theory of just war research paper

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3 Historiography of Just War Theory

Gregory M. Reichberg is Research Professor at the Peace Research Institute Oslo (PRIO) and Adjunct Professor in the Department of Political Science at the University of Oslo. He heads the Oslo-based Research School on Peace and Conflict (a consortium that

• Published: 12 November 2015
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This chapter examines the historiography of just war theory. It starts off by showing how the concept of war has remained far from constant from one period to another and why recognition of these shifts in meaning is a prerequisite for historical reflection in this domain. Proceeding afterwards to explain why histories of the just war ‘tradition’ have been written, in what historical contexts and in view of what aims, it is shown how few of these histories have been recounted as purely descriptive exercises. Displaying the normative options that have oriented historical methodology in this field is thus a principal task of this chapter. Finally, to exhibit the salience of just war historiography for contemporary theorising, this chapter concludes with a reflection on the antecedents to our present debate on the moral equality of combatants.

The aim of this chapter is not so much to survey the history of ethical thinking about war 1 as it is to examine what approaches have been adopted by those retelling this history. Prima facie, historical reflection on the ethics of war would seem to be a second-order initiative that is parasitic upon the primary task of disentangling the substantive moral issues to which war gives rise. Nonetheless, just war theorising assumed this systematic form only after it had evolved for several centuries. Largely prompted by Aquinas’s succinct formulation of just war principles in his ‘ Quaestio de bello ’, the idea that the morality of war could be discussed on its own terms as a distinct field of inquiry at the time represented a novel development.

At its inception, reflection on just war was inherently historical. Thucydides (ca. 460–395 BC), arguably the first normative theorist of war, 2 examined the relevant issues through the prism of history, in his case by reconstructing the history of the Peloponnesian War. His approach was largely descriptive; he contrasts alternative viewpoints on the rights and wrongs of war but does not overtly reach conclusions about the truth or falsity of these views. This task he left to the discernment of his readers. Plato seems to have picked up the cue because he, for the first time in Western thought, assessed in a theoretical vein (by implicit reference to the Peloponnesian War 3 ) the substantive issues that can be raised concerning human engagement in armed conflict.

Not, however, until the canon lawyer Gratian compiled his Decretum in the twelfth century do we find a sustained attempt (in bk. 2, Causa 23) at detailing normative conclusions about war. Here, too, the approach is historical, yet in a very different sense from what may be found in Thucydides. Little is said about past battles and wars, apart from some stock examples drawn mainly from the Old Testament. Causa 23 begins with an idealized case—a hypothetical armed seizure of property from heretical bishops—but then proceeds to reproduce copious citations from earlier authors. Cataloguing their statements about the rights and wrongs of war served as Gratian’s vehicle for normative reflection. And, despite the speculative cast of his writing, Aquinas followed very much the same procedure as Gratian. Conclusions on, for instance, whether any war could be just or whether lying might be deemed permissible in war were dialectically linked with an exposition of the views that had been advanced by his predecessors. Grotius adopted a similar methodology in his De jure belli ac pacis . The state of affairs that we now take for granted was thus inverted: historical reflection of the ethics of war came first; only afterwards could there be reasoned judgment about the issues in their own right.

The classical theorists of just war 4 understood that our reasoning about the rights and wrongs of war would be only as good as the premises that form our point of departure. On their view, theoretical reflection would be strengthened through the examination of positions articulated by earlier thinkers. Thereby set in motion was a comparative hermeneutic in which earlier positions were reviewed, not so much out of historical interest, but rather for the didactic purpose of grounding sound reasoning about issues of contemporary import.

For these authors, a historical approach was considered beneficial for several reasons: it widened the range of available premises and thereby directed the theorist’s attention to issues that might otherwise go unnoticed, it facilitated critical self-reflection by bringing into greater relief the theorist’s own cherished assumptions, it showed how a single premise could be drawn towards very different and even opposing conclusions, and it explained the appeal of errors that were operative in contemporary practice, thereby enabling their persuasive refutation. This, in sum, was the idea behind the ‘disputed question’ methodology that Aquinas and later scholastics exploited to such great effect within their treatment of war and related issues. 5

Dialectical engagement with earlier viewpoints was essential to the classical theorists, but none of them sought to write narrative histories of just war thought. In fact, it was not until the late nineteenth century that such histories were first written. In this formative period, the main interest of these historians was to situate just war reflection in relation to public international law, a branch of jurisprudence that had emerged only the century before. Given its relative novelty, there was much concern to show how it was solidly anchored in the work of respected past thinkers. The resulting just war histories consequently had an apologetic cast that emphasized the continuity between the earlier period of normative reflection on war and the newly codified rules of the international community. Later, this continuity would be questioned. In this there lies an important lesson for readers today. Few (if any) histories of just war have been written as purely descriptive exercises. Most have a decidedly normative thrust, articulated by the authors themselves with varying degrees of transparency. Explaining the normative options that have oriented historical methodology in this field is the principal task of this chapter.

It goes without saying that historical accounts of just war theorising, while concentrated on the ‘classical’ authors of the Middle Ages and early modernity, are in no wise restricted to this period. The emergence of public international law, the French Revolution and the rise of the nation-state, new kinds of weapons, and the establishment of institutional arrangements for regulating resort to war (for instance the League of Nations and the UN Charter) have, inter alia , left an imprint on the historical retelling of just war theory.

The historiographical account that I develop herein begins (Section 1 ) with a comment on how the underlying concept of ‘war’ has remained far from constant from one period to another. Acknowledging the various shifts in meaning—and the attendant danger of equivocation—is a prerequisite for broad historical reflection in this domain. Later, in Section 2 , I consider how the idea of a ‘just war tradition’ first emerged. Usually described by contrast to ‘pacifism’, on the one hand, and ‘political realism’, on the other, nowadays we take for granted that ‘just war’ represents a set of philosophical postulates that are shared by a recognizable group of authors. But this was not exactly how the formative (‘classical’) authors viewed their own activity; taken as the name of a distinctive school or approach, the label ‘just war’ was affixed by later historians who were intent on establishing a just war ‘canon’. Why modern histories of just war theory were first written and their criteria for inclusion in the canon is taken up in Section 3 . Implicit in every canon are normative presuppositions about the ideal shape of a tradition and a retelling of its history in terms of inclusion and exclusion, rise and decline. Just war is no exception; hence, in Section 4 , I examine several accounts that have an explicitly normative cast. Finally, to exhibit the salience of just war historiography for contemporary theorising, this chapter concludes (Section 5 ) with a reflection on the antecedents to our present debate on the moral equality of combatants.

1. ‘War’: Contrasting Usages

Historical analysis of normative conceptions of war over a broad time span must grapple with the fact that the very term— war— that underlies this investigation has not remained constant from one author or historical setting to another. The lack of a unitary concept of war, even among authors who employ the same word, has not infrequently resulted in equivocation and thus confusion about the main issues at stake. 6

In the medieval period, writers such as Aquinas typically spoke of ‘war’ from an action-centred perspective such that the noun bellum (war) functioned as an equivalent for the infinitive bellare (to wage war). ‘War’ thus signified the act of a belligerent using force against his opponent. In any particular armed conflict, there would accordingly be two wars: a just war waged by one side and the unjust war waged by the other. A single conflict could also encompass two unjust wars if neither of the respective belligerents was possessed of a just cause. In early modernity, a shift occurred. From the action-centred meaning of the previous period, ‘war’ came to designate a state in which two (or more) parties have the express will to contend against each other by force. 7 Such a state could exist even if no hostilities had yet taken place, as for instance, during the so-called Phoney War (1940–41) between Britain/France and Germany. Conceptualized as a ‘state’, war was a ‘distinctly marked out period of time in which a special legal regime [the ‘state of war’] was substituted for the ordinary one [the ‘state of peace’] that generally prevailed’. 8 For Aquinas and his scholastic successors, by contrast, there was ‘no state of war but only acts of war—either wrongful acts by the unjust side or lawful ones by the just party’. 9 They understood that the overall condition of war is indeed an evil, in the sense that it is both an affliction ( malum poenae ) and, more acutely still, the manifestation of wrongful choice ( malum culpae )—since in every war at least one of the parties must be in the wrong. But this negative judgment on war qua condition was nonetheless compatible with asserting that some wars are just, in the sense that one party to the conflict may be justified in using force against the other.

If one is unaware of this shift in meaning confusion can easily result. The contemporary Roman Catholic teaching on war can provide a useful illustration. The Church magisterium most often employs the term ‘war’ in the modern sense, as the state or condition of mutual conflict. By the same token, statements abound to the effect that this condition is sinful and an affront to reason because it presupposes at a minimum that one of the two (or more) contending parties is gravely at fault. On a superficial reading, the two different usages—scholastic and modern—can easily become entangled. Thus, on reading the very negative appraisal of the state of war in contemporary writings of Church authorities, one could easily be misled into thinking that their intent was to repudiate the very idea of just war.

Other terminological shifts have occurred as well. The classical just war theorists typically employed bellum to designate any resort to force, at a small or large scale, whether by organized armies, opponents of established order, or even single individuals defending themselves. 10 In the lexicon of Grotius, these were differentiated, respectively, as ‘formal’, ‘mixed’, and ‘private’ war. 11 By contrast, from the nineteenth century forward, ‘war’ has typically been reserved only for the first of these categories, and even then only for the largest of conflicts, with smaller-scale military engagements receiving the euphemistic name ‘measures short of war’. 12 Moreover, in some lexicons, ‘war’ has assumed an entirely pejorative meaning, so that any justifiable employment of violent means will be designated under the labels 13 ‘enforcement measures’, ‘armed force’, ‘defensive action’, and so forth. 14

Along similar lines, the Catholic magisterial teaching on war, as it emerged in the early twentieth century, was framed as a reaction against the doctrine of raison d’état , which had reached its apogee in European state practice during the nineteenth century, a practice that received doctrinal articulation in the legal positivism of the day. On this conception, ‘war was, above all else, an exercise of will on the part of the state—i.e., a determination made by a state, reached entirely on the basis of its own interest, that a certain foreign-policy goal will be more effectively pursued by force of arms than by alternative means such as negotiation or the exercise of the unheroic virtue of patience’. 15 The pursuit of policy by other means (to repeat the famous turn of phrase from Clausewitz), war was taken to be a recognized institution, codified in international law, to which states could appeal in order to adjudicate their disagreements. This procedure, in which two states mutually agreed (hence the idea of a ‘war contract’) to settle their quarrel ‘by rolling the dice of Mars’ 16 was fundamentally at odds with the classical doctrine of just war as it had been taught in the Church. 17 Yet, even while rejecting this view, Church writers nonetheless adopted positivist semantics when speaking of ‘war’. As a consequence, the modern popes may frequently be found condemning resort to war. 18 Thus understood after the fashion of raison d’état , the pontiffs had necessarily to declare war a sin; it was per se malum such that the expression ‘just war’ would be an oxymoron. Yet, in uttering this condemnation of war, the popes did not intend to target the jus ad bellum as it had earlier been conceptualized by the scholastics, and which continues to be taught in the Church. It was rather ‘war’ in the positivist sense of the term that was the target of exclusion.

Finally, the related terms ‘aggression’ and ‘defence’ have undergone transformation as well. Whereas scholastics distinguished just from unjust bellum aggressivum (equivalently called bellum offensivum ), for moderns, ‘aggression’ has an unqualifiedly negative connotation, 19 with the result that modes of armed action the former would have placed under the heading of just offensive war have in modernity gravitated into a bloated category of ‘defence’. 20

2. Identifying a Just War ‘Tradition’

The difficulty in assessing doctrinal shifts in just war theory over a broad span of time points to an even deeper challenge that is in a sense presupposed: namely, in what measure it is possible to identify over multiple authors across a span of time sufficient continuity so as to speak of a ‘just war tradition’. Any attempt at defining such a tradition will necessarily be obliged to designate insiders and outsiders.

The idea that there exists a line of thinkers, joined by a set of shared premises on the justifiable uses of armed force such that together they constitute a ‘just war tradition’, appears to have emerged only in early modernity, when opponents grouped these authors into a single category the better to criticize them. It was in this vein that Kant in Perpetual Peace (1795) famously spoke of Grotius, Pufendorf, and Vattel as ‘sorry comforters’, whose normative teaching on war had little effect on the actual behaviour of warring states. Francis Bacon had earlier placed (in a letter written ca. 1620) in a single category the idealistic opponents of preventive war (most likely he had in mind Vitoria and other followers of Aquinas), whom he called ‘schoolmen, otherwise revered men, yet fitter to guide penknives than swords [who assume] that every offensive war must be “ultio”, a revenge, that presupposeth a precedent assault or injury’. 21 Although Kant and Bacon did not name their alternative approaches to the ethics of war, today, these go under the headings of ‘perpetual peace’ and ‘realism’, respectively. Other competitors to ‘just war’ that standardly receive mention in the historical literature are ‘pacifism’ and ‘holy war’ (also termed ‘crusading’). 22

Significantly, however, the long line of authors, from Cicero to Augustine, Gratian, Aquinas, Cajetan, 23 Vitoria, Molina, to Suárez, who are standardly classed as members of a ‘just war tradition’ rarely if ever designated themselves in this manner. What we do find, however, is a running discussion, visible in the form of citations, wherein a continuous pattern of textual references (from the Bible, Church fathers, canon lawyers, etc.), leading ideas (just cause, legitimate authority, or right intention), principles (of double-effect, proportionality, or combatant/noncombatant discrimination), and negations (of, e.g., pacifism) may be discerned.

