Rethinking the Just War

2019 ◽  
Vol 29 (3) ◽  
pp. 139-156
Keyword(s):  
International Law ◽  
Just War ◽  
Just War Theory ◽  
Armed Conflicts ◽  
Practical Application ◽  
Military Establishment ◽  
Geneva Conventions ◽  
Starting Point ◽  
Limited Application ◽  
Ethical Thinking

The article offers a retrospective analysis of the genesis of the just war theory and analyzes the reasons behind controversies over the concept in modern ethical thinking. The author emphasizes that the development of the just war theory throughout its history since Augustine was generally governed by a uniform approach rooted in common ethical concepts through each succeeding era. From the nineteenth century to the end of the twentieth, the theory evolved in close coordination with international law; at the conceptual level the just war theory began to merge with the UN Charter and the Geneva Conventions. Just war theory is now the starting point for both the professional military establishment and also for anyone judging the morality of a conflict. Nevertheless, the definitive status of this set of ethical views is increasingly coming into question. These doubts are to a great extent connected with transformations in the practice of war itself. The changing actors in armed conflicts constitute a challenge to the view that states rather than individual combatants are responsible for them. The true subject of just war theory is not law but morality, a fact often overlooked in the practical application of its ideas. Traditional just war theory has only limited application when the increasing inclusion of civilians in armed conflicts is taken into account. The theory papers over a number of contradictions rooted in the desire to create a set of codified rules for management of conflict while excluding the question of the justice of war itself. All these considerations lead ultimately to a revisionist theory of just war, which will be free from the shortcomings exposed by the author.

Introduction

2017 ◽  
Author(s):  
Fernando R. Tesón ◽  
Bas van der Vossen
Keyword(s):  
International Law ◽  
Just War ◽  
Humanitarian Intervention ◽  
Use Of Force ◽  
Just War Theory ◽  
Self Defense ◽  
Collective Self

We introduce general concepts of just war theory and describe different kinds of war: national self-defense, collective self-defense, and humanitarian intervention. After laying down the conditions for the justification of humanitarian intervention, we highlight some of our differences. We conclude with an outline of the international law of use of force and some jurisprudential themes that bear on the current humanitarian intervention debate.

The New Geneva Conventions for the Protection of War Victims

1951 ◽  
Vol 45 (3) ◽  
pp. 462-475 ◽  
Author(s):  
Jean S. Pictet
Keyword(s):  
International Law ◽  
Armed Conflicts ◽  
Geneva Conventions ◽  
War Victims

The Geneva Conventions are the basis on which rest the rules of international law for the protection of the victims of armed conflicts.

Just War Theory & the Conduct of Asymmetric Warfare

Daedalus ◽  
2017 ◽  
Vol 146 (1) ◽  
pp. 59-70
Author(s):  
Allen S. Weiner
Keyword(s):  
Armed Conflict ◽  
Just War ◽  
Central Element ◽  
Just War Theory ◽  
The State ◽  
Armed Conflicts ◽  
Laws Of War ◽  
Equal Rights ◽  
Moral Equality ◽  
Asymmetric Warfare

A central element of the dominant view of just war theory is the moral equality of soldiers: combatants have equal rights to wage war against one another and are entitled to certain protections if captured, without regard to which side's cause of war is just. But whether and how this principle should apply in asymmetric armed conflicts between states and nonstate groups is profoundly unsettled. I argue that we should confer war rights on fighters for nonstate groups when they are engaged in violence that has risen to the level of armed conflict, and when the state against which the war is being waged is not entitled to assert its monopoly on the legitimate exercise of force, either because 1) the nonstate group has established sufficient control over territory to assert its own governing authority; or 2) because the group is located abroad. Conferring war rights on nonstate fighters does not, however, permit them to engage in acts that violate the laws of war. Fighters who commit such violations are individually subject to prosecution without regard to their group's entitlement to war rights.

