Below is a long essay and some questions that gives even further consideration to these issues

 

This section provides a brief introduction to the ethics and laws of war in three parts.

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The first part outlines what international law and the 'just war' tradition have to say about recourse to force.

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The second section explores the conduct of war and;

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The final section explores two contemporary issues as examples of moral and legal debate: the legitimacy of pre-emptive self, defence and the use of cluster munitions

 

In early 2003, millions of people took to the streets of Australia's capital cities to protest the government's decision to join the US in the invasion of Iraq (I was there, with hair as well!). Protesters argued that the war was immoral (because innocent civilians would die), illegal (because it was neither an act of self-defence nor explicitly authorised by the UN Security Council) and unnecessary (because they did not believe that conclusive evidence of Saddam's weapons of mass destruction (WMD) program had been presented). In its defence, the Howard government mixed legal justifications with moral and strategic claims. Borrowing advice from the British, it argued that the war was legal because it had been tacitly authorised by UN Security Council resolutions dealing with Iraq's invasion of Kuwait in 1990; morally just, because it aimed to overthrow a tyrannical regime that had butchered hundreds of thousands of its own citizens, and strategically important because Saddam's WMD program threatened regional security and raised the possibility of a nightmare scenario long predicted by terrorism experts - a rogue regime passing WMD capabilities to terrorist groups.

 

Once war was underway there were also important debates about how it should be conducted: Australian and American forces had different 'rules of engagement' telling them when and how they could use lethal force to attack a target, with Australian rules being considerably tighter than American rules; deep concerns were expressed about the portrayal of Iraqi prisoners of war in the Western media; doubts were raised about whether American forces in particular were taking all reasonable precautions to avoid civilian casualties and; persistent questions remained about the treatment and torture of prisoners suspected of having links to Islamic terrorists or Saddam's regime.

 

Questions about when it is legitimate to go to war and how war must be conducted are central to public and political debates and play a significant role in policymaking and military decision-making, especially in the West. Although some realists argue that there is no place for morality in decision-making about war, in fact the politics of war is deeply imbued with moral and legal arguments. Decisions to invade Iraq, Afghanistan, Darfur or, for that matter, Turkey (Gallipoli) are only partly strategic choices. Indeed, the strategic question of whether we can achieve our aims through force is secondary to the question of whether we ought to do so. Likewise, decisions about how to fight are shaped by our politics and our ethics. These questions of legitimacy generally fall into two categories:

 

Jus ad bellum, which deals with the moral justification for the use of armed conflict and;

Jus in Bello, literally, ‘The Law in Waging War." This concerns the actions of global actors involved in armed conflict.

 

When is it Right to Fight (jus ad bellum)

Contemporary international law on the use of force is based upon the UN Charter. Prior to the Charter (which was agreed in 1945), it was widely considered that states had an inherent right to wage war whenever they believed that they had a case for doing so, be it to defend themselves, protect their interests, or claim a territory. After the horrors of World War II, it was agreed that this regime was too permissive. Thus, Article 2(4) of the UN Charter explicitly forbids the use or threat of force in international relations. This is considered a fundamental rule of international relations, from which there are only two exceptions. First, all states have an inherent right to self-defence when they are attacked, set out by Article 51 of the Charter. Second, the UN's peak body for peace and security issues, the Security Council, has a right under Article 39 of the Charter to authorise collective enforcement action. To pass a so-called 'Chapter VII' resolution, the Council needs to:

• Identify a threat to international peace and security;

• Nine of the fifteen Council members must vote in favour, and;

• None of the permanent five (P5) members (US, UK, Russia, China and France) must vote against it. This gives the P5 effective veto on collective action.

