I will not seek to provide a systematic overview of revisionist just war theory here. The task is beyond my competence. Instead see: Seth Lazar and Helen Frowe (eds.), The Oxford Handbook of Ethics of War (Oxford: Oxford University Press, 2018). 72  Jeff McMahan, ‘Revising the Doctrine of Double Effect’, Journal of Applied Philosophy 11:2 (1994): 201–12; Jeff McMahan, ‘Self-Defence and the Problem of the Innocent Attacker’, Ethics 104:2 (1994): 252–90. 73  Jeff McMahan, ‘The Ethics of Killing in War’, Ethics 114 (2004): 693–733; Jeff McMahan, ‘Just Cause for War’, Ethics & International Affairs 19:3 (2005): 1–21; Jeff McMahan, ‘The Sources and Status of Just War Principles’, Journal of Military Ethics 6:2 (2007): 91–106; Jeff McMahan, ‘On the Moral Equality of Combatants’, Journal of Political Philosophy 14:4 (2006): 377–93; Jeff McMahan, ‘The Morality of War and the Law of War’, in David Rodin and Henry Shue (eds.), Just and Unjust Warriors: The Moral and Legal Status of Soldiers (Oxford: Oxford University Press, 2008): 19–43; and Jeff McMahan, Killing in War (Oxford: Clarendon Press, 2009). 74  Heather M. Roff, ‘Jeff McMahan (1954–Present)’, in Daniel R. Brunstetter and Cian O’Driscoll (eds.), Just War Thinkers: From Cicero to the 21st Century (Abingdon: Routledge, 2018), p. 238. 75  McMahan has confided that he has been ‘greatly influenced’ by the approach Walzer develops to the ethics of war in Just and Unjust Wars, and that he finds ‘much to admire in this book, and much to agree with, particularly in Walzer’s judgements about the issues of practice, such as pre-emptive war,

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140 Victory Reductivism entails the view that, morally speaking, killing in war raises the same questions as killing outside of war. All acts of killing, irrespective of whether they occur on the battlefield or in civil society, can and should be evaluated by the same set of moral principles. Against this, non-reductivists, such as Walzer, think that there is something different about killing in war that means it forms its own distinct moral realm which is subject to different rules.76 The second is a commitment to ‘individualism’. Individualism entails the view that the ethical questions raised by killing (in war and civil society) bear exclusively on the individual human actors involved and not on collective entities such as states or nations.77 Where individualists boil war down to an aggregation of acts of killing between individuals, collectivists like Walzer prefer to treat it as an inherently collective endeavour that is somehow greater than the sum of its parts. McMahan’s main bone of contention with Walzer turns, however, on a substantive point. McMahan is concerned that the account of just war theory put forward by Walzer has lost touch with the insights produced by the deeper tradition of just war thought from which it ostensibly derives.78 His worry is that the account of just cause proffered by Walzer, which pivots on the right of communities to defend their territorial integrity and political sovereignty, is deficient when compared with that advanced by his forebears. Invoking Aquinas and Grotius, McMahan argues that ‘there is a just cause for war if, and only if, the people warred against are responsible for wrongs to others that are of a type sufficiently serious to make those people morally liable to armed attack, if that is necessary to prevent or redress those wrongs’.79 To say they are liable to attack, McMahan explains, is to say that ‘because they have wronged or threated to wrong others, they lack a right not to be attacked by or on behalf of their victims, so that even if they would be harmed by being attacked, they would not thereby be wronged or treated unjustly’.80 McMahan goes beyond his predecessors, however, by stirring an additional restriction into his formulation. He argues that the concept of liability should be applied not just to an enemy army as a whole but to each individual member of that army, with the effect that one is permitted to use force against a given enemy soldier only if he or she personally shares in the responsibility for the relevant

the demand for unconditional surrender, siege warfare, reprisals, terrorism, and responsibility for war crimes.’ McMahan, ‘The Sources and Status of Just War Principles’, p. 91. 76 Seth Lazar, ‘Just War Theory: Revisionists Versus Traditionalists’, Annual Review of Political Science 20 (2017), p. 40. Also: Seth Lazar, ‘Method in the Morality of War’, in Seth Lazar and Helen Frowe (eds.), The Oxford Handbook of Ethics of War (Oxford: Oxford University Press, 2018): 21–40. 77  Lazar, ‘Just War Theory’, p. 40. 78 Jeff McMahan, ‘Just War’, in Robert  E.  Goodin, Philip Pettit, and Thomas Pogge (eds.), A Companion to Contemporary Political Philosophy (Cambridge: Blackwell, 2017), p. 671. 79 Ibid. 80  Ibid. Italics in original.

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The Disease of Victory  141 wrong.81 The implication of this is that it would no longer be enough that a soldier is fighting on the other side, or even the unjust side, for him or her to be legitimately targeted. Rather, he or she must also have made an individual contribution to the wrong that is the basis of one’s own just cause for war. This has serious implications for how we think about just war. In particular, it challenges two of the core tenets of Walzer’s theory. The first is the doctrine of the ‘moral equality of combatants’ that follows from Walzer’s assertion that the jus in bello is logically independent of the jus ad bellum rather than dependent upon it. McMahan introduces the doctrine in the following terms: The most important implication of the idea that jus in bello is independent of jus ad bellum is that it makes no difference to the permissibility of an unjust combatant’s [i.e., a combatant whose side does not possess a just cause] conduct in war that he fights without a just cause. Unjust combatants do not do wrong merely by participating in an unjust war. They do wrong only if they violate the jus in bello. So the moral position of unjust combatants is indistinguishable from that of just combatants—a condition that Walzer refers to as the ‘moral equality of soldiers’. Both just and unjust combatants have an ‘equal right to kill’.82