Although all of the above authors utilized the label ‘just war’ (originally coined by Aristotle 24 ), Grotius was arguably the first to have consciously thought of himself as a theorist within the specialized domain of moral-legal reflection that might go under this name. Recognising that his predecessors had covered portions of this field, he nevertheless took credit for being the first to treat ‘this subject-matter as a whole’. 25 Referring to the sort of realist sentiment earlier expressed by Bacon, he made it clear that his goal would be to refute those who viewed the theory of just war ‘with contempt as having no reality outside of an empty name’. 26 Yet, unlike Descartes, who several years later would seek to construct a new science of ‘first philosophy’ from scratch, Grotius was at pains to demonstrate that his juridical science of war and peace was not a construct born of his own mind, but rather a discipline that emanated from a set of pregiven norms ( jus naturae— natural right) that had already been acknowledged by a broad array of Greek, Roman, and Christian thinkers. That he was but a member of a long-standing tradition of reflection on these matters (hence the care he took in citing inter alia his scholastic predecessors) testified in his eyes to the emanation of these norms (‘a common law among nations, which applies both to wars [ ad bella ] and in wars [ in bellis ]’ 27 ) from a source outside of human contrivance. Indeed, the centrality assigned to lex naturalis , a moral instruction that ultimately derives from God but that does not inherently depend on special religious revelation, was a common thread that bound together all the classical just-war theorists. 28

The central postulates of just war theory are ordinarily traced to St. Augustine. It has been argued, however—convincingly in my opinion 29 —that his diverse writings on this topic are far from constituting a theory; namely, an express attempt at thematising the issue of just war on its own terms. Instead, his comments on just war had an ad hoc character. The references to war that may be found in his diverse writings usually play a supporting role for arguments that bear on quite different matters; for instance, to explain how an unconditional obedience is owed to God’s commands, he proceeded by analogy with a better known case—namely, the chain of command in military affairs. 30

The paternity of just war theory is more credibly traced to the canon lawyer Gratian, who, around 1140 in Bologna, assembled (in Causa 23 of his Decretum , bk. II) disparate texts on war and violence—from Augustine and other theologians, the Bible, Church councils, and the popes—under selected headings (named ‘canons’) that highlighted concepts that later historians would view as integral to the just war ‘tradition’. 31 This he did by lifting these texts out of their original context and placing them in juxtaposition to other texts either by the same author or from other authors who were thought to be making a similar point. Thus, in the passage from Augustine about duty of obedience, the original structure of the argument has practically disappeared in Gratian’s citation; no longer is there any mention of divine injunctions: instead, the supporting point about obedience to military superiors is alone retained. 32

The Decretum quickly become the standard reference work for medieval lawyers and theologians on all manner of normative issues. For these authors, the texts that were collected in Causa 23 took on the status of a canon on matters relating to participation in war and violence. By sifting through opposing positions 33 on a variety of issues relating to war (on, e.g., whether it was permissible for Christians to serve as soldiers, or whether the authorization of a prince was necessary for the waging of a just war, or whether war could justifiably be waged against heretics) and by citing well-known authorities in support of the conclusions reached, Gratian laid out the boundaries of legitimate discourse (within the Latin-speaking Church) on this subject for centuries to come. His work had a twofold audience. On the one hand, it served as a basic manual in canon law, 34 so that subsequent efforts at defining the legal status of acts relating to war—on the scope of pre-emptive defence, the permissibility of ambushes, the obligation to defend the weak and powerless from aggression, and similar questions—would proceed by reference to this seminal work, either in the form of glosses on selected passages or through later papal legislation (decretals). On the other hand, it also provided theologians such as Thomas Aquinas with the basic materials from which they could reflect more systematically on the moral aspects of armed force. Instead of sitting down to read, say, Augustine, in the original texts, Aquinas and those like him would advert to Gratian’s compilation, so that, in effect, they found the materials already organized along certain key lines. In either case, the reflection was inherently practical in the sense that it was meant to inform the conscience of individuals who, in one way or another, had contact with war. Hence, Aquinas situated his analysis of just war within a concrete treatment of the moral virtues, 35 and his Dominican predecessor Raymond of Peñafort elaborated a just war casuistry (writing on this topic in his Summa de casibus poenitentiae , ca. 1225) that was specially geared to the needs of the confessional. By their power to absolve penitents from their sins, confessors exercised a role akin to judges and were expected to apply the law within a special jurisdiction: the inner domain of conscience. 36

A close linkage of decision-making and concrete action would remain constant throughout the classical period of just war reflection. Even at its late, most systematic stage, as in Grotius’s De jure belli ac pacis , this linkage was retained by the copious selection of historical cases drawn mainly from Greek and Roman antiquity (which in Grotius’s eyes reflected a superior level of civilization). For Grotius, these cases served a twofold function. On the one hand, they showed actual agents engaged in concrete choices, thereby aiding in the classification and evaluation of current cases; on the other hand, these cases were conveyed along with determinate moral or legal judgments (which the historians often placed into the mouth of their protagonists). The first provided manifestations of jus naturae (an imprint of divine rationality in the created world) that could enable the jurist to deduce appropriate conclusions about current cases. The second was equivalent to the modern opinio juris (decision of law), which, by a concordance of decisions from one jurisdiction to another could reveal something essential about the positive norms of jus gentium . These two sources of judgment were considered mutually reinforcing. 37 Neither in Grotius nor in his predecessors 38 do we find a purely deductive approach to the normative issues of war (with an imaginative modelling of cases replacing historical reflection), as has become prevalent today in philosophers of the analytic school. 39

3. The Emergence of Just War Historiography

In the preceding section, we saw how out of Gratian’s Decretum a tradition was born, not so much in name as in practice. The explicit conceptualization of this practice as a distinctive tradition emerged not from the thinkers themselves, but from historians who, invoking the seventeenth-century School of Natural Law and the Law of Nations (associated with Grotius, Pufendorf, et al.), began in the late nineteenth century to delineate a subsidiary current that was itself devoted to matters of just war.

Among the first manifestations of the new trend was the publication in 1882 of a book by Ernest Nys (a jurist who was a member of the Permanent Court of Arbitration in The Hague and a professor at the University of Brussels) on the precursors of Grotius and their respective views on just war. 40 Nys tells us in the introduction that his main purpose in writing this book was to trace out the beginnings of public international law, which he viewed as a technical elaboration on the precepts of jus gentium (law of nations). Identifying the origin of this discipline (‘the last to emerge of the legal sciences’ 41 ) with the need to establish order in medieval Christendom after the fall of the Roman Empire, he held that, in the period before Grotius, the theorists of jus gentium were concerned almost exclusively with articulating norms of war. Once limitations on the resort to war (as well as the conduct of war) were recognized, a space could open up for the advancement of positive norms of peace. In writing this history, Nys hoped that it would reinforce the growing influence of international law. Nearly all historians of just war, from the time of Nys up until the post World War II period, advanced with the same normative thrust; namely, that international law (and its affiliated institutions such as the League of Nations) would be strengthened if its roots in the just war teaching of the medieval and early modern theorists were better understood. Only much later would legal historians question the alleged continuity of classical just war theory with the League of Nations and related international law initiatives that were implemented between the two World Wars. 42

Writing in the wake of Nys, other continental authors sought to trace out the history of just war doctrine as it emerged in the Middle Ages. First, there appeared a translation into French of Gratian’s Causa 23, which was presented, tellingly, as a treatise in public international law. 43 It was followed a decade later by a book, also written by a professor of law, Hippolyte Pissard, that demarcated holy war as a subset within the broader legal/canonical tradition of just war. 44 A milestone was passed in 1911–12, when another French historian, Alfred Vanderpol, an engineer by training and a fervent member of the Catholic internationalist movement, wrote two books 45 that sought to show how a set of thinkers—including not only Gratian, Aquinas, Vitoria, but also Bonet, Pisan, and Gentili—represented a veritable school, organized around the core idea that resort to war should be governed by a set of limitative rules. To his credit, Vanderpol did not present this school as monolithic, for, as we shall see shortly, he detected several distinct strands within the broader stream.

The idea that historical study of the just war tradition could reinforce the development of international conventions to regulate war was central to the ambitious project, initiated by James Brown Scott in 1906, to republish the classic writings on war and peace that were believed to have given birth to international law. Comprising more than twenty works (each reproduced in the original language with English translation) by the time of its completion in 1950, The Classics of International Law , as the series was called, did much to solidify belief in the existence of a just war canon that could enable its readers to ‘trace the history of international law to its sources’. 46 The unity of this canon was presented by Brown as a given, but, like most other canons, it was in fact a reconstruction. The principal flaw in the eyes of its later critics was the canon’s teleological foundation: the cohesion of the tradition was attributable to the service it would render only in the future vis-à-vis the formation of public international law. Beyond highlighting this anachronism, 47 later scholars would also emphasize how some central postulations of the classical just war literature (roughly from Aquinas to Grotius) were in fact inconsistent with the basic framework of international law as it emerged in the eighteenth and nineteenth centuries. 48 Even the alleged unity of just war writings in the classical period would be called into question, as, for instance, when Peter Haggenmacher (and before him Carl Schmitt) maintained that authors such as Bartolus, Legnano, Ayala, and Gentili, usually categorized under the heading of ‘just war’, actually represented a competing tradition, ‘regular war’, which in turn was the main progenitor of international law (more about this later).

4. Accounts of Decline and Progress

Of the early works on the history of just war reflection, Vanderpol’s was by far the most influential. His La doctrine scholastique du droit de guerre (scholastic teaching on the law of war) sought to demonstrate how, in the Catholic Church, from Ambrose and Augustine in late antiquity, through the high Middle Ages until the seventeenth century, there arose a doctrinal consensus on the justifiability and limits of the resort to armed force. While acknowledging that this doctrine was born and nurtured within the Church, Vanderpol emphasized that it nevertheless did not bear on matters inherently religious but pertained rather to the sphere of natural right, and, as a consequence, it could subsequently lay the foundations for a nondenominational (‘secular’ as we would now say) international law. Not content merely to unite disparate authors under a loose family resemblance, Vanderpol sought to identify the key premise that, on his view, constituted the core of just war doctrine and by reference to which any purported instantiation of this doctrine could be judged. Citing Aquinas’s famous definition of just cause in his ‘ Quaestio de bello ’—‘those who are attacked should be attacked because they merit it on account of some fault’ 49 —Vanderpol defined just war as ‘an act of vindicative justice, namely the punishment of foreign malefactors’. 50

On Vanderpol’s understanding, war could be justifiably undertaken only when it was posited as a reaction to a grave, culpable offence. Modelled on the procedures of criminal justice, this standard of just cause was extremely stringent. Instances of wrongdoing wherein the culpability ( mens rea ) of the unjust side could not be demonstrated would accordingly not warrant an armed response. In formulating this requirement, Vanderpol sought to discredit a more permissive view that he associated especially with Molina. The Spanish Jesuit was singled out for special criticism as having argued that the commission of (material) injustice, apart from any inner culpability (formal injustice), was sufficient to warrant a response of just war. Vanderpol thus maintained that the Jesuit scholastic had opened the door to the idea, later to be taken up in nineteenth-century international law, that states were entitled to resort to war as a legitimate means of resolving their grievances. Just war, on Molina’s logic as understood by Vanderpol, was akin to a civil lawsuit undertaken by parties who were juridically equal. By abandoning the paradigm of criminal law, the moral barrier to war was thereby lowered to the point whereby it could be viewed as a normal procedure for resolving conflicts in the international sphere. 51 Here it can be noted that a similar logic is operative in the recent work of Jeff McMahan. His claim that soldiers who fight on behalf of an unjust cause bear liability for this wrongdoing and may unilaterally be attacked is (like the argument of Vanderpol before him) motivated by the project of reducing resort to war. On McMahan’s view, 52 the initiation of unjust war can best be prevented if rank-and-file combatants are made to understand that they bear personal liability for their participation in such wars. This awareness will lead them to exercise selective conscientious objection when necessary. Should this become a majority option, it will impede the wrongful initiatives of their political leaders, who depend on a compliant military to advance their programs of aggression. For this reason, McMahan argues against Walzer’s idea that combatants confront each other on the battlefield as moral equals whose obligation of obedience to their superiors removes from their purview any substantive engagement on the underlying just cause of the wars in which they are called to fight (see Section 5 ).