 

Contemporary 'just war' writers have tended to criticise the UN Charter system for forbidding aggressive war and downplaying the role of justice in determining a war's legitimacy. As many have argued, labelling a war as 'aggressive' does not resolve the question of whether or not it is just, yet the UN Charter makes precisely that presumption. The Charter's drafters chose this highly restrictive model to help prevent future world wars. The key to conflict prevention, they believed, was to remove any ambiguity in the legal framework by building a 'presumption against aggressive war' into the Charter. This presumption may have contributed towards the steady decline of interstate war since 1945. It has also produced some perverse effects, however. In 1979, Vietnam invaded Cambodia to remove Pol Pot, a genocidal dictator whose regime murdered at least one and a half million Cambodians. The presumption against aggressive war forced Vietnam to justify its invasion by claiming that it was acting in self-defence, which was rejected by many states who imposed sanctions on Vietnam, demanded its immediate withdrawal from Cambodia and even offered indirect support to the Khmer Rouge who were recognised in the UN as the representatives of the Cambodian state until the 1990s. This tension between the law's presumption against aggressive war and an ethical 'presumption against injustice' is arguably the central dilemma of jus ad bellum today. This is particularly relevant in terms of the issue of humanitarian intervention where there exists a moral justification to use armed force but a legal justification, which seeks to prevent the use of force. The emergence of the Responsibility to Protect seeks to provide a legal justification for intervention on moral grounds, though as we have seen, it has not yet reached the status of an international law and remains instead an international norm.

 

The Just War tradition provides the following criteria for states to assess whether the resort to armed conflict is morally just:

 

The first criterion is right intention. Individuals must wage war for the common good, not for self-aggrandisement or because they hate the enemy. Right intention is seldom discussed nowadays and it has recently been suggested that it should be dropped because it is not clear why actors must have right intentions when they wage war. This argument overlooks the role that right intentions play in the justification of killing itself. Most moral traditions accept the basic proposition that killing for personal gain or through hatred or envy is wrong. When a soldier kills another, therefore, he must do so only because it is the only way of defending the common good or righting a wrong.

 

The second substantive rule is that war may only be waged for a just cause. This is usually limited to self-defence, defence of others, restoration of peace, defence of rights, and the punishment of wrongdoers. Just cause is often viewed in absolute terms: a combatant either has a just cause or does not. Today, this tendency is supported by legal positivism, which holds that actors either comply with the law or violate it. However, since Francesco  de Vitoria in the sixteenth century, most 'just war' writers separated objective or true justice (knowable to God) from subjective justice (knowable to humans). Thus, wars can appear just on both sides. There are two ways of coping with this. First, as Vitoria argued, princes should show due care before they wage war. They should seek advice from learned people and listen to the opponent's arguments. Second, the just cause rule should be understood in relative terms. It is not a matter of either having or not having a just cause, but of having more or less of one. Sometimes this is labelled 'sufficient cause': do we have a sufficiently just cause to legitimise the actions we plan to take? This, of course, requires an assessment of two factors: the reason for war and the intended strategy.

 

Proportionality of ends asks whether the overall harm likely to be caused by the war is less than that caused by the wrong that is being righted. Vitoria suggested that proportionality played a significant role in judgments about the legitimacy of war. Whilst war was legitimate to right wrongs, not all wrongs legitimised war. Some wrongs were neither grievous nor widespread enough to legitimise the inevitable evils that war entailed. On this view, proportionality is more than a prudential calculation. After all, prudence is always viewed from the eye of the beholder. A prudential account of proportionality would ask only whether the likely costs to us are greater than the likely benefits. Proportionality in the Vitorian sense requires a calculation of all the likely costs.

 

The final rule is that of last resort. Is the use of force the only, or most proportionate way that the wrong is likely to be righted? Last resort does not require the exhaustion of every means short of force. If it did, force would never be licit because one can always continue to negotiate. Instead, last resort demands that actors carefully evaluate all the different strategies that might bring about the desired end, selecting force if it appears to be the only feasible strategy for securing those ends.

 

Prudential criteria impose important checks on decisions to wage what would otherwise be justifiable wars. The principal prudential check is reasonable chance of success. This criterion holds that as war always entails some degree of evil, it is wrong to wage war for a justifiable purpose unless those instigating it can reasonably expect to prevail. From a realist perspective, prudence includes both the overall likelihood of success and--calculations about the costs of success. In other words, a state may be able to prevail but the cost of prevailing may be higher than it wishes to pay to satisfy a particular just cause. Because, from a realist perspective, political leaders have a primary moral responsibility to the welfare of their own citizens, they may not sacrifice that welfare unless their vital interests or fundamental values are at stake.

