An analysis of the Just War Doctrine
by Charles Clinch
As the world community continues to push towards and realize globalization, the necessity of standards for conduct in the international arena is essential. For centuries the question of war and its justification has been debated by western scholars; many look back to Hugo Grotius and temperamenta belli as the foundation of modern concepts behind Just War Doctrine (Kolb 553). In reality, the conditions that justify war and doctrine governing the treatment of prisoners of conflict have much older roots. While the West has been all too happy to take credit for law governing the rational use of aggression, Muslims would argue “Muhammad al-Shaybani had formulated a doctrine…eight centuries before Hugo Grotius.” (Peters 7) This reality becomes almost ironic as scholars and diplomats attempt to consider the question of Just War and its application to the Bush administration’s War on Terror. In analyzing how the war on terror fits within the context of just war, it is crucial to first look at the principles behind Just War Doctrine and its historical roots. Once a basic understanding of this theory has been established, an analysis of the actions and policies of the United States post 9/11 provides insight into how the international community sees Just War Doctrine in the 21st century. What will become obvious is that the United States has aggressively pursued an elastic and expansive view of the conditions that warrant military aggression as an instrument of foreign policy.
Certainly it was the Treaty of Westphalia in 1648 that solidified the nation-state and warranted the development of formal international relations. Eventually the need to define the terms by which war was justified became a fundamental desire of the west which sought to solidify war within a legal framework. Indeed Hugo Grotius’ temperamenta belli served to provide a basis for jus in bello, the code by which war is conducted and how its participants are treated. As international relations continued to evolve, the need to clarify the factors that warranted war (jus ad bellum) resulted in a dogma that limited war as only acceptable in cases of self defense (Himes 142). In recent times jus in bello has become equated with international humanitarian law with an emphasis on the protection of civilians and the provision of basic rights for prisoners of war (Ratner 906). The tenets behind jus in bello were eventually codified in the Geneva Convention. On the other hand jus ad bellum is rooted in the General Treaty for Renunciation of War (1928) which was ratified outside the scope of the League of Nations and before the formation of the United Nations (Stemmet 25). The United Nations Charter did continue the spirit of the treaty in Article 51 which reaffirms the “inherent right of individual or collective self-defence.”
What many fail to realize is that these same ideas were debated and written about much earlier that the 17th century. Muslims struggled with the same concerns of western politicians centuries earlier as they pondered the meaning and scope of Jihad as called for in the Koran. Rudolph Peters provides insight in his book, Jihad in Classical and Modern Islam, a Reader; “During the second half of the eighth century the first comprehensive treatises on the law of jihad were written by al-Awzai and Muhammad al-Shaybani.” (3) Many of the same values found in modern international conventions and treaties were found in the law developed to define Jihad. The concepts of “the protection of noncombatants, lawful methods of warfare, treatments of prisoners of war [and] safe-conduct to enemy persons” were are issues defined in the books on law covering Jihad (Peters 5). Similarly the idea that war was only warranted in response to aggression was later reformed by Muslims like Muhammad ‘Abduh and Muhammad Rashid Rida in the early 20th century.
