The contents of this document are the sole responsibility of the author and do not necessarily represent the views of CCADD.
We may begin with some platitudes about a world divided into sovereign states.
1. Two jobs of government are a) to protect their citizens from outside attack and
b) to keep law and order within their borders.
2. In the case of a), the objective is to defeat any attack; in the case of b), it is to prevent crime, and arrest the criminals.
3. The first job is the job of the military; the second, of the police and the courts.[i]
The UN charter insists on both jobs. Its members, i.e. states, have the right not only to run their internal affairs without interference from outside, but also to defend themselves against aggression by other states. Yet the charter depicts state sovereignty in crisis: for while the existence of the UN helps to preserve the system of sovereign states, it also highlights the fragility of state sovereignty in a globalised world.
The reason for the crisis to which the UN in 1945 seemed to be the answer, is obvious: wars, that is duels between states, or groups of states, had become too dangerous to be allowed. In theory, that was the message delivered by the UN charter itself, not to mention the teaching of the Church.[ii] The objectives and the methods of warfare have, in effect, been taken out of the hands of sovereign states because they cannot be trusted to use them wisely or justly. This is precisely why the only warfare allowed by the charter is in ‘self-defence’ by a state that is in imminent danger from another state.[iii] Thus military action under the UN is no longer a matter of war between states, but of the UN asserting its will on behalf of international peace and security, which is only another way of talking about law and order. In other words, it is international police work
Of course, wars have not always been between sovereign states. Mediaeval and Renaissance theories of just war were not concerned with inter-state conflicts in the modern sense. Pre-modern discussions of the criteria and authority for, and the legality of, going to war were necessarily different from our own. They don’t fit modern parliamentary democracies. For example, Aquinas uses the argument that just as the authorities ‘use the sword in lawful defence against domestic disturbances when they punish criminals, so they lawfully use the sword of war to protect the commonwealth from foreign attacks’.[iv] But this argument cannot wash in a modern state with proper police forces and courts of law, especially where police are not normally armed with lethal weapons.
It is the contention of this paper that today many of the concepts applicable to ‘just wars’ between sovereign states, especially those where law coincides or collides with ethics, are crumbling under the onslaught, for good or ill, of globalisation; just as many mediaeval concepts crumbled with the emergence of the sovereign state system. Of course none of this affects the underlying ethical principles of justice, and therefore of just war thinking, such as the absolute immunity of the innocent from intentional attack, or the observance of proportionality between means and ends. The war against Iraq can still be judged by just war principles.[v] Yet even here we can see the tension between war and policing. Are the continuing attacks on American occupying troops part of the war between the coalition states and Iraq? Or are they post-war criminal activity by disaffected groups? The jury is still out on this question.
Following the UN charter, I take it for granted that today the term war, and therefore the concept of just war, has to do only with armed conflict between sovereign states. My point, then, is not that the just war criteria are invalid, but that war itself has become unacceptable. A different way of dealing with conflict has to be worked out. Other kinds of armed conflict can be called ‘wars’ only metaphorically, and ‘just war’ categories have to be adapted to these.
As Shirley Williams has written: treating terrorist attacks ‘as crimes rather than acts of war mobilizes all those who believe in justice, human rights and the rule of law on the same side. Treating them as acts of war divides one nation from another, compelling them to take sides on the basis on national interest’.[vi] What is needed, then, is not a ‘war against terrorism’ but the prevention of crime and the catching of the criminals who are bent on it. Now, it is hard to exaggerate the difference between winning a war and maintaining law and order (i.e. preventing crime, catching criminals and bringing them to book). In other words between warfare and police work. Today we need to develop a global police effort to enforce law and order against criminals like Al Q’aida. For the significance of Al Q’aida and other terrorist gangs is that they are simply the criminal underbelly of the globalised world, alongside drug-smugglers and computer-saboteurs. So the necessary police effort against global criminals, if it is made, will not be a ‘war against terrorism’, but police-work on behalf of global law and order.
Now, I have already pointed out that in Aquinas’s mediaeval world the job of maintaining civil law and order was much the same as the job of defending the community from outside attack. Both used ‘the sword’, to punish ‘malefactors’.[vii] But modern experience refutes this. Police forces were invented, certainly in Britain, precisely because the military could not cope with what seemed to be ‘terrorism’, i.e. riots and civil unrest. A quite different strategy was needed, and was eventually adopted. Today, the same process has to be undertaken on the global plane. There is already evidence in some quarters of the necessary changes being made. The British army’s work in Northern Ireland, for the last thirty years or more, has essentially been policing undertaken because the local police could not do the job properly. A predominantly Protestant police force in Northern Ireland was part of the problem rather than of the solution. Without a transformation of their whole mind-set, other armies, wedded to the sovereign nation-state concept of winning wars, cannot do the job of preventing crime, and arresting criminal terrorists who have no state-allegiance.
