Just War Theory
by
Nile Stanton
Thursday - March
23, 2023
Just war theory
provides a set of
guidelines that can
help political and
military leaders to
make ethical and
responsible decisions.
The guidelines can
help ensure that
nations act in ways
that are consistent
with their values and
that they are held
accountable for their
actions. They can help
promote accountability
and transparency in
military actions and
help create a more
peaceful and just
world. Therefore,
since only a small
percent of people know
anything about just
war theory at all, I
encourage more to
learn about it. Here
is your opportunity.
For
hundreds of years, the
morality and legitimacy of
wars have been evaluated
under what is called just
war theory. This theory
can be logically accepted
as a decisional paradigm
if, and only if, one first
accepts as a priori the
justifiability of war at
least under a particular
set of circumstances.
While some people
vigorously contend that
war, due to its very
nature, can never be moral
under any circumstances,
that matter exceeds the
scope of this essay.
James
Turner Johnson of Rutgers
University has observed
that,
Just war
is an historical tradition
formed by experience and
reflection, including much
that is neither
specifically theological
(or even religious), nor
philosophical. It has been
strongly influenced by
international law, the
traditions of chivalry,
and soldierly practices
derived from the
experience of many
battles.
Nevertheless,
I suggest that it is clear
beyond cavil that it has
been Christian (primarily
Catholic) scholars,
especially St. Augustine
(354-430 A.D.) and St.
Thomas Aquinas (1224-1274),
whose writings have had the
most influence on the
formulation of the
elementary core of just war
theory. Most scholarly
discussions about "just war"
hark back to his Question
40, Article 1, "On
War," of Part II of the
Second Part of the Summa
Theologica.
The long term impact of St.
Thomas Aquinas' remarks in
addressing Question 40
cannot be underestimated. I
submit that those remarks
profoundly influenced just
war theory and especially
its acceptability. His
comments in "Of Hatred,"
which addresses Question 29
of Part I of the Second
Part, and observations made
in addressing Questions 69,
100, and 104 are generally
ignored in "just war"
discussions even though
relevant at a theoretical
level. In my view those
passages tend to be
inconsistent with the
implications of his
pronouncements in famed
Question 40.
Emendations to the
general theory of just
war have been based upon
the secular writings of
Marcus Tullius Cicero
(106-43 B.C.), Hugo
Gotius (1583-1645), and
others. Too, the
writings of Charles
Louis de Secondat,
better known as Baron de
Montesquieu (1689-1755),
in The Spirit of
Laws (specifically
Chapter 2 titled "Of War"
in Book X, "Of Laws in
the Relation They Bear
to Offensive Force") as
well various writings of
John Locke have also
contributed to the
theory.
In more recent years
positive law set forth
in the various Hague and
Geneva Conventions, the
Nuremberg Charter, the
United Nations Charter,
and a variety of other
such generally accepted
enunciations of
collectively developed
standards have also
informed just war
theory. The most
recent positive law
relating to duties and
rights of combatants and
civilians during war is
the 1977
Protocol Additional
to the Geneva
Conventions of 12 August
1949.
Evolving just war theory
and the law of armed
conflict attempt to take
into account and harmonize
various moral values
reflected in books and
essays of many people who
have devoted considerable
thought to this subject,
as well as war experience
and tradition. Just war
theory and the law of
armed conflict are
premised on the
international norms set
forth in positive law and
have continuing impact on
those norms.
Here are the main features
of current just war
theory.
Just war
theory involves the
analysis of (A) jus ad
bellum, when it is
just to participate in war
and (B) jus in bello,
what is just in the
conduct of war. Military
action is appropriate only
if the established
criteria of both are met
in any given
situation.
I. Jus
Ad Bellum.
-- It
is held that states are
morally and legally bound
not to war against one
another unless certain
criteria are met. It is up
individual states (which
at this level are
conclusively presumed to
reflect the collective
will of their citizens) to
determine before going to
war that all these
criteria have been met.
