February 2015

"Just War"

Here are two essays on the concept of "Just War" prepared as an assignment for the International Law of War & Crime seminar at Albany Law School this past fall semester.

Just War Influence

The Earthly City Must Hold Violence in Check

By Kate Roberts
Kate Roberts is a second-year student at Albany Law School. She graduated magna cum laude from Iona College with a major in Political Science and minors in Psychology and Philosophy.
Ms. Roberts is a sub-editor on the Albany Government Law Review, and a student editor for the New York State Bar Association Environmental Lawyer. After her first year of law school, Ms. Roberts interned at the New York State Attorney General’s office in the Environmental Protection Bureau. In her free time, Ms. Roberts enjoys hiking, running, and cooking.
This essay was prepared for Professor Bonventre's Fall 2014 International Law of War and Crime Seminar.

Under an Augustinian argument, “by nature, no man has dominion over any other . . . by nature, we are not evil.”[1] Additionally, just war is “driven by a call to justice . . .” whereby the goal “is to repair that which has been torn asunder by a prior violence and to protect a community for which one has a responsibility.”[2]

Just war theory focuses on two issues: (1) jus ad bellum—the conditions that can justify recourse to war, and (2) jus in bello—the limitations on the methods that may justly be used in waging war.[3] Just war requires a justification not only for entering into a war, but also for the killing of enemy combatants.[4] According to many just war theorists, the deliberate killing of enemy combatants is only morally justified if the conditions of jus ad bellum and jus in bello are met.[5]

Jus ad bellum—the justification of war—is met with four conditions: (1) just cause; (2) declaration by a lawful authority; (3) appropriate proportion between the goals sought and the costs; and (4) war is the last resort.[6] Contemporary causes sufficient to justify war include individual and collective self-defense,[7] humanitarian interventions, and preemptive attacks.[8]

Contemporary theorists view self-defense as a response to armed aggression—the first use of force—rather than a response to an injustice.[9] Under the Augustinian theory, self-defense is likely a cause that would be sufficient to justify war because self-defense aims to protect communities from violence.

Humanitarian intervention is “the interference in the internal affairs of a state by another state or group of states . . . to protect human rights in situations involving gross violations of those rights or radical state break-down.”[10] And, while the protection of human rights is important, caution and restraint are still necessary in humanitarian interventions in order to respect sovereignty and protect world order.[11]

Preemptive attacks are justified when an attack is imminent, regardless of whether an injury has or has not been inflicted.[12] The Augustinian theory would most likely support the use of preemptive attacks in modern warfare—dominated by the use of weapons of mass destruction and the speed at which they can inflict damage[13]—because the attacks aim to protect communities from violence that is imminent.

Jus in bello—just conduct of war—places two restraints on how war can be waged: (1) the immunity of civilians from direct attack and (2) the principle of proportionality.[14] Civil immunity prohibits direct attacks on noncombatants.[15] However, since modern military tactics may call for attacks on civilian populations in large-scale modern warfare, modern war can no longer be considered just[16]—the Augustinian line of thought would agree with this notion because, under the Augustinian theory, war is driven by a call to justice.[17]

The principle of proportionality calls for refraining from causing harm that is disproportionate to the objective of one’s outcome, or using “only minimum force consistent with the aim for it to be used.”[18] Therefore, application of this principle requires judgment and prudence in order to weigh the amount of force necessary to achieve one’s means.[19]

If the principle of proportionality were to actually be followed, the Augustinian theory would support it because it accounts for the goal of war—protecting communities; however, in modern war, military decisions must be made quickly despite limited information, leading to decisions that violate the precepts of proportionality, and in turn violate the Augustinian notions of just war.[20]

The contemporary causes sufficient to justify war—self-defense, humanitarian intervention, and preemptive attacks—have some justification under an Augustinian theory because these causes aim to repair or protect communities from forces of violence. However, modern warfare has largely ignored the restraints for just war—civilian immunity and proportionality—making war unjust under an Augustinian theory.