Returning to Vanderpol, we note how, in his eyes, an additional factor further aggravated the trend towards a more permissive understanding of just war: namely, the introduction of a ‘probabilist’ calculus into the assessment of just cause. Levelling this charge against Suárez, Molina, and their followers, Vanderpol maintained that they had moved away from grounding just cause on the certitude of a grave fault committed by the adversary, replacing this epistemic requirement with a mere judgment of probability that the evidence was weighted in favour of the claims put forward by one’s own side. 53 Once this was conceded, it would be a short step to recognising that each party to a conflict would readily construe the probable reasons in favour of itself, thereby leading to a situation wherein each side would simultaneously have a right to declare war against the other. Whereas the classical doctrine as articulated by Vitoria had allowed solely for an appearance of simultaneous justice (premised on the invincible ignorance of one party to the conflict), by the acceptance of probabilism, the central condition of just cause would be adulterated so that, substantively , each side would have an equal right to fight. The core of the just war doctrine would thereby be jettisoned, in effect replaced by the modern conception, according to which war, when declared by two sovereigns, was a legitimate way to adjudicate disputes that could not be settled by other means (the ‘war contract’ 54 ).

The two prongs of Vanderpol’s critique were vigorously countered by Robert Regout, a Dutch jurist whose comprehensive account of the historical development of just war theory, La doctrine de la guerre juste de Saint Augustin à nos jours (‘The doctrine of just war from St. Augustine to the present’), appeared in 1934. 55 An ardent proponent of a system of international law rooted in classical just war theory who would later die at the Dachau concentration camp (after airing legal views critical of the German occupation of his country), 56 Regout’s main claim was that war could be resorted to only when it might serve as an instrument of justice. The justice in question he did not construe quite so narrowly as had Vanderpol, who, as we have seen, maintained that only a culpable offence (formal injustice) might be countered by means of war. This could leave grave wrongs unanswered if they were committed out of invincible ignorance, for example. The harm done to the recipient of this wrong would thereby be left to stand, an outcome hardly incompatible with justice, 57 namely, the ‘free exercise of [legitimate] rights’. 58 Inversely, by characterising just war as a form of punishment, Vanderpol had unwittingly construed the legitimate objectives of war too broadly. For, on his formulation, not only defence and restitution, but also punishment of wrongdoing could be included under the category of just cause. 59 Against this overly broad construal of just cause, and by reference to Vitoria and Molina, Regout maintained that offensive war ideally should be waged only to repair (overturn) a wrong. 60 This is what he termed a ‘war of recuperation’. 61 Punishment he argued (by reference to Vitoria), should never be the proximate aim of war; when deserved, punishment should be secured solely post bellum , by the prosecution of the guilty. To put the same point otherwise: just war can be a means to apprehend the guilty such that they are brought to justice afterwards, but war itself should never be imposed as a form of punishment. 62

As to Vanderpol’s accusation of probabilism, Regout countered that it resulted from a misreading of Suárez and Molina. The two Spanish Jesuits had indeed conceded that disputes could arise wherein one or both parties found it very difficult to render firm determinations of just cause. They accordingly devised a subtle casuistry to guide decision-making about such ‘doubtful cases’. On this account, heads of state have an obligation to submit their grievances to arbitration or be willing to attend conferences where their competing claims could be dispassionately discussed. Contested land should never be unilaterally seized, and, if both parties are in doubt about the rights of possession, a presumption would vest in favour of the current owner. Molina and Suárez likewise held that whereas a weighing of probabilities might be altogether apposite in an initial phase of deliberation, to embark on war without having first achieved a reasoned certitude about the matter at hand would be unjustifiable. Unduly conflating the initial process of deliberation with the subsequent decision, Vanderpol had wrongly attributed to the two Jesuits the belief that war could justly be declared on merely probable grounds. 63

Vanderpol’s further contention that this probabilism had paved the way for the view, prominent among lawyers in the nineteenth and early twentieth centuries, that war could be accepted as an ordinary means of resolving intractable disagreements between states, resulted, on Regout’s estimation, from another undue conflation, in this instance between the casuistry of hard cases (i.e., the method promoted by Suárez and Molina) and the idea of a ‘war contract’. 64 Regout pointed out that Suárez (and by extension Molina) had hesitated to condemn the latter practice solely with respect to the obligation of restitution. Since the parties had voluntarily entered into this arrangement, commutative justice could not require that the goods thus gained by victory in war should be returned. This concession aside, Suárez took care to state how the war contract was wholly incompatible with the virtue expected of those who wage just war. 65 Although the war contract would subsequently find some acceptance among nineteenth-century lawyers, only by considerable distortion could its paternity be traced to Suárez and his kin in just war theory. 66

Closer to our own time, the thesis that the just war tradition has gone into decline due to a betrayal of its core principles has been revived by James Turner Johnson, a historian who works in the field of religious studies. 67 On several occasions, 68 he has argued that contemporary versions of just war—particularly as articulated within the Christian churches (especially Catholic)—are ‘radically at odds with the classical idea of just war’. 69 The difference between the classical and contemporary versions he has summed up with his widely cited contrast between two incompatible starting points for moral reflection on war: ‘the presumption against injustice’ (the classical theory), on the one hand, and ‘the presumption against war’ (the contemporary theory), on the other. For Johnson, the discrepancy between these two forms of just war theory is to the discredit of the contemporary version. Describing it as an ‘intellectual deterioration . . . in influential quarters’ which has ‘altered the ground on which the theory itself has stood for more than a thousand years’, 70 he maintains that the ‘presumption against war’ view underestimates the weight of injustice in human affairs, thus hindering the ability of moral leaders to counter it effectively. Moreover, he faults this approach for unduly limiting the legitimate scope of the jus ad bellum to self-defence, thereby ‘trammel[ing] action and initiative in foreign policy’. 71 Harking back to the classical doctrine because it provides a more robust understanding of just war (allowing, inter alia for humanitarian interventions), Johnson, referring to the same authors as Vanderpol (Augustine, Aquinas, and, to some extent, Vitoria) nonetheless reaches a diametrically opposed conclusion: namely, that the classical doctrine is better than the contemporary version (as taught, e.g., by the popes) precisely because it is less restrictive. Moral empowerment to confront injustice is more central to the just war ethos than its attendant teaching on jus in bello restraint.

Significantly, Johnson is far from alone in his assessment that contemporary Christian teaching (especially by the Catholic magisterium) represents a departure from the ‘classic canons of just-war thinking’. 72 An almost identical appraisal may be found in a 1962 monograph 73 by René Coste, who argues that, for Pope Pius XII (the pivotal figure in the articulation of contemporary Catholic just war doctrine), offensive war, in the juridical and moral sense of the term, must be entirely excluded. This represents, Coste affirms, ‘a key divergence with the traditional doctrine’. 74 Unlike Johnson, however, Coste views this doctrinal shift as a positive development, one in keeping with the progress of humanity (as reflected notably in international law) towards a less sanguine view of the nobility of war. Similar views have been echoed by other historians of just war thinking. 75

From the preceding it should be manifest that historical interpretations of just war are often teleologically driven. Doctrinal positions are not merely classified into their variants according to an order of origination and family resemblance, but, moreover, they are assessed by reference to some normative ideal. Some historians are more overt than others in disclosing their normative preferences, but, in any case, readers must be alert to these preferences and how they structure the historical narratives of just war theory. 76

5. Conclusion

The salience of just war historiography to contemporary theorising about war and ethics can be illustrated by the contemporary debate on the moral equality of combatants. 77 The idea that in bello rules of armed conflict can be defined without reference to the ad bellum status of belligerents (the ‘independence thesis’), such that the same rules apply to all soldiers, irrespective of the justice of the cause for which they fight (the ‘symmetry thesis’), 78 was advanced by Michael Walzer as a central presupposition of traditional just war theory. Indeed, Walzer maintained that the ‘medieval’ distinction between jus ad bellum and jus in bello presupposes ‘two sorts of judgments’ that ‘are logically independent’. ‘War is always judged twice’, he famously states at the outset of Just and Unjust Wars , ‘first with reference to the reasons states have for fighting, secondly with reference to the means they adopt’. 79

Against this just war ‘orthodoxy’, Jeff McMahan has elaborated over the last few years a ‘revisionist’ theory that assesses the in bello conduct of soldiers by reference to the ad bellum justice of their cause. 80 Soldiers possessed of a just cause may direct force against their adversaries in proportion to the degree of liability that the latter bear for the unjust cause that, de facto, they represent on the battlefield. Within this normative framework, soldiers do not confront each other on the battlefield as moral equals, for only those possessed of the just cause have a right to bring lethal force upon their peers, whereas those prosecuting the unjust cause have no such entitlement; on purely moral grounds, they should simply lay down their arms. McMahan’s theory has received sustained criticism from various quarters, 81 mainly on grounds that it would undermine the in bello rules that have enjoyed wide acceptance under international law since the late nineteenth century. The excesses of, say, the Allied powers during World War II (obliteration bombing of urban centres) or the United States during its so-called War on Terror (with its unwillingness to recognize the fighters on the opposing side as ‘lawful combatants’) would seem to bear out the worry that rejection of the symmetry thesis (motivated by strong belief in a unilaterally applicable just cause) would foster a neglect of long-standing international norms in the conduct of war.

How would just war historiography contribute to this debate? First of all, it would contest Walzer’s claim that his postulation of combatant equality represents an embrace of traditional just war teaching. From Aquinas to Grotius, the common assumption of leading authors in the tradition was that the right to kill, which is conferred on soldiers in war, is a prerogative of the just side only. Soldiers on the unjust side enjoy no such right even if, under some circumstances, they may be excused on grounds of ignorance or their adherence to the requirements of obedience for killing without just title. Jus in bello was viewed largely through the prism of the jus ad bellum ; thus, the default position operative in the tradition was that unjust combatants are unilaterally liable to attack. 82

What Walzer had identified as the ‘traditional’ theory was indeed a doctrine that had emerged in the Middle Ages; he erred nonetheless in associating it with thinkers of the just war cast. The idea that in public war combatants oppose each other as moral equals (‘just enemies’) is traceable to a competing line of thinkers—proponents of ‘regular war’ 83 —who, from the legist Raphaël Fulgosius in the late fourteenth century, to Balthazar Ayala in the sixteenth century, culminating with Christian von Wolff and Emer de Vattel in the eighteenth century, came to view the jus in bello as entirely separable from the jus ad bellum. The characteristic mark of this tradition was not a simple distinction of the two domains: when he embarked on a discussion of ‘how much is permitted in a just war’ Vitoria, like Suárez and other mainstream just war theorists, had implicitly recognized that the norms governing conduct in war were of a somewhat different nature than those that ought to guide the original resort to force. Yet the two sets of norms were not treated in isolation, since it was understood that the rules of in bello restraint were formulated for the belligerent who was possessed of the just cause; from the moral point of view, his unjust counterpart was expected, not to show restraint, but rather not to be fighting at all.

In other words, to generate combatant equality, over and above the distinction between jus ad bellum and jus in bello , an additional thesis was needed. For Fulgosius, this consisted in the insight that, whenever war breaks out between sovereign peoples or kings—over whom, by definition, there is no common judge—just cause will be indeterminable. Fulgosius does not entirely forgo the vocabulary of just war—it can have meaning within the sphere of private conscience or in the mind of God—but when sovereign powers engage in war, their very juridical status precludes reference to a just cause. By virtue of a structural condition—namely, the fact of mutual sovereignty—every belligerent has as much right to fight as any other, and, under such circumstances, victory alone will serve as the final arbiter of their underlying disputes. From the unilateral ‘just war’ of the scholastics we thus move to the bilateral ‘public war’ of the legists, and, under this condition of reciprocal jus belli , there extends to the rank-and-file soldiers the right to kill each other on the battlefield—a moral equality of combatants.

Originally, this was not a teaching about the reciprocal duties of restraint that should be observed in the conduct of hostilities. Rather it was about reciprocal rights, chiefly the right to kill, but also the mutually recognized right for victors to keep whatever booty they had seized and related matters. This, in other words, was about wartime liberties for which legal immunity would be granted to regular combatants (in contrast to robbers and other unrecognized fighters); very little in this connection was said about mutually binding wartime restrictions that would later be acknowledged in the Hague and Geneva conventions. 84

A summary of these wartime liberties was spelled out by Grotius in his De jure belli ac pacis , 85 wherein he discusses what may be deemed permissible in a formally declared public war (i.e., a war between sovereigns). Referring to some unnamed jurists (most likely an allusion to Fulgosius and his fellow legists), as well as to the practice of the ancient Romans, 86 Grotius notes that, owing to a tacit agreement among nations (i.e., a permanent implied understanding that holds by virtue of the jus gentium ), the parties to a public war may with impunity carry out deeds that normally would be considered impermissible under natural law. Grotius justifies this suspension of just cause by an appeal to the principle of the lesser evil. Neutral powers would inevitably get drawn into a conflict (by, e.g., being pressured to make determinations about which side had violated the laws of war or which side should be deemed the possessor of a particular territory at the close of the fighting) unless it was mutually recognized at the outset that certain legal effects would accompany the formally declared state of war. The purpose of this new bilateral regime was to narrow the circle of war with respect to the jus ad bellum ; namely, to prevent a conflict from encompassing states that had no special stake in the matter under dispute. 87 It was, in other words, to promote ad bellum restraint that these in bello liberties were allowed ( qua lesser evil) despite their inconsistency with the demands of ‘internal justice’. 88 McMahan is similarly motivated to widen the scope of in bello permissions (at least with regard to the targeting of enemy combatants) in order secure an ad bellum gain (narrow the resort to war).