 

Jus ad bellum criteria

1 right intention

2 just cause

3 proportionality of ends

4 last resort

5 prudential check, and

6 procedural requirements.

 

How Should War be Waged? (jus in bello)

The legal and moral rules governing the conduct of war are much more clearly defined than the jus ad bellum rules, and today there is even an International Criminal Court (ICC) to prosecute those charged with war crimes, crimes against humanity and genocide in cases where the host state is either unwilling or unable to prosecute offenders.

 

International society's first attempt to grapple with jus in bello issues after World War II came in the form of the four Geneva conventions of 1949. The International Committee of the Red Cross (ICRC) convened a meeting of experts in 1947, which produced a draft convention that was then put to states at a conference in Geneva in 1949. Although there

was considerable agreement on the fundamentals, such as the need to afford further protection to non-combatants and prisoners of war, and the need for some sort of oversight, a number of issues proved contentious. The ICRC's draft had envisaged a convention that applied to all forms of armed conflict, but many states- particularly newly decolonised states and colonial powers - did not want protection afforded to rioters, guerrillas and terrorists. On the other hand, countries that had been recently occupied by the fascists worried that a rule giving states a free hand to suppress local insurgents could be used by unjust aggressors to justify brutality towards the host population and insisted that the convention recognise that partisans had liberated parts of Europe. The result was a compromise. Common Article 3 committed parties in 'non-international' wars to respect human rights without specifying any particular privileges for insurgents and the Convention on the Protection of Civilians (Convention IV) offered comprehensive legal protection to non-combatants in occupied territories. The upshot, however, was that the victims of international wars received more protection from the laws of war than the victims of civil wars.

 

The Geneva conventions comprised a comprehensive code of jus in bello, granting wide protection to non-combatants, the wounded and sick and prisoners of war. By the 1980s, it was widely held that the conventions had the status of customary law binding on all. Consequently, grave breaches of the conventions were universally punishable, though there remained no instrument for punishing perpetrators. Moreover, within a decade or so of their enactment, it became clear that there were significant gaps in the conventions. Not least, there was no prohibition on indiscriminate bombardment and no proportionality clause in the four conventions. Furthermore, decolonisation and the overwhelming preponderance of internal wars created an impetus for extending the protections afforded in international wars to internal conflicts. Between 1974 and 1977, states returned to Geneva to negotiate additions to the conventions.

 

The first Geneva Protocol significantly extended the protection afforded to non-combatants. It insisted that attacks be strictly limited to military objectives, defining these as 'those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage' (Article 52, Protocol I). In other words, soldiers were forbidden from attacking non-combatants or their property, though so-called 'dual use' facilities remained lawful targets. Soldiers were also obliged to evaluate the proportionality of their attacks, with Article 51(5) outlawing attacks on military objects which 'may be expected to cause' excessive civilian casualties. The Protocol also

forbade the indirect targeting of non-combatants through attacks calculated to destroy vital civilian infrastructure and cause starvation. The Protocol's principle of discrimination provided the catalyst for conventions banning weapons considered inherently indiscriminate.

 

For example, the 1980 Convention on Conventional Weapons and subsequent amendments banned booby traps, lasers, and weapons that injure by creating fire and heat, on the grounds of inherent indiscriminacy. The 2000 Convention prohibiting the manufacture, sale and use of landmines was also justified on this basis. Of course, the question of discrimination made it problematic for the nuclear powers to adopt the Protocol because it is very difficult to see how nuclear weapons could be used discriminately. Despite the non-signature of states such as the US, UK and Russia owing to concerns about the legality of their nuclear arsenals, all three have indicated that they believe the Protocol to be binding and that the legality of the use of nuclear weapons is indeterminate, a position confirmed by the International Court of Justice (ICJ) in the Legality of Nuclear Weapons case. Protocol II regulated how states might respond to internal insurgents. Above all, it reinforced the basic idea behind human rights law that states were not free to treat their own citizens however they liked, though Protocol II afforded states considerable latitude in deciding whether or not a particular insurgency could be labelled an armed conflict, thereby bringing the Protocol into play. Nevertheless, some states -particularly the US - complained that Protocol II gave too many rights to 'terrorists' and tied the hands of states combating them.

