Friday, October 7, 2016

Jus ad Bellum

By Corey Carmello
Corey Carmello is a third-year student at Albany Law School. He graduated summa cum laude from the University at Albany in 2014 with a Bachelor of Arts in Political Science.
While in law school, Corey has interned with Judge Lawrence E. Kahn, of the Northern District of New York, the Albany County District Attorney’s Office, and the Appeals and Opinions Bureau of the New York State Attorney General’s Office. He is also a member of the Albany Law Review.
Upon graduation, Corey will be working as an associate for Milbank Tweed Hadley & McCloy.
This essay was prepared as an assignment for the International Law of War & Crime seminar this semester.

            The concept of a “just war,” or jus ad bellum, has been discussed and debated on for hundreds of years.  In fact, one of the first and most influential formulators of the just war theory, Saint Augustine, lived in the fourth and fifth centuries.[1]  Augustine explained that a war is just when it is necessary for defense and the protection of the common good.[2]
            In the thirteenth century, Saint Thomas Aquinas opined that a war is just if, among other considerations, the attack is due to some fault of those attacked and the intentions are to advance good and avoid greater evil.[3]
Although early Christian thinkers were the ones that theorized the just war concept,[4] it is still extremely important and relevant in the international law community today.[5]  That community is split, however, on what makes a war just.  On one end of the spectrum, pacifists are of the belief that a war is always immoral and never justeven when attacked first.[6]  On the other end, realists contend that war is outside the realm of moral judgment and is a mere “human activity.”[7]
The vast majority of legal scholars fall somewhere in the middle, and the suggestion of Saints Augustine and Thomas Aquinas—that a war is just when it prevents some greater evil—is intertwined in many of their theories.[8]
Legal scholars and philosophical thinkers seem to focus on two things when discussing the concept of a just war: (1) nature/natural law and (2) international law.  First, scholars have opined that the just war concept cannot be fully understood without grasping human nature and the “call to justice” that is embedded in it.[9]
Augustine opined that human nature calls for us to “love our neighbor.”[10]  Because of that, Augustine and his current following believe that a war is just when it furthers this instinct of protecting and loving your neighbor.[11]  That is to say, when “the aim is to repair that which has been torn asunder by a prior violence and to protect a community for which one has responsibility, the war is just.”[12]  When a war is just, according to this theory, the violence helps keep civic peace and possibly even minimizes the civilian casualties that would otherwise result from not fighting the war.[13] 
Next, in modern day, we have rules and regulations that guide us in our quest to determine what makes a war just.  The Charter of the United Nations permits the use of military force on two occasions: (1) it is approved by the Security Council, and/or (2) if the force is being used in self-defense from an armed attack.[14]
According to Sweeney, the United States’ entry into World War II was a classic example of a just war under this definition due to Japan’s attack on Pearl Harbor.[15]  On the other hand, it is less clear whether the Iraq War, which was not approved by the Security Council, was just.[16]
Additionally, as an aside, many scholars believe that this self-defense idea in the context of just war extends to anticipatory self-defense.[17]  But “the requirement of an armed attack in the U.N. Charter implies a suicidal wait for a nuclear first strike.”[18]
Whether founded in human nature or international rules and regulations, at the most basic level, the concept of just war refers to a war that is aimed at correcting a wrong, defending oneself or others, and supporting civic peace.

[1] John F. Coverdale, An Introduction to the Just War Tradition, 16 Pace Int'l L. Rev. 221, 225 (2004).
[2] Id. at 225–27.
[3] Joseph C. Sweeney, The Just War Ethic in International Law, 27 Fordham Int'l L.J. 1865, 1869 (2004).
[4] Coverdale, supra note 1, at 223.
[5] Id.
[6] Id. at 276.
[7] Id.
[8] Id. at 277.
[9] See, e.g., Jean Bethke Elshtain, The Just War Tradition and Natural Law: A Discussion, 28 Fordham Int’l L.J. 742, 750 (2005).
[10] Id. at 749.
[11] Id. at 750–52.
[12] Id. at 750.
[13] Id. at 751.
[14] Sweeney, supra note 3, at 1867–68.
[15] Id. at 1872.
[16] Id. at 1883.
[17] Id. at 1893–94.
[18] Id.