Este estudio pretende tratar el fundamento jurídico del conflicto armado, sus efectos globales y las reacciones al mismo partiendo de una base histórica y filosófica. Desde el origen de las sociedades hasta la sofisticación tecnológica, la guerra es inherente al ser humano. El cómo los Estados y Organizaciones Internacionales interactúan al respecto ha variado con la evolución de los conflictos y las sociedades. Se plantea si el restablecimiento o garantía de un Estado de Derecho, con especial relevancia de un Poder (...) Judicial como su piedra angular; continúa siendo causa y fin de una intervención armada y si es asumible y justificable el conflicto armado bajo el amparo de una organización internacional que trasciende a los Estados. (shrink)

In order to clarify whether Rawls is more or less cosmopolitan than Kant, we carry out a comparative analysis between his general proposals for the organization of international relations. Likewise, seeking to clarify the distance between cosmopolitanism, pacifism and ius internationalism, the ius ad bellum proposals of both authors are particularly analyzed in the war-and-peace debate context. On the one hand, as a result of the first analysis, different commonly unnoticed logical coincidences between the postulates of Kant and Rawls (...) are highlighted. On the other hand, after the conclusions of the second analysis and taking as a criterion the causes that both authors admit as just for war, a proposal of an ideal type of cosmopolitan ius ad bellum is also provided. (shrink)

Just War Theory debates discussing the principle of the Moral Equality of Combatants involve the notion of Invincible Ignorance; the claim that warfi ghters are morally excused for participating in an unjust war because of their epistemic limitations. Conditions of military deployment may indeed lead to genuinely insurmountable epistemic limitations. In other cases, these may be overcome. This paper provides a preliminary sketch of heuristics designed to allow a combatant to judge whether or not his war is just. It delineates (...) the sets of relevant facts uncontroversially accessible and inaccessible to contemporary professional soldiers. Relevant facts outside these two sets should by default be treated as inaccessible until proven otherwise. Even such a rudimentary heuristic created in this way demonstrates that practical recommendations of MEC-renouncing Just War Theory are not too challenging to follow and still signifi cantly impact a compliant combatant’s behavior. (shrink)

Following an introduction to international law regarding the use of force, the author examines the impact of post-9/11 practice, focusing on the right of self-defence. After critically reviewing operation Enduring Freedom, the U.S. National Security Strategy, the ‘Yemen strike’ and the war in Iraq, including the justifications offered for these actions and the international responses to them, as well as developments in NATO and the EU, he concludes that there is a tendency towards a broader interpretation of the right of (...) self-defence, in that this right may be extended to attacks by non-state actors and such attacks may be more easily attributed to states that support such actors. However, the author submits that this interpretation has not yet been sufficiently affirmed to have changed the law, that the rules of the UN Charter still accurately reflect the law and that there is insufficient support for a right of anticipatory or pre-emptive self-defence. Finally, he recommends strengthening the effectiveness of the Security Council and regional organizations such as the EU and NATO to avoid the risk of a true deregulation of the use of force. (shrink)

Ese artículo presenta una síntesis de las teorías normativas de la guerra justa, mostrando los consensos teóricos existentes en las tres categorías de la ius ad bellum (la justicia de la guerra), ius in bello (la justicia en la guerra) y ius postbelum (justicia de la postguerra). Posteriormente, se desarrollan estos conceptos para el caso de una guerra real.

The paper examines the justification of warfare. The main thesis is that war is very difficult to justify, and justification by invoking “justice” is not the way to succeed it. Justification and justness (“justice”) are very different venues: while the first attempts to explain the nature of war and offer possible schemes of resolution (through adequate definitions), the second aims to endorse a specific type of warfare as correct and hence allowed – which is the crucial part of “just war (...) theory.” However, “just war theory,” somewhat Manichean in its nature, has very deep flaws. Its final result is criminalization of war, which reduces warfare to police action, and finally implies a very strange proviso that one side has a right to win. All that endangers the distinction between ius ad bellum and ius in bello, and destroys the collective character of warfare (reducing it to an incomprehensible individual level, as if a group of people entered a battle in hopes of finding another group of people willing to respond). Justification of war is actually quite different – it starts from the definition of war as a kind of conflict which cannot be solved peacefully, but for which there is mutual understanding that it cannot remain unresolved. The aim of war is not justice, but peace, i.e. either a new articulation of peace, or a restoration of the status quo ante. Additionally, unlike police actions, the result of war cannot be known or assumed in advance, giving war its main feature: the lack of control over the future. Control over the future, predictability (obtained through laws), is a feature of peace. This might imply that war is a consequence of failed peace, or inability to maintain peace. The explanation of this inability (which could simply be incompetence, or because peace, as a specific articulation of distribution of social power, is not tenable anymore) forms the justification of war. Justice is always an important part of it, but justification cannot be reduced to it. The logic contained here refers to ius ad bellum, while ius in bello is relative to various parameters of sensitivity prevalent in a particular time (and expressed in customary and legal rules of warfare), with the purpose to make warfare more humane and less expensive. (shrink)

