Legal Committee - World Model United Nations

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also known as simply the “just war tradition,” involves considering the historical body of rules or agreements that have applied in various wars across the ages. 4 The Geneva and Hague conventions, for example, are historical rules, which aim to limit the extent and barbarity of warfare. These conventions may be referenced in prosecuting transgressors, but it is the job of ethicists to examine these institutional agreements for their philosophical coherence as well as to inquire into whether aspects of the conventions ought to be changed. The just war tradition may also use examples of philosophers and lawyers throughout the ages to examine the philosophical ethics of a war. The just war tradition is commonly applied when enemies share some array of values and thus recognize each other as “equals.” In other cases where the enemies clash in religious beliefs, race, or language and see each other as “less than human,” war conventions are rarely effective. Only when the two sides share some moral identity and codes of beliefs can explicit rules about the form of warfare what kind of relations should apply in the aftermath of war be discussed. The incentive to form these conventions is surely that they can be mutually beneficial, as they help prevent the use of any underhand tactics or weapons that may lead to an indefinite series of detrimental acts to both parties. The majority of just war theorists agree upon the denouncement of a lack of rules that govern war between belligerents and that the rules of war should apply equally to all parties involved. Just war theory should thus be universal and binding on all. 5 Just war theory traces back to the beginnings of war itself. Early records of collective fighting contain indications of some moral code used by warriors to limit the potential detrimental effects of warfare, possibly involving special consideration of women, children, and the treatment of prisoners. There are also common instances of deeming certain acts “honorable” and others “dishonorable,” although what defines those terms would often be very specific to the culture. Parts of the Bible contain elements of justification of war and ethical behavior in war, often tied with divine intervention. 6 One of the most systematic and famous expositions commenting upon the morality of war, which is used as a reference for later Scholastics and Jurists to expand upon, was that of Saint Thomas Aquinas in the 13 th century. In Summa Theologicae, Aquinas presents the general outline of what eventually becomes the traditional just war theory as discussed in modern universities. He discusses not only the justification of war but also the kinds of activity that are permissible (for a Christian) in war. Aquinas’s ideas were eventually expanded and gradually universalized beyond Christendom – notably, for instance, in relations with the peoples of America following European incursions into the continent. Just war theory underwent a revival in the 20 th century, primarily due the invention of nuclear weapons and the Vietnam War. 7 Academics have refocused their attention to just war since the terrorist attacks of 9/11, holding conferences to develop and consolidate theoretical aspects of the conventions. Just war theory has become a popular topic in international relations, political science, philosophy, ethics, and military history courses. Though the rules and conventions of warfare have persevered on the battlefields of headline wars in the past decade, they have also come under greater debate and scrutiny. Generals have lectured to their troops about rules of war, and soldiers are taught the just war conventions in the military academies. Indeed, military law has come a long way; punishments and consequences for violators and transgressors are becoming a necessary implementation of warfare. Despite all of these emphases on war conventions, war crimes still do exist: genocide remains an issue, leaders have waged total war on ethnic groups within or without their borders, and individual soldiers or guerilla bands have committed atrocious acts against their enemies. In some cases, no just war conventions exist at all or the justification of war is considered beyond the norms of peaceful ethics and above the law. Just war theory offers a series of principles that aim to retain a plausible moral framework for war. From the just war tradition, theorists distinguish between the rules that govern the justice of war from those that govern just and fair conduct in war and the responsibility and accountability of warring parties after the war. The three aspects are by no means mutually exclusive, but they offer a set of moral guidelines for waging war that are neither unrestricted nor too restrictive. The problem for ethics involves clarifying the guidelines in particular wars or situations. The principles of the justice of war are commonly held to be the following: having just cause, being a last resort, being declared by a proper authority, possessing the right intention, having a reasonable chance of success, and the end being proportional to the means used. 8 These principles, while having the luxury of flexibility, still contain some gray area Harvard WorldMUN 2012 Legal 44
for debate, which leaves them open to broad interpretations. Examining each brings to light some relevant problems. Possessing just cause is the first and perhaps the most important condition of jus ad bellum, yet what acts constitute a “just cause” is unclear. Just cause may result from any act of aggression, social, economic, or political, which includes violation of territory, a blow against national honor, or a trade embargo. Just war theorists must therefore provide a structure to account for what is meant by just cause. One accepted belief is that an initiation of physical violence is wrong and may be justly resisted, which would classify selfdefense against physical aggression as the sufficient reason for just cause. 9 Yet, even this principle can be broadened as self-defense may extend to be construed as preventing anticipated acts of aggression, as well as assisting others against an oppressive government or from another external threat, otherwise known as interventionism. Debate and critique exists about whether preemptive strikes are based on conjecture rather than a real threat, and some argue that all they may do is further destabilize peace and cause more hostility. The next principle of just war is that it should always be a last resort. This means that all other forms of solution must have been attempted prior to the declaration of war and have been deemed ineffective and useless. As war normally causes significant damage for most economies, theorists have “Possessing just cause...should always be a last resport... proper authority... possession of right... reasonable success... the desired end should be proportional to the means used.” advised that war should not be lightly accepted. 10 However, for those whose military power is apparently great, war may present the easiest option for resolving a problem. The notion of proper authority may not seem to be an issue for those who believe it to obviously lie in the sovereign power of the state. However, the concept of sovereignty raises several issues for consideration: if a government is not just, the more its claim to justifiable political sovereignty diminishes. Therefore, we need to consider what is proper authority and what is meant by sovereignty and what is the proper relationship between a people and its government. Can tyrants truly claim to be sovereign powers? If they cannot, this may throw into question the right of a tyrant to declare war, a cost absorbed by the people more than the regime. Another principle of just war theory is the possession of right, meaning that a nation waging a just war should be doing so for the cause of justice and not for reasons of self-interest or aggrandizement. 11 The “right intention” contains several problems. If a nation’s only way to secure a general peace is to annex a belligerent neighbor’s territory, then political aggrandizement becomes inevitably tied to the “right intention” of maintaining peace for the majority. In realistic perspective, a nation will only wage war if the proper interest coincides with its personal economic or other interests. The next principle is that of reasonable success. This is another necessary condition for waging just war but is insufficient by itself. Given just cause and right intention, the just war theory asserts that there must be a reasonable probability of success. 12 The principle of reasonable success rides on predicting and attempting to calculate the costs and benefits of a campaign. However, this seemingly concrete concept of weighing benefits poses moral and practical questions concerning whether one should go to the aid of a people or declare war if there is no conceivable chance of success or whether it is right to comply with aggression because the costs of not complying are too prohibitive. Historically, many nations have overcome the probability of defeat: Winston Churchill offered the British nation some of the finest of war’s rhetoric when it was threatened with defeat and invasion by Nazi Germany in 1940. 13 However, the reasonable success principle reinforces the idea that human life and economic resources should not be wasted in what would clearly be an uneven match. For a nation threatened by invasion, other forms of retaliation or defense may be available, such as civil disobedience or even forming alliances with other small nations to equalize the odds. Harvard WorldMUN 2012 Legal 55
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