Huntingdon College: Political Science program | Courses | SPS | What's New?
PSC 303: International Relations
Faculty Guest Essay on Justice in War
Wray R. Johnson, Ph.D., Lt Col, USAF,
"Just War and Law of War: A Primer"
page by Jeremy Lewis. Last updated  8 April 2001.
Professor Johnson, US Marine Corps academy and formerly at the School of Advanced Air Power Studies, Maxwell AFB, lectures to US special forces on human rights and theories of justice in war. He has published research on small wars, and had a career in AFSOC.  Emphases have been added to assist freshmen readers - Jeremy Lewis.

The great Prussian military theorist Carl von Clausewitz included in his definitive work, On War, a straightforward definition of war: it is "an act to compel our enemies to do our will." But Clausewitz also recognized that compellence by force is accompanied by "certain self-imposed, imperceptible limitations . . . known as international law and custom." Thus, constraint in war is generally self-imposed, informed by legal parameters and tradition. 

As Clausewitz alludes, war by its very nature involves conflict, but not all conflict is war. Forty percent of human skeletons recovered in the Egyptian Nubia, dating some 12,000 to 14,000 years ago, showed evidence of violent death by lethal instruments. Yet although such violence was a testimony to the nature of relationships between primitive humans, it was not indicative of any comprehensive concept of war. The rise of organized society is the key to differentiating between wanton violence perpetrated by marauding nomads and states at war. With the agricultural revolution, previously nomadic peoples settled and a sense of communal identity evolved. Strength of numbers was one of the first advantages that accrued to these settled peoples over hunter-gatherer tribes. The subsequent rise of a social construct fostered the development of shared customs and values that gave rise to specific social structures and classes. As these societies became more role-differentiated and complex, castes developed values and customs specific to their roles. Over time, a set of ideals evolved in these societies (and within each caste) that was intended to regulate the behavior of its members. These ideals are at the root of self-imposed restraint in war.

Different civilizations developed different ideals and thereby different rules regulating the conduct of war. For example, the great Arabic historian Ibn Khaldun summarized in his seminal Muqadimma the traditional Islamic understanding of war as universal and inevitable and therefore a feature of human society that is sanctioned, if not willed by God himself. As a result, war and peace fall within the realm of divine legislation and Islamic ethics regarding war are eo ipso derived from the same sources upon which Islamic law is based. The fundamental source from which a consistent ethical system of war can be derived is, of course, the Qur'an, which is held by Muslims to be God's final and definitive revelation to humanity. But there is also the example set forth in the life of the Prophet Muhammad, or sunnah ("custom" or "practice"). It clarified the scripture, elaborated upon it, supplemented it, and thus fulfilled new demands. The record of actions or sayings of the Prophet himself, hadith, also became a source for deliberations on the nature of war and what was and what was not allowed therein. But as disagreement between Muslims during the Persian Gulf War of 1990 would indicate, there is much diffusion regarding the nature of a "just" war (or jihad) within Islamic ethics. Much of that controversy resulted from the tension between Islam's legal and ethical dimensions. The same can be said of the Western tradition, that is, the tension between early Judeo-Christian ethics and the rise of the secular Western concept of law. To begin to understand the Western way of war, one must necessarily begin with the Old Testament.

The Old Testament recounts war after war, genocide, ethnic cleansing, rape, plunder, and a host of other atrocities associated with war. Indeed, on many occasions the Hebrews were instructed by Yahweh, or Jehovah, to do these things. For the ancient Hebrews, war was waged upon the command of God for the vindication of justice and the restoration of peace. The Hebrew word shalom, or "peace," meant more than simply the absence of war--it meant well-being and prosperity. Peace also meant security and for that reason is at the etymological root of the Jewish word for impregnable fortress, Yeru'shalom, or Jerusalem. As evidenced in the Old Testament, for the Hebrews peace was a gift of God. If the Hebrews fulfilled the covenant, God bestowed peace upon them. And peace bestowed abundance. Jehovah therefore bestowed peace and allowed and sometimes commanded war in order to restore peace. Interestingly, war and defeat for the Hebrews was also a form of chastisement. When Josiah was defeated at Megiddo, Israel became enslaved. Later, Jehovah even suffered the Jews to be taken captive into Babylon. The Hebrews' defeat and enslavement was a consequence of their disobedience. Nevertheless, war was waged of necessity and therefore was restrained by a code. This code was elaborated in Deuteronomy 20. Old Testament legislation (i.e., Exodus, Leviticus, Numbers, and Deuteronomy) was a direct revelation from Jehovah through Moses. Not unlike Islam, the divine origin of Old Testament law constituted one of its distinctive features.

