THE LAWS OF WAR AND JUST WAR THEORY
"War is the father of all things" (Heraclitus)

    Before one can fully comprehend the laws of war, one must understand war, the many issues involved in defining it, and the various academic and professional perspectives on it.  Even prominent military historians like Keegan (2001) say that war takes so many forms and mutates so rapidly that it is impossible to define it precisely, although war as "collective killing for some collective purpose" is as good an attempt at definition as any.  Academic perspectives tend to cluster around the fact that war occurs most often in multiethnic, underdeveloped areas of the world and is driven by poverty, ideology and cultural insecurity (Keegan 2001).  More in-depth understanding of war is strived for in departments of "war studies" like King's College, NDU, or West Point.  This lecture only touches on selected areas of interest that might help with initial understanding of certain starting points for further academic inquiry.  No attempt is made to cover all the theoretical or practical issues associated with war.

    At the start, some good advice would be to avoid dictionary definitions of war since both Webster's and Oxford's entries are deficient, with the Webster definition (a state of open and declared, hostile armed conflict between states or nations) being too narrow (focused only on nation-states and declared hostilities), and the Oxford (OED) definition (any active hostility or struggle between living beings; a conflict between opposing forces or principles) being too broad (including war between ideas and conflicts that are not organized, collective, or ongoing enough to count as war).  The problem of definition is compounded by the fact that there are conflicting theories about the causes of war (historical, psychological, anthropological, sociological, economic, and Marxist), as well as conflicting typologies about the forms of war (gang war, range war, class war, resource war, civil war, limited war, small war, guerrilla war, total war, fourth generation war, network-centric war).  The most commonly seen definition of war is Walzer's (2000) definition of "any use of force or imminent threat of force by one state against the political sovereignty or territorial integrity of another."  This approach, however, begs the question that many war historians ask, which is how many deaths must occur before something is called a war (or genocide, or the like).  Suffice it to say milestones vary, and death toll statistics likewise vary in accuracy and credibility.  War, however, is usually a game of big numbers.  Death tolls from wars run an average of some 50 million per 50 years (Keegan 2001).  A more basic (and more social scientific) question to ask is: Why war? Why does it persist in so many forms throughout history across so many social systems?

THE SOCIOLOGY AND FUNCTIONALISM OF WAR 

    Sociology and the structural-functionalist approach may provide some insights, although much of this kind of sociology can be faulted for being a bit ethnocentric and in need of a comparativist corrective.  Sorokin (1937) was the first sociologist to look at the cyclic dynamics of war, sadly concluding that the phenomenon is quite normal, at least for what he called "sensate" (morally bankrupt or ethically relativistic) societies caught up in the materialistic pursuit of lustful pleasures at the expense of ideational righteousness.  Coser (1956) was the next sociologist to study the functions of social conflicts in how they lay claim to the total personality involvement of individuals.  Subsequent sociologists like Timasheff (1965) have opposed narrowly focused personality-oriented perspectives, but then there are anthropological theorists like Lorenz (1966) who argued that aggressive energy build-up in humans causes war.  Sociological orthodoxy holds that wars exist not just out of cultural tradition, but because certain thoughts and feelings escalate and movements are mobilized among the people.  A classic example is Jenkin's Ear, named after a famous 1739 incident where a pickled ear, presumably severed by the enemy, was paraded in England to drum up war fever against Spain.  Timasheff's (1965) "fuels" of war (things that heat up antagonistic situations to the boiling point) and Henslin's (2003) "functions" of war offer similar and additional sociological insights.

    The most "negative" consequences associated with the functions of war follow from revenge, prestige, plunder, and conversion (moral crusade), although not listed and in addition, one might include amusement for the masses, activity for disaffected youth, and/or deflection of domestic criticism.  The most "positive" consequences involve unity, integration, social change, security, and credibility.  Given this balance sheet, wars should not automatically be dismissed as dysfunctional.  It is possible that, on average, the positive (manifest and latent) consequences might outweight the negative (manifest and latent) ones, explaining why war persists.  Indeed, some vital integrative functions are performed (like every man a soldier; like every man a policeman).  Other functions have negative latent consequences (like killers being accorded high honors which spawns copycat crime).  However, if functions are not picked up by the institution of war, then they will probably be picked up by some other social institution (with possibly worse consequences).  Revenge is probably the most important factor.  As Schivelbush (2003) points out in his comparison of the American Old South with other cultures of defeat, the losers in war often rise again in vengeful ways, like economic warfare, and in this sense, there is nothing such as a "war to end all wars."  Many of the positive functions of war were summed up in 1862 by the English philosopher, John Stuart Mill, as follows:

    Also, in most forms of orthodox and neo-orthodox Marxism, class wars and movements of national liberation almost always fulfill positive goals.  Turning to or bringing in Marx might make for bad analogy since it makes Marx sound like Clausewitz in saying war is the continuation of politics by other means.  However, the Marxist approach is not without its merit, at least in terms of the way the Soviet model of "just" and "unjust" war has served as the predominant non-American conceptions over the years.  Historically, Marxism has been the predominant non-American model, but Islamist jihadism has picked up steam in recent years as the primary anti-American model.  To make some initial contrasts, it may be noted the American model of just war is to keep one's faith and ideology private, or at least downplay the "onward Christian soldiers" theme (Mansfield 2005).  Chaplains in the American military, for example, are severely limited in what they are allowed to do or say.  They are not allowed to accompany our troops into combat and they are most definitely not allowed to provide any warrior creed for our troops. They can't say that we are fighting a just (or unjust) war.  During 2003, American general William Boykin got in trouble for mixing religion and war by saying things like "I knew my god was bigger than his, and I knew that my god was a real god and his was an idol."  Conservative religious groups in America stood behind Boykin, for the most part.  However, more serious academic study of this topic is needed because there are a lot of areas of disagreement between those nations affected by Communism and Islamofascism and those nations on a Western, bourgeois, or capitalist track.  Moore (2005) provides a neat little description of the Marxist approach as follows:

    There are many conceptions of justice and war in the world today.  Islamic jihadism is now considered a major concern.  In the Muslim mindset, concepts like tolerance, democracy, pluralism, and freedom are meaningless when spoken by a Westerner because Arab trust, as among many in the Third World, has been broken by years of colonialism, imperialism, capitalism, and globalism.  In this sense, the Islamic conception is much like the Soviet conception since both see the noble intentions of the West as mere slogans that disguise the true goals of political domination, religious conversion, and economic exploitation.  As a religion, Islam prohibits all kinds of warfare except in the form of jihad, and martyrdom in the name of jihad is the only sure-fire, foolproof way of getting into Paradise for a Muslim believer.  Khadduri (1984) provides a neat little description of the Islamic approach as follows:

    Sociologists do not normally view wars as being for political purposes, nor for that matter, do they get that involved in normative assessments or policy recommendations, but when they get comparative and/or historical, they are usually at their best.  The most common macrosociological conception is that war is seen as part of the modernization process involving mobilization in the name of an imputed moral cause (Tiryakian 1999).  "Imputation" is the process of selecting only those "essential" nomological and ideological causes which serve to adequately explain the consequences of some constellation of phenomena (Weber 1994 -see Sociological Writings).  Morality when it comes to the constellation of fighting is a code of conduct so general it includes presumptions, proscriptions, and prohibitions suitable for all kinds of ethics.  Mobilization is the research and theory specializing in social movements, protests, and collective behavior.  Modernization and neo-modernization theories (Alexander 1995) study things like how societies attempt to remain coherently organized in the face of increased (differentiation of) functions they have to take on (as they develop).  Such theories sometimes make much of the fact that allies and enemies are usually cast as being modern (which is good) or traditional (which is bad) -- see The Role of Islam as Bad in Neomodernization Theory -- or read any of the clash of civilization or globalization literature like Huntington (1996), Barber (1996), Friedman (2000), Fukuyama (1992), or the demo-skepticism of Zakaria (2003).

    In any event, the good/bad juxtaposition (always blaming the other side) is but an echo of the more important topic of imputing morality to war (and antiwar movements).  Given the centrality of morality, it is appropriate therefore to examine the ethics of war in the most general sense.  For that, we will go back at least to St. Augustine (396-430 AD).  Augustine's full set of arguments on just war can be found in collections of his Political Writings, not only in his more famous City of God treatise where he opined "war with the hope of peace is preferable to captivity without any thought of deliverance."  The set of ideas derived from Augustine's thoughts are called Just War Theory, and they form the basis of most informed discussions about the morality of war.

