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date: 19 October 2018

Gender, Just War, and the Ethics of War and Peace

Summary and Keywords

The just war tradition is the most dominant framework for analyzing the morality of war. Just war theory is being challenged by proponents of two philosophical views: realism, which considers moral questions about war to be irrelevant, and pacifism, which rejects the idea that war can ever be moral. Realism and pacifism offer a useful starting point for thinking about the ethics of war and peace. Feminists have been engaged with the just war tradition, mainly by exposing the gendered biases of just war attempts to restrain and regulate war and studying the role that war and its regulation plays in defining masculinity. In particular, feminists claim that the two rules of just war, jus ad bellum and jus in bello, discriminate against women. In regard to contemporary warfare, such as post-Cold War humanitarian interventions and the War on Terror, feminists have questioned the appropriateness of just war concepts to deal with the specific ethical challenges that these conflicts produce. Instead of abstract moral reasoning, which they critique as being linked to the masculine ideals of autonomy and rationality, many feminist argue for certain varieties of an ethics of care. Further research is needed to elaborate the basis of an ethical response to violence that builds on philosophical work on feminist ethics. Key areas for future investigation include asking hard questions about whom we may kill, and how certain people become killable in war while others remain protected.

Keywords: just war, ethics of war, feminists, jus ad bellum, jus in bello, warfare, ethics of care, violence, realism, pacifism

Introduction

The just war tradition and its modern codification into the laws of war serve to define what is considered morally acceptable in war. In the words of one of its most famous scholars, just war is the tradition that has grown up to justify and limit war (Johnson 1981:xxi). This statement captures the philosophical balancing act that has characterized just war theory in its arguments that war can, indeed, be the moral and correct course of action, and the belief that in order to fulfill its purpose as a moral exercise, restrictions must be placed upon the practice of war. Just war can broadly be considered a way of thinking about political violence that appreciates that, while limits on violence are necessary, justice may sometimes require the use of force. While there are many possible variations in this broad position, the just war tradition is the most dominant framework for analyzing the morality of war.

Just war theory faces challenges from two philosophical fronts: from realism on one side, considering moral questions about war to be irrelevant, and pacifism on the other, denying that war can ever be moral. The positioning of just war between realism and pacifism is contested. Some feminist theorists consider just war to be much closer to a realist position. Elshtain (1992), for example, refers to just war as modified realism. Feminist critiques of just war theory usually consider traditional just war theory to be too close to realism (see Peach 1994, for example). While this essay illustrates various feminist critiques of the just war tradition, just wars status as falling between the amorality of realism in its acceptance of limits on warfare, on one hand, and pacifism in its insistence that war is necessary in some cases, on the other, remains a useful starting place for thinking about the ethics of the use of force.

Just war thinking has evolved from its roots in medieval Christian theology to transcend its status as a religious doctrine. Theologians still play a role in theoretical discussions about morality in war, but today moral philosophers and scholars, military professionals, and international lawyers, among others, are also involved in the formulation and application of just war theory. Feminism, as a branch of social and political thought, is also engaged in debates over the morality of war and peace from its own diverse perspectives. Liberal feminism, sometimes referred to as equal opportunity feminism, is associated with arguments for greater integration of women into militaries on an equal basis with men in order to end the male monopoly on state violence and the benefits that accrue to male veterans in the civic arena. The legal brief filed by the National Organization for Women in 1981 addressing the issue of women in the military is a key example. This brief argued that womens legal inability to perform military service on the same terms as men relegated them to the status of second-class citizens. Other feminists characterize war and militaries as inherently patriarchal institutions, and seek an end to both war and patriarchy by unraveling the many connections between male dominance and war (see, for example, Carroll 1987; Ruddick 1989; Warren and Cady 1994; Ruddick 1989). In this view, feminists should be pacifists and seek to undermine the war system as a contributing factor to patriarchy and injustice more broadly.

Feminists also engage with the just war tradition in various ways. They do so not only through exposing the gendered biases of just war attempts to restrain and regulate war, but also through examining the role that war and its regulation plays in defining masculinity. Like many pacifist feminists, feminist critics of the just war tradition have condemned just war as contributing to militarism and imperialism. Furthermore, feminists have also been at the forefront of exposing the weaknesses of just war theory in providing guidelines for contemporary conflicts. Besides critiquing the just war tradition, feminists have also been engaged in formulating alternatives to the just war tradition for approaching the ethical use of violence, a move which differs from a strict pacifist position in that it allows for the possibility of ethical violence.

Just war, as a tradition of moral thought aimed at both legitimizing and restraining war, serves as an important site for establishing the mutually reinforcing relationship between war and masculinity. The laws of war, as a codification of the just war tradition, both construct a regime of hegemonic masculinity and uphold existing international hierarchies of masculinity. The institutions of international humanitarian law (IHL) have been shown to privilege not only men over women, but certain men (of the West, especially of the United States) over other men (of so-called less developed states, and Muslim men in particular). Likewise, the just war tradition, upon which the laws of war are based, privileges not just men over women, but masculine concepts over those associated with the feminine. By subordinating not only women but also concepts and terms associated with the feminine, the just war tradition is a site of the articulation and perpetuation of male dominance and masculinism, that is, the privileging of men and concepts associated with the masculine.

Yet the relationship between gender and just war is more complicated still. As global racial and gender hierarchies come into play, certain political actors are considered feminine and in need of protection, and others are considered hypermasculine, and in need of control. Both constitute inferior gendered positions to that of the just, humane, and protective warriors who are legitimized by the just war tradition and the laws of war. Moreover, the just war tradition and the laws of war are built around concepts like the distinction between civilians and combatants that are gendered, and in fact, rely on discourses like protection to legitimize their existence. In short, the just war tradition and its codification in the laws of war are an important site of the strengthening of male dominance and a global, racial hierarchy in which the just warrior masculinity associated with Western men is considered hegemonic.

