Punitive Justice in War: Sounding out the 1995 ELCA Social Statement

[1] Almost twenty years ago, the ELCA declared “peace in God’s world” to be the worthy aim of politics.[1] The social statement sets forth an admirable list of “Tasks” for building cultures of peace, but also accommodates the possibility that war sometimes might be a “tragic concession to a sinful world” to restore peace. So, like other denominations, the ELCA embraced the tradition of just-war reasoning. “We ​​must determine in particular circumstances whether or not military action is the evil.” Such circumstances now occur more often than not. Since the 9/11 attack on the World Trade Center, the US posture has morphed into a permanent war posture marked by military engagements large and small throughout the world.

[2] It is helpful, therefore, that the statement offers just-war principles as a “moral framework” for supporting men and women of conscience, and for evaluating any strategies which involve the use of coercion. This framework includes familiar principles both for deciding when (ad bellum) and how (in bello) to fight. Of course, critics long have argued that just-war principles are hardly guarantors of objectivity. Never has any nation, including the United States, felt compelled by just-war argumentation to admit that its war-making was in the wrong. The principles are notoriously subject to expedient, if not nationalistic, distortion when deployed in the conventional way, as a list of requirements to be met to certify a war as just. The social statement warns against this eventuality[2] but the problem remains: does that check-off approach suffice for a nation on a durable war footing?

[3] The ELCA (since 1988) has yet to render judgment regarding the justice of any particular war, and may never be called upon to do so. But, its members may want guidance for using just-war theory. Is there a distinctively Christian foundation for making decisions about when and how to conduct war, now that war seems a permanent feature in the diplomatic landscape? Does the social statement provide a theologically deep enough grasp of what justice means in war-making?

[4] The ELCA social statement anchors its just-war thinking in the presumption that the aim of war is to restore peace, which the social statement defines as “relationships among and within nations that are just, harmonious, and free from war.”[3] This presumption expresses what I would call the ‘Gospel idealism’ that permeates the first three sections of the social statement: God’s “steadfast resolve for peace” runs through the Bible and right down to the present day. God is unshakably committed to earthly peace and works through the church and other communities to make it happen, and so war is just when it aims at securing the kind of peace that God is building.[4]

A social statement presumption challenged

[5] This presumption is manifestly superior to some alternatives which might be imagined: namely, that the aim of war is to wreak vengeance upon enemies, or that nations’ own interests take precedence over all others. But the peace presumption has been challenged, in effect, by Nigel Biggar, Regius Professor of Moral and Pastoral Theology at Oxford University. His argument merits attention not only because it is carefully constructed and exhaustively detailed, but also because his work on conflict resolution in difficult places like Northern Ireland and the Balkans has earned him access to the British foreign policy establishment. Indeed, Biggar, who I count as a good friend since graduate study, and who is known to many in the Lutheran Ethicist network and in the Society of Christian Ethics more generally, has achieved a degree of political answerability not often thrust upon many of us in the academic guild of ethicists.

[6] Biggar argues that “Just war is basically a punitive response to grave injustice”[5], or as he puts it more pungently:

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 wrongdoers the significance of what they have done for the sake of their own moral and spiritual health.[6]

[7] This ‘punitive’ (my term, not Biggar’s) theory of just-war rests upon both a political realism and a moral realism. Politically, according to Biggar, there are real aggressors who are not interested in the kind of cooperation the ELCA statement recommends. “Sometimes conflict is decisively the fruit of one party’s greed for power or ethnic contempt or delusory paranoia or fetid resentment….Some people really do not want peace.” [7] Standing in resistance to such wickedness is a claim about our social natures which Biggar dubs “moral realism.” He insists that there are moral goods and obligations which exist prior to and independently of laws, treaties and other human constructions.[8]

[8] This moral realism is consonant with what Biggar claims is the distinctively Christian accent in a long history of Western just-war thinking: an emphasis on punishment and rehabilitation.[9] During the past half-millennium, the just-war tradition has become entrenched in the positive law of nations, but now he argues it should be returned to its original Christian definition as guidelines for just punishment for wrongdoers and restorative justice for victims. There are immediate policy consequences from such a view. Biggar calls upon his Christian colleagues to reject pacifism and embrace war boldly as an instrument for punishing criminal regimes. The regimes which pose lethal threats to their own populations or global security need to be called to account, if not deposed.