It is assumed that states
comprise people of
goodwill who are generally
unwilling to engage in the
intentional infliction of
deadly force against the
citizens of another state
unless truly justifiable
to do so. Hence, all
states' citizens
(including those who also
happen to be in the armed
forces) have, I submit, a
duty to attempt to assure
that jus ad bellum criteria
are met. After all, once
war begins governments and
their people are at risk
of serious harm.
While there is not
complete agreement on what
the criteria of jus ad
bellum are, the
following components are
commonly accepted:
A.
Just Cause.
-- The
determination of just
cause requires the
balancing some values
but rarely involves
invoking arcane theories
of justice. Just cause
requires that we not put
trivial preferences,
insults to national
pride, and even some
gross violations of the
law of nations above the
duty to preserve peace
rather than go to war.
Generally, the existence
of the state or the
lives of its citizens
must be at stake. The
"cause" would be "just"
to engage another state
in war if agents of that
state (acting under
color and scope of
lawful authority) were
to make a substantial
attack of some sort
which is deliberately
designed to destroy or
impair our state or
significantly injure our
citizenry. Indeed,
self-defense is the
only just cause for
war that is formally
recognized in modern
international law.
It is properly invoked
to protect the integrity
and fundamental nature
of the state or the
lives of its citizens
when those are clearly
threatened or attacked.
This right of
self-defense has often
been construed to
subsume the right to
intervene in order to
protect one's "neighbor"
and the right to punish
states that do wrong.
B. Lawful
Authority.
-- Since war
is an organized activity
of a state, it is
essential that war be
undertaken only with the
proper authority of the
entity that is, under
that state's own laws,
granted the power to do
so. This entity might a
Queen or King, a
President, or some other
leader; or the entity
might be some group. It
depends upon the
structure of the
decision-making process
in each state. In the
United States of
America, the lawful
authority to commit the
U.S. military to war
vests solely and
exclusively in the
Congress. The President
has the authority to
decide how a war should
be prosecuted once it
begins and, by virtue of
being the chief
executive of the United
States, has an implied
duty to assure that the
sovereignty of the state
and lives of citizens
are protected. Article
1, Section 8, Clause 11
and Article 2, Section
2, of the Constitution,
the War
Powers Act of 1973,
as well as custom,
practice, and necessity
are weighed here.
C. Just
Intent.
-- This
requires that the
intent of going to war
be to promote or
secure peace, not
merely to obtain
revenge, wealth, or
personal glory.
Just intent is based
on natural law and
religious and secular
values consistent with
the Judeo-Christian
ethic to "love thy
neighbor." The goal
must be to do good,
not harm. The firm
commitment of a state
to abide by all just
war criteria evinces
an intention to do
that which is just.
D. Last
Resort.
-- This
criterion and the one
which follows
(reasonable hope of
success) are in a real
sense subordinate to
just intent. After all,
if a state undertakes
war except as a last
resort its intentions
are certainly suspect.
Basically, all states
are deemed duty-bound to
avoid the consequences
of war if it is
reasonably possible to
do so. Good faith
efforts to avoid war
must be actively
pursued, viz.
negotiations should be
engaged in, compromises
sought, economic
sanctions applied,
appeals for reason made,
cooling off periods
taken, and
peace-promoting
activities by
appropriate
international bodies
utilized in efforts to
redress grievances
before resort to war is
justified.
E. Reasonable
Hope of Success.
-- A
hopeless war is deemed
pointless and contrary
to common sense and
justice. That does not
mean, however, that a
state and its citizenry
need meekly submit to
the murderous exercise
of raw power. An
increase in public
support from within and
resources of allies
might transform a
hopeless undertaking
into a reasonable one at
some point. States are
enjoined from going to
war without reasonable
hope of success because
to do so would throw
away the lives and
resources of its
citizens and risk
destruction of the
state.
II. Jus
In Bello.