 

Through the Geneva conventions and protocols and other instruments such as the Genocide Convention (1948), a comprehensive system of positive law designed to moderate the use of force and protect non-combatants has been created. The system did little, however, to deter despots such as Pol Pot and Idi Amin from systematically massacring non-combatants. Furthermore, in the so-called 'new wars' of the 1990s, the direct targeting of non-combatants once again became a war strategy. As a result of this seemingly growing impunity before the law, the question of enforcement was raised once again, culminating in the creation of the ICC in 2002.

 

The moral restrictions on the use of force are very similar to the legal prohibitions. There are three basic rules. First, the principle of discrimination: non-combatants must never be deliberately attacked. Second, the principle of proportionality: military targets may only be attacked when their military value outweighs the foreseeable destruction that will result. Third, combatants must not use prohibited weapons or conduct themselves in ways that violate the laws of war.

 

Underpinning the jus in bello is the doctrine of double-effect, first articulated in the thirteenth century by St Thomas Aquinas. According to Aquinas, the doctrine holds that any act may have two consequences: one that is intended and one that is not. Even if we intend good, our actions might cause unintended negative consequences. According to the doctrine of double-effect, unintended negative consequences are excusable if four conditions are satisfied:

 

1. The desired end must be good in itself.

2. Only the good effect is intended.

3. The good effect must not be produced by means of the evil effect.

4. The good of the good effect must outweigh the evil of the evil effect (proportionality)

 

There is a major flaw with this rendition and double-effect injunctions ought to be treated sceptically. It is worth quoting Walzer at length here:

 

Simply not to intend the death of civilians is too easy ... What we look for in such cases is some sign of a positive commitment to save civilian lives. Not merely to apply the proportionality rule and kill no more civilians than is militarily necessary ... Civilians have a right to something more. And if saving civilian lives means risking soldier's lives, the risk must be accepted.

 

The idea that it is possible to separate intent and act, particularly when referring to individuals in combat, has often been criticised. Critics argue that there is no practical difference between intending the deaths of non-combatants near military targets and merely foreseeing it. According to Walzer and the contemporary laws of war, although we can never fully know an actor's intentions, we can ascertain something approximating intentions by focusing on actions. To display an intention not to harm non-combatants, combatants must demonstrate both that they did not deliberately seek to kill non-combatants and that they have taken every reasonable precaution to minimise the likelihood of harming non-combatants (due care). However, there remain significant differences over how much additional risk should be accepted. These debates cannot be resolved in the abstract, but only through empirical assessments of individual cases. The remainder of the chapter outlines two important contemporary debates, one in relation to recourse to force and the second in relation to the conduct of war.

 

Jus ad bellum dilemma: Pre-emption

 

After 11 September 2001 both the US and Australian governments have put forward a case for pre-emptive self-defence. John Howard, for example, argues that Australia would use force overseas if it received information that terrorists were preparing an attack against Australians and the host state refused to act. This doctrine was condemned by both Australia's neighbours and Howard's domestic opponents, but is it illegal and/or unjust?

 

Since 1945, interpretations of Article 51 of the UN Charter have tended to fall into one of two camps, restrictionists and counter-restrictionists. Restrictionists insist that Article 51 expressly rules out pre-emption, arguing that states have a right to use force in self-defence only after an armed attack has occurred, a view supported by the ICJ in the Nicaragua v. US case. They argue that if these limits were loosened, states would be encouraged to abuse the right to self-defence, eroding the distinction between aggression and defence. Although there is evidence that the Charter's drafters intended Article 51 to provide only a limited right of self-defence, the idea that a state should wait to be attacked before taking measures to defend its citizens has been widely criticised.

 

Counter-restrictionists argue that Article 51 does not diminish a state's inherent right to pre-emptive self-defence. There are at least three justifications for this view. First, it is implied in the Charter's language. Article 51 explicitly endorses a state's inherent right to self-defence.