THE MORALITY AND IMMORALITY OF WAR

    Before one examines whether war is inherently immoral, one should be clear on their position over whether war is inherently inevitable.  Many scholars take the easy way out and either blame inevitability (and morality) on the conscious (stupid) decisions of leaders, or by contrast, blame all of society (or capitalist society at least), with A.J.P Taylor (1996) being typical of the latter position.  Scholarly inquiry has always had a blind spot for morality.  As a socio-cultural institution, morality should not be confused with religion.  All the mainstream religions can easily condone or justify war, especially the warrior religions of Christianity, Islamism, Hinduism, and Shintoism.  Politics is even worse, with some doctrines (like fascism) strongly embracing war without the slightest concern for morality.  However, a basic fundamental of all morality (as a precept for social life) is: Thou Shalt Not Kill.  The philosopher Kant expressed it as a categorical imperative, to treat people as ends, not as means to an end (like wars do).  Might does not make right, despite what the lessons of the Peloponnesian war might suggest to those who believe in realpolitik.  To overcome the basic moral presumption against war (Barash 1991) requires those who make war (e.g., leaders, nation-states) to bear the burden of proof (of withstanding criticism on moral and other grounds).  It also requires individuals who do the fighting to undergo certain psychological (non-psychopathic) "changes" best understood as a conditioning process similar to the Kubler-Ross stages of coping with the grief of impending doom (Grossman 1996).  Learning to morally kill isn't just a Pavlovian process.  It involves an attitude which combines personal inclination (personality) with the perceived acceptability of war (society), but most of all, it involves morality (culture), and the historically specific context of whether war is immoral in all cases (the peace studies approach) or immoral in only some cases (the just war approach).  This distinction is more commonly known as the difference between absolutist ethics (such as pacifism) and utilitarian ethics.

    Morality, or at least moral judgment, often involves choosing the lesser of two evils.  Morgenthau (1960) even went as far as saying that politics is all about this.  However, just war theory is what moral choices are about, as a "middle of the road" utilitarian ethics of negative peace (war with the hope of tranquility and order).  This description and viewpoint are rigidly Augustinian, and assume there exists in the world true "moral dilemmas" or moral dead ends (similar to "security dilemmas" that exist with respect to anarchy, disorder, or chaos; realism in IR accepting some anarchy as not incompatible with order, and liberalism arguing anarchy is incompatible with order).  Augustine was not the first to elucidate just war doctrine.  Other contributors include DeVittoria, Suarez, Aquinas, and probably most importantly, Hugo Grotius who had a distinct influence upon the US founding fathers.  It was Augustine, however, who helped change Christianity (along with the emperor Constantine) from a pacifist religion to a warrior religion.  It is debateable whether Augustine intended this, just as it is debateable whether just war theory provides a doctrine of necessity, permission, or excuse.                        

    Read from the theological (intended) point of view (Langan 1984), Augustine's theory involves eight principal elements: (1) a punitive conception of war; (2) assessment of the evil of war in terms of the moral evil of attitudes and desires; (3) a search for authorization for the use of violence; (4) a dualistic epistemology which gives priority to spiritual goods; (5) interpretation of evangelical norms in terms of inner attitudes; (6) passive attitude to authority and social change; (7) use of Biblical texts to legitimate participation in war; and (8) an analogical conception of peace.  Langan (1984) also says Augustine's thoughts do not extend to the topics of noncombatant immunity or conscientious objection, but Carmody & Carmody (1993) disagree, saying it was important in Augustinian thought to distinguish combatants from noncombatants.  Augustine's viewpoint seems to be that peace sometimes requires violence against all shades of evil-doers, and soldiers who go to war in defense of good do NOT violate the commandment against killing if they do it with anguish and regret (or, as is sometimes noted in the literature, a society does it with "demo-skepticism").  Such a war ought to be a reaction to unjust aggression and peaceful methods should be tried first.  AND, it ought to be a just war, which according to Hugo Grotius (1625) is a war which should not only be just in its origin, but just in its prosecution.

JUST WAR THEORY

    Orthodox just war theory holds that there are "logically independent" distinctions, as Michael Walzer (2000) puts it, between the requirements of jus ad bellum and the requirements of jus in bello.  The former basically refers to criteria that are consulted before engaging in war along with determination of whether entering into war is justifiable in the first place, while the latter concerns acceptable practices while engaged in war, an example being adherence to the Geneva Conventions.  Although better tables can surely be found from many sources, the following table draws from a variety of sources (Barash 1991, particularly the first five jus ad bellum criteria; Little 1985), and tries to summarize the major components and principles of just war theory:

      On the jus ad bellum side, the most important principle, as McMahan (2006) points out, is probably JUST CAUSE which carries over the most implications for jus in bello considerations, the crossing-over of ethical considerations between the two sets of criteria being considered a little unorthodox, yet a common technique in contemporary just war theory, particularly among critics of orthodox just war theory.  Just cause is here defined as war against a wrong that is of a type that can make those responsible for it morally liable to military attack as a means of preventing or rectifying it.  It is impermissible to fight at all in a war which lacks a just cause.  

