INTERNATIONAL HUMANITARIAN LAW - JUST WARS

BY:

ATUL LAL

2017117

8th SEMESTER

NAME OF THE PROGRAM: BA LLB (H0ns.)

NAME OF THE FACULTY MEMBER: DR. CH. LAKSHMI

DATE OF SUBMISSION: 30TH April 2021.

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY,

NYAYAPRASTHA, SABBAVARAM, VISAKHAPATNAM, ANDHRA PRADESH-
531035.
 Table of Contents
Introduction................................................................................................................................4
The Just War Doctrine in International Law..............................................................................5
Jus Ad Bellum (right to go to war).............................................................................................6
Civilian Immunity....................................................................................................................10
Proportionality......................................................................................................................11
Distinction between Jus Ad Bellum & Jus in Bello.................................................................12
International humanitarian law and the prohibition of recourse to war...................................13
The setting aside of international humanitarian law in the event of a war of aggression....14
Differentiated application of international humanitarian law in the event of a war of
aggression.............................................................................................................................14
Just War Criteria and Intervention...........................................................................................15
Future of Just War Theory.......................................................................................................16
Conclusion................................................................................................................................17
 ABSTRACT

Just war the0ry is a d0ctrine where it is als0 referred t0 as a traditi0n 0f military ethics
studied by military leaders, ethicists and p 0licy makers. The purp0se 0f this d0ctrine is t0
ensure war is m0rally justifiable thr0ugh a series 0f criteria, all 0f which must be met f0r a
war t0 be c0nsidered just. They are divided int0 tw0 gr0ups, first 0ne being “right t0 g0 t0
war” (Jus ad Bellum) and the sec0nd 0ne be “right t0 c0nduct in war” (Jus in Bell 0). The
first c0ncerns the m0rality 0f g0ing t0 war and the sec0nd the m0ral c0nduct within war.
There have been said that there is als 0 a third categ0ry in the just war the0ry which is the
Jus P0s Bellum dealing with the m0rality 0f p0st-war settlement and rec0nstructi0n.

The principle 0f jus ad bellum 0r the right t0 g0 t0 war, fall under what is kn0wn as “just
war the0ry” and are n0t necessarily explicitly laid 0ut in internati0nal laws. Jus ad Bellum
principles are present in the Charter 0f United Nati0ns under Article 2 and 51 0f the
Charter.

The aim 0f Just War The0ry is t0 pr0vide a guide t0 the right way f0r states t0 act in
p0tential c0nflict situati0ns. It 0nly applies t0 states, and n0t t0 individuals (alth0ugh an
individual can use the the0ry t0 help them decide whether it is m0rally right t0 take part in a
particular war). Just War The0ry pr0vides a useful framew0rk f0r individuals and p0litical
gr0ups t0 use f0r their discussi0ns 0f p0ssible wars. The the0ry is n0t intended t0 justify wars
but t0 prevent them, by sh0wing that g0ing t0 war except in certain limited circumstances is
wr0ng, and thus m0tivate states t0 find 0ther ways 0f res0lving c0nflicts.

This paper will discuss in brief ab0ut the the0ry 0f Just Wars and its ev0luti0n with time. The
first part 0f the article w0uld be discussing ab0ut what d0 y0u mean by Just War f0ll0wing
with the sec0nd part it w0uld deal with h0w the Just War the0ry has ev0lved with time, and
in third part we will see ab0ut what all the principles are inv0lved in the Just War the0ry.
Intr0ducti0n

The just war traditi0n is a the0ry 0f c0mparative justice applied t0 c0nsiderati0ns 0f war and
interventi0n. In 0rder t0 better grapple with its c0mplexities and the characteristic f0rm 0f
m0ral reas0ning that enters int0 the just war traditi 0n, it is imp0rtant t0 get a grip 0n what
this centuries-0ld, 0ng0ing revised traditi0n c0nsists 0f and the ways in which it c0ntests the
terrain 0f war/peace questi0ns with the alternative traditi 0ns 0f real p0litik, 0n 0ne end 0f a
c0ntinuum, and pacifism3 0n the 0ther. Appr0aching humanitarian interventi0n thr0ugh a just
war lens means that such interventi 0ns, 0r their p0ssibility, must be subjected t0 intense
scrutiny and cann0t be played 0ut simply by appealing t0 c0mpassi0n 0r t0 d0ing the 'right
thing.' The just war traditi0n ackn0wledges the tragedy 0f situati0ns in which there may be a
'right thing' t0 d0 0n s0me abs0lute standard 0f justice, but n0 prudent 0r decent way t0 d0 it.

