DOCSLIB.ORG

Just Cause for War Jeff Mcmahan*

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Just Cause for War Jeff Mcmahan* Just Cause for War Jeff McMahan* erhaps it should be rather hearten- widely accepted as just, such as the pun- ing that democratic leaders who ishment of wrongdoing and the spread of Pwish to take their countries to war the Christian religion. are now obliged to advertise the war as In this essay I advance a conception of having a “just cause.” Politicians now the requirement of just cause that is revi- routinely invoke this rather quaint sionist in the context of contemporary phrase drawn from the traditional theory just war theory, but that has roots in an of the just war. Indeed, when the admin- older tradition of thought about the just istration of George H. W.Bush decided to war with which contemporary theorists invade Panama, it christened its war have lost touch to a considerable extent. “Operation Just Cause,” thereby appro- This revisionist conception has various priating a label that George W. Bush heterodox—indeed, heretical—implica- might later have found serviceable had it tions that I will highlight and defend: for still been available. But despite the example, that a just cause is necessary for increasing prominence of the notion of the satisfaction of any of the other condi- just cause in political discourse, there are tions of a just war, that there can be var- few serious discussions of it, and those ious just causes for war other than there are tend to be perfunctory. The defense against aggression, that both usual practice is to offer a simple charac- sides in a war can have a just cause, and terization of the requirement of just so on. The conception of just cause for cause—for example, that it is the require- which I will argue must ultimately be ment that there be a good or compelling assessed by reference to the moral plausi- reason to go to war—and then to observe bility both of these implications and of that, at least until quite recently, contem- the larger understanding of a just war in porary just war theory and international which the conception is embedded. As I law have recognized only one just cause will make clear below, I mean by a just for war: self- or other-defense against war something more than merely a aggression. It is then often noted that the morally justified war. consensus on this point is currently being challenged by those who claim that the prevention of large-scale violations of people’s human rights by their own gov- ernment also provides just cause for war. *I am deeply grateful to Christian Barry, Allen Occasionally, skeptics of just war theory Buchanan, David Lefkowitz, Larry May, Ron will also, for satirical effect, cite instances McClamrock, David Mellow, and Derek Parfit for penetrating comments on an earlier draft of this from the classical literature of causes for essay, and to Thomas Hurka for illuminating discus- war that are now rejected but were once sion. 1 RESORT TO WAR, CONTINUATION goal, such as collective self-defense, there is OF WAR, AND TERMINATION OF no reason to suppose that a war may have WAR only one just cause. Even if the requirement of just cause applied only to the resort to In the just war tradition, just cause is one of war, there could in principle be two or more the requirements of jus ad bellum—that is, just causes. It is even possible that, if there one of the conditions of justification for the were two or more just causes, no one on its resort to war. Contemporary just war theo- own would be sufficiently important to rists often assume, therefore, that the make the resort to war proportionate, requirement of just cause applies only to the though all together would be. And assuming initial resort to war, and that after war has that the requirement of just cause applies begun all that matters is how the war is con- not only to the initial resort to war but also ducted. But this cannot be right. It is possi- to the continuation of war, it is also possible ble that a war can begin without a just cause for there to be different just causes for the but become just when a just cause arises same war at different times. Consider, for during the course of the fighting and takes example, a war that has self-defense against over as the goal of the war. When this hap- unjust aggression as its initial just cause. It pens, it would be absurd to say that an unjust might be justifiable to continue the war even war has concluded and a new, just war has after the initial aggression had been defeated begun. Rather, one and the same war may in order to protect people in a justly occu- cease to be unjust and become just—just as pied area or to ensure the effective disarma- a war that begins with a just cause may con- ment of the aggressor. These would be just tinue after that cause has been achieved or causes that, while not part of the justifica- has simply disappeared on its own.1 But if a tion for the recourse to war, may legitimately war in progress can either acquire or cease to be pursued by the continuation of the war. have a just cause, then the requirement of The idea that war may not be continued just cause must apply not only to the resort in the absence of a just cause explains why it to war but also to the continuation of war.2 cannot be permissible to demand that an A just cause is, indeed, always required for adversary surrender unconditionally. For engaging in war. Just cause specifies the ends the idea that it could be permissible to for which it is permissible to engage in war, demand unconditional surrender presup- or