Contemporary Just War Theory

1. Just cause: This is about having appropriate reasons to go into war and such reasons could be self-defence, protection of the sovereignty of a state, especially in terms of aggression, unjust occupation, self-determination.
2. Proportionality: The question here is whether the warfare would be commensurate or match with the actions or activities that trigger the war. For example, it may be unproportionate if a State responds to demolishing a water reservoir by another State by destroying some social facilities and taking the workers hostage.
3. Reasonable chance of success: The concern here is the likelihood of the war bringing about the desired or desirable just end. Like the return of Afghanistan to the Taliban, it is important to know if the war will end up with the injustice it seeks to correct.
4. Legitimate authority: In practice, only the head(s) of government has the legitimate authority to order or motivate war against another state or sometimes some non-state aggressors.
5. Right intention: This concerns the moral side of the cause, which is probably best interpreted as the motives behind the reasons. For example, a reason for war may be to depose a despotic ruler that consistently breaches human rights, but it would count as unjust if the underlying motive is actually to create a state of chaos and gain express access to the resources of the State.
6. Last resort: Here, the point is that the war should be the last option to consider after the state intending to war have exhausted other options to respond to the provocative situations. Such options could include diplomatic talks, and if applicable, employing judicial options within the international community (e.g., the International Court of Justice (ICJ) or the international human rights court).
7. Public declaration of war: The last among the conditions for just ad bellum is that the intention to go for war, after the other conditions have been granted, should be made public. There should be no covert war or some sort of secret sabotage or conflict. Perhaps a reason for the public declaration is for the international community to be aware of the war and be able to adjudge the justness of war or to know how to intervene immediately or later on in the future.

Jus in bello (Justice during the war)

Jus in bello is of Latin origin meaning ‘justice during the war’. It is about the conditions that must obtain to adjudge if an ongoing war is just or unjust. As hinted in the dependence/independence theses above, there are contentions about the distinction between jus ad bellum and jus in bello conditions. To some just war theorists, there is no reason for such distinction because the conditions that apply for resort to war are also applicable for conducts during the war (McMahan 2008; Frowe 2018, pp. 42-43). Nonetheless, the rules guiding conducts in war, especially on the nature of permitted weapons, treatment of prisoners of war (POWs) are in international legal conventions like The Hague 1899 and 1907 Conventions and the 1948 Geneva Conventions and its 1977 Protocols. As we shall notice most of the conditions of jus in bello are “prohibitions and restraints in war” (Bailey 1972) ensure fighting well (Walzer 1977, p. 127), especially to guide against unjustified attacks on civilians.

Below are four main conditions of jus in bello:

1. Qualifying as Combatants: An important point in just war theory is that warfare is normally only for the combatants and there is the need to separate combatants from non-combatants. But what makes a combatant qua combatant? Recall that some of the conditions of jus in bello are already part of international law. Thus, according to the 1949 Geneva Conventions, someone counts as a combatant if:S/he is part of an organised group that has a clear chain of command.
   S/he has an identifiable uniform as a mark of difference from civilians, and sometimes combatants from another chain of command.
   S/he bears arms publicly.
   S/he follows the rules governing conducts in war as enshrined in the Conventions.
2. Identifying Legitimate Attacks: As a condition of jus in bello, it is required that combatants identify those who are liable to justified attack and those who are not. According to the 1949 Geneva Convention, combatants must avoid intentional attacks on non-combatants either in terms of hostage-taking, torture or killing. Also, combatants who surrender or are incapacitated to fight may count as POWs but they no longer count as legitimate targets. Generally, civilians and civilian objects, such as hospitals, schools etc are not legitimate military targets, such attack is considered criminal. In fact, some domestic legislation contentiously states that a munition factory is a military object that may be attacked but it extends the protection of civilians to include munition workers despite their significant contributions to war (UK Ministry of Defence, 2.5.2, 2004, p. 24). However, there are cases where illegitimate targets may be attacked with little or no consequence depending on the situation. One notable principle that applies in such a situation is called the doctrine of double effect (DDE) which contentiously suggests that sometimes innocent victims may be unintended but foreseen targets of an attack. In military terms, the unfortunate victims may be considered as collateral damage.
3. Legitimate Tactics: This condition links with the previous one. The condition is that although we have identified those who are liable to legitimate attacks, this is not a sanction for indiscriminate attacks on those ‘deserving’ such attacks. There are acceptable and unacceptable means of attacking legitimate attacks. To consider a tactic as legitimate we should be able to identify whether a) if the attack is necessary to achieve the military objective. For example, destroying a military airbase may be unnecessary if bombing a bridge could help in achieving the same military goal. b) ‘Proportionality’ is also an important element of legitimate military tactics. Proportionality as Helen Frowe (2011/2016, p. 112) rightly puts it is that “the harm that one inflicts must be proportionate to the good that is protected, and must be the least harmful means available of achieving the good.” For example, bombing some factories that produce war materials for the enemy combatants may be proportionate to quell a threat of aggression rather than killing the enemy combatants. Part of the two sub-conditions under legitimate tactics include the nature of the weapons to be employed. Biological, nuclear and chemical weapons are often prohibited in the international legal conventions on war. For example, the three declarations of the first Hague Convention (1899) respectively forbids the discharge of projectiles and explosives from balloons (p. 220); the use of ‘asphyxiating or deleterious’ gases as weapons and expanding bullets (Scott 1915, pp. 225 & 227).
4. The final condition to consider under jus in bello is the treatment of the prisoners of war (POWs). POWs may include combatants who were injured and thereby incapacitated to fight, or those who were captured or those who voluntarily surrender. This is a recent concern in the war between Russia and Ukraine. These persons can no longer be treated as (enemy) combatants, they should not be punished, harassed or compelled to function as slaves or labourers because of their involvement in the war. POWs are only punishable for whatever offence they commit during their status as POWs. The treatment of POWs is to be vice versa between the warring parties and such treatment tend to be a good ground for jus post bellum.

