CHAPTER 1
Introduction
According to Schaffer R, “International humanitarian law refers to those rules for how nations treat combatants, non-combatants, refugees, and other civilians during war or civil conflict”.
The aftermath of World War II on the non-combatant civilians and civilian properties led to the need for a worldwide parameter to protect non-combatants civilians and civilian property from the effects of armed conflict.
Humanitarian law principles has been in existence throughout several cultures in history but the codification of these rules at the international level started in the nineteenth century, when States sought to formalize and define international humanitarian law by formulating several binding treaties which includes
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It is intended to limit the violence of armed conflicts by protecting those taking no active part in hostilities, by protecting property not considered military objectives, and by restricting the combatants’ right to use any methods of warfare they choose.
International humanitarian law regulates situations of armed conflict. It applies in the whole territory of the States involved in a conflict, regardless of whether combat actually takes place there.
The rules of Humanitarian law applies only to armed conflicts, whether international or non-international, and is intended mainly for States and parties to a conflict e.g. armed groups. States are obliged to respect the norms, suppress any violations, and prosecute persons responsible for grave breaches.
Humanitarian law requires that parties to an armed conflict must differentiate between the civilian population and combatants. Civilians and civilian property are required to be constantly protected from harm. Attacks may be directed solely against military
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Jus ad bellum and Jus in bello
Under international law, there are two distinct rules applicable to war. These rules includes; the reasons for war and how war is to be fought. Theoretically, a just war can be fought in an unfair manner or to be engaged in an unjust war while complying with the laws of armed conflict. Therefore, the two branches of law are completely independent of one another.
Jus ad bellum is the right to start a war. It is the branch of law that defines the lawful reasons a state may engage in war focusing on certain criteria that render a war just. The source of jus ad bellum originates from the Charter of the United Nations Articles 2 and 51.
While, Jus in bello is the branch of law that come into effect once a war has begun. Its purpose is to regulate how wars are fought, regardless of how or why the war had begun.
The major distinction between the jus in bello and the jus ad bellum is that jus ad bellum refers to the governing law when a state may START a war, and jus in bello refers to the laws governing how a state must CONDUCT the
Jus ad bellum is defined as “justice of war” and is recognized as the ethics leading up to war (Orend 31). Orend contends that an...
According to Catholics for Peace and Justice, “the just war tradition begins with a strong presumption against the use of force and then establishes the conditions when this presumption may be overridden for the sake of preserving the kind of peace which protects human dignity and human rights.” The Just War Theory states that there are seven conditions that must be met in order for a declared war to be a true and just war. The first of these values is Just Cause. This means that force can only be utilized to correct an aggression or evil. If the war is being declared out of spite or to seek revenge, the war cannot be defined as being just. Also, there must be a formal declaration of war and warning with spoken terms of what the aims are and what this war will plan to fulfill. The next criterion is Comparative Justice which means the injustice suffered by one party can NOT significantly outweigh the suffering from the other party. For example, if the initial attack o...
“Never think that war, no matter how necessary, nor how justified, is not a crime.” As depicted in the quote by Ernest Hemingway war is a difficult situation in which the traditional boundaries of moral ethics are tested. History is filled with unjust wars and for centuries war was not though in terms of morality. Saint Augustine, however, offered a theory detailing when war is morally permissible. The theory offers moral justifications for war as expressed in jus ad bellum (conditions for going to war) and in jus in bello (conditions within warfare).The theory places restrictions on the causes of war as well as the actions permitted throughout. Within early Christianity, the theory was used to validate crusades as morally permissible avoiding conflict with religious views. Based on the qualifications of the Just War Theory few wars have been deemed as morally acceptable, but none have notably met all the requirements. Throughout the paper I will apply Just War Theory in terms of World War II as well as other wars that depict the ideals presented by Saint Augustine.
The Just War Theory has been shaped over the centuries by historians and philosophers. However, the most systematic account of the Just War Theory was formulated by Saint Thomas Aquinas in his Summa Theologicae. According to the Just War Theory, the moral reality of war is divided into two parts. Wars are judged twice, first with reference to the reasons nations have for fighting and secondly, with reference to the means they adopt in the actual fighting. (Walzer, 21) The first judgment is referred to as jus ad bellum, or justice of war. The second judgment is referred to as jus in bello, or justice in war. Jus ad bellum provides guidelines for assessing whether a war is just or unjust while jus in bello outlines proper conduct in war. Jus ad bellum does not imply jus in bello. Likewise, jus in bello does not necessitate jus ad bellum. It is possible for a just war to be fought unjustly just as it is possible for an unjust war to be fought justly.
