As we noted before, conduct of war according to accepted conventions is an important aspect of international morality. There are three main schools of thought on the ethics of war and peace- Realism; Pacifism; and Just War Theory. The chief tenets of International Law are derived from the Just wartheory.
According to Just war theory, war may be at times morallyright. No war however is praiseworthy for being strategic, prudent, or bold. Occasionally, war represents an ethically appropriate use of mass political violence. World War II, on the Allied side, is often cited as the definitive example of a just and good war.
Realism denies the applicability of moral concepts like justice to foreign policy. Power and national security guide states in wartime; talk of the morality of warfare is fictitious. Ethics have no role in the harsh domain of global politics. Nations pursue their vital interests in security, dominion over others, and economic growth, unmindful of moral ideals.
Pacifism believes that morals are relevant international affairs. Pacifism argues that war should never be undertaken. Just war theory considers that some wars are just and permissible; pacifism always prohibits wars. Pacifists regard war as always wrong for any problem always has a better solution than war.
Aristotle,Cicero and Augustine are regarded as the founders of Just war theory. Hugo Grotius is a great thinker of this tradition. Many tenets of the just war tradition have been included in current international laws - such as The United Nations Charter and The Hague and Geneva Conventions
– which govern armed conflict.
Just war theory is divided into three parts which have Latin names. These parts are: 1) jus ad bellum, which is about the justice of resorting to war in the first place; 2) jus in bello, which is about justice of conduct within war; and 3) jus post bellum, which is about the justice of peace agreements and the termination phase of war.
Just war theory maintains that recourse to war is justified only if a state fulfils all the following six requirements:
Just cause
A state may launch a war only for the right reason. The just causes include: self-defence from external attack; the defence of others from such attack; the protection of innocents from brutal, aggressive regimes; and punishment for a grievous wrongdoing which remains uncorrected.
Under international law states enjoy political sovereignty and territorial integrity. Aggression means use of armed forces to violatetheserights.Two famousinstances areNazi Germany’sinvasion of Poland in 1939, and Iraq’s invasion of Kuwait in 1990. The aggressor states used their armed forces to overrun the territory of the victims, to overthrow their governments and to establish new regimes.
Right intention
Just cause should be the sole motive for waging the war. Ulterior motives, such as seizing land or power or irrational motives, such as revenge or ethnic hatred, are inadmissible. The state starting the war should merely secure and consolidate the just cause. If other motives intervene, war ceases to be just. But true motivation is hard to establish.
Proper authority and public declaration
A decision to go to war has to be made by the appropriate authorities as laid down under law and according to the prescribed process. It has to be made known to the public as well as to the enemy state.
Last Resort
A state should opt for war only after exhausting all peaceful alternatives, especially diplomatic talks, of resolving the conflict. No state should jump into a war which is invariably accompanied by terrible human costs.
Probability of Success
A state should avoid war if it is clear that war will not improve the situation. The point here is of preventing mass violence which may prove futile. This principle will often operate against the interests of small, and weak states.
Proportionality
Before starting a war, a state must assess the likely benefits and losses to all combatant nations and to thirdparties.Onlyif thebenefitsareproportionalto, or ‘worth’,the costsmaythewar actionproceed. To be just,warhas to meet stringent conditions.The first three of thesesix rules aredeontological requirements, or duty-based requirements or first-principle requirements. The next three requirements
are consequentialist: if the first principle requirements are met, the expected consequences of launching a war have to be considered. Thus, Just war theory applies both deontology and consequentialism to the issue of war.
Jusinbellorefers to justicein war, to rightconduct in war.Militarycommanders,officersand soldiers who formulate and execute the war policy of a particular state are responsible for state adherence to jus in bello norms. They are to be held responsible for any breach of the norms. Those who violate the norms may be tried for war crimes, either by their national military justice system or even by the newly-formed International Criminal Court (under the 1998 Treaty of Rome).
There are several rules of external jus in bello:
Obedience to all international laws on weapons prohibition
Chemical and biological weapons, in particular, are forbidden by many treaties. Nuclear weapons are not so clearly prohibited; but their use will naturally cause tremendous hostility and backlash from international community.
Discrimination and Non-Combatant Immunity
Almost all wars since 1900 had more civilian than military casualties. International law seeks to protect unarmed civilians as best as it can. Soldiers must avoidtargeting the civilians. They can only attack legitimate military, political and industrial targets. While some collateral civilian casualties are excusable, it is wrong to take deliberate aim at civilian targets, as in saturation bombing of residential areas.
Proportionality
Soldiersmust restrict force to what is neededfor achievingtheirtarget.Weapons of massdestruction are disproportionate to legitimate militaryends.
