Friday, October 7, 2016

Just War Theory: Ambiguities and Varying Approaches

By Eric Brenner
Eric Brenner is a third-year student at Albany Law School. He graduated with honors from Siena College in 2014 with a degree in Finance.  At the law school, he is currently the Executive Managing Editor for Volume 80 of the Albany Law Review.
Eric has been a teaching assistant and research assistant for members of the Albany Law faculty, and he has also served as a judicial intern in U.S. District Court for both the Hon. Lawrence E. Kahn and the Hon. Charles J. Siragusa.
Later this year, his Note on reverse mortgages will be published by the Albany Law Review.
This essay was prepared as an assignment for the International Law of War & Crime seminar this semester.

Just war theories diverge and create much debate, but there are common themes throughout the works of various scholars.  Fundamentally, people across the world are human beings and innocent individuals should not be harmed by others just because they are different. Such harm to innocent individuals can be a driving force for just war.
Further, just war theorists recognize that limits exist on a nation’s means and modes of response when war is a necessary mechanism of self-defense or humanitarian efforts.  Most recently, the U.S. invasion of Iraq has led to much controversy about whether it was a just war.

Just war theories can be widely interpreted, but scholars have agreed that there are outer limits.[1]  Fundamentally, just war theory surrounds two basic questions: (1) conditions giving rise to a justified war, and (2) the methods and tactics that can be utilized when waging war.[2]  There is a great emphasis on the value of each human being and we must “ask in what sense enemy combatants should be considered guilty, or at least non-innocent, and therefore subject to being deliberately killed in war.”[3]
We live in a world with imperfect human beings and if “our neighbor” is being harmed or slaughtered we feel an urge to help them, and often feel we must act upon an ethical obligation.[4]  Violence or war must preserve or achieve a level of peace that “leaves the world better off than it was prior to the resort to force.”[5]  Human nature is the driving force behind just war tradition.  Even though many discussions of just war find their roots in Christianity, scholars point to the fact that all humans regardless of faith should seek to protect their neighbor, prevent egregious harm, and support humanitarian intervention. [6] 
The analysis of defending one’s neighbor becomes applicable to nations, “just as society of human beings has the right to punish a member who has committed a crime against another, so a Nation or a group of Nations have the right to punish a State or ruler that has injured another unjustly.”[7]  At a time of war, laws cannot be set aside as any use of force is only condoned within limits of justice and the value of human life.
Many scholars limit just war to instances that are self-defense.[8]  The United Nations Charter limited war to defense against active aggression.  The majority view long held that force in international relations could be justified by: crimes, self-defense, and sanctions authorized by the Security Council.[9]  Obviously, the term “self-defense” can be broadly or strictly construed.  Much debate has ensued, and the destructive nature of modern warfare has led many to fear what potential nuclear warfare could do to the world.[10] 
Some theorists broaden the self-defense analysis to include humanitarian intervention to protect those who do not have the strength to fight for their own “decent human existence.”[11]  Our existence as human beings forces us to realize that innocent people of “whatever Nation, religion, race, or ethnicity” should not be harmed and such harm must be part of any decision relating to just war.[12]  Humanitarian efforts are most justified in scenarios where human rights are violated (for example, “genocide and ethnic cleansing”).[13]
The twenty-first century definition of just war can be read as “the use of military force according to the decisions of the United Nations Security Council.”[14]  The Security Council has the power to maintain international peace and security, and countries are allowed to respond in self-defense when attacked.[15]  Decisions are guided by international law, stemming from the Vienna Convention on the Law of Treaties.[16]
As such, the invasion of Afghanistan after the attacks of September 11, 2001 is just war resulting from both the UN response and the theory of self-defense. There has been much debate surrounding whether the United States’ war in Iraq was a just war.  Congress authorized the use of force “to defend the national security of the United States against the continuing threat posed by Iraq.”[17]
Disagreements arose as to whether there was substantial evidence prompting U.S. invasion, hinging upon how broad self-defense should be interpreted.  Some scholars point to the fact that Article 51 does not allow action rooted in “anticipatory self-defense.”[18]

Overall, the theories surrounding what a just war is defined as remain unsettled and open to much debate.  Scholars draw attention to ambiguities in United Nation procedures, historical acts, and what individual motives can bring about a war.

[1] See e.g., John F. Coverdale, An Introduction to the Just War Tradition, 16 Pace Int’l L. Rev. 221, 223 (2004).
[2] Id.
[3] Id. at 225.
[4] Jean Bethke Elshtain, The Just War Tradition and Natural Law, 28 Fordham Int’l L.J. 742, 749-50 (2005).
[5] Id. at 752.
[6] Id. at 753.
[7] Id.
[8] Coverdale, supra note 1, at 231.
[9] Id. at 232-33.
[10] Id. at 234-35.   The fears of nuclear warfare have been raised by my political commentators in the current election cycle for President of the United States.
[11] Id. at 238.
[12] Elshtain, supra note 4, at 754.
[13] Coversale, supra note 1, at 242.
[14] Joseph C. Sweeney, The Just War Ethic in International Law, 27 Fordham Int’l L.J. 1865, 1866 (2004).
[15] Id. at 1868, 1868 n.14.
[16] Id.
[17] Id. at 1892.
[18] Id. at 1894.