Greek law, on the other hand, was entirely man-made. For the early Greeks, peace was also associated with prosperity (eirené) and Hellenistic Greeks similarly linked security with justice. Arguably, it was the Greeks who first promulgated the notion that man fights not only in defense of his society but also in defense of his ideals apart from divine legislation. In that sense, war ennobled the human spirit in the sense that the highest values of man--courage, valor, sacrifice--were made manifest. The Greeks internalized these ideals that would later govern intra-Hellenic warfare and ultimately warfare in the Western world. 

Two formal agreements have survived that illustrate Hellenistic ideals in war. The first was a tradition reported by the geographer Strabo around 700 BC during the War of the Lelantine Plain, in which the opposing armies agreed to refrain from the use of missiles. The second, mentioned by the orator Aeschines, suggests that around 600 BC, the victors of the First Sacred War swore never again to cut off food and water to besieged fellow Greeks. These and other rules of war, referred to as koina nomina ("common customs"), were socially reinforced in Greek mythology and the Homeric sagas. 

From 700-400 BC, restraints on warfare in Greece continued to evolve. Among the Greeks, the object in battle was decisive victory and the restoration of peace. Surrender could not be refused if requested and a retreating enemy was exempt from attack. Attacking the social and economic order was informally banned. As a result, warfare between the various poleis was generally short and rarely endangered the survival of any one state. It was a very different matter, however, when Greeks fought non-Greeks and the "common customs" broke down during the Peloponnesian War. Nevertheless, the Greek ideal of restraint remained largely intact and greatly influenced the Roman Empire, which sought to emulate much of the Greek ethos.

Not unlike the Hebrews and the Greeks, the Romans associated peace (pax) with security and prosperity and were more than willing to wage war in order to impose peace. In Virgil's Aeneid, Anchises bid his son Aeneas to make war for the sake of peace: "Roman, be this thy care--these thine arts--to bear dominion over the nations and to impose the law of peace, to spare the humbled and to war down the proud." Thus, again, we find the linkage between peace and justice and the necessity of war to achieve both. By the same token, the Latin word pax is from the same root word for "pact", an agreement not to fight, and therefore is similarly linked with the word securitas ('security"). The barbarian tribes that delivered the deathblow to the Roman Empire did not destroy Roman moral authority in this regard, however, as it re-emerged in the Catholic Church. And before the fall of Rome, with Constantine's ascendancy to Emperor in 312 AD, Christian morality had a profound influence on Roman ethics. The conversion of Constantine and the resultant Christian character of the latter Empire laid the groundwork for the Catholic concept of "just war."

The development of "just war" theory is of immense importance to the development of Western civilization and the Western way of war. Theoretically at least, the tradition placed war under the dominion of conscience and in doing so established the precept that "right" was more important than "might." Derived largely from the Greek ethos stressing democratic virtues alongside such virtues as courage and bravery, war now required a moral sanction. Moreover, war required the imprimatur of state authority and was to be carried out by professionals.

Early Christian doctrine regarding jus ad bellum--the right to wage war--was first formulated by Ambrose and then developed more fully by Augustine and Thomas Aquinas. Ambrose had little if any reservations about Christian participation in war--the state existed to protect the Church. No doubt his position as Bishop of Milan in northern Italy, on the frontier facing barbarian enemies, shaped his perspective. His primary treatise in this regard, On the Duties of the Clergy, was influenced by Stoicism and the Old Testament and signaled a fundamental shift in Christian doctrine on the appropriateness and conduct of war, giving rise to the concept of "just war."

