Moral ideals are not, in the first place, the products of reflective thought, the verbal expressions of unrealized ideas, which are then translated [ ] into human behavior; they are the products of human behavior, of human practical activity, to which reflective thought gives subsequent, partial and abstract expression in Words.
This view of the matter does not[and must not] deprive moral ideals of their power as critics of human habits
M Oakeshott: Rationalism in Politics (1962)
Speaking of war and warfare, since ancient times man seems to be dependent on moral language. The categories we draw upon are in their core moral categories. We use the terms right or wrong, good or evil. Though, more often than not, our concern has been the acts of others, those of the enemy, and rarely, if ever, an expression of pacifism proper, our language more than indicates that there are limits as to what can be accepted even as acts of war. And acts beyond those limits are considered either morally or legally impermissible. We don’t have to go farther back than to the war in Kosovo some moths ago, or even more resent, in Chechnya today, to have it confirmed.
And yet, some insists that war is beyond moral and legal judgment. The pacifist notion, on the one hand, is that war, in one way or another, is the consummate evil and therefor should be rejected under any circumstance. The realist acknowledging the pacifist starting point – the evil nature of war – concludes otherwise. War is a world apart constituted by the resort to force and weapons. Here life itself is threatened; war is literally a question of life and death and consequently self–interest and necessity constitutes the order of the day. And in this world apart neither law nor morality has any place. Inter arma silent leges. In times of war the law is silent. So anything goes. There is no room for critique or blame, nor for accept. Any moral or legal utterance is meaningless. There is simply nothing to say.
And yet, confronted with the acts of war, we are rarely silent. And the language we use is loaded with moral judgment and meaning. Just think for a moment – besides those already mentioned: good, evil, right, wrong – aggression, atrocities, cruelty, ruthlessness, massacres, genocide, self–defense, appeasement, peace, justice. This is the language of morality.
Those defending the silent laws – legal or moral – claim to have discovered some fundamental and awful human characteristics. War reveals our inner core and let us stand there deprived of any civilized adornments. And the Realist describes that that nakedness for us. And the description fits more often than not. And, as some kind of paradox, the description often takes the form of an apology: Yes, our soldiers committed atrocities in the heat of the battle. But that’s what war is like. That’s what war does to people. All is fair in love and war. And, as Michael Walzer has noted, one invokes the proverb in defense for what seems to be the opposite, unfair. And one urges silence on the law when engaged in activities that would otherwise be considered unlawful.
Writing in the 17th century, Hugo Grotius, introducing his work De Jure belli ac Pacis (The Law of War and Peace) to Louis XIII, observed:
For both extremes [pacifism and realism] a remedy must be found, that men may not believe either that nothing is allowable, or that everything is
His major contribution in the search for such a remedy is transforming the moral principles of Just War Tradition into positive law.
Just War Tradition
Historically, the Just War Tradition with its centuries long history of development addressing problems related to the questions concerning when and how to wage war, offers an alternative to both the pacifist and the realist approach to war. The roots of the Just War Tradition are to be found in the customs, attitudes and practices of the very societies that contributed to it; namely the Hebraic world, the classical Greek and Roman world, and later on, the societies of Northern Europe. Today tenets of this tradition are reflected in both national laws of individual states and in the codified international laws of war.
First: Christian theologians often claim the just war tradition as their own property. It is considered a child of the church that both came in to being as well as reached its full development within the church walls. This is simply not true. Or at least the truth is far more complex than that. Not to underestimate the importance of major theologians like Augustine, Thomas Aquinas, Fransicus de Vitoria and Martin Luther, but as already indicated the fact still remains that beside these and other great theologians others played an important part. «International lawyers», military professionals, statesmen and philosophers contributed through history to the growth and development of a tradition in which certain reasons for war are accepted, while others are not; a tradition in which even in the heat of the battle certain limits of conduct are set and observed.
