Moralities of War: The Principle of Jus Ad Bellum

Posted: August 29th, 2019

Moralities of War: The Principle of Jus Ad Bellum
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Moralities of War: The Principle of Jus Ad Bellum
Introduction
Historically, the definitive characterizations of civil war such as violence and aggression are considered to be at odds with the fundamental values of civilization. In this view, civil wars disregard people’s right to life, peace, and deny them liberties. The severe effects of the unregulated use of forces amongst states are the pretext to the formulation of the law of war, an aspect of the public international law that addresses declarations of war, surrender, and handling of the prisoners of war in its aftermath. jus ad bellum is a prominent provision in the law of war, anchored in the Article 51 of the United Nations charter. It sets out conditions under which states may resort to the use of armed forces and circumstances under which a war may be deemed just. Alternately, jus in bello is a war provision that seeks to minimize the severity of civil wars through regulation of the conducts of the parties. These provisions apply to all states at conflict/war irrespective of the precipitating reasons/factors of the justness of causes as they are meant to protect victims of armed conflict regardless of their affiliations. Under the conditions of anticipatory attacks, counter-intervention for self-determination and self-help, and humanitarian interventions, a war can be justified without adhering to all the criteria set out by the jus ad bellum.
Ethics of War
The Just War Theory
From a moral, legal, or historical perspective, the use of violence or aggression to precipitate the loss of life, destruction of property, and insecurity is firmly forbidden. Nevertheless, the constructs of conflict/war as an uncivilized conduct is overridden by the justifications of the ‘just war theory’, which stems from western war traditions. Brunstetter and Braun (2013) explain that the ethical foundation of the tradition (as traced from western cultures) is the need to regulate violence by establishing universally recognized rules of engagement to minimize the severity of armed conflicts. The theoretical construct of the tradition finds its roots in Christian theology and is concerned with the ethical justification of conflict/war. These traditional rules of combat and contemporary moral ideals form the framework of the international humanitarian law (IHL).
The IHL prescribes that only when the criteria for jus ad bellum are met can states be allowed to engage in armed conflict. According to war literature, the element of ‘just cause’ is considered an important condition of engaging in war. In past encounters, parties to a war consider the condition as a self-defense against aggression, and as a justification for acting or reacting violently or aggressively (Lehmann, 2012). In this view, the IHL holds that party that engages in armed conflict for other purposes other than self-defense is liable for commission of crime of aggressive war.
However, the conception of the element of ‘just cause’ is widely contested as the delineation of regular disturbances or tensions from actual armed conflict is not clear-cut. Rodin (2008) emphasizes that characterization of the imminent or actual threat by parties to a conflict has direct consequences for civil authorities and potential victims of the violence or aggression. In this respect, the IHL prescribes that civil authorities categorize specific situations through individual examination of each of them to provide moral and ethical justification for either the use of armed forces or alternative dispute resolution methods.
The just war theory emphasizes the need to comprehensively assess the threats of conflict against a state’s territorial integrity and political independence to guarantee the moral and ethical legitimacy of engaging in a war. The decision is based on the principles of Jus ad Bellum- the right authority, intention, reasonable hope, the proportionality of retaliation force, and last resort.
The Principle of Jus Ad Bellum
To understand conditions under a war be just without meeting all of the criteria, it is necessary to discuss it alongside other considerations that are stipulated by the IHL. They include the jus in bello, which is the concept of justice in war, and just post bellum, the disposition of justice after war. Drawing from Haines (2009), the characterization of just war borrow heavily from the criteria set out by these principles.
Legitimate Authority
The principle states that a war is considered just by the IHL only if it is waged by a legitimate authority. As noted earlier, two of the major considerations for going into war is the imminence of a threat of attack that undermines the sovereignty of a state or its political independence. Drawing from this premise, the legitimate authority is rooted in the sovereignty of a state and is derived from popular consent. In this view, the authority must be sanctioned by the members of the state/society to stand valid in the face of IHL. Moussa (2008) opines that on several occasions in the past, arbitrary authority such as tyrants do not sanction the authority of the majority. In such cases, the civilians may undermine state sovereignty and declare war to defend themselves from the illegitimate authorities. Civilian uprisings that stem from resistance to tyranny are supported by the IHL as ‘just cause’.