Just War and the Laws of War

At the core of the just war tradition is the conviction that peace is not the highest value that society should strive for. This position is in stark contrast to that of pacifists, who share an absolute, deontological moral stance that declares that peace is the highest good, higher than the preservation of national sovereignty or community values. Pacifism as a moral principle condemns war as inherently wrong, and violence as the greatest evil, greater than any anticipated gain from war or violence. Just war thought, on the other hand, does not view war as the ultimate evil. While appreciating the extreme moral repugnance of war, the just war tradition acknowledges that war may not be the worst moral bad, and that war may be fought under some circumstances and with certain restraints. As Elshtain observed, a specific strength embedded in [just wars] ontology of peace is the vantage point it affords with reference to social arrangements, one from which its adherents frequently assess what the world calls peace and find it wanting (1992:265).

The principles of the just war tradition involve both rules about when going to war is acceptable, known as jus ad bellum, and rules about the just conduct of war, provided that the war is justified, known as jus in bello. The two tenets of jus in bello are proportionality and discrimination. Proportionality means that the force used to achieve the military goal is proportionate to the possible gain of that goal. (For an in-depth look at the history and application of the principle of proportionality, especially as it applies to other tenets of the just war tradition as well as international law, see Gardam 1993b.) Discrimination means that one must discriminate between military and civilian targets. More commonly, this is known as the principle of noncombatant immunity. This is the tenet of the just war tradition that has been codified in international humanitarian laws forbidding the targeting of civilians in warfare and such war crimes as massacres, genocide, forced resettlements, and rape.

The tenets of jus ad bellum are just cause (to redress a wrong: defense, protection of innocent life, etc.), right authority (war must be declared by those responsible for the public order, not individuals or private groups), comparative justice (each side should recognize the limits of their just cause), right intention (war can only be intended for the reasons set out in just cause), last resort (all peaceful alternatives must be exhausted), probability of success (the purpose of which is to prevent irrational resort to force or hopeless resistance), and proportionality, in the sense that the evil caused by war is less than the good gained (see, for example, Johnson 1984:1829; Holmes 1992:212). Jus in bello is discussed first.

Prohibitions on killing civilians were the first restriction on war to be made part of international law, predating prohibitions against certain weapons. It was part of customary law between European powers in the eighteenth century (McKeogh 2002:2). This idea has the deepest roots; the idea that some people, especially women and children, should be immune from war is a theme common to Hebrew, Greek, and Roman philosophers and Jewish scriptures, as well as chivalric codes of the Middle Ages. Norms of discrimination were created to limit indiscriminate killing in war by marking some people as illegitimate targets, beginning with the clergy and church property. Chivalric codes were quasi-contractual agreements between willing participants, rather than universal laws. These norms hardened, such that, as Beier remarks, by the early modern period it had become a notable mark of both social (gentlemen do not harm defenseless people) and civilizational (only savages wage indiscriminate war) pretensions to superiority (2003:416), a mark still relevant today. The just war tradition was codified into the laws of war starting in the mid-nineteenth century and contain many of the same biases inherent in the just war tradition.

Gender and Jus in Bello

Feminist claims that the just war tradition is gendered can mean several different things. The most straightforward meaning is that just war and the laws of war treat men and women differently. However, this definition only captures part of how feminists and other theorists conceptualize gender. V. Spike Peterson describes two ways of understanding gender: in one sense, gender is a socially imposed and internalized lens through which individuals perceive and respond to the world. In a second sense, the pervasiveness of gendered meanings shapes concepts, practice and institutions in identifiable gendered ways (1992:194). In this first sense, gender is a social identity that often interacts and overlaps with race, sexuality, ethnicity, and other social markers of difference. In the second sense, gender is a worldview that imbues concepts with hierarchical meanings such that one side of a dichotomous variable is privileged and associated with masculinity, while the other is disparaged and associated with femininity. Relevant examples include strong/weak, Self/Other, autonomous/dependent, war/peace, security/chaos. These different meanings of gender are all used, sometimes together, to analyze just war.

Judith Gardam argues that humanitarian law, like all law, is gendered, even though its rules purport to be neutral, abstract, objective, and value free (1993a:267). Most fundamentally, the combatant/civilian dichotomy that is the basis of the jus in bello tenet of discrimination as well as the cornerstone of much of international law is investigated as a gendered distinction. Throughout most of human history, combatants have been nearly exclusively male, and a mans martial prowess is, and has been, considered a definitive test of his masculinity. Thus, even if some noncombatants are male, noncombatants as a category are gendered feminine. As Gardam notes, the social construction of gender of non-combatants has a long history. Men for the purpose of the law of armed conflict are those who fight, that is, combatants. The remainder of the population is gendered women (1993a:183).

Even within the category of noncombatant, the application of the discrimination clause of the just war tradition is not gender neutral. Even where it remained, immunity still tended to mean that the generic, weaponless civilians should not be unduly tortured or murdered; it did not usually mean that women, mere property, could not be raped [] Then, as now, women as combatants and noncombatants were treated differently than men as combatants or noncombatants (Askin 1997:33). The combatant/civilian distinction, which is at the heart of the discrimination principle of the just war tradition and IHL, has been revealed by feminists to be the principle that is most universally disregarded in the actual practice of warfare (Gardam 1992:268). In contemporary warfare, the distinction between civilians and combatants is increasingly blurred by tactics associated with guerrilla warfare. Such tactics, as well as the fact that as many, and sometimes many more, civilians were killed in twentieth century wars than combatants, bring to light how the civilian/combatant distinction is ultimately untenable (Schott 2008). Feminist theorists have attempted to rethink the notions of guilt and innocence for a more contextual understanding of what duties are owed toward the population in a time of war, regardless of an individuals formal status as civilian or combatant, which can be quite fluid and indeterminate (Sjoberg 2006b).

