INTERNAATIONAL HUMANATRIAN LAW: JUST WAR THEORY

Authors: Rajat Maheshwari, Shivangi Mudgha, Shashwat Raj

Editor: Sheetal Sharma

INTRODUCTION

The just war theory, majorly a Christian philosophy tries to reconcile 3 things:

• Taking human life is seriously wrong.

• States have an obligation to defend their citizens and defend justice.

• Protecting innocent human life and defending necessary ethical values generally needs the

willingness to use force and violence.

The theory specifies conditions for deciding if it's simply to travel to war, and conditions for

the way ought to be fought. The aim of Just War Theory is to supply a guide to the proper

means for states to act in potential conflict things.

The original just war philosophy is in fact solely a remote relative to the contemporary just

war theory. As a philosophy it is a ragtag collection of views, prescriptions, and traditions, a

venture of the theologians, philosophers, canonists, jurists, and practitioners. The previous

philosophy had 3 major sources: Theology of the centre ages, humanitarian law, and trendy

philosophy of law. The system supply is comprised of Augustine, Humanitarian Law – by the

body of the jus in Bello norms. The philosophical supply is provided by the sequential line of

thinkers from Suarez to Kant.

DEVELOPMENT

The Christian tradition of simply war theory began within the fifth century with theologist

Augustine's read of justice in warfare may be summed up by his statement that, "We don't

obtain peace so as to be at war, however, we have a tendency to head to war that we have a

tendency to could have peace. Be peaceful, therefore, in warring, so you will beat those

whom you war against, and produce them to the prosperity of peace."

In the thirteenth century, Thomas Aquinas designed on and enlarged Augustine's thought on

justice and warfare. Later Christian thinkers have additional significance and comment on the

just war theory; however, the most principles have a tendency to still use these days those

derived from Augustine and Aquinas.

Just war theory manages the legitimization of how and why wars are fought. It can either

have theoretical or historical justification. The hypothetical viewpoint is concerned about

morally justifying war and the structures that fighting might possibly take. The historical

viewpoint, or the "just war custom," manages the verifiable assortment of decides or

understandings that have been applied in different wars over the ages.

The theory proposes a series of principles that aim to hold a reasonable moral framework for

war. The series include Jus ad Bellum, Jus in Bello, and Jus post-Bellum. Under

international law, we look into all these aspects before, during, and after the war.

Jus ad Bellum

The literal meaning is “right to war”. It is a set of criteria that are to be consulted or looked

into before actually resorting to war to determine whether entering into war is the right

decision and is permissible, that is, is it just a war

The six criteria that must be satisfied can be further be explained like:

1.) Having just cause: - there must be a just and reasonable cause for going to war, in the

effect of like self-defence, protecting the innocent, defence of others, or punishment

for grievous wrongdoing.

2.) Right intention: - the good caused by the war must be greater than the destruction and

death and thus it should only be fought for the just cause.

3.) Proper Authority and public declaration: - A war cannot be done in secret and it can

only be launched by the correct governing body of the country.

4.) Last resort: - Wagging a war should be the last reasonable and workable option left

for addressing the problem.

5.) Probability of success: - An impact must be likely to avoid unnecessary bloodshed.

6.) Proportionality: - war should only be waged if the universal goods outweigh the

universal evil.

Because these criteria are very open-ended and it is on the interpretation and justification it is

often a matter of contention among countries waging war, so as to decide whether the

grounds have been satisfied before the war has been declared or not.

Jus in Bello

Jus in Bello is a set of rules governs what happens once the war has begun. The main

function of this law is to govern how a war has to be fought without a prejudice considering

the fact that how or why they had begun. In rules to be followed which are: -

1.) Weapons prohibition: - No chemical or biological weapons are allowed.

2.) Non- Combatant Immunity: - Innocent civilians should not be harmed intentionally.

3.) Proportionality: - Excessive force, or force greater than needed is forbidden.

4.) Prisoners of war: - prisoners of war will not be subjected to any kind of cruel

punishment, they should be treated as normal prisoners.

5.) No means that are evil in themselves are allowed. Examples include genocide,

distinguishing soldiers as doctors, etc.

6.) No Reprisals: - If the other side breaks the rules it does not mean that you get to break

it too.

The International Committee of the Red Cross (ICRC) and many intellectuals, wishing to

stress the positive, call it International Humanitarian Law (IHL) to highlight their goal of

mitigating the excesses of war and shielding civilians and other non-combatants.

Jus post bellum

The just war theory majorly revolves around the two principles of war concerning the

beginning and continuation of war, but what after the war has ended? This is a major question

that always concerns the international authority for humanitarian laws. There are few criteria

described which have to be met in order to be just. They are: -

1.) Proportionality and Publicity: - Settlement should be public and should not be

about revenge.

2.) Rights Vindication: - Most importantly the crimes that triggered the just war

should be remedied.

3.) Discrimination:- The civilians should not be punished for the acts of the

government.

4.) Punishment: - Fair punishment should be meted out for leaders that endorsed war

crimes, soldiers that committed war crimes from both sides of the conflict.

5.) Compensation: - Financial restitution is okay, but a tax on civilians is not allowed.

6.) Rehabilitation: - Transformation of the aggressor regime, demilitarization, human

rights education, etc. This is really important and the most controversial one.

The problem with all of these criteria is that “History is written by the victors” and whoever

wins the war generally decides most of the things. It is very difficult for the other side to

object unless one has a very nice and objective international community.

MORAL CONFLICT

A war is only just if it is fought for a reason that can be justified, and that carries sufficient

Moral grounds. States who voluntarily starting military aggression by use of force must

demonstrate that there is a "just cause" to do so.

However, both civil war and armed conflict between two countries are mostly escalated to

prevent wrongs and ill-treatment, which may be considered as just war.

Example- When there is a massacre going on inside a state or when a government is

massacring some minority or maybe even not a minority a majority of its citizens like the

way the Combodian Khmer Rouge regime did that it is just to go in and stop it by force if

necessary, so those are the just occasions of war.

There is also justice in war "Jus in Bello", (Justice in the conduct of war) and that hangs

mostly on issues of non-combatant immunity of discrimination of attacking only other

soldiers so it hangs on a very old idea that war is a combat between combatants from which

non-combatants should be shielded, non-combatants means women and children, old men,

medical personnel, religious officials and the merchants who sell weapons to both sides were

in some account treated as non-combatants whom nobody should attack, but basically it also

means the civilian population should not be subject to attack in war.

PROBLEMS WITH THE THEORY

Some people give following justification against the theory of just war-

Stronger has monopoly- There is an argument that a strong country violates all rules and

regulations in war, while give lectures to the weak countries to abide by international law.

Thus, weak countries should do whatever they can, and wage war by realism and relative

strength, and should not revolve around a legal document.

Useless in Modern day conflicts- It is being said that "just war theory", has nothing to do with

modern day warfare and there is no place for ethics in war, as countries today possesses mass

killing weapons such as nuclear, biological and chemical weapon which ultimately

downgrade the morality of war.

Ruthless to terrorists -This theory does not suit the ideology for terrorists, as abiding by such

theories handicaps the victim of terror attack.