Discussing the Chilcot Inquiry into the invasion and occupation of Iraq on BBC Radio 5 on 20 January this year, John Rentoul, quoting Nick Cohen, challenged ‘the anti-war mob’, and more specifically Philippe Sands, to tell him how any war could be ‘illegal’. Cohen, like Rentoul, is an apologist for the Iraq War, petulant about critics who insist it was illegal. His petulance, elaborated in the article quoted below, is rooted in his (entirely correct) insistence that the murderous Sadaam Hussein regime was itself acting in ways which were plainly illegal. But my concern isn’t with whether two wrongs make a right. Rather it’s with Cohen’s ‘simple question’:

I am growing old and grey waiting for John Humphrys or Jon Snow to show a spark of journalistic life and ask Nick Clegg, Philippe Sands and all the rest of them the simple question: "What do you mean by an 'illegal war'?"

As a straight question, ‘What do you mean by an “illegal” war?’ is pretty silly. Why? Because there’s an obvious answer: a war is illegal if it contravenes international law. But of course that’s just Cohen’s point: when it comes to war, legal niceties are practically neither here nor there. (To which I would add: and remember that the law itself is founded in violence, crucial though its protections genuinely are.)

Original artwork for openDemocracy by Hannah Abbo

But surely the notion of legal and illegal war has its roots in a moral framework, that of just war theory? Indeed it has. Just war theory, however, turns out to be the problem, not the solution. That’s why we need to take Cohen’s cynicism seriously.

The present system of international law has its roots in “local” law, that’s to say in the laws of the various political groupings that held sway before the inception of the present world-wide system of nation states. It is in pre-national medieval Europe that Just war theory began to be formalised as a Christian theological response to the apparent necessity of war in certain situations. Thus it began to enter the legal thinking of pre-national western states; and the moral provisions of just war theory continue to underlie today’s international law concerning war -- just as other areas of the law too have their roots in morality. So the notion of an illegal war is based in the idea of an immoral war, an unjust war; and contemporary international law concerning war basically holds that it is only those wars that are (regarded as) morally justified – just wars – that are legal. (The condition is a necessary one: in principle at least, no genuinely immoral war can be legally justified. It is not, however, a sufficient condition: some morally justifiable wars might – for technically legal reasons – be nonetheless illegal.)

So what makes a war just? Based on the idea that individuals have a right of self-defence, the theory was developed in response to Christianity’s problems with always turning the other cheek. It proposes one set of conditions that apply to going to war (ius ad bellum); and another to the conduct of war (ius in bello). In brief, going to war is reckoned just if:

* innocent life is under attack;

* force is the only means available to combat such an attack, non-violent    means having been exhausted;

* there is a probability of success;

* the resort to war is based in right intentions: it is purely defensive and the force used is proportional to the aggressor’s; and

* war has been declared by a lawful authority.

The conduct of war is governed by a further set of conditions:

* only combatants may be subjected to military action;

* any military advantage must be weighed against the incidental impact on non-combatants;

* any such “collateral” casualties must be unintended, even if foreseen; and

* only the minimum level of force necessary to stop the aggression in question may be used.

In short, the only war that can be just is a purely defensive one fought against the combatants of an aggressor and using minimal force. There are of course all sorts of complications and difficulties here (especially about “foreseen but unintended” non-combatant casualties, which depends on an argument about ‘double effect’ that many consider a sleight of hand). However, I want to focus on two issues that are all too often overlooked.

First, it follows from the central characteristic of a just war -- that it can be only defensive – that there can be no such thing as a just war. World War II, for instance, the least controversial of any war with a claim to being just, was not a just war. Only the war fought by the Allies was just; the war fought by the Nazis and their allies was clearly unjust. For only “the Allies’ war” was a defensive one; “the Nazis’ war” was aggressive. To the extent that any and every war is at once aggressive and defensive, “the war itself”, so to speak, cannot be just. This of course puts the question of “victor’s justice” and what counts as aggression or defence centre-stage. Consider all the wars in which “we” in the West have been involved since 1945. Has a single one been defensive? Even allowing that just war theory allows intervention on behalf of innocent others, and not just in literal self-defence, there is no post-1945 equivalent of “the Allied World War II”. Every war fought by “the West” has been aggressive; none has been a purely defensive response to attack. Even if one regards the 2001 attack on the World Trade Centre and the Pentagon as an act of war – itself a highly controversial claim, cynically insisted upon by the United States government precisely in order to be able to claim (however unwarrantedly) that its so-called war on terror was a just war – the West’s response cannot be justified by just war theory. For retaliation is one thing, defence another – to say nothing of attacks on non-combatants, minimal force, no alternative and right intentions. In fact, the only war of the last few decades that – broadly --the West has entered into for reasons that even arguably meet Just War conditions was Israel’s defensive war of 1967. Not that the rest of the world fares much better: Vietnam’s invasion of Cambodia on behalf of its innocent civilians is exceptional, and even here intention is problematic. As for the conduct of war, even if you really do think that Israel’s later attacks on, variously, its Arab enemies in the early 1970s, Lebanon in the 1980s and since, and Gaza at the end of 2008/beginning of 2009 were all legitimately defensive – and that would be interestingly difficult to argue – the manner in which those wars were fought clearly do not accord with the conditions of ius in bello.

So the question has to be asked how it is that just war theory is so readily invoked in “justification” of clearly unjust wars. That brings us to the second issue. Just war theory is oftens criticized as being out of date: today, combatant and non-combatant cannot readily be distinguished; intelligence enables pre-emptive strikes; and ‘proportional force’ is meaningless in a context of atomic, biological or chemical weapons and of terrorism. While perhaps useful in adjudicating between roughly equal mercenary forces employed by medieval rulers, it can have no bearing in a world where wars are fought between quite different entities (the USA and Al Qaeda) or in response to the demands of humanitarian intervention (the USA in Grenada, Panama; NATO in Kosovo; the “coalition of the willing” in Iraq). That’s Cohen’s point. But the real problem is deeper. It is precisely because it theoretically rules out as unjust almost any modern war, even one fought by the “defensive” party, that it can be used practically to justify almost anything. For to serve any purpose at all, its conditions have to be reinterpreted: neither non-combatants nor proportional force are what they were; pre-emption is not aggression; success is more or less guaranteed; and of course “surgical strikes” constitute minimal force by definition. In short, reinterpretation is all too easy and is all too often in the hands of the powerful. No wonder, then, that liberal reworkings of just war theory such as Michael Walzer’s renowned Just and Unjust Wars turn out to be apologias for the status quo.

Back then to Cohen’s question. It’s not just that international law can as a matter of fact be at once ignored and re-made by the world’s sole superpower and its spear-carriers: consider for example Israel’s explicit “justification” of its attacks on civilian targets in Gaza, buttressed by its military “code of ethics” which permits “targeted killing” and insists that the safety of “our” soldiers comes before that of “their” civilians. Rather, because just war theory can’t provide us with a means of morally distinguishing justified from unjustified war, it is far too easy for both politicians and their academic allies to (re-)interpret it so as to permit whatever neo-liberalism requires. And it’s because just war theory is so conveniently fluid that the international law based on it is so easily dismissed as empty.

With thanks to Tarik Kochi.