JUS AD BELLUM

Submitted by
RISHABH TRIPATHI
SEC- A ROLL NO- 39 SEM- II BATCH- 2016-2021

LLOYD LAW COLLEGE

IN
APRIL 2017

UNDER THE GUIDANCE OF

MR. YOGESH SIR
Faculty, Lloyd Law College

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 ACKNOWLEDGMENT

I owe my sincere thanks to my concerned subject teacher Mr. Yogesh Sir who helped me in
selecting the project topic, helped me in successful completion of this project and corrected it at
every step.

I would also like to thank my friends and respective teacher who helped and motivated me
during the project completion.

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 CONTENTS

1. INTRODUCTION.5
2. JUS AD BELLUM.6
3. PRINCIPLE OF JUS AD BELLUM7-8
4. CAN THERE BE JUST WAR?........................................................................................9
5. ASYMMETRIC WARS..10
6. PROPORTIONALITY11
7. BIBLIOGRAPHY12

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 INTRODUCTION

Historically, the just war tradition ----a set of mutually agreed rules of combat- may be said to
commonly evolve between two culturally similar enemies. That is, when an array of values are
shared between two warring peoples, we often find that they implicitly or explicitly agreed upon
limits to their warfare. But when enemies differ greatly because of different religious beliefs,
race, or language, and as such they see each other as less than human, war conventions are
rarely applied. It is only when the enemy is seen to be a people, sharing a moral identity with
whom one will do business in the following peace, that facit or explicit rules are formed for how
wars should be fought and who they should involve and what kind of relations should apply in
the aftermath of war. In part, the motivation for forming or agreeing to certain conventions, can
be seen as mutually benefitting- for instance, to the deployment of any underhand tactics or
weapons that may provoke as indefinite series of vengeance acts, or the kinds of action that have
proved to be detrimental to the political or moral interests to both sides in the past. Regardlesss
of the conventions that have historically formed, it has been concern of the majority of just war
theorists that the lack of rules to war or any asymmetrical morality between beligrents should be
denounced, and that the rule of war should apply to all equally. That is, just war theory should be
universal, binding on all and capable in terms of appraising the actions of all parties over and
above any historically formed conventions. The just war tradition is indeed as old as warfare
itself. Early records of collective fighting indicate that some moral consideration were used by
warriors to limit the outbreak or to rein in the potential devastation of warfare. They may have
involved consideration of women and children or the treatment of prisoners (enslaving them
rather than killing them, or ransoming or exchanging them). Commonly, the earlier traditions
invoked consideration of honor: some acts in war have always been deemed dishonorable whilst
of others have been honorable.

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 Jus Ad Bellum

Historically, the just war traditions represents the effort of western cultures to regulate and
restrain violence by establishing widely recognized rules of combat. The theoretical aspect of
just war theory, on the other hand, is concerned with ethically justifying war. Moral justification
for war has its roots in Christian theology and the writings of St. Thomas Aquinas. Together,
traditional rules of combat and moral ideals have helped to form the rules of warfare found in
international law. The set of guidelines commonly known as the war convention is made up of
these moral norms and legal percepts.

Just Cause

Formulated in international law and recognized by most cultures, the rules of jus ad bellum serve
as principles to determine when war and the use of violence are justifiable. Only when the
criteria of jus ad bellum are met can the use of violent force be permitted. Having just cause is
often thought to be the most important condition of just war. Many hold that the only just cause
for war is self-defense against aggression. In 1974, the United Nations General Assembly
defined aggression as the use of armed force by a state against the sovereignity, territorial
integrity or political independence of another state. States right to territorial integrity and
political sovereignity are derived from the rights of individuals to build a common life and rest
on the consent of their members. Insofar as a state protects the lives and interests of individuals,
it cannot be challenged in the name of life and liberty by any other state. International law holds
that a state engaging in war, other than for purposes of self defense, commits the crime of
aggressive war. However, many have noted that thos conception of just cause is far too narrow.
First, it is commonly thought that states can defend themselves against violence that is imminent,
but not actual. When the threat is clear and the danger close, military acts of anticipation are
often considered morally justified. For example, many believe that states are justified in
conducting pre-emptive strikes in cases where there is a sufficient threat, and failure to exercise
military force would seriously risk their territorial integrity ao political independence. There
are threats with which no nation can be expected to live.

In addition, many have noted that the aggressor-defender dichotomy is an over simplification.
Intervention across national boundaries can sometimes be justified, and the legal existence of a
regime does not guarantee its moral legitimacy. They believe that force may sometimes be used
to correct grave public evils or to address massive human rights violations. When a government
turns savagely upon its own people, it violates their human rights and imposes conditions to
which they could not possibly consent.