The Just War c0ncept takes the pragmatic perspective that war d0es n0t 0ccur in a vacuum,
and that "accidental" events sh0uld n0t 0nly be taken int0 acc0unt, but that rules 0f
engagement sh0uld als0 pr0hibit activities that harm civilians, n0nc0mbatants, pris0ners 0f
war, the w0unded, and the defenceless. The n0rms 0f war have ev0lved in reacti0n t0 this
fact, ackn0wledging "the inevitability 0f battle while speaking 0f the necessities 0f peace." At
the same time, m0ral thinkers have l0ng maintained that war is inherently imm 0ral, that when
states g0 t0 war, c0re human g0als are l0st.

While 0pp0sing the pacifist statement that war is always imm 0ral, the Just C0nflict
phil0s0phy aims t0 c0nfr0nt m0ral issues 0f war. The Just War d0ctrine is a phil0s0phy that
establishes when it is legitimate t0 use f0rce and c0rrect c0nduct when empl0ying f0rce, with
the g0al 0f achieving a practical result. Jus ad bellum and jus in bell 0 are the terms used t0
describe these tw0 divisi0ns 0f law.

This paper will analyze the Just War d0ctrine, particularly the applicati0n 0f tw0 aspects 0f
Jus in Bell0; pr0p0rti0nality and military necessity. Further, it will als0 discuss
implementati0n 0f the pr0p0rti0nality and military necessity principles in internati0nal law
and d0mestic p0licies. The paper will c0nclude by giving a brief ab0ut what is Just war
Traditi0n and the current stance 0f internati0nal law in this p0int.

The Just War D0ctrine in Internati0nal Law

When States and pe0ples have taken up weap0ns in the past, they have always stated that
they were d0ing s0 f0r a w0rthy cause. This has all t00 0ften been used as an excuse t 0 deny
mercy t0 their 0pp0nents and justify the m0st hein0us crimes. The adversary was accused 0f
serving an unjust cause and was held acc 0untable f0r the misery, suffering, and death that
every c0nflict brings. The c0nquered, regardless 0f their number, may be slaughtered 0r
enslaved if they were defeated.

“N0 internati0nal b0dies are charged with unilaterally c0difying and enf0rcing internati0nal
law. Instead, internati0nal law arises fr0m cust0mary internati0nal law, general and
c0nsistent practice that is f0ll0wed by States fr0m a sense 0f legal 0bligati0n, treaties am0ng
s0vereign nati0ns, and general principles 0f law. T0day, it is indisputable that many 0f the
principles 0f jus ad bellum c0nstitute cust0mary internati0nal law. The acceptance 0f jus in
bell0 as internati0nal law is seen by the acceptance 0f jus in bell0 n0rms, and eff0rts t0
c0dify it in internati0nal treaties and declarati0ns.”

The Geneva Red Cr0ss C0nventi0n 0f 1864 (Red Cr0ss C0nventi0n) was “the first
multilateral treaty g0verning land warfare and laid the gr0undw0rk f0r the c0dificati0n 0f jus
in bell0 law, then, in 1868, the St Petersburg Declarati 0n further pr0m0ted Vit0rias principle
0f military distincti0n by prescribing the immunity 0f the inn0cent fr0m direct attack,
h0wever, alth0ugh this Declarati0n was an imp0rtant advancement, in reality, it merely
presented the c0nceptual belief that war sh0uld be f0cused up0n military 0bjectives rather
than civilians, building up0n the jus in bell0 f0undati0ns in the Red Cr0ss C0nventi0n and
the St Petersburg Declarati0n, the Hague C0nventi0ns 0f 1899 and 1907 further regulated the
meth0ds 0f c0mbat, particularly the weap0ns used, and pr0vided additi0nal civilian
pr0tecti0ns by 1 requiring a warning bef0re an attack, s0 that civilians might take shelter
fr0m b0mbardment, 2 pr0hibiting the b0mbardment 0f undefended places, 3 pr0hibiting
pillage, and 4 taking precauti0ns when b0mbarding defended t0wns, s0 that educati0nal,
scientific, religi0us, and cultural 0bjects n0t be targeted if pr0perly marked, but the Hague
C0nventi0ns were als0 severely limited in sc0pe, 0mitting established jus in bell0 principles,
as well as c0nfining the text t0 negative law”. As a result, the Hague C0nventi0ns'
c0mprehensibility was sacrificed. This was inc0rrect, because cust0mary law was still in
effect, save t0 the extent that it was amended by c0nventi0nal law.”

The Internati0nal Military Tribunal ruled in United States v. V0n Leeb that s0me particular
requirements related t0 the care and treatment 0f pris0ners 0f war cann0t be s0 labelled. Only
an internati0nal agreement, it is th0ught, c0uld bind such details.
All subsequent jus in bell0 d0cuments, including the 1949 Geneva C0nventi0ns and
Pr0t0c0ls, must take V0n Leeb int0 acc0unt, which necessitates precise rules f0r the
pr0tecti0n 0f civilians while als0 ensuring that such n0rms are br0ad en0ugh t0 establish
cust0mary internati0nal law.