In contrast to these reciprocal liberties, the idea of in bello restrictions first arose among the scholastic theologians—Aquinas had prohibited lying and other forms of treachery in war, just as later Vitoria and Suárez ( inter alia ) had cautioned against direct attacks on noncombatants—but these thinkers nonetheless viewed such restrictions within the classical lens of a unilateral jus belli . Bilateral restrictions, on the other hand, were first proposed by Wolff and Vattel, 89 who nonetheless conceptualized this advance by establishing a theoretical system in which jus ad bellum and jus in bello were separated into two autonomous spheres. As in Fulgosius, the first pertained to the private domain of moral conscience and the second to the public domain of law. This separation allowed for what would otherwise have been a contradictory postulation of unilateral ad bellum norms, on the one hand, and bilateral in bello norms, on the other. Deriving as it did from contrasting streams of medieval thought (just war of the scholastics and regular war of the legists), the unified system that had been proposed by Wolff and Vattel (and later adopted within international law) was inherently unstable. 90

Against this background, it should have come as no surprise that when Michael Walzer sought to revive just war theory in the mid-twentieth century, the internal tensions of the earlier systematization would still be present. Indeed, with Walzer’s attempt at establishing a more robust jus ad bellum against the backdrop of World War II, these tensions would be considerably enhanced. But since few philosophers working systematically on just war theory paid much attention to the historiography of their discipline, 91 it would take quite some time before the tenuous co-existence of these two prongs in Walzer’s synthesis would be openly acknowledged. The ensuing debate on combatant equality has mirrored the historical dialectic described earlier: reshuffled in multiple ways, the cards have nonetheless stayed the same. 92 Whitehead’s quip that Western philosophy ‘consists of a series of footnotes to Plato’ holds equally true of the ethics of war, with the caveat that Thucydides more rightly deserves the credit as its first progenitor.

1. For a survey of the history of philosophical reflection on war, see Endre Begby , Gregory M. Reichberg , and Henrik Syse , ‘The Ethics of War. Part I: Historical Trends’, Philosophy Compass 7:5 (2012), 316–327. Many of the primary sources referred to in this chapter may be found in Gregory M. Reichberg , Henrik Syse , and Endre Begby , The Ethics of War: Classic and Contemporary Readings (Oxford: Blackwell Publishing, 2006) , cited henceforth as Ethics of War .

2. Thucydides’ Peloponnesian War was written around 400 BC. It predated by about a century the first normative accounts of warfare to emerge in China, by Mencius (ca. 372–289) and Xun Zi (ca. 312–230). The first work of this genre to appear in India, Kautilya’s Arthaśāstra , is traced by some scholars to the fourth century BC. For background (and primary sources) on the emergence of ethical reflection on war in different civilizations, East and West, see Gregory M. Reichberg and Henrik Syse , eds. Religion, War, and Ethics: A Sourcebook of Textual Sources (Cambridge: Cambridge University Press, 2014).

3. For a review and analysis of the relevant passages, see Henrik Syse , ‘The Platonic Roots of Just War Doctrine: A Reading of Plato’s Republic ’, Diametros 23 (March 2010), 104–123.

In this chapter, ‘classical theorists’ (or ‘classical period in just war theorising’) is shorthand for medieval and early modern thinkers. The lineage begins with Gratian and his canon law commentators in the twelfth and thirteenth centuries. Under the impetus of Alexander of Hales (ca. 1185–1245) and Saint Thomas Aquinas (ca. 1225–1274), just war subsequently became a regular topic of investigation for scholastic philosopher-theologians (henceforth referred to as ‘scholastics’), especially in the sixteenth and seventeenth centuries, with Francisco de Vitoria (ca. 1492–1546), Luis de Molina (1535–1600), and Francisco Suárez (1548–1617). The ‘classical’ period culminated with Hugo Grotius (1583–1645).

5. On the medieval ‘disputed question’ method of discourse, see Marie-Dominique Chenu , Toward Understanding Saint Thomas (Chicago: Henry Regnery, 1964), 85–98.

6. This section draws on material in my paper ‘Discontinuity in Catholic Just War? From Aquinas to the Contemporary Magisterium’, Nova & Vetera (English Edition) 10:4 (2012), 1073–1097.

7. Grotius, De jure belli ac pacis , I.I.II; Ethics of War , 393. For the transition from the scholastic understanding of war as an action to the modern idea of war as a condition ( status ), see Delphine Thivet , ‘Thomas Hobbes: A Philosopher of War or Peace’, British Journal for the History of Philosophy 16:4 (2008), 701–721.

8. Stephen C. Neff , War and the Law of Nations (Cambridge: Cambridge University Press, 2005), 58.

Thus, on the one hand, we find Aquinas designating bellum as ‘one multitude [i.e., a polity] contending against another’ ( Summa theologiae [henceforth ST] II–II, q. 42, a. 1), but, on the other, he recognises that it can also signify the act whereby an individual defends himself (or others) from attack (ST II–II, q. 123, a. 5, ad 2). In the latter sense, he refers to a criminal’s forcible resistance to a sentence of capital punishment as an ‘unjust war’ (ST II–II, q. 69, a. 4).

Grotius, De jure belli ac pacis , I.I.III.1 ( Ethics of War , 394–395).

On the these military engagements ‘short of war’, see Neff, War and the Law of Nations , 215–249.

13. In this connection C. A. J. Coady ( Morality and Political Violence [Cambridge: Cambridge University Press, 2008], 4) explains how ‘[t]‌alk of “force” makes it sound as if we are proposing to move things by using superior physical strength (as we might lift protesters out of the way without seriously harming them), when what is usually on the agenda is killing, maiming, and destroying’.

The linguistic move away from an approving usage of ‘war’ is manifest, for instance, in the UN Charter (1945). Its preamble condemns the ‘scourge of war’, and, after noting that ‘armed force shall not be used, save in the common interest’, it cites ‘individual or collective self-defense if an armed attack occurs’ (Article 51) and ‘international enforcement measures’ (Article 45) including ‘action by air, sea, or land forces . . . to maintain or restore international peace and security’ (Article 42) as permissible applications of military might. The phraseology of ‘just war’ is studiously avoided, although the actions thus allowed are of the sort that scholastic theorists would have placed under this label.

Neff, War and the Law of Nations , 163.

17. See Francisco Suárez , Selections from Three Works (Oxford: Clarendon Press, 1944), 851.

See, e.g., Pope Paul VI’s 1965 speech to the General Assembly of the UN ‘ Never Again War! ’ (reproduced in Reichberg and Syse, eds., Religion, War, and Ethics , 126–127).

For instance, the UN Charter places ‘acts of aggression’ alongside ‘threats to the peace’ and ‘breaches of the peace’ (Article 39, all mentioned in the singular) as the sort of inherently wrongful actions that could occasion a justifiable armed reaction.

See Neff, War and the Law of Nations , 326–334ff.

21. Francis Bacon , The Letters and the Life , VII, edited by James Spedding (London, 1874), 477.

22. For two prominent attempts at typologising the different approaches to the ethics of war, see Roland H. Bainton , Christian Attitudes Toward War and Peace (Nashville: Abingdon Press, 1960) , and James Turner Johnson , The Quest for Peace (Princeton, NJ: Princeton University Press, 1987) .

‘Cajetan’ was the scholastic nickname for Thomas de Vio, an Italian cardinal whose short theological discussions of war (written in the period 1517–24) exerted an important influence on later scholastics and even on Grotius (see Ethics of War , 140–141).

Politics , bk. 1, chap. 8 (1256b25).

De jure belli ac pacis (published 1624), Prolegomena, 36, in Ethics of War , 392.

Idem, 3: 387.

Idem, 28: 390.

For these thinkers, natural right ( jus naturae ) is a manifestation of divine ordering in the created world (with respect to human agents especially), whereas lex naturalis is its corresponding expression in the mind.

Haggenmacher, Grotius et la doctrine de la guerre juste (Paris: Presses Universitaires de France, 1983), 11–35.

Augustine, Contra Faustum manichaeum , XXII, 74.

For a representative sampling of texts on war from Gratian’s Decretum , see Ethics of War , 109–124.

On the procedure utilised by Gratian, see Ethics of War , 106–108.

The work was aptly titled Concordia discordantium canonum (the concordance of discordant canons), although it is better known today as the Decretum Gratiani .

Alongside this Church law there also existed a civil law. Organized as leges (laws) rather than canones (canons), it was based on several collections of legal texts ( inter alia the Institutes, Digest, and Codex ) that had been compiled by the emperor Justinian around 530 AD. The study of this Corpus juris civilis (as the ensemble came to be known) was not of merely historical significance to the medieval civil lawyers (‘Romanists’ or ‘Legists’) because the Holy Roman Empire was thought to be a Christian continuation of ancient Rome, and Roman law was consequently deemed to be still in force. For this reason, it was understood that a careful work of interpretation was required to bring Roman law into conformity with contemporary conditions. This civil law included provisions on the waging of war that would be discussed by Legists such as Bartolus of Saxoferrato (ca. 1313–57) or Raphaël Fulgosius (1367–1427); see Ethics of War , 203–209 and 227–229).

His famous discussion of just war (ST II–II, q. 40, a. 1, apropos the theological virtue of charity) was extended into his subsequent treatment of two specific moral virtues: military prudence (ST II–II, q. 50, a. 4) and courage (ST II–II, q. 123, a. 5).

See Ethics of War , 131–134, on Raymond’s casuistry of just war.

37. On Grotius’s use of historical examples, see Peter Haggenmacher , ‘La pratique chez les fondateurs du droit international’, in La pratique et le droit international , edited by Societé française pour le droit international (Paris: Pedone, 2004), 49–78, at 70–71.

With the possible exception of Suárez, whose approach to just war, in line with his Metaphysical Disputations , stands out by its abstract and speculative style ( Disputation on War 8.8–10, in Selections from Three Works , 862–865).

All the authors of the classical period were dependent on Aristotle’s Nicomachean Ethics, which treated moral matters as part and parcel of a distinctly practical science.

40. Ernest Nys , Le droit de la guerre et les precurseurs de Grotius (Brussels: Librairie Européenne, 1882) .

42. See Peter Haggenmacher , ‘La place de Francisco de Vitoria parmi les fondateurs du droit international’, in Actualité de la pensée juridique de Francisco de Vitoria , edited by A. Truyol Serra , et al. (Brussels: Bruylant, 1988), 27–80.

43. César-Auguste Horoy , Droit international et droit des gens public d’après le Decretum de Gratien (Paris: Chevalier-Maresq, 1887).

44. Hippolyte Pissard , La guerre sainte (Paris: Alphonse Picard et Fils, 1912).

45. Le droit de guerre d’après les théologiens et les canonistes du moyen-âge (Paris: Tralin, 1911) and La guerre devant le christianisme (Paris: Tralin, 1912) . These two books were combined to form the book (published posthumously) for which he is best known today, La doctrine scholastique du droit de guerre (Paris: Pédone, 1919).

46. Letter (dated 2 November 1906) of James Brown Scott ‘to R. S. Woodward, President of the Carnegie Institution of Washington, relative to a project for the republication of the classics of international law’, reproduced as appendix C in Hugo Grotius , Commentary on the Law of Prize and Booty , vol. 1 (Oxford: Clarendon Press, 1950), 288–393, at 389.

Haggenmacher points out that the distortions produced by reading texts in view of subsequent developments, thereby projecting onto these texts later crystallizations of their multiple latencies, is a danger that particularly besets Grotius and other thinkers who are claimed by posterity as ‘fathers’ of international law ( Grotius et la doctrine de la guerre juste , 588, 605–612).

48. See Peter Pavel Remec , The Position of the Individual in International Law according to Grotius and Vattel (The Hague: Nijoff, 1960) , and Haggenmacher, Grotius et la doctrine de la guerre juste , 615–629.

ST, II–II, q. 40, a. 1 (in Ethics of War , 177).

La doctrine scholastique du droit de guerre , 1 .

Idem , 250–275.

52. For a summary, see his Killing in War (Oxford: Oxford University Press, 2009), 6–7.

Idem , section 5, ch. 2, ‘Le probabilism et les controversies de la fin du XVIème siècle’, 254–259.

On the ‘war contract’ as it was critically discussed by Suárez and other Spanish scholastics, see Haggenmacher, Grotius et la doctrine de la guerre juste , 292–295.

Paris: Éditions A. Pedone.

56. See Henri de Waele , ‘Commemorating Robert Regout (1896–1942). A Chapter from the History of Public International Law Revised’, Journal of the History of International Law 7 (2005), 81–92. After his death, Regout, a Jesuit, was succeeded in his chair of public international law at the University of Nijmegen by a Franciscan, Leo J. C. Beaufort , who earlier had written a work on the classical just war roots of humanitarian intervention: La guerre come instrument de secours ou de punition (The Hague: Martinius Nijhoff, 1933) .

See Regout, La doctrine de la guerre juste, 296–297 where he sums up this assessment.