Avatar is laden with images and themes of religion and spirituality. Theology also forms the base of “just war theory.” The principles of just war theory were adapted by early Christian thinkers from the natural law theory developed by the Stoics – a group of ancient philosophers who believed that we could look to nature for guidance about what is right and good for human beings. The early Christians turned to just war theory to help resolve a quandary. Just war (...) theory includes two related philosophical doctrines. ius ad bellumis about when it's just to go to war, and ius in bello is about what it's just or unjust to do in the conduct of a war. Ius ad bellum shows us why Selfridge's authorization of force to displace the Omaticaya is wrong, while ius in bello exposes Quaritch's battlefield strategies and tactics as inhumane and indefensible. (shrink)

The idea of “just war” is not alien to Chinese thought. The term “yi zhan” (usually translated as “just war” or “righteous war” in English) is used in Mencius, was renewed by Mao Zedong, and is still being used in China today (zhengyi zhanzheng). The best place to start exploring this Chinese idea is in the enormous Art of War corpus in premodern China, of which the Seven Military Classics is the best representative. This set of treatises served as the (...) military bible in imperial China from 1078 CE. Ideas analogous to ius ad bellum and ius in bello can be found in these texts. These norms are present in these military texts, elaborated in subsequent commentaries, understood as a matter of fact in Chinese political history, and recently and briefly acknowledged by a few Chinese military scholars in the mainland and in Taiwan. This Chinese just war ethics has its distinctiveness vis-à-vis James Turner Johnson's articulation of the Western classic view. It differs from Johnson's claims that military lethal violence is intrinsically morally neutral and that last resort is not a primary consideration in deciding for war. Contemporary Chinese People's Liberation Army (PLA) military publications show that the PLA understands the general idea of just war, but they acknowledge only the ad bellum part, not the in bello components. (shrink)

The paper examines the justification of warfare. The main thesis is that war is very difficult to justify, and justification by invoking “justice” is not the way to succeed it. Justification and justness are very different venues: while the first attempts to explain the nature of war and offer possible schemes of resolution, the second aims to endorse a specific type of warfare as correct and hence allowed – which is the crucial part of “just war theory.” However, “just war (...) theory,” somewhat Manichean in its nature, has very deep flaws. Its final result is criminalization of war, which reduces warfare to police action, and finally implies a very strange proviso that one side has a right to win. All that endangers the distinction between ius ad bellum and ius in bello, and destroys the collective character of warfare. Justification of war is actually quite different – it starts from the definition of war as a kind of conflict which cannot be solved peacefully, but for which there is mutual understanding that it cannot remain unresolved. The aim of war is not justice, but peace, i.e. either a new articulation of peace, or a restoration of the status quo ante. Additionally, unlike police actions, the result of war cannot be known or assumed in advance, giving war its main feature: the lack of control over the future. Control over the future, predictability, is a feature of peace. This might imply that war is a consequence of failed peace, or inability to maintain peace. The explanation of this inability forms the justification of war. Justice is always an important part of it, but justification cannot be reduced to it. The logic contained here refers to ius ad bellum, while ius in bello is relative to various parameters of sensitivity prevalent in a particular time, with the purpose to make warfare more humane and less expensive. (shrink)

This article examines the moral issues of guerrilla, and counter-guerrilla, warfare. Just war theorists who have studied the phenomenon tend to claim that the guerrilla tactic of wearing civilian clothes and hiding among the civilian population is rather difficult, if at all, to reconcile with the ius in bello principle of discrimination (the principle according to which combatants have to distinguish between combatants and non-combatants and may only target the former “directly”). I argue that this ever-repeated assessment is profoundly confused. (...) I also argue, conversely, against the claim that this guerrilla tactic makes it somehow easier for the counter-insurgents to comply with the principle of discrimination, thereby easily allowing them to resort to tactics like area bombardment. Finally, I demonstrate that, contrary to common opinion, guerrilla war does not face greater difficulties in complying with ius ad bellum requirements than conventional or counter-insurgency war does. (shrink)

In the 17th and 18th centuries, the doctrine of just war was one of the most popular theories in international law. According to this doctrine, the right to war is an integral part of natural law and, under specific circumstances, morally justified. To my mind, Kant was a fervent critic of the theory of just war. He critically reformulates the rational and normative principles of right in a way that leaves no place for war as a legitimate procedure to resolve (...) a conflict between states. In section, I shall analyze the fundamental principles of ius gentium, in particular, the duty to leave the state of nature at the international level and the juridical form that the association between states must adopt. The exit of the state of nature between nations must generate an international legal framework that not only protects human rights but also safeguards the sovereignty of the peoples. In section, I shall examine Kant’s critique of the doctrine of just war in Zum ewigen Frieden and in the Rechtslehre, exploring why the idea of an ius ad bellum is incompatible with the critical reformulation of the right of nations proposed there. (shrink)

Zu den bedeutendsten Leistungen der Friedensschrift Kants für die Entwicklung der Völkerrechtsidee gehört die Zurückweisung der bisherigen Leitvorstellung eines ius ad bellum. Unmißverständlich formuliert er: „Bei dem Begriffe des Völkerrechts, als eines Rechts zum Kriege, läßt sich eigentlich gar nichts denken“ . Eine internationale Rechtsordnung müsse dem Ziele dauerhafter Friedenssicherung dienen, und in einem Bund freier Völker soll dieser zwischenstaatliche Konsens institutionalisiert werden.