Before St Thomas and long after St Augustine the Cannon Law Tradition represent the first attempt to formulate a consistent and comprehensive Just War doctrine. Besides this tradition and the theological tradition two secular streams of thought and practice contributed to the growth and development of Just War Tradition:
The Civil Law Source provided input of Roman imperial political and military theory through legal formulations based on concepts and legislation of Roman law and contemporary customs.
The Chivalric Code reflected contemporary religious and cultural ideals and drew heavily on Germanic traditions on warfare, manliness and the ideal of a soldier. This source’s contribution to the development of the notion of non–combatant immunity can hardly be underestimated.
These four different sources intermingled through the medieval period. Alone non of them provided a complete and well–developed doctrine on just limits to war. It is the confluence of the distinct four different streams of thought and practice that in the end formed the classical just war doctrine.
Second: The Just War Tradition is a historical tradition. Hence it reflects the values important to and identified with specific historical communities in their effort to regulate violence. But at the same time – as a tradition – it reflects the continuity through time of those very values and those very communities. This implies that moral life – among other things – means to keep faith with such traditions as the Just war Tradition. But it also indicates – more fundamentally –that moral decision making is basically a historical project, an attempt to continuity between the present and the past. And may be less an ahistorical, rational activity.
Just War Criteria
1. Right Authority
The Just War Traditions first criterion is in many ways to be understood as a precondition for all the other criteria. The issue is: Whose responsibility it is to decide whether or not the demands of the other criteria are met. In other words the other criteria will not be operative before the question, Who will do the judging? is answered.
2. Just Cause
When is it justified to resort to war and warfare? Traditionally the answer has been in defense of self or others, to restore loss or punish evil
3. Last Resort
War must be necessary. Are the any other possibilities to be tried before resort to war?
4. Formal/Open Declaration
Formal declaration is the last measures of persuasion short of force itself. Or in the words of Dr Francis Lieber: [ ] decent regard for mankind and public good faith require that a government explain and justify its departure from peace
5. Reasonable Hope of Success
War for the sake of war is can never be a moral project. Any war’s ultimate end is peace. On the other hand victory is not exclusively the object. What about self respect? How do you calculate? Life against values? What about WW II? The Criteria serves to rule out the consummate meaningless project.
The war should do more good than harm. But then again: How to calculate.
7. Right Intention
The war serves a purpose. The intention is ultimately peace and justice. Criteria should rule out hidden agendas, or prestige, power and profit.
The classical just war criteria might be formulated as three major principles regarding the outbreak of war, the conduct of war and the ends of war:
- War can only be initiated by legitimate authorities and only if based on just cause. That is, it has to be defensive, not aggressive; it must always be seen as last resort; it is to be an expression in favor of justice and punishes transgression.
- The means of war must be restricted. That is, they must be discriminating in the sense that they give immunity and protection to non–combatants; they must be proportional in the sense that the harm military actions inflicts must be reasonable in relation to the injustice the war is aiming to restrict.
- The ends of war must be predictable. The just war is aiming at re–establishing peace and justice. There must be reasonable grounds for believing that this cause can be achieved and reasonable hope to establish a state of peace better than the situation leading up to the decision to wage war.
Hence Just War criteria can be said to have three different scopes: They serve to be (1) preventive in as much as they establish certain limits with regard to whether it is proper to resort to war; (2) limitable in the sense that they define guidelines concerning the conduct of war; and (3) restrictive due to the strong expression that only when ultimately serving the peace, war be can regarded just.
Just War Purpose
First of all Just War Tradition comes forth as a Guide to Statecraft. The political as well as the moral responsibility to decide when to resort to war is theirs.
Secondly Just War Tradition is a Guide to Commanders underlining the importance of the moral quality of military leadership. In my view this moral quality rest on three preconditions: a particular kind of virtue, an effort to understand the importance of the protection of human rights and a recognition of the limits of the means of war.
Thirdly, the Just War Tradition is a Guide to the consciousness of the individual.