TOWARDS A RENEWED MORAL BASIS FOR THE USE OF ARMED FORCE: An Examination of the Just War Doctrine and its  Implications For the War Against Global Terrorism

 

 

Tell me frankly, I appeal to you -- answer me: Imagine that it is you yourself who are erecting the edifice of human destiny with the aim of making men happy in the end, of giving them peace and contentment at last, but that to do that it is absolutely necessary, and indeed quite inevitable, to torture to death only one tiny creature, the little girl who beat her breast with her little fist, and to found the edifice on her unavenged tears -- would you consent to be the architect on those conditions? Tell me and do not lie!"

-- Ivan Karamazov in The Brothers Karamazov, by Feodor Dostoyevsky[1]

 

 

            The distance most of us feel from having to face this terrible hypothetical posed by Dostoyevsky’s fictional character may be illusory.  In its most basic form, Karamazov’s question outlines in the extreme the issue of ends and means.  In this paper, the issue of war and the interrelated concepts of jus in bello (the justness of the means of warfare) and jus ad bellum (the justness of the reason for going to war) will be addressed.  These well-worn concepts lie at the heart of the historical attempt to create an international law pertaining to war.  Jus in bello and jus ad bellum essentially deal with the means and ends questions that form the basis for what is known today as the proportionality doctrine.[2]  For those who hold that there are acceptable wars,[3] an honest examination of the terrible realities of war and the complex of questions regarding morality, ethics, legality, and religion that arise necessarily from this examination, brings Dostoyevsky’s dilemma into stark view.  If a war is to be deemed any degree more just than a mere criminal act,[4] the means and ends questions need to be wrestled with.  It is one of the purposes of this paper to review the difficulties, inconsistencies and perhaps unanswerable questions that have burdened this inquiry and to suggest a contemporary paradigm in which to at least frame the questions. 

            For the most part, within the various international bodies of law pertaining to war, jus ad bellum and jus in bello have been seen as distinct concepts.[5]  This paper will examine jus ad bellum and jus in bello as separate concepts but will also discuss their interrelationship.[6]   There are aspects of the Charter of the United Nations and other international law that recognize at least implicitly that a just cause of war plays a part in assessing the morality and legality of war action.  These laws and charters will be explored as part of this paper.  However, this examination will also reveal the tendency of international law to focus on action within war at the expense of an inadequate consideration of the jus ad bellum.  This lack of consideration of the just ad bellum has important consequences for the world’s confrontation with localized and global terrorism and asymmetrical warfare.[7]  This topic will be addressed at length within this paper.

            In this failure of the international community to maintain principles of just war and a basis for action (to be examined further in this inquiry), there is blame to go around - every country has self-interest and it is no surprise that “law [has become]  . . . the handmaiden of politics.”[8]  But beyond the block of self-interest lies an equally difficult barrier: the inherent difficulties in formulating measures of justness and morality.  Clearly, the “immeasurable evil” posed by Nazism that precipitated World War II[9] presented, at least at the outset, simple moral questions; the “wars of liberations” and claims, counterclaims and competing philosophies that often drive wars may or may not be masking the type of “evil” that made the choices to fight Hitler so clear.  Notwithstanding the clearer choices that accompany the presence of prima facie evil, the more difficult assessments of morality in war have been engaged through philosophy and religion, as well as through lawmaking.  The conundrum faced by modern philosophers in engaging this topic provides a good starting point for an overview. 

The Philosophical Conundrum (Modern)

            Contemporary philosophers have wrestled with the issue of the moral basis of war and action within warfare utilizing an absolutism versus utilitarianism scale.  Absolutism and Utilitarianism lie at opposite ends of the spectrum of this assessment.  An absolutist states that there are some acts that are completely forbidden.[10]  In other words, there are acts that are morally prohibited “entirely independent of their utility.”[11]  In contrast, a utilitarianist measures the proper means of an action by considering whether the means achieves a particular objective.[12]  This ends and means dichotomy applied to Karamazov’s query provides the following distinction:  the absolutist would hold that under no circumstances would the torture of an innocent girl be morally justifiable; the pure utilitarianist would at least be willing to examine whether such a horrific act would have the effect of ending world suffering, saving thousands of lives, or, as posed in this hypothetical, giving mankind “peace and contentment at last.”

            Ultimately, both the “utilitarian” and “absolute” positions are troubling in their implications.  As abhorrent as the means considered by the utilitarianist may be, particularly in light of the impossibility of being assured of a particular result, the absolutist position also fails when its natural consequence - pacifism even in the face of a determinable evil - is considered.   To soften the hard line between these two approaches, R.B Brandt, an advocate of the utilitarian position, proposed that, in certain circumstances, heeding certain absolutes will bring a long term utility.  In support of this supposition, Brandt provided the following formulation in relation to war action: “a military action . . . is permissible only if the utility . . . of victory to all concerned, multiplied by the increase in its probability if the action is executed, on the evidence . . . , is greater than the disutility of the action to both sides multiplied by its probability.”[13]  Thomas Nagle in turn argues for a qualified absolutism, that is, there are special conditions - under circumstances where considerations are “overwhelmingly weighty and extremely certain” - where it would be impossible to adhere to absolutist positions.[14]   Here, as much as Brandt’s offering feels overly formulaic, Nagle’s admission of a qualified absolutism betrays the absolutist position in that a “qualified” absolutist position is a contradiction, for by definition, there can be no absolutist position that is qualified.   

Nagle further annunciates an absolutist position that in part utilizes the doctrine of the “double effect,” an idea derived from Catholic moral theology.[15]  This doctrine makes a distinction between the intended and unintended consequences of an action.  In the context of the morality of war, the absolutist is able to bypass an absolute prohibition on targeting civilians in the theatre of war by viewing civilian deaths as unintended rather than intended collateral damage of an otherwise militarily related target.  In this way, civilian deaths become acceptable.[16]  But as relied upon by the absolutists, this double effect position remains troubling, for somehow, there is a tenuous moral distinction between targeting civilians for a military purpose and targeting a military object knowing that civilians will be killed.  As Kenneth Anderson succinctly stated, this seems nothing more than an “artificial salve for the conscience of combatants.”[17]

            If absolutism is not a workable standard for measuring conduct to war and within war, logic might dictate that the utilitarianist’s view prevails.  However, where any means is allowable to achieve a proper end, the issue will resolve on whether the end is “good,” and this assessment may be just as problematic as the absolutist’s position.  A fundamental question raised by this new inquiry will be: who will decide what is a proper end?  Additionally, what is a proper end?  Can there be opposing sides in war that have equally justifiable claims?[18]  Assuming that these questions of defining good can be resolved, equally difficult questions arise.  How do we determine the probability of success in achieving that good?  What will be the results if the means fail to achieve that end?  And, how does probability of success in achieving an end factor into the means that are acceptable towards that end?

            Although the absolutism-utilitarianism distinction may fail to provide a functional basis for understanding all of the issues related to ends and means in war, this philosophical approach at least helps to bring the inquiry into sharper focus by providing the questions and attempts at formulations that must be a part of the discussion.  For short of the complete disappearance of war, or a reliance on a pacifist position, critical assessments will have to be made that involve frightening calculations.[19]  Both in the context of jus ad bellum and jus in bello, these calculations may take the shape of weighing life against life, a particular society’s values against that of another society, and the probability of intended or unintended consequences.  And finally, these issues of good and evil, the relation of ends and means, and the unknowability of ultimate consequences are an unavoidable part of man’s inevitable struggle to deal with the issues posed by war and morality.  As the saying goes, “good men can differ,” and, they often have and will continue to do so.  In the context of war, men and women will differ as to the answers they provide to the inevitable moral questions that arise.  Although these difficult questions may be unanswerable, we are at least required to confront them.  Some of the first struggles with these questions took place within the early Judeo-Christian traditions.  An overview follows.

A Jewish Perspective on War and Morality

             The Jewish Old Testament and Commentaries annunciate a moral imperative to war as well as a moral imperative to peace and restrictions on warfare.  A rabbinical commentary provides the foundational view of the Jewish respect for human life.  It provides that “whosoever destroys a life . . . [is] as though he had destroyed a complete world.”[20]  The inverse is also stated: “whoever saves a soul is as though he has saved a whole world.”[21]  Accordingly, the Old Testament commands:  “do not to stand idly by the blood of your neighbor . . .”[22]  The means to which Israel is given to put into practice these commands is also clear: “[a]ll Israel is commanded to save a person being pursued for his life, even if it means killing the pursuer . . .”[23]  Herein lies a startling dilemma and theological juxtaposition: statements recognizing that each human being represents a “whole world” alongside statements recognizing conditions for taking life. 

            The G-d of Israel in the Old Testament often reflects this violence-peace duality by commanding a resort to violence even to the extent of the destruction of whole cities,[24] while at the same time commanding the biblical figures to call for peace and specifically restricting their actions within war.[25]  Ultimately, this yes and no call to violence in the Old Testament is contextualized through injunctions to seek peace and to show mercy.[26]  Accordingly, in the Book of Proverbs, in an expression of the centrality of intent which will surface again in the Christian just war doctrine, the warrior is implored to“rejoice not when your enemy falls and let not thine heart be glad when he stumbles . . .”[27]  And peace is the ultimate goal.  Although much blood is shed throughout the events of the Bible, it is clear that inasmuch as Yahweh commands war, he will also ultimately judge the nations, and there will be a time when “[n]ation will not lift sword against nation, no longer will they learn how to make war.”[28]

            Finally, there is a contemporarily relevant Jewish belief that those who are kind to the wicked will end up being wicked to the kind.[29]  Rabbi Dov Greenberg, in an analysis of the willingness of Moses to use violence stated succinctly that “prohibiting moral killing guarantees immoral killing.”[30]  In a similar light, Yossi Klein Halevi, in an article dealing with the moral dilemmas posed by present day Israel’s confrontation with terrorism declared: “[s]ometimes we yield [the State of Israel] to immoral power, sometimes to immoral weakness.”[31]  A clear example of this immoral weakness, in another context, was the appeasement of Nazi Germany by Chamberlain in 1939.[32]  In today’s world however, determining the proper use of power in the context of preemption and self-defense may not always be so clear.  This topic will be explored later in this analysis.    

