Monday, February 16, 2015

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.

[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.