Recently, the feminist interpretation of the civilian/combatant distinction as gendered has come under criticism. R. Charli Carpenter (2003; 2006) rightly points out that the presumption of men as combatants or potential combatants puts men at a disadvantage they are much more likely to be massacred by enemy forces and less likely to be rescued by humanitarian aid workers in situations where such atrocities are likely. Laura Sjoberg criticizes Carpenter for assuming that the gender essentialism of the immunity principle actually benefits women. While the immunity principle appears to protect women, it actually risks womens lives and perpetuates gender subordination at the same time (Sjoberg 2006b: 895, emphasis in original). The immunity principle, based upon a gendered narrative of just warriors and beautiful souls, provides the narrative basis for war-fighting in the first place (as discussed below), and also fails to provide real protection for either male or female noncombatants Sjoberg argues that rather than the association of civilian status with women contributing to the ineffectiveness of the noncombatant immunity principle, both this gendered assumption and the ineffectiveness of the immunity principle at protecting actual civilians are due to the gendered narratives of just war.

Other feminist scholars have pointed to the ways in which gender is a constitutive component of the just war tradition and its modern codification into IHL. Helen Kinsella sees gender as productive of the laws of war, arguing, the distinction between combatant and civilian which founds and governs the laws of war and, indeed, contributes to its formative power is an effect of particular, historically rooted formation of sex and sex differences (2005:271). In her analysis of Grotiuss The Laws of War and Peace and the 1949 Geneva Conventions and their Commentaries, Kinsella argues that discourses of the natural innocence and harmlessness of women produced the theoretical difference between civilians and combatants. Kinsella notes in the Commentaries how only women were considered to innately possess the qualities associated with protected status under IHL: not bearing arms, partaking in fighting, weak, and vulnerable. Thus it is women who materialize and stabilize the distinction between combatants and civilians, as the only group who could not even potentially cause harm (2005:268, emphasis in the original). Carpenter argues, against Kinsella, that rather than constitutive civilian immunity, the gender sub-norm actually distorts the immunity norm (2006:267, emphasis in the original). It does this by positing adult male/woman, child, elderly as an inappropriate proxy variable for combatant/civilian status.

Rape in the Laws of War

One of the areas in which IHL is most biased against women is in the treatment of the crime of rape in warfare. Most of the first codifications of international law in the Geneva Convention of 1864 addressed the status of combatants (invariably men) who were captured or injured. Among the Hague Conventions several decades later were vague pronouncements that family honors and rights were to be protected during war, implicitly referring to rape during war, but categorizing this crime as a crime against the honor of the womans family, and not against herself. It wasnt until the Fourth Geneva Convention in 1949 that the first explicit reference to rape and sexual assault was made in what was also the first convention directed at the protection of civilians, rather than combatants. This Convention declared, Women shall be especially protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault. Thus rape was still seen as a crime of family honor, rather than one of violence. The category of grave breaches in IHL does not specifically mention rape or sexual assault, but it could be argued that rape does fall within the category of acts willfully causing great suffering or serious injury to body or health, as well as under the category of crimes against humanity (see Charlesworth and Chinkin 2000: ch. 10).

Philipose (1996) analyzes the inclusion of rape as a war crime in the International Criminal Tribunal for the Former Yugoslavia (ICTY), which was hailed by many for providing legal protection for women from war crimes, especially sexual victimization. She argues instead, the prohibition of rape by the ICTY is a prohibition only to the extent that rape is used in the service of ethnic cleansing and as such is not a generalizable condemnation of the use of rape as a weapon of war (1996:47). However, The International Criminal Court, which has only recently come into effect, explicitly includes rape under other serious violation of the laws and customs applicable in international armed conflict. Despite a number of important advances in the last 15 years, feminists have argued that the areas of jurisdiction of the two ad hoc tribunals for the former Yugoslavia and Rwanda (the prosecution of violations of IHL, committing genocide, and crimes against humanity) have obscured the occurrence and severity of crimes against women (Charlesworth and Chinkin, 2000:234).

Despite the all too frequent occurrence of wartime rape and the ongoing struggles to ensure the institutions of IHL such as the International Criminal Court and various regional courts take rape and related crimes such as sexual slavery and forced marriage seriously, the comparative success in criminalizing rape as violation of civilian immunity may have implications for domestic politics. Bergoffen (2008) suggests that rapes committed by enemy soldiers during wartime may be prosecuted, when such crimes are much less likely to be prosecuted in peace. While Bergoffen argues that this may challenge the domestic tolerance of sexual assault against women, it is not yet known whether the prosecution of enemy soldiers for rape portends a change in attitude about sexual assault in general, or reproduces the logic of protection addressed below, as a punishment for an evil aggressor violating our women.

Proportionality and Double Effect

Prohibitions against rape in warfare are an outgrowth of the jus in bello tenets of proportionality and discrimination. When questions of proportionality are at stake, military necessity is the standard against which harm to civilians is compared. Military necessity is privileged over humanitarian concerns in both the just war tradition and the laws of war. As Gardam writes, military necessity masquerades as a neutral objective yardstick against which all efforts to mitigate the horrors of warfare must be measured (1993a:176). The doctrine of military necessity assumes that military victory of the state is preeminent. This idea reaches its zenith in Michael Walzers articulation of the supreme emergency in his influential Just and Unjust Wars (1977/1992). He uses this term to suggest the possibility of times in which the threat may be of such a horrific and immediate nature that the rights of civilians and combatants as understood in the just war tradition may be overridden. This bias toward the success of military operations over the lives of civilians is a key aspect of the gendered nature of the just war tradition.

