The Hindu : Defending wars

Online edition of India's National Newspaper
Friday, Jan 03, 2003

Opinion

Opinion - Leader Page Articles

Defending wars

By Arpita Anant

The politics of targeting select states will only result in more flagrant violation of the norm of limited use of force.

THE BACKDROP of an impending U.S. attack on Iraq presents yet another occasion to rethink the limits to use of force in the international arena. It reinforces the point that what is needed is an objective and enforceable, normative yet realist criterion allowing marginal scope for legitimate use of force. The doctrine of just war consists of two main dicta, jus ad bellum and jus in bello. The first is a justification for going to war and the second, for justifying acts committed in wartime. Thus jus ad bellum takes into account the elements of proper authority, just cause, right intent and peaceful end; jus in bello stands for proportionality and discrimination in the means used for waging a war. The existence of peremptory and legal norms regarding adherence to these principles of use of force in the international arena beckon the question: can there indeed be any such thing as a just war?

The classical origins of the doctrine of just war can be attributed to the idea of "pan Hellenism" in the Greek world, which advocated restraint upon war among Hellenes. Stoicism, a century before Christ, provided a philosophical basis for a cosmopolitanism embracing all mankind. A Hebrew parallel to this was found in the extension of the concern of Yahweh's covenant to include non-Israelis. Thus, "among people who looked upon themselves as akin, war was considered a hideous extremity". In the first century AD, Cicero gave a new interpretation of just war based on the legitimacy of the authority waging wars. To be just, war had to be waged by a state according to an ultimatum issued by a college of priests called Fetialis, and concluded by them through truce and treaties. He also raised a concern for the proper treatment of the vanquished since he believed that only a just war followed by a generous peace could help strengthen the empire.

Until the accession of Constantin on the seat of Rome in 180 AD, Christianity was pacifist. Then a Christian ethic of war came to be formulated by St. Ambrose and St. Augustine, the culmination of which can be seen in Summa Theologeae of St. Thomas Aquinas, who put forward three requirements for a war to be just — first, that it must be waged by a legitimate authority, the sovereign, whose job is to protect people from external threats; second, that there be a just cause in the form of correcting an injustice that had been committed; and finally, a right intention of promoting good and avoiding evil. Aquinas may also be credited for the introduction of the principle of discrimination in treatment of non-combatants, especially innocent persons, in wars. Fransisco da Vittoria proposed another major principle of just war, that of proportionality i.e. proportionate and controlled use of force with the purpose of limiting damages. The horrors of World War I and II prompted the Church to move away from just war to pacifism. The 1963 Encyclical of Pope John XXIII entitled Pacem in Teris declared that "(I) n this age which boasts of atomic power it no longer makes sense to maintain that war is a fit instrument with which to repair violation of justice".

Supplementing this religious evolution of the just war doctrine was its secular/legal growth. During the age of Enlightenment in the late 17th and 18th centuries, numerous peace plans were elaborated that revived the just war theory in secular manner. Hugo Grotius in his Law of Peace and War made war subservient to law: an instrument of justice and a tool of peace. Immanuel Kant opined that war could be just only if force was used collectively. After many attempts at limiting war in the international system (in the form of the Hague Conventions of 1899 and 1907 which limited the use of force for the recovery of contract debts; the Bryan treaties which required provision of a cooling off period during which a conciliation commission could try to resolve the dispute; the League of Nations which laid obligations not to resort to war; the Geneva protocol of 1924 which labelled aggression as a crime and the Treaty of Mutual Guarantee (Locarno Pact) of 1925 which made pacific settlements of disputes mandatory for its signatories) came the historic Kellog Briand pact which prohibited every kind of war. However this pact failed to provide any alternate measures through which changes could be effected in the international system.

The rude shock of the Second World War led to the formation of the United Nations, which was created with the purpose of maintaining international peace and security. Article 2 (4) of the UN Charter outlaws war in very clear terms. The Charter also prohibits use of force with two exceptions: Article 42 of the Charter makes provisions for collective security operations authorised by the Security Council. While the politics of the cold war prevented any collective security operations, (a compromise was achieved in the form of the doctrine of peacekeeping which has a mixed record in preserving peace ; the second permissible condition for use of force is in cases requiring individual and collective self-defence vide Article 51.

As regards jus ad bellum, there exist very careful expositions of the validity of preventive wars, pre-emptive strikes and use of force in self-defence. In the context of the probability of an invasion of Iraq, the issue for consideration may be the justice of intervention. According to specialists, intervention may be justified if there is a clear evidence of an attempt at self-determination on the part of the peoples of the state; intervention on behalf of secessionists is considered legitimate if there is proof of the resultant political community willing to survive independently; intervention in civil war is justified if the weaker group has organised enough for self-help; and humanitarian intervention is lawful if it is on behalf of the weaker groups and for achieving their ends. While it is true that establishing facts and justifying claims in these instances is likely to be dubious, we can surely conclude that unilateral action in Iraq cannot be termed as intervention nor as an act of self-defence. Further lacking the endorsement of the UN, it will not qualify as an act of collective security, rather it will qualify as aggression.

As an act of aggression, such an invasion would then be subject to the laws of jus in bello. On most counts, it would be found defying these laws of proportionality and discrimination. First, this invasion will violate the four basic principles underlying the concept of limited war. The principle of political primacy which states that the war shall not become an end in itself with its own independent logic compelling events in pursuit of military victory and related to this, that there be a proportion between the ends and the means of war; the principle of restraint in the use of psychological instruments of policy, the Government's public relations and propaganda operations; the principle of fight and negotiate policies and finally that of a flexible response. Ironically, since in all likelihood this will be a unilateral invasion, the only maxim of limited war that it will adhere to is that of geographical confinement. Second, it will violate the idea of non-combatant and civilian immunity in war-zones (as in Afghanistan) in deference to argument of urgent/extreme military necessity and cause widespread casualties. The situation is complicated then by the ensuing tension between jus ad bellum and jus in bello as evidenced in the terror bombing of the German cities of Dresden and Hamburg and the atomic bombing of Hiroshima and Nagasaki.

The U.S.-led multilateral invasion of Iraq in 1990 may be justified on the grounds of liberation of Kuwait. However, in the present context, an invasion would not be justified. The presence of large stockpiles of weapons of mass destruction in Iraq is certainly is cause of worry. However, the politics of targeting select states will only result in more flagrant violation of the norm of limited use of force.

(The writer is a senior research scholar, Centre for International Politics, Organisation and Disarmament, School of International Studies, JNU.)

Printer friendly page
Send this article to Friends by E-Mail

Opinion

Stories in this Section

Dangerous talk

Restructuring higher education

Hinduism in danger?

Defending wars

People pine for democracy