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The Law of Armed Conflict

The Law of Armed Conflict. Today’s Class. Introductions + Policies Jus Ad Bellum The Basics of International Law Legal Means to Conflict Syria Scenario. Is War Wrong?. The School of thought that says ALWAYS: Pacificism + Absolutism: Certain moral precepts cannot be abandoned.

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The Law of Armed Conflict

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  1. The Law of Armed Conflict

  2. Today’s Class • Introductions + Policies • Jus Ad Bellum • The Basics of International Law • Legal Means to Conflict • Syria Scenario

  3. Is War Wrong? • The School of thought that says ALWAYS: • Pacificism + Absolutism: Certain moral precepts cannot be abandoned. • Examples provided: Ghandi, MLK Jr. • But, does call 9-1-1 on 9/11 work?

  4. Is War Wrong? The School of Thought that says – Wrong Question Militarism: War is not inherently bad + can be a beneficial aspect of society. “Realism” - “All is fair in love and war.” States should act on state interest. Moral concepts such as justice cannot be applied to the conduct of international affairs + moral concepts should never prescribe, nor circumscribe, a state's behavior. A state should place an emphasis on state security and self-interest. Consequentialism- The moral theory most frequently summarized in the words "the end justifies the means," which tends to support the just war theory only until less beneficial means become necessary

  5. Just War Period 335 B.C. – 1800 A.D. Step 1: - Just War for Self-Preservation: Aristotle: 1) To prevent becoming enslaved 2) Establish leadership in the interests of the group 3) To enable men “to become masters over those who naturally deserved to be enslaved”

  6. Just War Period 335 B.C. – 1800 A.D. Step 2: - Just War from Divine Justification: At first, no fighting allowed Once Christianity became the religion of leaders, altered to allow self defense e.g. Defense of the Holy Roman Empire from the Vandals

  7. Just War Period 335 B.C. – 1800 A.D. Step 3: - Juristic Model: Transition from apologetic model of Thomas Aquinas to juristic model based on the benefits of inter-state relations

  8. War as Fact Period A.D. 1800 – 1918 Era of Realpolitik Clausewitz: War is a continuation of politics by other means Principle: Since each state is sovereign, there is no moral prohibition. Each state has a legal and recognized right to wage war. Increased focus on Jus In Bello – Lawful ways to fight once conflict exists

  9. Jus Contra Bellum A.D. 1918-1949 Increasing focus on the idea that aggressive war must be outlawed: - League of Nations - Kellog-Briand – The Treaty for the Renunciation of War (remains in force today) Also, trauma of WWI led to increased focus on the means of waging war.

  10. Post WWII A.D. 1949-Present The idea of universality of obligations UN Charter Early Charter Period – pure self defense Contemporary – Expanded right?

  11. Jus Ad Bellum Principles • Just Cause • Competent Authority • Right Intention • Probability of Success • Last Resort • Macro Proportionality

  12. Jus Ad Bellum • Just Cause • Comparative Justice • Competent Authority • Right Intention • Probability of Success • Last Resort • Proportionality

  13. Just Cause (1st of 6) • The damage inflicted by the aggressor on the nation or community of nations must be lasting, grave, and certain; • “Pure” self defense (invasion) • Non-intrusive defense (attacked) • Retaliatory Attack • Anticipatory Defense? • Collective Self Defense (to aid another who was attacked) • “Pure” Collective Intervention (to evict a foreign power who is invading)

  14. Just Cause Today: UN Charter Authorizes TWO bases: • Chapter VII Enforcement Actions • Self Defense – Article 51 • Individual • Collective & compliance w/ domestic laws

  15. Last Resort (2 of 6) • All other means of putting an end to it must have been shown to be impractical or ineffective; • Discussion cases: • Iraq-Kuwait? • Bosnia? • Rwanda? • Iraq II?

  16. Proper Authority (3 of 6) • A war is just only if it is waged by a legitimate authority. Even just causes cannot be served by actions taken by individuals or groups who do not constitute an authority sanctioned by whatever the society and outsiders to the society deem legitimate.

  17. Right Intention(4 of 6) The ultimate goal of a just war is to re-establish peace. More specifically, the peace established after the war must be preferable to the peace that would have prevailed if the war had not been fought A state must only pursue a war under the conditions agreed upon in the above criteria. Revenge is not permitted. The state must also be willing to apply the same level of objectivity and investigation into any war crimes its armed forces may have committed.

  18. Likelihood of Success (5 of 6) • A war can only be just if it is fought with a reasonable chance of success. • Deaths and injury incurred in a hopeless cause are not morally justifiable.

  19. Proportionality to Means (6 of 6) • The violence used in the war must be proportional to the injury suffered. States are prohibited from using force not necessary to attain the limited objective of addressing the injury suffered. • Q: Does this control only actions vis-à-vis the other, or towards one’s own population as well?

  20. Syria Scenario

  21. An End to War? Article 2(4) of the UN Charter: “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered.” So…what about Genocide? Why is ours a history of constant failure to stop the atrocities, from Turkey in 1915 to Sudan today?

  22. General Principles. • International Law governs the conduct of STATES • International Law is set by • Treaties (subject to reservations and understandings) • Custom • General Principles

  23. The Three Components of Just War Doctrine Jus Ad Bellum Jus In Bello Jus Post Bellum

  24. Jus Ad Bellum • Just Cause • Competent Authority • Right Intention • Probability of Success • Last Resort • Macro Proportionality

  25. Jus in Bello • Distinction • Micro - Proportionality • Military Necessity • Fair Treatment of POW’s • Means Malum in Se

  26. Jus Post Bellum • Just Cause for Termination • Right Intention • Public Declaration and Authority • Discrimination • Proportionality

  27. By What Standard? • Who Decides? • Hindsight or Foresight? • Are these yes/no issues? • Does Context Matter? • What is the value of these criteria?

  28. What if LOAC is 1 Sided? What Value Then? US DoD Policy says it is still valuable: • To integrate humanity into war • As both a tactical and strategic combat multiplier Can we think of examples? Can we think of other reasons?

  29. Why Subscribe to LOAC? • May motivate enemy to observe the rules • May motivate enemy to surrender • International Opinion • Helps restore peace

  30. Why Subscribe to LOAC - II? • Protects our society’s character • Makes it easier for our soldiers to fight, and then easier for our soldiers to recover • Necessary for our civilian population to support war • Provides advance notice of consequences of conflict • Reduces confusion and makes right/wrong conduct easier

  31. What is LOAC? • Conflict Centered Rules • Sources: • The Hague Tradition (means of war) • The Geneva Tradition (victims of war) • Principles (treaty commentaries, military publications, etc.)

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