WILLIAM V. O’BRIEN 1
The Jus Ad Bellum
The jus ad bellum lays down conditions that must be met in order to have permissible recourse to armed coercion. They are conditions that should be viewed in the light of the fundamental tenet of just-war doctrine: the presumption is always against war. The taking of human life is not permitted to man unless there are exceptional justifications. Just-war doctrine provides those justifications, but they are in the nature of special pleadings to overcome the presumption against killing. The decision to invoke the exceptional rights of war must be based on the following criteria: there must be competent authority to order the war for a public purpose; there must be a just cause (it may be self-defense or the protection of rights by offensive war) and the means must be proportionate to the just cause and all peaceful alternatives must have been exhausted; and there must be right intention on the part of the just belligerent. Let us examine these criteria.
COMPETENT AUTHORITY
Insofar as large-scale, conventional war is concerned, the issue of competent authority is different in modern times than it was in the thirteenth century. The decentralized political system wherein public, private, and criminal violence overlapped, as well as the state of military art and science, permitted a variety of private wars- So it was important to insist that war—in which individuals would be called upon to take human lives—must be waged on the order of public authorities for public purposes. This is not a serious problem in most parts of the world today. Only states have the material capacity to wage large-scale, modern, conventional war. Two other problems do, however, exist in connection with the condition of competent authority. First, there may be disputes as to the constitutional competence of particular official or organ of state to initiate war. Second, civil war and revolutionary terrorism are frequently initiated by persons and organizations claiming revolutionary rights.
Most states today, even totalitarian states, have specific constitutional provisions for the declaration and termination of war. If an official or state organ violates these provisions, there may not be a valid exercise of the sovereign right to declare and wage war. In such a case the first
condition of the just war might not be met. This was the charge, implicitly or explicitly, against President Johnson in the Vietnam War. Johnson never requested a declaration of war from Congress with which he shared war-making powers. War critics asserted that the undeclared war was illegal. A sufficient answer to this charge is to be found in congressional cooperation in the war effort and in the refusal of the courts to declare the war unconstitutional.
In this connection a word should be said about declaring wars. Any examination of modern wars will show that the importance of a declaration of war has diminished greatly in international practice. Because of the split-second timing of modern war, it is often undesirable to warn the enemy by way of a formal declaration. Defense measures are geared to react to hostile behavior, not declarations. When war is declared it is often an announcement confirming a condition that has already been established. Nevertheless, if a particular state’s constitution does require a formal declaration of war and one is not forthcoming, the issue of competence is raised. If a public official exceeds his authority in mobilizing the people and conducting war, there is a lack of competent authority.
The second problem, however, is by far the greatest. Today, rights of revolution are frequently invoked by organizations and individuals. They clearly do not have the authority and capacity to wage war in the conventional sense. However, they do wage revolutionary war, often on an international scale. Indeed, international terrorism is one of the most pervasive and difficult problems facing the international community
JUST CAUSE
Authorities vary in their presentation of just cause, but it seems to break down into four subdivisions: the substance of the just cause, the forms of pursuing just cause, the requirement of proportionality of ends and means, and the requirement of exhaustion of peaceful remedies.
The substance of the just cause must be sufficiently “serious and weighty” to overcome the presumption against killing in general and war in particular … (1) “to protect the innocent from unjust attack,” (2) “to restore rights wrongfully denied,” (3) “to re-establish a just order.”…
From The Conduct of Just and Limited War by William V. O’Brien, 1981. New York: Praeger.
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The forms of pursuing just cause are defensive and offensive wars. The justice of self-defense is generally considered to be axiomatic. Just-war doctrine, following Aristotle and St. Thomas as well as the later Scholastics, places great importance on the state as a natural institution essential for man’s development. Defense of the state is prima facie defense of an essential social institution. So strong is the presumption in favor of the right of self-defense that the requirement of probable success, to be discussed under proportionality, is usually waived.
Offensive wars raise more complications. classical just-war doctrine, offensive wars were permitted to protect vital rights unjustly threatened or injured. Moreover, in a form now archaic, offensive wars of vindictive justice against infidels and heretics were once permitted. Such wars disappeared with the decline of the religious, holy-war element as a cause of and rationale for wars. Thus, the forms of permissible wars today are twofold: wars of self-defense and offensive wars to enforce justice for oneself. [Moreover,] the second is now seemingly prohibited by positive international law.