Christian Views on War

            The New Testament, perhaps not in such stark relief as its predecessor, nevertheless reveals a duality, at least in its terminology.  Although Jesus came with a message that when a person is struck on the right cheek, he should “turn to him the other cheek,”[33] other statements of Jesus as well as narratives within the New Testament are less clear on the issue of violence.   For example, in the Book of Mathew, Jesus said, “[d]o not think that I came to send peace upon earth: I came not to send peace, but the sword.”[34]  Further, when one of the apostles with Jesus cut off the ear of an intervener, Jesus said, “put up again thy sword into its place: for all that take the sword shall perish with the sword.”[35]  Another example of the New Testament’s ambivalence, at least as it pertains to violence between states, is Jesus’s practical assessment (based on numbers of troops) of whether a king is able to go to war.[36]

            There are disagreements as to the meaning of these and other references within the New Testament as to Christianity’s perspective on war.  Notably, there are those who would argue that the references to violence within the New Testament are merely symbolic.[37]  It is beyond the scope of this inquiry to comprehensively dissect these arguments, many of which go beyond literal interpretation and into the realm of faith.  However, from this writer’s perspective, in light of the New Testament’s silence on a direct prohibition or endorsement of war, it is logical to apply the Old Testament’s precepts of war to fill the gap.  In support of this idea, columnist Gregory Rummo noted that Jesus stated that “not one jot, or title shall pass from the Law [of the Old Testament]  . . .”[38]  Further, to read Jesus’s turning the other cheek as a call to total pacifism, for one, belies Christianity’s relationship to war throughout history.  Most importantly, notwithstanding the differences in interpretation of the sometimes parable and symbol laced teachings within the New Testament, the early Church fathers showed a clear and accepting view of war in their development of the highly influential just war doctrine.  This doctrine, developed by St. Augustine and St. Aquinas, served as the basis for the classical philosophers of the 15th -17th centuries who in turn influenced the early development of the international laws of war beginning in the 19th century and continuing until today.

The Just War Doctrine and the Early Law of Proportionality

            The just war doctrine directly accepts war as a means to deal with injustice and sin, and  as an instrument of peace.[39]  St. Augustine, a church father living in the 4th century, in an echo of the Old Testament stated: “[w]e do not seek peace in order to be at war, but we go to war that we may have peace.”  He continued: “be peaceful, therefore, in warring, so that you may vanquish those who you war against, and bring them to the prosperity of peace.”[40]  Interestingly, an acknowledgement of both the jus ad bellum and jus in bello is contained within the above statements.   In the first statement, the achievement of peace is a just cause for going to war (jus ad bellum).  In the second statement, being “peaceful in warring” is a reference to means (jus in bello).  But here, as a further indication of the just war doctrine’s primary concern with the justness of war, the means (being peaceful in warring) has a direct correlation to the ends - the overall objective of peace.  Accordingly, in St. Augustine’s view, the jus ad bellum and the jus in bello are bound in a tightly formed nexus.

            St. Thomas Aquinas, a widely esteemed Christian philosopher of the 13th century,[41] reiterates with greater specificity the position taken by St. Augustine.  St. Aquinas set out basic moral conditions for war: a just cause, competent authorities empowering the war, and right intention in fighting the war.[42]  The “prudential considerations” are that the good achieved by war must be greater than the harm that will be inflicted (proportionality), that war is a last resort, and that there is a probability of success.[43]  The just war doctrine of St. Aquinas also provides precepts related to the conduct within war (jus in bello). These requirements are as follows: a formal declaration of war; a proportional use of force to achieve the just cause; a discrimination between combatants and non-combatants; surrender must be accepted along with a moderate imposition of sanctions; and, the victor must act humanely and not force the vanquished into despair.[44]

            Of particular interest to this writer and of specific applicability to the thesis of this paper is the notion that proportionality as delineated by the just war doctrine can be differentiated from the contemporary view and application of proportionality.  The contemporary doctrine of proportionality, to be explored in greater detail below, has evolved into a notion of the jus in bello, that is, the means of warfare must be proportionate to the military necessity.[45]  In basic terms, this means that in achieving a particular military end, the actions taken should be limited to those that are calculated to achieve the least amount of damage.  In other words, today the jus in bello is separate from the question of the overall justness of the war. 

In contrast and as previously discussed, the proportionality doctrine as originally annunciated in the just war doctrine creates an equation that is inclusive of the jus ad bellum, that is, the overall good achieved by war must be greater than the harm inflicted.  St. Aquinas, echoing St. Augustine, cast this simple formulation in his pronouncement that a minimal use of force must be used to achieve the just cause.  Again, this interweaving and inseparability of the jus ad bellum and jus in bello allowed for a unified doctrine, a unity that is markedly absent from contemporary war doctrine. 

            In sum, the just war doctrine offers a very simple and effective formulation – that is, in order to assess the overall ‘good’ achieved by a war, consideration of the justness of the war is required.[46]  The doctrine suggests that a war that has achieved an unjust goal cannot meet the standard that “the good achieved must be greater than the harm it has caused.”[47]  However, as seemingly simple as this formulation is, it is so in large part because the church had the singular authority to determine a just cause.  This determination, at least from the perspective of the church, was a simple measure, very much unlike what the heterogeneous and disparate sovereigns of the world face today.  Some of the elements for just cause within the just war doctrine - namely, self-defense and the restoration of interests[48] - represent familiar legal and conceptual territory for today’s world.  However, how will the broad precepts of just cause that were delineated by the Church Fathers - Charity, Justice and Retribution[49] - come to be defined in a world both unfamiliar and uncomfortable with these terms?

            It is probably true that the contemporary diminution of the jus ad bellum’s applicability to the laws of war is partly caused by the inherent difficulty in defining just cause.  It is also probably true that this difficulty in defining a just cause has lead, in today’s world, to both a resigned acquiescence and an active participation in moral relativism. However, the imperative of not allowing an abdication of this responsibility to face moral choices is made clear by St. Ambrose, a teacher of St. Augustine.  His comment on the relationship of the jus ad bellum and the jus in bello provides a sharp, instructive, and urgent message to lawmakers and leaders to pay close attention to the jus ad bellum.  He provides: if the war is unjust to begin with, “there are no proper ways to commit crimes.”[50]

The Classical Philosophers and the Movement Away From the Just War Doctrine

            The Peace of Westphalia in 1648 marks a transition point for the just war doctrine as sovereign states began to emerge as part of the legal and social landscape of the international community, and the influence of the church began to decline.[51]  Various scholars and philosophers addressed the issues that arose as the authority of the church lessened, nation states asserted themselves, and there was a general recognition of the need to hold the newly formed nation states to common laws of behavior.[52]  The vacuum left by the diminishing power of the church was being filled by varying concepts of natural law and positive law.  One of the first exponents of these laws was Hugo Grotius.

            Hugo Grotius (1583-1645), a Dutch scholar considered by many to be the father of international law,[53] appeared to straddle a line, at once recognizing the positive law of states making laws that address the community of nations, but also insisting that these laws were at source based on a natural law derived from God.  There are also various sources stating that Grotius derived his theories of international law purely from a “secular and reason based” perspective, and in the end, this may have been the ultimate effect of his work.[54]  However, the writings of Grotius evidence a man with deeply religious convictions who believed in a ““primary law of nations applicable to all men and nations,” and in a “secondary law” which was defined in written pacts and agreements between states in the established custom among states.”[55]  Accordingly, Grotius even said that rulers’ laws can be disobeyed if they contradict God’s laws.”[56]

            Grotius’s writings on war further illustrate these contradictions: on one side, he stated that it is “lawful for an Enemy to hurt another both in Person and Goods . . . [and for] both sides to do so without Distinction.”[57]  But he had also insisted that there were duties of moderation concerning one’s enemies:[58] “once [war] is undertaken, it should be carried out within the bounds of law and good faith.”[59]  Further, Grotius is credited with recognizing the just war doctrine - “war ought not be undertaken except for the enforcement of rights . . .” - but he is also cited for the following statement: “by the consent of nations, a rule has been introduced that all wars, conducted on both sides by authority of the sovereign power, are to be held just.”[60]  Notably, it is this last statement, this right of the sovereigns to make war free from the sanction of just cause,that heralded the diminution of the jus ad bellum aspect of the just war doctrine.  While the jus ad bellum did continue to surface in subsequent writings, treaties, and charters, the severing of the jus ad bellum from its natural law roots had begun whether this was Grotius’s intent or not.

            A Swiss diplomat, Emerich de Vattel (1714-1767) wrote the highly influential “Le Droit des Gens” (the Law of Nations),[61] a work that further reflected the tearing at the roots of the just war doctrine.  Like Grotius, Vattel set forth theories of war and of relationships among men and states based primarily on natural law, but these theories also contained elements of positive law.[62]  Vattel recognized a just war as one which would overcome “injustice and violence” and argued that “a sovereign has the right to do whatever is necessary to weaken [his enemy]” in pursuit of this just end.[63]  However, Vattel’s view also clearly reflected the just war doctrine’s jus ad bellum proportionality measure noted above.  He stated that “[a] lawful end confers a right only to those means which are necessary to attain that end.”[64]

            In addition, in respect to the rights of states, Vattel believed that nations are obliged to follow an immutable natural law and that no conventions could effect this obligation.[65]  However, he also recognized the difficulty of determining appropriate action in war and advocated the development of law between states that would give some kind of guidance to the states in their estimation of appropriate action.[66]  He also understood an inherent dilemma of war where “there are many cases in which the law of nature (immutable law) does not determine between state and state, as it would between man and man.”[67]

            In sum, Vattel’s writings, whether intended or not, further reflect the diminishing role of a ‘higher authority’ in providing the basis for a notion of  ‘just’ war.  Vattel’s recognition of the difficulties in calculating right action, his advocacy of the equality of states,[68] his speaking against the patrimonial system, and his justifications for liberal revolution and the rights of a part of a nation to separate itself from the rest of the nation provide further evidence of this change.[69]

            Finally, other pre-19th century writers grappled with the issue of war and proportionality from both the jus ad bellum and jus in bello perspectives, anticipating many of the issues that would confront the Hague and Geneva conferees in the 20th century.   Francisco Suarez (1548-1617) addressed defensive wars and declared that a party firing the first shot could be considered to be engaging in a defensive act.[70]  He also stated that a nation could send missionaries to another county and resort to arms if the missionaries were forcibly prevented from engaging the population.[71]  Cornelius Bynkerschoek (1673-1743) provided a “correct ground” for fighting war (protecting or recovery of one’s possessions) but noted that “as customs change, the laws of nations change accordingly.”[72]  Both Bynkerschoek and Christian Wolff (1679-1754) argued that every force in war was lawful, but perhaps not as forcefully as Carl Von Clausewitz whose ideas were dominant among military thinkers in the 19th century.[73]  Clausewitz argued that international law and custom imposed a “barely perceptible limitation” upon the use of force and that “the errors [in war] that proceed from a spirit of benevolence are of the worst.”[74]  Finally, Alberico Gentili (1552-1575) presciently addressed an issue of great applicability today with the prevalence of the targeting of civilians and asymmetrical warfare.  He asked whether the rules of law should be observed when facing an unlawful combatant.[75]

            Joseph Kunz summarizes this transitional period well.  He states that the pre-19th century philosophers of war“fortified their arguments with quotations from scriptures and the early Church Fathers” but “by the time of Grotius, the rules had become more secularized that they were claimed to be valid even if there were no God.” [sic]  He concludes: “by the time of Vattel, natural law theory was “little more than an aspiration after better relations between states.””[76]    Perhaps this change noted by Kunz was an inevitable result of the rise of the sovereign state, a parallel to the chaotic world of today that has accompanied the demise of the cold war.  The change expressed in the view of the aforementioned writers could also be partly due to a frustration with the wars that accompanied the church’s domination.[77]  If the higher authority of the Church was not able to provide the vision of a better world that these writers shared, perhaps they anticipated that a controlling mechanism among the nations would provide the basis for a peaceful world.  If this is the case, the events of the 20th century proved them greatly wrong.