The principle of double effect illustrates how military necessity trumps humanitarian concerns in just war theory. Double effect is a way of reconciling the absolute prohibition against attacking noncombatants with the legitimate conduct of military activity. The principle of double effect grew out of Aquinass writings in an attempt to legitimate self-defense as a reason for the use of violent force. As developed by later theologians, the principle of double effect came to mean that, as long as certain conditions are met, one is not to blame for unintended consequences of ones actions. This principle acknowledges that deliberate taking of innocent life as a means to an end is forbidden, but nonaccidental (meaning forseeable) taking of human life can still be justifiable if four conditions are met. One, the act itself must be good (for example, attacks on military targets in war). Two, the evil effect (the killing of civilians) must not be intended or desired. Three, the killing of civilians must not be a means to an end in military victory (for example, to affect morale). Finally, and crucially, the overall good of the action toward the intended goal (military victory) must be sufficient to warrant the evil effect, the deaths of civilians. Thus the principle of double effect does not permit disproportionate killing of civilians in order to achieve a military aim (McKeogh 2002:645, 1667). In short, while still providing some degree of protection to civilians during war, the doctrine of double effect allows for their harm or death so long as it is accidental (see also Owens 2003). If we presume that most members of the military are male, while civilians are disproportionately women and children, the bias of double effect toward protecting men is evident. However, even if we do not presume the sexes of actual bodies being killed or protected, the cultural association of the military with masculinity and civilians with femininity (discussed below) also indicates that the laws of war in regard to proportionality are biased toward the masculine domain of the state and the military.

Proportionality, the other tenet of jus in bello, is most explicitly codified in Additional Protocol 1 of the 1949 Geneva Convention. Under article 52(2) states can only attack objects which make a contribution to military action. Article 51(5)(b) prohibits attacks that can be expected to cause loss of civilian life, injury to civilians, or damage to their property which is in excess to the concrete and direct military advantage anticipated. As Bellamy argues, the door is left sufficiently open under Protocol 1 that states can justify the killing of innocent civilians as an unintended consequence of attacks against legitimate military targets (2004:209). Along similar lines, Bergoffen (2008) argues that because of the nature of double effect, just war can be used to justify unlimited wars by its own logic, making it an inadequate framework for judging the morality of war. Besides rape and aerial bombardment, the use of sanctions and the targeting of infrastructure are the tactics of war that have the most civilian impact, and are also the least regulated by the laws of war.

Sanctions and Infrastructural Violence

No rules regulate economic sanctions under the laws of war. The closest rule is the prohibition against starvation as a method of war, but this rule only applies while the armed conflict is in progress. Michael Walzer notes how siege warfare, which is comparable to the imposition of sanctions regimes, depends on the fearful spectacle of the civilian dead, and not the defeat of the enemy army (Walzer 1977/1992:161). The principle of double effect does not apply, because this act is intentionally directed at civilians. The lack of regulation of sanctions and infrastructural damage is a key way that the laws of war discriminate against women.

Gardam and Charlesworth (2000) stress that in contemporary conflicts, sanctions are a key means of warfare. Sanctions can be justified by referring to the just war tenet of last resort, as the use of sanctions is seen as an alternative to war. Buck et al. (1998) document how the use of sanctions disproportionately affects women and children, who are often the people with least political voice. They report how, in the case of the sanctions regime against Iraq, women overwhelmingly bore the brunt of dealing with the disruptions caused by sanctions due to their responsibility for the health of their family as well as the acquisition of food, water, and fuel.

Although this method of warfare has profound consequences for the civilian population, attacking a societys infrastructure is considered an acceptable means of warfare. The devastation of Iraqs infrastructure during the Gulf War of 1991 affected the electric power, civilian industry, transportation, telecommunications, and the oil sectors. The attacks paralyzed the economy, depriving much of the population of essential systems for life support (see Normand and af Jochnick 1994:400). These strikes proved unnecessary and only minimally useful as the Iraqi army had backups of crucial systems. The acceptability of sanctions and attacks on infrastructure is another way in which the laws of war and just war theory are biased against civilians, as this kind of warfare is seen as not warfare at all in the case of sanctions, and of military necessity in the case of infrastructural damage.

The above examples demonstrate how the laws of war, as rooted in the just war tradition, are gendered in the sense that they have different consequences for men and women. The laws of war frequently provide less protection against the horrors of war for women, while promoting the interests of men in protecting combatants and privileging military necessity above humanitarian concerns. However, this same logic, as Carpenter argues, has also had the effect of weakening protections for civilian men, wrongly assumed to be combatants. This issue has been addressed by feminists who consider the gendered justifications for war to be found in a discourse that celebrates righteous battle for the defense of those made out to be innocent.

Jus ad Bellum/Just War as a Protection Racket

A key feminist criticism of jus ad bellum, or the justice of decisions to use force is that this tradition creates and reinforces certain stereotypical roles and discourses about men and women which legitimate war-making. Just cause, a key component of jus ad bellum, is based on gendered narratives of protection and defense. Jean Elshtain, in her classic work Women and War (1987/1995), has argued that gendered images of men and women are rooted, at least in part, in just war images of just warriors and beautiful souls. The construction of the beautiful soul mirrors that of traditional associations of women and peace, often invoked by womens antiwar or pacifist movements, where women are seen as naturally morally superior, natural peacemakers, and nurturers (for example, Carroll 1987:7). Masculine just warriors are only reluctantly violent, but violent nonetheless as they wage war on behalf of the pure and feminine beautiful souls who are too good for this world yet absolutely necessary to it (Elshtain 1995:140). Elshtain argues that these images of men as violent and women as nonviolent do not just prescribe roles in times of war but also work to secure men as warriors and women as noncombatants. These gender roles legitimate both male dominance in society (as the protected beautiful souls are excluded from public life), as well as the legitimation of war, especially wars against racialized, barbaric others (Tickner 2001:57). Elshtain argues that this discourse of beautiful souls and just warriors serves as a reason or justification for going to war. While the laws of war, in the United Nations Charter, stipulate that self-defense is the only acceptable right cause for going to war, the discourse of just warriors and beautiful souls serves to promote war on the basis of defense of our women.