Agresja putinowskiej Rosji na Ukrainę postawiła wobec dramatycznego wyzwania nobliwą doktrynę non‑violence. Zgodnie ze sformułowanym w latach 80. XX wieku wywodem antysowieckiego dysydenta rosyjskiego Władimira Bukowskiego to nie wojna jest przeciwieństwem pokoju, lecz przemoc, a do jej powstrzymania niekiedy konieczny jest zbrojny opór, czyli prowadzenie wojny. Według Clausewitza do wywołania stanu wojny nie wystarczy militarna agresja, lecz konieczne jest przeciwstawienie się jej, czyli aktywna obrona ze strony napadniętego, chcąc zatem uniknąć wojny, nie należy stawiać oporu agresorowi. Agresja na Ukrainę złamała (...) dwie zasady prowadzenia wojen: ius ad bellum i ius in bello. Według typologii Michaela Walzera jest to zatem niesprawiedliwa wojna prowadzona niesprawiedliwymi metodami, więc przeciwstawianie się jej, także militarne, jest prowadzeniem wojny sprawiedliwej. Zgodnie z analizą Slavoja Žižka tworzy to klarowną z etycznego punktu widzenia sytuację, zło jest łatwo identyfikowalne, a przeciwstawienie się mu stanowi etyczny obowiązek. Według filozofa Étienne’a Balibara w tej sytuacji pacyfizm nie jest żadną opcją. Helplessness as Acquiescence to Evil The aggression of Putin’s Russia towards Ukraine has posed a dramatic challenge to the noble doctrine of non-violence. In line with an argument made in the 1980s by anti-Soviet Russian dissident Vladimir Bukovsky, war is not the opposite of peace; instead, violence is. Armed resistance, or warfare, is sometimes necessary to stop violence. According to Clausewitz, military aggression is insufficient to evoke a state of war; in its place, it is necessary to oppose aggression, i.e., actively mount a defense by the attacked party, thereby avoiding war requires not resisting the aggressor. However, the aggression against Ukraine broke two tenets of warfare: ius ad bellum and ius in bello. According to Michael Walzer’s typology, it is an unjust war waged by unjust methods, so resisting it, including militarily, amounts to waging a just war. According to Slavoj Žižek’s analysis, this establishes an ethically clear situation: evil is easily identifiable, and opposing it is an ethical duty. According to the philosopher Étienne Balibar, pacifism is not an option in such a situation. (shrink)

This paper discusses the novel versions of the right intention and proportionality conditions in the ius ad bellum proposed in Chapter 3 of Frances Kamm’s Ethics for Enemies. It argues that Kamm is right to weaken the right intention condition to require, not positively intending a war’s just cause, but only having that cause’s presence be a necessary condition for war, but wrong to place no limits on why one makes a just cause necessary. It then argues that the (...) weakening she proposes of Jeff McMahan’s very strict interpretation of proportionality does not go far enough. She argues that “conditional just aims” such as disarming an aggressor and deterring future aggression can count toward a war’s proportionality only if they will follow from harms needed to achieve the war’s initial just cause but not if they require additional harms. The paper argues that such aims can justify additional harms. (shrink)

The subject of this article is the Orthodox Christianity’s approach to war. Christians of other denomination have developed an elaborate theory of war, so-called “Just War Theory” (JWT), which has also been accepted by non-Christians and even secular thinkers regarding the nature and justification of war. A vast literature has been produced in a dire attempt to render perfect the world by insisting on the claim that war is the act of punishment for breaking the law. The result is an (...) epistemological ease from which everything seems evident in advance including who is right and who at fault, who is and who is not favored by God. By removing from war an essential feature – that it is a form of conflict – JWT takes away the concept of reciprocity and introduces an in advance declared inequality which enables removal of uncertainty about the war’s outcome. In Orthodox Christianity, the situation is different. With still live debate whether to persevere or abandon original Christian pacifism, for Orthodox Christianity, war is always a combination of cataclysm and temptation and far less Manichean than anything present in JWT. The aim of war is peace; but, however necessary, justice is an insufficient condition for justification. The difference between “justness” and “justification” is preserved through the uncertainty whom God, at war’s end, loves more, because both victors and vanquished remain and continue to be in His grace. Losing a war, as such, does not turn the vanquished into criminals, nor does victory give the vanquisher the right of revenge for defending oneself. The latter approach to war has significant potentialities: preserving the distinction of ius ad bellum and ius in bello, preserving reciprocity, mutual respect and trust, impossibility of incrimination of war per se, the possibility of honorable defeat, etc. (shrink)