Historical Development of the Laws of War and the Jus Ad Bellum

            Before proceeding to a historical overview of the laws of war, it is important to note the following: a presumption of this inquiry is that a determination of the moral basis of war or action within war, although elusive and perhaps existing only in an ideal world, is a necessary precondition for the basis of determining law.  As Hans Kelsen stated: “whatever is considered “just” in the sense of international morality has at least a tendency of becoming international “law”.”[78]  The inquiry from this point will try to gauge whether this tendency has been realized and if so, to what extent.  In presuming a nexus between justness and law, or perhaps more appropriately stated, between the search for justness and its application within the laws of war, this inquiry’s  discussion of  international law draws on this presumption.  In other words, what moves this writer is the achievement of what “just” elusively tries to signify, rather than the letter of the law.  As we will see below, the development of the laws of war parallel the dissipation of the jus ad bellum.  Accordingly, in light of St. Ambrose’s comment that if the war is unjust to begin with, “there [can be] no proper ways to commit crimes,”[79] the consequence of this dissipation of the jus ad bellum in war compels an analysis.  First, some background:

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            The 20th century saw significant developments in international law starting with the first Hague Conventions in 1907 and continuing until today with the present effort to solidify the function and purpose of the International Criminal Court.  Other significant marking points in the early part of the century included the attempt at creating a world body in the League of Nations in 1918 and the Geneva Conventions of 1929.[80]  A flurry of significant developments in the international law arena occurred in the aftermath of the devastation brought by World War II.  These included: the Nuremberg trials, the four Geneva Conventions of 1949, and the birth of the United Nations.[81]  More recently, the 1977 Additional Protocol, the International Criminal Court, non-governmental organizations, and ad hoc tribunals have framed many of the issues that have arisen related to armed conflict.[82]  

            The 1907 Hague conventions can be traced to an event witnessed by Henri Dunant in 1859.[83]  Dunant, a resident of Geneva was part of a group that tended to the wounded following the Battle of Solferino during the Austrian-Franco War.  Directly on the scene at the aftermath of the battle, Dunant witnessed first hand the devastation of war.  Inspired by the terrible events he witnessed, Dunant became instrumental in forming the Red Cross in 1863.[84]  This spirit - an awakening of the conscience regarding the horrors of war - lead to diplomatic activities and finally, the codification of the long-standing “laws and customs of war” at the Hague Conventions of 1907.[85]

            The Hague Conventions, the Geneva Conventions of 1929 and 1949, and the Additional Protocol of 1977 are significant to the thesis of this paper as these conferences represent the world body’s attempt, in what Kenneth Anderson posits may be a self-contradictory goal, “to bring humanity to the battlefield.”[86]  In terms that this paper has been addressing, these conventions were solely focused on the jus in bello and did not address the jus ad bellum.  For example, the 1907 Hague Conventions, still applicable today, addressed topics pertaining to the treatment of prisoners of war, the obligations of combatants to wear uniforms, and protections for cultural properties.[87]  Like the Hague Conventions, the four Geneva Conventions of 1949, primarily addressed conduct within war and not the jus ad bellum. Respectively, the four conventions provided protection for wounded or sick soldiers, shipwrecked sailors, prisoners of war, civilians, and civilians under occupation.[88]  The Geneva Conventions also provided for universal jurisdiction which allows any state to try an individual for certain crimes.[89]  Finally, the protocol of 1977 provides for additional protections for civilians subject to the dangers of armed conflict.[90]  Significantly, within all of these regulations, the proportionality doctrine addressed “proportion” as it pertains to harm to civilians measured against the achievement of a military goal.[91]

            While the jus in bello has been extensively articulated in the various conventions of the past century, the jus ad bellum has not achieved a similar status.  To be sure, there was a movement to deal with the ‘totality’ of war prior to World War II.  As a natural reaction to the unprecedented horrors of World War I, there was an attempt to make into a reality - “never again any war.”[92]  Beginning with the Covenant of the League of Nations in 1919 and further expressed in treaties and pacts such as the Pact of Paris (1928) and the Anti-War Treaty of Non-Aggression and Conciliation (1933), there was an active effort to abandon war.[93]  Here, attempts were made to define wars of aggression, and parties gave commitments to not resort to war in order to settle conflicts.[94]  However, these efforts were ultimately not successful as the reality of the emergence of German military aggression rendered international regulations in respect to war, at best, temporarily on hold.

Perhaps it can be seen that the Nuremberg trials following World War II picked up where these pre-war attempts at codifying the jus ad bellum left off, after all, the Nuremberg trials were prosecuting crimes of aggression in war.[95]  The emergence of the prosecution of aggressive war, however, was limited by the remit of the London Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis.[96]  In addition, this temporary foothold of the jus ad bellum in international law was secured by the obvious nature of the Nazi aggression.   

Accordingly, it was left to the newly forming United Nations to formulate a policy that would address the issue of just war.   While the U.N. did build elements of the jus ad bellum into its charter and articles, as we will see below, the application of the jus ad bellum has proved problematic for the U.N. both in respect to determining violations, and in respect to the world body’s unwillingness or inability to enforce its political mandate.

The United Nations and the Jus Ad Bellum

            The following articles of the Charter of the United Nations contain elements of the jus ad bellum.[97]  Article 4, Chapter 2 states:

            All Members shall refrain in their international relations from the threat or use of force     against the territorial integrity or political independence of any state, or in any other     manner inconsistent with the Purposes of the United Nations.[98]

 

Article 51 states in part:

            Nothing in the present Charter shall impair the inherent right of individual or collective     self-defence if an armed attack occurs against a Member of the United Nations, until the             Security Council has taken measures necessary to maintain international peace and            security. [99]

 

Following article 39, which provides that the Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression, Article 42 provides:

            Should the Security Council consider that measures provided for in Article 41 would be             inadequate or have proved to be inadequate, it may take such action . . . as may be             necessary to maintain or restore international peace and security.  Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of the             Members of the United Nations.[100]

 

It is clear from these articles that the U.N. Charter prohibits nations from resorting to force except for the purpose of self-defense.  The Charter also gives the U.N. the right to use force in the event that it determines that there is a threat to peace, breach of the peace, or an act of aggression. This determination and authority towards the use of force outside of the self-defense limitation of Article 51 is given to the Security Council.  Finally, Article 103 would seem to give extra weight to this ‘power’ – it states that the Charter is the “dominant international paradigm concerning the use of force.”[101]

            Based on the foregoing, it would appear that the Charter has defined the lawful parameters of the use of force and that the jus ad bellum issue should be put to rest.  However, as we have already seen in this analysis, a determination of the appropriate use of force is not easily managed by simple formulas, by way of laws, or in this case, by declaration of a charter.  In the case of the United Nations, the problems it has faced in dealing effectively with the issue of war and morality come from an internal failure, a failure of its heart and soul that has been expressed through its overt acts and omissions.  The U.N.’s consistent unwillingness to use power is reflective of its members’ inability to transcend self-interest.  It is also a reflection of the world body’s lack of moral cohesion.  This moral failure in turn has lead to the U.N.’s inability to develop a flexible doctrine of self-defense and preemption, particularly as this doctrine applies to the threats posed by global terrorism.

            It should be noted that, while the United Nations is not short on fault, much of the ambiguity in the laws of war and the lack of tracking for the jus ad bellum has been written into the Geneva Conventions.  These conventions form a large part of what is considered to be the customary laws of war, customary laws which have given contemporary shape to the proportionality doctrine. And as has been previously noted, this contemporary proportionality doctrine is focused solely on the jus in bello, to the exclusion of the jus ad bellum. 

In this respect, the Additional Protocol of 1977 further complicated the moral calculus of war by giving combatant status to “guerillas” hiding within the civilian population.[102]  Though the Additional Protocol is not universally considered to be customary law (the United States among other countries is not a signatory),[103] this aspect of the Protocol is symbolic of what Paul Johnson refers to as the “morally relativistic principle” that was permeating the international community in the 1970’s[104] and continues today.

             Notwithstanding the limitations posed by pre-existing war doctrines and the morally questionable tendencies expressed outside of the United Nations, it is still the U.N. that  represents the collective law of the international body; it’s failure to develop coherent law is merely symbolic of the international community’s lack of moral cohesion.  Of course, within the U.N., there can be no coherent principles based on a moral foundation when the parties involved are acting overwhelmingly from self-interest.  As to the major players of the U.N., everyone has their overriding agendas.  Kenneth Anderson writes:

            Of course, the Security Council, far from maintaining peace and security, has served as little more than a talking shop for nearly all of its history. The willingness of one of the      permanent five members to brush off the Security Council when its core national interests are threatened - as the United States and Britain just did with respect to Iraq - is a norm             of the Security Council, not a departure from it. Every permanent member has such        interests, which are not necessarily even questions of national security but are frequently             matters of ambition or even sentimental attachment. They include Tibet and Taiwan for         the Chinese; Chechnya and, in 1999, Serbia for the Russians; and Francophone Africa for          the French.[105]

 

            Further, the self-interest and decidedly questionable morality of the General Council of the United Nations - a symbol of the greater world body - has been evidenced on many occasions.  Of particular note in this respect is the U.N.’s voting actions towards the State of Israel and the council’s enthusiastic responses for the state’s enemies.  In 1975 for example, the U.N. general assembly, dominated by Soviet, Arab-Muslim and African states, gave standing ovations to a known mass murderer, Idi Amin, throughout his speech calling for Israel’s extinction.[106]  Further, shortly after the Munich Olympic murders and long before any pretense of being a participant in a peace process, Yasser Arafat, architect of the Munich murders and other overt terrorist acts, was given a seat at the general assembly.[107]

            Other examples: in 1975, in a resolution produced by Cuba, Libya, and Somalia, Zionism was declared as “racism” in an attempt to delegitimize the state of Israel.[108]  This resolution was rescinded in 1992,[109] but the hypocritical and morally suspect activities of the U.N. continued.  Syria, a country that slaughtered 20,000 of its own citizens in one month[110] and occupies Lebanon without being held accountable has been elected to the Security Council.[111]  Libya chaired the human rights committee overseeing the survey of human rights violations throughout the world.[112]  Atrocities continue in Africa, and extreme deprivations of human rights continue to flourish in Arab countries with barely a note from the U.N., while the general assembly and security council has managed to pass hundreds of resolutions condemning Israel.[113]  