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 PRINCIPLE OF JUS AD BELLUM

The other principles central to jus ad bellum are right authority, right intention, reasonable hope,
proportionality, and last resort. The principle of right authority suggests that a war is just only if
waged by a legitimate authority. Such authority is rooted in the notion of state sovereignity and
derived from popular consent. Even if their cause is just, individuals or groups whose authority is
not sanctioned by society members cannot justifiably initiate war. It is important to note,
however, that corrupt governments that rule arbitrarily and unjustly may not warrant the
allegiance of the populace. In these cases, state sovereignity disintegrates, and individuals may
have a right to declare war in order to defend themselves from an illegitimate government.
Struggles for independence by distinct communities that are ready and able to determine the
conditions of their own existence may sometimes be justified.

According to the principle of right intention, the aim of war must not be to pursue narrowly
defined national interests, but rather to re-establish a just peace. This state of peace should be
preferable to the conditions that would have prevailed had the war not occurred. Right intention
is tied to the conditions of jus in bello (justice in war) and forbids acts of vengeance and
indiscriminate violence. Because the proper object of wars is a better state of peace, just wars are
limited wars. Unconditional surrender is often thought to violate the principle of right intention
because it deprives a nation of its rights and sovereignity, and in effect destroys it. Nevertheless,
in cases such as Nazism, where a government regime poses a threat to the very existence of
entire peoples, the conquest and reconstruction of an enemy state may be a legitimate military
goal. Here, however, it is important to note that securing peace often overlaps with the protection
of self-interest. For example, if the only way to secure peace is to annex a belligerent neighbors
territory, proper intention is linked to pursuing self-interest. Other proper intentions for war, such
as defending an oppressed group and securing its freedom, may be abandoned because such a
war is deemed too costly. In addition, just wars must have a reasonable chance of success.
According to the principle of reasonable hope, there must be good grounds for believing that the
desired outcome can be achieved. Arms may not be used and deaths incurred in a futile cause or
when the probability of success is very low. This principle involves weighing the costs and
benefits of waging war, and emphasizes that human life and economic resources should not be
wasted on war efforts that are certain to fail. However, some note that in some cases it is
necessary as a matter of moral principle to stand up to bullying forces even if there is little
chance of success. For the sake of national pride, fights that are seemingly hopeless may
sometimes be justifiably undertaken.

The principle of proportionality stipulates that the violence used in the war must be proportional
to the attack suffered. The means should be commensurate with the ends, as well as be in line
with the magnitude of the initial provocation. States are prohibited from using force not

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necessary to attain the limited objective of addressing the injury suffered. For example, if one
nation invades and seizes the land of another nation, this second nation has just cause for a
counter-attack in order to retrieve its land. However, if this second nation invades the first,
reclaims its territory, and then also annexes the first nation, such military action is
disproportional. In addition, the minimum amount of force necessary to achieve ones objectives
should be used. Thus, the principle of proportionality overlaps with jus in bello, the conditions
for hoe war should be fought. Finally, the principle of last resort stipulates that all non-violent
options must be exhausted before the use of force can be justified. A just war can only be waged
once all other diplomatic avenues have been pursued.

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 CAN THERE BE A JUST WAR?

Realism objects that justice applies within the boundaries of a state only. In relation to
each other, states act only in terms of self-interest. This claim can take either of two
forms. According to descriptive realism, states are simply not motivated by justice. They are
motivated by the national interest, including power and security. However, it seems
unlikely that states have no concern with justice they are created and sustained by
individuals (and a national community) who are concerned with justice.
According to prescriptive realism, it is prudent for states to act without regard to
morality in foreign policy. It should respect the conditions laid down by just war theory
only if doing so would be in the best interests of a state to, e.g. if doing so would lead to
a more peaceful world.
Pacifism argues that war is always unjust. Aggression by a state does not need to be
resisted by war, as there are other means, less destructive but just as effective, such as a
very widespread campaign of civil disobedience and international sanctions. However,
just war theorists will reject this. There can be times when these responses work
(Gandhis campaign to free India from the British Raj; Martin Luther Kings campaign
for black civil rights) but they only work when the aggressor is sensitive to claims of
justice. But what of an aggressor that responds to such campaigns with ethnic cleansing?
War may be the only means to resist, and can therefore be justified.
A different defence of argues that war always involves violating our duties. One common
response is that pacifists are too concerned with keeping their hands clean, with
protecting their moral purity in a world that may make this impossible. But this response
is unconvincing, as pacifists are no different from their opponents in arguing that we
ought to do what is just. If one accepts that wars are not just, but nevertheless necessary,
this is to adopt realism, not just war theory.
But does war always involve violating our duties? Most theorists would agree that, in
general, there is no duty not to kill another human being who is threatening ones life.
Many of our deontological intuitions support this view. If Adam attacks Barry, it would
be unfair to allow Adam to gain at Barrys cost and Adam is responsible for the situation.
So it would be wrong to prohibit Barry from resisting Adam, and Barry commits no
wrong in resisting. The force Barry may use should be proportionate so if Adam is
threatening Barrys life, Barry may kill Adam if no other option is available.
However, the pacifist can respond that no actual war has or can meet the conditions for
being just.