While seemingly benign, such chivalric discourses require helpless, feminized victims: not full and equal citizens capable of defending themselves. The male protector confronts evil aggressors in the name of the right and the good, while those under his protection submit to his order and serve as handmaids to his efforts (Young 2003a:230).Thus discourses of protection reproduce gendered relations of power and subordination. Without this discourse of protection, many of the offensive military doctrines that resulted in war would not have been possible, as this discourse enables men to take violent action with the narrative that makes their actions seem moral, even commendable. The story of Private Jessica Lynch has been commented upon by several feminists as providing a tale of just warriors and beautiful souls: the young, naive driver for the army was caught up in a gun battle and taken prisoner in an Iraqi hospital, where she was later recovered by a daring rescue mission. In media reports, Lynch was frequently portrayed as a bumbling pixie or playful little girl rather than a trained soldier (Lobasz 2008).

The protector/protected dichotomy provides a rationale for state action in the international realm. Young (2003a; 2003b) likens the current form of homeland security to a protection racket with state officials as masculine protectors, similar to certain feminists description of the states relations to women under the system of male domination. Their protector position puts us, the citizens and residents who depend on their strength and vigilance for our security, in the position of women and children under the charge of the male protector. Because they take the risks and organize the agency of the state, it is their prerogative to determine the objectives of protective action and means (2003a:2267). The just war tradition implicitly endorses this condition by insisting that only states have the right authority to use force on behalf of the population, supporting the state as the protector of a defenseless population. Feminist have questioned the legitimacy of this idea of right authority on the grounds that women are underrepresented and often excluded from the decision-making processes of the state, which entails exclusion from the production of ideologies which are frequently militaristic. As Sjoberg writes, Men fight wars for women, whose consent is irrelevant (2006a:649). Noting that women in militarily powerful countries benefit from this power even if they are not granted full rights of citizenship, Eide (2008) insists that feminists must take seriously the responsibilities entailed in this privileged position and strive to articulate their own terms of justice in violence (such as overthrowing oppressors) as what happens after war.

The discourse of protection also has important consequences for a feminist analysis of just war, as the protector/protected dichotomy is reproduced in the combatant/noncombatant dichotomy at the heart of the just war tradition and the laws of war. For example, feminist studies of the incidence of sexual assault in wartime note that the existence of the protector/protected dichotomy actually creates an incentive for armies to rape the women of the enemy population, as this is seen not so much as an attack on these women, but on the honor and masculinity of the men who were positioned as their protectors, the enemy army (for example, Peterson 1999; Skjelsbaek 2001:21823).

This protection racket has its roots in a chivalric, just warrior mode of masculinity. The just warrior, a figure predominant in the work of both Elshtain and Ruddick, is defined by restraint, self-sacrifice, and the protection of women and vulnerable people. As Young writes, good men can only appear in their goodness if we assume that lurking outside the warm familial walls are aggressors, the bad men, who wish to attack them (2003a:224; see also Tickner 2001:57). The masculinity of the just warrior is often contrasted with a malignant masculinity of the enemy that can serve as justification for the protection. Young argues that the concern for well-being of women enacted in this type of masculinism is done within a structure of superiority and subordination, in which the male protector confronts evil aggressors in the name of the right and the good, while those under his protection submit to his order and serve as handmaids to his efforts (2003a:230). Not only does this model of masculinity maintain uneven power relations between men and women, but the just warrior model perpetrates a racial hierarchy that subordinates and dehumanizes the enemy, making them psychologically easier to kill. As Ruddick explains, We are the just warrior-protectors. By contrast, a particularly malignant form of swaggering masculinity a criminal, sexualized aggression is attributed to the enemy. When enemy males are racialized as predators from whom innocent countries or women-and-children need protection, they become killable killers ready to be burned and buried in their trenches (1993:112).

As Kim Hutchings (2007) notes, the protectee may be identified with actual women, such as in the case of women living under the Talibans regime in Afghanistan (see also Cooke 2002; Shepard 2006), or serve as a metaphorical identification, such as the nation (see also Elshtain 1995; Peterson 1999), or helpless victims of a tyrant. A recent example of this is the use of reports of rape and torture in Kuwait to justify an international response to the 1990 Iraqi invasion of Kuwait, as well as the treatment of Iraqi civilians under Saddam Hussein. As Cynthia Enloe commented, US intervention in the Gulf would be harder to justify if there were no feminized victim (1993:116). Furthermore, the gendered discourse of protection can be seen as an analogy to international norms of sovereignty as state honor. Farmanfarmaian noted of the Gulf War, repeatedly, the concepts of sovereignty and violation in the international arena were linked to sexual counterparts of integrity and rape (1998:287). Humanitarian interventions follow a similar logic, according to Orford (1999), as these wars follow a heroic narrative. The international community images itself as a masculine rescuer, an identification which requires a helpless other in need of salvation. Such interventions are possible because of the history of familiar stories from colonial era, to the discourse of development in the postWorld War II era. Due to the gendered and racial aspects of the discourse of protection embedded in the just war tradition, the myth of protection has sustained support for war and legitimized the use of violence in particular situations. It is for this reason that Sjoberg argues, against Carpenter, that the protection myths that serve to construct men as combatants and women as noncombatants work against the actual protection of civilians as they legitimize violence that harms both men and women.

The protecter/protected dichotomy provides the basis for distinguishing between legitimate violence and illegitimate violence. In the case of the US War on Terror, Afghan women are discursively used to construct the dichotomy between civilized Americans and barbaric terrorists and the Taliban. Women, and more precisely, womens bodies, are primarily represented as oppressed and in need of liberation from their oppressive male rulers, the Taliban. The Talibans behavior is thus represented as both uncivilized and unmanly, as they do not properly respect women in their society. Similarly, in the Iraq wars of 1991 and 2003, Kuwaiti citizens and Iraqi citizens, respectively, were feminized in the representation of these wars, as passive victims of the cruel, despotic Saddam Hussein and in need of rescuing and protection by Coalition armed forces.