            In a further indication of its lack of moral ‘backbone,’ the United Nations has failed on numerous occasions to act or react in response to crisis situations in order to prevent wars or foreseeable atrocities.  Specifically, the failure of U.N. troops in both Rwanda and Bosnia to take any action to stop mass killings in progress has been well documented.[114]  The U.N. also failed to take any action to stop massacres in Sudan, Somalia, Republic of the Congo, other areas in Africa, and the genocide committed by the Khmer Rouge in Cambodia.  Another example occurred just prior to the 1967 Israeli-Arab war.  Then Egyptian president Gamel Abdul Nasser, threatening to “drive the Jews into the sea” and amassing troops along the Egyptian Israeli border, demanded that the U.N. buffer troops leave the Sinai.  The U.N. promptly acceded.[115]  Further, in a still unresolved incident along the Lebanon border in 1994, the U.N. failed to provide Israel with U.N. videos that had captured an incident involving the kidnapping and killing of four Israeli soldiers by Hezbollah.  The evidence acquired at the scene by the Israelis indicated the presence of U.N. peacekeepers during the incident and the ostensibly surreptitious use of U.N. clothing and equipment to facilitate the kidnapping.[116]

            It could be argued that the U.N.’s failures to take action, as described above, are not moral failures, but are failures of power.  Along these lines, it could also be argued that the U.N. cannot take effective action without the active support and participation of the United States.  As to the first argument, the answer is simple, for what is action, but the ultimate expression of belief and values?  And as true as the second argument may be regarding the necessity for the participation of the United States and the argument’s implication of American moral culpability in some of the U.N. failures, this recognition of the primacy of the U.S. role raises additional important questions. 

            The role of the United States in world affairs will be an important part of the remaining discussion as this paper attempts to steer a course towards a renewal of the jus ad bellum in international law.  However, before discussing the role of the U.S. further, an examination of the important consequences of the demise of the jus ad bellum in the international law body today is warranted.  The most important consequence of this demise, which will be discussed below, has been the failure of the U.N. and the world community to adequately address the issue of terrorism and counter-terrorism, and the related doctrines of self-defense and preemption.

The Doctrines of Self-defense and Preemption in a Changing World

            In 1837, an incident involving the sinking of an American ship by the British set in motion political maneuverings that gave birth to the Caroline Doctrine, a doctrine that became the standard customary international law regarding self-defense.[117]  The author, then U.S. Secretary of State Daniel Webster, stated that self-defense can be exercised when “the necessity of self-defense is instant, overwhelming, [and] leaving no choice of means and no moment for deliberation.”[118]  Significantly, this three-prong requirement of necessity, proportionality, and immediacy became embodied in Article 51 of the U.N. Charter.  In distinction however, in Article 51, the Caroline Doctrines ‘immediacy’ is replaced with the more clearly defined “armed attack.”[119]

            In today’s world, the efficacy of laws pertaining to self-defense and preemption is crucial.  In this respect, there have been debates over whether Article 51 would encompass the right of anticipatory self-defense.  Regardless of the outcome of this argument,[120] the Bush Doctrine of unilateral preemptive self-defense presents a hardball reminder for what is at stake.  In a world saturated with terrorism, this phenomenon unanswered can create unspeakable havoc.  On the other hand, preemptive action runs the risk of tragically missing the target, literally and figuratively. 

            In light of the great problem of terrorism and the need for an effective doctrine of self-defense and preemption, the Bush doctrine calls to mind the historical reality that regulations regarding war have tended to follow the offenses committed from specific conflicts.  In other words, the law of war has often been inadequate to deal with the present realities.  (In this respect, the 1905 Russo-Japanese War preceded the Geneva and Hague convention of 1906 and 1907; the events of World War I preceded the 1925 Gas Protocol and Geneva Convention of 1929; and, the Geneva Convention and Nuremberg trials followed the terrible events of World War II.)[121]  The Bush Doctrine is testing this proposition once again in light of the present world.  It posits that there is a new war against terrorism and the stakes have changed so that the parameters of anticipatory self-defense must be examined anew.  In this writer’s view there is no question there needs to be a re-examination of terrorism and the proper response.  The questions remain as to how far preemption can be ‘stretched’ and as to what conduct will be allowable in light of a perceived threat. 

            The holding and reasoning of the United States Supreme Court in Maine v. Taylor[122] sheds some light on the problem of defining the borders of self-defense and preemption in relation to a perceived threat.  In this case, the court faced the preemptive action issue in the context of the dormant commerce clause.  Here, the court was asked to assess whether the State of Maine had the right to bar the importation of all bait fish which the state claimed would contaminate their lakes.  The Supreme Court, in holding for the state, argued that “the constitutional principles underlying the Commerce Clause cannot be read as requiring the State of Maine to sit idly by and wait until potentially irreversible environmental damage has occurred . . .” [123]  It also argued that the urgency of the matter precluded Maine from waiting until “the scientific community agrees on what diseased organisms are or are not dangerous before it acts to avoid such consequences.” [124]

            In relation to the issue of terrorism, the above case speaks clearly – it states that some dangers are so grave, so “irreversible,” 1) that action must be taken before the damage occurs, and, 2) that it is not possible to wait until a consensus has been reached as to what action is proper.  In the context of armed force and decisions involving preemptive acts of self-defense outside the scope of the U.N. Charter, the stakes are higher than those presented in the Maine v. Taylor case.   However, the stakes are higher on both sides of the playing field, that is, from the side of preemptive action or, from the side of a failure to act preemptively.  Assuming an assessment is possible, if a preemptive strike has not been required, the result can be the resort to unnecessary war and the tragic loss of life.  If a preemptive strike was required and not executed, the results could be equally devastating and potentially greater because in the present world of international terrorism, there are potential irreversibles that include global chaos.  In this regard,  the nuclear standoff between the Soviet Union and the United States pales in comparison with the potential destructive capabilities of extremist groups who will destroy without compunction, and who hold that it is a great and inspired act to kill Americans, Westerners, and Jews.[125]  This is the terrible predicament in which the world finds itself and thus compels it to actively confront the issues of terrorism and self-defense.

            In respect to the terrorism issue and the related issues of self-defense and preemption, there are two barriers to the clearer development of international laws. The first barrier has been alluded to previously – that is, the jurisdictional matter of the status of combatants and non-combatants as delineated in international laws and treaties.  As previously mentioned, the Additional Protocol of 1977 provides a status for “guerillas” hiding among the civilian populations that creates additional risks for civilians.[126]  This attempt to deal with asymmetrical warfare also has effectively allowed and encouraged the ‘weaker’ party to resort to illegal means of fighting war (as they are not signatories to treaties or subject to the same state constraints), while the state party is subject to legal, as well as its own moral constraints.[127]  A full analysis of these jurisdictional matters is beyond the scope of this paper.  However, while these jurisdictional legal matters will need to be addressed,[128] this can only happen when the world community is able to break through the second barrier to dealing with terrorism.

            This second barrier, which has resulted in the failure of the world to develop a robust posture against terrorism, is the paralyzing effect of moral relativism.[129]  The world community has been unable to take a stand precisely because of an unwillingness to make moral distinctions, the moral distinctions that are required for adherence to the just ad bellum.  Making distinctions in the context of terrorism is important not only because of an existential imperative, but also because the issue of terrorism brings forth the moral distinctions that embody the just war doctrine and therefore provides an opportunity for a renewal.  A renewal of the concept of the jus ad bellum in confronting terrorism would provide an opportunity to create a moral foundation for the resort to force.  A renewal of the doctrine would also provide an opportunity for the world to come together in light of the seemingly despicable and egregious nature of terrorism and transcend the self-interest and lack of moral clarity that has so often predominated.  The question remains: how can the world arrive at this unified view?

Hostis Humani Generis

            The doctrine that denotes precise moral distinctions, and that can provide a foundation for the world community to address the issue of terrorism and its appropriate response is hostis humani generis (“enemy of the human race”).  This doctrine, which was developed in the 18th century to deal with piracy on the sea, held that some acts were so egregious, so universally condemnable, that the perpetrators were to be considered “universally culpable.”[130]  Accordingly, it seems clear that terrorist acts should be viewed in light of this doctrine.  As expressed in the principle of jus cogens, categorizing terrorist acts as falling under hostis humani generis would be a “fundamental legal principle that would trump or preempt any countervailing [principle].”[131]  This categorization would give impetus to an effective change in the doctrine of self-defense as well as the jurisdictional modifications that would be required to enable this change.[132]

            That terrorism should be condemnable on a universal level would appear to be a clear assumption, but nevertheless, the world has had a difficult time with this seemingly easy task.  The creed of the moral relativist, ‘one’s person’s terrorism is another person’s freedom fighter,’[133] is in good part responsible for and represents the most complex of the ‘reasons’ for this failure.  For embodied in this expression, which often masks an unwillingness to deal with one’s own moral responsibilities, are also sophisticated political questions.  The questions can be posed as follows:  What if a group has ‘legitimate’ claims of being oppressed, discriminated against, or in the most extreme case, a claim of being attacked physically?  Would an act of violence on the part of one of these oppressed groups be any different than an act of an entity in self-defense?  What if a case could be made that the only way for a group to prevent oppression, discrimination, or being attacked further was for this group to commit terrorist acts against civilians of the ‘attacking’ entity?

            There are two responses that can neutralize any intractability that the above questions create.  First, on a general level, within these questions there lie presumptions that beg their own questions.  In other words, when we are asking the question of how to distinguish a terrorist from a freedom fighter and getting an answer that raises the issues of oppression, discrimination, or even self-defense, the person raising these issues must also define his terms and support his case.  In the end, we are left with an argument and counter argument and no victor.  In the absence of an answer - a way out of this labyrinth - we are left with any ‘aggrieved’ party effectively being given free reign to commit violent acts.  In this rather unfortunate relativistic world, we are left with countless groups with grievances and a potentially lethal axe to grind.  Assuming the legitimacy of any of the claims of Islamists, Palestinians, or other groups resorting to purposeful violence on civilians, then what about the rights of American Indians, Mexicans, the Jews expelled from Arab countries, oppressed Christians in Arab countries, American blacks, the Basques, or for that matter, unions, gay rights group, environmentalists, or on the other end of the spectrum, white supremacist groups?  Opening the door to a justification for violence against civilians is opening a door that might not be closeable.

