J. Neha
Symbiosis Law School, Hyderabad
Introduction:
A war crime means a serious violation of the laws of war and the violators are to be penalized for criminal liability. Perfidy (posing to belong to one side of the war but actually belong to another side) forceful pregnancies, genocide, mass killing, ethnic cleansing, destruction of civilians, forcing combatants to fight against their own side, and seriously violating the principles of differentiation or distinction, legitimate military objective etc. as defined by the international criminal court statute property are some of the examples of war crimes.[1]
The concept of war crimes surfaced at the commencement of the twentieth century when the international law of war was laid down. legislations and codes such as the Lieber Code in the United States, and at the international level with the adoption of the treaties (Hague Conventions). Moreover, trials in national courts during this period further helped clarify the law of war such as the famous Nuremberg trials, popularly known as the holocaust trials. Following the end of World War II, major developments in the law of war occurred. The Geneva Conventions of 1949 defined new war crimes and established that states could exercise extraterritorial over such crimes.
But even before these conventions, treaties and laws of war became codified, a doctrine regarding the law of war was identified as back as 4th century called ‘Doctrine of Just War’. This is a classical Christian doctrine postulated by Thomas Aquinas. The essence of this doctrine is that under certain specific conditions and guidelines a war can be considered just. The doctrine provides exceptional circumstance or instances under which war can be justified as being reasonable. Just war doctrine is a median between two extremes i.e. pacifism which states war cannot be considered just under any circumstance and realism which thoroughly advocates that war is the most effective means of the use of force to eradicate evil and enforce public good.
A gap between legality and morality isn’t something foreign but it became obvious with regard to the NATO bombings in Kosovo which were ruled ‘just’ on moral grounds but at the same time illegal by the British House of Commons in 1999 and many such instances so to speak.
The Just War Doctrine:
Just war theory is today used by states to fill the gap between international law which determines which actions are legal or illegal and morality which determines actions as either right or wrong. Just War theory defines the conditions under which violence may be used and it combines the wisdom of several ethicists and philosophers of different centuries.
Just War Theory has three sets of criteria, the first establishing Jus ad bellum (law before the war), second establishing Jus in bello (law within war) and the last one Jus post bellum (rules after the war). Just ad bellum enshrines 6 principles namely just cause (the war must be fought for a just cause), the right intention of the parties to the war, the war must be waged by a legitimate authority, war must be looked upon as the last option left only after exhausting all other options available, the war must stand a reasonable chance of victory form either side, the destruction caused by war must be in proportion to the good brought about by waging the war.
Just in bello identifies three principles: necessity (combatants must perform only those functions necessary to fulfil their legitimate military objectives), proportionality (the same principle mentioned above), and discrimination (a difference should be drawn between combatants and non-combatants and the latter should not deliberately harmed either in property or in-person).
Jus post bellum, relatively recent criteria, lays down 3 principles: reconstruction (the winning country should help the vanquished nation reconstruct itself from the war damages), compensation (combatants must compensate the opponents they harmed unjustly), and criminal proceduralism (the victorious nation may subject the violators of law of war from opponent nation to the domestic fair criminal trial procedure).[2]
Thus, having briefly understood the age-old doctrine, it becomes necessary to analyse it and determine its relevance in the 21st century. With the usher of the international organisations such as UN Security General Council, League of Nations etc, the theory has somewhat lost its significance and it has become obsolete. It is so because it is not codified along with many other factors to be discussed in detail. However, it is still a leading ethical theory providing a beacon light to the application of the use of force in many wars in the 21st century.
However, it does have its fair share of drawbacks. One primary critique of this doctrine is that the term ‘just cause’ is so vague that it can b used as a legal excuse to wage brutal wars by evil nations under the guise of the just cause even when terms can be settled peacefully. A war can be just to one nation but it may not be just to another. It is extremely subjective in nature creating a lot of chaos.[3]
Another dubious just war principle is that of legitimate authority. The dictatorship regime of Hitler is an example of a violation of this rule (one of the war crimes in the Nuremberg trials). It is difficult to decide who is to be given the legitimate authority to declare war between two nations. Originally, the legitimate authority for the use of force lay with the state alone. Today, this authority has shifted. Whereas the use of force in instances of self-defence continues to lie with states, any other instances, as the UN charter in Article 24 states, has been shifted to the Security Council and to some extent, as stated in Article 10 and 11, to the General Assembly. So, the authority keeps changing leading to inconsistency in the application of the doctrine.