 

That inherent right is said to include a right of pre-emption. Second, states have tended to judge pre-emption on the merits of each case. When the threat is demonstrably imminent, international society has shown itself willing to tolerate pre-emption. The paradigmatic case of this was the world's reaction to Israel's 1967 pre-emptive attack on Egypt. Although some states condemned Israel, many others accepted that it was necessary for Israel to use force to defend itself. Finally, there is a strong tradition of moral thinking in favour of pre-emption. Historically, prominent writers like Grotius and Pufendorf in the seventeenth century, and Vattel in the eighteenth century have tended to identify a limited right of pre-emption.

 

The balance of argument suggests a right of self-defence that permits pre-emption in some cases but forbids 'preventive' attacks before a threat has become imminent. In what situations is pre-emption justifiable? Where do we draw the line between pre-emption and prevention? We can begin to answer these questions by considering the exchange of diplomatic notes between the UK and US concerning the sinking of the Caroline in 1837

 

According to the Caroline case, in order to invoke a right of preemption, a state has to demonstrate (1) the imminence of an attack, (2) the necessity of pre-emption and (3) the proportionality of its intended response.

 

States therefore have a limited right of pre-emption in cases that satisfy these three criteria. Jurists worry, with good reason, that expanding the right beyond the Caroline formula would blur the boundary between legitimate defence and unjust aggression. In the post-September 11 world, we are confronted with a tricky dilemma - defining what 'imminence' means in relation to terrorism. As George W. Bush (2002) put it, when it comes to terrorism, 'we cannot wait for the final proof - the smoking gun - that could come in the form of a mushroom cloud'. One way of rethinking 'imminence' without undermining the legal and moral balance would be to suggest that an attack is imminent if the enemy has demonstrated an intention to attack and has acquired the means to do so. In relation to terrorism, this might suggest that states are entitled to use force to pre-empt an attack even if they do not know the precise timing and location of an expected attack. It is imperative, however, that those using force in this way provide compelling evidence of the target's intent to attack and ability to do so.

 

 

Jus in bello dilemma: cluster bombs

 

Cluster bombs are designed to deliver a large amount of smaller submunitions over a significant area, increasing the overall radius of destruction that a bomb can achieve. They are generally meant for use against troop concentrations, airfields - especially runways – and air defence units. Even when targeted at military objects, cluster bombs present two sets of problems: first, because the submunitions are not individually targeted there is a high chance that the bomb attack itself could cause casualties among non-combatants. Second, unexploded submunitions effectively become anti-personnel landmines. As a result, in 2007 a group of states and non-government organisations led by Norway began a campaign to ban the use of cluster bombs.

 

The key question here is whether the inability to direct each submunition and the threat that unexploded submunitions pose to non-combatants makes the weapon inherently indiscriminate. The 1977 Protocol I provides guidance. The Protocol prohibits attacks 'which employ a method or means of combat which cannot be directed at a specific military target' (Article 51 ( 4) (b)) and forbids bombings that treat 'separate and distinct' military targets as one (Article 51(5)(a)). At very least, this suggests that cluster bombs can only be discriminately used against military targets that are well away from civilian areas. Even if this condition is satisfied, however, cluster bombs may still have an indiscriminate effect. Protocol I defines indiscriminate attacks as including those 'which employ a method or means of combat the effects of which cannot be limited as required by this Protocol' (Article 51 ( 4) (c)). Coupled with the requirement to take 'all feasible precautions' to protect non-combatants, it is difficult to see how an attack in an area likely to be frequented by non-combatants before those that launched the attack have had the opportunity to remove unexploded submunitions can be considered discriminate (Cryer 2002: 61 n.13 7).

 

The US made widespread use of cluster bombs against frontline targets in Afghanistan. In several cases, cluster bombs killed non-combatants on impact. According to Human Rights Watch, the choice of cluster bombs to strike targets relatively close to residential areas constitutes a failure to take 'all feasible precautions'. Indeed, it argues that the use of cluster bombs near residential areas should be presumed indiscriminate. The element of indiscrimination comes into play when a cluster bomb hits its intended target but some of its submunitions nevertheless harm non-combatants. However, in many cases the non-combatant casualties may have been the result of bombs missing their target, meaning that the killings were a mistake rather than a direct consequence of the type of munitions used. Given this, it is worth posing the proportionality question of whether the danger posed by large numbers of small munitions is greater or less than that posed by the alternative - a single unitary bomb. The US Defense Department is on the record as arguing that unitary bombs cause more collateral damage than cluster bombs because they have a larger blast range (Human Rights Watch 2001). Whilst the submunitions damaged civilian buildings, unitary bombs would have flattened them.