    On the jus ad bello side, PROPORTIONALITY is probably the most important principle (for much the same reasons), and here, it should be noted that conditions 3 and 5 of the jus ad bellum restraints are sometimes combined and ALSO referred to as a "principle of proportionality" or the principle of "general proportionality" which requires not only that the overall benefits of a war exceed its costs, but that the cause (even if just) must also be "grave" or "weighty" enough to warrant risking life as well as national treasure. 

    There are many interpretations and critiques of just war theory.  Those holding more orthodox views might point out that the principles of just war do not preclude a first-strike.  It wouldn't matter which side resorted to force first.  An aggressive war could be fought justly, and a defensive war could be fought unjustly.  There could even be war in which there were elements or phases that are just and other elements or phases that are unjust.  Controversies also exist in respect to how just war theory stands in comparison or contrast to the aggression (illegal) and defensive (legal) thinking of international law and the UN Charter.  As far as resolving these controversies, theologians have been of little help, with some theologians still advocating just war theory while others advocating the incorporation of elements from early Christian pacifism.  As far as law is concerned, lawyers sometimes brush aside just war theory as an antiquated doctrine, largely replaced (in chronological order according to Moore 2005) by the "war as fact" period (1648-1918) when the Treaty of Westphalia brought the principles of balance of power and neutrality; the World War I period (1919-1944) when the League of Nations was founded, rudimentary criminal trials were tried, Geneva Conventions started gaining ground, and the Kellogg-Briand Pact of 1928 (also called the Treaty of Paris) shifted the focus from whether war was "just" to a focus on whether use of force was aggressive (illegal) or defensive (legal); the World War II period (1945-1991) when the UN Charter brought a reliance upon international norms, ad hoc criminal tribunals, disarmament concerns, and recognition of the need to upgrade prisoner of war protections; and the Post-Cold War period (1992-present) which has witnessed increased concern for rogue states, terrorism, and the use of tribunals.         

JUST WAR THEORY AND CUSTOMARY LAW

    Just war theory is, for most states with ties to Western civilization, the same as the customary law of war.  Some just war principles can be found in charters, conventions, treaties, and tribunal rulings, but customary law (which is not all written down in any one place) is closely related to the concept of jus cogens in international law.  By definition, customary law consists of all the permissive rights and prohibitions that have been the consistent practice of states over the years.  Customary law concerning acceptable practices while engaged in war is called jus in bello while customary law concerning allowable justifications for war is called jus ad bellum.  In fact, among many experts, the phrase jus in bello means the same as laws of war (it has the advantage of being easily remembered -- one simply has to engage in proportional response, avoid collateral damage as much as possible, avoid targeting civilians directly, and treat prisoners fairly).  Jus ad bellum deals with broad concerns such as declarations of war, acceptance of surrender, and repatriation of prisoners of war, but mainly with the rules for resorting to war in the first place.  Jus in bello is regarded as a central feature in the laws of war because it deals with more specific issues regarding conduct during the war, such as the avoidance of atrocities, the prohibition on deliberately attacking civilians, the prohibition against certain inhumane weapons and the taking of hostages, the requirement to wear a distinctive uniform, identifiable badge, and to carry weapons openly, and to avoid impersonating soldiers of the other side.  Some of the most agreed-upon principles of the customary law of war are listed below.

• wars should be limited to achieving the political goals that started the war

• wars should be brought to an end as quickly as possible

• people and property that do not contribute to the war effort should be protected against unnecessary destruction and hardship

• both combatants and noncombatants should be protected from unnecessary suffering

• the fundamental human rights of persons who fall into the hands of the enemy, particularly prisoners of war, the wounded and sick, and civilians should be safeguarded

• all efforts should be made at facilitating the restoration of peace

    In addition to jus ad bellum and jus in bello, there is the question of how wars end (Taylor 1985), or justice after war which may be called jus post bellum (Orend 2002).  There needs to be an ethical "exit strategy" from war, one that isn't just military strategy (Cimbala 1986) or conflict resolution strategy (Pillar 1983).  All that presently exists is the dangerously permissive custom of allowing winners to enjoy the "spoils of war" which is nothing more than a "victor's justice" or settlement of the terms of a peace agreement or treaty.  This unregulated environment tends to leave bitterness, resentment, and "patchwork solutions" in its wake, sowing the seeds for future conflicts in "trouble spots" around the world (Decosse 1992).  For example, the common practice of partitioning a country after a war is often a bad idea. 