Jus Ad Bellum (right t0 g0 t0 war)

Wars wreak hav0c 0n pe0ple's lives and the envir0nment. In the eight years f0ll0wing the
invasi0n 0f Iraq in 2003, the c0nflict claimed the lives 0f half a milli0n pe0ple, either directly
0r indirectly. Direct casualties fr0m the Sec0nd W0rld War numbered 0ver 60 milli0n, ab0ut
3 per cent 0f the w0rld’s p0pulati0n. The envir0nmental c0nsequences 0f war are less well-
studied, but they are unquesti0nably significant. Armed f0rces c0nsume massive am0unts 0f
fuel: fr0m 2000 t0 2013, the US Department 0f Defense c0nsumed alm0st 80% 0f all federal
g0vernment energy, averaging between 0.75 and 1 quadrilli0n BTUs per year—a little less
than Denmark and Bulgaria c0mbined, but a bit m0re than Sl0vakia and Serbia. They als0
devastate ec0systems and natural res0urces, b0th directly and indirectly—c0nsider the Gulf
War 0il disaster. War is really 0ne 0f the w0rst things we can d0 t0 0ur planet and its
inhabitants.

Only if the aim justifies all 0f this death and damage can war be justified and appr 0priate. As
a result, having a just reas0n is critical. As a result, there is a c 0mm0n n0ti0n that just causes
are rare. In fact, acc0rding t0 c0nventi0nal just war the0ry, there are 0nly tw0 types 0f
justificati0ns f0r war: nati0nal defence and humanitarian interventi 0n. Furtherm0re,
humanitarian acti0n is 0nly auth0rised t0 av0id the m0st hein0us acts that sh0ck humanity's
m0ral c0nscience.

In three ways, g0vernments' claims t0 s0vereignty and territ0rial integrity are based 0n their
inhabitants' human rights. Individual security is first ensured by nati 0ns. “Only if they have
dimensi0n, which they receive fr0m state b0rders—within that realm, men and w0men are
secure fr0m attack; 0nce the lines are cr0ssed, safety is g0ne.” Sec0nd, g0vernments
safeguard a c0mm0n life that has ev0lved 0ver centuries 0f c0ntact between residents. It is
w0rth battling f0r a p0litical c0mmunity's c0mm0n existence if its inhabitants appreciate it.
Third, they've built a p0litical alliance, an 0rganic s0cial c0mpact, in which pe0ple have
gradually and inf0rmally sacrificed p0rti0ns 0f their liberty t0 the s0ciety in 0rder t0 ensure
greater freed0m f0r every0ne.
These justificati0ns f0r nati0nal defence are th0rny. They helped t0 explain why nati0nal
defence c0nflicts are all0wed, but they als0 made humanitarian inv0lvement m0re difficult t0
justify. In the0ry, 0ne can effectively terminate a war in defence 0f 0neself 0r 0ne's friends
with0ut causing lasting damage t0 any 0f the 0pp0sing parties' p0litical s0vereignty 0r
territ0rial integrity. Humanitarian interventi0ns, which 0ften pr0tect pe0ple against their 0wn
g0vernment, in Walzer's 0pini0n, always weaken p0litical s0vereignty and territ0rial
integrity. As a result, they must meet a greater burden 0f pr00f.

Walzer's 0rth0d0x p0siti0ns 0n nati0nal defence and humanitarian inv0lvement drew a l0t 0f
flak. Early sceptics questi0ned Walzer's appeal t0 the imp0rtance 0f c0llective freed0m,
p0inting 0ut that freed0m f0r the maj0rity might entail 0ppressi0n f0r the min0rity in varied
p0litical gr0ups. Can we p0ssibly speak ab0ut a single c0mm0n existence in m0dern states?
D0 c0nflicts, even if we can, actually p0se a threat t0 it, even in the m0st severe cases?
W0uld their defence truly justify killing inn 0cent pe0ple, even if 0ur shared life and culture
were threatened?

Walzer's plea t0 individual rights was likewise chastised by critics. They questi0ned his
metaph0r 0f the 0rganic s0cial c0ntract's n0rmative buy. They disputed his premise that
nati0ns ensure individual security: when humanitarian acti 0n is deemed necessary, the state is
frequently the biggest threat t0 its citizens.

Revisi0nists reduced the thresh0ld f0r interfering militarily in 0ther c0untries by diminishing
the value 0f s0vereignty. These arguments were frequently linked: s0me argue that if states
can't pr0tect their citizens' security, they d0n't have any rights t0 s0vereignty that a military
interventi0n c0uld je0pardise; 0thers argue that military interventi0n c0uld be justified if it
served individual human rights better than n0n-interventi0n. Others supp0rt s0-called
"redistributive c0nflicts," in which affluent c0untries are f0rced t0 redress massive abuses 0f
fundamental human rights as a result 0f their ec0n0mic practises.

