CRANFIELD UNIVERSITY DAREN BOWYER JUST WAR DOCTRINE

There are, at essence, two separate cases of illegitimate conduct to consider: on the one
hand improper behaviour by individuals or groups of soldiers who act contrary to the
laws of war and traditional codes of honourable military conduct, most particularly in
relation to their treatment of civilians, prisoners or the wounded; and, on the other hand,
what might be termed over-zealous prosecution of the conflict: breaches of jus in bello
tenets of proportionality and discrimination. The first is relatively easy to deal with: it
is wrong, we recognise it as wrong and, whilst acknowledging that we will never
entirely eliminate it, we have the mechanisms for dealing with it and know what is
required to reduce it still further. The second case is more difficult. Media comment
in relation to the conflict in Iraq, in particular, has suggested that the changing face of
Human Rights Law and its increasing encroachment on areas erstwhile the preserve of
IHL, have extended soldiers’ culpability for their actions in tactical situations too far. It
has been suggested here, though without detailed argument, that closer scrutiny of
developments in international law rebuffs this view. In considering the other area of
restriction placed on soldiers’ actions in asymmetric as in other forms of conflict – that
of RoE – we have seen that RoE, a political restraint as much as a guide to law, must
also be seen as evidence of political will, a resource that governments must be prepared
to commit if they wish successfully to employ armed force. Above all there is a need
fully to recognise that asymmetric warfare is, first and foremost warfare; RoE, must
reflect this. In cases of complexity, soldiers are best guided by an ingrained and
instinctive understanding of the key tenets of jus in bello: proportionality and
discrimination.
1
http://www.ohchr.org/english/law. Accessed 28 Feb 07.
2
Immanuel Kant, Perpetual Peace and Other Essays, (1795), Trans T Humphrey (Indianapolis: Hackett,
1983).
3
For a wider discussion of the Democratic Peace theory see, for example: Barbara Farnham, ‘The Theory
of Democratic Peace and Threat Perception’ in International Studies Quarterly (2003) No 47, pp395-415;
John R O’Neal, Bruce Russett and Michael Berbaum, ‘Causes of Peace: Democracy, Interdependence,
and International Organizations, 1885-1992’ in International Studies Quarterly (2003) No 47, pp371-393;
and for a more sceptical view of this interpretation of Kant: John MacMillan, ‘A Kantian Protest Against
the Peculiar Discourse of Inter-Liberal State Peace’ in Millennium: Journal of International Studies,
(1994) Vol 24, No 3, pp549-562.
4
President W J Clinton, A National Security Strategy of Engagement and Enlargement (Washington DC:
The White House, 1995). Online at www.au.af.mil/au/awc/awcgate/nss/nss-95.pdf. Accessed 14 Mar.
07.
5
Graham Evans and Jeffrey Newnham, The Penguin Dictionary of International Relations (London:
Penguin Books, 1998), p51.
6
Rob de Wijk, The Art of Military Coercion; Why the West’s Military Superiority Scarcely Matters
(Amsterdam: Mets & Schilt, 2005), p83.
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