that it is permissible to pursue by means poses that the denial of any condition that of war. the other side might set for surrender would One important implication of the idea that any engagement in war requires a just 1 Grotius observed that “a war may be just in its origin, cause is that when the just cause of a war has and yet the intentions of its authors may become unjust been achieved, continuation of the war lacks in the course of its prosecution.”See Hugo Grotius, The justification and is therefore impermissible. Rights of War and Peace (1625), trans. A. C. Campbell Just cause thus determines the conditions (London: M. Walter Dunne, 1901), p. 273. But a shift of intention does not entail the disappearance of the just for the termination of war. cause. Thus, Grotius goes on to say that “such motives, There are, however, complexities here of though blamable, when even connected with a just war, which it is important to be aware. Although do not render the war ITSELF unjust.” 2 Here I am in agreement with David Mellow, A Critique theorists in the just war tradition often write of Just War Theory (Ph.D. dissertation, University of as if just cause were always a single, unitary Calgary, 2003), p. 201. 2 Jeff McMahan itself be a just cause for the continuation of simply that war must have a just or worthy war. And that cannot be the case. Suppose goal. Nor is it a requirement that there be a the enemy insists on something perfectly worthy goal, the achievement of which reasonable as a condition of surrender—for would outweigh the bad effects of war. In the example, that the victors pledge not to kill just war tradition, the task of assessing the the prisoners of war they are holding. If it comparative importance of the goal or goals were permissible for the victors to insist on of war is assigned to the independent jus ad unconditional surrender and to continue bellum requirement of proportionality. Pro- the war until they secured it, that would pre- portionality requires, roughly, that the rele- suppose that it is permissible for them to vant bad effects attributable to the war must assert by means of war their alleged right to not be excessive in relation to the relevant withhold a pledge not to kill prisoners. good effects.3 According to the view I accept, This of course leaves open the question of it might in principle be possible for consid- what may be done when an adversary who erations of proportionality to be fully sub- has fought without justification demands as sumed within the requirement of just cause. a condition of surrender something to Many just war theorists would resist this which they are not entitled, yet the demand suggestion, however, because they believe is also of a type that it would not be permis- that the goods that count in the proportion- sible to resist by means of war. Suppose, for ality calculation are not restricted to those example, that an adversary who has been specified by the just cause. But unless just largely defeated militarily demands as a con- cause fully accounts for considerations of dition of surrender that they be allowed to proportionality, it ought not to say anything continue certain unjust domestic practices, about the scale, magnitude, or comparative such as certain forms of religious discrimi- importance of the goods to be achieved by nation (for example, providing state fund- war. For it would be uneconomical and ing for schools that promulgate the state indeed pointless to divide the work of religion, but not for others). Just as it may be weighing and measuring values between necessary for an individual not to resist cer- two requirements—for example, by having tain forms of wrongdoing when the only just cause stipulate that the goal of a war effective response would be inappropriate or must be to achieve some very great good, excessive in relation to the offense, so it may while proportionality would require that the be necessary in war to grant certain unde- served concessions when the only alterna- tive is to continue to fight without sufficient 3 justification.
Load more

Recommended publications
  • Revisiting Belligerent Reprisals in the Age of Cyber?
    Marquette Law Review Volume 102 Article 5 Issue 1 Fall 2018 Revisiting Belligerent Reprisals in the Age of Cyber? Follow this and additional works at: https://scholarship.law.marquette.edu/mulr Part of the Comparative and Foreign Law Commons, Computer Law Commons, Human Rights Law Commons, International Humanitarian Law Commons, International Law Commons, and the Science and Technology Law Commons Repository Citation Revisiting Belligerent Reprisals in the Age of Cyber?, 102 Marq. L. Rev. 81 (2018). Available at: https://scholarship.law.marquette.edu/mulr/vol102/iss1/5 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized editor of Marquette Law Scholarly Commons. For more information, please contact [email protected]. REVISITING BELLIGERENT REPRISALS IN THE AGE OF CYBER? DAVID WALLACE,SHANE REEVES &TRENT POWELL* I. INTRODUCTION ............................................................................................ 81 II. THE HISTORY OF BELLIGERENT REPRISALS IN IHL ................................... 85 III. BELLIGERENT REPRISALS TODAY IN IHL ................................................. 91 IV. CYBER OPERATIONS AND BELLIGERENT REPRISALS: THE LEX LATA ....... 94 V. COUNTERMEASURES UNDER INTERNATIONAL LAW .................................. 96 VI. BELLIGERENT REPRISALS AND CYBER:ATHEORETICAL FRAMEWORK 104 VII. CONCLUSION.........................................................................................