            The second response to the questions that give rise to a rationalizing of violent civilian directed acts is perhaps more satisfying and reassuring.  Fortunately, much of what exists in the world today referred to as ‘terrorism’ is easy to categorize and therefore is easier to place judgment upon.  Broadly speaking, what makes present day terrorism a target for judgment is the extent to which these violent acts upon civilians exceed the bounds of acceptable human behavior.  These acts ‘prima facie’ fall into a category whereby the perpetrators should be considered hostis humani generic.  A question sure to follow is:  what allows us to label certain behavior “beyond the pale?”  Also, doesn’t this assessment bring us back into the relativist’s labyrinth? 

The answer to these questions provides a key component of the jus ad bellum.  Humans are capable of making moral distinctions.  We have done it before and we have known it when we see it: the Nazi death camps, the Cambodian killing fields, the machete slaughters in Rwanda, the genocides in Yugoslavia. Accordingly, is the terrorism of today - the willful indiscriminate slaughter of non-combatant men, women, and children - different at face value than these atrocities?  Are we required to resort to a numbers game to make the distinction?

            Finally, in order to be able to call violent acts perpetrated upon civilians ‘evil’ with any sense of moral certitude, we are still required to face a perplexing issue posed earlier in this paper - that is, the seemingly tenuous moral distinction annunciated in the double effect doctrine.  (To review: the double effect theory in effect condemns the purposeful killing of civilians, yet sanctions the killing of civilians within a military action where the planners know that as part of the action, civilians will be killed.)[134]  This theory presents a problem not so much in that it takes away from our certitude about the evil of an act of purposeful violence against civilians.  The challenge lies in that we are forced to justify the commission of violent action with a military purpose, not intended to produce, but that is assured to produce civilian deaths.

            The proponents of the double effect theory argue that this theory represents an unavoidable compromise (short of complete pacifism) in the face of the reality of armed conflict.[135]  Stated simply, civilian deaths in armed conflict are unavoidable and therefore some actions necessarily involve a terrible calculation of measuring the probability and number of deaths on one side against the probability of saving lives or achieving an overall good.[136]  Of course, these situations can render equations that may appear insolvable and raise again the difficult assessment of what constitutes an overall good.  One such terrible equation facing the United States in World War II resulted in the decision to use atomic weapons against Japan and its civilian population. 

            The United States decision to use atomic weaponry against civilian populations is relevant to this discussion because it embodies many of the challenges presented in the prospects for a renewal of the jus ad bellum doctrine.  In this situation, there was a state action specifically targeting civilians in seeming contravention of the double effect doctrine.  Accordingly, we are required to answer the question: what sets apart this action from a terrorist’s act which also may have an ascertainable goal?  Also, since the result of an act with such terrible consequences was not assured, another question inevitably arises: how does the probability of achieving a goal factors into an assessment of right action?             

The answer to the above questions can be handled in toti using the just war doctrine’s “overall good” element.  First, the United States made a calculation that these military strikes would reduce the total number of U.S. soldiers as well as Japanese soldiers and civilians.[137]  This action, though not directed at a purely military target, can be seen as having been directed to a specific military objective of ending the war as quickly and with as few deaths as possible.  Here, there seems have been the intent of “overall good,” that of minimizing death.

            In addition, in response to questions regarding the morality of using atomic weaponry, there has been an argument raised that because of the “total war” philosophy of the Japanese and German leaders, the magnitude of the Allied response during World War II was warranted.[138]  This argument also incorporates the “overall good” element and provides a real world view of the interconnectedness of the jus in bello and jus ad bellum.  To illustrate: most recognize the universally condemnable aggressive actions of the axis powers during World War II and are prone to overlook the mass killings committed by the Allies.[139]  After the war, the means employed by the allies during the conflict were largely ignored not only because of ‘victor’s justice.’  There is a general consensus that the Allies did what needed to be done in the face of not only military necessity, but in the face of the “overall bad” that would result from a victory of the axis powers.  The foregoing is a specific example of a just cause which effectively subsumes the issue of the means of warfare.  Here, the jus in bello evaluation can only be determined by an evaluation of the jus ad bellum.  Accordingly, this example shows the necessity of the jus ad bellum as an evaluative tool of international law.

            As to the question of what sets apart Hiroshima or the bombings of Dresden from a terrorist’s act which has an ascertainable goal, the answer sits squarely in the sphere of examining what this ascertainable goal is in light of an “overall good.”  For this analysis, this writer will have to charter into what some see as the politically incorrect territory of comparing group values.  Perhaps however, very little argument needs to be made as examples will suffice.  The default of course is easy - the Nazi’s goal, their vision of society is practically unimaginable in its implications for humanity.  Placing the vision of this Nazi society against the American society speaks for itself.  Similarly, the vision radical Islamists espouse is, if not a world in complete submission to Islam, a world that is considered to be replete with infidels and therefore is subject to jihad in the form of the “gleeful slaughter” of innocents.[140]  It should require no argument or distracting foray into relativism to intuitively acknowledge the vast difference between the values of this type of society and our own imperfect experiment.[141]

            Finally, the unknowable result the use of atomic weapons would have on the war with Japan reflects the wider issue of the complexity that is involved in any war decision making.  In this regard, it has been noted that the bombing of Hiroshima was used primarily as a display of American power and particularly as a warning to the Soviet Union.[142]  Assuming this to be true, it is arguable that the intended ancillary effect of the bombing was to prevent future wars with a Soviet regime that had already demonstrated its ferocity.[143]  Here again, it was very difficult to prospectively determine the ultimate consequence of this war decision - whether an ultimate good would be achieved by a particular action.  What is clear, however, is that these grave decisions involving a calculation of the potentially devastating consequences for action or inaction, are faced over and over by war decision makers, or at least by those decision makers  proceeding with any moral sensitivity. 

            Perhaps it is because of the complexities and dangers involved in war decision making that, for the most part, the only crimes of war that have been prosecuted historically are those that have “shocked the conscience.”  Certainly, it is because of these unknowable consequences and ultimate moral implications of armed force that we are left with those who argue for war, those who argue against war, and those who are unsure.  In the meanwhile, there is hope, for in the midst of this uncertainty, we all can agree on Rwanda, the Holocaust, and the killing fields of the Khmer Rouge.  But nevertheless, the question still needs to be asked – that is, will it require the force of numbers to prompt a universal revulsion towards the acts of radical Islamic terrorism? 

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            After the terrorism which had mostly been confined to the Middle East and Arab countries struck the United States on September 11, 2001, the U.S. launched armed actions in Afghanistan and Iraq.  While this inquiry has thus far focused on the just cause element of the just war doctrine, the actions of the United States in response to 9/11 provide an opportunity to examine two additional basic moral conditions of the just war doctrine: “right intention” in going to war and “competent authorities” sanctioning the war.  

Intent

            In light of the previous discussion pertaining to the often unknowable consequences of war action and the range of opinions as to what is the proper use of armed force, an examination of the intent of the actors in armed conflict can serve as a useful default measure.  Just as we have already seen the difficulties inherent in the attempt to answer the question of what is just cause, determining rightful intent in the context of armed conflict may pose no less difficult questions.  Still, this examination is useful because an analysis of what constitutes rightful intention can provide additional perspective on what constitutes a just cause.

            Biblical and religious sources have addressed the issue of “right intention.”  As espoused by St. Aquinas in the just war doctrine, right intention means being in the pursuit of “Charity” or “Justice.”[144]  To this writer, this specification remains unsatisfying, for here, as much as “charity” evokes the noble goal of aiding those in peril, the concept is also limited both by its vagueness and its inability to address how far this charity should extend.  In addition, the “pursuit of justice” prong is problematic in that it can evoke images of “oppressed” groups, in their manner of pursuing “justice,” committing atrocities against civilians.  As we have already seen, a rationalization of violence by self-proclaimed oppressed groups opens the door to unmitigable bloodshed.         

            Perhaps then, more helpful towards a practical assessment of right intention is the injunction from proverbs to “rejoice not when your enemy falls and let not thine heart be glad when he stumbles . . .”[145]  This injunction is not a prohibition against celebrating victory as much as it is a call to remember that the victory was achieved through the deaths of other human beings.[146]  Unfortunately, we are too often reminded of the contravention of this verse by the viscerally disturbing images of present-day terrorists invoking the ecstatic pleasure of killing and the terrible images of rapturous crowds mutilating bodies.[147]  To be sure, while there may be a fine line between celebrating victory and celebrating the death that may have brought about this victory (think Hitler or Osama Bin Laden), there is no fine line between celebrating the death of a tyrant and enthusiastically condoning and participating in the deaths of innocent civilians. 

            Certainly, the radically different response to killing in different societies is a reflection of the nature of a society and its values, a topic addressed earlier in the discussion on just cause.[148]  The manner in which societies respond to killing may also help to bolster the legitimacy of the “double effect” theory, a topic that appeared troubling at first glance.[149]  For here, we can intuitively discern the clearly vast difference between those who, with moral regret, accept the collateral killing of civilians, and those whose primary intent is to kill civilians, and in doing so, relish the experience.[150]

             St. Aquinas provided an additional basis for determining right intention in his reiteration of the Old Testament verse of nations turning their swords into plough shares.[151]  St. Aquinas’s formulation is simple - he stated that war must be entered into with the view of arriving at peace.[152]  Here again, there may be something unsatisfying and vague about this formulation of intent.  For might it be possible for a group to commit violent acts in order to arrive at peace, but only after slaughtering their enemy and oppressing their women and slaves?  On the other hand, the post war acts of the victors can indicate whether their intentions were to arrive at peace.  In this regard, the actions of the United States following World War II clearly showed that its intention was to arrive at peace.  Here, the defeat of the axis powers was followed by the Marshall plan, described by the Israeli writer Amos Oz as “the most altruistic act in history.”[153]  In a more contemporary setting, the actions of the United States in Iraq have been decried as merely being “blood for oil.”[154]  However, the thousands of rebuilding projects as well as the respect that journalists have shown for at least the intent of the efforts by most of the actors on the ground belie the notion that there is not a noble goal underlying the actions in Iraq.[155]  

            Still, having raised this issue, stark questions remain about the action in Iraq, and while it is far beyond the scope of this paper to answer these questions, it is well within the scope to raise them as they pertain to the issue of intent.  First, if President Bush directed action against Iraq solely to avenge the attempt on his father’s life or to fill the pockets of his friends in the oil business, he would clearly be acting immorally.  Now assuming the likelihood of a mix of motives for attacking Iraq, including, removing weapons of mass destruction, creating overall stability in the Middle East, sending a message to other countries regarding the willingness of the U.S. to act against terrorist supporting states, and, in addition, oil and the economic and interests of the United States, the questions take on a different nuance.  Indeed, the failure to find weapons of mass destruction and the resultant questioning of the administration’s motives does not negate the other important concerns raised above.   