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 ASYMMETRIC WARS

An asymmetric war is one in which the two sides differ significantly in military resources
or tactics. It may differ from normal or symmetric war only in that one state is
significantly weaker than the other; or it may involve one side not being a state or even a
politically recognised body; or it may involve tactics of unconventional warfare, e.g.
guerrilla warfare. Examples, therefore, are very wide-ranging, from the American
Revolution of 1776 (a people v. an imperial force), World War II once the USA acquired
the nuclear bomb, to the recent conflict between Israel and Palestinians in Gaza and the
two Gulf Wars of 1990 and 2003.
A number of asymmetric wars are revolutionary, seeking to overthrow or secede from a
political authority. For this to be a just cause the first condition of a just war the
political authority needs to be illegitimate, and probably also needs to treat its citizens
aggressively. Holy war wars intended to spread belief in a particular religious faith or
instate a theocratic government does not meet this criterion.
Asymmetric wars suggest two changes to just war theory. First, if there can be just wars
in which one party is not a state, then the declaration of war need not be made by a
proper authority nor by a legitimate state. Second, we may argue that, e.g. oppressed
people have the right to resist an oppressive state even if they are unlikely to succeed.
With individual self-defence, my right to self-defence does not depend on whether my
attempts to defend myself are likely to succeed, so why should this condition apply in
cases of war? And indeed, others may legitimately come to my aid without meeting this
condition as well. What matters is the justice of resisting aggression.
We can object that such a war will lead to misery without benefit. But in response, we
could say that the people waging the war in resistance to aggression already face misery
without benefit.

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 PROPORTIONALITY

In many asymmetric wars, one side has far greater military might than the other. Is it
required to use force only proportional to the force used by the other side? Just war
theory says that both the declaration of war and the force used should be proportional to
the end, not to the oppositions military ability. (Of course, the oppositions military
ability will affect the degree of harm it can threaten or inflict.)
Under jus ad bellum, the degree of force that is justifiable is proportionate to the harm
that is being threatened, and which the war seeks to avoid. However, a different reading
of proportionality can be taken from jus in bello, viz. that military action must not use
more force than is necessary to achieve their ends of eliminating the threat of harm. In
asymmetric wars, e.g. if one side uses guerrilla tactics, this can be very difficult to achieve.
To end the war, the military may need to use much greater force than seems proportional
to the harm threatened.
This conflict between these two interpretations of proportionality is illustrated by the
debates regarding civilian deaths in the Israel-Palestine situation. In responding to civilian
deaths intentionally caused by rockets fired into Israel, can Israel be justified in
unintentionally, but predictably, causing far more civilian deaths in Palestine through the
use of tanks and bombs? The aim is to secure Israels borders against foreign attack and
end the deaths of Israeli civilians. Were Israel to pursue these aims by limiting the
destructiveness of its response to that caused by the rockets, it can be argued, the aims
would never be achieved. But using even the minimum amount of force necessary to
achieve these aims would mean deploying a force that seems disproportionate to the
harm threatened by the rockets.
The Israeli government may argue that in using no more force than necessary to secure
its ends, and by not intentionally causing civilian deaths, it complies with the rules of jus
in bello. In response, it can be objected that even if this is true, if the destruction caused
by its actions are far greater than the destruction it seeks to prevent, it fails to comply
with the rules of jus ad bellum. On this view, war is not the morally appropriate response
to the attacks in the first place.

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 BIBLIOGRAPHY

1. http://www.tandfonline.com/doi/abs/10.1080/20531702.2015.10
90219?journalCode=rjuf20
2. https://www.scribd.com/document/313680426/Can-jus-ad-
bellum-pdf
3. https://www.researchgate.net/publication/228161915_Jus_In_B
ello_as_Jus_Ad_Bellum
4. ROUTLEDGE: JUST WAR THEORY

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