.. the customary norms employed by Grotius to define the just war.(45) This recognition occurred as a result of attempts to resolve the so-called Caroline Incident.(46) The Caroline Incident occurred when the British attempted to prevent supplies from reaching Canadian rebels.(47) In their attempts to restrict the flow of material to the rebels, the British burned the U.S. ship Caroline and killed several U.S. citizens.(48) When the United States protested, the British government responded that its actions were justified as a matter of self-defence.(49) Webster responded by stating that the only way for the British claim to self-defence to stand was if it met the traditional elements of just self-defence.(50) Webster outlined those elements as consisting of necessity of self-defence, and the reasonable and not excessive use of force.(51) In essence, this definition of just self-defence mirrors that proposed by Grotius. During the remainder of the 19th and early 20th centuries, just war theory underwent modest development. There were treaties, such as the Hague Conventions, which codified just war theory, but there was little major development in just war theory.
That changed with the end of the Second World War. As a result of World War II, two basic documents were issued which resulted in increased recognition of just war theory in the international arena. The first document is the charter for the Nuremberg war crimes trials, and the second is the United Nations Charter. The Nuremberg Charter encapsulated the reigning notion of just war theory as represented by both St. Thomas Aquinas and Grotius.(52) The Nuremberg Tribunal established that just war theory, as Grotius understood it, is universally binding customary law.(53) The United Nations Charter also has contributed to just war theory by recognising the inherent right of each sovereign nation to self-defence.(54) Article 51 of the U.N. Charter affirms the right of each nation to self-defence, until the Security Council can take action in order to restore and stabilise international peace and security.(55) Article 51 states two key points in regard to international relations and the rightful use of force in international disputes: 1) the regulation of the use of force; and 2) collective security.(56) The U.N.
Charter effectively outlaws the use of military force as a method of resolving international conflicts between nation-states.(57) At the same time, the charter recognises the inherent right of each nation to defend itself from an attack from an exterior foe which is by its very nature unlawful.(58) This right of a nation to engage in defensive military actions has also been upheld by the International Court of Justice in its ruling in the case of Nicaragua v. United States of America. In that case, Nicaragua brought action against the United States for its support of insurgency forces attempting to overthrow the Sandinista government in Nicaragua. The International Court of Justice in its ruling held that the right of a nation to engage in self-defence, as customarily understood, was incorporated into Article 51 of the U.N. Charter.(59) As the Court stated, in the language of Article 51 of the United Nations Charter, the inherent right (or droit naturel) which a State possesses in the event of an armed attack, covers both collective and individual self-defence. B. GENERALLY RECOGNIZED PRINCIPLES OF JUST WAR THEORY As the proceeding section has demonstrated, just war theory, despite its diverse sources and historical development, has several commonly recognised elements.
These elements are traditionally divided into two basic categories which deal with the two basic fundamental issues regarding the legitimacy of war.(60) The first issue, sometimes referred to in Latin as the jus ad bellum (literally, that which is right or just to engage in resort to war(61)), concerns when it is appropriate to resort to war as a method of conflict resolution.(62) The second issue, jus in bello (literally, that which is right or just within war(63)) deals with what methods of warfare are permissible within the context of a war which meets the criteria of the jus ad bellum.(64) The core elements of the jus ad bellum consist of those principles which were originally recognised by the medieval commentators on just war theory as being most central to the whole doctrine of just war.(65) As elucidated by St. Thomas Aquinas, the core principles consist of the following three elements: 1) just cause; 2) competent authority; and 3) right intention.(66) Just cause is classically understood to refer to self-defence.(67) The use of military force is justified when it is used to repel an unjust aggressor and to retake that which the unjust aggressor has taken.(68) It is generally acknowledged that a nation may use force to protect a neighbouring state from attack from an outside hostile power.(69) Thus, defence of self, or defence of another, are legitimate reasons for a nation-state to resort to military force. The second element of jus ad bellum is that the war must be declared by competent authority.(70) As recognised by theorists like Cicero and Aquinas, for a war to be just, the decision to go to war must be lawfully made.(71) If an illegal or non-legal authority within an nation made the decision to go to war, such a decision would be unjust, for it would violate the basic principles of how a given society is governed. Finally, the war must be fought with right intention, meaning that the motives for the war must not be to inflict undue suffering on the enemy state; the defending nation must use only that amount of force which is necessary for it to achieve its just cause. The motives of those engaged in making the decision to go to war must not be tinged with vengeance or a desire for retribution.
Rather, the decision to go to war must be essentially protective; the goal of war is to obtain a just and durable peace. Such a peace is unlikely if the war is waged out of hateful or vengeful motives, with a desire not solely for self-protection but the total destruction of the enemy. If in it’s actions, the defending state’s use of force exceeds what is necessary for the success of its just cause, the defending state’s right intention is problematic. Seen this way, right intention serves to reinforce the requirement that the state which seeks to justly use force be acting in a truly defensive capacity, rather than engaging in military adventurism on the pretext of self-defence. V.