Since its early origins, just war discourse has had two contrasting functions: it has sought to speak law and morals to power, and thus to restrain the use of force, but it has also served to authorize and legitimize the use of force. Critical voices have recently alerted to the increasing use of authorization and legitimization in a broader context of hegemonic and unilateral appropriations of just war discourse. In this article, I show that such critiques of just war have (...) a long history, and reconstruct the powerful challenge that two of the foremost international jurists of the Enlightenment—Christian Wolff and Emer de Vattel—mounted against early modern accounts of just war. Their neglected theory of “regular war” helps us to recover a sense of what a truly pluralist and anti-hegemonic doctrine of ius ad bellum may look like, and reveals a deep tension in the just war tradition between the criteria of political authority and just cause. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Handbook of Roman Catholic Moral Terms by James T. Bretzke, SJJohn J. FitzgeraldHandbook of Roman Catholic Moral Terms James T. Bretzke, SJ washington, dc: georgetown university press, 2013. 260 pp. $24.95The Handbook of Roman Catholic Moral Terms continues the recent sequence of concise dictionaries published by Georgetown University Press, including the Key Words volumes for various religions and A Handbook of Bioethics Terms. James Bretzke’s contribution is especially (...) welcome as it is the first such English-language reference work in Catholic moral theology since the Second Vatican Council. The author covers fundamental, social, medical, and sexual issues while providing frequent cross-references and further readings. Special attention is also given to scripture and ethics, the history of moral theology, the nature and authority of the Magisterium, canon law, Protestant thought, and moral philosophy. The longest entries are those on dissent (67–70), Humanae vitae (111–16), infallibility (122–24), and the Pontifical Commission on Births (180–82), which in advance of Humanae vitae produced the well-known Majority Report favorable to the use of contraception. The sections on these vexed issues delve into some of the relevant arguments from different sides.Given its space constraints as a portable paperback, the Handbook covers an impressive amount of historical and contemporary ground. The eight-hundred-plus entries are generally clear and irenic, and often illuminating. Consider the page-long entry on just war theory (131–32), which succinctly summarizes its development from Augustine to the present-day Catechism, calls attention to the importance of ius post bellum alongside the traditional categories of ius ad bellum and ius in bello, and outlines four possible critiques of the theory. Particularly helpful throughout are the various examples the author provides. For instance, in the course of explaining that moral norms and human laws may not bind at all times, he suggests that it is justifiable to forgo the duty to sustain life when this can only be done through extraordinary means (140), or to exceed the speed limit in case of a medical emergency (15, 81; see also 183 and 239–40 for other relevant examples).On the other hand, a few key topics are either overlooked or not fully dealt with. This book rightly highlights ecumenical ethics (77–78 and passim), but there is essentially no coverage of Eastern Orthodoxy and very little on pre-twentieth-century Protestant thought. In addition, considering the prevalence of a “morality-of-happiness” perspective in historical and modern-day Catholic thought, and given Bretzke’s own thorough attention to law, the book might have incorporated separate entries on happiness and grace, law’s complement. [End Page 221] (To his credit, he does mention grace several times—a fact that the preface points out—and includes the beatific vision, Gloria Dei vivens homo, and Summum Bonum among his definitions.) And speaking of law, the author’s treatment of the divine law is slightly confusing; he appears to alternately conflate it with and differentiate it from both the eternal law and the law of the Old and New Testaments (70–71, 136, 138).In the end, despite Bretzke’s best efforts to remain above the ideological frays of moral theology, one’s overall evaluation of his book may depend somewhat on one’s place within them. Some will chafe at his suggestions that contraception (116), certain forms of assisted reproduction (198–99), and artificial nutrition and hydration that sustain those in a persistent vegetative state (10, 224–25) remain open questions to an extent. Others will point out, as Bretzke does, that Church doctrine has previously undergone substantial development on other issues, such as religious freedom (65–66, 151, 193, 229) and the charging of interest (107, 241). What most should be able to agree upon is that in many respects the Handbook is a valuable resource, one that will help professionals and students alike come to a much better understanding of the key terms and debates within the field. [End Page 222]John J. FitzgeraldSt. John’s University (New York)Copyright © 2015 Society of Christian Ethics... (shrink)

A comparison between the Prolegomena of Chapter II of De iure praedae and the Prolegomena of De iure belli ac pacis leads to the conclusion that the ideas of Grotius on legal systematization have changed considerably between 1604 and 1625. Whereas Grotius starts in IPC with general principles with a rather unclear distinction between leges and regulae, in IBP he gives first the philosophical and theological basis of international law, intertwined by a concise set of general legal rules, mostly derived (...) from Roman law after its reception in Western Europe. The general outlines of legal systematization in the early-modern period are expounded. In the attempts of legal systematization the concept of subjective rights is essential. These subjective rights are not, as is sometimes assumed, a medieval renewal of legal technique, but can be found essentially already in classical Roman law of the first centuries AD.The institutional system is not yet visible in De iure praedae, it might be different for De iure belli ac pacis. Significant here are possibly the expressions ius ad bellum and ius in bello. (shrink)