McMahan rejects this position. He argues that it is absurd to believe either that a person involved in an act of wrongdoing may permissibly kill in furtherance of that end, or that a person who is rightfully resisting an unjust attack may be permissibly killed for doing so.83 He counters that, morally speaking, only unjust combatants are liable to armed attack, and only combatants endowed with a just cause may legitimately carry out such armed attacks.84 The second core tenet of Walzer’s theory that McMahan calls into question is the doctrine of non-combatant immunity. Widely regarded as the cardinal prin­ ciple of contemporary just war theory, in McMahan’s view it rests on shaky foundations.85 He submits that while combatants should still be expected to discriminate between legitimate and illegitimate targets for armed attack, this distinction does not map directly onto the line drawn between combatants and 81  Thomas Hurka, ‘Liability and Just Cause’, Ethics & International Affairs 21:2 (2007), p. 200. 82  McMahan, ‘The Ethics of Killing in War’, pp. 693–4. 83  McMahan commonly makes use of a domestic analogy to illuminate this point: ‘If a murderer is in the process of killing a number of innocent people and the only way to stop him is to kill him, the police officer who takes aim to shoot him does not thereby make herself morally liable to defensive action, and if the murderer kills her in self-defence, he adds one more murder to the list of his offences. . . . A person can have no right of defence against a threatened harm to which he has made himself liable . . . The murderer has, by wrongfully threatening the lives of further innocent people, made himself liable to killed in their defence.’ McMahan, Killing in War, p. 14. Also: McMahan, ‘The Morality of War and the Law of War’, p. 27. 84  McMahan, ‘On the Moral Equality of Combatants’, p. 379. 85 On the importance of the principle or doctrine of non-combatant immunity: Toni Erskine, Embedded Cosmopolitanism: Duties to Strangers and Enemies in a World of ‘Dislocated Communities’ (Cambridge: Cambridge University Press, 2008), p. 188.

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142 Victory non-combatants. The reasons for this follow directly from the reasons McMahan cites for discarding the doctrine of the moral equality of combatants: The distinction between combatants and non-combatants in itself has no moral significance. Some combatants—the ones who fight for a just cause within appropriate constraints—retain all their rights and are therefore innocent in the relevant sense, while some non-combatants bear a significant degree of responsibility for a wrong the prevention or correction of which constitutes a just cause for war; they may therefore be liable to certain harms if harming them would make a proportionate contribution to the achievement of the just cause.86

The effect of this proposition, which indexes discrimination to the principle of just cause rather than to an actor’s combatant status, is to suggest that combatants fighting with justice on their side cannot be legitimately targeted in war, but noncombatants who contribute to the wrongdoing that is the source of the other party’s just cause can be. These proposed revisions are clearly quite radical in nature. Rather than seeking to compartmentalize the principle of just cause as per Walzer, they require prioritizing it within the general just war framework, while also rendering jus in bello constraints a function of jus ad bellum considerations. If adopted, these revisions would lead to a divergence between just war theory and the laws of war.87 It is at this point that McMahan pulls his punch. Conceding that, while they may make perfect sense so far as ‘the deep morality of war’ is concerned, the implementation of these revisions in law should not be undertaken because it would be a fraught and potentially very dangerous enterprise. The reasons McMahan cites for this are instructive. He comments that the decision to index jus in bello matters to the principle of just cause would backfire with disastrous consequences. Any effort to delineate different rules of war for just and unjust combatants would surely founder on the rock that both sides in any war can always believe their own cause to be just.88 Because of this fact, they can both be expected to claim the full entitlements of the just party while resenting their enemies’ efforts to do likewise.89 The result would be a war in which both sides claimed more extensive entitlements on a sliding scale basis—the more justice, the more right—and demonized their enemies as outlaws.90 Consequently, 86  McMahan, ‘The Morality of War and the Law of War’, p. 27. Also: McMahan, ‘The Sources and Status of Just War Principles’, pp. 97–8; McMahan, ‘The Ethics of Killing in War’, p. 718. 87  McMahan, ‘Just War’, p. 677. 88  This recalls Erasmus’s provocation: ‘Who is there who does not think his cause is just?’ Erasmus, The Education of a Christian Prince, ed. by Lisa Jardine (Cambridge: Cambridge University Press, 1997), p. 104. 89  McMahan, ‘The Sources and Status of Just War Principles’, pp. 99–100. 90  McMahan, ‘The Ethics of Killing in War’, pp. 730–3. This concern is lent further credence by what McMahan has written about the relation between proportionality and victory: Jeff McMahan,

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The Disease of Victory  143 constraint would go out the window and conflagration would ensue. Admitting this point, McMahan advises that these revisions should not be enacted in law or in any way acted upon until such time as the institutional architecture is in place for actors in international society to make objectively verifiable judgements about which if any side in a war is fighting for a just cause. Moreover, it is clear from how he approaches the topic that he does not appear to expect this day to arrive any time soon. McMahan’s argument, like Walzer’s, is interesting for present purposes because it reveals the degree to which just war theorizing takes place in the shadow of Schmitt’s critique of just war. The tension that defines their work derives from their efforts to retain the idea that wars can be delineated on the basis of whether they are fought for a just or unjust cause while also striving to maintain constraint in war. Because these priorities are perceived to pull in different directions this is a difficult balance to strike. While McMahan and Walzer do quite well in keeping both ends up, a feat they achieve by variously compartmentalizing and bracketing different aspects of the just war framework, it is nevertheless fair to say that they both eventually bump up against the hard reality that it is hard to talk about war in relation to justice without also aggravating it. The finding arising from this is in many ways an obvious one, yet also easy to overlook. It is the simple observation that the reason its exponents are so careful in how they handle the idea of just war is that they acknowledge and are worried by its escalatory potential.

