Thursday, June 3, 2010

Just War Theory


Just War Theory (or Bellum Iustum) is an ethical theory of warfare. War can be defined as an actual, intentional and widespread armed conflict between political communities. Thus, fisticuffs between individual persons do not count as a war, nor does a gang fight.

War occurs between political communities, defined as those entities which either are states or intend to become states. Terrorist organizations might also be considered “political communities”, if they are associations of people with a political purpose or they control an area in which they function as the de facto government (e.g. Hamas in the Gaza strip).

The origin of just war thinking is a synthesis of classical Greco-Roman and Christian values. The triad of Aristotle, Cicero and Augustine is considered the founders of the just war tradition. Many of the rules developed by the just war tradition have since been codified into contemporary international laws governing armed conflict, such as The United Nations Charter and The Hague and Geneva Conventions.

Just war theory offers moral rules to guide decision-makers on the appropriateness of their conduct during the resort to war, conduct during war, and the termination of the war. Its over-all aim is to try and ensure that wars are begun only for defensible reasons, that when wars break out they are fought in a responsibly controlled and targeted manner, and that the parties to the dispute bring their war to an end in a speedy and responsible fashion that respects the requirements of justice.

The just war theory can be divided onto three parts:
1. Jus ad Bellum – the justice of resorting to war.
2. Jus in Bello – the justice of conduct within war.
3. Jus post Bellum – the justice of the termination of war.


JUS AD BELLUM

The rules of just ad bellum are addressed, first and foremost, to the responsible authorities, those who inaugurate war, most often the head of state and other political leaders. If the leaders fail their responsibility to jus ad bellum principles, then they commit war crimes. Aggressive leaders who launch unjust wars commit crimes against peace. What constitutes a just or unjust use of armed force is disclosed by the rules of jus ad bellum. Just war theory contends that, for any resort to war to be justified, a political community must fulfill each and every one of the requirements:

1. Just Cause: a political community may launch a war only for the right reason. The just causes include: self-defense from external attack; the defense of others from external attack; the protection of innocents from brutal, aggressive regimes; and punishment for a grievous wrongdoing which remains uncorrected.

2. Right Intention: the state must intend to fight the war only for the sake of its just cause. Having the right reason for launching a war is not enough: the actual motivation behind the resort to war must also be morally appropriate. Ulterior motives, such as a power or land grab, or irrational motives, such as revenge or ethnic hatred, are ruled out.

3. Proper authority and public declaration: A state may go to war only if the decision has been made by the appropriate authorities, according to the proper process, and made public, notably to its own citizens and to the enemy state(s). The “appropriate authority” is usually specified in that country's constitution.

4. Last Resort: a state may resort to war only if it has exhausted all plausible, peaceful alternatives to resolving the conflict in question, such as diplomatic negotiation. Make sure something war is declared only when it seems the last practical and reasonable shot at effectively resisting aggression.

5. Probability of Success: a state may not resort to war if it can foresee that doing so will have no measurable impact on the situation. The aim here is to block mass violence which is going to be futile. Unless you are attacked first, fighting in self-defense.

6. Proportionality: a state must, prior to initiating a war, weigh the universal goods expected to result from it, such as securing the just cause, against the universal evils expected to result, notably casualties. Only if the benefits are proportional to, or “worth”, the costs may the war action proceed. (The universal must be stressed, since often in war states only tally their own expected benefits and costs, radically discounting those accruing to the enemy and to any innocent third parties.)


JUS IN BELLO

Jus in bello refers to justice in war, to right conduct in the midst of battle. Responsibility for state adherence to jus in bello norms falls primarily on the shoulders of those military commanders, officers and soldiers who formulate and execute the war policy of a particular state. They are to be held responsible for any breach of the principles. Such accountability may involve being put on trial for war crimes, whether by one's own national military justice system or the International Criminal Court.

We should distinguish between external and internal jus in bello. External jus in bello concerns the rules a state should observe regarding the enemy and its armed forces. Internal jus in bello concerns the rules a state must follow in connection with its own people as it fights war against an external enemy. There are several rules of external jus in bello:

1. No Means Mala in Se: soldiers may not use weapons or methods which are evil in themselves. These include: mass rape campaigns; genocide or ethnic cleansing; using poison or treachery (like disguising soldiers to look like the Red Cross); forcing captured soldiers to fight against their own side; and using weapons whose effects cannot be controlled, like biological agents. Soldiers must obey all international laws on weapons prohibition. Weapons of Mass Destruction or ACB (atomic, chemical, biological) weapons are forbidden. One reason is because they are indiscriminate.

2. Non-Combatant Immunity: soldiers are only entitled to use their (non-prohibited) weapons to target those who are engaged in harm. Thus, when they take aim, soldiers must discriminate between the civilian population, which is morally immune from direct and intentional attack, and those legitimate military, political and industrial targets involved in rights-violating harm. While some collateral civilian casualties are excusable, it is wrong to take deliberate aim at civilian targets.

3. Proportionality: soldiers may only use force proportional to the end they seek. They must restrain their force to that amount appropriate to achieving their aim or target. Weapons of mass destruction, for example, are usually seen as being out of proportion to legitimate military ends.