Jus post bellum (Justice after the war)

Jus post bellum is etymologically of Latin origin meaning ‘justice after war’. It is about conditions that should be in place to end a war and what follows in a just way. According to Larry May (2012, p.1-21), there are “six [interwoven] normative principles of jus post bellum” which are: “rebuilding, retribution, reconciliation, restitution, and reparation, as well as proportionality.” There are views among just war theorists that conditions of jus post bellum are linked with jus ad bellum in such a way that considerations should be given to the post bellum conditions even while war is at the ad bellum stage. Before briefly considering these conditions, it is informative to mention an interesting contention whether the conditions of post bellum should include ‘punishment’. There is the argument that Jus post bellum is forward-looking to restore peace in contrast to punishment which is backwards-looking: revisiting the past to inflict harm on wrongdoers (Lazar 2012, p.220; Fabre 2018, p. 508). Some just war theorists think that the exclusion of punishment in the process of jus post bellum is tantamount to a flagrant disrespect for the suffering of the victims (Orend 2007, p. 580). Meanwhile, we shall not delve into the arguments here but briefly consider the six conditions of jus post bellum - since one of them entails ‘punishment’.

1. Rebuilding: This is the effort of restoring destroyed institutions, structures and facilities that are significant for afterwar peacebuilding.
2. Retribution: This is the condition concerning paying back aggressors or unjust contributors to war. Retribution as a condition does not only entail punishment but it concerns the measurement of the punishment to be met out to unjust aggressors.
3. Reconciliation: A very clear explanation on reconciliation is “ a process of returning previously warring parties to a point not only where they do not engage in violence toward each other but also where there is sufficient trust so that a robust and just peace can be attained – and where a just peace means that human rights are protected.” (May 2012, p. 86).
4. Restitution: During the war, it is likely that some properties or resources that rightfully belong to certain persons may be lost or taken away from them. Looting of resources is often a characteristic of war. Thus, restitution, as a post bellum condition is about returning the resources or properties to their owners.
5. Reparation: This is like another side of the coin for restitution because it is also about restoration but here it is about restoring damaged things during a war back to good condition. Classic works in contemporary just war theory suggest that reparation is mainly about wrongful harm from war, and it is usually a post-war attempt to redress injustice to war victims (Walzer 1977, Orend 2006, McMahan 2009).
6. Proportionality: You will recall that under the conditions of jus ad bellum and jus in bello we have ‘proportionality’ and it was about whether the act of war will be commensurate or match with the actions or activities that trigger the war. Under post bellum, the case is somewhat different. Here ‘proportionality’ is to ensure that efforts to establish peace do not cause more harm than good to the population concerned (May 2012, p. 225). A further explanation is that post bellum proportionality is useful to restrict excessive impositions by the victors on the victims. For example, if there would be an imposition of fines on defeated aggressors it should not be excessive to the detriment of their survival.

So far, we have seen some of the trends of thoughts that constitute just war theory. However, this is obviously a scratch on the surface of the various arguments and counter-arguments that characterise contemporary just war theory. But before concluding it all, it is worthwhile to consider some thoughts/theories that are gaining attention within contemporary just war theory.