Conclusion While the story this chapter has told is easily recapitulated, the findings that follow from it raise tricky questions for us. I opened this chapter by acknowledging the variety of ways that victory might be regarded as an escalatory concept and therefore antithetical to the ethos of just war. Following this, rather than devoting much time to considering the merits of this particular charge, I instead focused on turning it on its head. Was it possible, I asked, that the fears just war theorists express about the escalatory potential of victory can equally be applied to the idea of just war itself? Drawing on the writings of a very diverse group of scholars—Carl Schmitt, Ken Booth, Maja Zehfuss, and Andrew Fiala—I contended that the concept of just war is itself laced with escalatory potential. By framing war in terms of justice it raises the stakes and thereby creates incentives for belligerents to, so to speak, take

‘Proportionality and Time’, Ethics 125 (2015): 696–719. For an interesting discussion of the general point: A. J. Coates, ‘Is the Independent Application of Jus in Bello the Way to Limit War?’, in David Rodin and Henry Shue (eds.), Just and Unjust Warriors: The Moral and Legal Status of Soldiers (Oxford: Oxford University Press, 2008): 176–92.

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144 Victory the gloves off. This, of course, is not a novel insight. In fact, it is exactly why, for example, on the one hand, Walzer seeks to seal jus ad bellum considerations off from the question of the jus in bello rules of war, and, on the other, McMahan draws a distinction between just war theory, which he associates with the ‘deep morality of war’, and the legal regulation of war. It is, in other words, a verity that is already clearly accounted for in terms of how today’s leading theorists engage the idea of just war. If we sometimes fail to see this, it is only because it is hiding in plain sight. This leads us to the final point. The apprehension that victory is an inherently escalatory concept should not be taken as a reason to abandon it. Rather, it is a reason to approach it more thoughtfully. The same counsel presumably ought to hold for the idea of just war. The fact that engaging it is akin to playing with fire is not by itself a reason to circumvent it. Rather, as per Walzer and McMahan, and indeed more or less the whole tradition of just war theorizing, it is usually taken as a reason to approach it judiciously, cautiously, and mindful of the risks that it generates. I will have more to say about this in the Conclusion, to which we now turn.

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Conclusion The Art of Losing

The idea of just war is beguiling because it ennobles the profession of violence and offers a set of conditions that seem to suggest rational control and restraint. Ken Booth1

Introduction What does victory mean in the context of a just war? What would winning a just war look like and can it ever be worth the suffering it necessitates? These questions expose significant tensions in respect of how we think about just war. On the one hand, they reveal the degree to which the ideal of victory is presupposed by the idea of just war. A just war, on this view, is a war that must be won. If one is justified in going to war in the first place, one must also be justified in doing every­thing in one’s power, within reason, to win that war. Victory, on this account, is not only integral to the idea of just war; it subtends it. On the other hand, these questions also show victory to be in tension with the just war ideal. A belligerent waging a just war may confront a situation where victory requires the adoption of tactics that would otherwise be proscribed. In such cases, the belligerent faces a tough choice: either to surrender his or her just cause or to resolve to fight dirty. A tension is thus evident between the requirement to pursue victory in a just war and the constraints built into the idea of just war itself. As they pursue the victory that their cause presumably demands, belligerents fighting a just war will unfortunately, but inevitably, come under pressure to set aside restraints and embrace all means necessary to win. Victory, then, appears to be a concept that just war theorists cannot live with but also cannot live without. What sense can we make of this?

1  Ken Booth, ‘Ten Flaws of Just Wars’, International Journal of Human Rights 4:3–4 (2000), pp. 316–17.

Victory: The Triumph and Tragedy of Just War. Cian O’Driscoll, Oxford University Press (2020). © Cian O’Driscoll. DOI: 10.1093/oso/9780198832911.001.0001

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146 Victory

Problems Encountered Our point of departure was the observation that contemporary just war theorists generally refrain from talking about victory. I subsequently examined the seven problems that just war theorists tend to cite when prompted to explain their reticence to engage the concept of victory. This involved devoting a chapter to each problem. Chapter 1 addressed the first problem just war theorists perceive with victory: namely, that, just as it has never in the past been an object of concern for just war theorists, it should not be one now. I argued there that, in actual fact, victory has historically been a matter of interest to just war theorists. Indeed, it was central to the writings of Saint Augustine, the so-called father of the just war tradition. The question that arises from this is why has this history of reflections on the relation between just war and victory been occluded? I contended that the reason it has been overlooked is that it highlights the limitations of just war. By presenting just war through the prism of victory, it crystallizes it as tragedy. Just war is thus exposed as a miserable task that the wise man must take on, not because it will yield any glory or even happy outcomes, but because the need to maintain some modicum of societal order puts him under compunction to do so. Chapter 2 focused on the concern that just wars are properly directed toward peace not victory. I argued there that while one should not be tempted to draw too firm an opposition between victory and peace, it is possible to observe that the very act of winning a just war is likely to undermine the peace that the just war is ostensibly being fought to serve. This tells us something about the paradox of just war. On the one hand, just wars must be won if they are to yield the peace for which they have been fought; on the other, they cannot be won without creating conditions that threaten to overwhelm their own purpose. Just war is thus exposed as an idea that (both paraphrasing Ken Booth and foreshadowing the argument I present in the following pages) seems to suggest rational control and restraint but is merely the continuation of war by other rhetoric. Chapter 3 treated the conviction that victory is primarily a strategic rather than a normative concept, and, as such, beyond the scope of just war theory. What this chapter demonstrated, however, is that this is a peculiarly modern way of thinking about victory. The norm, historically speaking, has been to view victory as concomitant with justice and divine favour. The problem, of course, is the association that is thereby planted in our minds between justness and victory in war. We may regard this as naïve complacency, or as a residue of the Socratic belief that the just always prosper. It does not take a genius, however, to perceive a dangerous idealism in this tendency. It encourages a very black-and-white approach to the question of justice in war that tempts self-righteousness, demonization of the enemy, escalation, and the practice of victor’s justice. Chapter 4 tackled the school of thought which supposes that, so far as just war is not actually a form of warfare but is instead a mode of supranational