Augustine (354-430 AD) is generally considered to be the father of jus ad bellum. Augustine was a realist. Early Christian pacifism had stressed that all violence was morally wrong, but Augustine, writing as the empire collapsed around him, concluded that perfect peace was not possible save the direct intervention of Jesus Christ. Thus, the Church had to be protected since it provided the essential stability needed for Christianity to survive in a violent and unjust world. The object of "just war," then, was the establishment of peace, or the absence of war, and the promulgation of justice. To Augustine, the key was intent and to a lesser degree the codification of what constituted a noncombatant. 

With regard to the former, war was not to be pursued for wealth or power but only as a means to vindicate justice. Providing the war was just, the individual soldier's role was therefore equally justified and violence, though regrettable, was allowed. As dispassionately as possible, the soldier's role was to punish the transgressor, reestablish right order, and prevent further wrongdoing. Regarding noncombatants, Augustine was less clear. It is largely inferred that Augustine believed that noncombatants were to be spared any violence associated with war but there is some indication that he held an expanded notion of collective war guilt that could potentially include whole populations. Nevertheless, noncombatant immunity is generally considered integral to "just war" theory as propounded by Augustine and enlarged upon by Aquinas.

Thomas Aquinas (1225-1274) further codified the position of the Catholic Church regarding war in his seminal work, Summa Theologica. Aquinas reduced the idea of "just war" to three fundamental tenets: A "just war" must have a just cause; it must be fought on right authority; and it must be waged by a right intention. A just cause existed where some fault was to be punished. Right authority existed where the magistrate was acting as a "minister of God" in executing God's "vengeance upon the evil-doer." Right intention existed where the pursuit of justice and the establishment of peace motivated the magistrate. 

Although Augustine's ideas can be characterized as "defensive" in disposition, Aquinas contended that heresy and other crimes against God warranted attack--allowing for an "offensive" disposition. The just cause was pursued by a vindicator, fighting against an unjust opponent that had perpetrated some form of evil. Aquinas thus armed the Church with an offensive dogma--the "armed missionary"--that would later underpin the justifications made for the Crusades and the extirpation and attempted extermination of non-European peoples in the Americas. Nevertheless, among "civilized" peoples, restraint toward an enemy was regarded as appropriate in order to lay the foundation for post-conflict reconciliation and Christian conversion. 

There is no question that Augustinian and Thomist teachings had a profound influence on the Western concept of war. First, jus ad bellum provided for self-imposed restraint in war in terms of vindictive justice; and second, the spirit of the Greek's "common customs" was reinforced in the Augustinian and Thomist ideas regarding jus in bello--that is, rules governing the conduct of war. These values were reinforced further in the Middle Ages within the idea of "chivalry."

The idea of "just war" as it emerged in the late Middle Ages manifested a dialect between the theological (Church doctrine) and the legal (drawn from Greek and Roman codes of conduct). The synthesis of the two found its first expression in the chivalric codes. Although at first glance these codes appear to have been rendered largely irrelevant by the Hundred Years' War (ending in 1453), what is often overlooked is that the knightly ideal (jus militaire) did not perish. Before the Hundred Years War, Honoré Bonet's L'Arbre des battailes ("Tree of Battles") and Christine de Pisan's Les Faits d'armes et de chivalrie ("Acts of Arms and Chivalry") both praised and entrenched the virtuousness of war as an ideal in terms of a means to achieve peace and justice. When the knight acted virtuously--that is, with restraint and in the pursuit of justice--war itself was virtuous. Despite the apparent loss of this ideal during the Hundred Years War, it re-emerged in the regimental system.

The creation of the British regimental system by a victorious English parliament recovering from a bloody civil war against monarchial power had a profound impact on English military culture and ultimately the Western way of war. The knightly ideal of virtuous warfare restrained by an ethical code was extended and reinforced in the regimental system in an effort to regulate the behavior of the common soldier. Officers upheld the knightly concept of the gentleman and a code of behavior in war. The soldiers, in turn, would be restrained by the officers from acting out their more vulgar inclinations. 