Benevolent quarantine for prisoners of war (POWs)
If enemy soldiers surrender and become captives, they cease to be threats. It is wrong to target them with death, starvation, rape, torture, medical experimentation, and so on. They are to be provided, as The Geneva Conventions spell out, with benevolent—not malevolent—quarantine away from battle zones until the war ends, when they should be exchanged for one’s own POWs. Do terrorists deserve such protection, too? Great controversy surrounds the detention and aggressive questioning of terrorist suspects held by the U.S. at jails in Cuba, Iraq and Pakistan as part of its war on terror.
Prohibition of Evil Practices
Soldiers should not use weapons or methods which are “evil in themselves.” These include: mass rape campaigns; genocide or ethnic cleansing; using poison or treachery (like disguising soldiers to looklikethe Red Cross); forcing captured soldiers to fight against their own side; and using weapons whose effects cannot be controlled, like biological agents.
No reprisals
When country A violates jus in bello in war with country B, B retaliates against A by violating jus in bello in order to force A to follow the rules. This conduct of B is reprisaland is impermissible.
Internal jus in bello implies that a state, though engaged in a war has to respect, as far as it can, the human rights of its own citizens. Among the issues which crop up in such situations are:
¤ Is it just to impose conscription, or press censorship?
¤ Can one curtail traditional civil liberties, and due process protections, for perceived gains in national security?
¤ Should elections be cancelled or postponed?
¤ May soldiers disobey orders, e.g. refuse to fight in wars they believe unjust?
An exhaustive theory of wartime justice should consider such issues. Some states, historically, haveusedthe cloak of war with foreignpowers to engageinmassiveinternal humanrightsviolations, usuallyagainst some disfavoured group. Other states, which areotherwise decent,panic amidst the wartime situation and impose needlesslyrigid emergencylegislation.
Jus post bellum refers to justice during the phase of war termination. It covers the manner of ending war and smoothly transiting from war to peace. International law scarcely touches upon this area; however, the following principles can be mentioned.
Proportionality and Publicity
The peace agreement needs to be moderate and reasonable. Its terms should be publicly stated. Ordinarily, the victorsshould not insist on an unconditional surrender.
Rights Vindication
The settlement should remedy the wrongs which led to the war. These may include restoring rights to life and liberty and community entitlements to territory and sovereignty. This should be the main goal of any peace settlement; it should not seek blind revenge.
Discrimination
Peace agreement has to distinguish leaders and soldiers of the defeated nation from its civilians. Civilians should be immune from punitive post-war measures. Hence, no sweeping socio-economic sanctions should be undertaken to mete out post-war punishment.
Punishment
If the defeated country has blatantly violated human rights, its leaders should be prosecuted in international trials for war crimes. Soldiers from all combatant nations, who commit war crimes, should be tried in suitable courts for war crimes. This issue is very controversial. It is prima facie undesirable to try soldiers of any nation in international courts.
Compensation
Reasonable and fair financial levy can be imposed on the defeated aggressor nation to compensate the victim’s financial losses. But it should not take the form of a general tax on all civilians. Enough resources should be left with the defeated country for its own reconstruction.
Rehabilitation
The post-war environment affords an opportunity to reform institutions and introduce humane policies in the defeated nation. These may cover: demilitarization and disarmament; police and judicial re-training; human rights education; and even creation of a minimallyjust societygoverned by a legitimate regime. Any ideas of regime change are of course controversial. The terms of a just peace should satisfy all these requirements.
There is considerable controversy on coercive regime change – changing the government of a nation throughexternal militaryintervention.Recent eventsin Afghanistan, Iraq,Libya,Egypt andthe civil war in Syria involve this question. Can coercive regime change ever be justified, or is it essentially an act of imperialism? One view is that UN mandated sovereign-equality of nations prohibits external interventionin the internal affairs of a state.
Some advocates of human rights and democracy justify coercive regime change in the following circumstances. (1) The war resulting in regime change should be just and conducted properly. (2) The regime sought to be replaced should be illegitimate. (Any such regime forfeits its state rights). (3) The goal of the reconstruction should be to build a reasonably just regime.
(4) Human rights should be respected during the war and the transformation process.
Sceptics argue that it is often impossible to transplant liberal democratic institutions in societies which are steeped in religiously sanctioned authoritarian social structures. But optimists point to the coercive regime change for creation of rights respecting states as was actually done in Germany and Japan from 1945-55. Hence, the idea is neither conceptually nor empirically impossible. But it is very difficult, and in some instances, well nigh impossible.