    [Show full text]
  • From Just War to Just Intervention Susan J
    New England Journal of Public Policy Volume 19 | Issue 1 Article 5 9-21-2003 From Just War to Just Intervention Susan J. Atwood University of Minnesota - Twin Cities Follow this and additional works at: http://scholarworks.umb.edu/nejpp Part of the International Relations Commons, Military, War and Peace Commons, and the Religion Commons Recommended Citation Atwood, Susan J. (2003) "From Just War to Just Intervention," New England Journal of Public Policy: Vol. 19: Iss. 1, Article 5. Available at: http://scholarworks.umb.edu/nejpp/vol19/iss1/5 This Article is brought to you for free and open access by ScholarWorks at UMass Boston. It has been accepted for inclusion in New England Journal of Public Policy by an authorized administrator of ScholarWorks at UMass Boston. For more information, please contact [email protected]. From Just War to Just Intervention Susan J. Atwood What is Just War? What is Just Intervention? This paper examines the evolution of the criteria for Just War from its origins in the early Christian church to the twenty-first century. The end of the Cold War era has expanded the discussion to include grounds for intervention. Indeed, in the 1990s, a number of multilat- eral interventions took place on humanitarian grounds. But the debate is ongoing about whether the criteria applied in the Just War theory — proper authority, just cause, and right intent — remain valid in an era of Just Intervention. The author examines as case studies some multilateral interven- tions and the lessons learned from them as we seek to develop the framework of international law to address the evolving theory and current practice of Just Intervention.
    [Show full text]
  • WILL HE >JUSTIFY= the HYPE?
    SATURDAY, APRIL 7, 2018 BLUE GRASS COULD BE WHITE OUT WILL HE >JUSTIFY= Assuming a potential snowstorm Friday night doesn=t put a THE HYPE? damper on things, a full field is set to go postward in Saturday=s GII Toyota Blue Grass S. The conversation about contenders must start with $1-million KEESEP yearling Good Magic (Curlin), who broke his maiden emphatically in the GI Breeders= Cup Juvenile at Del Mar en route to Eclipse Award honors. Heavily favored in the GII Xpressbet Fountain of Youth on seasonal debut at Gulfstream Mar. 3, he settled for a non-threatening third with no obvious excuse. Flameaway (Scat Daddy), second in the Mar. 10 GII Tampa Bay Derby behind expected scratch Quip (Distorted Humor) after annexing the GIII Sam F. Davis S. there in February, took a rained-off renewal of the GIII Bourbon S. in the Keeneland slop last October. Cont. p3 Justify | Benoit Photo IN TDN EUROPE TODAY ASTUTE AGENT HAS GLOBAL PERSPECTIVE >TDN Rising Star= Justify (Scat Daddy), almost certainly the Kelsey Riley sat down with Australia based Frenchman most highly regarded horse in the world to have not yet taken Louis Le Metayer to get his thoughts on various aspects of on stakes company, will get his class test on Saturday when he the Australian racing scene. Click or tap here to go straight faces the likes of MGISW Bolt d=Oro (Medaglia d=Oro) in the to TDN Europe. GI Santa Anita Derby. A 9 1/2-length jaw-dropping debut winner going seven panels here Feb.
    [Show full text]
  • The Starvation Myth: the U.S. Blockade of Japan in World War Ii Christopher Clary
    DOUGlAS L. BENDELL AWARD THE STARVATION MYTH: THE U.S. BLOCKADE OF JAPAN IN WORLD WAR II CHRISTOPHER CLARY At 8:16 a.m., on August 6, 1945, the world changed. Fifty-seconds earlier, the Enola Gay had dropped an atomic bomb, "Little Boy", from 31,600 feet above Hiroshima, Japan. The world was ushered into the nuclear age. After seeing the "initial burst and 'ball of fire,'" co-pilot Robert Lewis questioned aloud, "My God, what have we done?" 1 Lewis, nearly six miles above the devastation, was responding to the pyrotechnic display. He could only imagine the very real damage the bomb had caused. While disagreements exist concerning the exact figures, it is undeniable that the bomb and its radioactive effects killed at least 70,000 people 2 Though he was one of the first to see its effects, Lewis was not the first to question the decision to use the atomic bomb nor would he be the last. The decision still sits at the center of one of the most debated historical (as well as historiographic) questions. The focus on this episode is justified. This singular event divides the Twentieth Century in numerous ways, but perhaps most relevantly it ends a hot and bloody war, and marks the beginning of a colder conflict. And since we examine the event in the year 2000, we must try to avoid the biases of the post-Cold War era. This paper tries to focus on two different realities: the first is what actually, really happened, the true state of affairs, then secondly the perceptions of that actuality.