-- Right
conduct during war is of
singular importance to
people in the armed
forces. In my view,
American armed forces have
generally done a much
better job of adhering to
the spirit and
requirements of jus in
bello than states
themselves have done in
adhering to the spirit and
requirements of jus ad
bellum. (Many states
tend to ignore their
duties. The U.S. military
normally honors its
obligations.) One reason
for this, I suggest, is
that governments rarely,
if at all, educate their
citizens about prevailing
just war theory or law of
war conventions. On the
other hand, Article
1 of Hague Convention IV
of 1907 mandates
that states "issue
instructions to their
armed forces which shall
be in conformity with the
regulations respecting the
laws and customs of war on
land." Other conventions
have similar mandates. In
accordance with such
mandates, the U.S. has Department
of
Defense Directive No.
5100.77 (December 9,
1998), etc., and various
specific service
directives designed to
guarantee training to
assure that U.S. armed
forces know their law of
war obligations. These
obligations are presented
in various manuals, codes
of conduct, and rules of
engagement (ROE). All
training manuals, codes of
conduct, and ROE should,
therefore, be in harmony
with the two basic
criteria of jus in
bello.
A.
Discrimination.
-- Warring
parties are obligated to
discriminate between an
enemy's armed forces and
its civilian population.
The principle of
noncombatant immunity is
largely premised on the
notion that civilians
not involved in
supporting a state's war
effort should not be
harmed. It is often
difficult to determine,
however, which civilians
are immune. Those
civilians who are
directly involved in the
war effort (such as
being part of the
war-planning process or
working to produce war
materials) can be
treated as combatants,
others generally not.
Civilians who engage in
activities which are
primarily designed to
aid other civilians do
not lose their immunity
simply because the
activities indirectly
aid the enemy forces.
Accordingly, a civilian
dairy farm, for example,
should not be attacked
merely because a state's
armed forces may drink
some of the milk it
produces.
It is
easy to see that the
discrimination criteria
of jus in bello
can make targeting
decisions problematic.
It is much easier to
determine when the armed
forces of a warring
state can be subjected
to lethal force: at any
time and any place they
might be found so long
as they have not
surrendered, been
captured, are injured,
or are otherwise hors
de combat.
Civilians are not
allowed to shield
legitimate military
targets and shed their
immunity if they do so.
However, under such
circumstances there is a
duty to give those
civilians warning and an
opportunity to flee from
the target area if it is
reasonably possible to
do so.
"Military necessity"
should not be used as a
mere excuse or rationale
to attack noncombatants.
That precept should be
invoked only under
extraordinary
circumstances.
B. Proportionality.
-- The
amount and type of force
to be utilized in war
should be the minimum
necessary to end the war
and secure peace. The
good results which might
be achieved through
military action cannot
be outweighed by the
damage inflicted. For
minimally desirable
military ends, excessive
destruction is not
warranted. Undue
collateral damage,
whether attributable to
lack of discrimination
or lack of
proportionality, might
be construed to evince a
murderous intent and
should be assiduously
avoided whenever
possible.
As international law has
developed, the criteria of jus
ad bellum has become
increasingly restrictive,
while the criteria of jus
in bello, such as the
prohibition of civilian
targeting and the use of
certain weapons, has become
more comprehensive. This
evolution of both has been
essential in helping to
ensure that wars are not as
horrible as they could be
and in promoting the
maintenance of peace.
_________
My next essay, a
relatively short one,
will treat aggression
and self-defense. Look
for it here on Friday,
the 31st.
___________________________
* Nile
Stanton lives in
southern Spain. He
was a professor for
the University of
Maryland University
College for 20
years, where he
taught U.S. active
duty service members
on U.S. military
bases in Spain,
Italy, Bosnia, and
(mostly) Greece as
well as online to
troops throughout
Europe and Asia. The
course he taught
most often (32
iterations) was the
upper-level
government course
called “Law,
Morality, and War.”
Thereafter, he
taught for the
University of New
England at its
Tangier, Morocco,
campus for two
years, where his
signature course was
“War and Public
Health.” He was born
and raised a Quaker
and tends to examine
the excuses for war
and lack of
diplomacy more
carefully and from a
different
perspective than
many people.
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