Further, the criteria of reasonable chances of victory are quite controversial and contradictory in the sense that on one hand, the just war doctrine states war is to be waged either to control the public evil or to bring about the greater good. However, applying the reasonable success analogy, a weaker nation mustn’t wage war with a powerful nation and must bear with the suffering only because it doesn’t have chance to win which doesn’t make any sense.[4]
In the century preceding the first world war the just war doctrine was subjected to heated debates and discussion but towards the end of first world war, the doctrine almost vanished from the writings on international humanitarian law.[5] With the codification of UN Charter in 1945, the just war theory has been completely jeopardised because of Article 2(4) of UN Charter which expressly prohibits the use of force by one sovereign state over another no matter what the circumstances are. It has been left entirely to the discretion of international organisations such as ICC, ICTY, ICTR, UN Security Council to decide how to control hostile activities of certain states as opposed to the doctrine of just war which states war can we waged by any nation against any nation if the former considers it to be justified based on certain criterion.[6]
Attempts were made to take the doctrine forward by getting it codified but in vain and over centuries it has only remained an ethical standard as the emphasis has shifted more towards codifying legislation to control the hostilities between sovereign states and trying to make it impossible for the states to mobilise their armed forces to create menace for its political rivals and even worse, in a disguise of the justified act.
Likewise, if the doctrine is broken into individual parts it has so many lacunae; for instance, the basic limiting premises of the doctrine such as discrimination, just cause, right intention, military necessity, etc, it is seen that they have become quite obsolete under the present conditions because this doctrine facilitates even nuclear wars to be waged conveniently if some just cause is shown which is imminently dangerous to the entire world at large because nuclear wars, once begun, destroy the earth to ashes and there is nothing left to even discuss after the destruction has always been caused and lots of lives lost leaving nothing behind but a mindless witch hunt for expansion of territories or political agenda, and a nugatory victory of one of the belligerents. Moreover, not all the wars have equal opponents on both sides viz availability of nuclear weapons, and other requisites of a good warring capacity often leading to unfair victories and amidst all this, hapless and innocent non-combatants are subjected to violence.
Many years before the nuclear weapons even existed on earth, Georges Scelle put forth “Every recourse to violence is a war. If we introduce here any subjective elements, notably the will to make war, there is no longer any security. What must be forbidden is precisely the will to do justice for oneself [se faire justice a soi-meme]. If we wish to proscribe war … we must wholly remove from international law the possibility of taking justice into one’s own hands.”
Even the proponents of this theory, such as Michael Walzer who stated war is no less than a tyranny, didn’t want war to be used conveniently as a means to change the state of affairs. War was always meant to be used as a last resort however if the theory is being subjected to gross misuse there arises a need to do away with such a theory which justifies war as a mode of justified violence. It used to be permissible once because it is a lesser still but in the end, it is still an evil.
Conclusion:
The Just War Theory has survived around for more than 1600 years without significant change to its basic principles; meanwhile, interpretations by just war theorists, philosophers, military leaders have provided endless justifications to go war. By now, jus in belllo principles need to be significantly re-equipped to become pertinent to 21st century international relations and international peace and security, dimensions of warfare, including cyber warfare, state and non-state sponsored terrorism, proxy wars and drone warfare.[7]
However, if the international organisations so want to preserve the age-old just war doctrine and incorporate it in the 21st century war conditions, the core tenets of the doctrine i.e., Just Cause, Legitimate Authority, and Last Resort principles need to be thoroughly reconstructed so as to ensure unjust wars don’t prevail under the guise of just wars.
In the light of the above discussion, in the opinion of authors, the good old pacifism alone appears to be most virtuous of all the war doctrines that ever existed as it perpetuates the noble cause of peace and leaving it to the international organisations to decide the right conduct of states and ensure justice is the most harmless of all options as it immensely extricates the states form the hassle of agitating their own people and enormous squandering of natural resources because if the just war theory is made to be legally permitted, the world will come to an end someday because of massive killings by powerful nations.
REFERENCES:
[1] Rome Statute of International Criminal Court (ICC), 1998, treaties.un.org.
[2] Rodriguez, Roberto. Apr (2011). The Principles of the Just War Doctrine and the Invasion of Iraq, www.researchgate.net.
[3] Sullivan E. James Dec (2018), Just War Theory Has Become Obsolete, www.researchgate.net.
[4] Helmke Belinda, Just Not Good Enough, Vol. 76, Australian Institute of Policy and Science, pp. 21-25, 40, (Sep. – Oct., 2004).
[5] Rengger Nicolas, On the just war tradition in the twenty-first century, Vol. 78, Royal Institute of International Affairs, pp. 353-363, (Apr., 2002).
[6] Nussbaum Arthur, Just War: A Legal Concept? , Vol 42, Michigan Law Review, pp. 453-479, (Dec., 1943).
[7] Miller H. Lynn, The Contemporary Significance of the Doctrine of Just War, Vol. 16, Cambridge University Press, pp. 254-286, (Jan., 1964).