    Another customary law issue involves the Caroline doctrine.  It is frequently citied by scholars as setting forth the standard for anticipatory self-defense in customary international law.  The Caroline doctrine arises from an incident in the 1840s where British soldiers crossed into the United States to destroy a ship ferrying arms to insurgents in Canada.  Both the United Kingdom and the United States agreed that anticipatory action was allowed when the necessity of the self-defensive act was instant, overwhelming, and left no choice of means, and no moment for deliberation.  After World War II, the Nuremberg Tribunal reaffirmed the Caroline doctrine.  It should be noted that after the advent of the U.N Charter, the Caroline doctrine is not universally accepted.  Some reputable scholars have argued that Article 51 of the UN Charter supercedes it, although it is probably more accurate to say that differing conclusions exist on its applicability in various situations.  One is most likely to see it applied in controversial situations, like the preemptive assassination of terrorist leaders (see Council of Foreign Relations article on Assassinating Terrorist Leaders).  Just war theory supports such practice on utilitarian grounds it is better to kill leaders than hundreds of followers.

MITIGATING THE INEVITABILITY OF WAR

    The realistic recognition that war seems to be inevitable has led to the search, academically and legally, for ways to ameliorate or mitigate the intensity or scope of war.  Mitigation or the amelioration of atrocities is a major thrust in contemporary international law.  The study of what prevents war or reduces it has been looked at extensively, and the fields of sociology (Nettler 1976) and international relations (Wright 1942; Waltz 1959) appear to be in relative agreement over the following (the second of which seems to contradict the de Tocqueville thesis that democracies don't go to war with one another):

• type of religion does not reduce warfare (no religion is more pacifist than another)

• type of government does not reduce warfare (democracies are not necessarily more peaceful)

• prosperity does not reduce warfare (wars happen in good times and in bad times)

• a shared religion does not reduce warfare between nations

• a common language does not reduce warfare between nations

• being neighbors does not reduce warfare (the opposite is, in fact, true)

• education does not reduce warfare (no enlightened preference for peace occurs)

    Like most academic studies (exclusive of peace movements which usually do NOT agree that war is inevitable), international law has traditionally aimed at reducing the worst excesses of war, not outlawing war outright.  The world's main method of regulating excess has been Article 51 of the UN Charter which allows war in the name of self-defense unless and/or until the Security Council can agree upon a collective response.  Strickly speaking, the Security Council is authorized to approve military interventions only when international peace and security are threatened.  Security Council decision-making (Article 27 of the Charter) involves veto power of the permanent members, but less formal methods of decision-making have evolved (see Malone 1998).  Important issues include veto issues (e.g., blocking reprimands against permanent members, the requirement that a party to a dispute must abstain from voting, whether an abstention counts as a veto, whether the absence of a member is analogous to an abstention), and a diverse set of views on whether the Security Council acts (to maintain peace and security) on the basis of powers enumerated in Chapters VI, VII, VIII, and XII, or whether Security Council powers arise under Article 24 so long as it is acting in accordance with Purposes and Principles of the UN.  The study of Security Council decision-making as well as Security Council powers are important areas of study in their own right because ambiguity has existed ever since the UN was created, coming into its sharpest focus during the Trieste Question 1947-1954 [see Military History: Declassified Intelligence Reports on Trieste or US Army  doc Bibliography of Resources on Trieste] which left a border (the original "Iron Curtain") spawning all sorts of devastatingly cruel nationalist movements.  A chronological list of "Questions" considered by the UN Security Council under its responsibility for the maintenance of international peace and security is in this Analysis of Article 24 (pdf), and includes not only Trieste, but numerous others during the 1946-1951 time period which impacted more how the Security Council does business than the dismal record of performance at mitigating war.   

    International law further allows the fairly controversial practice of retrospective action against the excesses of war in the form of prosecuting leaders for war crimes.  The Treaty of Versailles (1919) was the first to provide for this, but no trials of any significance were carried out.  The Nuremberg and Tokyo trials (1945-1949) did, however, set a precedent for trying war crimes, and also for "crimes against peace" and "crimes against humanity."  These are defined below, but an important point is that crimes against humanity are much broader than war crimes, can be committed against one's own population, and are not restricted to wartime.

