Denver Legal Matters, Legal Matters Denver, Colorado

In an age of terrorism, guerilla and total warfare the medieval doctrine of Just War needs to be re-defined. Moreover, issues of legitimacy, efficacy and morality should not be confused. Legitimacy is conferred by institutions. Not all morally justified wars are, therefore, automatically legitimate. Frequently the efficient execution of a battle plan involves immoral or even illegal acts.

As international law evolves beyond the ancient percepts of sovereignty, it should incorporate new thinking about pre-emptive strikes, human rights violations as casus belli and the role and standing of international organizations, insurgents and liberation movements.

Yet, inevitably, what constitutes "justice" depends heavily on the cultural and societal contexts, narratives, mores, and values of the disputants. Thus, one cannot answer the deceivingly simple question: "Is this war a just war?" - without first asking: "According to whom? In which context? By which criteria? Based on what values? In which period in history and where?"

Being members of Western Civilization, whether by choice or by default, our understanding of what constitutes a just war is crucially founded on our shifting perceptions of the West.

Imagine a village of 220 inhabitants. It has one heavily armed police constable flanked by two lightly equipped assistants. The hamlet is beset by a bunch of ruffians who molest their own families and, at times, violently lash out at their neighbors. These delinquents mock the authorities and ignore their decisions and decrees.

Yet, the village council - the source of legitimacy - refuses to authorize the constable to apprehend the villains and dispose of them, by force of arms if need be. The elders see no imminent or present danger to their charges and are afraid of potential escalation whose evil outcomes could far outweigh anything the felons can achieve.

Incensed by this laxity, the constable - backed only by some of the inhabitants - breaks into the home of one of the more egregious thugs and expels or kills him. He claims to have acted preemptively and in self-defense, as the criminal, long in defiance of the law, was planning to attack its representatives.

Was the constable right in acting the way he did?

On the one hand, he may have saved lives and prevented a conflagration whose consequences no one could predict. On the other hand, by ignoring the edicts of the village council and the expressed will of many of the denizens, he has placed himself above the law, as its absolute interpreter and enforcer.

What is the greater danger? Turning a blind eye to the exploits of outlaws and outcasts, thus rendering them ever more daring and insolent - or acting unilaterally to counter such pariahs, thus undermining the communal legal foundation and, possibly, leading to a chaotic situation of "might is right"? In other words, when ethics and expedience conflict with legality - which should prevail?

Enter the medieval doctrine of "Just War" (justum bellum, or, more precisely jus ad bellum), propounded by Saint Augustine of Hippo (fifth century AD), Saint Thomas Aquinas (1225-1274) in his "Summa Theologicae", Francisco de Vitoria (1548-1617), Francisco Suarez (1548-1617), Hugo Grotius (1583-1645) in his influential tome "Jure Belli ac Pacis" ("On Rights of War and Peace", 1625), Samuel Pufendorf (1632-1704), Christian Wolff (1679-1754), and Emerich de Vattel (1714-1767).

Modern thinkers include Michael Walzer in "Just and Unjust Wars" (1977), Barrie Paskins and Michael Dockrill in "The Ethics of War" (1979), Richard Norman in "Ethics, Killing, and War" (1995), Thomas Nagel in "War and Massacre", and Elizabeth Anscombe in "War and Murder".

According to the Catholic Church's rendition of this theory, set forth by Bishop Wilton D. Gregory of the United States Conference of Catholic Bishops in his Letter to President Bush on Iraq, dated September 13, 2002, going to war is justified if these conditions are met:

"The damage inflicted by the aggressor on the nation or community of nations [is] lasting, grave, and certain; all other means of putting an end to it must have been shown to be impractical or ineffective; there must be serious prospects of success; the use of arms must not produce evils and disorders graver than the evil to be eliminated."

A just war is, therefore, a last resort, all other peaceful conflict resolution options having been exhausted.

The Internet Encyclopedia of Philosophy sums up the doctrine thus:

"The principles of the justice of war are commonly held to be:

Having just cause (especially and, according to the United Nations Charter, exclusively, self-defense);

Being (formally) declared by a proper authority;

Possessing a right intention;

Having a reasonable chance of success;

The end being proportional to the means used."

Yet, the evolution of warfare - the invention of nuclear weapons, the propagation of total war, the ubiquity of guerrilla and national liberation movements, the emergence of global, border-hopping terrorist organizations, of totalitarian regimes, and rogue or failed states - requires these principles to be modified by adding these tenets:

That the declaring authority is a lawfully and democratically elected government.

That the declaration of war reflects the popular will.

(Extension of 3) The right intention is to act in just cause.

(Extension of 4) ... or a reasonable chance of avoiding an annihilating defeat.

(Extension of 5) That the outcomes of war are preferable to the outcomes of the preservation of peace.

Still, the doctrine of just war, conceived in Europe in eras past, is fraying at the edges. Rights and corresponding duties are ill-defined or mismatched. What is legal is not always moral and what is legitimate is not invariably legal. Political realism and quasi-religious idealism sit uncomfortably within the same conceptual framework. Norms are vague and debatable while customary law is only partially subsumed in the tradition (i.e., in treaties, conventions and other instruments, as well in the actual conduct of states).

The most contentious issue is, of course, what constitutes "just cause". Self-defense, in its narrowest sense (reaction to direct and overwhelming armed aggression), is a justified casus belli. But what about the use of force to (deontologically, consequentially, or ethically):

Prevent or ameliorate a slow-motion or permanent humanitarian crisis;

Preempt a clear and present danger of aggression ("anticipatory or preemptive self-defense" against what Grotius called "immediate danger");

Secure a safe environment for urgent and indispensable humanitarian relief operations;

Restore democracy in the attacked state ("regime change");

Restore public order in the attacked state;

Prevent human rights violations or crimes against humanity or violations of international law by the attacked state;

Keep the peace ("peacekeeping operations") and enforce compliance with international or bilateral treaties between the aggressor and the attacked state or the attacked state and a third party;

Suppress armed infiltration, indirect aggression, or civil strife aided and abetted by the attacked state;

Honor one's obligations to frameworks and treaties of collective self-defense;

Protect one's citizens or the citizens of a third party inside the attacked state;

Protect one's property or assets owned by a third party inside the attacked state;

Respond to an invitation by the authorities of the attacked state - and with their expressed consent - to militarily intervene within the territory of the attacked state;

React to offenses against the nation's honor or its economy.

Unless these issues are resolved and codified, the entire edifice of international law - and, more specifically, the law of war - is in danger of crumbling. The contemporary multilateral regime proved inadequate and unable to effectively tackle genocide (Rwanda, Bosnia), terror (in Africa, Central Asia, and the Middle East), weapons of mass destruction (Iraq, India, Israel, Pakistan, North Korea), and tyranny (in dozens of members of the United Nations).

This feebleness inevitably led to the resurgence of "might is right" unilateralism, as practiced, for instance, by the United States in places as diverse as Grenada and Iraq. This pernicious and ominous phenomenon is coupled with contempt towards and suspicion of international organizations, treaties, institutions, undertakings, and the prevailing consensual order.