CRANFIELD UNIVERSITY DAREN BOWYER JUST WAR DOCTRINE

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A repeated theme throughout the historical development of just war, both in the religious formulation of Aquinas and the legal codification of Grotius, is that the right to resort to armed force rests on the absence of a higher authority to which disputes can be referred for resolution. In this can be seen the basis for a belief that war could be eradicated should an enforceable system of international law be emplaced. The ‘natural’ law that governs the relations between states can be seen to include the provisions of just war doctrine but Vattel argues that it must be supported by a ‘voluntary’ law – essentially a codification of its principles in practice – to provide the objective standards against which states agree to be judged. Thus, in theory, with the development of international law to its apogee with the all but universal accession of states to the UN Charter regime, just war, as an element of natural law, has done its job and been rendered redundant. However, the UN Charter, by privileging order above all other values, incorporated in its foundation the seeds for of later discontent and challenge. 5.3 Conclusion 3: The Legal Paradigm for Use of Force has Been Found Wanting The legal paradigm for use of force reached its apogee with the establishment of the UN Charter, which seeks for the first time to reserve authority for use of force (except in the most restricted circumstances) to a supra-national body. However, the model was flawed from the outset because of the veto. Although it is clear that without the veto there could have been no UN, nevertheless it has since its inception been used by the P5 in ways unintended by the founders. Practical limitations have further undermined the effectiveness of the paradigm. The failure of states to realise the intended enforcement mechanisms left the UN impotent and the domestic law analogy unfulfilled. States’ behaviour has indicated a lack of faith in the institutions established for peaceful dispute resolution and a tendency to abide by the norm of non-intervention only so long as it suits them. 321
If the application of the UN Charter paradigm was to some degree held in abeyance by the realities of the Cold War, the removal of this obstacle to its effective implementation coincided with a changing value-set that offered it greater challenge. The Charter was predicated on a value-set that placed order – as the sine qua non of international peace and security – above all else. At the end of the Twentieth Century this was no longer held valid and a revised value-set was emerging that placed individual rights and justice in prime position. Against this background the principle of non-intervention was untenable. 5.4 Conclusion 4: There Remains a Requirement to Justify Use of Force and to Ensure Just Conduct; Failure of the Legal Paradigm Requires a Reversion to First Principles Moral Justification Despite the failure of the legal paradigm, there remains a requirement that states justify their resort to force and constrain their conduct within armed conflict. The requirement can be analysed at three levels: international, national and individual. However, in reality these levels interact and overlap. At the international level jus ad bellum and jus in bello are required as underpinnings of a state’s moral standing in the world, which is a determinant of its leadership and influence, encapsulated in the concept of ‘soft power’. Even the most powerful state has been shown to require – politically and practically – the support of allies, which is undermined if the occasion or conduct of its uses of force are perceived to be wrong. A hegemon perceived as a bully risk challenge that a respected hegemon avoids. In democracies, especially, improper use of force threatens electoral support, undermines the standing of the ruling party and its leaders and can even threaten the standing of the institutions of the state, including the armed forces. Engagement in conflicts not widely perceived as just – or a reputation tarnished by improper conduct – will impact on armed forces’ ability to recruit and retain soldiers. Lack of popular support for a conflict erodes national will and the readiness to accept the inevitable casualty-toll. 322
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CRANFIELD UNIVERSITY DAREN BOWYER J
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ABSTRACT For nearly two millennia j
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CONTENTS Abstract ……………
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GLOSSARY OF ACRONYMS Acronym Meanin
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which such political decisions are
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worst of all, continuall feare, and
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fact it does positive harm.’ 15 T
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whole with the interests of the fit
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war should be entered into without
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matter for realist determination, t
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and has returned to the fore of pol
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This is the context against which K
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equired to make war, and the people
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a clear perception of the new world
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which Keohane 59 defines as ‘pers
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underpinnings. As well as making th
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states) and could be predicted thro
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Hobbesianism/ Machiavellianism (Wig
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It recognises both that war and a s
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European Convention on Human Rights
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the other side of liberalism, possi
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the principal foci of this thesis.
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The clearest evidence for the stabi
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if we take Willard’s analogy, it
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promotion of common goals, there ca
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But shortly afterwards he continues
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premise by which Augustine came to
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understood only to apply between Ch
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Writing against the backdrop of a s
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have ‘plausible pretext.’ His w
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As Gross’s title suggests, this o
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organisations/arrangements acting u
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the realist must be persuaded that
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eserving to a supra-national body t
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70 K Waltz, Man, The State and War.
