By Eric Brenner
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.
Introduction
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.
Discussion
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]
Conclusion
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.