The discourse of protection is often linked to discourses of civilization and barbarism, which assign enlightened gender relations to civilized men in contrast to the barbaric or savage masculinity of countries with backward views on gender relations. The term barbarian is described in relation to civilization and is defined as a lack of civilization. The terms barbarian and savage originated in Europe to describe those outside of Europe and was also used to describe others inside Europe. Young observes how colonialist ideologies mirror discourses used to justify wars of liberation: the knights of civilization aim to bring enlightened understanding to the further regions of the world still living in cruel and irrational traditions that keep them from developing the economic and political structure that will bring them a good life. The suppression of women in these societies is a symptom of such backwardness (2003a:230). Niva (1998) describes a similar tough and tender masculinity as the hegemonic masculinity emerging in the wake of the Gulf War of 1991. This paradigm of masculinity combined traits of aggressiveness and toughness that are typically associated with masculinity and an openly articulated sense of manly vulnerability and human compassion (1998:118). This model arose partly as a contrast to the construction of Saddam Hussein in the discourse surrounding the Gulf War; Saddam Hussein can be seen as todays manifestation of the barbaric despot. The hypermasculine, barbaric, ruthless, and somewhat crazed masculinity that Hussein represented was seen as simply not man enough to compete with the new American man, who was tough and highly militarized but also sensitive and compassionate. The racialized discourse of barbarism versus civilization is crucial to understanding the hegemonic masculinity that underpins, and is created by, the just war tradition. Recently, the doctrine of responsibility to protect has emerged as a norm that encourages states to override the principle of state sovereignty in order to stop genocide (Bellamy 2009). This emerging principle may prove to be a mixed bag for feminists: while it places the eradication of gross human rights violations above state sovereignty, it is based in the discourse of protection as a legitimate ground for the use of force. This norm is an area of potential future research for feminists interested in humanitarian intervention and discourses of protection and rescue.

Just War and Contemporary Warfare

In regard to contemporary conflicts, such as postCold War humanitarian interventions and the War on Terror, feminists have questioned the appropriateness of just war concepts to deal with the specific ethical challenges that these conflicts produce. Rather than a neutral set of guidelines, feminists have argued that biases inherent in the just war paradigm perpetuate unequal gender and race relations of power. For example, feminists have argued that biases of international law in regard to high-tech versus low-tech violence helps to construct and perpetuate the hegemonic masculinity of the Western just warrior in contrast to the barbaric warriors associated with irregular forces such as guerrilla fighters and terrorists. The just war tradition and the laws of war support and perpetuate the dominance of a hegemonic masculinity defined in contrast to the barbaric masculinity of those outside the Western just war tradition and lacking the technologically sophisticated weaponry of the US and its allies. In the hegemonic masculinity bolstered by the just war tradition, American and other Western men are positioned as the opposite of the Taliban and Iraqi insurgents (and all Muslim men, for that matter) as well as terrorist and guerrilla forces in general. They are enlightened in regard to gender relations, and their method of waging war is humane, just, and manly. Quite apart from the barbaric realities of war, American servicemen can distinguish themselves from their enemies by their ability to avoid being too close to the actual killing.

The just war tradition, from its inception, was based on promoting a more limited type of war between those under the authority of the church, while attempting to direct unrestrained warfare against non-Christians. In the middle ages, the church attempted to prohibit Christians from fighting one another with bows and arrows, crossbows, and siege weapons. Of course, there was no such prohibition against using these weapons to fight non-Christians. Chivalric codes were often aimed at safeguarding and strengthening the privilege of knights as a class by limited war between them, and as protection against the socially lower classes of armies (Johnson 1981:193).

Feminist scholars have much in common with critical legal theorists in their arguments that the laws of war perpetuate the status quo of oppressive social relations. One critical legal theorist has argued, law shapes the popular perception of an act by imbuing it with the psychic trappings of legality, reinforcing a chimera of shared values and international society and cultivating a sense of obligation to the civilized order (Smith, 2002:357). The existence of a body of laws regulating international armed conflict depoliticizes acts of war that are technically legal and preempts debate on the morality of legal warfare. Just as the laws of war are not neutral in regard to gender, they are also not neutral in regard to the economic or technological status of the parties to which they apply. For example, Chadwick (2003) describes the development of the laws of war as a means of reciprocity of restraint, meant to benefit all of the nineteenth-century industrialized countries, which had a degree of parity in armaments. In the early development of the laws of war, the laws were acknowledged to apply only to those who also participated in the conventions, meaning that violence used against colonized or uncivilized peoples was not subject to the same restraints as war against other state signatories.

The emergence of a different kind of war, often associated with guerrilla or terrorist tactics, was often met with a gloves off approach, where the principles of restraint and proportionality were disregarded. However, the Geneva Conventions abolished reciprocity as a condition for the laws to apply in order to make humanitarianism in war universal. Yet the idea that the laws of war do not apply to terrorists and other irregular armed forces is widespread in the postSeptember 11 War on Terror in which many members of the Bush administration argued that the Geneva conventions do not apply, and prisoners have been held without charge or legal counsel, and subject to enhanced interrogation, a euphemism for torture. As Chadwick contends, changes in the nature of warfare have made the distinction-in-application between civilized and savage states or groups once again relevant (2003:251).

The debate over the legal status of captured unlawful combatants held in Guantanamo Bay without the status of either prisoners of war or defendants in the American criminal justice system exemplifies the two tiered system of the laws of war. For example, Walzers (1977/1992) idea of the supreme emergency has been used by the US to justify overriding the laws of war in the case of terrorism, comparing al-Qaeda to Nazism and describing the War on Terror as a struggle between evil and civilization, arguing that obeying the tenets of just war would prevent the US and its allies from winning a basic battle for survival. Feminists have argued that the concept of supreme emergency privileges the survival of the state over the security of individuals, and encourages states to view individuals as expendable (Peach 1994:161).

