By
Nick GarganoNick 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.