[9] Biggar’s punitive theory contrasts sharply with the Gospel idealism of the social statement. Of course, the social statement is theologically ‘realist’ in that it repeatedly calls attention to the “sin” of aggressive self-interest and self-deception that disrupts the human community.[10] But Biggar draws out the implications of such a view of sin considerably farther than the social statement does. He insists that Christians are commanded to love the enemy as well as their victims, and that this love requires a “kind harshness,” in his borrowing of Augustine’s term. Such love aims at reconciliation by forcing the wrongdoer to stop. “Resentment and retribution are hostile forces: they seek to coerce the wrongdoer–to stop him, to make him conscious of the evils he causes, to urge repentance upon him.”[11] In short, Biggar expresses a robust confidence—based on moral realism—that the criminal action of states is to be judged, and that punishment is to be named and administered as such.

[10] This moral realism may resonate with the natural law now being reappropriated in American Lutheran theological circles by Gary Simpson and others. Then again, it might not, for there are obvious hazards. The slippery slope of punitive justice might descend quickly to the cliff edge of launching a crusade against a criminalized enemy. Biggar insists that genuine just war will not degenerate into such holy war, because the just warrior recognizes that there is wickedness in himself as well as in his enemy. “Just war is only ever a police action, never a crusade…”[12] Biggar writes with keen Augustinian awareness of the mixed motives which propel war making, and that the model of punishment is among “brothers” as equals, not from superior to inferior, as in parents to children.[13] But is convinced that the two most important ad bellum criteria can be framed honorably and persuasively in terms of punitive justice. Namely, a cause is just when “atrocious” regimes are stopped from harming others, and the intention is right when aimed at punishment.

My perspective

[11] I appreciate Biggar’s idea of ‘punitive’ war for its simple and bracing moral clarity. Perhaps the ELCA has been too hesitant to call a spade a spade. So should the ELCA endorse wars of punishment as the authentic understanding of Christian just-war thinking? Should it redirect its peace-building posture to include justice as retributive punishment? Should the reconciliation that peacemakers seek more explicitly involve initiatives of “harsh kindness” intended to force aggressors to acknowledge, and pay for, their wrongdoing? I see no single answer to these questions, for judgments about justice in war are always particular. So I will address three distinct contexts in which to assess the merits of adopting a punitive theory of just war-making.

[12] First is the war on terror still being pursued by the United States. Since 9/11, the US has spearheaded regime changes in Iraq and Afghanistan and supported it in Libya, Syria and elsewhere. The Obama Administration has taken the war on terror to a new level of invasive precision with drones and greatly stepped up its capacity to intervene around the world. And despite a president committed to multilateralism, the United States has shown itself ready to intervene unilaterally and covertly in response to provocation. These initiatives and responses exhibit a strong punitive intent, even where short of actual war. Would it be an authentic moral witness for the ELCA to endorse this war as a specifically punitive action against terrorists?

[13] Consider the Iraq War. Biggar, not shy about taking on even the most politically incorrect challenge, reviews the reasons for the US-British coalition to attack Iraq in 2003, a conventional war now widely understood as a war of choice rather than of necessity. He finds the invasion to have been justified on punitive grounds. “Dislodging an atrocious tyrant like Saddam Hussein and opening up the possibility of a healthier political future for the Iraqi people were good things to do.”[14] Yet punitive justice—barring Baathists from government positions and the army, for example—has backfired, as Iraq unraveled towards civil war. In addition, the suffering consequent upon the invasion was arguably much worse, at least materially, than that imposed by the tyranny it deposed. More generally, it was always a mistake to view terrorism in terms of war. A policy shift is underway to redefine the war against terrorism as a police action, and police actions are oriented primarily towards restoring order rather than pursuing punishment as a primary aim.