Augustus warned that “a drive to achieve perfect justice . . . may also erode limits to the justifiable use of force.”[21] In this sense, despite justifiable ends, modern warfare is unjust because nations ignore the limits of the justifiable means that should be used to achieve their ends. Rather than using war as a means to “hold violence in check,”[22] war has been the root cause of unjust violence in the modern era, making war unjust.

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[1] Id. at 742, 745 (citing Jean Bethke Elshtain, Augustine and the Limits of Politics 25–26, 80, 82–83 (1995); City of God Against Pagans, supra note 1, at 858, 875).

[2] Elshtain, supra note 1, at 750.

[3] John F. Coverdale, An Introduction to the Just War Tradition, 16 Pace Int’l L. Rev. 221, 223 (2004).

[4] Id. at 224.

[5] Id.

[6] Id. at 229.

[7] Id. at 233, 238.

[8] Id. at 238.

[9] Coverdale, supra note 4, at 234.

[10] Id. at 238.

[11] Id. at 239–40.

[12] Id. at 242.

[13] Id. at 245.

[14] Id. at 261.

[15] Coverdale, supra note 4, at 261.

[16] Id. at 262 (citing A.J. Coates, The Ethics of War 236 (1997)).

[17] Elshtain, supra note 1, at 750.

[18] Coverdale, supra note 4 at 268–69 (citing Brad Roberts, NBC-Armed Rogues: Is There a Moral Case for Preemption?, in Close Calls: Intervention, Terrorism, Missile Defense, and ‘Just War’ Today 88 (Elliott Abrams ed., 1998)).

[19] Id. at 271.

[20] Id.

[21] Elshtain, supra note 1, at 755.

[22] Id. at 751.

Just War Influence

By Nick Gargano
Nick Gargano is a third year student at Albany Law School. He graduated from Long Island University (C.W. Post) with a B.A. in History concentrating in military air and sea power.
Prior to law school, Nick worked in concert production touring around the world with well-known musical groups for 15 years thus, expanding his love for history and igniting his interest in working in the field of international law.
This essay was prepared for Professor Bonventre's Fall 2014 International Law of War and Crime Seminar.

Despite having history and good foundation, the “just war” theory is open-ended. Early Christian thinker Augustine suggested that a “just war” is waged in order to “preserve or to achieve peace,”[1] while another Christian thinker, Thomas Aquinas, suggested that “the advancement of good or the avoidance of evil” was the principle justification for war.[2]

Although Christian thinkers proposed the just war tradition, it may be argued that the pagan military and its warriors abided by a code that originally influenced the “just war” theory when it came to humanitarian law. Here, it is suggested that Christian thinkers used the “just war” theory to justify Christians having the same morale of the pre-Christian pagans in reference to acts of war, as pre-Christian Rome prohibited war unless “just.” However, as Rome became formally Christian, the pacifist Christian culture had to adapt to being part of a military state.[3]

Despite the “just war” theory’s broadness, there are basic principles agreed upon within international law. John F. Coverdale[4] suggested that the basic premises are: (1) the conditions that can justify the recourse to war, internationally known as jus ad bellum; and (2) the limitations on the methods that may justly be used in waging war, known as jus in bello.[5]

By virtue of the jus ad bellum, the aspects of just cause are a declaration by a lawful authority, proportionality between the goals sought and the costs, and that war is a last resort.[6] During medieval times, three causes were recognized that justified a use of force: defense against an attack; recovery of something wrongfully taken; and the punishment of evil.[7] Further, it has been argued that the conditions that justify the decision to declare war or an “armed response” are found in the United Nations Charter (UN Charter or the Charter).[8] However, the Articles within the Charter pertaining to war justification are vague and history has yet to clearly define such justification.