Obviously, bringing criminals to justice entails that there is a system of justice to bring them to. And this means collecting and sifting evidence, formulating a prosecution case, assembling witnesses, and conducting trials. In short, there has to be a detective branch, a prosecuting (and defending) system, and a properly constituted criminal court to which the evidence can be brought for trial, with appropriate verdicts given and sentencing arrangements in place.[viii] This is as true in the global sphere as it is in the domestic. We need adequate police forces, detective agencies, prosecutors. Now, all of these already exist in an inchoate form, patchily distributed. The priority is to develop the arrangements that already exist in such a way that they can act effectively against criminals. The very last, and stupidest, thing to do is to undermine or in any way sabotage institutions such as the International Criminal Court, that have already been created, however imperfectly, for the very purpose that needs to be more vigorously and effectively pursued. We must build on what we’ve got, not pretend that, because the institutions that we have now established are not yet perfect, we are free to act as if they didn’t exist at all.
The distinction between warfare and policing has profound implications for ethics. If using force to prevent crime and arrest criminals on the global scale is not warfare but police work, then ipso facto the criteria for the just use of force need to be modified.
First of all, consider the in bello criterion of discrimination. Killing the enemy is held to be licit in a just war: indeed, to have his life in our hands is key to our success. This is why deploying lethal weapons is part and parcel of just warfare, although indiscriminate use is illicit. Hence the concept of ‘collateral’ or unintended killing, whereby the foreseen but essentially accidental killing of those who have done us no relevant kind of harm, excuses the otherwise forbidden act. But the case of policing is very different. Even when lethal force becomes unavoidable, policing fails to achieve its principle objective if the suspect is killed, because he can no longer be brought to justice.[ix] This was surely the lesson of the ‘death on the Rock’ incident when British soldiers killed IRA criminals in Gibraltar some years ago. Or consider the Iraq example. If that war had been just, because Iraq had been threatening imminent attack, the aim of the opening salvo against Baghdad on 20th March 2003, namely assassinating Saddam and his generals, would have been in good moral order because they would have been the leaders of a sovereign state engaged in an unjust proceeding. But any equivalent salvo to assassinate a fugitive criminal like (say) Bin Laden in Afghanistan would not have been in equally good moral order, since the objective of bringing him to justice would be thwarted, rather than promoted, by his death.
The ad bellum criteria for just warfare also need re-examination in the case of policing. In the case of war, the only just casus belli under the UN Charter (Art. 51) is self defence against an actual or imminent attack. How imminent is this attack? becomes the key question, as the dispute over the Iraq war shows. The corresponding question for police action is: how imminent is the likely breakdown of law and order? The ‘international community’ (which, if it means anything, is a term for an embryonic global police authority) accepts that in Liberia, Congo, Afghanistan under the Taliban and Yugoslavia under Milosevic things had already gone well beyond imminent threat: criminal violence took hold, and had to be stopped. But what about, say, Iran or North Korea, both of which are under suspicion of preparing to break the laws implicit in the Non-Proliferation Treaty? The ‘international community’ is far from accepting that these cases also deserve preventive police-action, for neither has yet succumbed to an internal reign of criminal gangsterdom, and neither has for certain committed a breach of international law. Iraq was perhaps the marginal case. The question it posed was: had it or had it not already descended into international criminality by procuring illegal weapons ready for imminent use? Was the coalition’s aim preventing a crime (a police matter) or at deposing the regime (a war aim)?
The imminence of a threat suggests a need for prevention. Now preventive war is clearly beyond the pale set by Article 51 of the UN charter. Most just war theorists would say it is quite simply forbidden. But in the case of police work, prevention is of the essence. This follows from the aim of catching the criminal and bringing him to justice. Anticipating the criminal’s plans and thwarting them by detective work before they can take effect, is central to policing. And this must, I think, be true of policing global criminals, like Al Qaida, just as it is of policing (say) drug-runners. Obviously, the dangers to personal liberty of such activity are great; but I think they have to be faced, rather than simply evaded. In a world of very dangerous criminals, vigilance has to be kept up, even at the expense of some restrictions on individual freedom of action. This is because there can be no choice about whether or not to try to enforce the law. Whereas there is always a choice about whether or not a state should go to war. As Pope Pius XII said in 1953 ‘When the damages caused by war are not comparable to those of “tolerated injustice” one may have the duty to “suffer the injustice”’.[x] But maintaining that the price for keeping law and order in a society is too high for that society to pay is obviously out of the question.[xi] Detective work to pre-empt and if possible prevent criminals like Al Q’aida from committing crimes on the global stage is clearly necessary. And indeed, this very necessity, which becomes more widely recognised by the day, is itself proof that terrorism, like drug-running, is a criminal matter and is emphatically not a matter of waging a war.