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The Art of Losing  147 punishment, it is inappropriate to speak about it in terms of winning and losing. It argued that there are serious problems with this reasoning. Most obviously, in pressing the case that just war is not in fact war, we risk whitewashing its messiness. By distracting from the fact that just wars involve dispatching young men and women to kill and be killed, we paint a picture of just war as a judicious and orderly procedure. This allows us to sanitize just war, to hide (even from ourselves) the violence that it involves, and thereby to make it more palatable. Chapter 5 reflected on the fact that victory is evocative of conquest. It ac­know­ ledged that these issues are difficult for just war theorists to talk about because they bring us uncomfortably close to conceding that the ‘might is right’ doctrine must have some place in the just war tradition. The irony here, the chapter demonstrated, is that there has historically been a place for ‘might is right’ in just war thinking. Indeed, it is an integral part of the seventeenth-century articulation of just war which still underpins contemporary accounts of the right to war in international society. Chapter 6 considered the implication of the claim that victory is an ana­chron­ is­tic concept that has little meaning in the context of modern armed conflict for just war theory. The concern here is an obvious one: because modern wars no longer end with a clear-cut victory for one side and an incontrovertible defeat for the other, it would be foolish for just war theorists to speak about victory. Analysis based on a variety of sources, including the writings of Emer de Vattel, showed this concern to be overblown. Yet it also revealed something else. It showed that the understanding of warfare that underpins just war thinking is predicated on a vision of victory that has little to do with the material realities of contemporary armed conflict. So far as it continues to assume a vision of war as a viable and indeed efficient instrument of decision, just war thinking must lose something in terms of realism, and its action-guiding potential must be diminished. This would seem to be a serious problem. If just war scholars are to remain relevant, we must address it. Chapter 7 concluded matters by reflecting on the final problem which just war theorists have considered a reason for ignoring victory. It examined the perception that victory is an inherently escalatory concept that undermines the ethos of limitation and moderation that the just war tradition champions. Drawing on the writings of Carl Schmitt, Ken Booth, Maja Zehfuss, and Andrew Fiala, it turned this problem on its head by contending that the concept of just war is itself also laced with escalatory potential. By framing war in terms of justice it raises the stakes and thereby creates incentives for belligerents to, so to speak, take the gloves off. If, then, we are disposed to resist the urge to engage the idiom of victory because it is an escalatory concept, this saves us from having to acknowledge the fact that so too is just war. And, of course, acknowledging this would compel us to countenance the possibility that while the idea of just war seems to suggest rational control and restraint, it also has the potential to produce the opposite effect.

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148 Victory

Just War is Just War When we reflect on what emerged from the discussion of each of these seven problems, it is possible to discern a unifying pattern or theme at work. At the risk of grossly oversimplifying matters, I want to suggest that the problems that I profiled are considered as such by just war theorists because they reveal the glitches that are built into just war thinking. Taking them in the order in which they were treated in the book, the problems just war theorists perceive with victory variously turn on and/or reveal the propensity for just war: 1. to crystallize as tragedy, such that even when one wins a just war, one also loses; 2. to corrode the basis for the peace they are ostensibly waged to advance; 3. to engender a naïve idealism that assumes that the good guys always win; 4. to sanitize the violence of war and therefore make it more rather than less likely; 5. to both rest upon and incorporate some element of might is right thinking; 6. to assume as its object of analysis an outdated conception of warfare; and 7. to tempt the recourse to and escalation of force. When we list these glitches alongside one another in this manner, what we discover is that they coalesce around a common anxiety: namely, that—to borrow Ken Booth’s phrase—they reveal just war to be just war.2 It is important to be clear about what this means. The claim that ‘just war is just war’ is usually advanced to prick the pretensions of just war theory by laying bare the truth that even those wars that are ostensibly justified are still nasty, brutish affairs—the same as any other war. It suggests that just war theory both distracts from and sanitizes the horrors of modern warfare by dressing it up in the language of moral principles. The aforementioned Booth furnishes its classic formulation. ‘The idea of just war is beguiling’, he writes, ‘because it ennobles the profession of violence, and offers a set of conditions that seem to suggest rational control and restraint.’ In actuality, he argues, the idea of just war is susceptible to being ‘broadened, ignored, misused, and manipulated’. The end result is that it provides a legitimizing sheen for practices that, if only we had our wits about us, we would presumably recognize as barbaric and reject out of hand. Just war, he concludes, is an enabling discourse that renders warfare more rather than less likely. It is, he concludes, merely ‘the continuation of war by other rhetoric’.3 The argument I distil from this may be summed up in two ironic reversals. First, what just war theorists appear to take as a good reason for ignoring victory,

2  Booth, ‘Ten Flaws of Just Wars’, pp. 316–17.

3 Ibid.

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The Art of Losing  149 I regard as a reason for engaging it. Where, in other words, they see the propensity of victory to reveal the fact that ‘just war is just war’ as a reason for avoiding it, I argue the opposite, that it is a reason for treating it. It is, I submit, precisely because victory forces us to confront the fact that ‘just war is just war’, with all that this implies, that they must think about it both more deeply and carefully than they have hitherto been prepared to do. Second, where the assertion that ‘just war is just war’ is usually invoked to discredit the enterprise of just war theory, I propose that it should instead be taken as a reminder of why we need it in the first place. It is precisely because ‘just war is just war’, the continuation of war by other rhetoric, that we need to think so assiduously about it. What, then, is cast by Booth and others as a damning critique of just war theory is better understood as a restatement of its raison d’être. The provocation that just war is just war should not, it follows, be interpreted as a glib basis for dismissing the task of just war theory, but as a statement of why we must confront that task with a renewed appreciation of the perils it poses and the limitations it observes.

