Macomb, IL – On December 10, 2009 at the Oslo City Hall, in Oslo, Norway, the President of the United States, Barack Obama, was awarded the Nobel Peace Prize. He gave a speech in Oslo and he talked about war and peace, and he mentioned and partially defined what he called "the concept of a just war.'" Many Americans probably heard the term "just war" for the first time that day.
It may also unclear to most people in this country how the idea of "Just War" squares with international law.
The concept of Just War is now considered by many to be a theory, a matter of ethical philosophy and not law. What is now considered Just War theory used to be part of what is known as customary international law.
The primary aim of modern international law is to eliminate war, since in the modern age war has became so destructive, killing dozens of millions of people in the two world wars. So the use of force was prohibited in the Charter of the United Nations, and we find a similar prohibition in treaties and customary international law. The only exceptions set forth in the UN Charter are for self defense and when authorized by the UN Security Council in order to restore or maintain international peace and security.
What about Just War theory; what is it? When it comes to the treatment of our fellow humans or to acts of violence, certain ethical principles are accepted by most people as being universally applicable, such as do not kill others; do not lie; do not steal and so on.
Some would say that such principles are absolute rules that should never be broken; others say, and sometimes even the absolutists will admit, that certain circumstances will give rise to exceptions to these rules. For example the rule of self defense is almost universally accepted, and such a rule may give rise to an acceptable violation of the rule that says one must not kill others. As an example, if someone attacks my child with a deadly weapon, my obligation and my right to defend my child likely overrides the rule against violence.
Just war theory works much the same way. The reason for the theory is to make us believe that war is wrong, and that we should not engage in war. In fact in the wide majority of cases, if we follow the ethical principle of just war, we will not go to war; the theory does not allow us to. However the theory recognizes exceptions to this ethical rule. If I am attacked, I can fight back, for example.
We know that human groups have been fighting each other for a very long time, and people have been trying to figure out the rights and wrongs of it for almost as long. The idea that that going to war can only be justified under certain conditions is a very old one and can be traced back to at least the Romans and then the Christian philosophers St. Augustine and St. Thomas Aquinas, who both wrote of the justification for war under certain circumstances.
So just war theory then is really a mixture of a moral view that war is bad with the view that war is sometimes necessary.
Nearly all of the just war theorists generally had similar rules describing the circumstances for when the exception exists. Barack Obama outlined most of those exceptions in his Oslo speech. He said: "...over time (t)he concept of a "Just War" emerged,...if war is waged as a last resort or in self-defense; if the force used is proportional; and if, whenever possible, civilians are spared from violence."
Of course sparing civilians from violence has nothing to do with the justification for a war, rather how one should wage that war once it breaks out. Further, he did not mention the two other conditions that many theorists also mention as a prerequisite for just war: a reasonable chance of success; and proper authority that is, that the person declaring war has legitimate authority in the state to do so.
Statesmen now often use Just War theory to legitimize their violent actions, when the law of war or at least the Charter of the United Nations - does not appear to justify them.
Just War theory was a moral and personal concept, applying to individuals as those individuals did their public duties here the duty of taking the state into war. So any prince or leader would view his cause as just when going to war. Trouble arose in the 1600's during the wars of the Reformation in Europe when Catholic states went to war against Protestant states, with Christians killing fellow Christians by the tens of thousands. Each side believed they were fighting a just war.
So a more secular set of rules, instead of one based on religious ethics took hold in the minds of legal scholars. This new set of rules changed the emphasis from justifying war since it was recognized that both sides would believe that they were in the right and that justice was on their side to formal procedures in declaring, conducting and ending war.
This system was concerned with international stability and peace ahead of other values, and that notion extends to the Charter of the United Nations - and customary international law today.
Just War theory also generally allows preemptive war, but not preventive war. Most nations do not agree with this and the UN Charter does not on its face allow the doctrine of preemption which is very close to the concept of self defense and is based on the idea that when the threatened state sees or fears an imminent attack that is an attack about to happen - against its sovereignty it can attack first.
Traditional Just War theory does not, however, permit preventive war as espoused by the Bush doctrine, nor does the Charter of the United Nations allow preventive war, since preventive war is not considered self defense.
Both Just War theory and the international law of war were designed to prevent wars, allowing exceptions only in limited circumstances. Just War theory, as described by President Obama, and as articulated by many philosophers past and present, allows heads of state a broader arena for action than does international law as set forth in the Charter of the United Nations.
Furthermore as President George W. Bush stated on more than one occasion, the actions of non-state terrorists waging a global war is a new phenomenon, and whether that phenomenon does "require new thinking," as President George W. Bush said, and thus will change countries' views on Just War theory and customary international law so that the concept of "preventive war" becomes universally accepted, remains to be seen. So far most states do not buy the notion.