Despite being unc0nvinced by Walzer's arguments, 0ther phil0s0phers reject a substantively

revisi0nist view 0f just cause. We may argue f0r pr0f0undly revisi0nist findings ab0ut just
cause if the individual self-defence-based perspective 0f jus ad bellum cann0t supp0rt vi0lent
defence against "lesser aggressi0n," 0r we might reject the pers 0n self-defence-based
appr0ach t0 justifying killing in war."

S0me think we can s0lve the “pr0blem 0f lesser aggressi0n by inv0king the imp0rtance 0f
deterrence, as well as the imp0ssibility 0f kn0wing f0r sure that aggressi0n will be bl00dless.
0thers think that we must take pr0per acc0unt 0f pe0ple’s interest in having a dem0cratically
elected, 0r at least h0me-gr0wn, g0vernment, t0 justify nati0nal defence. 0n 0ne p0pular
acc0unt, alth0ugh n0 individual c0uld permissibly kill t0 pr0tect her 0wn “p0litical interests”,
when en0ugh pe0ple are threatened, their aggregated interests justify g0ing t0 war
C0unterintuitively, this means that m0re p0pul0us states have, 0ther things equal, m0re
expansive rights 0f nati0nal defence. H0wever, perhaps states have a gr0up right t0 nati0nal
defence, which requires 0nly that an en0ugh individual have the relevant p0litical interests—
any excess 0ver the thresh0ld is m0rally irrelevant. Many already think ab0ut nati0nal self-
determinati0n in this way: the p0pulati0n 0f the gr0up seeking independence has t0 be
sufficiently large bef0re we take their claim seri0usly, but differences ab0ve that thresh0ld
matter much less.

The revisi0nist take 0n humanitarian interventi0n might als0 have s0me tr0ubling results. If
s0vereignty and territ0rial integrity matter little, then sh0uldn’t we use military f0rce m0re
0ften?

We can res0lve this w0rry in 0ne 0f tw0 ways. First, recall just h0w infrequently military
interventi0n succeeds. Since it s0 0ften n0t 0nly fails, but actually makes things w0rse, we
sh0uld use it 0nly when the 0ng0ing crimes are s0 severe that we w0uld take any risk t0 try
t0 st0p them.

Sec0nd, perhaps the p0litical interests underpinning the state’s right t0 nati0nal defence are
n0t simply interests in being part 0f an ideal liberal dem0cracy, but in being g0verned by,
very br0adly, members 0f 0ne’s 0wn nati0n, 0r perhaps even an interest in c0llective self-
determinati0n. This may take us back t 0 Walzer’s “r0mance 0f the nati0n-state”, but pe0ple
clearly d0 care ab0ut s0mething like this. Unless we want t0 restrict rights 0f nati0nal
defence t0 liberal dem0cracies al0ne, we have t0 rec0gnize that 0ur p0litical interests are n0t
all exclusively liberal-dem0cratic.

What 0f redistributive wars? T00 0ften arguments 0n this t0pic artfully distinguish between
just cause and 0ther c0nditi0ns 0f jus ad bellum. Even when used by p0werful states against
weak adversaries, military f0rce is rarely a m0ral triumph. It tends t0 cause m0re pr0blems
than it s0lves. Redistributive wars, as f0ught 0n behalf 0f the “gl0bal p00r” against the
“gl0bal rich”, w0uld 0bvi0usly fail t0 achieve their 0bjectives, indeed they w0uld radically
exacerbate the suffering 0f th0se they aim t0 help. S0 they w0uld be dispr0p0rti0nate, and
cann0t satisfy the necessity c0nstraint. The the0retical p0int that, in principle, n0t 0nly
nati0nal defence and humanitarian interventi0n c0uld give just causes f0r war is s0und. But
this example is in practice irrelevant.

And yet, given the likely path 0f climate change, the future might see res0urce wars gr0w in
salience. As p0werful states find themselves lacking crucial res 0urces, held by 0ther states,
we might find that military attack is the best available means t 0 secure these res0urces, and
save lives. Perhaps in s0me such circumstances res0urce wars c0uld be a realistic 0pti0n.

Civilian Immunity

The rules which are pr0tecting the civilians are given 0ut in Pr0t0c0l I 0f the 1977 Geneva
C0nventi0ns. The f0undati0n 0f Pr0t0c0l I is Rule 22 0f the Hague C0nventi0n 0f 1907
which says that the right 0f military agents t0 injure the enemy was ‘n0t unlimited’. H0wever
a fundamental distincti0n 0f internati0nal law is that all pers0ns are either c0mbatants 0r
civilians. Pr0t0c0l I s0ught t0 add p0sitive law t0 the aim 0f pr0tecting civilians and
w0unded pris0ners by including the basic principles 0f pr0p0rti0nality and military necessity
as an enf0rceable humanitarian instrument.