The Tragedy of Just War Bringing all of this together, then, what are just war theorists likely to discover if and when they do summon the courage to grapple with the concept of victory? I have argued in this book that this exercise will bring us face to face with the tragic character of just war. When one asks what it means to win a just war, or what winning might look like in the context of a given just war, one swiftly discovers that the answers to these questions will always be in some sense dissatisfying. This is because they are not amenable to simple formulae or tidy resolutions. As the soldiers who wage them will attest, all wars, even just ones, always leave some loose ends, rough edges, unfinished business, and unhappy outcomes behind them—a reminder and remainder of the fact that approaching war as an instrument of justice and good governance is by its very nature a case of trying to squeeze square pegs into round holes.4 4 Consider the reflections offered by one former soldier in the British army on his time in Afghanistan. ‘What is it all for? What is our legacy? The word dangled around my neck like a recently loosened noose. It probably haunted our commanders more as they searched for direction and meaning in the maze of madness. Because in the military, all this violence, suffering, and death had to be for something. We wanted tangible proof. We . . . were obsessed with success, progress. We were dying for it. Desperate. Desperate for some legacy, some reason, some pride. But where were the battles to be studied at Staff College? The sweeping manoeuvres pitting our strengths against their weaknesses? The tangible victories of yesteryear? They were none, as irrelevant and as futile in Afghanistan as trying to eat soup with a knife. . . . So what had we achieved? . . . Despite all our efforts, all our goodwill, all our risk-taking, our money, our sweat, and our blood, Sangin was no safer than when we found it. In fact, it was more dangerous and getting even more so. Was Britain safer? I couldn’t tell. . . . What had I achieved? I don’t know. I know I have survived, and that that in itself is a kind of victory. I have endured, and in doing so, I have both gained and lost much.’ Patrick Bury, Callsign Hades (London:

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150 Victory The point to take from this is a simple but important one. Just war may forestall the worst from coming to pass, but it does not make the world a better place. It is neither a force for good in the world, nor a solution to its ills. Rather, it is a symptom of them. It cannot resolve the problems international society confronts today. The best it can do is defer, allay, or contain them. Even then, this can only be achieved, to a greater or lesser degree, by perpetuating those problems or pro­du­ cing others in their place. This is what one finds out about just war, I wish to suggest, when one investigates it via the prism of victory. This should be mistaken for neither a counsel of despair nor a case for quietism and withdrawal from the world. The fact that just war is tainted goods does not mean we can or should wash our hands of it. On the contrary, the source of its limitations is also the reason we need to engage it. It is because there are problems that are not amenable to easy solutions but that nevertheless must be tackled that we find ourselves reaching for some means of reconciling the demands of justice with the brutish exigencies of war. Unless one is willing to surrender the conviction that we can, should, and must subject warfare to normative scrutiny, this desperate grasping to discern what counts as right and wrong in the context of war ought to be respected and perhaps even welcomed for what it is: namely, a resolute if somewhat forlorn commitment to ordering (as best we can) the affairs of international society according to principles of justice.5 If this is a noble commitment—as any tragic enterprise must be—it is also a dangerous one. The language of just war is seductive.6 It has a way of lulling ­people into a sanguine acceptance of war by leading them to believe that, so long as all the relevant jus ad bellum and jus in bello principles are satisfied, the use of force can be, not merely justified, but unproblematically so. This is the logic that some of its contemporary exponents attribute to it, with the result that just war is mistaken as a solution to the very problem of which it is a part. So long, however, as one resists such hubris, and is mindful of the finitude of human judgement, this is a snare that can be, if not avoided or disarmed, at least anticipated. Simon & Schuster, 2010), pp. 278–9. Italics added. Bury’s views are echoed in other war memoirs, notably: Karl Marlantes, What It’s Like to Go to War (London: Corvus, 2012), p. 33. 5  This is consistent with Saint Augustine’s counsel that just war is a miserable but necessary task. See Chapter 1. 6  My thinking here is influenced by Chris Hedges’ reflections on myth. Essentially, I extend those reflections to just war. Hedges writes: ‘The potency of myth is that it allows us to make sense of mayhem and violent death. It gives a justification to what is often nothing more than gross human cruelty and stupidity. It allows us to believe we have achieved our place in human society because of a long chain of heroic endeavours, rather than accept the sad reality that we stumble along a dimly lit corridor of disasters. It disguises our powerlessness. It hides from view our own impotence.’ If this is at­tract­ive, Hedges warns, it is also dangerous. Myth trades in hyperbole and utopian dreams: ‘We fight absolutes. We must vanquish darkness. It is imperative and inevitable for civilization, for the free world, that good triumph . . . But the goal we seek when we embrace myth is impossible to achieve. War never creates the security or the harmony we desire.’ Chris Hedges, War Is a Force that Gives Us Meaning (New York: Anchor, 2002), pp. 22–3.

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The Art of Losing  151

Conclusion In conclusion, if by engaging the concept of victory we have discovered the tragic reality of just war, the best way of confronting and making sense of that reality is by thinking about just war as a function of loss.7 This would involve embracing as the point of departure for just war thinking the idea that all wars, even those that seem justified, are—to paraphrase Pope John Paul II—‘always a defeat for humanity’.8 What this means in practice is being honest about the fact that, even if they satisfy every principle and tick-box criterion that theorists can conjure, just wars are still a source of human suffering and, as such, a wretched thing. Contra the facile acceptance of war as a force for good in the world, this approach supposes that just wars should never be viewed as something to be celebrated, or even as an adequate means of righting a wrong. Rather, they should be viewed as miserable affairs that both issue from and compound the prior failure of politics and hope, such that even when they are right, they are wrong. Lowering our expectations of just war in this way will encourage and assist us to approach just war thinking, not as a framework that will enable us to bend war to justice, but as a way of reconciling ourselves to the futile necessity of this task.9