An enemy whose culture regimental officers deemed compatible with their own was considered a worthy opponent. The enemy therefore ceased to be a threat to social stability and was to be treated fairly and with professional restraint. At the same time, with the rise of the nation-state, religious differences largely ceased to be the predominant motivation for war. Nations now went to war for more practical reasons. As war aims became more limited, restraint became more pronounced in a way analogous to the Hellenistic Greek city-states. With national hatreds muted, and the conduct of war governed by a strict code of ethics, hostilities became more and more regulated. Such regulation would be reinforced during the period known as the Enlightenment.

The Reformation of Christianity begun by Martin Luther in 1517 challenged the Catholic Church as the sole authority in matters of morality and ethics. Protestant theology offered new interpretations and posited that the Church had failed to live up to the ideals of equality and morality as expressed in the person of Jesus Christ. Europe was still Christian, yet the wars of the fifteenth and sixteenth centuries had often been the product of religious intolerance. Therefore, it became increasingly exceptionable to argue social and political points from a theological basis because the discussion would degenerate into heated and unresolvable arguments about doctrinal matters. As a result, European intellectuals devised secular solutions embodied in the idea of "natural law," which itself was an expression of Greek Stoicism, Epicureanism, and the emerging physical sciences that offered "rules" sans divine legislation. With respect to war, "natural law" would find its apotheosis in the writings of Hugo de Groot of Holland, better known by his Latin name as Hugo Grotius.

Called by many the father of modern international law, Grotius wrote De Jure Belli ac Pacis ("On the Law of War and Peace"), published in 1625, in which he set forth the idea that there are certain inalienable rights held by each individual in human society. War, as an instrument of society, must therefore adhere to a specific code in terms of its justification and conduct in order to preserve these inalienable rights. Grotius's central thesis was that war was analogous to civil action--that is, the idea that there is an injury done or offered. Grotius returned to the Augustinian notion that war was "just" in the defense but he broadened the idea of self-defense to include preemptive strike against another state with clear hostile intent. 

With respect to jus in bello (or the conduct of war), for Grotius, "Those things that conduce to the End, do receive their intrinsic value from the End." In other words, the ends justify the means. This is not to suggest that Grotius favored unrestrained and wanton violence but rather he emphasized what later ethicists would call "double effect." Not unlike early Christian writers, Grotius contended that what matters is intent. If the intent is by definition "just," but otherwise innocent lives are lost, the ends nevertheless outweigh the means. For example, if a village is bombarded in order to permit the seizure of a bridge that is crucial to victory by a state engaged in a just cause, while it is regrettable that noncombatants were killed in the process, the deaths were necessary and therefore "legal."

The importance of Grotius's work is that it represented the first step in moving "just war" doctrine away from a mostly theological basis to what can charitably be described as a universal secular or legal basis. The legal basis for war was enlarged upon by subsequent writers, including John Locke. What distinguished Locke from others at the time was not his justification for war--which largely reflected earlier thinking--but rather his emphasis on right conduct. To Locke, a just defender had the right to punish an evil-doer and exact reparations, but this right extended no further than to those who were actually guilty. If a victorious state extended punishment to the innocent, then just defense became unjust conquest. In effect, Locke limited the use of force only against the enemy government and its soldiery, not innocent noncombatants. Never before had anyone advanced the idea that an enemy's population had inalienable rights to immunity as such. Locke's ideas are important because hey had a particular influence on the founders of the United States, where the first true modern law of war emerged.

The American way of war is derived from the Western tradition and American hegemony in the late twentieth century has largely shaped the "just war" tradition. When Americans go to war, it is to defeat evil--or so Americans believe. The undoing of evil is the justification for war, rooted in the Augustinian tradition, and has been the historical motivator for Americans to kill one another and other peoples since at least the American Revolution--but with a unique twist. The early Fathers embarked upon war for specific and limited goals and conducted war in a way that would not shred the social fabric. Such an ideal resulted in self-imposed restraints both in the resort to violence and in the application of violence. Yet, at the same time, American leaders have considered war also to be an instrument of State policy. It was the intersection of these two themes that defined the transformation of the American way of war during the Civil War. The military necessity of "total war" expanded the idea of the combatant and the "just war" tradition and associated law of war necessarily evolved as well.