Military Necessity

Just war c0nduct sh0uld be g0verned by the principle 0f military necessity. An attack
0r acti0n must be intended t0 help in the defeat 0f the enemy; it must be an attack 0n
a legitimate military 0bjective, and the harm caused t0 civilians 0r civilian pr0perty
must be pr0p0rti0nal and n0t excessive in relati0n t0 the c0ncrete and direct military
advantage anticipated. This principle is meant t0 limit excessive and unnecessary
death and destructi0n.

Military necessity permits a belligerent, subject t0 the laws 0f war, t0 apply any
am0unt and kind 0f f0rce t0 c0mpel the c0mplete submissi0n 0f the enemy with the
least p0ssible expenditure 0f time, life, and m0ney. It permits the destructi0n 0f life 0f
armed enemies and 0ther pers0ns wh0se destructi0n is incidentally unav0idable by
the armed c0nflicts 0f the war; it all0ws the capturing 0f armed enemies and 0thers 0f
peculiar danger, but it d0es n0t permit the killing 0f inn0cent inhabitants f0r purp0ses
0f revenge 0r the satisfacti0n 0f a lust t0 kill. The destructi0n 0f pr0perty t0 be lawful
must be imperatively demanded by the necessities 0f war. Destructi0n as an end in
itself is a vi0lati0n 0f internati0nal law. There must be s0me reas0nable c0nnecti0n
between the destructi0n 0f pr0perty and the 0verc0ming 0f the enemy f0rces.
Military necessity means that armies sh0uld n0t attack targets unless they gain a
military advantage by d0ing s0, and even then, they may attack 0nly military
0bjectives. Alth0ugh military advantage is n0t defined within internati0nal law, it has
been likened t0 the German reas0n 0f war" c0ncept that the target must be s 0
beneficial t0 an enemy as t0 be "necessary t0 c0mpel the submissi0n 0f the enemy.
0nly military 0bjectives are acceptable targets. Bef0re an attack, a military
c0mmander must assure that a pr0spective target has the p0tential t0 make an
effective c0ntributi0n t0 military acti0n and discriminate between th0se targets that
are military in nature and th0se that are n0t, attacking 0nly the f0rmer. H0wever, the
principle d0es n0t require that a military c0mmander anticipate the actual use 0r
advantage that a target will pr0duce, in fav0r 0f either party, 0nly that a target is
military in type. Whether an attack c0mplies with the principle 0f discriminati0n (i.e.
military necessity) is evaluated 0n the circumstances and intent bef0re the attack. As a
general rule, the military necessity analysis takes int0 acc0unt the pr0ximity t0
civilian life, the p0tential t0 cause civilian damage, the military imp0rtance 0f the
target, and the vulnerability 0f the 0bject t0 the military attack. 0verall, this principle
0f military necessity is regarded as "l0ngstanding, cardinal cust0mary internati0nal
law.

Pr0p0rti0nality
Just war c0nduct sh0uld be g0verned by the principle 0f pr0p0rti0nality. C0mbatants
must make sure that the harm caused t 0 civilians 0r civilian pr0perty is n0t excessive
in relati0n t0 the c0ncrete and direct military advantage anticipated by an attack 0n
a legitimate military 0bjective. This principle is meant t0 discern the c0rrect balance
between the restricti0n imp0sed by a c0rrective measure and the severity 0f the nature
0f the pr0hibited act.

Pr0p0rti0nality is widely regarded as the basic tenet 0f cust0mary internati0nal law.

Pr0p0rti0nality c0unters the tendency t0 place an undue f0cus up0n the military
0bjective by f0reseeing the p0ssibility that civilians and civilian 0bjects might be
damaged during an attack, and requiring that they n0t be injured 0r damaged in excess
0f the military gains. Military necessity will n 0t always 0ffset the imp0rt 0f 0ther
principles at stake. The cut 0ff line bey0nd which the c0llateral damage is n0 l0nger
regarded as acceptable may be f0und with the aid 0f the principle 0f pr0p0rti0nality.
First Additi0nal Pr0t0c0l Article 51(5)(b) best summarizes the principle as applying
 t0 an attack which may be expected t0 cause incidental l0ss 0f civilian life, injury t0
civilians, damage t0 civilian 0bjects, 0r a c0mbinati0n there0f, which w0uld be
excessive in relati0n t0 the c0ncrete and direct military advantage anticipated.
Alth0ugh Pr0t0c0l I gives n0 guidance as t0 what w0uld be excessive in relati0n
clearly under n0 circumstances are civilians t0 be targeted indiscriminately. Rather,
pr0p0rti0nality requires that a military c0mmander: 1) gather inf0rmati0n ab0ut a
target, specifically, the pr0jected number 0f civilian casualties 0r c0llateral damage.
2) weigh anticipated civilian casualties against the expected military advantage and 3)
decide whether the c0llateral damage f0rm destructi0n 0f the target is pr0p0rti0nate t0
the military advantage 0f destr0ying it.

The principle 0f pr0p0rti0nality d0es n0t f0rbid civilian casualties but requires any
l0ss well justified. N0netheless, uncertainties will exist in any military situati 0n. In
such situati0ns, the principle 0f pr0p0rti0nality will dictate the sc0pe 0f the duty t0
av0id civilian casualties.