7  I have said very little in formal terms about what I mean by tragedy or from whence I derive it. What I say about tragedy can, however, be traced back to a few sources: Peter Euben, The Tragedy of Political Theory (Princeton: Princeton University Press, 1990); Edith Hall, Greek Tragedy: Suffering under the Sun (Oxford: Oxford University Press, 2010); Hans J. Morgenthau, Scientific Man Vs. Power Politics (Chicago: University of Chicago Press, 1946); Toni Erskine and Richard Ned Lebow (eds.), Tragedy and International Relations (Basingstoke: Palgrave Macmillan, 2012); Martha C. Nussbaum, The Fragility of Goodness: Luck and Ethics in Greek Tragedy and Philosophy (Cambridge: Cambridge University Press, 1986); Nicholas Rengger, The Anti-Pelagian Imagination in Political Theory and International Relations (Abingdon: Routledge, 2018); Henry Kissinger, Diplomacy (New York: Simon & Schuster, 1994); Reinhold Niebuhr, The Irony of American History (Chicago: University of Chicago Press, 2008); Reinhold Niebuhr, The Children of Light and the Children of Darkness (Chicago: University of Chicago Press, 2011); and Richard Ned Lebow, The Tragic Vision of Politics (Cambridge: Cambridge University Press, 2009). What I say about loss is prompted by Elizabeth Bishop’s poem, ‘One Art’. Elizabeth Bishop, ‘One Art’, in The Complete Poems: 1927–79 (New York: Farrar Straus Giroux, 1983). 8  Pope John Paul II saw no contradiction in enunciating a strident ‘No to war’ and proclaiming that war ‘is always a defeat for humanity’ even as he invoked the idea of just war. See: Peter L. Simpson, ‘Transcending Justice: Pope John Paul II and Just War’, Journal of Religious Ethics 39:2 (2011), p. 286. 9  Reinhold Niebuhr puts it nicely: ‘The really tragic hero of warfare is not the soldier who makes the greatest sacrifice but the occasional discerning spirit who plunges into the chaos of war with a full understanding of its dark, unconscious sources in the human psyche and an equal resolution, either to defy these forces or to submit himself as their tool and victim in recognition of his common humanity with those who are unconscious victims.’ Reinhold Niebuhr, ‘Christianity and Tragedy’, in Beyond Tragedy: Essays on the Christian Interpretation of History (New York: Charles Scribner’s Sons, 1937), p. 158.

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168 Bibliography Sorabji, Richard and David Rodin (eds.). The Ethics of War: Shared Problems in Different Traditions (Aldershot: Ashgate, 2006). Stalin, Joseph  V. ‘On the Great Patriotic War of the Soviet Union—Speech delivered November 6th, 1941’. Available at: https://www.ibiblio.org/hyperwar/UN/USSR/GPW/ index.html#page18. Accessed: 24 October 2018. Statman, Daniel. ‘Ending Wars Short of Victory? A Contractarian View of Jus ex Bello’, Ethics 125:3 (2015): 720–50. Stephenson, Paul. Constantine: Unconquered Emperor, Christian Victor (London: Quercus, 2011). Stevenson, William  R. Christian Love and Just War: Moral Paradox and Political Life in Saint Augustine and his Modern Interpreters (Macon: Mercer University Press, 1987). Stewart, Gavin. ‘Marcus Tullius Cicero’, in Daniel Brunstetter and Cian O’Driscoll (eds.), Just War Thinkers (London: Routledge, 2018): 8–20. Stirk, Peter M. R. A History of Military Occupation from 1972 to 1914 (Edinburgh: Edinburgh University Press, 2016). Storch, Rudolph  H. ‘The “Absolutist” Theology of Victory: Its Place in the Late Empire’, Classica et Medievalia 29 (1968): 197–206. Stroszeck, Jutta. ‘Greek Trophy Monuments’, in Simone Bouvrie (ed.), Myth and Symbol II: Symbolic Phenomena in Ancient Greek Culture (Bergen: Norwegian Institute at Athens, 2004): 303–31. Suarez, Francisco. Selections from Three Works, ed. by Thomas Pink, trans. by Gwladys L. Williams, Ammi Brown, and John Waldron (Indianapolis: Liberty Fund, 2015). Swift, Louis J. The Early Fathers on War and Military Service (Wilmington: Michael Glazier, 1983). Swift, Louis J. ‘Early Christian Views on Violence, War, and Peace’, in Kurt Raaflaub (ed.), War and Peace in the Ancient World (Oxford: Blackwell, 2007): 279–96. Syse, Henrik. ‘Augustine and Just War: Between Virtue and Duties’, in Henrik Syse and Gregory  M.  Reichberg (eds.), Ethics, Nationalism, and Just War: Medieval and Contemporary Perspectives (Washington DC: Catholic University of America Press, 2007): 36–50. Tacitus. The Agricola and Germanicus of Tacitus, trans. by K.  B.  Townshend (London: Methuen, 1894). Taylor, Craig. Chivalry and the Ideals of Knighthood in France during the Hundred Years War (Cambridge: Cambridge University Press, 2013). Tempest, Kathryn. Cicero: Politics and Persuasion in Ancient Rome (London: Bloomsbury, 2014). Thompson, Joseph  P. ‘Peace Through Victory: A Sermon’. Available at: www.nytimes. com/1864/09/19/archives/peace-through-victory-a-thanksgiving-sermon-preached-inthe.html. Accessed: 1 July 2018. Thucydides. The War of the Peloponnesians and the Athenians, trans. by Jeremy Mynott (Cambridge: Cambridge University Press, 2013). Tierney, Dominic. The Right Way to Lose a War: America in an Age of Unwinnable Conflicts (New York: Little, Brown & Company, 2015). Tierney, Dominic. ‘The Ethics of Unwinnable War’, in Andrew R. Hom, Cian O’Driscoll, and Kurt Mills (eds.), Moral Victories: The Ethics of Winning Wars (Oxford: Oxford University Press, 2017): 123–39. Tooke, Joan D. The Just War in Aquinas and Grotius (London: SPCK, 1965). Tosh, John. Why History Matters (Basingstoke: Palgrave, 2008). Totten, Mark. First Strike: America, Terrorism, and Moral Tradition (New Haven: Yale University Press, 2010).