    [Show full text]
  • Cicero and St. Augustine's Just War Theory: Classical Influences on a Christian Idea Berit Van Neste University of South Florida
    University of South Florida Scholar Commons Graduate Theses and Dissertations Graduate School 4-12-2006 Cicero and St. Augustine's Just War Theory: Classical Influences on a Christian Idea Berit Van Neste University of South Florida Follow this and additional works at: http://scholarcommons.usf.edu/etd Part of the American Studies Commons, and the Religion Commons Scholar Commons Citation Neste, Berit Van, "Cicero and St. Augustine's Just War Theory: Classical Influences on a Christian Idea" (2006). Graduate Theses and Dissertations. http://scholarcommons.usf.edu/etd/3782 This Thesis is brought to you for free and open access by the Graduate School at Scholar Commons. It has been accepted for inclusion in Graduate Theses and Dissertations by an authorized administrator of Scholar Commons. For more information, please contact [email protected]. Cicero and St. Augustine's Just War Theory: Classical Influences on a Christian Idea by Berit Van Neste A thesis submitted in partial fulfillment of the requirements for the degree of Master of Arts Department of Religious Studies College of Arts and Sciences University of South Florida Major Professor: James F. Strange, Ph.D. Paul G. Schneider, Ph.D. Michael J. Decker, Ph.D. Date of Approval: April 12, 2006 Keywords: theology, philosophy, politics, patristic, medieval © Copyright 2006 , Berit Van Neste For Elizabeth and Calista Table of Contents Abstract ii Chapter 1 1 Introduction 1 Cicero’s Influence on Augustine 7 Chapter 2 13 Justice 13 Natural and Temporal Law 19 Commonwealth 34 Chapter 3 49 Just War 49 Chapter 4 60 Conclusion 60 References 64 i Cicero and St.
    [Show full text]
  • A Theological Reading of the Gideon-Abimelech Narrative
    YAHWEH vERsus BAALISM A THEOLOGICAL READING OF THE GIDEON-ABIMELECH NARRATIVE WOLFGANG BLUEDORN A thesis submitted to Cheltenham and Gloucester College of Higher Education in accordance with the requirements of the degree of Doctor of Philosophy in the Faculty of Arts & Humanities April 1999 ABSTRACT This study attemptsto describethe contribution of the Abimelech narrative for the theologyof Judges.It is claimedthat the Gideonnarrative and the Abimelechnarrative need to be viewed as one narrative that focuseson the demonstrationof YHWH'S superiority over Baalism, and that the deliverance from the Midianites in the Gideon narrative, Abimelech's kingship, and the theme of retribution in the Abimelech narrative serve as the tangible matter by which the abstracttheological theme becomesnarratable. The introduction to the Gideon narrative, which focuses on Israel's idolatry in a previously unparalleled way in Judges,anticipates a theological narrative to demonstrate that YHWH is god. YHwH's prophet defines the general theological background and theme for the narrative by accusing Israel of having abandonedYHwH despite his deeds in their history and having worshipped foreign gods instead. YHWH calls Gideon to demolish the idolatrous objects of Baalism in response, so that Baalism becomes an example of any idolatrous cult. Joash as the representativeof Baalism specifies the defined theme by proposing that whichever god demonstrateshis divine power shall be recognised as god. The following episodesof the battle against the Midianites contrast Gideon's inadequateresources with his selfish attempt to be honoured for the victory, assignthe victory to YHWH,who remains in control and who thus demonstrateshis divine power, and show that Baal is not presentin the narrative.