In the article, I examine the relevance of Just War Doctrine to contemporary conflicts. Just War Doctrine, which grew out of Western Christian thinking, presupposes that evil might be confronted with force, if there is no alternative way to restore a just order. But modern trends call into question the certainty and universality of this doctrine. On the one hand, ideas of moral relativism and comparative justice have become more widespread, potentially undermining the use of the notions “just” and “justified” (...) in relation to military conflicts. On the other hand, the nature of war is changing, as warfare is no longer only kinetic in character. I offer examples of how the evolving character of warfare challenges the traditional understanding of Just War Doctrine. For example, there is the growing threat of cyber warfare, but the ethical criteria for its use are not defined. In relation to Just War Doctrine, questions of whether and when pre-emptive cyber attack is permissible arise, what should constitute legitimate targets of cyber warfare and to what degree collateral damage could be acceptable. Another challenge to the traditional understanding of Just of War Doctrine was the putative doctrine of humanitarian intervention.Prima facie,humanitarian interventions do not comply withius ad bellumcriteria of Just War Doctrine, because of the absence of a direct military threat to the intervening state. The justification of humanitarian intervention is based on the assertion of an intolerable violation of accepted values. The weakness of such approach, as discussed in the article, is that it implicitly assumes that one protagonist’s values are superior to others. A further example of emerging challenges to Just War Doctrine is the phenomenon of hybrid war, a term used to describe a type of conflict that is multi-faceted and in which kinetic warfare is not dominant. The orchestration of several strands of conflict, each designed to be below the threshold to provoke a military response, exploits the absence of legal and ethical norms regulating such activity. I conclude the article by suggesting that, firstly, for Just War Doctrine to remain relevant, it should be expanded to include harms caused by non-kinetic actions, and, secondly, the distinctions between the states of war and peace should be redefined to reflect the changing character of war more accurately. (shrink)

Jeff McMahan, one of the leading contemporary writers on ‘just war thinking’, argues in the book under review, Killing in War, that one of the central tenets of the ‘ius in bello’, namely the moral equality of combatants, is both conceptually and morally untenable. This results from a reflection upon and a departure from two basic assumptions in Walzer’s work, namely the idea that war itself isn’t a relation between persons, but between political entities and their human instruments and the (...) idea that the ‘ius ad bellum’ and ‘ius in bello’ are and should be kept distinct. This book merits serious reflection. However, the disadvantages of McMahan’s position are obvious. If the rights of combatants during war depend on the justice of their cause, the immunity of the civilians on the side of the supposed ‘unjust’ enemy is seriously endangered. (shrink)

Wars have been entered into as a means of gaining property, taking slaves and dominating and controlling peoples. The pacifist claims that no form of war can ever be justified. By contrast, just war theory holds that it is possible for a war to be morally justified, an idea that underlies much international law, as can be seen in the Geneva Conventions. Teichman introduces us to such thinkers as Aristotle, Cicero, Augustine, Aquinas, Hugo Grotius, John Rawls and Elizabeth Anscombe on (...) the very idea of a just war. (shrink)

Many nongovernmental forms of business regulation aim at reducing ethical violations in commerce. We argue that such nongovernmental ethics standards, while often laudable, raise their own ethical challenges. In particular, when such standards place burdens upon vulnerable market participants (often, though not always, SMEs), they do so without the backing of traditional legitimate political authority. We argue that this constitutes a structural analogy to wars of humanitarian intervention. Moreover, we show that, while some harms imposed by such standards are desirable, (...) others are best thought of as a form of collateral damage. We thus look at the well-developed literature on just war theory for inspiration and find that the principles of jus ad bellum and jus in bello contain many insights that can be fruitfully adapted to the case of nongovernmental standard-setting. Consequently, we propose the Ius ad Normam—a set of principles that should guide would-be standard-setters in assessing whether imposing those burdens is ethically justifiable in particular cases. We also discuss how powerful multinational businesses often act simultaneously as standard-takers and standard-setters and explore the normative implications of this dual role. (shrink)

The just-war framework neatly distinguishes between jus ad bellum, the criteria that address political leaders’ decisions for waging war, and jus in bello, the criteria that address soldiers’ condu...

In “Religion, Violence, and Human Rights: Protection of Human Rights as Justification for the Use of Armed Force,” James Johnson discusses an important dilemma for contemporary society: when should transnational military force be permitted to protect human rights? Professor Johnson uses the relatively recent doctrine of a “responsibility to protect” as the centerpiece of his paper, characterizing it as a reaction to legal concepts that emerged in the “Westphalian system.” Yet the doctrine, at least as it relates to the use (...) of military force, is not a reaction to that system but, rather, to the relatively recent system of the UN Charter, particularly its relegation to the Security Council of the exclusive authority to determine when military force should be used for purposes other than self-defense. When the Cold War ended and the Security Council failed to act to protect human rights, the doctrine was born. (shrink)