            Nevertheless, other questions remain: for example, what if the United States’ assessment regarding the war proves to be wrong and instead of creating stability in the Middle East and attenuating the effect of global terrorism, the war creates the opposite result?  Of course, the contrary question must be asked - what if the war does have a substantially positive impact on the problem of terrorism and the failed course of the Arab states?  Does the answer to either of these questions speak to the morality of the war?  It would appear that, since moral action cannot be assessed here by an answer that is yet to be revealed, we will need to look at intent to begin to make a moral assessment. 

            And of course, there are yet bigger questions to answer such as: can we ultimately determine whether the war in Iraq is moral?  In order to answer this question, we would be required to ask whether the taking of innocent lives in order to save other lives or in order to possibly make ourselves safer in the future is right action.  This writer, for one, has difficulty perceiving clear answers to these questions.  Again, the intent of a morally sensitive leader when facing unclear choices at least provides a useful centering point for assessing what is right action, particularly when the leader’s choices are framed by the potential for an immoral use of power or an immoral failure to use power.[156]

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            In the face of the often unknowable consequences of a resort to war, and when not presented with the visceral moral certainty provided by a Holocaust or Rwanda, the world community has most often failed to arrive at a consensus as to what constitutes right action.  Accordingly, in light of this uncertainty, a final question remains as to who will decide what action should be taken when this action may have global consequences.  Further, along this line we are required to ask who should then afterward be the judge of the correctness of this action.    These questions lay the foundation for an examination of the final element of the just war doctrine: “competent authority.”

Competent Authority

            The just war doctrine, in addition to requiring just cause and rightful intention, provides that a war must be sanctioned by a legitimate authority.[157]  This authority is delegated to the head of a sovereign political entity who is not allowed to act from his or her own prerogative, he or she must be acting for the “common good.”[158]  The theological principle underlying this doctrine is that authority comes from God and that no man has authority over another, particularly, the authority to kill.[159]  In other words, the state’s power is given by “divine right,” and is not a power that is derived from pacts between states.[160]  Moreover, the competent authority prong holds that, just as a state may punish those who act criminally within the state, a state may also have the authority to punish other states that are acting in a breach of justice.[161]  According to the doctrine, without a state’s power to act as a judge and the right to punish, there would be no way to achieve a peaceful world.[162]  Finally, this authority given a state in order to obtain a peaceful world is based on the premise that, within the world, there is no higher authority than the state and therefore by default, the state is the entity which must be accorded the role of judge.[163] 

            On the surface at least, this idea flies in the face of those who would argue for multilateral actions sanctioned by the United Nations.  In the view of the multilateralist, however, the United Nations is the highest authority and therefore should be accorded the role of determining rightful action towards a more peaceful world.[164]  While clearly, the creators of the just war doctrine did not have in mind a United Nations when they spoke of state authority, they did have in mind two precepts that may help to frame the problem – the concepts of  “highest authority” and action for the “common good.”[165]  In these terms, the argument can be simplified for today’s debate: who is the highest authority and who is acting for the common good? 

            As to the highest authority debate, it could be argued that by definition there can be no higher authority than a world body.  However, the idea of a world authority still appears to be a romantic notion, a romantic notion that, while ringing poetic, has yet to prove itself in the world.  For in actuality, the United Nations, until it achieves a greater sense of altruistic enlightenment, will remain no more than a concoction of competing interests who at times are forced to conceal shame in rightful action.[166]  In addition, the idea of a highest authority implies an ability to take action and it is apparent that in this respect, the United States is the default authority.  Certainly, while power does not by itself make right, there is some irony in the world community’s explicit reliance on the United States, even to the extent of parceling blaming on the U.S. for inaction, while claiming that U.S. actions by themselves do not have legitimate authority without the sanction of the U.N.[167]

            As the highest authority question is somewhat open ended and the debate continues,  perhaps this question is better served by an assessment of which entity will be acting most in the interests of the common good.  This idea is supported by the notion of the “legitimate authority” prong that a “divine right” is given only to an entity acting for the “common good.”[168]  In this light, the propensity of the United Nations to reflect the self-interests of its member states does not provide any assurance that this body has developed the capacity to act as a whole for the common good.  This is not to disparage the humanitarian work of which the U.N. and other world bodies are capable.  However, as previously discussed, the U.N. has failed to effectively address the most pressing existential danger facing the world community - global terrorism - and distressingly, has failed to express a moral repugnancy at the killing of civilians used as terrorism’s means.  Arguably, this invalidates the right of this community, at least in the present, to claim itself as the “competent authority” (the upholder of the common good). 

                As stated previously, the United States can be seen, by default of its power, to at least to some degree constitute the highest authority.  It could also be argued that the U.S., as upholder of the “common good” can lay claim to being the “competent authority.”  Those who support this idea would point to America’s stated ideals, constitution, and historical actions.[169]  Of course, many will argue against this assessment and note that an examination of America’s historical actions will reveal that the U.S. is not without its mistakes and alliances with injustice.

            In this respect, Jacob Needleman, in his book “the American Soul, Rediscovering the Wisdom of the Founders,” embodies both these views, as he presents an impassioned plea for a remembrance of the still present ideal of America, while simultaneously sounding a somber warning tone.[170]  He first proposes that “the deeper hope of America [is] its vision of what humanity is and can become – individually and in community.”[171]  He offers that America represents a symbol, as “cities and nations . . . incline their ear and eye now toward the thing called democracy . . . ,”[172] but then cautions, “to the extent . . . the world still places its hope in America, the world may die with us.”[173]  His cautionary note is predicated on a perception of two Americas, one that feeds the soul and the other that projects materialism and has an inclination to run slipshod over other cultures.[174]  In Needleman’s view, the world will absorb the America that represents a “higher” calling - a “deep inner law” - but will “dissolve an empty America.”[175]  In sum, Needleman’s book offers the idea of America as a salvation, yet also makes clear the great and encompassing responsibility this places upon the country.

            While Needleman’s concerns are particularly apt when, as we see today, the idea of America is manifested by way of military actions, the circumspection Needleman projects is directed to all parties.  Regardless of whether one holds Needleman’s view of America as holding out a hope for the rest of the world, America is still the default power and its actions are of obvious import.  It is therefore important that the perceptions of those who decry America and those who see America as a force for good are cleansed with an understanding of what underlies each other’s respective positions.  First, there are those in the United States, this writer included, who are extremely distrustful of what we perceive as the world community’s general moral bankruptcy,[176] and what we see as the sometimes overwrought and hysterical moral assessments made by the ‘left’ that the United States is evil personified.  This view of the left is particularly troubling in light of the real evil that exists in the world – the gleeful and intentional slaughter of civilians and the desire to wreck havoc on Western society.  On the other hand, the world community is expressing legitimate concerns about a war in Iraq that has yet to play out, whose outcome is fraught with dangerous possibilities, and whose justification was questioned prospectively and now retrospectively.  This community also perceives an arrogance displayed by America’s use of power, now and throughout history, and is particularly offended by its perception that the U.S. is not interested in diplomacy as a tool of international policy.

            Accordingly, in order to bridge this gap and to create a more unified world community, what is required is a nuanced understanding of the issues that lie beneath the surface.  In this line, it is no accident that this paper’s course has tracked through questions that arise from questions.  Though in large part many of these questions are difficult to answer, they should nevertheless be part of a dialogue in order to develop a more coherent world view in the face of the danger of  radical Islamic terrorism.  It is this writer’s belief that the less people hold to crystallized positions and are willing to face difficult realities, the less distrust will exist.  It is this distrust which in large part has driven wedges, and as a result, created defensive postures that serve no purpose when it comes to seeking a rightful course of action in this dangerous world.   

Conclusion

            The trajectory of this paper was launched by the startling means and ends dilemma presented in Dostoyevsky’s “The Brothers Karamazov.”  Dostoyevsky’s dilemma cannot help but awaken the spirit to a visceral sense of war’s terrible consequences.  We also saw, however, that short of pacifism, acts of violence within the world political sphere are sometimes unavoidable and as a result, we are left with the reality of war’s terrible consequences - the death of innocents.  Accordingly, this paper identified the existential threat of global terrorism, a threat that cannot be ignored and which forces us to confront the difficult moral choices posed in battling an enemy that hides among civilians.  In short, this threat presents the challenge of identifying the parameters of self-defense and the scope of preemption in light of the brutal consequences of a resort to armed force.

            This paper also proposed that, in tandem with an over-focus on the jus in bello, the proportionality doctrine of the just war doctrine has given way to a moral relativism.  This, in turn, has created a tendency for the world community to condemn acts that may be justifiable and to refuse to condemn or take steps against perpetrators of purposeful civilian slaughter.  This moral relativism has tragically encouraged further acts of terror by the tacit acceptance provided by the refrain, “one man’s terrorist . . .”  This general failure to recognize the egregious nature of terrorism has created a polarization between much of the world community on one side, and, on the other, those countries that are most actively confronting the issue.  Before the world comes together and speaks with one voice on the issue of terrorism, those willing to or forced to face the issue will have no choice but to continue to confront the threat.  For lack of a proper authority who can speak for the “common good,” they alone will have to determine whether their actions are effectuated with right intention and a just cause.

 

 

 

 

 


[1] E-mail from Yosef Y. Jacobson, Where is G-d When It Hurts? (Jan. 15, 2004) quoting Fyodor Dostoyevsky, The Brothers Karamazov 288 (David Magarshack trans., Penguin 1958) (1880).

[2] Judith Gail Gardham, Proportionality and Force in International Law, 87 A.J.I.L. 391, 391 (1993).

[3] For the purpose of this essay, the terms “war” and “armed force” will be used interchangeably.  Although there is a legal distinction in international law between the two terms, the distinction is not important to the focus of this paper and will be addressed only peripherally.

[4] Donald A. Wells, War Crimes and Laws of War 5 (1984). 

 

[5] Id.

[6] Smith, supra,  note 2 at 392.

[7] See Kenneth Anderson, Who Owns the Rules of War, Crimes of War Project, (April 23, 2003) at http://crimesofwar.org/special/Iraq/news-iraq6.htmlcrimes of war.org/special/Iraq/news-iraq6.html).

[8] Leslie C. Green , Essays on Modern Law of War 74  (1999).    

[9] Andrew Fialla, Essays in Philosophy, Vol. 13, (April 2002) at http://www.humboldt.edu/~essays/fial.html.

[10] Thomas Nagel, Utilitarianism and the Rules of War, in War and Moral Responsibility 10 (Marshall Cohen,

Thomas Nagel, and Thomas Scanlon, eds., 1974).

[11] R.B. Brandt, War and Massacre, in War and Moral Responsibility 26 (Marshall Cohen, Thomas Nagel, and Thomas Scanlon, eds., 1974).

[12] Id.  at 36.

[13] See Brandt, supra, note 11 at 37.