    [Show full text]
  • INDIVIDUAL and NATIONAL RESPONSIBILITY to PROTECT Dr
    INDIVIDUAL AND NATIONAL RESPONSIBILITY TO PROTECT Dr. Jack D. Kem “It is absolutely the responsibility of every U.S. service member, if they see inhumane treatment being conducted, to intervene to stop it.” GEN Peter Pace, 29 November 20051 ABSTRACT The "Responsibility to Protect," or R2P, as defined by the international community, is a sovereign obligation that relates directly to States to protect their citizens from genocide and mass atrocities. In the past decade, this "Responsibility to Protect" has extended to the international community when States fail to fulfill their obligation. R2P, therefore, is considered only at the "nation-state" level. This paper addresses how the concepts in R2P should also be considered as an individual obligation to intervene when instances of genocide or mass atrocities occur. The paper also compares and contrasts R2P with Just War Theory parallel concepts of Jus ad Bellum (as a nation-state concern) and Jus in Bello (as an individual concern). BACKGROUND On November 29, 2005, Secretary of Defense Donald Rumsfeld and the Chairman of the Joint Chiefs of Staff General Peter Pace conducted a press conference at the Pentagon. One of the key issues addressed at the press conference was the “growing reports of uniformed death squads” allegedly conducting assassinations and torture. These reports were dismissed as “hypothetical” by Secretary Rumsfeld. One reporter then asked a question “about excesses of the Interior Ministry, the Ministry of Defense, and that is in dealing with prisoners or in arresting people and how they're treated after they're arrested.” Acknowledging Iraq as sovereign country, he asked “…what is the U.S.
    [Show full text]
  • Just War Or Not: a Reassessment of the Korean War
    International Journal of Social Science and Humanity, Vol. 4, No. 3, May 2014 Just War or Not: A Reassessment of the Korean War Hoeun Choi Abstract—The Korean War holds a significant place in the II. THE KOREAN WAR history of modern Korea. However, because it was a highly The Korean War is generally regarded in the West as a just political and ideological conflict, it has been difficult to assess its true nature in a more-balanced, less-biased manner; both North war [1]. War was clearly declared by a sovereign authority, and South Korea have argued for each side regarding the and it was also an act against aggression from the communist justness of the war. By reassessing the historical question of regime in North Korea. No other intentions seemed to exist “Was the Korean War a just war?” this paper attempts to behind the goal of protecting democracy from communism. redefine the just-or-not question, since such a narrow viewpoint Questioning this justification for the war is an unofficial does not allow the forgotten parts of the Korean War to be taboo in contemporary South Korea [2]. The question of revealed. By applying the just war theory and reassessing historical facts from a more historical perspective, this paper whether the Korean War was just or not has received shows how unjust elements existed in both Koreas during the relatively less attention than some of the other wars the Korean War. Following demonstrations, this paper further United States had fought, such as the Vietnam War. suggests that it is more important and even necessary to Moreover, the Korean War was the first war in which various consider wider perspectives and more historical factors in order nations fought under the flag of the United Nations, which to assess this major historical event from a more balanced took legitimate steps to fight against communist forces.
    [Show full text]
  • Testimony of Marty Irby Executive Director Animal Wellness Action Before the U.S
    Testimony of Marty Irby Executive Director Animal Wellness Action before the U.S. House Subcommittee on Commerce and Consumer Protection H.R. 1754, "The Horseracing Integrity Act" January 28, 2020 On behalf of Animal Wellness Action, one of the nation's leading animal protection organizations on Capitol Hill, I submit this testimony in support of H.R. 1754, the Horseracing Integrity Act. I express my sincere thanks to Chair Jan Schakowsky and Ranking Member Cathy McMorris Rodgers for conducting this hearing and offer special thanks to Representatives Paul Tonko, and, Andy Barr for introducing this reform effort. I also express thanks to Energy and Commerce Committee Chair Frank Pallone and Ranking Member Greg Walden for their participation in this process. This hearing builds on the testimony and other information gathered during the 2018 hearing conducted before the Subcommittee on H.R. 2651 in the 115th Congress. I first want to underscore that Animal Wellness Action does not oppose horseracing. We join with many horse owners, breeders, trainers, and racing enthusiasts in speaking out on the broader topic of the protection of horses within the American horseracing industry and across the greater equine world. We seek to promote the proper stewardship of horses at every stage of their lives, including during their racing careers. We are deeply concerned about on- and off- track risks to the horses, including catastrophic injuries sustained during racing. America was built on the backs of horses, and they have always played a central role in the economy and culture of the United States. We owe them a debt of gratitude, and the very least we must do is ensure their safety, welfare, and protection.