Jus Post Bellum: The Perspective of a Just-War Theorist

2007 ◽  
Vol 20 (3) ◽  
pp. 571-591 ◽  
Author(s):  
BRIAN OREND
Keyword(s):  
International Law ◽  
Regime Change ◽  
Just War ◽  
Geneva Convention ◽  
Just War Theory ◽  
Point Of View ◽  
The Body ◽  
Topical Issue ◽  
Jus Post Bellum

The introduction explains how this essay articulates the issue of ‘justice after war’ from the point of view of just-war theory, and how such a view can and ought to impact upon international law, for instance by inspiring the eventual development of a new treaty, or Geneva Convention, exclusively concerned with issues of postwar justice. In the body of the essay, attention is first given to explaining why just-war theory has traditionally ignored, or even rejected, jus post bellum. Second, argument is made as to why this ignorance and rejection must be overcome, and replaced with information and inclusion. Third, principles drawing on traditional just-war theory are constructed and defended, for jus post bellum in general and for forcible postwar regime change in particular. Finally, several remaining challenges are addressed, seeking to dissolve doubts and strengthen resolve towards working for progress on this vital and topical issue of jus post bellum.

scholarly journals Between Legality and Legitimacy, a proposal for Judicial Review of Security Council Collective Security Actions in Light of Responsibility to Protect and Just War Theory

2019 ◽  
pp. 173-214
Author(s):  
Jorge Luis Almeida Estrella
Keyword(s):  
International Law ◽  
Security Council ◽  
Judicial Review ◽  
Legal Status ◽  
Review Process ◽  
Just War ◽  
Just War Theory ◽  
United Nations Security Council ◽  
Responsibility To Protect ◽  
The Icj

The purpose of this article is to question whether the powers of the United Nations Security Council (SC) are subject to any limitation under international law, especially in the context of the Responsibility to Protect (RtoP) doctrine. And consequently, which organism will be entitled to hold the SC accountable for its actions, and how that organism should do it. The first chapter of this article deals with the possible limitations of the SC, it considers both legal and legitimacy restraints to the broad powers of the SC. Additionally, we will explain how RtoP presents itself as a new challenge to the legitimacy of the SC. Chapter 2 discusses which organisms within the UN system, may be appropriate to hold the SC responsible for its actions. Finally, in Chapter 3, we will review the legal status of RtoP, and explain how the ICJ could use Just War criteria as a valuable tool for a judicial review process of SC decisions based on RtoP.

Territorial Rights and National Defence

2015 ◽  
Author(s):  
Anna Stilz
Keyword(s):  
International Law ◽  
Just War ◽  
Just War Theory ◽  
Territorial Integrity ◽  
Lethal Force ◽  
Political Cooperation ◽  
The Common ◽  
Relationship Of ◽  
The Relationship ◽  
National Defence

Both just war theory and international law recognize the defence of one’s own state and its territory as the core example of just cause for war. Yet just war theorists have done little to explore what might give the state a territorial right of this kind. This chapter argues that a state has a right to territorial integrity when it meets three conditions: (1) its citizens have a right to occupy its territory, (2) its scheme of law is minimally just, and (3) the relationship of political cooperation that supports its institutions is reasonably and widely affirmed. This chapter then considers whether a state that satisfies these conditions may defend its territorial integrity with lethal force. This account does not support the common-sense conviction that defending one’s state against aggression is always morally permitted or even required. But it can establish a defensive privilege in a central range of cases.

scholarly journals The Morality of War: A Review and Research Agenda

2020 ◽  
Vol 15 (2) ◽  
pp. 231-249
Author(s):  
Hanne M. Watkins
Keyword(s):  
International Law ◽  
Moral Psychology ◽  
Just War ◽  
Just War Theory ◽  
Moral Judgments ◽  
Third Party ◽  
Intergroup Conflict ◽  
Psychological Study ◽  
Novel Approach ◽  
Morality Of War

What is judged as morally right and wrong in war? I argue that despite many decades of research on moral psychology and the psychology of intergroup conflict, social psychology does not yet have a good answer to this question. However, it is a question of great importance because its answer has implications for decision-making in war, public policy, and international law. I therefore suggest a new way for psychology researchers to study the morality of war that combines the strengths of philosophical just-war theory with experimental techniques and theories developed for the psychological study of morality more generally. This novel approach has already begun to elucidate the moral judgments third-party observers make in war, and I demonstrate that these early findings have important implications for moral psychology, just-war theory, and the understanding of the morality of war.