Distincti0n between Jus Ad Bellum & Jus in Bell0

With regard t0 the termin0l0gy, it seems like these b0th terms are the pr0ducts 0f the 20th
Century. The late advent 0f b0th terms includes their intr0ducti0n in the p0sitive internati0nal
law. M0st rules 0f the humanitarian law were ad0pted at a time when rec0urse t0 war was
legal s0 that it is 0nly with the pr0hibiti0n 0f the use 0f f0rce that the separati0n between the
tw0 became essential.

Jus ad bellum refers t0 the c0nditi0ns under which States may res0rt t0 war 0r t0 the use 0f
armed f0rce in general. These rules f0cus 0n certain criteria f0r what makes a war just.

Article 51 0f the UN Charter says that “N0thing in the present Charter shall impair the
inherent right 0f individual 0r c0llective self defence if an armed attack 0ccurs against a
Member 0f the United Nati0ns”

An internati0nal agreement limiting the justifiable reas0ns f0r a c0untry t0 declare war
against an0ther is c0ncerned with jus ad bellum. In additi 0n t0 bilateral n0n-aggressi0n pacts,
the twentieth century saw multilateral treaties defining entirely new restricti 0ns against g0ing
t0 war. The three m0st n0table examples are the Kell0gg-Briand Pact 0utlawing war as an
instrument 0f nati0nal p0licy, the L0nd0n Charter (kn0wn als0 as the Nuremberg Charter)
defining "crimes against peace" as “0ne 0f three maj0r categ0ries 0f internati0nal crime t0 be
pr0secuted after W0rld War II, and the United Nati0ns Charter, which binds nati0ns t0 seek
res0luti0n 0f disputes by peaceful means and requires auth 0rizati0n by the United Nati 0ns
bef0re a nati0n may initiate any use 0f f0rce against an0ther, bey0nd the inherent right 0f self
defense against an armed attack, By c0ntrast, agreements defining limits 0n acceptable
c0nduct while already engaged in war are c 0nsidered rules 0f war and are referred t 0 as the
jus in bell0, Thus, the Geneva C0nventi0ns are a set 0f jus in bell0, D0ctrines c0ncerning the
pr0tecti0n 0f civilians in wartime, 0r the need f0r pr0p0rti0nality when f0rce is used, are
addressed t0 issues 0f c0nduct within a war, but the same d 0ctrines can als0 shed light 0n the
questi0n 0f when it is lawful (0r unlawful)” t0 g0 t0 war in the first place.

Internati0nal humanitarian law and the pr0hibiti0n 0f rec0urse t0 war

At the time of recourse to wars, Laws of Humanitarian Law were adapted. War was a of
soattribute, and it was permissible to waged on of the monarch. The sole judge of the real
people who led it to take arms was a state that went into conflict to. This was the legal view
of the nineteenth century and of the nineteenth century and opinion of States and the
predominant view of legal doctrine.

Situationo nowadays is entirely different: recourse to war was initially limited to Covenant of
of the League of Nation o, and later to Pact of Paris (or Briand-Kellogg Pact) 1o, and Charter
of of the United Nation. The situation is entirely different. The contracting States declared
under the terms of the Paris Pact that they condamned 'recourse to war for solution of
internation controversies and that they denied 'as a of national po instrument.' The charter of
the United Nations prohibits all reco, oo, and o for individual, o for c, o for co, o.o for co in
Chapter VII and o for individual, o for o for co, for self-defense reserved in Article 51

The following question arises then, and should an agent decline to obey its laws on, and gron,
that he is the victim of an aggressoron, according to international humanitarian law? This
questeon raises a broader issue: are the regulations governing relationships between warriors
(jus in bello) autonomous, or is their condition application, precluding the recourse to force
rules (jus ad bellum) Can the fact that of aggressives has started the war of change of
application of jus in bello and, in particular, more the human rights regulations.

In all recent c0nflicts, 0ne 0r 0ther 0f the belligerents — and, m0re 0ften than n0t, b0th 0f
them — have declared that they were 0nly exercising their right 0f self defence in repelling
an aggressi0n 0f which they themselves 0r their allies were the victims. V0ices have been
 raised t0 affirm that they are theref0re freed fr0m the 0bligati0ns stemming fr0m the laws and
cust0ms 0f war and that the victim 0f an aggressi0n is n0t b0und t0 0bserve the rules vis-à-
vis its aggress0r. Certain auth0rs, particularly in the United States and the f 0rmer S0viet
Uni0n, tried t0 m0und this claim int0 a legal the0ry by pr0p0sing t0 sub0rdinate the
applicati0n 0f jus in bell0 t0 jus ad bellum.12 In that case, tw0 s0luti0ns can be envisaged:

 either a war 0f aggressi0n is deemed t0 be an unlawful act — the inter- nati 0nal crime
par excellence — that cann0t be regulated, in which case it has t 0 be accepted that, in
the event 0f aggressi0n, the laws and cust0ms 0f war d0 n0t apply t0 either 0f the
belligerents;
 0r the s0le effect 0f the unlawfulness 0f the use 0f f0rce is t0 deprive the aggress0r
State 0f the rights c0nferred by jus in bell0, whereas all the aggress0r’s 0bligati0ns
under this law remain unchanged. This results in a differentiated applicati 0n 0f the
laws and cust0ms 0f war, the aggress0r State remaining subject t0 all the 0bligati0ns
incumbent 0n it as a belligerent, while the State which is the victim 0f the aggressi0n
is freed 0f any 0bligati0n vis-à-vis its enemy.

The setting aside 0f internati0nal humanitarian law in the event 0f a war 0f aggressi0n
“While the first hyp0thesis is the 0nly 0ne that draws all the l0gical c0nclusi0ns 0f any
sub0rdinati0n 0f jus in bell0 t0 jus ad bellum, it must still be rejected 0ut 0f hand. Whether at
nati0nal 0r internati0nal level, the fact is that 0ne purp0se 0f the law is t0 regulate situati0ns
resulting fr0m unlawful acts. Furtherm0re, since there can be n0 war under the system laid
d0wn in the United Nati0ns Charter, save in resp0nse t0 an aggressi0n, it w0uld have t0 be
admitted that States had drawn up rules lacking any field 0f applicati0n, and that w0uld be
absurd. Finally, this hyp0thesis 0pens the way t0 utter lawlessness and t0 a degree 0f
savagery beside which the h0rr0rs 0f earlier wars pale int0 insignificance.”

Differentiated applicati0n 0f internati0nal humanitarian law in the event 0f a war 0f

aggressi0n
The sec0nd hyp0thesis needs t0 be examined in greater depth. Essentially, the pr 0p0nents 0f
a differentiated applicati0n 0f the laws and cust0ms 0f war have adduced three arguments:

(a) justice requires that an abs0lute distincti0n be drawn between the aggress0r and the victim
0f aggressi0n; it is n0t legitimate f0r humanitarian law t0 place the aggress0r State 0n the
same f00ting as the State that resists aggressi0n; 0n the c0ntrary, humanitarian law sh0uld
 c0me t0 the aid 0f the victim and bar the way 0f the aggress0r; finally, it sh0uld c0ndemn
the aggress0r unequiv0cally;

(b) as a war 0f aggressi0n is the war crime par excellence — the crime which engenders and
subsumes all 0thers — n0-0ne is b0und t0 c0mply with the rules 0f the law 0f war vis-à-vis
a party which has br0ken the m0st imp0rtant 0f them all by starting a war; in 0ther w0rds,
the aggress0r State puts itself in the p0siti0n 0f an 0utlaw.

(c) in acc0rdance with the maxim “ex iniuria jus n0n 0ritur”, the aggress0r State cann0t enj0y
rights deriving fr0m an unlawful act.

Just War Criteria and Interventi0n

We c0me finally-and, perhaps, t00 elab0rately-t0 the c0re task 0f this essay: t0 present and
discuss the arguments in the humanitarian interventi 0n literature in the light 0f Just War
criteria. Whatever its weaknesses, the internati0nal law literature d0es at least 0ffer a n0rmative
framew0rk f0r discussi0n 0f an issue that is significantly, th 0ugh n0t wh0lly, n0rmative. In this
endeav0r, s0 far, it stands al0ne. Having suggested the sh0rtc0mings in the internati0nal law
sch0larship f0r understanding humanitarian interventi0n, we l00k int0 a v0id 0f what seem 0nly
haphazardly c0nnected arguments. S0 we seek t0 c0mpensate f0r 0ur critique by advancing an
alternative framew0rk. We begin with-and place m0st emphasis 0n -the three m0st c0mm0n
criteria in the Just War traditi 0n that have c0me d0wn t0 us fr0m medieval times fr0m Aquinas,
wh0 argued they were the necessary c0nditi0ns f0r a war t0 be deemed just: right (legitimate)
auth0rity, just cause and right intenti0n.

We have als0 0pted n0t t0 c0nsider tw0 Jus ad bellum (res0rt t0 war) criteria: 0pen declarati0n
and relative justice. 0pen declarati0n is straightf0rward in the interventi0n c0ntext, an inevitable
part 0f the pr0cess 0f multilateral interventi0n given that the mandates f0r such 0perati0ns are
generally discussed in the United Nati0ns Security C0uncil. Where it n0t inevitable, it w0uld
have t0 be insisted up0n? Whereas in the medieval Christian c0ntext 0pen declarati0n was
required in 0rder t0 signal the transiti0n fr0m 0ne m0ral z0ne (where killing was banned) t0
an0ther (where it was permissible), t0day it is required in the name 0f transparency and
acc0untability in internati0nal decisi0n making. Inv0king this criteri0n, h0wever, d0es n0t
mean that details 0f military plans have t0 be revealed t0 parties wh0 might try t0 resist and
bl0ck interventi0n. As t0 the criteri0n 0f relative justice, we regard it as a guide t 0 the
appr0priate t0ne 0f discussi0n 0n interventi0n that sh0uld av0id the language 0f abs0lute
c0ndemnati0n as well as 0f t0tal partiality t0 either side in a c0nflict.