In postSeptember 11 discourse, terrorists are frequently described as barbaric or uncivilized based on their methods of warfare, which are said to constitute a new or different type of war. By definition, terrorists and guerrillas blur the line between combatants and civilians. Their tactics depend upon their adversaries adhering to the principle of noncombatant immunity, as they seek to blend into the civilian population or to target civilian populations. In fact, due to their inability to effectively wage war using the same techniques because of the Wests adaptation of high-tech weapons systems associated with the Revolution in Military Affairs, wars between the West and non-West are increasingly characterized by asymmetrical warfare. This gap between high-tech and low-tech may heighten inequalities in moral capital as the shocking nature of premodern violence such as that committed by ethnic cleansers or warlords makes the violence perpetrated by high-tech militaries seem all the more clean, legal, and morally acceptable (Smith 2002:3701).

The technological gap between the militaries of advanced industrial states, led by the US, and much of the rest of the world gives a moral and legal advantage to states with technologically sophisticated militaries. The laws of war favor modern militaries, as the technical ability to carry out surgical strikes creates a legal divide between technological haves and have-nots (Smith 2002). For example, civilian deaths attributed to inaccuracy of precision guided weapons are framed as accidental deaths, reducing the responsibility ascribed to high-tech militaries for these civilian casualties. By framing these deaths as accidents in recent wars, the US sought to avoid deeper legal and moral questions regarding whether the attacks were proportional, and whether US forces placed themselves in enough risk to lessen the risks to civilian populations (See Wheeler 2002:21014, also Ignatieff 2000). Furthermore, most of the civilian casualties inflicted in high-tech warfare come from the targeting of infrastructure, which has many longer-term casualties associated with it, even if few civilians are killed directly (Gardam 1993b:410).

From a critical feminist perspective, rather than serving to outlaw certain violent acts, the laws of war are actually used to legitimize and depoliticize military actions, and to privilege military necessity at the expense of humanitarian concerns. The laws of war give credibility to certain military practices that are not explicitly banned, and acts sanctioned by IHL are generally immune to criticism. For example, most of the weapons outlawed by international conventions, such as antipersonnel landmines, are of limited military use to states with high-tech militaries. The most powerful countries, including the US, have historically opposed any attempt at offsetting their military advantage, only agreeing to ban weapons that were obsolete or did not limit their military advantage. Thus it is the instrumental use of laws that has oiled the skids of high-tech violence (Smith 2002:370).

The advantage that the just war tradition and the laws of war give to high-tech militaries that have the ability to fight what appear to be clean wars is a key element in establishing the just hegemonic masculinity of the West. The use of the laws of war and the just war tradition makes the wars fought by the US and its allies seem just and pain free, in strict contrast with their enemies of terrorists and other irregular forces, whose barbaric methods are delegitimized by the laws of war. The privileging of high-tech warfare suggests that current just war principles reinforce existing race and gender hierarchies, and, rather than restraining war, serve to promote certain forms of war. Because of the above critiques, feminists have attempted to theorize new ways of thinking about ethics and violence.

Feminist Re-Visions of Just War

Feminists have adopted a number of approaches to ethics and world politics, despite a shared concern with the gendered assumptions of ethical traditions and gendered effects of the applications of ethical values (Hutchings 2007). From the perspective of many feminists, the application of abstract moral and legal standards to conduct in war can have the opposite effect of the stated intentions of making war more humane. Instead of abstract moral reasoning, which feminists critique as being linked to the masculine ideals of autonomy and rationality, many feminist argue for certain varieties of an ethics of care, a distinctly feminist ethic based on supplementing masculinist abstract ethics with an ethics based on womens traditional role as caregivers (see Ruddick 1989; Robinson 1999). Feminists criticize the just war tradition for privileging abstract concepts of rights and justice over those of love and caring (Peach 1994:159). An ethics of care suggests a more contextualized and individualized moral assessment on a case by case basis as an alternative to the more masculine type of moral argument of absolute principles (sometimes known as the justice approach).

Many feminists note how just war theory employs abstraction similarly to military thinking to justify treating human bodies, both combatant and noncombatant, as expendable. Cohns work (1987; 1993), for example, probes the discourses used by military analysts and defense strategists, exposing how the gendered language used in regard to nuclear weapons and strategy removes moral questions and consideration of the enormous power these weapons have to destroy human life. The abstraction of both the language of violence and just war contributes to the denial of the human suffering caused by war, and glorification of sacrifice and death (see Cohn 1987; Ruddick 1989).

Just war discourse tends to reproduce and endorse the dichotomized language and thinking of war in general, with its pronouncements of just versus unjust, right versus wrong, good versus evil. Lucinda Peach argues traditional just war thinking also entails a fixation on principles of justice and rights rather than the needs and interests of specific persons in particular contexts. Peach argues that this way of thinking leads us to also think in dichotomized gender roles, such as the just warrior and beautiful soul Elshtain has analyzed. Peachs criticism of just war theory in this regard is based on an ethics of care. While care ethics is an important strain of feminist ethical thought, care ethicists are usually advocates of nonviolence (Hutchings 2007). However, some feminist have adapted care ethics to articulating feminist just war principles. As Peach notes, a feminist application of just-war criteria should emphasize the effects of going to war on the lives of the particular individual who would be involved whether soldier or civilian, enemy or ally, male or female (1994:166). Likewise, an ethic of care changes the question of casualties in war from one of abstract calculation to one of emotional attachment; from a political question to an interpersonal one (Sjoberg 2008).