The Right Intention
The IHL maintains that the use of armed force must be only sanctioned to serve broad and well-defined national interests such as the re-establishment of peace or security. In this respect, the intention of the war should be to restore a condition that s preferable to the majority and one that would have prevailed had the war not taken place. The principle of right intention is tied to the concept of justice in war, which seeks to forbid acts of vengeance and use of indiscriminate violence or aggression (Schabas, 2007). In this vein, unconditional surrender is considered to be at odds with the principle of right intention as it denies a nation its rights and sovereignty.
Chances of Success
Just wars must have a reasonable possibility of success. The legitimate authority, who according to the IHL is the popular majority must have reasonable hope of achieving the desired outcomes before authorizing the use of armed forces in a conflict. According to Orakhelashvili (2007), the principle of reasonable chance or possibility borrows from the premise of objectivity, whereby arms may not be used to cause deaths and destruction of property in a futile cause. Additionally, for the sake of national pride, engaging adversaries in wars where the possibility of achieving intended outcomes is seemingly hopeless is not just.
Proportionality
Additionally, The Principles of Jus Ad Bellum stipulates that in armed conflict, the violence or aggression deployed by parties must be proportional to the effects that are observable in the aftermath. In other words, the means should be consumerate with the ends of the war and with the magnitude of the initial provocation. The principle of proportionality aims to forbid states from using more force than is necessary to achieve the objective of the war. In this view, it overlaps with the principle of jus in bello.
Last Resort
The principle of last resort provides that all non-aggression conflict resolution options must be critically considered before the use of armed forces can be justified. The IHL recommends the use of all available diplomatic avenues to settle disputes and only engage in armed war when the latter fails. In this respect, it also overlaps with the principle of jus in Bello.
The Principle of Jus In Bello
To put into perspective conditions under which a war can be considered just, it is imperative to discuss the criteria for justice in war, which is conceptualized by the principle of jus in bello. Justice in war concerns how the parties conduct a war in line with the guidelines of the IHL. The IHL provides for the type of weapons or arms that can and cannot be used in war. In this view, there are certain types of arms (such as chemical weapons) that are at odds with the principle of proportionality as explained in jus ad bellum, which give one part considerable advantage over the other, and puts to risk the lives of not only the adversaries, but potentially all components of the ecosystem. Secondly, for a war to be just according to the principle of jus ad bello, it must take place between the combatants to avoid harm to the rest of the civilians. Thirdly, the combatants must use propionate force to achieve the desired outcomes. Lastly, armed forces are not justified in overrunning these codes in response to enemy’s breaking the same rules.
The Principle of Jus Post Bellum
The principle of just post bellum stipulates how parties to the war must serve justice upon its completion. In this regard, the greatest consideration is the rights/consideration whose violation led to the war. At the end of the war, they must be secured. Additionally, the IHL maintains that a peace declaration must be signed by the parties when they bring to an end armed conflict (Okimoto, 2011). Lastly, the principle of proportionality must be considered at this stage. The peace settlement should be reasonable and fair to both parties and must not lace undertones of vengeance that would fuel resentment or further aggression in future.
Conditions Under Which a Just War Can Occur Without All the Jus Ad Bellum Criteria
While the jus ad bellum principle, also known as the justice of resorting to war, provides the criteria for engaging in a just war through its six elements, there are circumstances under which states can ignore some of these criteria and still conduct a justified war. Michael Walzer, an American public intellectual, professor emeritus, and political thinker, provides three conditions under which a just war can take place without abiding by all the elements of the jus ad bellum.