Turning from the forms of just war we come to the heart of just cause—proportionality between the just ends and the means. This concerns the relationship between raison d’état (the high interests of state) and the use of the military instrument in war as the means to achieve these interests. This concept of proportionality at the level of raison d’état is multidimensional. To begin with, the ends held out as the just cause must be sufficiently good and important to warrant the extreme means of war, the arbitrament of arms. Beyond that, a projection of the outcome of the war is required in which the probable good expected to result from success is weighed against the probable evil that the war will cause.
The process of weighing probable good against probable evil is extremely complex. The balance sheet of good and evil must be estimated for each belligerent. Additionally, there should be a balancing of effects-on individual third parties and on the international common good. International interdependence means that international conflicts are difficult to contain and that their shock waves affect third parties in a manner that must be accounted for in the calculus of probable good and evil. Moreover, the international community as such has its international com-mon good, which is necessarily affected by any war. Manifestly, the task of performing this calculus effectively is an awesome one. . . . They may need revision or replacement by completely new estimates. The jus ad bellum requirement of proportionality, then, includes these requirements:
There must be a just cause of sufficient importance to warrant its defense by recourse to armed coercion.
The probable good to be achieved by successful recourse to armed coercion in pursuit of the just cause must outweigh the probable evil that the war will produce.
The calculation of proportionality between probable good and evil must be made with respect to all belligerents, affected neutrals, and the international community as a whole before initiating a war and periodically throughout a war to reevaluate the balance of good and evil that is actually produced by the war.
These calculations must be made in the light of realistic estimates of the probability of success.
There is an important qualification to the requirement of probability of success. A war of self-defense may be engaged in irrespective of the prospects for success, particularly if there is a great threat to continued existence and to fundamental values.
The last component of the condition of just cause is that war be employed only as a last resort after the exhaustion of peaceful alternatives. To have legitimate recourse to war, it must be the ultima ratio, the arbitrament of arms. .
RIGHT INTENTION
Among the elements of the concept of right intention, several points may be distinguished. First, right intention limits the belligerent to the pursuit of the avowed just cause. That pursuit may not be turned into an excuse to pursue other causes that might not meet the conditions of just cause. Thus, if the just cause is to defend a nation’s borders and protect them from future aggressions, but the fortunes of war place the just belligerent in the position to conquer the unjust nation, such a conquest might show a lack of right intention and change the just war into an unjust war. The
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just cause would have been realized by a war of limited objectives rather than a war of total conquest.
Second, right intention requires that the just belligerent have always in mind as the ultimate object of the war a just and lasting peace. There is an implicit requirement to prepare for reconciliation even as one wages war. This is a hard saying. It will often go against the grain of the belligerents’ disposition, but pursuit of a just and lasting peace is an essential characteristic of the difference between just and unjust war. Accordingly, any belligerent acts that unnecessarily increase the destruction and bitterness of war and thereby endanger the prospects for true peace are liable to condemnation as violations of the condition of right intention.
Third, underlying the other requirements, right intention insists that charity and love exist even among enemies. Enemies must be treated as human beings with rights. The thrust of this requirement is twofold. Externally, belligerents must act with charity toward their enemies. Internally, belligerents must suppress natural animosity and hatred, which can be sinful and injurious to the moral and psychological health of those who fail in charity. Gratuitous cruelty may be as harmful to those who indulge in it as to their victims….
The Jus in Bello
In the jus in bello that emerged rather late in the development of just-war doctrine, two basic limitations on the conduct of war were laid down. One was the principle of proportion requiring
proportionality of military means to political and military ends. The other was the principle of discrimination prohibiting direct, intentional attacks on noncombatants and nonmilitary targets. These are the two categories of jus in bello limitations generally treated by modern works on just war.
THE PRINCIPLE OF PROPORTION
In the preceding [discussion] the principle of proportion was discussed at the level of raison d’état. One of the criteria of just-war jus ad bellum requires that the good to be achieved by the realization of the war aims be proportionate to the evil resulting from the war. When the principle of proportion is again raised in the jus in bello, the question immediately arises as to the referent of proportionality in judging the means of war. Are the means to be judged in relation to the end of the war, the ends being formulated in the highest raison d’état terms? Or are intermediate political/ military goals, referred to in the law-of-war literature as raison de guerre, the more appropriate referents in the calculus of proportionality as regards the conduct of a war?
