The Legitimate Use of Military Force

The Just War Tradition and the Customary Law of Armed Conflict

Howard M. Hensel

• Publisher: Routledge
• Year: 2016
• eBook ISBN:
  9781317025863
• Topic: Jura
• Subtopic: Internationale Beziehungen

Throughout human history, scholars, statesmen and military leaders have attempted to define what constitutes the legitimate use of armed force by one community against another. Moreover, if force is to be used, what normative guidelines should govern the conduct of warfare? Based upon the assumption that armed conflict is a human enterprise and therefore subject to human limitations, the Western 'just war tradition' represents an attempt to provide these guidelines. Following on from the success of Hensel's earlier publication, The Law of Armed Conflict, this volume brings together an internationally recognized team of scholars to explore the philosophical and societal foundations of just war tradition. It relates the principles of jus ad bellum to contemporary issues confronting the global community and explores the relationship between the principles of jus in bello and the various principles embodied in the customary law of armed conflict. Applying an interdisciplinary approach to analyzing and assessing the links between just war and the norms of behaviour, the book provides a valuable contribution to international law, international relations and national security studies.

PART I
Perspectives on Just War Doctrine, International Relations, and Armed Conflict

Chapter 1

Theocentric Natural Law and Just War Doctrine

Howard M. Hensel1

Introduction

Throughout human history, there have been persistent efforts by philosophers, statesmen, and soldiers to place recognized and observable limits on the use of armed force as an instrument of policy. This effort is reflected in Western thought in the development of just war doctrine.2 Traditionally, mainstream Western thought has analytically divided the concept of just war into two parts. The first component concerns the conditions under which belligerents might justly resort to the use of armed force as a means of conflict resolution, jus ad bellum. The second component focuses on the conditions for the just employment of armed force at the strategic, operational, and tactical levels during periods of armed hostilities, jus in bello.3 In an attempt to address these topics, proponents of just war doctrine gradually developed a framework of analysis for each of the component parts of just war doctrine.

There are eight categories within the analytical framework to be applied in determining whether armed force should be used as an instrument in the resolution of a particular conflict. The first analytical category focuses attention on the ultimate goal underpinning any decision to resort to the use of armed force and suggests that the only legitimate purpose of war is the attainment, restoration, preservation, and/or enhancement of true peace. Second, only legitimate authorities can justly authorize the use of armed force as an instrument to resolve conflicts between and within political entities. Third, those authorities that opt for the use of armed force must be motivated by right intentions, taken in the right spirit or disposition. Fourth, there must be a just cause underpinning the decision to resort to armed hostilities. Fifth, this action must be taken as a last resort and only after the exhaustion of all non-violent alternatives. Sixth, the principle of proportionality must be adhered to. The use of armed force is justified only if the costs associated with a decision to opt for a negotiated settlement of a dispute outweigh the anticipated costs associated with the use of armed force, such as: the damage or destruction to civilian objects, the injury to or death of both non-combatants and combatants, the actual and opportunity costs associated with the use of armed force, and the degree of societal dislocation. Similarly, in justifying the decision to resort to armed hostilities, the anticipated positive benefits that will hopefully result from the establishment of the “true peace” that is sought must outweigh the injury to and death of people, damage and/or destruction of civilian objects, the actual and opportunity costs, and the societal transformation and dislocation that will inevitably accompany the use of armed hostilities. In short, the decision to opt for the use of armed force must yield a greater measure of good than harm. Seventh, except possibly in situations involving self-defense, there must be a reasonable prospect for military success. Eighth, belligerents must declare their intentions prior to initiating armed hostilities. Finally, many proponents of just war doctrine stress that all eight of these analytical categories must be satisfactorily addressed in order for the decision to resort to the use of armed force to be justified.4

There are three principal categories of analysis used in assessing the way in which armed force is actually to be employed at the strategic, operational, and tactical levels. First, those planning and executing military operations must be motivated by right intentions or disposition. Second, they must clearly distinguish between combatants and non-combatants, as well as civilian objects and legitimate military targets and objectives. Military planners and those actually responsible for executing military operations must respect the immunity of non-combatants and civilian objects from intentional and unnecessary harm. Third, the principle of proportionality must be applied in the conduct of armed hostilities. This analytical category admonishes military planners and those executing military operations, insofar as possible, to certify that any proposed operation will not cause collateral injury or death to non-combatants and/or damage or destruction to civilian objects that is clearly excessive or disproportionate in relation to the anticipated military gains resulting from the successful completion of those operations. Similarly, even with respect to enemy combatants, the level of violence applied should be limited to only that which is necessary to accomplish the military objectives and, insofar as possible, unnecessary or superfluous death or injury to enemy combatants in the pursuit of military objectives should be avoided. In short, the actual use of armed force must result in greater good than harm.5

Western philosophers, statesmen, and soldiers have, however, interpreted these general analytical categories in a variety of ways. The purpose of this chapter is to explore the roots of the Western approach to the concept of just war that originated within the context of theocentric natural law. Toward that end, the chapter will first examine the underpinning assumptions, content, and applications of theocentric natural law. It will then analyze the ways in which the assumptions and propositions that are central to theocentric natural law were applied by its proponents to the various categories contained within the framework of analysis for the possible use of armed force in the resolution of conflict. The result was the criteria used to evaluate the use of armed force known as just war doctrine.