Peachs criticism of just war theory for its dichotomization between good and evil also leads us to feminist argument about the need to consider peace positively instead of negatively. Feminists have questioned the just war principle of just cause, not only for its gender and racial narratives, but its inadequacies in coming to terms with a wider range of moral questions related to the use of violence. Specifically, this means that we should consider structural violence, individual security and well-being, and gendered power relations (which are often considered private) in determining the status of peace, and not just the absence of open hostilities in the public realm. Other feminists agree that the opposite of war is not peace, but justice: because of the interconnections between both physical and structural violence against women and war, any commitment to peace must simultaneously be a commitment to gender justice as well as a consideration of the goals of the war (Sterba 1994; Eide 2008). Noting estimates suggesting that on average, 1 million people die from war every year while 19 million die from preventable causes such as poverty and unequal distribution of goods and services, Pettman (1996:90) insists that the opposite of war is not peace, but justice. Pursuing peace must go beyond the secession of armed hostilities and encompass addressing the interconnections between poverty, environmental degradation, social inequality and exploitation, militarism and violence.

Other feminists, such as Chris Cuomo (1996), note how just war theories cannot evaluate the peacetime practices of the military and the consequences of a militarized society. Cuomo argues that analyses of violence that characterize outbreaks of military violence as isolated and persistent events are just as practically and theoretically insufficient as solutions to violence against women that do not analyze the relationships between everyday violence and institutionalized systems of patriarchy, racism, and economic oppression. Cynthia Enloe, for example, has written several books noting the multitude of influences on womens lives that militarization has had both in peacetime and in war (1989; 1993; 2000). Recent work by care ethicists have stressed the importance of jus post bellum in terms of building and maintaining relationships in the postwar period (Ben-Porath 2008).

Recent works by Bat-Ami Bar On (2008) and Danielle Poe (2008) pose suggestive ways to rethink the question of ethics and violence. Bar On is concerned with keeping the possibility of politics alive, while Poe suggests an ethic of sexual difference that emphasizes preserving the possibility of relationships. Poe also critiques just war theory for its incomplete assessment of wars costs. Inspired by Irigarays Ethics of Sexual Difference and Bar Ons work, Poe suggests that the ethics of sexual difference can pose a more sensitive ethical approach than just war theory through an exploration of the concepts of kindness, compassion, and hospitality as derived from the irreducibility of each human being.

Peachs ethic of care based assessment is similar in some respects to feminist just war criteria advocated by Laura Sjoberg in her application of Christine Sylvesters empathetic cooperation (1994) as a way to reconstruct what a just war would look like from a feminist standpoint (Sjoberg 2006a; 2006b). Sylvester (1994) finds Elshtains chastened patriot and the resulting academic conversation useful for elaborating what empathetic cooperation would look like. Sylvesters articulation of empathetic cooperation attempts to provide for the reconciliation of the ethics of care with ethics that are appropriate to the culture and situation, as many feminists from postcolonial traditions have insisted is necessary (Hutchings 2007). Empathetic cooperation also stresses the need to think concretely about real peoples lives, based on a feminist weak ontology that allows for contestability and empathizing with others emotions and experiences. It entails a vision of human connectedness and relationality that insists upon an attempt to identify with ones adversaries and those on the margins of power, as well as a commitment to dialogue in the search for justice. It is an attempt to balance both abstract justice ethics with the more concrete ethics of care (see also Ben-Porath 2008).

In terms of jus in bello, Sjoberg suggests a responsibility-for for targeting that works to counteract the problems of double effect in permitting civilian deaths and to bring a care approach into just war thinking. Empathetic war-fighting asking not only what the target is, but who may be hit, and insists that warring parties take responsibility not only for what they target, but the foreseeable impact of targeting decisions. Empathetic war-fighting involves a commitment by belligerents to target those who are morally responsible for the war, taking responsibility for both short- and long-term effects of wars, including their own mistakes (Sjoberg 2006a:1027; 2006b:9056; see also Peach 1994:166). This formulation represents an attempt to coalesce feminist ethical concerns about how war is carried out into more concrete guidelines for policy makers. Overall, these feminist attempts at reformulating ethical stances toward the use of force internationally share a sense that current moral standards governing the use of force are insufficiently suited to ensuring adequate protection for civilians and stemming the tide of nationalistic good versus evil thinking, though feminists offer different pathways to resolving these problems. More work is needed, however, to build on these highly suggestive works to more fully elaborate what a feminist ethics of violence would entail.

Conclusion

As the nature of war changes from the total war of World Wars I and II, to the nuclear era of threatened annihilation, to an era of small wars marked by ethnic tension and genocide, and military interventions justified by humanitarianism as well as the War on Terror, just war thinking has come under new challenges to provide moral guidance. Fundamental concepts of traditional just war thinking such as the doctrine of double effect and the civilian/combatant distinction are increasingly disputed not only for failing to provide meaningful checks on the destruction of war, but also for their relevance in providing a moral response to the challenges of contemporary war. Feminists have been attempting to come to terms with the ways in which moral arguments are used to support certain wars and certain actions taken in these wars, and cast a critical eye upon these practices. As ethical questions are inherently political, feminists must continue the task of subjecting ethical arguments to questioning in terms of who benefits, whose value systems are being represented, and whose interests and values are being discounted. Further research is needed to elaborate the grounds of an ethical response to violence that builds on philosophical work on feminist ethics. Key areas for future investigation include asking hard questions about whom we may kill, and how certain people become killable in war while others remain protected. These issues could be explored through analyses of contemporary modes of violence that differ from the traditional understanding of war as mass violence between two states armies, including the use of unmanned drones, the secret transport and torture of detainees, the use of suicide bombers, and questions about the ethics of humanitarian intervention, including the norm of responsibility to protect.

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Boston Consortium on Gender, Security and Human Rights. At www.genderandsecurity.umb.edu/, accessed July 2009. Contains links, working papers, and resources such as syllabi and bibliographies pertaining to gender and armed conflict.

Just War. At www.justwartheory.com/, accessed July 2009. A frequently updated website that contains links to commentaries on many aspects of just war theory, including classical theory, terrorism, occupation, civil war, and war crimes trials. Links to academic articles, policy reports, media commentaries, and more.

Acknowledgments

Laura Sjoberg and Jennifer Lobasz are thanked for their assistance, as well as Kimberly Hutchings, under whose supervision an earlier version of this piece was written.