[14] Nagle, supra, note 10 at 6.

[15] Id. at 10.

[16] See id.

[17] Anderson, supra, note 7.

[18] See Green, supra, note 8 at 19.

[19] Michael Walzer, World War II:  Why Was This War Different, in War and Moral Responsibility 100 (Marshall Cohen, Thomas Nagel, and Thomas Scanlon eds., 1974).

 

[20] Rabbi Billy Dreskin, Jewish Law and the Concept of War  (citing Talmud Sanhedrin 37a) available at http://www.shaareyzedek.com/Leadership/Lerner%20--%20Jewish%20Law%20Concept%20of%20War%20--%20Dreskin.040303.html.

[21] Id.

[22] Leviticus 19:16.

[23] Maimonides’ Mishneh Torah, Hilchot Rotzeiach 1:6ff, supra, note 19.

[24] Book of Joshua, Deuteronomy 7: 1-2.

[25] Deuteronomy 20:10-14.  Also, see Jericho, Maimonides’ Hilcnhot Melachim 6:1 “...[O]ne does not wage war with anyone in the world until one seeks peace with him.  This is true both of authorized wars (milchemet r’shut) and obligatory wars (milchemet chovah), as it says [in the Bible] “when you approach a city to wage war, you must first call out for peace.” Quoted in Dreskin, supra, note 20.

[26] See Rene van der Wolf and Willem-Jan van der Wolf (eds.), Laws of War and International Law; Volume I, 9 

(2002) citing Ezra 39:15, Joshua 8:29, Samuel 15:32-33, Detueronomy 20:10,14.

[27] Proverbs 24:17-18.

[28] Isaiah 2:4.

[29] See Rabbi Yakov Menken, Lifeline – Toldos (quoting from the Sages in the Medrash) available at http://www.torah.org/learning/lifeline/5761/toldos.html?print=1.

[30] E-mail from Rabbi Dov Greenberg, Following the Example of Moses (Jan. 30, 2004).

[31] Yossi Klein Halevi, Israel’s Gift to a Terrorized World, The Jerusalem Post at 21 (Jan., 2004).

[32] See Arthur Neville Chamberlain (1869-1940), Historic Figures at http://www.bbc.co.uk/history_figures/ chamberlain_ arthur_neville.shtml.

[33] Luke 6:29.

[34] Matthew 10:34.

[35] Matthew 26:52.

[36] Luke 14:33.

[37] Based on conversation with fellow law student and active Christian Mark Braunlich.

[38] Gregory Rummo, Jesus Would Have Bombed Baghdad (Apr. 16, 2003) at http://www.writers-voice.com/FGHIJ/G/Gregory_J_Rummo_jesus_would_have_bombed_baghdad.htm.

[39] See Rev. Fr. Juan Carlos Isara, Just War, Catholic Doctrine and Some Modern Problem, The Angelus (July 2002, Volume XXV, Number 7) available at http://www.sspx.ca/Angelus/2002_July/JustWar.htm#5B.

[40] See The Theory of the Just War (BBC) at http://www.bbc.co.uk/religion.ethics/war/jwhistory.shtml.

[41] See supra, note 40.

[42] Isara, supra,  note 39.

[43] Id. Also, it has been noted that in certain circumstances, failure on the issue of “probability of success” could be excepted as a necessary component of a just war. See id.

[44] Id.

[45] See Gardham, supra, note 2 at 397.

[46] See Isara, supra, note 39.

[47] Id.

[48] Id.

[49] Id.

[50] See Wells, supra, note 4 at 5, citing St. Ambrose.

[51] See Rene van der Wolf and Willem-Jan van der Wolf (eds.), Laws of International Law; Volume I, p. 15 (2002).

[52] See id.

[53] See Yehuda Melzer, Concepts of War 13 (1975).

[54] See generally William Greene, The Miracle of Holland at http://www.zum.de/whkmla/period.absolut/grotius.html.

[55] Id.

[56] Id.

[57] See Green, supra, note 8 at 16.

[58] See id.

[59] See Wolf, supra, note 51 at 14.

[60] See Melzer, supra, note 53 at 13.

[61] See Emerich D. Vattel, Exceprts Taken from The Law of Nations or Principles of the Law of Nature at http://www.geocities.com/CapitolHill/7947/Vattel.html. 

[62] See generally, Green, supra, note 8 at 17.

[63] See id.

[64] See id.

[65] See supra, note 61.

[66] See generally, Green, supra, note 8 at 17.  See also, Wells, supra, note 4 at 17. 

[67] See supra, note 61.

[68] See Wolf,  supra, note 51 at 17.

[69] Columbia Encyclopedia Sixth Edition (2001) citing P.P. Remec, The Position of the Individual in International Law (1960).  See also, Green, supra, note 8 at 469.

[70] See Wells, supra, note 4 at 15.

[71] See Green, supra, note 8 at 469.

[72] See Wolf, supra, note 51 at 17.

[73] See Wells, supra, note 4 at 54.

[74]  See id.

[75] See Green, supra, note 8 at 59-60. 

[76] See Wells, supra, note 4 at 6, quoting Joseph Kunz from The Changing Laws of Nations (1968).

[77] See The Theory of the Just War (BBC) at http://www.bbc.co.uk/religion.ethics/war/jwhistory.shtml (quoting Grotius: “I saw in the whole Christian world a license of fighting at which even barbarous nations might blush.”)

[78] Quoted in Melzer, supra, note 53 at 11.

[79] See Wells, infra, note 4 at 5.

[80] Michael N. Shmitt, The Principle of Discrimination in 21st Century Warfare, 2 Yale H.R. & Dev. L.J. 143, 146 (1999).

[81] See id.

[82] See generally, Anderson, supra, note 7.

[83] Id.

[84] See Green, supra, note 8 at 59.

[85] See Anderson, supra, note 7.

[86] Id.

[87] See Randy W. Stone, Protecting Civilians During Operation Allied Force: The Enduring Importance of the Proportional Response and Nato’s Use of Armed Force in Kosovo, 50 Cath. U.L. Rev 501, 508 (2001).

[88] See Anderson, supra, note 7.

[89] See Francoise Hampson, Jurisdiction, Universal, Crimes of War at  http://www.crimesofwar.org/ thebook / jurisdiction-universal.html.

[90] See Stone, supra, note 87 at 509.

[91] See Gardham, supra, note 2 at 406.

[92] See Wolf, supra, note 51 at 245.

[93] Id. at 253.

[94] Id.  at 250. 

[95] See Wells, supra, note 4 at 72.

[96] Green, supra, note 8 at 71.

[97] See Gardham, supra, note 2 at 391.  See also Brenda L. Godfrey, Authorization to Kill Terrorist Leaders and Those Who Harbor Them: An International Analysis of Defensive Assassination, 4 San Diego Int’l L.J. 491, 500 (2003).

[98] See The Charter of the United Nations available at http://un.org/aboutun/charter.

[99] Id.

[100] Id.

[101] Id. 

[102] Kenneth Anderson notes the negative effect of this “absolutist human rights ideology.” He argues that the result of these regulations is to place a burden on the forces prone to obey the regulations and to leave the forces hiding and attacking from within the population free to violate the laws. See Anderson, supra, note 7.  Some solutions have been proposed for dealing with this dilemma including changing the jurisdictional aspects of international law in respect to war.  This jurisdictional matter will be addressed below in more depth.

[103] See Luis Rene Beres, Palestinian Perfidy, Israeli Counter-terrorism, and the Laws of War (July 30, 2002) available at http://www.tzemach.org/fyo/docs/beres/july30-02.htm.

[104] Paul Johnson, Modern Times 537 (1983).

[105] Anderson, supra, note 7.

[106] Johnson, supra, note 104 at 689.  Amin also praised Hitler and noted that he was “right to burn six million Jews.” See Idi Amin, Butcher of Uganda (Aug. 16, 2003) at http://www.cnn.com/2003.WORLD/ Africa/08/16/amin.obituary.  See also, id., one of many reports noting Amin’s cannibalistic practices.

[107]Johnson, supra, note 104 at 689.

[108] Id. at 688.

[109] Id.

[110] Ely Karmon, Terrorism Pays: Ask Assad, Khamane’i, and Arafat (July 4, 2001) available at http://www/ict.org.il/articles/articledet.cfm?articleid=369.

[111] Ariel Natan Pasko, Syria’s Horrendous Track Record in Lebanon, available at http://www.freelebanon.org.articles/a381.htm.

[112] Barry James, Libya to Lead Human Rights Body, International Herald Tribune Online (Jan. 21, 2003) at http://www.iht.com/articles/84007.html.

[113] For a detailed breakdown of the voting record of the United Nations until 1989, see The United Nations and Israel, the U.N.’s Record Vis a Vis Israel at http://christianactionforisrael.org/un/record.html.  Through 1989, the Security Council had managed to deplore or otherwise condemn Israel 43 times while the general council had managed the same 321 times.   These numbers do not include lesser reprimands.  Through 1989, neither the general or security councils had managed to reprimand in any manner an Arab party to the Arab Israeli conflict.

[114] See Elizabeth Neuffer, The Key to My Neighbor’s House 217 and 270 (2002).

[115] See Paul Johnson, A History of the Jews 534 (1987).  See also Nasser’s Speech to National Member Assembly Members on May 29, 1967, The Israel-Arab Reader, A Documentary History of the Middle East Conflict 186-187 (Walter Laquer and Barry Rubin eds., revised edition 1984). 

[116] Ellis Shuman, Israel, United Nations Remain Deadlocked Over Video Tape (Israel Insider July 11, 2001) at http://israelinsider.com/channels/diplomacy/articles/dip_0058.htm. 

[117] Frank A. Biggs, Neutralizing The Threat: Reconsidering Existing Doctrines in the Emerging War On Terrorism, 34 Case W. Res. J. Int’l L.1 27.

[118] See id. at 27-28.

[119] See The Charter of the United Nations, Chapter 7, Article 51 available at http://un.org/aboutun/charter.

[120] The United Nations Security Council and international lawyers considered Israel’s bombing of the Iraqi nuclear reactor in 1981 to have been illegal and not within scope of anticipatory self-defense even though most experts agree that without this strike, Iraq would have possessed nuclear weapons during the first Gulf War.  See Robert Turner, It’s Not Really Assassination: Legal and Moral Implications of Intentionally Targeting Terrorist and Aggressor-State Regime Elites, 37 U. Rich. L. Rev. 803.

[121] See Michael N. Schmitt, The Principle of Discrimination in 21st Century Warfare, 2 Yale H.R. & Dev. L.J. 146.

[122] Maine v. Taylor,  477 U.S. 131 (1986).

[123] Id. at 148.

[124] Id.