     A different definition of war crimes was provided by the Geneva Conventions of 1949, and although it seems like definitions of war crime are continually being challenged, the Geneva definitions serve as the most common ones in international law today.  They were preceded the year before (in 1948) by the UN Convention on Genocide but confusion can be avoided by not blindly researching all things bearing the Geneva-name.  In many ways, the Hague Conventions are more informative.  [Note] For those unfamiliar with the Geneva Conventions: there were four (4) of them, all last revised and ratified in 1949 (based on previous revisions), with two (2) Protocols added in 1977.  They are the world set of treaties governing international humanitarian law.  Geneva Convention I (GCI) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field was first adopted in 1864; Geneva Convention II (GCII) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea is the successor to the 1907 Hague Convention X; Geneva Convention III (GCIII) relative to the Treatment of Prisoners of War  was first adopted in 1929; and Geneva Convention IV (GCIV) relative to the Protection of Civilian Persons in Time of War was based on parts of the 1907 Hague Convention IV. The first amendments, Protocol I and Protocol II were passed in 1977 and dealt with protections for prisoners of war and protections for civilians, respectively.  The Hague Conventions (1899 and 1907), on which many of the Geneva Conventions (1949 and 1977) were based, created the world's first formal statments of the laws of war. [Endnote]   

    Subsequent developments represent certain unresolved issues.  For example, the First Protocol to the 1949 Geneva Convention, signed in 1977, asserted that "little wars" of national liberation, self-determination, against colonial domination, alien occupation, and/or racist regimes should be considered international wars for purposes of applying the laws of war generally.  However, only 59 nations accepted this definition.  It makes a difference because if "little" wars, or guerrilla wars, are considered international wars, then the UN and other nations can intervene and help out.  Otherwise, if such wars are considered civil wars (or insurgencies), then the general rule is that foreign intervention is prohibited (unless under some other mantle, like human rights protection).  For the most part, the UN General Assembly supports the First Protocol, but the U.S. and most Western nations do not.  As you can imagine, it remains a major source of disagreement as does the definitions of insurgency and terrorism.

    Other developments include the first-ever 1998 judgement on the crime of genocide by a international court (the International Criminal Tribunal for Rwanda) with genocide (a particularly problematic and sticking-point word) coming into common parlance despite some continuing reluctance to call it that in some places and a tendency to overuse the word in other contexts.  Also, since the 2001 Hague Tribunal started (formerly known as the International Criminal Tribunal for the Former Yugoslavia), the U.S. is in general agreement with the tribunal ruling which makes mass systematic rape and sexual enslavement ("ethnic cleansing") a crime against humanity, elevating this behavior from being a violation of the customs of war to one of the most heinous crimes of all - second only to genocide.  However, in 2003, the U.S. refused to join 139 other countries in signing the Rome treaty that establishes the International Criminal Court, arguing the court could be used to pursue politically motivated prosecutions.  As of 2005, ad hoc tribunals like the Iraqi Special Tribunal (IST) appear to be emerging legal entities joining International Tribunals (like Rwanda and Yugoslavia) as well as hybrid domestic-international bodies, like the Special Court for Sierra Leone.

INTERNATIONAL ORGANIZATIONS AND THE REGULATION OF WAR

    Numerous organizations exist within the "global community" (Iriye 2002) who are involved in the mitigation and/or regulation of war, e.g., NGOs, multinational corporations, religious organizations, regional communities, transnational private associations, environmental organizations, and other groups.  However, it is the United Nations (UN) one usually thinks of first in this regard.  Contrary to popular misconception, there is no requirement of prior UN authorization before a nation may use force in defense (Moore 2005).  However, there is an obligation to immediately report such actions afterwards to the Security Council, and if the Security Council renders a decision, there is a further obligation to abide by that lawful decision.  Article 2 of the UN Charter prohibits armed force between states unless four "exceptions" are present: (1) the action is pursuant to a UN decision; (2) is in response to an armed attack; (3) is pursuant to a regional arrangement; and/or (4) is below the threshold of force necessary to trigger Security Council interest.  Article 33 of the UN Charter specifies that peaceful means of resolving disputes should be tried first, but this does not impair the inherent right to self-defense.  Article 51 of the UN Charter, as previously mentioned, clearly expresses the inherent right to self-defense.  Each of the four "exceptions" are discussed below:

    The UN Decision Exception -- article 43 of the UN Charter requires member states to put on call all its armed forces for military action by air, sea, or land, but there are no agreements over which military actions (Article 42) are appropriate under various circumstances, and hence, there is no mechanism compelling a member state to contribute any of its armed forces.  The Security Council normally delegates its powers to a coalition and (absent a resolution to the contrary) leaves the command and control structure to be determined in the field.  UN peacekeeping missions normally require permission from the host state and a promise that military force will not be used in a proactive manner.  The UN practice of delegating its powers is a "contracting out" practice which leaves actors with wide discretion over the initiation, conduct, and termination of hostilities.  It is common for the UN to get directly involved in a "transitional administration" during postconflict situations. 