Condition 1: Anticipatory Attacks
The first situation relates to an anticipatory attack. According to Walzer (2000), countries should only engage in preemptive attacks if there is substantial evidence that they are threatened by the enemy. Orend (2000) explains that Walzer’s concept of anticipatory attack aims at striking a balance between two extremities: it backs the theory of preventive warfare on one side, while it refutes that an anticipatory attack by one state against its enemy is justified unless it proves that the second party possesses imminent threats against it. In this regard, this motivation of war is pursued with the intention of maintaining power balance by facilitating peace in the long-run. However, Orend (2000) writes that if a country is to conduct an anticipatory warfare against the other, it must substantiate that the danger posed to it by this enemy is in the offing, and not far-flung. The danger should be tangible in the eyes of the entire world. According to Walzer (2000), a war occurring in such a scenario will only be deemed a just war if a state is threatened. It should not take place because one country fears that another state might attack it. The primary concept in such a circumstance is “real threat” as opposed to “fear”.
Walzer provides criteria that uses three principles that a country can use to justify a war motivated by an anticipatory attack. The first element is the demonstration of an intention to cause injuries. This component can become apparent, for instance, if the two countries have a history of conflict between them. Israel has regularly engaged in wars with Arab countries for almost 70 years now because of this element. Since 1948, these two groups have engaged in more than 15 wars because of the suggestion by either party that the other has demonstrated an intent to harm it. The manifest of intention justification can also trigger a just war in the name of anticipatory attacks if there exist explicit and recent dangers posed by one nation to the other (Orend, 2000). The Yom Kippur War of 1973, which was fought between the Israeli forces and Arab nations including Egypt, Syria, and an Arab coalition was justified, at least by some quarters, because of a demonstration of an intent to cause harm. President Anwar Sadat of Egypt triggered the war by reopening the Suez Canal in 1973. The Israeli government interpreted the reopening of this manmade waterway by Egypt as a show of intent to attack Israel and reoccupy the Sinai Peninsula, which Israel had invaded and occupied since 1956. While it is not clear whether Egypt reopened this canal to cause harm to Israel, the Jerusalem administration deemed it an act of aggression.
The second component of determining whether an anticipatory attack may cause enough threat relates to active military preparations. Country A can judge Country B to be causing it sufficient threat if the latter has engaged in active preparations that make intentions capable of causing positive danger (Walzer, 2000). The author, however, warns that a simple malicious intention irrespective of whether the two countries have a conflictive past is not a sufficient reason to wage a war. States must prove that there are quantifiable military preparations by enemies to raise any idea of waging a war because of anticipatory attacks. Walzer (2000), however, warns that mere augmentation of power does not qualify a just war. An example of a tangible activity of military preparation includes the building up of a country’s military forces along borders or strategic military points. For instance, the stockpiling of weapons that could deliver nuclear warheads to the Soviet Union in strategic locations in Italy and Turkey in 1961 reasonably convinced the Soviet Union that the United States was engaging in active military preparations that could harm its cities including the Leningrad and Moscow. The Moscow regime retaliated to this element by agreeing secretly with Cuba to stockpile intercontinental ballistic missiles in Cuba. Similarly, the United States had a legitimate claim that the two communist countries were involved in active military preparations that could pose an imminent danger to its citizens and assets. The two world powers averted a possible nuclear warfare by each member removing the weapons.
