"Just War" Essays

These two essays on the concept of "Just War" were prepared as an assignment for the International Law of War & Crime seminar at Albany Law School this semester.

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.
Read the Essay.


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.
Read the Essay.

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 just—even 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.

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[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.

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.

 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.

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[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.

"Just War"

Here are two essays on the concept of "Just War" prepared as an assignment for the International Law of War & Crime seminar at Albany Law School this past fall semester.

Just War Influence

By Nick Gargano
Nick Gargano is a third year student at Albany Law School. He graduated from Long Island University (C.W. Post) with a B.A. in History concentrating in military air and sea power.
Prior to law school, Nick worked in concert production touring around the world with well-known musical groups for 15 years thus, expanding his love for history and igniting his interest in working in the field of international law.
This essay was prepared for Professor Bonventre's Fall 2014 International Law of War and Crime Seminar. Read the Essay.


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. Read the Essay.

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]

Just War Influence

By Nick Gargano
Nick Gargano is a third year student at Albany Law School. He graduated from Long Island University (C.W. Post) with a B.A. in History concentrating in military air and sea power.
Prior to law school, Nick worked in concert production touring around the world with well-known musical groups for 15 years thus, expanding his love for history and igniting his interest in working in the field of international law.
This essay was prepared for Professor Bonventre's Fall 2014 International Law of War and Crime Seminar. 



Despite having history and good foundation, the “just war” theory is open-ended. Early Christian thinker Augustine suggested that a “just war” is waged in order to “preserve or to achieve peace,”[1] while another Christian thinker, Thomas Aquinas, suggested that “the advancement of good or the avoidance of evil” was the principle justification for war.[2]

Although Christian thinkers proposed the just war tradition, it may be argued that the pagan military and its warriors abided by a code that originally influenced the “just war” theory when it came to humanitarian law. Here, it is suggested that Christian thinkers used the “just war” theory to justify Christians having the same morale of the pre-Christian pagans in reference to acts of war, as pre-Christian Rome prohibited war unless “just.” However, as Rome became formally Christian, the pacifist Christian culture had to adapt to being part of a military state.[3]

Despite the “just war” theory’s broadness, there are basic principles agreed upon within international law. John F. Coverdale[4] suggested that the basic premises are: (1) the conditions that can justify the recourse to war, internationally known as jus ad bellum; and (2) the limitations on the methods that may justly be used in waging war, known as jus in bello.[5]

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]