    [Show full text]
  • Three Theories of Just War: Understanding Warfare As a Social Tool Through Comparative Analysis of Western, Chinese, and Islamic Classical Theories of War
    THREE THEORIES OF JUST WAR: UNDERSTANDING WARFARE AS A SOCIAL TOOL THROUGH COMPARATIVE ANALYSIS OF WESTERN, CHINESE, AND ISLAMIC CLASSICAL THEORIES OF WAR A THESIS SUBMITTED TO THE GRADUATE DIVISION OF THE UNIVERSITY OF HAWAI‘I AT MĀNOA IN PARTIAL FULFILMENT OF THE REQUIREMENT FOR THE DEGREE OF MASTER OF ARTS IN PHILOSOPHY MAY 2012 By Faruk Rahmanović Thesis Committee: Tamara Albertini, Chairperson Roger T. Ames James D. Frankel Brien Hallett Keywords: War, Just War, Augustine, Sunzi, Sun Bin, Jihad, Qur’an DEDICATION To my parents, Ahmet and Nidžara Rahmanović. To my wife, Majda, who continues to put up with me. To Professor Keith W. Krasemann, for teaching me to ask the right questions. And to Professor Martin J. Tracey, for his tireless commitment to my success. 1 ABSTRACT The purpose of this analysis was to discover the extent to which dictates of war theory ideals can be considered universal, by comparing the Western (European), Classical Chinese, and Islamic models. It also examined the contextual elements that drove war theory development within each civilization, and the impact of such elements on the differences arising in war theory comparison. These theories were chosen for their differences in major contextual elements, in order to limit the impact of contextual similarities on the war theories. The results revealed a great degree of similarities in the conception of warfare as a social tool of the state, utilized as a sometimes necessary, albeit tragic, means of establishing peace justice and harmony. What differences did arise, were relatively minor, and came primarily from the differing conceptions of morality and justice within each civilization – thus indicating a great degree of universality to the conception of warfare.
    [Show full text]
  • Unit I Spiral Exam – World War II (75 Points Total) PLEASE DO NO
    Mr. Huesken 10th Grade United States History II Unit I Spiral Exam – World War II (75 points total) PLEASE DO NO WRITE ON THIS TEST DIRECTIONS – Please answer the following multiple-choice questions with the best possible answer. No answer will be used more than once. (45 questions @ 1 point each = 45 points) 1) All of the following were leaders of totalitarian governments in the 1930’s and 1940’s except: a. Joseph Stalin b. Francisco Franco. c. Benito Mussolini d. Neville Chamberlain. 2) In what country was the Fascist party and government formed? a. Italy b. Japan c. Spain d. Germany 3) The Battle of Britain forced Germany to do what to their war plans in Europe in 1942? a. Join the Axis powers. b. Fight a three-front war. c. Put off the invasion of Britain. d. Enter into a nonaggression pact with Britain. 4) The Nazis practiced genocide toward Jews, Gypsies, and other “undesirable” peoples in Europe. What does the term “genocide” mean? a. Acting out of anti-Semitic beliefs. b. Deliberate extermination of a specific group of people. c. Terrorizing of the citizens of a nation by a government. d. Killing of people for the express purpose of creating terror. 5) The term “blitzkrieg” was a military strategy that depended on what? a. A system of fortifications. b. Out-waiting the opponent. c. Surprise and quick, overwhelming force. d. The ability to make a long, steady advance. 6) In an effort to avoid a second “world war”, when did the Britain and France adopt a policy of appeasement toward Germany? a.
    [Show full text]
  • Jus Ad Bellum and Jus in Bello in the Lebanese War Enzo Cannizzaro* Enzo Cannizzaro Is Professor of International Law at the University of Macerata
    Volume 88 Number 864 December 2006 Contextualizing proportionality: jus ad bellum and jus in bello in the Lebanese war Enzo Cannizzaro* Enzo Cannizzaro is Professor of international law at the University of Macerata. Abstract This article analyses the role and content of proportionality under contemporary international law governing the use of force, with a view to clarifying the legal framework governing the conduct of the parties to an armed conflict. In the system of jus ad bellum, protection is primarily granted to the interest of the attacked state in repelling the attack; the other competing interests are considered only to curtail the choice of the means to be employed in order to achieve that aim. Conversely, in the system of jus in bello there is by definition no prevailing interest, but instead a variety of interests and values which are entitled to equal protection of the law and must be balanced against each other. The existence of two distinct normative systems, with distinct standards of legality applicable to the same conduct, does not as a rule give rise to major problems. The legality of recourse to force is measured against the proportionality of self-defence, whereas individual actions would have to conform to the requirement of proportionality in jus in bello. However, beyond the large area in which these two standards overlap, there might be situations in which the strict application of the jus ad bellum standard makes it impossible to achieve the aims of jus in bello. In these cases, the proportionality test under jus in bello must be regarded as part of the proportionality test under jus ad bellum.
    [Show full text]