When is a War Just?
Jul-20-06 06:03 pm
In a several recent posts-- both on his blog and on TCS-- Steve Bainbridge has been exploring just war doctrine as it relates to Israel's use of force against targets in Lebanon. Responding to Bainbridge's discussion, Jordan Ballor asks:
Must all acts committed in a war meet the just war standard in order for the war to be just? That is, must a just war be perfectly just? If not, must the aggregate of the acts simply weigh in favor of a preponderance of justice? Or must the officially commanded actions and campaigns meet the standard, while the actions of individual soldiers are exempt?
One of the points here is that just war is not simply about justification for war, but also about the way in which that war must be conducted. Just how many unjust acts can a just war encompass before it ceases to be a just war? Does the nuclear bombing of Hiroshima and Nagasaki, or the firebombing of Dresden, for example, mean that World War II is not a just war?Bainbridge responds to these questions, noting:
I think there is more of a firewall between the two strands of just war theory than Ballor's question implies.Here's my take on this:
As Steve indicates, just war doctrine has two distinct component-- the jus ad bellum and the jus in bello. It seems to me that for a war to be deemed "just," it would have to satisfy both components of the doctrine.
My mentor on just war doctrine, the late William V' O'Brien of Georgetown wrote this in his book, Law and Morality in Israel's War with the PLO (1991):
Just war demands more than a plausible just cause. It requires that the just belligerent meet substantially all of the just war conditions: competent authority, substantive just cause, comparative justice, proportionality of means in the light of probability of success, reasonable exhaustion of peaceful alternatives, right intention [jus ad bellum requirements] and compliance with the principles of proportion and discrimination in the conduct of war [jus in bello requirements]. (p. 311) (emphasis added)Thus for O'Brien, for a party to be deemed to be acting justly in a given conflict, it would have to "meet substantially" both the jus ad bellum and jus in bello criteria.
But what does this mean in practice? First, the party initiating the use of force must meet the jus ad bellum criteria. If it is determined that the the recourse to force was unjust, even if there is perfect compliance with proportionality and discrimination in the conduct of war, the war would be unjust. Second, even if the party had the right to initiate force in the first place, for the war to be just, the party must "substantially meet" the requirements of proportionality and discrimination. To me that does not mean that every single use of force by each and every soldier be proportionate or discriminate for the war to be just, but rather that the general policy and practice of the belligerent is to use force in a proportionate and discriminate manner. What worries me about the current Israeli actions in Lebanon is that it appears that there is, in fact, a general policy and practice to use disproportionate force.
About the editor:
Commentary and analysis at the intersection of international law and politics.
9/11 Commission aggression Alien Tort Statute censorship CIA civil liberties civil rights civil war climate change compensation Congress contractors crimes against humanity customary international law cyber security democracy detainee detainees detainess development diplomatic immunity electronic surveillance enemy combatant enemy combatants enviromental law environmental law expropriation extradition foreign law game theory genocide global economy habeas corpus human right human rights humanitarian assistance intelligence International Court of Justice international courts International Criminal Court international criminal law international environmental law international finance international health international law international legal theory international trade just war doctrine law of the sea law of war laws of war military commission military commissions military law multilateral negotiations nationalization natural law North Korea nuclear nonproliferation nuclear proliferation nuclear weapons Outer Space peacekeeping piracy poverty preemption prisoner of war prisoners of war rendition rule of law self-executing separation of powers sovereign wealth fund sovereignty Supreme Court SWF terrorism torture treaties United Nations universal jurisdiction use of force war crimes