[125] See Full Text: ‘Bin Laden’s Message,’ BBC News World Edition (Nov. 12, 2002) available at http://news.bbc.co.uk/2/hi/middle _east/2455845.stm.  See also Joy in Ramallah Over Capture of U.S. Soldiers, Oh Saddam We Love You, Why Don’t You Annihilate all the Jews, World Net Daily  ( Mar. 24, 2003) at  http://www.worldnetdaily.com/news/article.asp? ARTICLE_.  See also translation provided by the Middle East Media Research Institute (MEMRI) of Palestinian TV rebroadcast of sermon given at Gaza mosque - “The Jews are Jews, whether Labor or Likud . . . They are all liars . . . They are the ones who must be butchered and killed, as Allah the Almighty said: Fight them: Allah will torture them at your hands, and will humiliate them . . .” available at http:www.cuttingedge.org/news/n1418.cfm.

[126] See Anderson, supra, note 7. 

[127] Schmitt, supra, note 121 at 155.

[128] Hans Kochler, in addition to proposing that a definition of terrorism be incorporated into the normative system of the Geneva Conventions, also suggests that in respect to national resistance, non-state actors should be held to the same rules as to which state actors abide by in ‘regular’ warfare.  See Hans Kochler, Global Justice or Global Revenge, International Criminal Justice at the Crossroads 342-343 (2003).

[129] This is particularly evident within the United Nations and Non-Governmental Organizations (NGOs).  These ‘humanitarian’ groups have tended to focus on the response to terrorist acts, rather than the terrorist acts themselves.  See Anderson. supra, note 7.

[130] See Biggs, supra, note 117 at 8.

[131] See Irwin Cotler, Israel, Terrorism and Human Rights, in Israel Among the Nations 119 (Alfred Kellerman, Kurt Siehr, and Talia Einhorn eds., 1998). 

[132] See Kochler, infra, note 128.

[133] See Cotler, supra, note 131 at 117 (quoting Paul Wilkinson).

[134] See infra, note 10 at 10.

[135] See Anderson, supra, note 7.

[136] See Michael Walzer, World War II: Why Was This War Different? in War and Moral Responsibility 100 (Marshall Cohen, Thomas Nagel, and Thomas Scanlon eds., 1974)

[137] Winston P. Nagan, Nuclear Arsenals, International Lawyers, and the Challenge of the Millennium, 24 Yale J. Int’l L. 496.

[138] Id. at 498.

[139] There were an estimated 2,800,000 German and Japanese civilians killed by the Allies during WWII.  See Non-Combatant Deaths in WWII at http://www.holocaust-history.org/~rjg/deaths.shtml, citing Martin Gilbert, The Second World War: A Complete History 256, 746 (1989).

[140] See “Joy in Ramallah . . .” infra, note 125.  See also, Steve Omega, A Critical Review of Islam available at http://www.salemthe soldier.us/omega_on_islam.html.   

[141] While acknowledging that the corporations and commercialism of western society sometimes run amok and expose other societies to values not of the highest order, this is not justification for civilian slaughter.  From this writer’s perspective, the influence of ‘the west’ on non-western societies is an important discussion, but one that is entirely separate, from a moral standpoint, from the issue of  terrorism.

[142] Phil Shannon, Hiroshima and Nagasaki: Victims of Nuclear Terror, Green Left Weekly (Sept. 18, 1995) available at http://www.hartford-hwp.com/archives/271/047.html.

[143] See generally Johnson, supra, note 104 at 261-66, 271, 274-75, 290, 425, 430-31, 454-56.

[144] See Isara, supra, note 39.

[145] Proverbs 24:17-18.

[146] Rabbi Sedley, Torah Treasures available at http://freespace.virgin.net/family.sedley/4BESHALACH59.htm (citing Megillah 10b, which relates that after the Jews had crossed the Sea of Reeds, the angels were forbidden from singing praises to God – Here, God implores the angels - “[s]hould you sing a song while My handiwork [the Egyptians] are drowning in the sea?”).

[147] See Louis Rene Beres, Targeted Killing in International Law (Apr. 7, 2004) available at http://www.israelnationalnews.com/article.php?id=3530.  See also Bodies Mutilated After Rebel Attack, WorldNetDaily (Mar. 31, 2004) at http://www.worldnetdaily.com/news/articels.asp?ARTICLE_ID=37830

[148] Compare the celebrations in much of the Arab ‘street’ after 9/11 as well as the celebratory mock Sbarro Pizza Restaurant (scene of one the Palestinian suicide bombings against Israeli civilians) erected at Al Najah University, with the immediate, overwhelming, and official national condemnation, contrition and shame displayed by Israeli society after a settler murdered 28 Palestinians in 1996.  See Celebrations of the September 11, 2001 Attacks, Ainah.Net, Global Encyclopedia at http://www.9-11.asinah.net/en/wikipedia/c/ce/celebrations_of_the_september _11_2001_attacks.html.  See also Mohammed Daraghmeh, Palestinians Recreate Sbarro Bombing, Jerusalem Post (Sept. 23, 2001) at http://www.jpost.com/Editions/2002/09/23.LatestNews/LatestNews.35190.html.  See also Itzhak Sharav, Anthony Lewis: A Biased Chronicler of the Israeli Palestinian Conflict, FrontPage Mag.Com (May 15, 2002) at http://www.frontpagemag.com/Articles/ReadArticle.asp?ID=2426. 

[149] The double effect theory holds that the direct targeting of civilians is morally discernible from attacking a target that will have the likely collateral effect of killing civilians.  See Nagle, infra, note 10 at 10.

[150] This difference in response to killing is not necessarily a static relationship.  As a society, we must continue to be sensitive to the consequences of war and to not be desensitized by CNN and Fox’s “shock and awe” imagery.  Further, in a story that is now unfolding, the abuses in the Iraqi prison (Abu Ghraib) at the hands of the American military present a challenge to the idea of America’s moral superiority in respect to intent.  For here, there appear to have been acts of cruelty for the sake of cruelty.  See Thom Shanker, Army Punishes 7 with Reprimands for Prison Abuse, New York Times (May 3, 2004) available at http://www.nytimes. com/pages/ world/index.html.  See also Seymour Hersch, Torture at Abu Ghraib, The New Yorker (Apr. 30, 2004) available at http:// newyorker.com/fact/ content/?040510fa_ fact.  Nevertheless, America’s response to these abuses can only reinforce the notion of a qualitative difference in how societies respond to wrongs committed by its members or institutions.  Clearly, there have been widespread expressions of outrage and contrition throughout the society.  In addition, numerous reports indicate that prior to the release of the photos and articles documenting the abuse, the army had already begun criminal investigations.  Reports also indicate the widespread condemnation and microscopic examination of these events by the political establishment.  See Robert Burns, Pentagon Examined Army Detention Centers, Yahoo News (May 4, 2004) at http://www.story.new.yahoo.com/news? tmpl=story&cid=514 &e=1&u=/ap/ 20040504/ ap_on_go_ca_st_ pe/us_ prisoner_abuse/19.  See also Hersch, infra, note 150. Compare Maggie Micahel,Arab Media React Cautiously to Beheading, Associated Press Release (May 12, 2004) available at http://news.yahoo.com.news?tmpl-story&u=/ap/20040512/ap_o_re_mi_ea/arabs_american_beheaded_3 (citing a senior journalist from the Cairo newspaper Al Arabi, who noted that most Arab newspapers would not report extensively on the beheading of American civilian Nicholas Berg because reporting on it would be seen as condemning it).   

[151] Isaiah 2:4.

[152] See Isara, supra, note 39.

[153] See Talya Halkin, A Prophet in the Desert, Jerusalem Post 18 (Feb. 13, 2004).

[154] See Blood for Oil, Peace Movement, Anti-War and Anti Empire Protest Artwork Resource Center at http://Bloodforoil.org.

[155] See Interview by Charlie Rose withMartin Smith, Producer, Frontline,The Charlie Rose Show (Mar. 4, 2004) available at http://www.charlierose.com/search/  search.asp. See also Interview by Tavis Smiley withGary Sinise, Co-founder, Operation Iraqi Children, The Tavis Smiley Show (May 3, 2004) (see operataioniraqichildren.org for additional information).  See also Iraq Rebuilding Proceeds Despite Violence: Official(Apr. 3, 2004) at http://www.reuters.com/news article.jhtml?type=topNEWS&storyID=4742826. 

[156] See Halevi,  infra, note 31 at 21.

[157] See The Theory of the Just War (BBC) at http://www.bbc.co.uk/religion.ethics/war/jwhistory.shtml.

[158] See Isara, supra,  note 39.

[159] See id. noting that if a head of state is asserting authority for the common good, this is not man asserting authority, but in essence, a ‘common good’ that is asserting its authority.

[160] Id.

[161] Id.

[162] Id.

[163] Id.

[164] See The Ethics of War,Religion and Ethics (Apr. 26, 2004) at http://www.bbc.co.religion/ethics/war/  jwlawful.shtml.

[165] See Isara, supra, note 39.

[166] See Neuffer, supra, note 114  at 270, 368-69 (noting the U.N.’s bureaucratic and ‘on the ground’ failure to take action to stop massacres in both Rwanda and Bosnia).

[167] It is a curious argument whereby a war is given authority by the sanction of a world governing body.  This seems to completely ignore the central question of whether there is a ‘rightness’ to the action itself . Further, see Anderson, supra, note 7 (questioning the authority of those who have not shed blood in a conflict to ex post facto become the arbiters of justice).

[168] See generally Emerich D. Vattel, Excerpts Taken from The Law of Nations or Principles of the Law of Nature at http://www.geocities.com/CapitolHill/7947/Vattel.html (divine right as an expression of a natural, immutable law).

 

[169] See,Halkin, infra, note 153.

[170] See generally Jacob Needleman, The American Soul (2002).

[171] Id. at 3.

[172] Id. at 343.

[173] Id. at 20.

[174] Id. at 342.

[175] Id. Here, Needlemen elaborates further on the consequences of an “empty” America –“[i]f America does not remember itself as the guardian of the process by which the soul of man can grow and act upon the earth, then America will surely be destroyed, not necessarily through war, but slowly and from within like a hollowed-out tree standing tall in the desert of petrified life.”  See also, note 145, infra (discussing the recent reports of widespread and extreme abuses perpetrated by the American military).

[176] In light of this perceived moral bankruptcy, it is difficult to understand how a world body’s approval or lack of approval gives any more or less legitimacy to an action of the United States.  For example, if the world body consisted only of countries with the ideals and policies of North Korea, Libya, and Syria, no one could seriously argue that this hypothetical body should have dominion over actions of the U.S.  While conceding that the U.N. may consist for the most part of countries with better records than the aforementioned and that there is a practical good to be derived from unified action, the hypothetical nevertheless helps to put the issue of moral legitimacy in proper perspective.