Theocentric Natural Law

In accord with Plato’s observation that “God is the measure of all things,” the theocentric perspective on natural law ultimately refers to a Divine authority as the source for all normative standards that shape and serve to evaluate both collective and individual behavior.6 As A.P. d’Entreves observed, “it is not from the individual that we are asked to start, but from the Cosmos, from the notion of a world well ordered and graded, of which natural law is the expression,” – a world “governed by divine Providence.”7

A series of assumptions underpin the theocentric perspective on natural law. First, a theocentric approach is based upon the conviction that there exists a unified, single, universal, and transcendent Divine Being or hierarchically arranged series of Divine Beings, culminating, in the eyes of some, in a Supreme Divine Being.8 Second, it assumes that there are permanent, unchanging, and stable, Divinely generated universal truths and that these realities are the true objects of knowledge which human beings can, at least to some degree, comprehend.9 Third, adherents to a theocentric approach hold that a Divinely generated, naturally harmonious Eternal Order exists for the entire universe which, in turn, is governed by a Divinely established Eternal Law. Eternal Law and, ultimately, the Eternal Order is said to be based upon Divine Reason. It is seen as objective and constant throughout time and it directs the universe toward ends that are good.10 Fourth, all creatures are created in order to participate in the Eternal Order in accordance with their inherent natures as determined by God. Consequently, proponents of a theocentric perspective hold that all creatures should seek to realize their essential being and, ultimately, achieve goodness appropriate to their essential nature within the larger context of the Eternal Order as determined by the Divine Being. Irrational creatures are driven by instinct and appetites. While to some degree human beings are also motivated by similar instincts and appetites, in addition, unlike other creatures, they are social beings that possess free will, as well as that uniquely human ability to reason and acquire intellectual knowledge and understanding. Moreover, human nature is believed to be the same for all people throughout time.11 Fifth, whereas the Eternal Order is one of necessity for non-humans, it is predicated on freedom for social, rational human beings.12 Sixth, human beings have a clear goal in life which is to gain true knowledge and, insofar as humanly possible, achieve harmony and union with the Divine Being.13 Seventh, the human capacity for rational thought is the vehicle by which human beings can achieve intellectual understanding and, ultimately, approach truth.14 Finally, eighth, in order to attain their true end and realize their essential selves, theocentrically-oriented natural law thinkers stress that human beings must, through the power and strength of their own will, exercise their freedom, rise above worldly concerns and goals, and focus their efforts upon attaining their ultimate goal in this life, which is to live a virtuous life and, in doing so, fully develop and apply their powers of reason. In that way, they can, insofar as is humanly possible in this life, know truth, know good, and unite spiritually with the Divine Being.15

Predicated upon these assumptions, theocentric natural law is defined as “Eternal Law for free, rational, social human beings.”16 It rests upon a series of components. First, it is an unwritten law, based upon reason, and is embedded within man’s conscience. Second, natural law is seen as stable, permanent, and unalterable. Third, the whole of mankind is conceived as a community predicated upon the equality of all human beings. Fourth, reflecting this cosmopolitanism, proponents of a theocentric approach to natural law maintain that it provides standards and guidelines for all human beings and is applicable for all times. Fifth, based upon the universality of natural law and the concepts of justice and morality underpinning it, natural law holds that all people possess basic human rights that all communities must recognize and defend. Sixth, theocentric natural law is viewed as a higher law, above pressures and civil statutes emanating from within the community (jus civile), as well as above customs and laws common to all peoples (jus gentium). Thus, seventh, all people owe allegiance to this higher law.17

Turning specifically to the tenets of theocentric natural law, at its most fundamental, basic level, the primary, central principle of theocentric natural law is the “commandment that ‘good is to be pursued, and evil is to be avoided.’” This admonition is based upon the proposition that “all beings seek goodness appropriate to their natures.” Given that man is distinguished from other creatures by his social nature and his ability to reason, humans should pursue goodness appropriate to their essential social and rational natures. Therefore, since the admonition that human beings should pursue good and that, for humans, good corresponds to realization of man’s rational and social nature, humans pursue goodness by seeking to fully realize their essential social and rational being. Conversely, for human beings, evil is defined as that which clashes with their natural inclinations toward rational thought and participation in society. In short, for human beings, anti-social, irrational behavior and attitudes are evil.18

Predicated upon this central tenet of theocentric natural law, human beings have a duty to the Divine, to themselves, and to the other members of their community to give them all their “just due.” As such, theocentric natural law delineates three groupings of duties that humans are required to perform in order to realize their essential rational and social being. The first cluster centers upon man’s duty to, insofar as is possible in this life, “know and seek spiritual union with the Divine, attain true knowledge through an understanding of the Divine Wisdom, and comprehend the Eternal Order.” The second cluster focuses on one’s duty to oneself. Certainly, as with all creatures, it is natural for human beings to seek to preserve and maintain the lives of themselves and those they love, as well as to reproduce and care for their offspring. But, in addition, unlike other creatures, human beings should also seek to understand what constitutes their essential being and then to dedicate their lives to the realization of their essential rational and social self. The third cluster focuses on one’s duty to one’s fellow human beings, both collectively and individually.19 Theocentric natural law provides a series of general normative standards that serve to govern one’s behavior as one seeks to fulfill one’s duties to the Divine, to others, and to oneself.20

Proponents of theocentric natural law maintain that corollary norms can be reasonably derived from these basic normative standards, although they acknowledge that the level of certainty for these corollary norms diminishes in direct proportion to the degree one descends from the basic theocentric natural law standards governing human behavior.21 One of the most important corollary norms relates to individual freedom. People must be free in order to fulfill their duties to themselves, to others, and to God and, in so doing, fully develop their social and rational essential nature, thereby, insofar as possible in this life, allowing them to lead happy and fulfilling lives worthy of human beings. This is seen as a basic and inviolable...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of Contributors
• Introduction
• PART I: PERSPECTIVES ON JUST WAR DOCTRINE, INTERNATIONAL RELATIONS, AND ARMED CONFLICT
• PART II: INTERNATIONAL LAW AND THE CUSTOMARY PRINCIPLES UNDERPINNING THE LAW OF ARMED CONFLICT
• Index