Regout, idem, 157–168, 266–273.

Regout explains (idem, 309–310) how the distinction between offensive and defensive war is itself (when used technically) morally neutral: it refers solely to the factual question of which party to a conflict has opened the hostilities. Concrete cases of offensive and defensive war could be deemed just or unjust depending on the circumstances.

Regout employs the terms ‘redressement’, ‘vindication’, and ‘restitution’ interchangeably, usually by contrast to ‘punition’ and ‘défense’ (in the narrow sense of repelling attack); see idem, 291–297.

See idem, 168–169, where Regout notes how Vitoria never uses the term ‘punitive war’ ( bellum vindicativum ), preferring instead to speak of war ‘for the sake of vindication’ ( bellum ad vindicandum ), with the understanding that this punishment can rightly be exercised only post bellum (or after capture in the course of a war).

For Regout’s summary of this critique, see idem, 283–290.

See Note 17 .

See Haggenmacher, Grotius et la doctrine de la guerre juste , 595–597.

67. Unlike the authors mentioned earlier (Vanderpol, Regout, and, today, Haggenmacher) who have studied just war from the perspective of legal history, James Turner Johnson has followed the approach opened up by Church historian Roland H. Bainton, whose widely read Christian Attitudes Toward War and Peace (Nashville: Abingdon Press, 1960) viewed just war through the lens of religious (especially Christian) history.

68. James Turner Johnson , ‘The Broken Tradition’, National Interest (Fall 1996), 27–36, at 33 ; ‘Toward Reconstructing the Jus ad Bellum ’, Monist 57 (1973), 461–488.

‘The Broken Tradition’, 33 .

71. To cite the words of Johnson’s doctoral mentor Paul Ramsey ( The Just War [New York: Schribner, 1968], xv).

73. René Coste , Le problème du droit de guerre dans la pensée de Pie XII (Paris: Aubier, 1962).

Idem , 288.

75. See, for instance, Luigi Sturzo , The International Community and the Right of War (London: George Allen & Unwin, 1929) , and Joseph Joblin , L’Église et la guerre (Paris: Desclée de Brouwer, 1988).

See the essays assembled in the special issue (vol. 8.3, 2009) of the Journal of Military Ethics on the conceptualization of just war in the thought of James Turner Johnson.

77. For an overview of this debate, see Christian Barry and Lars Christie , ‘The Moral Equality of Combatants’, this volume .

78. On this terminology, see David Rodin and Henry Shue , ‘Introduction’, in Just and Unjust Warriors: The Moral and Legal Status of Soldiers , edited by David Rodin and Henry Shue (Oxford: Oxford University Press, 2008), 1–18.

79. Michael Walzer , Just and Unjust Wars , 2nd ed. (New York: Basic Books, 1992), 21. Walzer’s view that the ad bellum inequality of belligerents (unilateral application of just cause) is fully compatible with the in bello equality of combatants (bilateral application of the laws of armed conflict) was earlier proposed by the legal scholar Henri Meyrowitz , Le principe de l’égalité des belligérents devant the droit de la guerre (Paris: Pedone, 1970).

‘The Morality of War and the Law of War’, in Just and Unjust Warriors , 19–43, and Killing in War.

See Syse, idem.

82. See Gregory M. Reichberg , ‘The Moral Equality of Combatants’, ch. 10 of Thomas Aquinas on War and Peace (New York: Cambridge University Press, 2017), 223–256.

The expression regular war (‘guerre réglée’) emerged in the eighteenth century from Vattel’s concept of ‘war in due form’ ( la guerre en forme ) in his Droit des Gens (1758), book 3, ch. 12 ( Ethics of War , 514–516); it signified a war that was conducted according to mutually accepted rules; hence, those who fight in such a war are termed ‘regular soldiers’, and, collectively, they constitute a ‘regular army’.

The following two paragraphs draw on material in my paper ‘Just War and Regular War: Competing Paradigms’, in Just and Unjust Warriors , edited by D. Rodin and H. Shue, 193–213.

Bk. III, ch. III–IX ( Ethics of War , 423–429).

Although Grotius does not say so explicitly, this practice was also widely accepted in his own day. To ignore it, in favour of the theological teaching of Aquinas and his successors, would imperil the credibility of his system in the eyes of his contemporaries. Grotius’s account of formally declared public war (and the special bilateral effects that follow from it) represents his attempt to assimilate a viewpoint that, on the whole, cuts against his main line of argumentation in the De jure belli ac pacis. On this, see Haggenmacher, ‘La pratique chez les fondateurs du droit international’ , 49–78, especially 73–74.

Bk. III, ch. IV, section IV, ‘why such effects have been introduced’ ( Ethics of War , 426).

After summarising the wartime liberties that could be allowed from the point of view of ‘external justice’, Grotius details subsequently the moral restrictions (‘moderation’) that should be observed by the just belligerent from the point of view of ‘internal justice’ (bk. III, ch. XI–XII; Ethics of War , 430–434).

For the relevant passages, see the chapters devoted to Wolff and Vattel in the Ethics of War , 469–474, 504–517, respectively.

See the conclusion to Haggenmacher, ‘Just War and Regular War in Sixteenth Century Spanish Doctrine’, International Revue of the Red Cross 290 (1992): 434–445.

91. By comparison with philosophers, lawyers writing on war have generally been more attuned to the historical dimensions of their discipline (see, e.g., Ian Brownlie’s ‘Historical Exposition of the Legal Regulation of the Use of Force by States’, in his International Law and the Use of Force by States [Oxford: Clarendon Press, 1963], 1–18) . In connection with the issue presently under discussion, Yoram Dinstein astutely notes that ‘Historically, the notion of equality between belligerents has formed the underpinning of jus in bello . It was unchallenged as long as States were at liberty to go to war against each other. . . . The principle of equality was not easily reconcilable with the just war doctrine’ ( War, Aggression and Self-Defense , 3rd ed. [Cambridge: Cambridge University Press, 2001 (originally published 1988)], 140.

See McMahan’s acknowledgement of this state of affairs in his Killing in War , 238, note 26 .

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Internet Encyclopedia of Philosophy

Just war theory.

Just war theory deals with the justification of how and why wars are fought. The justification can be either theoretical or historical. The theoretical aspect is concerned with ethically justifying war and the forms that warfare may or may not take. The historical aspect, or the “just war tradition,” deals with the historical body of rules or agreements that have applied in various wars across the ages. For instance, international agreements such as the Geneva and Hague conventions are historical rules aimed at limiting certain kinds of warfare which lawyers may refer to in prosecuting transgressors, but it is the role of ethics to examine these institutional agreements for their philosophical coherence as well as to inquire into whether aspects of the conventions ought to be changed. The just war tradition may also consider the thoughts of various philosophers and lawyers through the ages and examine both their philosophical visions of war’s ethical limits (or absence of) and whether their thoughts have contributed to the body of conventions that have evolved to guide war and warfare.

Table of Contents

• Introduction
• The Jus Ad Bellum Convention
• The Principles Of Jus In Bello
• Jus post bellum
• References and Further Reading

1. 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 agree 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 tacit 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 benefiting—preferable, for instance, to the deployment of any underhand tactics or weapons that may provoke an 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.

Regardless of the conventions that have historically formed, it has been the concern of the majority of just war theorists that the lack of rules to war or any asymmetrical morality between belligerents should be denounced, and that the rules of war should apply to all equally. That is, just war theory should be universal, binding on all and capable in turn 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 considerations 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 considerations of honor: some acts in war have always been deemed dishonorable, whilst others have been deemed honorable. However, what is “honorable” is often highly specific to culture: for instance, a suicidal attack or defense may be deemed the honorable act for one people but ludicrous to another. Robinson (2006) notes that honor conventions are also contextually slippery, giving way to pragmatic or military interest when required. Whereas the specifics of what is honorable differ with time and place, the very fact that one moral virtue is alluded to in the great literature (for example, Homer’s Iliad ) is sufficient for us to note that warfare has been infused with some moral concerns from the beginning rather than war being a mere Macbethian bloodbath.

The just war theory also has a long history. Parts of the Bible hint at ethical behavior in war and concepts of just cause, typically announcing the justice of war by divine intervention; the Greeks may have paid lip service to the gods, but, as with the Romans, practical and political issues tended to overwhelm any fledgling legal conventions: that is, interests of state or Realpolitik (the theory known as political realism would take precedence in declaring and waging war. Nonetheless, this has also been the reading of political realists, who enjoy Thucydides’ History of the Peloponnesian War as an example of why war is necessarily the extension of politics and hence permeated by hard-nosed state interest rather than “lofty” pretensions to moral behavior.

Although St. Augustine provided comments on the morality of war from the Christian perspective (railing against the love of violence that war can engender) as did several Arabic commentators in the intellectual flourishing from the 9th to 12th centuries, but the most systematic exposition in the Western tradition and one that still attracts attention was outlined by Saint Thomas Aquinas in the 13th century. In the Summa Theologicae , Aquinas presents the general outline of what becomes the traditional just war theory as discussed in modern universities. He discusses not only the justification of war but also the kinds of activity that are permissible (for a Christian) in war (see below). Aquinas’s thoughts become the model for later Scholastics and Jurists to expand and to gradually to universalize beyond Christendom – notably, for instance, in relations with the peoples of America following European incursions into the continent. The most important of these writers are: Francisco de Vitoria (1486-1546), Francisco Suarez (1548-1617), Hugo Grotius (1583-1645), Samuel Pufendorf (1632-1704), Christian Wolff (1679-1754), and Emerich de Vattel (1714-1767).

In the twentieth century, just war theory has undergone a revival mainly in response to the invention of nuclear weaponry and American involvement in the Vietnam war. The most important contemporary texts include Michael Walzer’s Just and Unjust Wars (1977), Barrie Paskins and Michael Dockrill The Ethics of War (1979), Richard Norman Ethics, Killing, and War (1995), Brian Orend War and International Justice (2001) and Michael Walzer on War and Justice (2001), as well as seminal articles by Thomas Nagel “War and Massacre”, Elizabeth Anscombe “War and Murder”, and a host of others, commonly found in the journals Ethics or The Journal of Philosophy and Public Affairs .

Since the terrorist attacks on the USA on 9/11 in 2001, academics have turned their attention to just war once again with international, national, academic, and military conferences developing and consolidating the theoretical aspects of the conventions. Just war theory has become a popular topic in International Relations, Political Science, Philosophy, Ethics, and Military History courses. Conference proceedings are regularly published, offering readers a breadth of issues that the topic stirs: for example, Alexander Moseley and Richard Norman, eds. Human Rights and Military Intervention , Paul Robinson, ed., Just War in a Comparative Perspective , Alexsander Jokic, ed., War Crimes and Collective Wrongdoing . What has been of great interest is that in the headline wars of the past decade, the dynamic interplay of the rules and conventions of warfare not only remain intact on the battlefield but their role and hence their explication have been awarded a higher level of scrutiny and debate. In the political circles, justification of war still requires even in the most critical analysis a superficial acknowledgement of justification. On the ground, generals have extolled their troops to adhere to the rules, soldiers are taught the just war conventions in the military academies (for example, explicitly through military ethics courses or implicitly through veterans’ experiences). Yet despite the emphasis on abiding by war’s conventions, war crimes continue – genocidal campaigns have been waged by mutually hating peoples, leaders have waged total war on ethnic groups within or without their borders, and individual soldiers or guerilla bands have committed atrocious, murderous, or humiliating acts on their enemy. But, arguably, such acts do remain atrocities by virtue of the just war conventions that some things in war are deemed to be inexcusable, regardless of the righteousness of the cause or the noise and fog of battle.

Yet increasingly, the rule of law – the need to hold violators and transgressors responsible for their actions in war and therefore after the battle – is making headway onto the battlefield. In chivalrous times, the Christian crusader could seek priestly absolution for atrocities committed in war, a stance supported by Augustine for example; today, the law courts are seemingly less forgiving: a violation of the conventions assumes that the soldier is responsible and accountable and should be charged for a crime. Nonetheless, the idealism of those who seek the imposition of law and responsibility on the battlefield (cf. Geoffrey Robertson’s Crimes Against Humanity ), often runs ahead of the traditions and customs, or plain state interests, that demean or weaken the justum bellum that may exist between warring factions. And in some cases, no just war conventions and hence no potential for legal acknowledgement of malfeasance, exist at all; in such cases, the ethic of war is considered, or is implicitly held to be, beyond the norms of peaceful ethics and therefore deserving a separate moral realm where “fair is foul and foul is fair” (Shakespeare, Macbeth I.i). In such examples (e.g, Rwanda, 1994), a people’s justification of destructiveness and killing to whatever relative degree they hold to be justifiable triumphs over attempts to establish the laws of peaceful interaction into this separate bloody realm; and in some wars, people fighting for their land or nation prefer to pick up the cudgel rather than the rapier, as Leo Tolstoy notes in War and Peace (Book 4.Ch.2), to sidestep the etiquette or war in favor securing their land from occupational or invading forces.

