A Succinct, Incomplete, Presumptuous, and Wholly Inadequate
of the Elements of Just War
Why do we have "the law of war"
at all? Why is it important for the armed forces of the United States
to understand the basics of just war theory, the law of armed conflict, and
rules of engagement?
On June 2, 1998, I had the opportunity to talk with W. Hays Parks about various
matters. [At the time, he was Chief of the International Affairs &
Operational Law Division of the Army Judge Advocate General's Office and
widely regarded as a keenly pragmatic and top-notch scholar regarding the
law of armed conflict.] During our conversation he opined that there
are several reasons why our troops should have a very good understanding
of this critical area of study. Among other excellent reasons, he said:
1. There are practical considerations
why -- for example -- churches, historical sites, hospitals, etc., should
not be destroyed, why civilians should not be slaughtered, and so on.
For one reason, it would be a waste of military resources which might be better
used against other targets.
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2. In instances where there have been gross violations of the law of
war, the wars have been more difficult to end -- and all wars must end.
War is the gravest of all moral concerns. And for hundreds
of years, the morality and legitimacy of wars have been evaluated under what
is called just war theory. Hence, I think we might do well to have
a cursory overview this theory. (This theory, in my opinion, 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 have vigorously contended that war,
due to its very nature, can never be moral under any circumstances, this
is a position we will examine later in the course: it will be part of our
fourth major topic.) Just war theory has been widely accepted by nations,
so this is the subject of my first formal lecture to you.
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James Turner Johnson 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 are inconsistent with the implications of his pronouncements
in famed Question 40. For our purposes now, however, this might be a
little picky if not entirely beside the point.
Emendations to the general theory of just war have in the main been based
upon the secular writings of Marcus Tullius Cicero (106-43 B.C.), various
careful scholars of the Spanish School, Hugo
Gotius [the latinized form of the Dutch jurist Huig de Groot] (1583-1645),
and others. For example, the writings of Charles Louis de Secondat,
better known as Baron de Montesquieu (1689-1755), in The Spirit of Laws,
and specifically Chapter 2 of Book X regarding "Of
Laws in the Relation They Bear to Offensive Force" as well various writings
of John Locke have also contributed to the theory; and, we must not ignore
that just war theory is being constantly analyzed and refined by contemporary
scholarship. 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 the 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.
Furthermore, just war theory and the law of armed conflict are both premised
on the international norms set forth in positive law and have continuing impact
on those norms. The humanitarian and moral values which have informed
the development of the norms reflected in the law of armed conflict will
be addressed later in the course. Here, I merely want to give you what
I consider to be the essence of the main aspects of current just war theory.
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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; and military action is deemed appropriate only
if the established criteria of both are met in any given situation.
Firstly, let's take a look at the essential ingredients of jus ad bellum.
Following that, we will examine the essence of jus in
The Essence of Just War Theory
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, I suggest that 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. Obviously, it would not be just cause for war if our sole
motivation were to assure an immediate end to the eating of blue cheese in
France. Nor would it be just cause for the U.S. to go to war with Nepal
merely if some American tourist were to be physically attacked by a Nepalese.
For one thing, these are personal matters, not matters of state; but, even
if a state might be implicated in such things, the purported wrongs could
not justify war. Generally, the existence of the state or the lives
of its citizens must be at stake. The "cause" would be "just" for us
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.
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, we have Department of
Defense Directive No. 5100.77 (December 9, 1998), etc., and various specific
service directives designed to guarantee training to assure that our 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.
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 our 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 our state, 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
E. Reasonable Hope of Success. -- A hopeless war is deemed
pointless and contrary to common sense and justice. It 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.
-- 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.
Over the past few decades, the U.S. armed forces have attempted to be extremely
careful in targeting decisions.
form, what we have is this:
-- 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.
Once again, in recent years the U.S. armed forces have attempted to be extremely
careful in weighing the proportionality of their acts, although the use of
cluster bombs and depleted uranium has prompted warranted debate.
Just War Criteria
Jus Ad Bellum
Hope of Success
Jus In Bello
(Amount and Type of Force Used)
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When we examine historical events and realistic hypotheticals
relating to war, we should evaluate them in light of these criteria.
There are, of course, several aspects to each of the foregoing just war criteria;
and, as our course proceeds, we will examine them. Furthermore, I suggest
that we should always remain willing to challenge, replace, amend, add to,
and otherwise refine these criteria.
Last revised: March 20, 2005