During the American Civil War, President Abraham Lincoln asked Dr. Francis Lieber to prepare a code of law for Federal forces. Dr. Lieber wrote two documents. The first addressed the issue of guerrillas specifically with regard to the law of war. But the second, General Orders No. 100, became the first modern statement of the law of war and the foundation for much of law of war as it developed to the present. Dr. Lieber's writings codified centuries of thought with respect to just war; however, more akin to a broad interpretation of Augustine and unlike Locke, Dr. Lieber asserted that the civilian population could be regarded as a legitimate target of destruction in the sense of collective war guilt.

In that sense, Dr. Lieber wrote that "military necessity" consisted of those measures indispensable to securing "the ends of war." Military necessity therefore permitted "direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable." Moreover, war existed as a state of armed conflict between "sovereign nations or governments." In that the citizens of a hostile state were no less an enemy than the state's soldiers, they were subject to "the hardships of war." Since the restoration of peace and the preservation of justice were the ultimate object of war, the deaths of otherwise innocent noncombatants was regarded as necessary in the pursuit of quick victory. As Dr. Lieber wrote: "Sharp wars are brief." Unquestionably, General Sherman's "march to the sea" and his burning of the city of Atlanta reflected this "total war" outlook as well as the assumed culpability of Confederate citizens in the perpetration of an "unjust" war.

General Orders No. 100 remained the principal law of war reference in the United States for the balance of the nineteenth century and into the early twentieth century. But the major powers, including the United States, sought to universalize the concept of law of war. These efforts included the first Hague Peace Conference of 1899; a second conference in 1907; the Washington Conference on the Limitation of Armament in 1922; the Hague Commission of Jurists in 1923; Aerial Law of War in 1923; and the 1949 Geneva Conventions. Detailing these various conventions is beyond the scope of this essay. Suffice it to say that all of these efforts reflected centuries of thought in the West regarding the nature of war and its proper conduct. 

Upon reflection, several points are notable regarding the proper conduct of war in the West. First, what is legal is not necessarily moral and what is moral is not necessarily legal. Yet the two are inextricably intertwined in the Western tradition (and to some extent the Muslim tradition as well). At the heart of the "just war" tradition is right intent. Secondarily, we find the principle of discrimination, which, in simple terms, means noncombatant immunity. 

But noncombatant immunity is not absolute. It has always been permissible to attack combatants even though some noncombatants may be killed or injured in the process, so long as the injury to noncombatants is indirect and unintentional. The great ethical dilemma that remains unresolved, however, is where the threshold resides between direct and indirect and intentional and unintentional. That noncombatant immunity within the "just war" tradition can be overridden in order to preserve and protect the very tradition itself is a paradox. Indeed, "supreme emergency" and other arguments arising from the need to override noncombatant immunity formed the basis for justifying the aerial bombardment of civilians in Germany and Japan by the Allies during the latter stages of World War II. Objectionable as that standard may be by today's apparent sensitivity regarding "collateral damage," the killing of innocent civilians by aerial bombardment remains today an unresolved legal and moral dilemma as evidenced by claims that NATO violated the law of war during air attacks on Serbia as recently as 1999. NATO and the United States thoroughly rejected the accusation--as the United States continues to do with respect to air attacks on Iraq--offering moral and legal arguments rooted thoroughly in the "just war" tradition.

So what does it all mean? This essay is simply a very brief attempt to trace the evolution of "just war" thought in order to illustrate the ethical roots of the Western way of war. Interestingly, one sees the influence of the Greeks, Augustine, and thinkers not mentioned, such as the Right Honorable Lord John Fletcher Moulton, in the play of children, in terms of that which is fair and unfair, just and unjust, and what constitutes proportionate response. This is not to suggest that war is child's play, but rather to suggest that, like child's play, war has developed a set of rules that are generally self-imposed, even by those who admit of divine legislation to restrain themselves regarding the conduct of war. In the end, war is a dynamic concept, still evolving and adapting to changing social, political, and juridical realities. As continued globalization links societies, one may hope that the dialogue regarding "just war" will promote agreement with respect to a universal law of war that may ultimately be reflected in a universal idea of peace.