The continued brutality of war in the face of conventions and courts of international law lead some to maintain that the application of morality to war is a nonstarter: state interest or military exigency would always overwhelm moral concerns. But there are those of a more skeptical persuasion who do not believe that morality can or should exist in war: its very nature precludes ethical concerns. But as there are several ethical viewpoints, there are also several common reasons laid against the need or the possibility of morality in war. Generally, consequentialists and act utilitarians may claim that if military victory is sought then all methods should be employed to ensure it is gained at a minimum of expense and time. Arguments from ‘military necessity’ are of this type; for example, to defeat Germany in World War II, it was deemed necessary to bomb civilian centers, or in the US Civil War, for General Sherman to burn Atlanta. However, intrinsicists (who claim that there are certain acts that are good or bad in themselves) may also decree that no morality can exist in the state of war: they may claim that it can only exist in a peaceful situation in which, for instance, recourse exists to conflict resolving institutions. Alternatively, intrinsicists may claim that possessing a just cause (the argument from righteousness) is a sufficient condition for pursuing whatever means are necessary to gain a victory or to punish an enemy. A different skeptical argument, one advanced by Michael Walzer, is that the invention of nuclear weapons alters war so much that our notions of morality—and hence just war theories—become redundant. However, against Walzer, it can be reasonably argued that although such weapons change the nature of warfare (for example, the timing, range, and potential devastation) they do not dissolve the need to consider their use within a moral framework: a nuclear warhead remains a weapon and weapons can be morally or immorally employed.

Whilst skeptical positions may be derived from consequentialist and intrinsicist positions, they need not be. Consequentialists can argue that there are long-term benefits to having a war convention. For example, by fighting cleanly, both sides can be sure that the war does not escalate, thus reducing the probability of creating an incessant war of counter-revenges. Intrinsicists, on the other hand, can argue that certain spheres of life ought never to be targeted in war; for example, hospitals and densely populated suburbs.

The inherent problem with both ethical models is that they become either vague or restrictive when it comes to war. Consequentialism is an open-ended model, highly vulnerable to pressing military or political needs to adhere to any code of conduct in war: if more will be gained from breaking the rules than will be lost, the consequentialist cannot but demur to military “necessity.” On the other hand, intrinsicism can be so restrictive that it permits no flexibility in war: whether it entails a Kantian thesis of dutifully respecting others or a classical rights position, intrinsicism produces an inflexible model that would restrain warriors’ actions to the targeting of permissible targets only. In principle such a prescription is commendable, yet the nature of war is not so clean cut when military targets can be hidden amongst civilian centers.

Against these two ethical positions, just war theory offers a series of principles that aim to retain a plausible moral framework for war. From the just war ( justum bellum ) tradition, theorists distinguish between the rules that govern the justice of war ( jus ad bellum ) from those that govern just and fair conduct in war ( jus In bello ) and the responsibility and accountability of warring parties after the war ( jus post bellum ). The three aspects are by no means mutually exclusive, but they offer a set of moral guidelines for waging war that are neither unrestricted nor too restrictive. The problem for ethics involves expounding the guidelines in particular wars or situations.

2. The Jus Ad Bellum Convention

The principles of the justice of war are commonly held to be: having just cause, being a last resort, being declared by a proper authority, possessing right intention, having a reasonable chance of success, and the end being proportional to the means used. One can immediately detect that the principles are not wholly intrinsicist nor consequentialist—they invoke the concerns of both models. Whilst this provides just war theory with the advantage of flexibility, the lack of a strict ethical framework means that the principles themselves are open to broad interpretations. Examining each in turn draws attention to the relevant problems.

Possessing just cause is the first and arguably the most important condition of jus ad bellum . Most theorists hold that initiating acts of aggression is unjust and gives a group a just cause to defend itself. But unless “aggression” is defined, this proscription is rather open-ended. For example, just cause resulting from an act of aggression can ostensibly be a response to a physical injury (for example, a violation of territory), an insult (an aggression against national honor), a trade embargo (an aggression against economic activity), or even to a neighbor’s prosperity (a violation of social justice). The onus is then on the just war theorist to provide a consistent and sound account of what is meant by just cause. Whilst not going into the reasons why the other explanations do not offer a useful condition of just cause, the consensus is that an initiation of physical force is wrong and may justly be resisted. Self-defense against physical aggression, therefore, is putatively the only sufficient reason for just cause. Nonetheless, the principle of self-defense can be extrapolated to anticipate probable acts of aggression, as well as in assisting others against an oppressive government or from another external threat (interventionism). Therefore, it is commonly held that aggressive war is only permissible if its purpose is to retaliate against a wrong already committed (for example, to pursue and punish an aggressor), or to pre-empt an anticipated attack. In recent years, the argument for preemption has gained supporters in the West: surely, the argument goes, it is right on consequentialist grounds to strike the first blow if a future war is to be avoided? By acting decisively against a probable aggressor, a powerful message is sent that a nation will defend itself with armed force; thus preemption may provide a deterrent and a more peaceful world. However, critics complain that preemptive strikes are based on conjectured rather than impending aggression and in effect denounce the moral principle that an agent is presumed innocent – posturing and the building up of armaments do not in themselves constitute aggression, just a man carrying a weapon is not a man using a weapon, Consequentialist critics may also reject preemption on the grounds that it is more likely to destabilize peace, while other realists may complain that a preemptive strike policy is the ploy of a tyrannical or bullying power that justifies other nations to act in their self-interest to neutralize either through alliances or military action – such is the principle behind the “balance of power” politics in which nations constantly renew their alliances and treatises to ensure that not one of them becomes a hegemonic power. It is also feared that the policy of preemption slips easily into the machinations of “false flag operations” in which a pretext for war is created by a contrived theatrical or actual stunt – of dressing one’s own soldiers up in the enemy’s uniforms, for instance, and having them attack a military or even civilian target so as to gain political backing for a war. Unfortunately, false flag operations tend to be quite common. Just war theory would reject them as it would reject waging war to defend a leader’s “honor” following an insult. Realists may defend them on grounds of a higher necessity but such moves are likely to fail as being smoke screens for political rather than moral interests.

War should always be a last resort. This connects intimately with presenting a just cause – all other forms of solution must have been attempted prior to the declaration of war. It has often been recognized that war unleashes forces and powers that soon get beyond the grips of the leaders and generals to control – there is too much “fog” in war, as Clausewitz noted, but that fog is also a moral haze in which truth and trust are early casualties. The resulting damage that war wrecks tends to be very high for most economies and so theorists have advised that war should not be lightly accepted: once unleashed, war is not like a sport that can be quickly stopped at the blow of a whistle (although the Celtic druids supposedly had the power to stop a battle by virtue of their moral standing) and its repercussions last for generations. Holding “hawks” at bay though is a complicated task – the apparent ease by which war may resolve disputes, especially in the eyes of those whose military might is apparently great and victory a certainty, does present war as a low cost option relative to continuing political problems and economic or moral hardship. Yet the just war theorist wishes to underline the need to attempt all other solutions but also to tie the justice of the war to the other principles of jus ad bellum too.

The notion of proper authority seems to be resolved for most of the theorists, who claim it obviously resides in the sovereign power of the state. But the concept of sovereignty raises a plethora of issues to consider here. If a government is just, i.e., most theorists would accept that the government is accountable and does not rule arbitrarily, then giving the officers of the state the right to declare war is reasonable, so the more removed from a proper and just form a government is, the more reasonable it is that its claim to justifiable political sovereignty disintegrates. A historical example can elucidate the problem: when Nazi Germany invaded France in 1940 it set up the Vichy puppet regime. What allegiance did the people of France under its rule owe to its precepts and rules? A Hobbesian rendition of almost absolute allegiance to the state entails that resistance is wrong (so long as the state is not tyrannical and imposes war when it should be the guardian of peace); whereas a Lockean or instrumentalist conception of the state entails that a poorly accountable, inept, or corrupt regime possesses no sovereignty, and the right of declaring war (to defend themselves against the government or from a foreign power) is wholly justifiable. The notion of proper authority therefore requires thinking about what is meant by sovereignty, what is meant by the state, and what is the proper relationship between a people and its government.

The possession of right intention is ostensibly less problematic. The general thrust of the concept being that a nation waging a just war should be doing so for the cause of justice and not for reasons of self-interest or aggrandizement. Putatively, a just war cannot be considered to be just if reasons of national interest are paramount or overwhelm the pretext of fighting aggression. However, “right intention” masks many philosophical problems. According to Kant, possessing good intent constitutes the only condition of moral activity, regardless of the consequences envisioned or caused, and regardless, or even in spite, of any self interest in the action the agent may have. The extreme intrinsicism of Kant can be criticized on various grounds, the most pertinent here being the value of self-interest itself. At what point does right intention separate itself from self-interest – is the moral worthiness of intent only gained by acting in favor of one’s neighbor, and if so, what does that imply for moral action – that one should woo one’s neighbor’s spouse to make him/her feel good? Acting with proper intent requires us to think about what is proper and it is not certain that not acting in self interest is necessarily the proper thing to do. On the one hand, if the only method to secure a general peace (some thing usually held to be good in itself) is to annex a belligerent neighbor’s territory, political aggrandizement becomes intimately connected with the proper intention of maintaining the peace for all or the majority. On the other hand, a nation may possess just cause to defend an oppressed group, and may rightly argue that the proper intention is to secure their freedom, yet such a war may justly be deemed too expensive or too difficult to wage; i.e., it is not ultimately in their self-interest to fight the just war. On that account, the realist may counter that national interest is paramount: only if waging war on behalf of freedom is also complemented by the securing of economic or other military interests should a nation commit its troops. The issue of intention raises the concern of practicalities as well as consequences, both of which should be considered before declaring war.

The next principle is that of reasonable success. This is another necessary condition for waging just war, but again is insufficient by itself. Given just cause and right intention, the just war theory asserts that there must be a reasonable probability of success. The principle of reasonable success is consequentialist in that the costs and benefits of a campaign must be calculated. However, the concept of weighing benefits poses moral as well as practical problems as evinced in the following questions. Should one not go to the aid of a people or declare war if there is no conceivable chance of success? Is it right to comply with aggression because the costs of not complying are too prohibitive? Would it be right to crush a weak enemy because it would be marginally costless? Is it not sometimes morally necessary to stand up to a bullying larger force, as the Finns did when Russia invaded in 1940, for the sake of national self-esteem or simple interests of defending land? Historically, many nations have overcome the probability of defeat: the fight may seem hopeless, but a charismatic leader or rousing speech can sometimes be enough to stir a people into fighting with all their will. Winston Churchill offered the British nation some of the finest of war’s rhetoric when it was threatened with defeat and invasion by Nazi Germany in 1940. For example: “Let us therefore brace ourselves to do our duty, and so bear ourselves that, if the British Commonwealth and its Empire lasts for a thousand years, men will still say, ‘This was their finest hour.’“ ….And “What is our aim?….Victory, victory at all costs, victory in spite of all terror; victory, however long and hard the road may be; for without victory, there is no survival.” (Speeches to Parliament, 1940). However, the thrust of the reasonable success principle emphasizes that human life and economic resources should not be wasted in what would obviously be an uneven match. For a nation threatened by invasion, other forms of retaliation or defense may be available, such as civil disobedience, or even forming alliances with other small nations to equalize the odds.

The final guide of jus ad bellum is that the desired end should be proportional to the means used. This principle overlaps into the moral guidelines of how a war should be fought, namely the principles of jus In bello . With regards to just cause, a policy of war requires a goal, and that goal must be proportional to the other principles of just cause. Whilst this commonly entails the minimizing of war’s destruction, it can also invoke general balance of power considerations. For example, if nation A invades a land belonging to the people of nation B, then B has just cause to take the land back. According to the principle of proportionality, B’s counter-attack must not invoke a disproportionate response: it should aim to retrieve its land and not exact further retribution or invade the aggressor’s lands, or in graphic terms it should not retaliate with overwhelming force or nuclear weaponry to resolve a small border dispute. That goal may be tempered with attaining assurances that no further invasion will take place, but for B to invade and annex regions of A is nominally a disproportionate response, unless (controversially) that is the only method for securing guarantees of no future reprisals. For B to invade and annex A and then to continue to invade neutral neighboring nations on the grounds that their territory would provide a useful defense against other threats and a putative imbalance of power is even more unsustainable.

On the whole the principles offered by jus ad bellum are useful guidelines for reviewing the morality of going to war that are not tied to the intrinsicist’s absolutism or consequentialist’s open-endedness. Philosophically however they invoke a plethora of problems by either their independent vagueness or by mutually inconsistent results – a properly declared war may involve improper intention or disproportionate ambitions. But war is a complicated issue and the principles are nonetheless a useful starting point for ethical examination and they remain a guide for both statesmen and women and for those who judge political proceedings.

3. The Principles Of Jus In Bello

The rules of just conduct within war fall under the two broad principles of discrimination and proportionality. The principle of discrimination concerns who are legitimate targets in war, whilst the principle of proportionality concerns how much force is morally appropriate. A third principle can be added to the traditional two, namely the principle of responsibility, which demands an examination of where responsibility lies in war.