[14] The second relevant context concerns rogue governments who abuse their citizens, where a punitive approach seems at first glance more relevant. Biggar devotes a chapter to the Serbian invasion of Kosovo, but the focal point of such concern now extends beyond Europe. The International Coalition for the Responsibility to Protect, an alliance of some seventy-five non-governmental organizations, counts almost twenty countries, mostly on the continent of Africa, where citizens need to be rescued from lethal abuse committed by their own governments or insurrections.[15] Perhaps the most globally visible cases include Central African Republic, Zimbabwe, Congo, Sudan, Mali and, to the north, Syria and Libya. The ELCA social statement already provides a policy basis for humanitarian intervention; it supports military action where “there may be no other way to offer protection in some circumstances other than restraining forcibly those harming the innocent.”[16]

[15] The question then is whether the case for such humanitarian intervention would be enhanced or undermined by declaring criminal behavior as the “just cause”, and punishment as the “right intention.” Note that “Responsibility to Protect” (R2P), the emerging multilateral doctrine focuses on the failure of a government to protect, rather than indict it for criminal responsibility. Surely questions of punitive justice are best deferred until they can be addressed in a manner appropriate to a ‘police action’, and hopefully by citizens who have been victimized, rather than by outsiders. Compare, for example, what the indigenous “gacaca” courts of Rwanda achieved in the way of punishment and reconciliation to the choked docket of the international tribunal convened in Rwanda. Perhaps more significantly, most rogue governments operate in post-colonial contexts. No matter how ‘right,’ the intention to inflict punitive justice from outside, in this post-colonial world it is simply likely to stir up more suspicion than acquiescence.

[16] The third context is the arena of global leadership. Twenty years ago, it was plausible to see the United States as the global hegemon in a position of relative invulnerability, with the capacity and ensuing responsibility to undertake positive initiatives to diminish world insecurity. This leadership was assumed in the “Tasks” section of the social statement, which supports an array of initiatives intended to remove causes of war, and advocates a “politics of cooperation” through international legal institutions, including an International Court of Justice; common security efforts where the US is ready to deter or defeat “threats;” arms control; assistance to budding democracies, and support for nongovernmental organizations as a bulwark against governmental abuses. This irenic multilateralism clearly expresses the Gospel idealism of the social statement.

[17] Now the sky is much darker. The most militarily powerful nation finds itself to be acutely insecure, with a rising threat from China, and renewed belligerence from Russia. Under such dark skies, is a moral framework centered on punitive justice going to help the church arrive at sound judgments about the aggressive actions of superpowers, particularly the United States? Already the logic of punishment increasingly characterizes relations with Russia and China. Just last month, the Obama administration imposed yet another round of sanctions against Russia for its support of pro-Russian insurgents in Ukraine. While these sanctions may be necessary and morally appropriate, is anything gained by couching them in terms of retributive justice? What are Russians likely to think if they see themselves ‘punished’ by a hostile power which from their perspective has no moral right to inflict punishment upon them?

[18] In short, I wonder if much is to be gained by redefining just war in terms of punitive justice. But if not that, what is the distinctively Christian aim of just war making? The ultimate aim must be to restore the broken community. Biggar no doubt would agree: he affirms the “original sociability” of human beings, “originally subject to the natural law, and originally their brother’s keeper.” [17] The aim of punishment in his view is to render the malefactors once again fit for life in community. But surely there needs to be more: a vision of a vibrant social order where such healing and restoration makes abundant sense. The Christian community thrives on such expansive visions, whether expressed in the Johannine writings, the Book of Revelation, Augustine’s heavenly city, or the multi-tiered mosaic cosmos of a Byzantine church. Just war needs to be inscribed within such a more comprehensive vision, rather like one flying buttress that holds up the cathedral of shalom. In essence, we need to adopt Biggar’s “moral realism” as a firmly Christian frame for identifying and resisting evil, but with an emphasis on restorative rather than punitive justice.