In its classic form the doctrine of the just war, whether enunciated by theological or secular theorists, had two main components: the jus ad bellum, which defined the morally acceptable limits within which a sovereign could and even should go to war, and the jus in bello, which set limits to the conduct of war. By contrast, today the problem of just limitation of war is addressed almost entirely by legal and theoretical attempts to refine the jus in bello, (...) while there exists only a morally truncated and politically ineffective jus ad bellum. What is the contemporary status of the jus ad bellum and what makes it politically and morally inadequate are the issues I wish to address directly in this paper. Indirectly, however, I wish to speak to more fundamental questions: what are the ingredients of a moral doctrine limiting resort to war, and what is required for this to be politically workable as well? The final goal, which is far beyond the scope of this paper, is to reconstruct for our own time a doctrine on the just limitation of war which would restore the dual thrust of just war doctrine in its classic form. (shrink)

In this contribution, I defend the standard list of jus ad bellum principles. In The Ethics of War and the Force of Law: A Modern Just War Theory, Uwe Steinhoff endorses only three principles of jus ad bellum (right intention, just cause, and proportionality) and claims that the others are redundant. I argue that, although fundamentally all jus ad bellum principles can be reduced to proportionality, in practice it is vital to retain the main jus ad (...) class='Hi'>bellum criteria as separate principles. (shrink)

War is bad for the environment, yet the environmental ramifications of warfare have not been widely addressed by just war theorists and revisionist philosophers of war. The law and legal scholars have paid more attention to protecting nature during armed conflict. But because the law focuses invariably on rules mitigating the conduct of hostilities rather than on objective justice of cause, environmental jus ad bellum has been explored even less extensively than environmental ethics in war. Setting out with the (...) presumption against the use of force and its exceptions, this article considers whether environmental harm can trigger a new justification for war, at whose behest, and what might be a proportionate response to aggressive or negligent harm to nature. Force is clearly justified against military attacks. Where environmental harm is not caused by military aggression, proportionality points towards a response short of war. Full‐scale warfare will likely be counterproductive in protecting nature. This is less true if war is fought by drones destroying specific targets, or by cyber‐war, or by alternatives (or supplements) to war such as boycotts, ‘lawfare’, and ‘information/media warfare’. Responding in ways that minimize harm to nature also helps demonstrate ‘right intention’. (shrink)

In the preface of the 2006 edition ofJust and Unjust Wars, Michael Walzer makes an important distinction between, on the one hand, “measures short of war,” such as imposing no-fly zones, pinpoint air/missile strikes, and CIA operations, and on the other, “actual warfare,” typified by a ground invasion or a large-scale bombing campaign. Even if the former are, technically speaking, acts of war according to international law, he proffers that “it is common sense to recognize that they are very different (...) from war.” While they all involve “the use of force,” Walzer distinguishes between the level of force used: the former, being more limited in scope, lack the “unpredictable and often catastrophic consequences” of a “full-scale attack.” Walzer calls the ethical framework governing these measuresjus ad vim, and he applies it to state-sponsored uses of force against both state and nonstate actors outside a state's territory that fall short of the quantum and duration associated with traditional warfare. Compared to acts of war,jus ad vimactions present diminished risk to one's own troops, have a destructive outcome that is more predictable and smaller in scale, severely curtail the risk of civilian casualties, and entail a lower economic and military burden. These factors makejus ad vimactions nominally easier for statesmen to justify compared to conventional warfare, though this does not necessarily mean these actions are morally legitimate or that they do not have potentially nefarious consequences. (shrink)

According to most accounts of just war theory, jus ad bellum is concerned with the morality of initiating war. This gives jus ad bellum a temporal dimension, making it a set of principles that are applied to judge belligerents’ actions at the outset of a war, but that cannot be revisited after a war begins. I challenge this synchronic conception of jus ad bellum by arguing that the considerations the principles of jus ad bellum are meant (...) to judge can, and often do, change substantially over the course of wars. It is inappropriate to determine the ad bellum justice of a war solely based on how the principles of jus ad bellum are satisfied at a war’s outset. Because of the mercurial nature of war, jus ad bellum principles should be applied diachronically, as moral norms that can be used to guide or to judge belligerents even after a war has been initiated. (shrink)

In this article, we focus on the scholarly and policy debate on autonomous weapon systems and particularly on the objections to the use of these weapons which rest on jus ad bellum principles of proportionality and last resort. Both objections rest on the idea that AWS may increase the incidence of war by reducing the costs for going to war or by providing a propagandistic value. We argue that whilst these objections offer pressing concerns in their own right, they (...) suffer from important limitations: they overlook the difficulties of calculating ad bellum proportionality; confuse the concept of proportionality of effects with the precision of weapon systems; disregard the ever-changing nature of war and of its ethical implications; mistake the moral obligation imposed by the principle of last resort with the impact that AWS may have on political decision to resort to war. Our analysis does not entail that AWS are acceptable or justifiable, but it shows that ad bellum principles are not the best set of ethical principles for tackling the ethical problems raised by AWS; and that developing adequate understanding of the transformations that the use of AWS poses to the nature of war itself is a necessary, preliminary requirement to any ethical analysis of the use of these weapons. (shrink)

An examination of the applicability of conventional and revisionist just war principles to the global war on terror.