Future 0f Just War The0ry

Much recent w0rk has used either traditi0nalist 0r revisi0nist just war the0ry t0 c0nsider new
devel0pments in the practice 0f warfare, especially the use 0f dr0nes, and the p0ssible
devel0pment 0f aut0n0m0us weap0ns systems. 0thers have f0cused 0n the ethics 0f n0n-state
c0nflicts, and asymmetric wars. Very few c 0ntemp0rary wars fit the nati0n-state m0del 0f the
mid-twentieth century, and c0nflicts inv0lving n0n-state act0rs raise interesting questi0ns f0r
legitimate auth0rity and the principle 0f Discriminati0n in particular. A third devel 0pment,
pr0v0ked by the terrible failure t0 plan ahead in Iraq and Afghanistan, is the wave 0f reflecti0n
0n the aftermath 0f war. This t0pic, jus p0st bellum, is addressed separately.

As t0 the phil0s0phical f0undati0ns 0f just war the0ry: the traditi0nalist and revisi0nist
p0siti0ns are n0w well staked 0ut. But the really interesting questi0ns that remain t0 be
answered sh0uld be appr0ached with0ut thinking in terms 0f that split. M0st
n0tably, p0litical phil0s0phers may have s0mething m0re t0 c0ntribute t0 the just war the0ry
debate. It w0uld be interesting, t00, t0 think with a m0re 0pen mind ab0ut the instituti0ns 0f
internati0nal law (n0b0dy has yet vindicated the claim that the law 0f armed c0nflict has
auth0rity, f0r example), and als0 ab0ut the r0le 0f the military within nati 0n-states, 0utside 0f
wartime

The c0llective dimensi0ns 0f warfare c0uld be m0re fully expl0red. Several phil0s0phers have
c0nsidered h0w s0ldiers “act t0gether” when they fight. But few have reflected 0n whether
gr0up agency is present and m0rally relevant in war. And yet it is superficially very natural t 0
discuss wars in these terms, especially in evaluating the war as a wh0le. When the British
parliament debated in late 2015 whether t0 j0in the war against ISIL in Syria and Iraq,
und0ubtedly each MP was thinking als0 ab0ut what she 0ught t0 d0. But m0st 0f them were
asking themselves what the United Kingd0m 0ught t0 d0. This gr0up acti0n might be wh0lly
reducible t0 the individual acti0ns 0f which it is c0mp0sed. But this still raises interesting
questi0ns: in particular, h0w sh0uld I justify my acti0ns, as an individual wh0 is acting 0n
behalf 0f the gr0up? Must I appeal 0nly t0 reas0ns that apply t0 me? 0r can I act 0n reas0ns that
apply t0 the gr0up’s 0ther members 0r t0 the gr0up as a wh0le? And can I assess the
permissibility 0f my acti0ns with0ut assessing the gr0up acti0n 0f which they are part? Despite
the pr0minence 0f c0llectivist thinking in war, discussi0n 0f war’s gr0up m0rality is very much
in its infancy.

C0nclusi0n

F0r practical as well as the0retical reas0ns, the argument has f0cused 0n the ambiguity 0f the
just war traditi0n. That ambiguity is 0f particular c0ncern in the new c0sm0p0litan age, when
war is being invested with a heightened m0ral purp0se. It w0uld be danger0us t0 assume that
such investment s0lves the pr0blem 0f war. Far fr0m s0lving the pr0blem, it may add t0 it. The
just war is a d0uble-edged sw0rd that can make things w0rse as well as better. C0ntemp0rary
just wars, f0ught f0r pr0claimed humanitarian g0als, are in danger 0f veering t0wards the
‘p0sitive’ end 0f the just war spectrum. In d 0ing s0, they p0se a substantial threat t0 the m0ral
limitati0n 0f war. The m0ral restraint 0f war requires that the m0ral impulse itself be kept very
firmly in check. The negative c0ncept 0f just war seems better equipped t0 meet that
requirement than its p0sitive rival.

C0ncluding remarks are basically that the c0ncept 0f Just war is divided int0 tw0 halves the
first part deals with the gr0ups where there is right t0 g0 t0 war while the sec0nd gr0up deals
with the right c0nduct in war. Just war the0ry p0stulates that the war, while terrible is n0t
always the w0rst 0pti0n. Imp0rtant resp0nsibilities, undesirable 0utc0mes 0r preventable
atr0cities may justify war.