Concluding thoughts

[19] Some concluding thoughts. A social statement is a consensus document, carefully framed and nuanced to encompass a breadth of viewpoints while trying to maintain a coherent line of argument. Here I have poked at the social statement “For Peace in God’s World” with a pointed argument by Nigel Biggar to the effect that the Christian tradition has a coherent narrative of war-making centered on punitive justice. His erudite argument silhouettes, by contrast, the social statement’s “Gospel idealism,” which makes room for violence ordered to the restoration of peace, but with an accent on constructive, multilateral peace-building. Biggar’s argument makes me realize that stronger support is needed—a very earthy vision of a vibrant social order to render the idea of peace-making attractive and real, and to thread together its long string of “tasks”.

[20] The ELCA social statement assumes an expansive vision of the global social order. In effect, it picks up one side of Martin Luther’s split vision of civil governance: “Protect the good; punish the wicked”.[18] Even in his harshest condemnation of peasant rebels, Luther reminds the princes that “The merciless punishment of the wicked is not being carried out just to punish the wicked and make them atone for the evil desires that are in their blood, but to protect the righteous and to maintain peace and safety.”[19] Luther affirms a positive vision of harmony as well as a negative vision of punishment; the ELCA social statement strongly tips towards peace-making. It may be difficult to retain such a vision, now that the sky has darkened over US power, and the US civic polity seems farther than ever from the beloved community. But it is hard to imagine a substructure of theological support for the Gospel idealism of the ELCA without it. Here Daniel Bell’s recent attempt to re-inscribe just war theory within a community committed to the cultivation of Christian virtue is a good place to start.[20]

[21] I doubt my suggestion here would survive an Oxford high-table conversation, at which Nigel Biggar’s forceful, erudite and occasionally acerbic argument no doubt was honed. I have only scratched the surface of his argument. Still, it is bracing to renew the conversation with a colleague from across the pond. Britain and the United States have a long-shared interest and alliance in pursuing wars with Augustinian sorrow at the necessity of violence. The global café is open for further dialogue.

   
NOTES

[1]“For Peace in God’s World”, a social statement of the ELCA adopted August 20, 1995. http://www.elca.org/en/Faith/Faith-and-Society/Social-Statements/Peace. Accessed May 1, 2014

[2]Ibid.,“These principles can be and have been misused in self-serving ways….”(4B)

[3]Ibid., 1.

[4] For Peace in God’s World, sections 1-3.

[5] Nigel Biggar. In Defence of War. Oxford: Oxford University Press, 2013, 212.

[6] Biggar, 169.

[7] Biggar, 10.

[8] Biggar, 214.

[9] Biggar, 151-159, for example.

[10] See, for example, sections 1 (“Sin entangles our social structures….”) and 3B (“earthly peace must recognize sin’s persistent, pervasive and subtle power…”) and 4A (“Sin’s power to often makes itself felt….”)

[11] Biggar, 72.

[12] Biggar, 168.

[13]Biggar, 165-166.

[14] Biggar, 324.

[15] http://responsibilitytoprotect.org/index.php/crises. Accessed April 18, 2014

[16]For Peace in God’s World, 4B.

[17] Biggar, 166.

[18] ”On War Against the Turk”, Luther’s Works, Volume 46, 184.

[19] “An Open Letter on the Harsh Book against the Peasants”, Luther’s Works, Volume 46, p. 73

[20] Daniel M. Bell, Jr. Just War as Christian Discipleship: Recentering the Tradition in the Church Rather than the State. Grand Rapids, MI: Brazos. 2009.