The problem of authority for policing at the global level has been highlighted by recent UN Security Council resolutions about warfare against Iraq. The key here must surely be the belated institution of what the charter called a ‘military staff committee’ but which would be better designated a ‘policing staff committee’. For whatever may or may not be agreed about the authority for going to war (and the law is continually developing on this matter), the authority for using global police forces is crucial to the problem of terrorist crime. In practice, of course, a good deal of co-operation between police forces, especially at the intelligence level, already goes on. But given the tendency on all sides to mix up the categories of warfare and police-work, it is essential to clarify the way to deal with criminals like Al Q’aida.[xii] But this idea does not imply the creation of a world government able to deploy a world police-force. There is no need to wait that long. As with the creation of police forces in Britain, what is needed is a network of local forces but with a high degree of co-operation and inter-operability: a more manageable but less utopian concept
To sum up: my thesis is that in today’s globalised world wars are declining in importance, and are in any case ethically unacceptable. The problem is global criminality, especially (but not only) terrorism. This means that procuring and deploying the means of waging war, from mini-nukes to space weapons, are also ethically unacceptable and have to be eliminated (as the signatories to the Nuclear Non-Proliferation Treaty have already promised but failed to fulfil). In their place the world needs to develop a legal framework and police-forces adequate to deal with highly organised criminals. For all their failings, the United Nations and the International Criminal Court are critically important institutions for establishing law and order in the twenty-first century. The alternative is too horrible to contemplate. Iraq and Liberia show us what that future is likely to be like. The Iraq war may well become known as ‘the war of false pretences’. But at least it has shown us that winning wars is easy. The difficult bit is policing the vanquished afterwards; a massive task of readjustment, especially for armies bred into an obsolescent culture of war-fighting and not peace-keeping. Meanwhile, Liberia shows what is needed once crime takes hold of a whole society and threatens to destroy it: namely a massive global police-action to restore law and order, to arrest the leading criminals, and to make practicable the provision of the necessities of civilised life. The question is: has the world the will to make the dream of law and order a reality? And how is it to be done?
I would like to end with a thought which will seem offensive to some and preposterous to many of our contemporaries. Yet to a Christian group it ought to be obvious. Much of my discussion has centred on the process of globalisation: a development which is overtaking, and threatening to replace, the familiar world of nation-states. Terrorism is merely the criminal underbelly of this globalisation. But what is globalisation? What sort of globalisation is best? There are many possible models. One is exemplified in the work of Philip Bobbitt, who foresees a capitalist world of ‘market-states’ replacing the worn-out post-Westphalian model. But his thesis makes nonsense of Christian teaching about human needs and human communities. The alternative, which I will simply leave on the table for us to discuss, is that ‘global’ is only another word for ‘catholic’. The Catholic Church, assuming that such an entity exists, must necessarily work quite independently of the Westphalian (or any other) system of sovereign states. For the church is founded on quite different principles. To be catholic is to be non-conformist; to go behind and beyond the Westphalian model. If we need guidance for the globalisation of the future we must take seriously, and think hard and critically, about the fact that the church is the sacrament of this world to come. This theological task is also a profoundly political one. It is not a job just for theologians, but for everybody, including CCADD.
[i] This point is made at greater length in my two chapters in Some Corner of a Foreign Field (Ed. Roger Williamson published, for the Council on Christian Approaches to Defence and Disarmament, by Macmillan, 1998).
[ii]Cf. Pacem in Terris, (1963) Part III: ‘It no longer makes sense to maintain that war is a fit instrument with which to repair the violation of justice’. ‘Today the scale and horror of modern warfare, whether nuclear or not, makes it totally unacceptable as a means of settling differences between nations. War should belong to the tragic past - to history. It should find no place on humanity’s agenda for the future’. (Pope John Paul II, 1982).
[iii] Indeed, the Charter seems to define the casus belli even more restrictively: ‘Nothing..shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations’. (Art. 51, my italics)
[iv] ‘sicut licite defendunt eam (sc. rem publicam) materiali gladio contra interiores quidem perturbatores, dum malefactores puniunt…its etiam gladio bellico ad eos pertinent rempublicam tueri ab exterioribus hostibus’. (Summa Theologiae IIaIIae Q40, Art 1)
[v] As it has been by Sir Michael Quinlan in The Tablet, (London) 19th July 2003 pp. 4-5.
[vi] Shirley Williams, War and Peace in God and Caesar: Personal Reflections on Politics and Religion (Continuum, London, 2003), p. 115
[vii] See note v above.
[viii] These requirements are clearly not met by the ‘kangaroo’ arrangements set up by the USA in Guantanamo Bay, as the British government is trying (July 2003) to make clear to the Bush Administration.
[ix] Before his death in Iraq, the UN Representative Sergio Vieira de Mello called for Saddam to be captured alive, saying that ‘It’s as if you deny the Iraqi people the right to know what has happened and feel that justice has been done. Catching him alive is important if you want to shed light on what has happened and to re-affirm the principle of accountability for crimes’. (The Guardian, 30th July 2003)
[x] Address to the International Office of Documentation for Military Medicine, 19th October 1953.
[xi] See my article When Is A War Not A War? in Some Corner of a Foreign Field, pp. 42-3 and note 13 on p. 46
[xii] A typical example of such muddled thinking occurred in Tony Blair’s speech to the nation just as the Iraq war began, in which he made no distinction between the actions of sovereign states like Iraq and terrorist gangs like Al Qaida. The world ‘faces a new threat: of disorder and chaos born either of brutal states like Iraq..or of extreme terrorist groups..these threats come together and deliver catastrophe..’