Just or Unjust War?

International Law and Unilateral Use of Armed Force by States at the Turn of the 20th Century

Mohammad Taghi Karoubi

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351154666
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This study examines the traditional theory of just war in the light of modern principles of international law relating to the prohibition on the use of force repeatedly stressed by UNGA (United Nations General Assembly) resolutions and accepted by the ICJ (International Court of Justice). The author expresses doubts as to whether actions by some permanent members of the Security Council starting from September 1996 until April 2003, in the Balkans and the Persian Gulf, are legitimate under the just war theory, or any other rules of international law, and analyses in detail the claims made by the allied powers to justify their actions. The book also examines the significance of the transformation in the limitation and prohibition of the use of force in the contemporary legal system, by studying the origin of those tenets and their reflection in both the national laws of individual states and the international laws of armed conflict.

Chapter 1
Introduction

Apart from the important provision of Article 51, which admits unilateral forcible action in exercise of the right of individual and collective self-defence against an armed attack,¹ the use of force under the United Nations Charter is intended to be monopolised by the Organisation.² This monopoly finds its expression in the provision concerning the prohibition of the unilateral resort to force by States in Article 2(4) of the UN Charter where, for the first time, direct reference was made to not resorting to force, which has a broader meaning than not resorting to war, the formula used in the Pact of Paris.³ Article 2(4) of the UN Charter places restrictions in the way of governments resorting to force and marked a great step in international law towards maintenance of international peace and security. The principle of the prohibition on the use of force or threat of force has been repeatedly stressed in United Nations General Assembly (UNGA) resolutions⁴ and, nowadays, the principle is not only a conventional general principle but it has also become a principle of customary international law, as indicated by the International Court of Justice (ICJ) in its decision in the Nicaragua Case⁵ and Legality of the Threat or Use of Nuclear Weapons.⁶ It is also included by many writers in the commanding principles of international law (Jus Cogens).⁷

In spite of this restriction and deep transformation in the legal system, however, at the turn of the 20th century, some important unilateral uses of force by some permanent members of the Security Council in the Persian Gulf and the Balkans took place in the name of the Just War theory, or under claims of self-defence or right of self-defence, by acting pre-emptively against terrorists.⁸ In this respect, two prominent examples are which worth mentioning. During the Kosovo crisis, Tony Blair, the UK Prime Minster, in a speech to the Economic Club of Chicago, claimed that NATO’s war in Kosovo was a Just War, because it was not based on any territorial ambitions but on values.⁹ The UK Defence Secretary, George Robertson, in his article, ‘This is a Just War’ propounded the question, ‘How could we, as a civilised nation, have looked ourselves in the face if we had simply sat back and watched the extermination and eviction of the Albanian people of Kosovo?’¹⁰ He concluded that, ‘the Kosovo action was a just war based on human rights which had been denied by Serbia from the Albanians of Kosovo for years’.¹¹

In the most recent war against Iraq by the US and UK in 2003, the US President, George W. Bush, in his speech in the General Assembly on 12 September 2002, described Saddam Hussein’s regime as ‘a grave and gathering danger,’ detailed that the regime’s persistent efforts to acquire Weapons of Mass Destruction (WMD), and spoke of an ‘outlaw regime’ providing such weapons to terrorists.¹² He then declared ‘the US is completely certain Saddam has a nuclear weapons and God forbid he use one’.¹³ He also added that ‘we owe it to all our citizens to do everything in our power to prevent that day from coming’.¹⁴ On 17 September 2002, Bush in his National Security Strategy of the United States declared ‘the US to use military force pre-emptively against the threat posed by rogue States possessing WMD’.¹⁵

The present author, however, seriously doubts the legitimacy of those actions under the Just War theory or any other rules of international law. It is in this context that this study aims to examine the traditional theory of just war in the light of modern principles of international law relating to the prohibition on the use of force and non-intervention, with a view to assessing the actions of the allied powers in both the Persian Gulf and the Balkans. In doing so, this book will analyse the claims made by the allied powers to justify use of force under the traditional just war doctrine in an era when such use of force is regulated by the Charter of the UN without any direct reference to the just war doctrine.

An examination of just war tradition shows that the theory has provided an alternative to both extremes: pacifism (which approaches the aim of just war by proposing a negative duty, abhorring the suffering caused by violence, and concludes that war is the consummate evil and rejects it under any circumstances)¹⁶ and realism (which approaches the aim by positive obligations, beginning from a similar assessment regarding the evil of war, and concludes that those who bring war on a peaceful nation deserve whatever reprisal its people can pour out)¹⁷ in order to present a picture compatible with the problems of social facts. Indeed, the theory was an attempt to think morally about armed conflict as Aristotle, for example, wrote in the Nichomachean Ethics, ‘we make war in order to that we may live at peace … Nobody chooses to make war or provokes it for the sake of making war; a man would be regarded as a bloodthirsty monster if he made [friendly states] … into enemies in order to bring about battles and slaughter’.¹⁸

But the concept of bellum justum, contrary to St. Ambrose and St. Augustine’s approach, became a justification for warfare and offensive action and reached its culmination in the launching of the Crusades in the Middle Ages. At that time, a special kind of war was introduced, which was called, ‘Holy War’.¹⁹ According to that approach, recourse to force was to be deemed morally permissible when it was divinely ordained.²⁰ Although the crusades were claimed to be ‘Holy War’,²¹ the theology of place which this implies has no foundation in Christian doctrine and the Crusades were, to a large extent, the product of European politics and pursuit of commercial advantage in the spice trade. They have, however, despite this, had a long and disreputable history in certain areas of Christian thought and practice.