4. Treatment of POWs: if enemy soldiers surrender and become captives, they cease being lethal threats to basic rights. They are no longer “engaged in harm.” Thus it is wrong to target them with cruel and unusual punishment, such as death, starvation, rape, torture, medical experimentation, etc. They are to be provided with benevolent – not malevolent – and humane – not derogating – quarantine away from battle zones and until the war ends, when they should be exchanged for one's own prisoners of war (POWs).

5. No reprisals: a reprisal is when country A violates jus in bello in war with country B. Country B then retaliates with its own violation of jus in bello, seeking to chasten A into obeying the rules. There are strong moral and evidentiary reasons to believe that reprisals don't work, and they instead serve to escalate death and make the destruction of war increasingly indiscriminate. Winning well is the best revenge.

Internal jus in bello means that a state involved in a war, still needs to respect the human rights of its own citizens as best it can during the crisis. The following issues arise: is it just to impose conscription, or press censorship? Can one curtail traditional civil liberties, and due process protections, for perceived gains in national security? Should elections be cancelled or postponed? May soldiers disobey orders, e.g. refuse to fight in wars they believe unjust? A comprehensive theory of wartime justice must include consideration of them, and not merely focus on what one may do to the enemy. Some of the worst atrocities in wartime have occurred within, and not between, national borders. Some states have used the cloak of war with foreign powers to engage in massive internal human rights violations, usually against some disfavored group. Other states, otherwise moral, in the panic amidst the wartime situation, have imposed emergency legislation which has been a complete overkill, product of fear rather than reason.


JUS POST BELLUM

Jus post bellum refers to justice during the third and final stage of war: termination. It seeks to regulate the ending of wars; the transition from war to peace.

1. Proportionality and Publicity: the peace settlement should be measured and reasonable, as well as publicly proclaimed. To make a settlement serve as an instrument of revenge is to commit a crime against peace.

2. Rights Vindication: any peace agreement should secure the basic human rights of both parties, including individual’s rights to life and liberty, and communities entitlements to territory and sovereignty.

3. Discrimination: distinction needs to be made between the leaders, the soldiers, and the civilians in the defeated country. Civilians are entitled to reasonable immunity from punitive post-war measures. This rule out sweeping socio-economic sanctions.

4. Punishment: when the defeated country has been a blatant, rights-violating aggressor, proportionate punishment must be meted out. The leaders, in particular, should face fair and public international trials for war crimes. Soldiers that have committed war crimes, from all sides of the conflict, should be held accountable to investigation and possible trial.

5. Compensation: financial restitution may be mandated, subject to both proportionality and discrimination. There needs to be enough resources left so that the defeated country can begin its own reconstruction. To beggar thy neighbor is to pick future fights.

6. Rehabilitation: the port-war environment provides a promising opportunity to reform decrepit institutions in an aggressor regime. Such reforms are permissible but they must be proportional to the degree of depravity in the regime.

There needs to be an ethical exit strategy from war, and it deserves at least as much thought and effort as the purely military exit strategy so much on the minds of policy planners and commanding officers. Any serious defection, by any participant, from these principles of just war settlement should be seen as a violation of the rules of just war termination, and so should be punished. At the least, violation of such principles mandates a new round of diplomatic negotiations – even binding international arbitration – between the relevant parties to the dispute. At the very most, such violation may give the aggrieved party a just cause – but no more than a just cause – for resuming hostilities. Full recourse to the resumption of hostilities may be made only if all the other traditional criteria of jus ad bellum – proportionality, last resort, etc. – are satisfied in addition to just cause.

Can coercive regime change ever be justified, or is it essentially an act of imperialism? Forcible post-war regime change can be permissible provided: 1) the war itself was just and conducted properly; 2) the target regime was illegitimate, thus forfeiting its state rights; 3) the goal of the reconstruction is a minimally just regime; and 4) respect for human rights is integral to the transformation process itself. The permission is then granted because the transformation: 1) violates neither state nor human rights; 2) its expected consequences are very desirable, namely, satisfied human rights for the local population and increased international peace and security for everyone; and 3) the post-war moment is promising regarding the possibilities for reform. The transformation will be successful when there's: 1) a stable new regime; 2) run entirely by locals; which is 3) minimally just. There is extensive historical evidence that this kind of success probably takes from 8 to 12 years to achieve. Successful, rights-respecting coercive regime change can be done and was done in Germany and Japan from 1945-55, and so it is neither conceptually nor empirically impossible. However, it's very difficult and, in some cases, it's not a wise thing to do. Recommended steps for transforming a defeated regime include the following:

1. Adhere diligently to the laws of war during the regime take-down and occupation.
2. Require the regime, as a term of its treaty of surrender, to adopt a political form of government that is democratic and with a constitution that protects the basic human rights of all citizens.
3. Prosecute war criminals.
4. Disarm and demilitarize the society.
5. Provide effective military and police security for the whole country.
6. Remove propaganda from the educational curricula.
7. Forego compensation and sanctions in favor of investing in and re-building the economy.
8. Follow an orderly, not-too-hasty exit strategy when the new regime can stand on its own feet.


Reference:

Cook, M. (2004). The Moral Warrior: Ethics and Service in the U.S. Military. New York: State University of New York Press.

Moseley, A. (2006). Just War. The Internet Encyclopedia of Philosophy.

Orend, B. (2005). War. Stanford Encyclopedia of Philosophy.

Walzer, M. (2006). Just and Unjust Wars: A Moral Argument with Historical Illustrations. (4. Ed.). New York: Basic Books.

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