Sunday, November 4, 2012

Introduction to the Just War Tradition

By Michelle K. Mallette
Micky Mallette, a third-year student at Albany Law School, is the student Executive Director of the Center. She is a graduate of the United States Military Academy, where she studied law and systems engineering. Currently, Micky serves as the Executive Editor for State Constitutional Commentary for the Albany Law Review.
Prior to law school, she worked for Procter & Gamble as a Marketing Purchases Manager and Technical Engineer. During law school, she has worked as a legal intern at the Third Judicial Department Town & Village Courts and at the Appellate Division, Third Department, and as a summer associate at Couch White, LLP.
Micky's essay is the third in the series on Just War prepared for the International Law of War & Crime Seminar, Fall 2012.

The just war doctrine is driven by two key principles, jus ad bellum—the criteria necessary to establish just cause in declaring war—and jus in bello—the limitations imposed on a party’s conduct while engaged in the act of war.[1] Together these two principles form the foundation in determining whether a State’s resort to aggression complies with international law.[2]

According to Coverdale there are four conditions that must be met in order to classify a war as just: just cause, lawful authority, proportionality, and necessity (or “last resort”).[3] Much of the discussion surrounding these conditions focuses on just cause due to competing theories involving the legality of preemptive self-defense.[4]

Whereas in medieval times justifications for war included “defense against attack, recovering something wrongfully taken, and punishment of evil,” many modern scholars only recognize self-defense as a legitimate cause for aggression.[5] Consequently, determining what qualifies as just cause in declaring war is a hotly debated topic among just war theorists.[6]
Article 51 of the UN Charter provides an exception to the prohibition on the use of force when responding to “an armed attack.”[7] Thus, scholars advocating for a strict interpretation of this provision—restrictionists—argue that resort to force can never be justified unless a State is reacting to an actual armed attack.[8]

The competing viewpoint argues for acceptance of the right to preemptive self-defense. This proposition holds that a State may anticipate an armed attack when “the necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.”[9]

Recently, some States have advocated broadening preemption even further to include attacks aimed at preventing "'rogue' States from acquiring nuclear, biological or chemical weapons of mass destruction."[10]While restrictionists are willing to concede that preemption may be necessary in rare circumstances, they strongly reject and criticize broadening preemption to include preventative measures.[11]

Use of force, they argue, can never be justified on the basis that some form of violence might occur in the distant future.[12]Rather, it is only permissible to initiate armed conflict if force is necessary to repel an imminent attack.[13]International law, however, leaves unanswered what the standards for imminence are.[14]

In the event that resort to armed conflict qualifies as just, there are still limitations on what measures may be taken by a State while engaged in that conflict.[15] Within jus in bello there are two core restrictions that guide the use of force: proportionality and discrimination.[16]

The concept of discrimination prohibits State actors from targeting noncombatants—those not directly participating in hostilities—while proportionality requires a balancing test such that any loss of civilian life or property is not excessive when compared with the anticipated military advantage to be gained.[17]

Similar to the principles of jus ad bellum, divergent theories exist surrounding the restrictions of jus in bello as well. For example, the doctrine of military necessity recognizes that “the imperative of winning the war or the battle may justify attacks on legitimate military targets despite their consequences for civilians and civilian objects.”[18]

One theorist suggests that “supreme emergencies,” such as the occupation of Western Europe by Nazi Germany, encourage States to engage in unjust means to secure victory.[19] But not all scholars agree that military necessity can ever justify “collateral damage” of civilians.[20]

“Moral absolutists treat civilian immunity as a flat prohibition”—the direct targeting of civilians can never be justified, no matter the circumstances.[21] Consequentialists on the other hand, believe that discrimination is only one factor in assessing the justification for conducting war, and as such, directly targeting civilians may be morally appropriate in dire circumstances.[22]

Coverdale contends that these theoretical differences in the just war doctrine are not problematic. The issue is a complex one, requiring “a set of questions to guide us in making prudential judgments,” rather than providing a simplistic formula to follow in assessing the just nature of armed conflict.[23] According to him, the lack of answers is not “a valid criticism of the just war tradition.”[24]

As it stands, however, the estimation of whether a war is “just” is entirely dependent upon which side of the dichotomy a theorist falls. Hence, a war may be considered just and unjust at the same time.[25]

This disparity undercuts the main component of international law— offering guidance and precedent for lawfully engaging in armed conflict.[26] Without clear answers to guide States’ action, unjust wars will continue to be waged in the future.
[1] John F. Coverdale, An Introduction to the Just War Tradition, 16 Pace Int’l L. Rev. 221, 223 (2004).

[2] See id. at 223–24.

[3] Id. at 229.

[4] Id. at 242–48.

[5] Id. at 230–31.

[6] Id. at 229.

[7] Id. at 232–33.

[8] John-Alex Romano, Combating Terrorism and Weapons of Mass Destruction: Reviving the Doctrine of a State of Necessity, 87 Geo. L. J. 1023, 1035 (1999).

[9] Joshua Raines, Osama, Augustine, and Assassination: The Just War Doctrine and Targeted Killings, 12 Transnat’l L. & Contemporary Problems 217, 237–38 (2002).

[10] Coverdale, supra note 1, at 244–45.

[11] Id. at 247.

[12] Id. at 242–43.

[13] Id. at 243.

[14] Id. at 248.

[15] Id. at 260.

[16] Id. at 260–61.

[17] See id. at 261, 268.

[18] Id. at 272.

[19] Id. at 274–75.

[20] Id. at 275.

[21] Id. at 277.

[22] Id.

[23] Id.

[24] Id.

[25] Id. at 276–77.

[26] See Jakob Kellenberger, Sixty Years of the Geneva Conventions: Learning from the Past to Better Face the Future (Aug. 12, 2009),