Article 51 of the UN Charter “recognizes the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations.”[9] Armed response in self-defense is lawful if four conditions are met: (1) an actual armed attack has occurred or is occurring; (2) the response is aimed at the armed attacker or those responsible for the attacks; (3) the response has the purpose of preventing future attacks; and (4) the response is necessary to remove the threat and is proportional to the circumstances.[10]

Article 51 of the Charter contains the phrase “if an armed attack occurs,” which can be interpreted to mean that an armed attack had already occurred.[11] However, it would be irrational to suggest that a state must first be a victim of an armed attack, or have knowledge of an attack coming, before taking an action in self-defense.[12] In the wake of the attacks of September 11, 2001,[13] in two resolutions, the United Nations Security Council (UNSC), which is given the tasks of deciding what constitutes an armed attack or an act of aggression, referred to the right to resort to self-defense.[14]

As such, it is obvious that the United States sustained an attack, and there clearly was no other choice in making this determination when it came to Article 51 of the UN Charter.[15] On the contrary, when Israeli jets bombed a nuclear reactor under construction in Iraq in 1981, despite the threat to Israel of nuclear weapons under the leadership of the aggressive Saddam Hussein regime, the UNSC concluded this attack to be a violation of the UN Charter and the norms of international conduct.[16] This leaves a vague area of what constitutes an armed attack.

Proportionality is a primary aspect of the concept of jus in bello—the just conduct of war—and suggests “how war may be waged justly . . . .”[17] The idea of proportionality requires “only minimum force consistent with the aim being used.”[18] This requires trying to achieve the objective of the just cause with the “least destruction possible for all concerned.”[19]

In general, “just war theorists require armies to accept some increased risk to themselves in order to reduce the number of civilian casualties.”[20] Coverdale suggests that proportionality “requires asking whether the immediate objective being sought is sufficiently important to justify tactics that will cause a given amount of death and destruction.”[21] Therefore, proportionality can provide a guide to decision-making and certain actions so the state involved is not brought up on violations of international humanitarian law.

International humanitarian law seeks to regulate many aspects that deal with proportionality, such as how to treat prisoners of war, civilian immunization from the conflict, and indiscriminate attacks. When it comes to the principle of discrimination, “once the discrimination [distinguishing between civilians and combatants] has been applied . . . if the action applied has been violated there is no room to ask whether the evil effects it produces outweighs its good effects.”[22]

The purpose of “just war” is to put some form of order or morality in times of turmoil where pacifism or diplomacy is not going to work. Although the early Christian thinkers set the groundwork of when there is a just cause to wage war, it was still subject to some negative critique as this was a new way of thinking for Christians—Pagan critics blamed the Christian influence when Rome was “sacked by the Visigoths in A.D. 410” because it was the more experienced pagan military that had set down a code of war for over 1500 years.[23]

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[1] Jean Bethke Elshtain, The Just War Tradition and Natural Law, 28 Fordham Int’l L.J. 742, 751 (2005).

[2] Joseph C. Sweeney, The Just War Ethic in International Law, 27 Fordham Int’l L.J. 1865, 1869–70 (2003).

[3] Robert L. Holmes, On War and Morality 117 (1989).

[4] John F. Coverdale is a Professor of Law that specializes in the interplay of law and catholic social thought. Faculty, Seton Hall L., http://law.shu.edu/Faculty/fulltime_faculty/John-Coverdale.cfm (last visited 11/23/2014).

[5] John F. Coverdale, An Introduction To The Just War Tradition, 16 Pace Int’l L. Rev. 221, 223 (2004).

[6] Id. at 229.

[7] Id.

[8] Ved P. Nanda, Law in the War on International Terrorism 81 (2005).

[9] Coverdale, supra note 5, at 233.

[10] Nanda, supra note 7, at 81.

[11] Id. at 82.

[12] Id.

[13] Members of the Al Qaeda terrorist group hijacked passenger airlines within the United States and used the planes as explosive devices to bring about the destruction of the twin towers in New York City and the Pentagon in the District of Columbia. The fact that this terrorist action amounted to an armed attack laid the foundation for self- defense, pursuant to Article 51 of the U.N. Charter. Yoram Dinstein, War Aggression And Self-Defence 228, 228 (Cambridge University Press 5th ed., 2012).

[14] Id.

[15] Nanda, supra note 7, at 82.

[16] Id.

[17] Coverdale, supra note 5, at 269.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Holmes, supra note 3, at 117.