Jus in bello includes keeping innocents outside the field of war, and limiting the amount of force used. Just War Theorists hold that all of these criteria must be followed for a war to be just. I will analyze The Just War Theories most debated arguments, self-defense, pre-emptive strikes, and the killing of innocents. In the second half of this paper, I will briefly explain Pacifism, and provide a counter argument for each Just War argument. Walzer includes self-defense in the just cause section of jus ad bellum.
hand, a limited war attempts to establish the way things were prior to the aggression
The Just War tradition is a set of mutually agreed rules of combat and may be said to commonly evolve between two culturally similar enemies. The Just War theory involved women and children or the treatment of prisoners. The Just War had undergone a revival mainly in response to intervention of nuclear weaponry. The Just War Theory possessing good intention constitutes the condition of moral activity, regardless of the consequences envisioned or caused, and regardless, or despite any self interest in the action the agent may have. When just war is engaged, the military ...
The “Trojan Horse” exists in humanitarian intervention as it is mixed with considerations of national interest, such as state influence, national power, prestige and access to potential oil supplies. For example, in Syria and Sri Lanka, the responsibility to protect norm has not done very little to protect populations within states. The author notes that the international community's feeble responsibility on the Darfur’s crisis has failed to recognize the role of the “responsibility to protect.” The West’s disinclination to intervene in Darfur raises skepticism about the West’s humanitarian intervention techniques, especially after the invasion of Iraq and western strategic interests in Sudan. Nevertheless, the notion of the responsibility to protect is important in the protection of human rights as it seeks to confront atrocity committed by states through prevention, protection or
The just war theory can be broken down into three components: jus ad bellum, jus en bello, and jus post bellum. Translated from Latin, these mean “justice before war, justice in war, and justice after war.” In this way, the Catholic Church is able to reconcile Jesus’s lofty teachings about loving your neighbor and causing no harm with protecting the innocent (Massaro 104).
Humanitarian Intervention generally means the use of military force to ensure the preservation of life, human rights, and freedom. Therefore, many believe that external intervention is a direct challenge to the sovereignty of a nation. However, when gross violations of human rights occur “punishing criminals…is something that most people would support because of their belief that this is what justice requires... If punishment can be justified, so can intervention to stop a crime that is about to occur, or is already in progress” (Singer 120). Therefore intervention is not only needed but a necessity when confronting crimes against peace and humanity. Specifically “acts that kill or inflict serious bodily or mental harm on large numbers of people, or deliberately inflict on them conditions of life calculated to bring about their physical destruction, and when the state nominally in charge is unable or unwilling to stop” (Singer
In order for a war to be just it must follow the Just War Doctrine/Theory. There are two principles to the just war theory. These two principles are “jus ad bellum” and “jus in bello.” Jus ad Bellum is Latin for the “right to war.” This principle is a set of criteria that is to be consulted before engaging in war. The following criterion determines whether or not a war is just. Proper Authority and public declaration is the idea that a war is only just if waged by a legitimate authority. Just cause or right intention, is that the aim of war must not be to pursue narrowly defined national interests but rather to re-establish peace. Probability of success is that there must be the belief that the war will be successful if they enter. This involves weighing the costs and benefits of waging war and emphasizes human life and economic resources. Proportionality, the violence used in war must be proportional to the attack suffered. The last criterion is that war must be waged only as a las...
Many countries are using humanitarian intervention as a way to invade other countries. This intervention is when countries invade other countries where they believe human rights are being violated. Humanitarian intervention seem like a great reason to justify an invading countries actions, but the only problem is that it is just a cover up. Countries are using this as an excuse to take over different lands and try to gain control. According to the article Humanitarian Intervention: A Legal Analysis, “Over the last forty years, a number of governments have justified unilateral military action with reference to the “customary law” of military humanitarian intervention in one form or another, and without exception, the international community
International law consists of international agreements to which countries have approved upon to be bound. Customary principles, which have been recognized by the international community as being ‘law’ and general principles of that law, are accepted by nations. However the problem lies when unlike domestic law, as there is no system of punishment or police to enforce international law if a country acts unlawful. If a country breaks international law, The international community has two options; they can chose to wither take military force against it, but evidently this happens extremely rare in practice or act through
A substantial argument which is increasingly becoming a matter of contention in the event of contemporary armed conflict is the applicability of civilian protection during armed conflict that involves non-state actors. This paper shall discuss the contemporary challenges facing international humanitarian law with regards to civilian protection during such armed conflict. It will concentrate on the situation in Afghanistan after the 9/11 attacks of 2001. The aim of the paper will be to analyze the reasons why civilians are neglected during conflicts and how the different actors involved in the conflicts influence international humanitarian law. This purpose is guided with the need to understand why most of the casualties of modern conflicts are mainly civilians and not soldiers.
Magno, A., (2001) Human Rights in Times of Conflict: Humanitarian Intervention . Carnegie Council for Ethics in International Affairs, 2 (5). [online] Available from: [Accessed 2 March 2011]