Later, Aquinas, in the light of Aristotelian thought, gave a great impetus to the just war theory by introducing the doctrine of double effect. After Aquinas, other writers on just war – for example St. Penafort – elaborated the theory based on his position. In the 16th and 17th centuries, Vitoria²² and Suarez²³ fully developed the Just War Theory²⁴ by distinguishing between offensive and defensive wars. Grotius wrote on the right of nations to use force in self-defence in his most important work, De Jure Belli Ac Pads Libri Tres²⁵ and introduced seven criteria for just war, although ultimately he accepted six. He insisted that all must be met in order for a war to be formally just. Later, the important question of whether or not both parties to an armed conflict might be just in their participation and in good conscience believing themselves to be in the right, because both might have approached the question purely subjectively rather than objectively, was raised by De Vattel.²⁶ In asking this question,²⁷ he reflected both the newly legal, rather than ethical, cast of bellum justum thinking and the beginning of a recognition of relativist rather than absolute criteria of assessment in international relations.

However, as a result of the doctrine of the law of nations, the theory lost its importance and the distinction between unjust and just war was virtually abandoned and in the 19th century and first half of the 20th century international jurists concentrated more on the legality of methods of conduct of war, jus in bello, rather than on the legality of war, jus ad bellum. However, starting from about two decades ago, some events in the conduct of war have called into question the relevance of certain aspects of the theory for modern wars. Examples from Afghanistan, the Persian Gulf, the former Yugoslavia and Chechnya seem to provide strong evidence in this respect. Therefore, it is true to say that we are in an era when the theory has been revived or, at least, attempts have been made to revive it. Jurists, theologians and thinkers continually seek to refine further the requisite conditions of just war, especially in relation to perceived changes in armed conflict technology or international relationships as they are manifested in particular instances. The occupation of Kuwait by Iraq in 1990, in the Persian Gulf region, and the response of the international community to the aggression in 1991, created a good opportunity for jurists, theologians and thinkers to re-evaluate just war criteria against which the jus ad bellum criteria set forth by Roman scholars and the medieval just war theorists, St. Augustine and St. Thomas Aquinas, can be compared. Therefore, after the Persian Gulf War, various commentaries on just war appeared and expressed the current understanding of the theory by some writers, namely: Johnson,²⁸ Vaux,²⁹ Walzer,³⁰ Weigel,³¹ Elshtain,³² Nusseibeh,³³ etc. A few years later, starting in 1996 with a monopoly of power in the world, some unilateral use of force, as stated earlier, was perpetrated in the name of the Just War theory, or some controversial concepts in international law such as humanitarian intervention, by some permanent members of the SC under leadership of the US in the Persian Gulf and the Balkans.

This book is designed to examine the significance of the transformation in the limitation and prohibition of use of force in the contemporary international legal system by studying the origin of those tenets and their reflection in both national laws of individual States together with the international laws of armed conflict as formalised in the Geneva and Hague Conventions and United Nations Charter, in order to explore the legitimacy of those unilateral actions in the light of the controversial concepts of human rights and humanitarian intervention under both the traditional and the new criteria.

The following chapter of this work will discuss the human tendency to peace and security, today known as pacifism. The role of pacifism from its beginning until now in the light of various commentaries on the issue, with reference to the latest crisis in the world will be examined. In this regard, the various inspirations for controlling the violence of war, in the light of different religions, schools of thought, and cultures are considered here. I begin with a discussion on various approaches to the pacifist position, namely, religious: such as Christian pacifism; political: such as socialism and anarchism; and philosophical and ethical: such as passive-resistance. Did these constitute a sufficient response for solving human beings’ problem in a disunited world, in consideration of paradigmatic change in the technology of offensive and defensive weapons? An in-depth discussion of this issue reveals serious shortcomings and weaknesses; of extreme interpretations of pacifism, based on rejection of all kinds of violence in general and, in particular, the violence of armed conflict in all circumstances.

Chapter 3 provides a critical examination of the just war tradition in jus ad bellum and then outlines how the modern concept of just war evolved from the fusion of early Roman law and Christian teachings. Opening with the scholars of Ancient Rome, I briefly trace the development of the Just War tradition through the middle ages, and then show how it was transformed into the corpus of international law following the Thirty Years War. My main intention here is to explore the reasoning behind the key elements of modern just war theory and the laws of armed conflict that reflect it, by studying their orig...

Table of contents

• Cover
• Half Title
• Dedication
• Title
• Copyright
• Contents
• Table of Cases
• Table of Treaties and International Agreements
• Preface
• Acknowledgements
• List of Abbreviations
• 1. Introduction
• 2. Inclination to Pacifism: Theory and Reality
• 3. Ideas of Just War in Traditional and Modern Times: Religious and Secular Approaches
• 4. Legitimacy or Illegitimacy of Use of Force in Contemporary International Law and the Place of Just War Theory in the Modern Legal System
• 5. Just or Unjust War? International Law and Unilateral Use of Armed Force by States at the Turn of the 20th Century
• 6. Conclusion
• Bibliography
• Index