Jus in vi

2021 ◽  
pp. 200-232
Author(s):  
Daniel R. Brunstetter
Keyword(s):  
Just War ◽  
Just War Theory ◽  
The Novel ◽  
Jus In Bello ◽  
Moral Principles ◽  
Starting Point ◽  
Risk Principle ◽  
Psychological Risk ◽  
Risk Driving ◽  
The Way

Jus in vi is the set of moral principles governing how limited force is used. Taking the traditionalist jus in bello principles as a starting point, this chapter interrogates what necessity, proportionality, and distinction look like in a limited force context and makes the case for the novel psychological risk principle by evaluating how concepts such as “excessive,” “military advantage,” and “harms” and “goods” fit into our thinking about vim. The keystone of jus in vi is the predisposition toward maximal restraint maxim. The chapter thus begins by making the case for why jus in vi principles should be more restrictive than their jus in bello counterparts. It continues by exploring how a circumscribed view of necessity sets the groundwork for constraining proportionality calculations and shaping the way we think about distinction in more restricted ways. The notion of jus in vi proportionality is then explored, with concerns about escalation and psychological risk driving the analysis. Drawing insights from revisionist just war theory to consider jus in vi distinction, the chapter concludes by making the case for affording greater protections to both combatants and non-combatants compared to standard just war accounts. Unlike war, in which almost any soldier can be targeted, in a context of limited force only those who are an active threat can be justly targeted. Both innocent non-combatants and non-threatening combatants should be preserved from the more predictable harms of limited force, though this differs depending on whether the use of limited force is protective, preventive, or punitive.

Pacifism: The Dynamics of Dissent

Worldview ◽  
1967 ◽  
Vol 10 (9) ◽  
pp. 8-11
Author(s):  
Edmund J. Egan
Keyword(s):  
Common Good ◽  
Ethical Theory ◽  
Just War ◽  
Just War Theory ◽  
Conscientious Objection ◽  
The Common Good ◽  
Current Wave ◽  
Starting Point ◽  
The Common

In the current wave of conscientious objection, draft refusal, pacifism, crypto-pacifism and simple concern with war and morality, it is noteworthy that informed discussion of “just war” theory has been at a minimum, Tiiis fact is worth examining within a somewhat wider philosophical dimension than is perhaps customary.The notion of “just war” represents an aspect of classical, even Hellenic ethical theory. In it the emphasis is macrocosmic, taking as its starting point the community considered as an organic whole, and seeking the “common good” of that community. This search for “common good” necessarily entails a balancing of claims, rights and needs. Historically, such a calculus has for its goal a benevolent reasonableness in the society, a quality that has generally been termed justice.

Should International Law Ensure the Moral Acceptability of War?

2013 ◽  
Vol 26 (2) ◽  
pp. 253-270 ◽  
Author(s):  
JANINA DILL
Keyword(s):  
International Relations ◽  
International Law ◽  
Just War ◽  
Use Of Force ◽  
Just War Theory ◽  
International Humanitarian Law ◽  
Individual Rights ◽  
Humanitarian Law ◽  
Moral Standard ◽  
Human Rights Law

AbstractJeff McMahan's challenge to conventional just-war theory is an attempt to apply to the use of force between states a moral standard whose pertinence to international relations (IR) is decreasingly contestable and the regulation of which international law (IL) is, therefore, under pressure to afford: the preservation of individual rights. This compelling endeavour is at an impasse given the admission of many ethicists that it is currently impossible for international humanitarian law (IHL) to regulate killing in war in accordance with individuals’ liability. IHL's failure to consistently protect individual rights, specifically its shortfall compared to human rights law, has raised questions about IHL's adequacy also among international lawyers. This paper identifies the features of war that ground the inability of IL to regulate it to a level of moral acceptability and characterizes the quintessential war as presenting what I call an ‘epistemically cloaked forced choice’ regarding the preservation of individual rights. Commitment to the above moral standard, then, means that IL should not prejudge the outcome of wars and must, somewhat paradoxically, diverge from morality when making prescriptions about the conduct of hostilities. In showing that many confrontations between states inevitably take the form of such epistemically cloaked forced choices, the paper contests the argument by revisionist just-war theorists like McMahan that the failure of IL to track morality in war is merely a function of contingent institutional desiderata. IHL, with its moral limitations, has a continuing role to play in IR.

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