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Bibliography  169 Tran, Mark. ‘General David Petraeus Warns of Long Struggle Ahead for U.S.  in Iraq’, Guardian, 11 September 2008. Available at: https://www.theguardian.com/world/2008/ sep/11/iraq.usa. Accessed: 18 January 2019. Tuck, Richard. The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (New York: Oxford University Press, 1999). Turner, Denys. Thomas Aquinas: A Portrait (New Haven: Yale University Press, 2013). Vanderpol, Alfred. La Doctrine Scholastique du Droit de Guerre (Paris: A. Pedone, 1919). Vanderpol, Eugene. ‘A Monument to the Battle of Marathon’, Hesperia 35:2 (1966): 93–106. Vattel, Emmer de. The Law of Nations, ed. by Bela Kapossy and Richard Whatmore (Indianapolis: Liberty Fund, 2008). Vergerio, Claire. ‘Alberico Gentili’s De Iure Belli: An Absolutist’s Attempt to Reconcile the Ius Gentium and the Reason of State Tradition’, Journal of the History of International Law 19:3 (2017): 1–38. Versnel, Hendrik Simon. Triumphus: An Inquiry into the Origin, Development and Meaning of the Roman Triumph (Leiden: E. J. Brill, 1970). Veyne, Paul. Did the Greeks Believe in Their Myths?, trans. by Paula Wissing (Chicago: University of Chicago Press, 1988). Vitoria, Francisco de. Vitoria: Political Writings, ed. by Anthony Pagden and Jeremy Lawrance (Cambridge: Cambridge University Press, 1991). Vollenhoven, Cornelius von. The Three Stages in the Evolution of the Law of Nations (The Hague: Martinus Nijhoff, 1919). Waltz, Kenneth. Man, the State, and War: A Theoretical Analysis (New York: Columbia University Press, 2001). Walzer, Michael. Spheres of Justice: A Defence of Pluralism and Equality (Oxford: Blackwell, 1983). Walzer, Michael. Thick and Thin: Moral Argument at Home and Abroad (Notre Dame, IN: University of Notre Dame Press, 1994). Walzer, Michael. Arguing about War (New Haven: Yale University Press, 2004). Walzer, Michael. ‘The Aftermath of War: Reflections on Jus Post Bellum’, in Eric Patterson (ed.), Ethics beyond War’s End (Washington DC: Georgetown University Press, 2012): 35–46. Walzer, Michael. ‘Coda: Can the Good Guys Win?’, European Journal of International Law 24:1 (2013): 433–44. Walzer, Michael. Just and Unjust Wars: A Moral Argument with Historical Illustrations— Fifth Edition (New York: Basic Books, 2015). Wang, Kevin and James Lee Ray, ‘Beginners and Winners: The Fate of Initiators of Interstate Wars Involving Great Powers since 1945’, International Studies Quarterly 38:1 (1994): 139–54. Watson, Alan. International Law in Archaic Rome: War and Religion (Baltimore: Johns Hopkins University Press, 1993). Wees, Hans van. Greek Warfare: Myths and Realities (London: Duckworth, 2004). Weigley, Russell  F. The Age of Battles: The Quest for Decisive Warfare from Breitenfeld to Waterloo (Bloomington: Indiana University Press, 1991). Weinberg, Gerhard. Visions of Victory: The Hopes of Eight World War II Leaders (Cambridge: Cambridge University Press, 2005). Werner, Wouter  G. ‘From Justus Hostis to Rogue State: The Concept of the Enemy in International Legal Thinking’, International Journal for the Semiotics of Law 17 (2004): 155–68. West, William  C.  III. ‘The Trophies of the Persian Wars’, Classical Philology 64:1 (1969): 7–19.

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170 Bibliography Whetham, David. Just Wars and Moral Victories: Surprise, Deception, and the Normative Framework of European War in the Later Middle Ages (Leiden: Brill, 2009). Whitman, James Q. The Verdict of Battle: The Law of Victory and the Making of Modern War (Cambridge, MA: Harvard University Press, 2011). Whitton, Frederick. Decisive Battles of Modern Times (New York: Houghton-Mifflin, 1923). Wiedemann, Thomas. ‘The Fetiales: A Reconsideration’, The Classical Quarterly 36:2 (1986): 478–90. Wiedemann, Thomas. Cicero and the Fall of the Roman Republic (London: Bristol Classics Press, 1994). Wight, Martin. Systems of States (Leicester: Leicester University Press, 1977). Williams, Robert E. and Dan Caldwell. ‘Jus Post Bellum: Just War Theory and the Principles of Just Peace’, International Studies Perspectives 7:4 (2006): 309–20. Wilson, President Woodrow. ‘Peace Without Victory: Address to Senate, January 22, 1917’. The full text is available at: www.digitalhistory.uh.edu. Accessed: 21 June 2018. Winik, Jay. April 1865: The Month that Saved America (New York: Harper, 2001). Winter, Jay. Sites of Memory, Sites of Mourning: The Great War in European Cultural History (Cambridge: Cambridge University Press, 1996). Wood, Neal. Cicero’s Social and Political Thought (Berkeley: University of California Press, 1988). Woodward, Bob. Plan of Attack: Bush at War Part III (London: Simon & Schuster, 2006). Woolf, Greg. ‘Roman Peace’, in John Rich and Graham Shipley (eds.), War and Society in the Roman World (London: Routledge, 1993): 171–94. Wynn, Phillip. Augustine on War and Military Service (Minneapolis: Fortress, 2013). Xenophon. The Persian Expedition, trans. by Rex Warner (London: Penguin, 1972). Xenophon. A History of My Times, trans. by Rex Warner (London: Penguin, 1979). Xenophon. Hiero the Tyrant and Other Treatises, trans. by Robin Waterfield (London: Penguin, 1997). Xenophon. The Education of Cyrus, trans. by Wayne Ambler (Ithaca: Cornell University Press, 2013). Zehfuss, Maja. War and the Politics of Ethics (Oxford: Oxford University Press, 2018). Zurbuchen, Simone. ‘Vattel’s Law of Nations and Just War Theory’, History of European Ideas 35 (2009): 408–17.