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153 Emerrich De Vattel, The Law of
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must again be found from first prin
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philosophically the ultimate expres
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Notwithstanding the significant ste
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nationalist regime. Had the Soviet
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The operation and extent of the vet
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59 over membership issues 38 . The
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(Of course, history was to show he
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Four years later, in early 2003, it
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2.2.3 Practical Failings Other fail
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nearly all important points. Not al
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equipped and trained forces were re
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Charter and apparently outwith its
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Navigation with Nicaragua. The Unit
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each Member undertakes to comply wi
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There is a second, related, point t
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2.2.4 Reordering the Value Set: New
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There was a growing recognition, th
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… … The global threat to our se
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levels of analysis will be used: th
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The dangers of unilateralism were a
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Still, there is no denying that the
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operation around Fallujah, a politi
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Figure 2-1: Hooded Iraqi Prisoner a
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international resolve; in 2003, sig
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into the First World War to “make
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As a side-issue, but closely relate
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… I suppose American power is mor
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Scholars have identified a number o
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The poor poll showing increased con
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167. 181 In the concurrent County a
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lack of clear justification for the
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Thinking of the position of individ
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Regiment of Fusiliers for abuse of
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The final issue to be considered fr
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during his premiership * . The issu
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war of defence and liberation, has
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Second World War with the predomina
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…the cooking of news before it wa
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In the case of US soldiers in Iraq,
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terms: ‘the ability to get people
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on the team who simply love the gam
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In common with many colleagues the
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Solomou, a medic with The London Ir
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- are accepted. In the case of rese
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57 Ibid, Article 47. 58 E Luard, op
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113 David D Newsome, ‘The Bush Pr
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162 G. John Ikenberry, ‘Why Expor
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212 C Dunlap, Organizational Change
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162
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problems of mobilization and inflex
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even driven, much more by the polit
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whose average weight has continuall
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One consequence of the blurring of
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minority and all parties have to be
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much wider than traditional defence
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3.3 Humanitarian Intervention 3.3.1
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Chapter 2 (see Section CHAPTER 22.2
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Further evidence of a shift of cons
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The inability of a strictly legal p
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and optimism that followed successf
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The non-cooperation of the Khmer Ro
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As with the operation in Cambodia,
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The community of nations decided to
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humane values. The problem, of cour
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the secessionist aims of a sustaina
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(T)here assuredly are cases in whic
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upholding the law is a good thing a
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debacle. Weinberger-Powell is, esse
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‘Democracy’ says de Wijk ‘is
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(m)ost internal political or civil
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Of course, this conceptualization o
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HRW concluded that ‘the killing i
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action. 143 For just one example of
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political will is robustness in Rul
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motivated, to lack cultural empathy
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(which is essentially non-intervent
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armed force when necessary, to prev
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‘intractable injustice’? Yes ar
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immediate objective is the destruct
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Geoff Hoon argued that ‘… there
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action before any blow is actually
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international opinio juris recognis
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unproven case that preventive actio
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In the past decade, Saddam has syst
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‘Osirak’ end of the scale) risk
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The UN formally considered the case
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This chapter’s discussion of inte
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as with interventions, they will al
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60 Independent International Commis
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137 K Roth, ‘War in Iraq not a Hu
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http://www.publications.parliament.
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warfare. AP I deals with ‘victims
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Münkler 8 suggests that the Democr
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Experience in Kosovo, Iraq and Afgh
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The issue might, then, be seen as o
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eplacements, even in the United Sta
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intervene and was certainly, in par
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willing to provide equipment suppor
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applying selectivity to interventio
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it’s a political decision in Wash
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unconvinced. Danielle Pletka, of th
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too thinly spread and in living con
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Page 287 and 288: This might be seen as the fulfilmen
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Page 291 and 292: Army, 99 with its accompanying Comm
Page 293 and 294: Values form the very identity of th
Page 295 and 296: three are intertwined and inter-rel
Page 297 and 298: of Independence, the Napoleonic Fre
Page 299 and 300: in Iraq throughout 2004-2005. Somet
Page 301 and 302: In July 2005 six former UK Chiefs o
Page 303 and 304: Nor does the expectation of being h
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Page 307 and 308: soldiers.’ 135 Although Gray goes
Page 309 and 310: had been done: soldiers were reluct
Page 311 and 312: 4.4.1 PMCs A characteristic of cont
Page 313 and 314: Furthermore, the use of contract st
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Page 323 and 324: 7 Ibid, p93. 8 Herfried Münkler (T
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Page 327 and 328: 137 Maj Gen A Stewart, Policy and t
Page 329: enter voluntarily. Until such a con
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Page 335 and 336: 5.9 Conclusion 9: on ‘asymmetric
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Page 339 and 340: Higgins, Rosemary Hollis, Martin an
Page 341: Paperback edition 1994) de Wijk, Ro
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CRANFIELD UNIVERSITY DAREN BOWYER JUST WAR DOCTRINE

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