Academic journal article University of Western Sydney Law Review

Just Wars and Criminal Laws

Academic journal article University of Western Sydney Law Review

Just Wars and Criminal Laws

Article excerpt

The end of the cold war did not bring the peace that many hoped for. Instead, the post-cold war period has been characterised by continuous warfare around the world. Much of this warfare has included direct involvement or support from the leadership of the English-speaking nations, including the attacks upon Afghanistan and Serbia, the two Gulf War attacks on Iraq and the recent Israeli attack on Lebanon.

Many people believe that these wars are, in important cases, far from just, either in terms of the causes pursued or the conduct involved. Intuition, logic and principle suggest that the supposed justifications offered by the authorities are unconvincing, unachievable or unjust, and that these wars have been--and continue to be -prosecuted in ways which directly involve large scale killings of innocent people, which should be regarded as war crimes, rather than legitimate acts of war. Or they have led to mass killings of innocent people which were reasonably foreseeable consequences of the military actions in question.

The other side of the issue is the failure of others to--promptly enough--institute legitimate defensive military action to protect the victims of illegitimate aggression. There is widespread recognition of such failure in the cases of Rwanda, the former Yugoslavia, East Timor and, more recently, Lebanon. To the extent that the allied attacks on Afghanistan and Iraq lacked moral or legal justification so is there a case to be made that they too should have elicited appropriate action in defence of the victims of such unjustified aggression. There are therefore also issues of the 'justice' of identifying foreign nationals participating in military action to defend such victims as 'terrorists'.

This paper draws upon the work of moral philosophers Richard Norman and Peter Singer, criminologists Rob White and Santina Perrone, and social theorists Heikki Patomaki and Teivo Teivainen to clarify some of the issues involved here. In particular, it focuses upon philosophical, legal and practical issues of just war theory, and of enforcement of law based upon such theory.

Morality

The major wars of recent times--along with genocide in Rwanda and the former Yugoslavia--raise the question of what circumstances (if any) can ever provide moral legitimation for killing in war. In recent years there has been increasing discussion of the tradition of 'just war' principles, originally developed by Christian thinkers, and of the role of such principles in the development of international law. As moral philosopher Richard Norman notes, both leaders seeking to give moral legitimacy to wars in which they are involved, and their critics, 'often employ the same moral vocabulary' derived from this tradition of thought. (1)

This vocabulary includes ideas of just cause, right intention, legitimate authority, reasonable hope of success, last resort and proportionality of ends as necessary conditions for a just entry into warfare. Ideas of non-combatant immunity and proportionality of means are considered necessary conditions of just participation in warfare.

As Norman argues, criteria of 'rightful intention', 'reasonable hope of success', 'proportionality' of ends and 'last resort' are all closely tied to the issue of 'just cause'. Rightful intention requires the justice of the cause to be the real objective of the war, rather than a consideration satisfied incidentally. Reasonable hope of success can only mean 'a reasonable hope of succeeding in a just cause'. (2) Proportionality can only mean that military action is justified only so long as its harmful consequences don't outweigh 'the specific good which the war is intended to achieve'. And 'last resort' can only mean that all other, less harmful avenues have been found wanting in achieving the 'good' end in question.

As far as 'just cause' itself is concerned, as Norman notes, discussion has increasingly focussed upon the idea of 'defence against aggression'. …

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