The third circumstance of proving a sufficient threat that justifies an anticipatory attack arises when Country A can substantiate that doing nothing other than retaliating greatly increases the chance of being fought or attacked by Country B. The three situations can explain the justification of the Six Day War in 1967. The war occurred as a result of activities discussed in the sections above by the warring parties. For instance, an intelligence sent to Egypt and its other partners by the Soviet Union reported incidents of active military preparations by the Israeli forces (Popp, 2006). In the description, the Soviets stated that they had enough information to suggest that Israel was about to attack Syria. For example, it noted the presence of Israeli military personnel approaching the southern Syrian border in May 1967. The intention to cause harm to Israel was later demonstrated by President Gamal Abdel Nasser of Egypt’s order to facilitate the withdrawal of the United Nations Emergency Force (UNEF), which had been installed to oversee smooth operations in the Suez Canal, and the decision by the Cairo regime to close the Straits of Tiran. The Israeli had made it known that any interference with this waterway would be considered a casus belli, an act that justifies war (Parker, 1992). Third, Israel demonstrated that if it did not respond to the situation by waging a war it risked being attacked by the Arab coalition as the Egyptian administration deliberated an invasion of Israel (Oren, 2002). The plans were, however, abandoned after an intelligence that Israel knew about the invasion.
Condition 2: Counter-Intervention for Self-Determination and Self-Help
Apart from waging a war due to anticipatory attacks, a war can also be justified without meeting all the criteria of jus ad bellum if it relates to a counter-intervention for self-help and self-determination. According to Walzer (2000), while states are required to desist from interfering with the domestic affairs of other countries, this principle is not absolute. He argues that sometimes countries will be forced to disregard this principle. He states that a country can wage an aggressive war and defends its actions if they were employed in a justified intervention such as providing a counter-intervention measure. Such a scenario may be justified, for example, when a powerful country intervenes to counterbalance another foreign state who has already interfered unreasonably to the affairs of another party. Such circumstances frequently arise during civil wars. The primary purpose of a countermeasure is neither to win the war nor beat the other party into submission, but to correct the unjust situation by facilitating candid self-determination. For instance, in a civil war involving a superior Country J trying to intervene into the affairs of an inferior Country K, a more powerful Country X can counter-intervene to compel country J to let Country K run its domestic affairs. By doing that, Country X would have facilitated the self-determination of Country K. Examples of counter-intervention measures that ignored some criteria of jus ad bellum were seen in the Vietnam and Sudan crises. During the Vietnam War, different countries formed alliances to prevent North Vietnam (headquartered in Hanoi) from interfering with the domestic affairs and self-determination of South Vietnam, which had its capital in Saigon. On the South’s side were powerful armies such as the United States, Australia, and South Korea, while on the North’s side were the Soviet Union and Cuba. North Vietnam was accused of attempting to control the South administration (Herring, 1991). A similar scenario also happened in Sudan during the Second Civil War. Between 1983 and 2005, the Sudanese regime stationed in Khartoum fought the Sudan People’s Liberation Army (SPLA) now headquartered in Juba. On Sudan’s side were counter-interventionists such as Libya and Iran, while the rebel group received support from Ethiopia and Uganda. The conflict resulted in the independence of the rebel group to form the Republic of South Sudan.
Condition 3: Humanitarian Interventions
The third condition proposed by Michael Walzer entails humanitarian interventions. According to Walzer (2000), states can engage in just wars without following the criteria outlined in jus ad bellum if they believe that a country is engaging in activities that contradict the moral conscience of humanity. Armed humanitarian intervention is justified in instances where a particular party is suspected of grave infringement of human rights. This condition, however, is usually controversial as it is difficult to measure the degree to which violations are considered extreme or grave. The crisis in Yugoslavia in the 1990s is a good example of how the North Atlantic Treaty Organization (NATO) and the United Nations Protection Force (UNPROFOR) intervened for humanitarian purposes to quell the conflict (Boothe, 2001: Gazzini, 2001). UNPROFOR intervened in Sarajevo to provide humanitarian aid and protect UN convoys from the siege of the Serbian forces (Gazzini, 2001). Even though the sovereignty subject was a major problem in Kosovo, NATO responded quickly to the situation as it became apparent that there were adequate humanitarian reasons to intervene (Kaufman, 1999). In the quest of providing humanitarian intervention in the former Yugoslavian bloc, these organizations also involved themselves in aggressive military actions such as bombing and creating no-fly zones. 
References
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