One strong implication of the justice of warfare being a separate topic of analysis to the justice of war is that the theory thus permits the judging of acts within war to be dissociated from it cause. This allows the theorist to claim that a nation fighting an unjust cause may still fight justly, or a nation fighting a just cause may be said to fight unjustly. It is a useful division but one that does not necessarily sever all ties between the two great principles of warfare: the justice of a cause remains a powerful moral guide by which warfare is to be judged, for what does it matter, it can be asked, if a nation wages a war of aggression but does so cleanly?

In waging war it is considered unfair and unjust to attack indiscriminately since non-combatants or innocents are deemed to stand outside the field of war proper. Immunity from war can be reasoned from the fact that their existence and activity is not part of the essence of war, which is the killing of combatants. Since killing itself is highly problematic, the just war theorist has to proffer a reason why combatants become legitimate targets in the first place, and whether their status alters if they are fighting a just or unjust war. Firstly, a theorist may hold that being trained and/or armed constitutes a sufficient threat to combatants on the other side and thereby the donning of uniform alters the person’s moral status to legitimate target; whether this extends to peaceful as well as war duties is not certain though. Voluntarists may invoke the boxing ring analogy: punching another individual is not morally supportable in a civilized community, but those who voluntarily enter the boxing ring renounce their right not to be hit. Normally, a boxer does not retain the right to hit another boxer outside of the ring, yet perhaps a soldier’s training creates a wholly different expectation governing his or her status and that wearing the uniform or merely possessing the training secures their legitimacy as a target both on and off the battlefield. Such an argument would imply that it is right to attack unarmed soldiers or soldiers who have surrendered or who are enjoying the normality of civilian life, which just war theorists and historical conventions have traditionally rejected on the claim that when a soldier lays down his weapons or removes his uniform, he or she returns to civilian life and hence the status of the non-combatant even if that return is temporary. Conversely, in joining an army the individual is said to renounce his or her rights not to be targeted in war – the bearing of arms takes a person into an alternative moral realm in which killing is the expectation and possible norm: it is world removed from civilian structures and historically has evolved rites of passage and exit that underline the alteration in status for cadets and veterans; all analogies to the fair play of sports fail at this juncture, for war involves killing and what the British Army call “unlimited liability.” On entering the army, the civilian loses the right not to be targeted, yet does it follow that all who bear uniform are legitimate targets, or are some more so than others – those who are presently fighting compared to those bearing arms but who are involved in supplies or administration, for instance?

Others, avoiding a rights analysis for it produces many problems on delineating the boundaries of rights and the bearers, may argue that those who join the army (or who have even been pressed into conscription) come to terms with being a target, and hence their own deaths. This is argued for example by Barrie Paskins and Michael Dockrill in The Ethics of War (1979). However, since civilians can just as readily come to terms with their own deaths and it is not necessarily the case that a soldier has, their argument, although interesting, is not sufficient to defend the principle of discrimination and why soldiers alone should be targeted legitimately in war. In turn, rights-based analyses may be more philosophically productive in giving soldiers and critics crucial guidelines, especially those analyses that focus on the renouncing of rights by combatants by virtue of their war status, which would leave nominally intact a sphere of immunity for civilians. Yet what is the status of guerrilla fighters who use civilian camouflage in order to press their attacks or to hide? Similarly, soldiers on covert operations present intricate problems of identification and legitimization: is there a difference between the two? Referring back to the fighters’ cause (for example, the guerrilla is a “freedom fighter” and thus carries a moral trump card) creates its own problems, which the just war theory in dividing the justice of the cause from the justice of the manner in which war is fought attempts to avoid: the guerrilla fighter may breach codes of conduct just as the soldier on a politically sensitive covert operations may avoid targeting the wrong people.

Walzer, in his Just and Unjust Wars (1977) claims that the lack of identification does not give a government the right to kill indiscriminately—the onus is on the government to identify the combatants, and so, the implication goes, if there is any uncertainty involved then an attack must not be made. Others have argued that the nature of modern warfare dissolves the possibility of discrimination: civilians are just as necessary causal conditions for the war machine as are combatants, therefore, they claim, there is no moral distinction in targeting an armed combatant and a civilian involved in arming or feeding the combatant. The distinction is, however, not closed by the nature of modern economies, since a combatant still remains a very different entity from a non-combatant, if not for the simple reason that the former is presently armed (and hence has renounced rights or is prepared to die, or is a threat), whilst the civilian is not. On the other hand, it can be argued that being a civilian does not necessarily mean that one is not a threat and hence not a legitimate target. If Mr Smith is the only individual in the nation to possess the correct combination that will detonate a device that could kill thousands, then he becomes not only causally efficacious in the firing of a weapon of war, but also morally responsible; reasonably he also becomes a legitimate military target. His job effectively militarizes his status even though he does not bear arms.

The underlying issues that ethical analysis must deal with involve the logical nature of an individual’s complicity and the aiding and abetting the war machine, with greater weight being imposed on those logically closer than those logically further from the war machine in their work. At a deeper level, one can consider the role that civilians play in supporting an unjust war: to what extent are they morally culpable, and if they are culpable in giving moral, financial, or economic support to some extent, does that mean they may become legitimate targets? This invokes the issue of collective versus individual responsibility that is in itself a complex topic but one that the principle of discrimination tries to circumvent by presenting guidelines for soldiers that keep their activity within the realms of war and its effects rather than murder. It would be wrong, on the principle of discrimination, to group the enemy into one targetable mass of people – some can not be responsible for a war or its procedures, notably children. Yet, on the other hand, if a civilian bankrolls a war or initiates aggression as a politician, surely he or she bears some moral responsibility for the ensuing deaths: some may argue that the war’s justification rests upon such shoulders but not the manner in which it is fought, while others may prefer to saddle the leader or initiator with the entire responsibility for how a war is fought on the argument that each combatant is responsible for those below him or her in rank – so the political or civilian leaders are analogously responsible for all operating in the military field.

The second principle of just conduct is that any offensive action should remain strictly proportional to the objective desired. This principle overlaps with the proportionality principle of just cause, but it is distinct enough to consider it in its own light. Proportionality for jus In bello requires tempering the extent and violence of warfare to minimize destruction and casualties. It is broadly utilitarian in that it seeks to minimize overall suffering, but it can also be understood from other moral perspectives, for instance, from harboring good will to all (Kantian ethics), or acting virtuously (Aristotelian ethics). Whilst the consideration of discrimination focuses on who is a legitimate target of war, the principle of proportionality deals with what kind of force is morally permissible. In fighting a just war in which only military targets are attacked, it is still possible to breach morality by employing disproportionate force against an enemy. Whilst the earlier theoreticians, such as Thomas Aquinas, invoked the Christian concepts of charity and mercy, modern theorists may invoke either consequentialist or intrinsicist prescriptions, both of which remain problematic as the foregoing discussions have noted. However, it does not seem morally reasonable to completely gun down a barely armed albeit belligerent tribe. At the battle of Omdurman in 1898 in the Sudan, six machine gunners killed thousands of dervishes—the gunners may have been in the right to defend themselves, but the principle of proportionality implies that a battle end before it becomes a massacre. Similarly, following the battle of Culloden in 1746 in Scotland, Cumberland ordered “No Quarter”, which was not only a breach of the principle of discrimination, for his troops were permitted to kill the wounded as well as supporting civilians, but also a breach of the principle of proportionality, since the battle had been won, and the Jacobite cause effectively defeated on the battle field.

What if a war and all of its suffering could be avoided by highly selective killing? Could just war theory endorse assassination for instance? Assassination programs have often been secretly accepted and employed by states throughout the centuries and appeal, if challenged, is often to a “higher” value such as self-defense, killing a target guilty of war crimes and atrocities, or removing a threat to peace and stability. The CIA manual on assassination (1954, cf. Belfield), sought to distinguish between murder and assassination, the latter being justifiable according to the higher purposes sought. This is analogous to just war theorists seeking to put mass killing on a higher moral ground than pure massacre and slaughter and is fraught with the same problems raised in this article and in the just war literature. On grounds of discrimination, assassination would be justifiable if the target were legitimate and not, say, the wife or children of a legitimate target. On grounds of proportionality, the policy would also be acceptable, for if one man or woman (a legitimate target by virtue of his or her aggression) should die to avoid further bloodshed or to secure a quicker victory, then surely assassination is covered by the just war theory? The founder of the Hashshashin society (c.11-13thC), Hasan ibn el Sabah preferred to target or threaten warmongers rather than drag innocents and noncombatants into bloody and protracted warfare: his threats were often successful for he brought the reality of death home to the leaders who otherwise would enjoy what lyricist Roger Waters calls “the bravery of being out of range.” In recent years, the US and UK proclaimed that the war in the Gulf was not with the Iraqi people but with its leader and his regime; the US government even issued a bounty on the heads of key agents in the Ba’ath party; indeed, Saddam Hussein’s sons, Uday and Qusay with a bounty of £15m, were killed in a selective hunt and destroy mission rather than being captured and brought to trial for the crimes asserted of them. Assassination would apparently clear the two hurdles of discrimination and proportionality, yet the intrinsicist wing of just war theorists would reasonably claim that underhand and covert operations, including assassination, should not form a part of war on grounds that they act to undermine the respect due one’s enemy (not matter how cruel he or she is) as well as the moral integrity of the assassin; the consequentialists would also counter that such policies also encourage the enemy to retaliate in similar manner, and one of the sustaining conclusions of just war theory is that escalation or retaliatory measures (tit for tat policies) should be avoided for their destabilizing nature. Once initiated, assassination tends to become the norm of political affairs – indeed, civil politics would thus crumble into fearful and barbaric plots and conspiracies (as did Rome in its last centuries) in a race to gain power and mastery over others rather than to forge justifiable sovereignty.

The principles of proportionality and discrimination aim to temper war’s violence and range; while they may ostensibly imply the acceptance of some forms of warfare, their malleability also implies that we continuously look afresh upon seemingly acceptable acts. Accordingly, they are complemented by other considerations that are not always explicitly taken up in the traditional exposition of jus In bello , this is especially true in the case of the issue of responsibility.

Jus in bello requires that the agents of war be held responsible for their actions. This ties in their actions to morality generally. Some, such as Saint Augustine argues against this assertion: “who is but the sword in the hand of him who uses it, is not himself responsible for the death he deals.” Those who act according to a divine command, or even God’s laws as enacted by the state and who put wicked men to death “have by no means violated the commandment, ‘Thou shalt not kill.’” Whilst this issue is connected to the concepts of just cause, it does not follow that individuals waging a just, or unjust war, should be absolved of breaching the principles of just conduct. Readily it can be accepted that soldiers killing other soldiers is part of the nature of warfare for which soldiers ought to be prepared and trained, but when soldiers turn their weapons against non-combatants, or pursue their enemy beyond what is reasonable, then they are no longer committing legitimate acts of war but acts of murder. The principle of responsibility re-asserts the burden of abiding by rules in times of peace on those acting in war to remind them that one day they will once more take up civilian status and should be prepared to do so conscientiously, free of any guilt from war crimes. The issues that arise from this principle include the morality of obeying orders (for example, when one knows those orders to be immoral), as well as the moral status of ignorance (not knowing of the effects of one’s actions either reasonably or literally).

Responsibility for acts of war relate back to the tenets of jus ad bellum as well as jus in bello , for the justification of going to war involves responsibility as well as the acts ordered and committed in war. In reviewing the stories from military ethics readers, the acts of bravery that attract our attention involve soldiers standing up to do the “right thing” against either the prevailing momentum of the platoon or the orders from higher up; the realist rejects such acts as infrequent or unnecessary performances that do not alter the main characteristic of war and its innate brutality, yet such acts also remind the critic as well as the soldier of the importance of returning to the civilian mode with good conscience.

The aftermath of war involves the relinquishing of armed conflict as a means of resolving disputes and the donning of more civil modes of conduct but it also raises questions concerning the nature of the post bellum justice.

4. Jus post bellum

Following the cessation of a war, three possibilities emerge: either the army has been defeated, has been victorious, or it has agreed to a ceasefire. Principles of justice may then be applied to each situation. Orend presents a useful summary of the principles of jus post bellum : the principle of discrimination should be employed to avoid imposing punishment on innocents or non-combatants; the rights or traditions of the defeated deserve respect; the claims of victory should be proportional to the war’s character; compensatory claims should be tempered by the principles of discrimination and proportionality; and, controversially, the need to rehabilitate or re-educate an aggressor should also be considered.

It has often been remarked that justice, like history, is written by the victors. A defeated army and indeed the civilian body from which the army stems should thus be prepared to subject itself to the imposition of rules and forms of punishments, humiliation, and even retributions that it would not otherwise agree to. The lives, values, and resources that have been fought for must now be handed over to the conquerors. When put this way, when one readily imagines one’s own country’s army falling to an aggressive enemy, the terms immediately appear fearful and unjust and may stir a greater endeavor to make the victory hollow by the raising of guerrilla or even terrorist organizations to thwart the conquerors’ designs.