CONCLUSION Just war theory is an attempt to think morally about war. The theorists who have recognised and shaped just war theory throughout Western civilisation have included both secular and religious writers, including some of the greatest names of Western philosophy and legal theory. Just war theory has been recognised and used widely in the 20th century in an attempt to limit the horrors of war, and has been incorporated into international law through the United Nations Charter, and the Nuremberg Charter. Generally construed, just war theory consists of two basic categories: jus ad bellum and jus in bello. Endnotes 1. James Turner Johnson, Just War Tradition and Low-Intensity Conflict in Legal and Moral Constraints on Low-Intensity Conflict, 147, 148 (Alberto R.
Coll, et al. eds. 1995). 2. Examples of the efforts of the international community to limit warfare are quite extensive, and stretch back well into the Middle Ages. As Judith Gail Gardam points out in her article Proportionality and Force in International Law, 87 Am.
J. Int’l L. 391, 395 (1993), the Catholic Church was active in the Middle Ages in limiting warfare, as seen by the Second Lateran Council’s prohibition in 1139 of the use of crossbows, bows and arrows, and siege weapons in conflicts between Christian nations. 3. Johnson at 148.
4. The widespread use of just war theory by both Western countries and the international community can be seen in the use of just war theory by the International Military Tribunal at Nuremberg. The Nuremberg tribunal used the basic just war categories to determine if the actions taken by the Axis powers were in accord with international law. See Article 6(a) and (b) of the Nuremberg Charter, reprinted in Telford Taylor, The Anatomy of the Nuremberg Trials 648 (1992). 5.
Johnson at 147-149. 6. Id. at 148. 7.
Id. at 149. 8. Paul Ramsey, War and the Christian Conscience (1961) and The Just War: Force and Political Responsibility (1968). 9.
Gardam at 817. 10. Id. at 223. 11. Id., citing R.
Bainton, Christian Attitudes Toward War and Peace 14 (1960). 12. Id. at 223. 13. St.
Augustine of Hippo, Against Faustus the Manichaean XXII.73-79, in Augustine: Political Writings, 222 (Michael W. Tkacz and Douglas Kries, trans, Ernest L. Fortin and Douglas Kries, eds. 1994). 14.
Id. at 220. 15. Augustine at 221-222. 16.
Id. at 222. 17. Id. at 220, 222. 18.
Id. at 220. 19. Id. at 221.
20. Id. at 222. 21. Augustine at 220. 22.
Id. 23. Id. at 222. 24. Id.
at 220-222. 25. Id. at 222. 26.
Augustine at 222. 27. St. Thomas deals with the question of the legitimacy of war in his Summa Theologicae, Part II, II, Q. 40, Art.
1. 28. Id., especially Reply Obj. 1-3 where St. Thomas bases his arguments heavily on the writings of St.
Augustine. 29. Aquinas, Summa Theologicae, II, II, Q. 40, Art. 1. 30. Id.
31. Id. 32. Id. 33.
David J. Bederman, Reception of the Classical Tradition in International Law: Grotius’ De Jure Belli Ac Pacis, 10 Emory Int’l L. Rev. 1, 31-32 (1996). 34. Id.
. 35. Id. at 6. 36.
Id. 37. Bederman at 1. 38. Id. 39.
Johnson at 151. 40. Hugo Grotius, The Law of War and Peace, Bk. II, Ch. 1 (1949) cited in Ziyad Motala and David T.
ButleRitchie, Self-Defense in International Law, the United Nations, and the Bosnian Conflict, 57 U. Pitt. L. Rev. 1, 10 n.75 (1995). 40.
Bederman at 32. 41. Roberts at 225. 42. Bederman at 32. 43.
Id. 44. Motala at 10. 45. Id. 46.
Id. 47. Id. 48. Id.
at 11. 49. Motala at 11. 50. Id.
51. See the Nuremberg Charter, art. 6(a)-(c). The charter lists the waging of aggressive war, violations of the laws or customs of war, and the extermination and enslavement of civilians among its examples of wartime criminal conduct. 52.
Rostow at 169-70. 53. United Nations Charter, articles 2(4) and 51. See also Gardam at 403-11; Motala at 3. 54. U.N. Charter art. 51.
55. Motala at 4. 56. Id. 57.
Id. 58. Motala at 11. 59. Johnson at 149; Bederman at 29. The tradition of dividing just war theory into two distinct analytical categories has its roots in the work of Grotius, Aquinas, Augustine, and Cicero.
60. Johnson at 149 61. Johnson at 149 62. Johnson at 149. 63. Id.
64. Id. 65. Aquinas, Summa Theologicae, II, II, Q. 40, Art.
1. 66. Johnson at 158 67. Johnson at 158. 68.
U.N. Charter art. 51. 69. Johnson at 158. Johnson compares the concept of right authority with the modern concept of sovereignty and argues that the just war notion of authority basically mirrors the modern notion of sovereignty.
Id. 70. Bederman at 31-32; Aquinas, Summa Theologicae, II, II, Q. 40, Art.1. 71. Aquinas, Summa Theologicae, II, II, Q.
40, Art. 1. Philosophy.