    The Self-Defense Exception -- nothing less than an armed attack will suffice.  Claims of "ideological subversion" or "economic aggression" do not count in triggering the self-defense exception.  Legitimate self-defense includes anticipatory self-defense, but there must be a high degree of imminence as well as an exhaustion of nonviolent modes of response. 

    The Regional Arrangement Exception -- lawful peacekeeping missions or "enforcement actions" are allowed as part of regular participation in multilateral collective defense arrangments (like NATO) as long as such actions do not conflict with the larger (UN) goal of collective security.  In other words, regional security may not conflict with collective security.  On jurisdictional grounds, the UN may not interfere with the exercise of regional jurisdiction unless international peace and security is threatened.  The extent to which parties in the arrangement share a common geography, language, ethnicity, ideology, or religion may also be important in determining the legitimacy of regional actions.  It is not clear whether this exception requires the exhaustion of nonviolent remedies. 

    The Lower Threshold Exception -- generally, reprisal and retortion constitute the two main types of action falling short of war, although reprisals technically hold the status of being "illegal" as compared to retortions.  A reprisal may consist of a boycott, seizure of assets, or gunboat diplomacy, but they also occur during wartime to force an enemy to comply with the laws of war.  Reprisals must be preceded by a demand and the reprisal itself must not be excessive.  Armed reprisals are a flagrant violation of international law.  Retortion is a legal measure to punish an unfriendly act, and typically occurs after a conflict, as in the case of denial of economic aid.

    As broad as these "exceptions" may seem to be, the UN Charter is a deficient and imperfect instrument for dealing with the problems of civil conflict, secret warfare, terrorism, and humanitarian intervention, as Moore (2005) points out, precisely the problem areas which need dealt with most urgently in the Post-Cold War era.  For these problems, international lawyers almost always turn to the customary laws of intervention, which are still in development and questionable as to whether they are a part of jus cogens (see Holzgrefe & Keohane 2003).  In such cases, the matter becomes a concern for the protection of human rights, and Moore (2005) has laid out these principles as best they can, as policy recommendations, involving these conditions:

• immediate threat of genocide or other widespread arbitrary deprivation of human life

• exhaustion of diplomatic and other peaceful techniques for protecting the threatened rights

• unavailability of effective action by an international agency, regional organization, or the UN

• proportional use of force which does not threaten greater destruction and does not exceed the minimum required

• minimal effect on authority structures necessary to protect the threatened rights

• minimal interference with self-determination

• prompt disengagement, consistent with the purpose of the action

• immediate full reporting to the Security Council and any appropriate regional organization 

HUMANITARIAN INTERVENTION AS JUST WAR

    Humanitarian intervention is coercive intrusion into the internal affairs of a state to protect large-scale human rights violations that is either done unilaterally or by a "coalition of the willing."  The topic of human rights delves into some of the controversies in this area, but suffice it to say that the use of armed force to intervene in the name of humanitarianism is quite controversial among international relations scholars.  Even humanitarian aid or "exceptional" rescue operations, like the relief work performed by NGOs such as Oxfam, CARE, and Doctors without Borders, is controversial (Rieff 2003).  Historically, the idea of humanitarian intervention is grounded or embedded within principles of just war, especially as those principles were elucidated by Hugo Grotius as a right to intervene to prevent maltreatment by a state of its own subjects.  Historical precedents include first-generation actions against the Ottoman Empire in Greece during 1827, Lebanon in 1860, the Balkans in 1877, and Macedonia in 1905.  In 1916, Vatel's (1758) book on Law of Nations was published which tried to spell out a "duty to intervene" based on the ideas of grace or bounty in distributive justice, but current international law recognizes no duty other than the traditional assistance provided by some states in the wake of natural disasters.