Yet when one’s own army is victorious, the partiality of victory can be so easily dismissed on the enthusiastic wave that accompanies triumph: victory is so often associated with the greater right when one’s own country vanquishes its enemy, and assumedly with that right comes the justification to impose conditions upon the vanquished. In so many wars in history, both ancient and modern, victory has provided the winners with the means of exploiting the defeated nation and for claiming rights over its lands and people whether in the form of enslavement or in monopolistic mercantile contracts; sometimes an appeal to divine justice is made; at other times the supremacy of one’s nation, race, creed, or political order is lauded over the defeated. Economic exploitation is not the only means of subjugating the defeated: new political or religious frameworks can also be imposed sometimes as a means of “rehabilitating the defeated” or as a means to avoid the circumstances (political or economic) that may bring about further warfare; the philosopher must naturally inquire as to the justice of such measures.

The just war theorist is keen to remind warriors and politicians alike that the principles of justice following war should be universalizable and morally ordered and that victory should not provide a license for imposing unduly harsh or punitive measures or that state or commercial interests should not dictate the form of the new peace. Similarly, imposing an alternative political or religious is not likely to be conducive to peace, as Edmund Burke prophetically warned about decreeing for the “rights of man” in an unprepared culture; re-educating a defeated military or bureaucracy may seem reasonable and arguably was successful in post-war Germany (1945), yet such a program may also be so superficial or condescending as to have only short term and illusory benefits or act to further humiliate the defeated into seething desire for revenge. In post-war Iraq (2003-date), the rehabilitation programs have met with mixed success and have often been criticized for favoring some ethnic groups over others, i.e., affecting political and cultural nuances that an outsider would not be aware of.

Criticism may stem from either intrinsicist reasons (that the defeated should still be viewed as a people deserving moral respect and their traditions held as sacrosanct) or consequentialist reasons (that punitive impositions are likely to produce a backlash); but again it is worth reminding that just war theory tends to merge the two to avoid awkward implications derived from either position singly.

At this point, the attraction for jus post bellum thinkers is to return to the initial justice of the war. Consider a war of self-defense: this is considered by most, except absolute pacifists, to be the most justifiable of all wars. If the people are defeated but their cause remains just, should they then continue the fight to rid their country of all the vestiges of occupation? What if fighting is impossible? Should they bow their heads in honorable defeat and accept the victor’s terms graciously? Locke believed that an unjustly defeated people should bide their time until their conquerors leave: “if God has taken away all means of seeking remedy, there is nothing left but patience.” ( Second Treatises , §177); however, the right always remains with those who fought against an unjust war but they do not gain any moral right to attack indiscriminately or disproportionately (such as terrorizing the invader’s own civilians or soldiers at rest), although they may carry on their claim for freedom over the generations. A realist, however, may ask how a people are to regain their freedom if they do not raise arms against their sea of troubles? Nonetheless, if the “good fight” is to continue, most theorists follow Locke and prohibit breaches of the jus in bello principles: while it would be wrong to bow to a tyrant or conquering army, it would be immoral to target their families in order to encourage the occupying army to leave. Others may counsel civil disobedience and other forms of intransigence to signal displeasure.

If, on the other hand, the victors have won a just war against an aggressor, Locke argues that the victor’s right does not extend to the aggressive nation’s civilian population, but that it does extend to all those engaged in the aggression and that it extends absolutely: that is, the just conqueror has absolute rights of life and death over the defeated aggressors. The aggressor, one who initiates war, puts the individual or the community into a state of war, he argues, and so the defender has an absolute prerogative to use whatever force necessary to secure freedom and peace: accordingly, in victory, the victors may enslave or kill the aggressors. Locke’s is an extreme although not logically incoherent position and his exhortations may be compared to other moral positions (often emerging from religious thinking) to temper the justice in favor of other virtues such as charity, liberality, and justice. Indeed, King Alfred the Great of Wessex (c.878AD) defeated the Viking invader Guthrum in battle and rather than executing him as the Vikings would have done Alfred, he ordered them to join the Christian religion and then, and probably more importantly, offered them a stake in the land: toleration merged with prudence and self-interest ensured Guthrum was no longer a threat. Indeed, Machiavelli warned that killing an opponent’s family is likely to raise their ire but taking away their land is guaranteed to continue the fight over generations. It may be reasonably held that the aggressors deserve punishment of some sort, although Alfred’s example highlights an alternative view of dealing with an enemy, one that reminds the theorist that peace not further war remains the goal. But what if the defeated aggressors are guilty of atrocities, surely they should be made to stand trial to send a signal to other “war criminals” as well as to punish them for their own misdeeds? Here we enter the debates regarding punishment: does punishing a violator make any sense except to exact either retribution, revenge, or to promote a deterrence? Can the victors be sure of their claim to punish the aggressors and what good could possibly flow from bringing more violence or enslavement to the world? In asserting the need to find universalisable principles, the just war theorist is usually keen to insist that any war crimes trials are held in neutral states and presided over by neutral parties, rather than the victors whose partiality in proceedings must be presumed: after all, in the Nuremberg and Tokyo trials, no allied generals or politicians were held accountable for the atrocities created by bombing civilian centers in Germany and Japan and the dropping of nuclear bombs on Hiroshima and Nagasaki.

The end game and hence the jus post bellum certainly merit attention before the battles are lost or won: what should be the ruling affairs once the peace is proclaimed? Should the terms of war’s end be elaborated and publicly pronounced as to ensure all parties are aware of the costs of defeat? Is it right that an army should demand unconditional surrender, for instance, when such a policy may entail a protracted war for no incentive is given to the other side to surrender; on the other hand, unconditional surrender implies a derogatory view of the enemy as one not to be respected either in or after war. Yet if an unconditional surrender policy does suitably raise the stakes of fighting war it may act as a sufficient deterrent against possible aggressors or act as a useful diplomatic tool to bring a worried enemy back to peaceful overtures. Similarly, is it right that an army should demand reparations in advance rather than leave them undisclosed and thereby risk the uncertainty of punishment creating a backlash from the defeated, who may not wish to be so subjected? To keep the expected conditions of war’s end secretive does not seem a wise move in that uncertainty generates fear, and fear can generate a harder campaign than otherwise would be necessary; but if the publicized conditions appear onerous to the enemy, then they have good reasons to prolong and/or intensify their own fight. Of course, if promises of an amnesty or fair treatment of prisoners is reneged on by the victor, then all trust for future arrangements is lost and the consequences imply embedding hatreds and mistrust for generations.

Assume that victory is given, that the army has defeated its enemy on the battlefield so attention turns to the nature of the post bellum justice of dealing with the defeated regardless of its intentions beforehand. Arguably, the very nature of the warring participants’ vision of each other and of themselves will color the proceedings both politically and morally. A victorious side, for instance, that sees itself as rightfully triumphant is more likely to impose its will and exactions upon the defeated in a more stringent manner in which a victorious side that sees itself as its enemy’s equal; but universality demands seeing one’s enemy as oneself and understanding not just the Realpolitik of state interests and state gains in victory but also the conventions of magnanimity and honor in victory (or defeat).

Consider the demands for reparations. A defeated aggressor may just be asked to pay for the damage incurred by the war (as justice demands of criminals that they pay for their crimes). But to what extent should the reparations extend? Should there be demands for retribution and deterrence added in, so that those deemed responsible for their aggression should be put on trial and suitably punished (and what would “suitable” mean in this instance – that Saddam Hussein stand trial for his invasion of Kuwait implies that George W Bush similarly stand trial for his invasions of Afghanistan and Iraq?). In forming the conditions of defeat, should neutral third parties be turned to so as to avoid later accusations of “victor’s justice” and the partiality that such justice can invoke or imply, or does victory present the victor with the ultimate moral wreath to justify whatever demands seen appropriate or fitting?

Should a war be indecisive though, the character of the peace would presumably be formed by the character of the ceasefire – namely, the cessation of fighting would imply a mere hiatus in which the belligerents regain the time and resources to stock their defenses and prepare for further fighting. As such, a ceasefire would be merely a respite for the military to regain its strengths. However, just war theory also acts to remind contenders that war is a last resort and that its essential aim is always peace, so if peace is forthcoming in any guise, it is morally critical for all parties to seek a return to a permanent peace rather than a momentary lapse of war.

5. Conclusion

This article has described the main tenets of the just war theory, as well as some of the problems that it entails. The theory bridges theoretical and applied ethics, since it demands an adherence, or at least a consideration of meta-ethical conditions and models, as well as prompting concern for the practicalities of war. A few of those practicalities have been mentioned here. Other areas of interest are: hostages, innocent threats, international blockades, sieges, the use of weapons of mass destruction or of anti-personnel weapons (for example, land mines), and the morality and practicalities of interventionism.

6. References and Further Reading

• Anscombe, Elizabeth. (1981) “War and Murder”. In Ethics, Religion, and Politics . University of Minnesota Press. pp. 51-71.
• Aquinas, St Thomas. (1988). Politics and Ethics . Norton.
• Augustine, St. (1984). City of God . Penguin.
• Belfield, Richard (2005). Assassination: The Killers and their Paymasters Revealed . Magpie Books.
• Burke, Edmund (1986). Reflections on the Revolution in France . Penguin.
• Dockrill, Michael and Barrie Paskins (1979). The Ethics of War .
• Hobbes, Thomas (1988). Leviathan . Penguin.
• Jokic Alexsander, and Anthony Ellis eds. (2001), War Crimes and Collective Wrongdoing . WileyBlackwell.
• Locke, John (1963). Two Treatises of Government . Cambridge University Press.
• Machiavelli, Nicolo (1988). The Prince . Cambridge University Press.
• Minear, Richard (1971). Victor’s Justice: The Tokyo War Crimes Trial . Princeton.
• Moseley, Alexander and Richard Norman, eds. (2001) Human Rights and Military Intervention . Ashgate.
• Moseley, Alexander (2006). An Introduction to Political Philosophy . Continuum.
• Nagel, Thomas (1972). “War and Massacre.” Philosophy and Public Affairs . Vol. 1, pp. 123-44.
• Norman, Richard (1995). Ethics, Killing, and War .
• Orend, Brian (2001). War and International Justice . Wilfrid Laurier Press.
• Orend, Brian (2006). The Morality of War . Broadview.
• Robertson, Geoffrey (1999). Crimes Against Humanity .
• Robinson, Paul ed., (2003) Just War in a Comparative Perspective . Ashgate.
• Robinson, Paul. (2006). Military Honour and the Conduct of War . Routledge.
• Thucydides (1974). History of the Peloponnesian War . Penguin.
• Tolstoy, Leo (1992). War and Peace . Everyman.
• Walzer, Michael (1978). Just and Unjust Wars . Basic Books.

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The Just War Theory and the Ethical Governance of Research

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• Published: 28 February 2012
• Volume 19 , pages 461–486, ( 2013 )

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This article analyses current trends in and future expectations of nanotechnology and other key enabling technologies for security as well as dual use nanotechnology from the perspective of the ethical Just War Theory (JWT), interpreted as an instrument to increase the threshold for using armed force for solving conflicts. The aim is to investigate the relevance of the JWT to the ethical governance of research. The analysis gives rise to the following results. From the perspective of the JWT, military research should be evaluated with different criteria than research for civil or civil security applications. From a technological perspective, the boundaries between technologies for civil and military applications are fuzzy. Therefore the JWT offers theoretical grounds for making clear distinctions between research for military, civil security and other applications that are not obvious from a purely technological perspective. Different actors bear responsibility for development of the technology than for resorting to armed force for solving conflicts or for use of weapons and military technologies in combat. Different criteria should be used for moral judgment of decisions made by each type of actor in each context. In addition to evaluation of potential consequences of future use of the weapons or military technologies under development, the JWT also prescribes ethical evaluation of the inherent intent and other foreseeable consequences of the development itself of new military technologies.

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Arms around the Problem: Suggestions for Future Governance

Conclusion: Challenges of New Technologies for the Law of Armed Conflict

Introduction: conundrum of new technologies in the law of armed conflict.

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This view is contested. To many international lawyers, legitimate preventive self-defence is a contradictio in terminis, even those that like Grotius accept humanitarian intervention.

See also http://www.homelandsecurity.org/hsireports/DHS_ST_RL_Calculator_report20091020.pdf .

In current international law, apart from self-defence, a mandate from the Security Council is required for military action to be legitimate. In the future, European integration could lead to the transfer of authority the national to the EU level. A more thorough discussion on an adequate interpretation of the ethical concept of “legitimate authority” goes beyond the scope of this article.

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This criterion Just Intent should not be interpreted in a psychological way, but as the explicit or implicit purpose of the military technology in question (e.g. the apparent intent of a precision weapon is to limit collateral damage as much as possible, whereas the apparent intent of WMD is to indiscriminately create as many victims as possible).

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This presumed aversion of defence contracts in universities is contested by others.

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Acknowledgments

The collection of empirical data on technological trends, foresight, policymakers and stakeholder discussions and ethical and social science literature was supported by the EU in the ObservatoryNano project no. 218528. Comments and suggestions on an earlier version of this article by Marcel Becker and Wim Pelt and an anonymous reviewer are gratefully acknowledged.

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Malsch, I. The Just War Theory and the Ethical Governance of Research. Sci Eng Ethics 19 , 461–486 (2013). https://doi.org/10.1007/s11948-012-9357-8

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