 

The much more problematic issue in relation to cluster bombs is their indiscriminate effects. Each submunition that fails to explode on impact effectively becomes a landmine - commonly believed to be inherently indiscriminate because it detonates irrespective of whether it is touched by a combatant or non-combatant. Do these ostensibly indiscriminate effects mean that the use of cluster bombs themselves should be deemed indiscriminate? One could argue that cluster bombs are much like any other weapon in that all weapons pose an indiscriminate threat when they malfunction. However, has the US taken every feasible precaution to minimise the damage that unexploded ordnance causes to non-combatants and civilian property?

 

At war's end there were between 12,221 and 53,772 unexploded sub munitions in Afghanistan. Even at the lower end, this posed a significant threat to non-combatants.

 

The first way to reduce this threat would be to lower the failure rate. The failure rate of newer weapons is considerably lower than older weapons but there are reports that the US made extensive use of old munitions weapons in Afghanistan. Because unexploded sub munitions pose a continuing threat to non-combatants after the cessation of hostilities, those that delivered them have a responsibility to do everything feasible to remove them. Anything short of this breaches the principle of due care. Although de-mining and the removal of unexploded munitions have progressed apace in Afghanistan, the overwhelming bulk of the effort was conducted by the UN Mine Action Programme and nongovernmental organisations such as HALO. By the end of 2002, 111 cluster bomb sites had been cleared out of an estimated total of 227 with much of the remainder being cleared in 2003-4 (Human Rights Watch 2002). The most troubling issue was the very limited role played by the US government, the actor with the primary moral responsibility for removing the weapons. Most de-mining agencies in Afghanistan told Human Rights Watch that the US government provided little or no help, and that it had not even provided accurate information to de-miners. In the first eight months after the war, the US donated only $7 million in cash and equipment to the de-mining effort

 

On two counts, therefore, the US failed the due care test. First, it used old weapons with relatively high failure rates in close proximity to residential areas. Second, having dropped cluster bombs, the US and its allies failed in their responsibility to remove the threat to non-combatants posed by unexploded sub munitions.

 

Conclusion

Without ethical and legal constraints on both the decision to wage it (jus ad bellum) and its conduct (jus in bello), war is nothing more than the application of brute force, logically indistinguishable from mass murder. But it need not always be this way. Today there is a well-developed set of moral and legal rules governing the use of force and international institutions designed to enforce them.

 

Nonetheless, it is the ever-present danger of the descent into barbarism that makes the ethics and laws of war so important today and in democracies especially every individual has a responsibility to use his or her own judgment to interrogate the morality of violence employed in their name. To return to where we started, the Australian debate about whether or not to invade Iraq and when to withdraw demonstrates only too well the practical veracity of the rules and ideas set out in this chapter. Neither advocates nor opponents rejected the existence of rules. Instead, they disagreed about the guidance they gave in this specific instance. This is entirely as it should be. The principles described in this chapter do not provide answers; they simply set out ways of having meaningful conversations about the myriad dilemmas presented by war. These are not idle or unimportant debates because they determine not only the future trajectory of politicians' careers but also the future life-chances of countless thousands, if not millions, of people.

 

Questions

1. What is the relationship between the 'just war' tradition and the laws of war?

2. In what ways should the 'just war' tradition be reformed to bring it up to date?

3. Are some weapons, like cluster bombs and nuclear missiles, inherently immoral or does it all depend on how they are used? . .

4. Why was there so much opposition to the 2003 invasion of Iraq? Do you think the opposition was justified?

5. Is it fair that both the just side and the unjust side in war have to abide by the same rules?

6. Does the 'just war' tradition serve to limit war or enable it by providing moral justifications for killing?