Assuming that in World War Il the Allied forces were fighting a just war, it is clear that some of the means they employed may have been unjust (for example, strategic bombing of cities and the two atomic bomb attacks). It is not difficult to assimilate these controversial means into the total Allied war effort and pronounce that total effort proportionate to the just cause of the war. It is much more difficult and quite a different calculation to justify these means as proportionate to discrete military ends. Even in the
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absence of war-crimes proceedings, a just belligerent ought to respect the jus in bello standards by meeting the requirement of proportionality of means to military ends….
THE PRINCIPLE OF DISCRIMINATION
The principle of discrimination prohibits direct intentional attacks on noncombatants and nonmilitary targets. It holds out the potential for very great, specific limitations on the conduct of just war. Accordingly, debates over the meaning of the principle of discrimination have become increasingly complex and important as the character of war has become more total. It is in the nature of the principle of proportion to be elastic and to offer possibilities for justifications of means that are necessary for efficacious military action. However, it is in the nature of the principle of discrimination to remain rigidly opposed to various categories of means irrespective of their necessity to success in war. It is not surprising, then, that most debates about the morality of modern war have focused on the principle of discrimination.
Such debates are vastly complicated by the opportunities afforded in the definition of the principle of discrimination to expand or contract it by interpretations of its component elements. There are debates over the meaning of direct intentional attack, noncombatants, and nonmilitary targets.
In order to discuss the problem of inter-
preting the principle of discrimination, it is necessary to understand the origins of the principle. The most fundamental aspect of the principle of discrimination lies in its direct relation to the justification for killing in war. If the
presumption against killing generally and war in particular is overcome (in the case of war by meeting the just-war conditions), the killing then permitted is limited to the enemy combatants, the aggressors. The exceptional right to take life in individual self-defense and in war is limited to the attacker in the individual case and the enemy’s soldiers in the case of war. One may not attack innocent third parties as part of individual self-defense. In war the only permissible objects of direct attack are the enemy’s soldiers. In both cases, the overriding moral prescription is that evil must not be done to obtain a good object
However, it is important to recognize that the principle of discrimination did not find its historical origins solely or even primarily in the fundamental argument summarized above. As a matter of fact, the principle seems to have owed at least as much to codes of chivalry and to the subsequent development of positive customary laws of war. These chivalric codes and customary practices were grounded in the material characteristics of warfare during the medieval and Renaissance periods. During much of that time, the key to the conduct of war was combat between mounted knights and supporting infantry. Generally speaking, there was no military utility in attacking anyone other than the enemy knights and their armed retainers. Attacks on unarmed civilians, particularly women and children, would have been considered unchivalric, contrary to the customary law of war, and militarily gratuitous
It is often contended that there is an absolute principle of discrimination prohibiting any use of means that kill noncombatants. It is further contended that this absolute principle constitutes the
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central limitation of just war and that it is based on an immutable moral imperative that may never be broken no matter how just the cause. This is the moral axiom mentioned above, that evil may never be done in order to produce a good result. In this formulation, killing noncombatants intentionally is always an inadmissible evil.
These contentions have produced two principal reactions. The first is pacifism. Pacifists rightly argue that war inevitably involves violation of the absolute principle of discrimination. If that principle is unconditionally binding, a just war is difficult if not impossible to envisage. The second reaction to the claims of an absolute principle of discrimination is to modify the principle by some form of the principle of double effect whereby the counterforce component of a military means is held to represent the intent of the belligerent, whereas the countervalue, indiscriminate component of that means is explained as a tolerable, concomitant, unintended effect—collateral damage in contemporary strategic terms. . . .
As nations engaged in total mobilization, one society or system against another, it was no longer possible to distinguish sharply between the military forces and the home fronts that rightly held themselves out as critical to the war effort. By the American Civil War this modern phenomenon had assumed critical importance. The material means of supporting…[of] war in the age of the Industrial Revolution was waged against the sources of war production. Moreover, the nature of the attacks on noncombatants was psychological as well as material. Military forces have always attempted to break the will of the opposing forces as well as to destroy or scatter them. It now
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became the avowed purpose of military forces to break the will of the home front as well as to destroy its resources for supporting the war. This, of course, was to become a major purpose of modern strategic aerial bombardment.
To be sure, attacks on the bases of military forces have historically often been an effective strategy. But in the simpler world before the Industrial Revolution, this was not such a prominent option. When the huge conscript armies began to fight for profound ideological causes with the means provided by modern industrial mobilization and technology, the home front and consequently the noncombatants became a critical target for direct intentional attack.
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