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Index Alexander the Great  67, 115–16, 123 Anachronism  15, 100 Angell, Norman  109 Antiquarianism 15 Appomattox 51–3 Aquinas, Thomas  31, 33, 71, 78–81, 85–6, 89, 140 Ares  59, 88–9 Aristotle  4–5, 103 Athena  59, 88–9 Augustine, Saint  14–16, 19–37, 62, 76–7, 79, 84–6, 128–9, 146 Aullus Gellius  61 Bellamy, Alex J.  9–10, 80–1, 94 Bernard of Clairvaux  14, 16, 54, 62–4 Biggar, Nigel  16–17, 72, 74–5, 89 Bond, Brian  40–1 Booth, Ken  12, 18, 87–8, 133–5, 143–5, 147–9 Bouvet, Honore  14, 16, 54, 67–8 Briand, Aristide  108–9 Brodie, Bernard  109 Bush, President George H. W.  41–3, 47–8 Bush, President George W.  5–6, 42, 72, 108, 112, 124, 127–8 Cajetan, Cardinal  14, 16–17, 79–81, 85–6, 89 Cameron, Prime Minister David  124 Churchill, Prime Minister Winston  126, 128–9, 138–9 Cicero, Marcus Tullius  4–5, 14, 16, 18–20, 24–5, 29–30, 36–40, 44–8, 52, 60–2, 103, 116–17 Clausewitz, Carl von  6–7, 55, 115–19 Creasy, Sir Edward  111–12, 115 Early Christian Fathers  24 Elshtain, Jean Bethke  14, 16–17, 72–3, 75, 89 Fetial process  37–9, 45–6, 60–1, 120–1 Fiala, Andrew  12–13, 134–5, 143–4, 147 Gentili, Alberico  14, 17, 90, 95–9, 105–7, 123, 128–9, 133 Gray, Colin  6, 56–7

Gross, Michael  129 Grotius, Hugo  14, 17, 40–1, 82–3, 90, 95–6, 99–106, 119–20, 123, 140 Gulf War 1991  9–10, 41–3, 109–10 Haggenmacher, Peter  85–6 Hanson, Victor Davis  114–16 Hart, Basil Liddell  109 Herodotus  50, 115–16 Honour  30–1, 44–5, 54–5, 121–2, 129–30 Hubris  42, 47–8, 51, 128–9, 150 Iraq War 2003  5–6, 42, 72, 75–6, 94, 108, 112, 127–8 Irony  13, 147–9 Johnson, James Turner  8–9 Judicium Dei  65–9 Junger, Sebastian  54–5 Jus ad Bellum  2–3, 7–8, 11, 79, 97–8, 100–2, 121, 137–8, 141–4, 150 Jus Ex Bello  11, 19 Jus in Bello  2–3, 11, 97–8, 100–2, 121, 136–9, 141–4, 150 Jus Post Bellum  2, 9–10, 19, 69–70, 94 Just Cause  2, 13, 60, 66–8, 70, 79, 86–7, 92, 102–3, 105–6, 121, 129, 132–43, 145 Kant, Immanuel  57 Kelsen, Hans  57, 72, 82 Knights Templar  62–6 Korman, Sharon  91 Lincoln, President Abraham  129–30 MacArthur, General Douglas  1, 4–6 Machiavelli, Niccolo  115–19, 130 Mandel, Robert  56–7, 110–11 Martel, William  6, 56–7 May, Larry  9–10, 94 McMahan, Jeff  2–3, 14, 18, 126, 135, 139–43 Meisels, Tamar  57–8, 68–9 Mowing the Lawn  113–14

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172 Index Neff, Stephen C.  57 Ninh, Bao  108–9 Non-combatant Immunity  2, 141–2 Obama, President Barack  5–6 O’Donovan, Oliver  2–3, 14, 16–17, 72–5, 89 Ordeal  65–9, 98–9 Pax Romana  25, 29 Poison 121–2 Pufendorf, Samuel  119 Reasonable Chance of Success  2, 7–9 Reichberg, Gregory M.  85–6 Regular War  86–7, 95–8, 101–6, 120–1, 133 Rodin, David  10–11, 14, 16–17, 71, 75–89, 139 Saeculum  22–7, 31–2, 34, 76–7 Schmitt, Carl  131–5, 137, 143, 147 Schorske, Carl  14–15 Schuck, Michael J.  9–10 Shakespeare, William  124 Spoils  50, 91, 97–9 Stratagems 121–4 Suarez, Francisco de  7–8, 14, 68–9, 71, 81–2, 86–7, 89, 94–6, 100–1, 129 Sun Tzu  4–5 Sybota, Battle of  50

Theology of Victory  60 Thompson, Reverend Joseph P.  40 Thucydides  50, 115–16, 123 Thyrea, Battle of  50 Tragedy  11–13, 18, 35, 146, 148–51 Triumphs  44–8, 52–3, 61 Trophies  45–53, 111 Trump, President Donald  5–6 Utilitarianism  8–9, 56, 131, 136–7 Valerius Maximus  61 Vattel, Emer de  14, 17–18, 57, 119–24, 133, 147 Vitoria, Francisco de  14, 16–17, 71, 80–1, 86–7, 89, 94–6 Waltz, Kenneth  109 Walzer, Michael  2–4, 7, 14, 18, 69–70, 92–4, 124, 126, 129–31, 135–44 War on Terror  5–6, 42, 73, 112, 127–8 Weinberger-Powell Doctrine  129 William the Marshal  65–6 Wilson, President Woodrow  42–3, 127–8 Wolff, Christian  57–8, 119 World War I  41–3, 72, 92, 109–10, 127–8, 133 World War II  41–3, 109–10, 129 Xenophon  36–7, 58–9, 61–2, 90–1, 103, 117, 123, 128–9 Zehfuss, Maja  12–13, 134–5, 143–4, 147