The basis for Jihad becomes relevant as the Bush administration touts the Islamic Jihad against America as one of the justifications for the War on Terror. Muslim extremists have been thrust to the forefront of U.S. foreign policy as President Bush proclaimed on September 20th “From this day forward, any nation that continues to support and harbor terrorism will be regarded by the United States as a hostile regime.” This speech formalized a U.S. policy that utilizes military power projection as a valid vehicle for foreign policy. Since the early days after September 11, 2001, under the guise of the “War on Terror” the United States has actively engaged in the overthrow of the Taliban in Afghanistan, detainment of citizens from numerous countries and aggressive military missions into peripheral states thought to harbor terrorists. Many allies of the United States have publicly voiced concerns over Geneva Convention violations of the rights of those detained. If this is a justified war as proclaimed by the U.S., the prisoners should be afforded the rights guaranteed under the convention. Unfortunately the United States fails to realize treaties and conventions all contextualize on another. In the War on Terror the U.S. has attempted to use the guise of self defense to justify the war while at the same time strip supposed terrorists of their rights declaring them not prisoners of war. Some question why the international community has supported the United States right to declare such a war. In general the international community failed to raise any concerns over the terrorism rhetoric and policies of the United States. The answer why emerges in the reality of Article 51 of the United Nations Charter. Aside from being vague, the clause leaves the determination of threat up to the state actor (Stemmet 25). This interpretation allows emotional response to play a role in international decision making. As Michael Byers put it “In the realm of international politics, at least a tenable argument may will be good enough – at least for the single superpower.” (412)
The implication of most sovereign states’ respect for the U.S. intervention in Afghanistan is an expansion of the definition of jus ad bellum. This expansion serves as a victory for U.S. realists that have long been pushing for an expanded view of what constitutes Just War. Terrorism was used early on in the push when in 1986 President Regan bombed Libya in response to a night club bombing in Berlin. Then “Secretary of State George P. Shultz, cited the right to use force in self-defense against state sponsors of terrorism.” (Himes 144) At that time the world community did not stand behind the United States actions with NATO criticizing the action thus preserving the foundation of jus ad bellum. With recent success the United States has attempted to further expand the justification for war. In 2003 President Bush used the self defense against development of weapons of mass destruction as a justification for invading Iraq. Fortunately the international community has decided to curtail the further expansion of jus ad bellum and continues to fight to ensure “necessary” self defense and the Security Council of the U.N. remain as checks against military intervention. This is but one small setback, realists in the United States will ensure the Bush administration continues to do its best to marginalize those treaties and conventions that limit the United States ability to use all avenues of its hegemonic power.
While the future of the United States specific foreign policy actions may not be known, what must be assured is the soundness of international law and Just War Doctrine. Evolution of the ideas since the Treaty of Westphalia can not afford to be turned back. Clearly the War on Terror has been used to re-contextualize the justification of military aggression. Fortunately the basis for jus in bello has been survived well due to specific guidelines established in the Geneva Convention. Jus ad bellum would be served well to be supported by such a document. Without explicit definitions and guidelines, nation states with contrary interests will continue to try to take advantage of the vague and elastic language. Perhaps the Western world would be served well to look more closely at Islam and see the guidelines for Jihad as a possible point for cooperation rather than continued contention.
Ratner, Steven R. “Jus ad Bellum and Jus in Bello after September 11” The American Journal of International Law Volume 96. Oct 2002. 905-921.
Stemmet, Andre. “International Law and the Use of Force: Some Post 9/11 Perspectives” RUSI
Journal. Volume 148:5. Oct 2003. 24-32.
Himes, Kenneth R. “Intervention, Just War, and U.S. National Security” Theological Studies. Volume
65:1. Mar 2004. 141-157
Rivkin, David B. and Lee A. Casey. “Leashing the Dogs of War” The National Interest. Fall 2003. 57-
Kolb, Robert. “Origin of the twin terms jus ad bellum/jus in bello” International Review of the Red
Cross. Oct 1997. 553-562.
Walzer, Michael. Just and unjust wars: A moral argument with historical illustrations, 5th ed., New
Zinn, Howard. Passionate Declarations. 1st ed., New York: Harper Collins, 2003.
Quinlan, Michael. “Don’t Give up on the Just War” Tablet. Jul 2003. 4-5
Byers, Michael. “Terrorism, the Use of Force and International Law After 11 September” International
and Comparative Law Quarterly. Vol 51:2. 2002. 410-415.
O’Brien, William V. The Conduct of Just and Limited War. New York: Praeger Publishers, 1981.
Johnson, James Turner. Can Modern War be Just? New Haven: Yale University Press, 1984.
Dworkin, Anthony. “Iraq and The Bush Doctrine of Preemptive Self-Defense.” www.crimesofwar.org/expert/bush-intro.html. August 20, 2002.
Bottum, J. “You say you want a just war?” The Weekly Standard Volume 8. April, 2003. 15-16.
Hehir, Bryan J. “An unnecessary war.” Commonweal Volume 130. March, 2003. 7-8.
Deller, Nicole and John Burroughs. “Jus ad Bellum: Law regulating resort to force.” Human Rights Volume 30. 2003. 8-11.
Published: Saturday, December 17, 2005
© 2014. The Regents of the University of California. All rights reserved.