The Law of Armed Conflict

I. Introductions + PoliciesII. Jus Ad BellumIII. The Basics of International

LawIV. Legal Means to ConflictV. Syria Scenario

Today’s Class

The School of thought that says ALWAYS:

Pacificism + Absolutism: Certain moral precepts cannot be abandoned.

Examples provided: Ghandi, MLK Jr.

But, does call 9-1-1 on 9/11 work?

Is War Wrong?

Is War Wrong?The School of Thought that says – Wrong Question

Militarism: War is not inherently bad + can be a beneficial aspect of society.

“Realism” - “All is fair in love and war.” States should act on state interest. Moral concepts such as justice cannot be applied to the conduct of international affairs + moral concepts should never prescribe, nor circumscribe, a state's behavior. A state should place an emphasis on state security and self-interest.

Consequentialism- The moral theory most frequently summarized in the words "the end justifies the means," which tends to support the just war theory only until less beneficial means become necessary

Step 1: - Just War for Self-Preservation:

Aristotle: 1) To prevent becoming enslaved2) Establish leadership in the interests of

the group3) To enable men “to become masters

over those who naturally deserved to be enslaved”

Just War Period335 B.C. – 1800 A.D.

Step 2: - Just War from Divine Justification:

At first, no fighting allowedOnce Christianity became the religion of

leaders, altered to allow self defensee.g. Defense of the Holy Roman Empire

from the Vandals

Just War Period335 B.C. – 1800 A.D.

Step 3: - Juristic Model:

Transition from apologetic model of Thomas Aquinas to juristic model based on the benefits of inter-state relations

Just War Period335 B.C. – 1800 A.D.

Era of RealpolitikClausewitz: War is a continuation of

politics by other meansPrinciple: Since each state is

sovereign, there is no moral prohibition.

Each state has a legal and recognized right to wage war.

Increased focus on Jus In Bello – Lawful ways to fight once conflict exists

War as Fact PeriodA.D. 1800 – 1918

Increasing focus on the idea that aggressive war must be outlawed:

- League of Nations- Kellog-Briand – The Treaty for the

Renunciation of War (remains in force today)

Also, trauma of WWI led to increased focus on the means of waging war.

Jus Contra BellumA.D. 1918-1949

The idea of universality of obligations

UN CharterEarly Charter Period – pure self defenseContemporary – Expanded right?

Post WWIIA.D. 1949-Present

Just CauseCompetent AuthorityRight IntentionProbability of SuccessLast ResortMacro Proportionality

Jus Ad Bellum Principles

Just CauseComparative JusticeCompetent AuthorityRight IntentionProbability of SuccessLast ResortProportionality

Jus Ad Bellum

The damage inflicted by the aggressor on the nation or community of nations must be lasting, grave, and certain;

“Pure” self defense (invasion)Non-intrusive defense (attacked)Retaliatory AttackAnticipatory Defense?

Collective Self Defense (to aid another who was attacked)

“Pure” Collective Intervention (to evict a foreign power who is invading)

Just Cause (1st of 6)

UN Charter Authorizes TWO bases:

1. Chapter VII Enforcement Actions2. Self Defense – Article 51

Individual Collective& compliance w/ domestic laws

Just Cause Today:

Last Resort (2 of 6)

All other means of putting an end to it must have been shown to be impractical or ineffective;

Discussion cases:Iraq-Kuwait?Bosnia?Rwanda?Iraq II?

A war is just only if it is waged by a legitimate authority. Even just causes cannot be served by actions taken by individuals or groups who do not constitute an authority sanctioned by whatever the society and outsiders to the society deem legitimate.

Proper Authority (3 of 6)

The ultimate goal of a just war is to re-establish peace. More specifically, the peace established after the war must be preferable to the peace that would have prevailed if the war had not been fought

A state must only pursue a war under the conditions agreed upon in the above criteria. Revenge is not permitted. The state must also be willing to apply the same level of objectivity and investigation into any war crimes its armed forces may have committed.

Right Intention(4 of 6)

A war can only be just if it is fought with a reasonable chance of success.

Deaths and injury incurred in a hopeless cause are not morally justifiable.

Likelihood of Success (5 of 6)

The violence used in the war must be proportional to the injury suffered. States are prohibited from using force not necessary to attain the limited objective of addressing the injury suffered.

Q: Does this control only actions vis-à-vis the other, or towards one’s own population as well?

Proportionality to Means (6 of 6)

Syria Scenario

Article 2(4) of the UN Charter:“All Members shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered.”

So…what about Genocide? Why is ours a history of constant failure to stop the atrocities, from Turkey in 1915 to Sudan today?

An End to War?

International Law governs the conduct of STATES

International Law is set byTreaties

(subject to reservations and understandings)

CustomGeneral Principles

General Principles.

The Three Components of Just War Doctrine

•Jus Ad Bellum•Jus In Bello•Jus Post Bellum

Just CauseCompetent AuthorityRight IntentionProbability of SuccessLast ResortMacro Proportionality

Jus Ad Bellum

DistinctionMicro - ProportionalityMilitary NecessityFair Treatment of POW’sMeans Malum in Se

Jus in Bello

Just Cause for TerminationRight IntentionPublic Declaration and AuthorityDiscriminationProportionality

Jus Post Bellum

Who Decides?Hindsight or Foresight?Are these yes/no issues?Does Context Matter?

What is the value of these criteria?

By What Standard?

US DoD Policy says it is still valuable:

I. To integrate humanity into warII. As both a tactical and strategic

combat multiplier

Can we think of examples?Can we think of other reasons?

What if LOAC is 1 Sided?What Value Then?

I. May motivate enemy to observe the rules

II. May motivate enemy to surrenderIII.International OpinionIV. Helps restore peace

Why Subscribe to LOAC?

I. Protects our society’s characterII. Makes it easier for our soldiers to fight,

and then easier for our soldiers to recover

III.Necessary for our civilian population to support war

IV. Provides advance notice of consequences of conflict

V. Reduces confusion and makes right/wrong conduct easier

Why Subscribe to LOAC - II?

Conflict Centered Rules

Sources:The Hague Tradition (means of

war)The Geneva Tradition (victims of

war)Principles (treaty commentaries,

military publications, etc.)

What is LOAC?