    Current international legal thinking is also opposed to any legal "right to intervene" on at least three grounds: (1) the Westphalia system of sovereignty and its associated norm of non-intervention has worked well for many years; (2) the UN Charter is premised on the idea of non-intervention; and (3) there is a fear that great states will use the practice for empire-building.  To this, one might add the reluctance of some states to put their forces in harm's way for reasons other than national security.  There is no settled law on the appropriate entrance and exit strategies with humanitarian intervention, and second-generation peacekeeping (or fourth-generation, asymmetric warfare) has not yet developed standing operating procedures.  To some, the whole idea of humanitarian war is questionable because it would be dealing with criminals, not (wartime) enemies.  As Pfaff (2005) puts it: enemies are capable of violating a state's rights; criminals are capable of violating individual rights.  Military forces engaged in such operations would need to conduct themselves like law enforcement officials.  Greater care would need to be taken on the use of force and protection of bystanders.  Insurgents and terrorists could then easily exploit such limited action by using innocent civilians as human shields or proxy actors, and peacekeeping forces (i.e., soldiers as police) can only respond by being even more discriminating (among combatants and noncombatants) and concerned for the reciprocal levels of intimidation among the whole population, given that the latter presumably has a right to civic peace that the intervention (or intimidation) violates.

    On the matter of empire-building, Cohen (2004) provides fairly good coverage of the legal niceties, arguing as others have (e.g., Moore 2005) that the attempt to establish a new international norm (on the basis of human rights to security, protection, civilian inviolability, and popular sovereignty) often involves an end run around the authority of the UN and other international organizations and/or the rule of law.  The irony is that if international law is ever to evolve into the area of basic human rights, it will need to be violated in order to be upgraded, and this is claimed to undermine the rule of law.  The claim is also usually made that the Kosovo intervention (1996-1999) which involved a NATO bombing campaign not authorized by the UN established a "constitutional moment" where a new Grundnorm (a German word from Kelson's jurisprudence in Pure Theory of Law meaning a fundamental norm against which all other duty statements are validated) replaced the legal principle of sovereignty.  At present, there is no international law of humanitarian intervention to protect human rights, but it is a hot-button issue like many others, such as the selected area of focus below:             

TRYING TERRORISTS WITHIN CONFINES OF GENEVA CONVENTIONS

    The legitimacy of trying terrorists with military commissions and tribunals has been a recent focus of interest. For example, the Frederick Cox International Law Center (see War Crimes Research Portal) at Case Western Reserve School of Law was tasked in early 2005 to answer the following questions:

• whether Common Article 3 of the Geneva Convention III applies to the conflict with al-Qaeda and whether military commissions and their procedures are bound to comply with the minimal standards of due process required

• if CA3 is applicable to the conflict with al-Qaeda and to war crimes trials of enemy combatants in that conflict

• are the 1949 Geneva Conventions self-executing treaties for purposes of challenges to military commissions' procedures

• does customary international law have any application to trials by military commissions or judicial review of those trials

• are "unlawful combatants" (those combatants who are not entitled to Prisoner of War status) entitled to the protections afforded to "civilians" under Article 5 of Geneva Convention IV.  If so, do military commissions' procedures satisfy the minimum standards of a "fair and regular" trial under GC IV.

    Unfortunately, before Case Western had much of a chance to answer the questions, along came the case of Hamdan v. Rumsfeld (pdf) on July 15, 2005 which effectively gave a green light to military tribunals.  Some issues remain unanswered, and other issues still make up popular discussion.  For present purposes, it may be enough to post excerpts of the Geneva Convention articles in question, and let the reader see the interpretive problems for him or herself:

INTERNET RESOURCES
Avalon Project at Yale Law School
A Brief History of the Laws of War
An Observation on the Legal Theory of Hans Kelson (pdf)
Commentary on Additional Protocols to the Geneva Conventions
Correlates of War website
Counterterrorism, Armed Force and the Laws of War
Crimes of War Project
Full Text of Hugo Grotius' On the Law of War and Peace
History of War Schools
International Criminal Tribunal for Rwanda
International Criminal Tribunal for the Former Yugoslavia
Internet Encyclopedia of Philosophy Entry on War
JustWarTheory.com
LaborLawTalk Encyclopedia Entry on War
Law of War Home Page
Max Weber, Sociological Writings
Mobilization: An International Journal
Pew Forum Section on Just War Tradition
Security Council Reform Page at Global Policy Forum
Security Council Resolution 1325 on Women & Children (pdf)
Sorokin the Sociologist (1889-1968)
The Bush Doctrine, the UN Charter and Just War Theory
The Legal Case for Attacking Iraq (pdf)
The Legality of the Threat or Use of Force Against Iraq
UN Document on Protocol I
Univ. San Diego Resources on Just War Theory
US Military Commissions and Tribunals: A Quick Guide
War Crimes Trials in Croatia, Bosnia, Herzegovina, Serbia & Montenegro
Wikipedia Article on Laws of War
Wikipedia Article on War
Wikipedia List of Military Academies

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