L ’ histoire du droit de la guerre est marquée par trois temps principaux.Ainsi, de la période antique jusqu ’ au XIX e siècle se déploie la doctrine du justum bellum,visant à moraliser la guerre. Ensuite, au XIX e siècle, l ’ affirmation des souverainetésouvre la porte à la liberté d ’ user de la guerre comme instrument de politique internationale. Enfin, au terme de la Première Guerre mondiale, la volonté d ’ apporter une réponsenormative au recours à la (...) force s ’ est fait jour, donnant naissance au jus ad bellum. Cetteévolution juridique fut accompagnée d ’ une évolution sémantique qui, au XXI e siècle,conduira à une curieuse inversion conceptuelle. (shrink)

Although jus in bello violations create transgressive acts that cause moral injury, the primary consideration in thinking about moral injury should be jus ad bellum. If one is fighting in an ad bellum just war, then transgressive acts can be rationalized in a way that allows for consolation. But for morally sensitive combatants engaged in an ad bellum unjust war, consolation is more difficult since there is no way to justify or rationalize morally problematic deeds committed in (...) defense of an unjust cause. Morally serious combatants should consider the question of jus ad bellum as they struggle to deal with moral injury, along with other values such as obedience and loyalty. Such an inquiry can produce further trauma when the justness of the war is called into question. The paper examines moral injury and justice in war, grounding the discussion in concrete examples: the Second World War, the Vietnam War, and the U.S. war in Iraq. It concludes that in a democracy, ordinary citizens should demonstrate solidarity with combatants suffering moral injury, since those combatants serve in wars—even unjust wars—authorized by us and fought in our names. (shrink)

The relationship between jus ad bellum and jus in bello has been characterized differently throughout European history. There have been three main positions exemplified by Hugo Grotius, Samuel von Pufendorf and Emer de Vattel. They are, first, both the cause and the conduct of warfare must be just; second, the cause must be just, but the conduct of the war is unconstrained in order to achieve the goal of peace; and, third, we must assume justice on both sides, and (...) concentrate on ensuring just conduct in armed conflict. Each attempted to distil customary practices, which they saw in some relation to Natural Law, the ultimate source of moral obligation. Customary international law now serves the function of Natural Law in that even if treatises in which it is articulated lapse the customary constraining precepts remain, and are equally obligatory. It is contended that the relationship between just war and just conduct in war during the 20th and 21st centuries has mirrored the three classic positions, and since 9/11, with the advent of new dimensions to warfare in the war against terror, the relationship is in flux. Since 9/11 there has been a growing emphasis on jus ad bellum and a relative silence on the principles of jus in bello. Implicitly, there is an informal acceptance of something like Pufendorf’s position in which outlaw combatants are deemed to place themselves outside of the protection of customary law. (shrink)

ABSTRACTThis article provides a normative appraisal of the law of military occupation by looking into occupation courts and their legitimacy. It focuses on two cornerstones of the current regulation of war: the principle of equality of belligerents, that is, the potential relevance ofjus ad bellumconsiderations on thein bellorights of occupants, and the normative force of the traditional distinction between states and non-state armed groups, specially in conflicts not of an international character. Against the currently predominant neoclassical position in just war (...) theory, it argues in favor of the moral equality of just and unjust occupants. Against the orthodox position in international law, it advocates the symmetrical treatment of states and non-state actors fighting internal armed conflicts, at least in terms of the rights they may claim on the territories under their control. It concludes by appraising the way in which this moral landscape should be translated into legal norms. (shrink)

According to just war theory, a resort to war is justified only if it satisfies the right intention condition. This article offers a critical examination of this condition, defending the thesis that, despite its venerable history as part of the just war tradition, it ought to be jettisoned. When properly understood, it turns out to be an unnecessary element of jus ad bellum, adding nothing essential to our assessments of the justice of armed conflict.

Today, it is widely held that while authorization may be helpful in assuring that the other jus ad bellum criteria are met, legitimate authority is not itself a condition for just recourse to war....

What one is ultimately interested in with regard to ‘just cause’ is whether a specific war, actual or potential, is justified. I call this ‘the applied question’. Answering this question requires knowing the empirical facts on the ground. However, an answer to the applied question regarding a specific war requires a prior answer to some more general questions, both descriptive and normative. These questions are: What kind of thing is a ‘just cause’ for war (an aim, an injury or wrong (...) suffered, or something different altogether)? I call this ‘the formal question’. Then there is what I call the ‘the general substantive question’. Depending on the previous answer to the formal question, the general substantive question can be formulated as: ‘Which causes are just?’ or as ‘Under what conditions is there a just cause?’ A final question, which has recently elicited increased interest, is what I call ‘the question of timing’: does the ‘just cause’ criterion only apply to the initiation of a war or also to the continuation of a war, that is, can a war that had a just cause at the beginning lose it at some point in its course (and vice versa)? I argue that a just cause is a state of affairs. Moreover, the criterion of just cause is not independent of proportionality and other valid jus ad bellum criteria. One cannot know whether there is a just cause without knowing whether the other (valid) criteria (apart from ‘right intention’) are satisfied; and this account has certain theoretical and practical advantages. As regards the general substantive question, I argue that all kinds of aims can, in principle, be legitimately pursued by means of war, even aims that might sound dubious at first, like vengeance or the search for glory. Thus, the pursuit of such aims does not make the war disproportionate or deprive it of just cause. As regards the question of timing, I argue that the criteria of jus ad bellum apply throughout the war, not only at the point of its initiation. While starting a war at t1 might be justified, continuing it at time t2 might be unjustified (and vice versa), and this insight does not require an addition to jus ad bellum but is already contained in it. (shrink)

In order to address whether states can ever have the proper authority to militarily punish other international agents, I examine three attempts to justify punitive warfare from Augustine, Grotius and Locke for their relevance to both our contemporary international legal and political order and our contemporary security threats from sporadic terrorist or militant violence. Once a plausible model for a state’s valid authority to punish international agents is found, I will consider what punitive aims it can support and what challenges (...) such punitive warfare would have in satisfying the remaining jus ad bellum conditions. (shrink)

The conduct of hostilities is very bad for the environment, yet relatively little attention has been focused on environmental military ethics by just war theorists and revisionist philosophers of war. Contemporary ecological concerns pose significant challenges to jus in bello. I begin by briefly surveying existing literature on environmental justice during wartime. While these jus in bello environmental issues have been addressed only sparsely by just war theorists, environmental jus ad bellum has rarely been tackled within JWT or the (...) morality of war. In line with the theme of this special issue, I focus my discussion of war and the natural environment primarily on the jus ad bellum level. I set out with the presumption against the use of force, and its possible exceptions. The principal question raised is whether environmental harm can trigger a new justification for war. Beyond just cause, I consider what might be a proportionate response to “environmental aggression,” or negligent harm to nature. The use of force is clearly justified in response to military attacks, against the natural environment or otherwise. Where harm to nature or its inhabitants are not caused by military aggression, just war theory criteria point in favor of responding via measures short of war. Finally, I suggest that responding by means that are not themselves harmful to nature serves to fulfill the further jus ad bellum criterion of “right intention.”. (shrink)

Traditional just war theory maintains that the two types of rules that govern justice in times of war, jus ad bellum (justice of war) and jus in bello (justice in war), are logically independent of one another. Call this the independence thesis. According to this thesis, a war that satisfies the ad bellum rules does not guarantee that the in bello rules will be satisfied; and a war that violates the ad bellum rules does not guarantee that (...) the in bello rules will be violated. A controversial implication of this is that it’s possible for soldiers to undergo acts that are instrumental in bringing about victory in an unjust war and yet do nothing morally wrong. Some authors – call them purists – claim that this cannot be correct. Participating in an unjust war is by itself morally wrong. Yitzhak Benbaji has given what is to my mind the strongest defense of the independence thesis. In this paper I critically examine Benbaji’s argument and conclude that it is not persuasive. My argument against Benbaji incorporates the concept of honor in the military. I seek to show, in part, that if the recent literature is correct concerning both the nature of honor and the importance of instilling it in soldiers, then Benbaji hasn’t given the purist a compelling reason to give up her view. (shrink)

This chapter considers how the adoption of autonomous weapons systems (AWS) may affect jus ad bellum principles of warfare. In particular, it focuses on the use of AWS in non-international armed conflicts (NIAC). Given the proliferation of NIAC, the development and use of AWS will most likely be attuned to this specific theater of war. As warfare waged by modernized liberal democracies (those most likely to develop and employ AWS at present) increasingly moves toward a model of individualized warfare, (...) how, if at all, will the principles by which we measure the justness of the commencement of such hostilities be affected by the introduction of AWS, and how will such hostilities stack up to current legal agreements surrounding their more traditional engagement? This chapter claims that such considerations give us reason to question the moral and legal necessity of ad bellum proper authority. (shrink)

In order to address whether states can ever have the proper authority to militarily punish other international agents, I examine three attempts to justify punitive warfare from Augustine, Grotius and Locke for their relevance to both our contemporary international legal and political order and our contemporary security threats from sporadic terrorist or militant violence. Once a plausible model for a state’s valid authority to punish international agents is found, I will consider what punitive aims it can support and what challenges (...) such punitive warfare would have in satisfying the remaining jus ad bellum conditions. (shrink)

James Turner Johnson has played a pivotal role in bringing just war thinking to the fore in international relations. This has brought with it increased interest in the relationship between the just war tradition and the laws of war. Whilst Johnson maintains that the legal rules relating to the conduct of war correspond with the requirements of jus in bello, he is more critical of the legal regime relating to recourse to force and has occasionally argued in favour of the (...) superiority of just war thinking to international law in this area. This article discusses Johnson's thinking on the relationship between ethics and law on recourse to force. It begins by outlining Johnson's approach before suggesting that it is overly critical of the post-1945 order. The paper concludes by calling for reconciliation between law and ethics. (shrink)