Fighting Well and Limited War
The rules of jus in bello aim to confine the destructiveness of war, rule out certain kinds of weapons, protect civilians, and limit the area and range of fighting.
Many note that the methods of contemporary war, nuclear warfare in particular, are inescapably in violation of the principles of proportionality and non-combatant immunity.
Must such warfare be rejected as a moral possibility on just war grounds?
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The rules of jus in bello (or justice in war) serve as guidelines for fighting well once war has begun. Some maintain that morality does not exist in warfare, and therefore object to just war theory. War is hell, the argument goes, and one is entitled to do whatever is necessary to ensure victory for one's own side. Just war theory, on the other hand, sets forth a moral framework for warfare and rejects the notion that "anything goes" during times of war. Belligerent armies are entitled to try to win, but they cannot do anything that is, or seems, necessary to achieve victory.[1] There are restraints on the extent of harm, if any, that can be done to noncombatants, and restraints on the weapons of war.[2] These restraints aim to limit war once it has begun.
The principles of humanitarian law are thought to apply in conflict, and to regulate the conduct of military forces.[3] The rules of warfare aim to safeguard human life and some other fundamental human rights, and to ensure that war is limited in its scope and level of violence. Total war, where neither discrimination nor proportionality serve as mitigating considerations, is to be avoided.[4]
Jus in bello also requires that the agents of war be held responsible for their actions. When soldiers attack non-combatants, pursue their enemy beyond what is reasonable, or violate other rules of fair conduct, they commit not acts of war, but acts of murder.[5] International law suggests that every individual, regardless of rank or governmental status, is personally responsible for any war crime that he might commit.[6] If a soldier obeys orders that he knows to be immoral, he must be held accountable. War crimes tribunals are meant to address such crimes.
Note that the guidelines governing justice in war are distinct from those of jus ad bellum, or justice of war. Even if a nation lacks just cause for war, it may fight justly once war has begun. Conversely, a nation with just cause may fight unjustly. The two central principles of jus in bello, discrimination and proportionality, establish rules of just and fair conduct during warfare. The principle of discrimination concerns who are legitimate targets in war, while the principle of proportionality concerns how much force is morally appropriate.
Discrimination and Non-Combatant Immunity
The principle of discrimination recognizes that individuals have a moral standing "independent of and resistant to the exigencies of war."[7] Since killing is morally problematic, just war theory must provide an account of why soldiers can become legitimate targets of attack.[8] It must also answer whether a combatant's status changes depending on whether his cause is just or unjust, and establish "how those victims of war who can be attacked and killed are to be distinguished from those who cannot."[9]
No individual can justly be attacked unless he has, through his own action, surrendered or lost his basic human rights.[10] However, because individuals with combatant status forfeit some of these basic rights when they become soldiers, their death can be morally justified. Civilians, on the other hand, have not forfeited these rights, and are never permissible targets of war. Houses, places of worship, and schools should be immune from attack as well. Thus, the principle of non-combatant immunity suggests that war is a fight between combatants, and that only military objectives are legitimate targets of attack. Many believe that noncombatants may never be subject to direct, intentional attack, even if one is fighting on the just side of the war.[11]
However, civilian deaths are sometimes unavoidable, and the practicalities of war may require that the absolutist conception of non-combatant immunity be abandoned. The term "collateral damage" refers to destruction unavoidably incurred in the act of destroying a target deemed to be of military significance.[12] Many believe that targeting a military establishment in the middle of a city is permissible, even if there is collateral damage, because the target is legitimate.
The doctrine of double effect suggests that civilian casualties are justifiable so long as their deaths are not intended and merely accidental.[13] Targeting a munitions factory, for example, aims to destroy military capabilities and not to kill munitions workers. This is a way of "reconciling the absolute prohibition against attacking noncombatants with the legitimate conduct of military activity."[14] Any harm to noncombatants must be a secondary result, indirect and unintentional.[15]
Some just war theorists have added the further stipulation that the foreseeable threat posed to civilian lives be reduced as far as possible and every effort taken to avoid killing them.[16] Most agree that the deaths of civilians are justified only if they are unavoidable victims of a deliberate attack on a military target. Thus, munitions workers, or others employed in industries associated with the war effort, are legitimate targets while at work in the factory. But they are not liable to attack when in their homes.
However, others believe that noncombatants do not require such extreme protection if the war is just. "Where the war is just, collateral killing of noncombatants in connection with a legitimate military operation is to be allowed," and this evil can be limited in terms of the jus ad bellum criterion of proportionality.[17]
In some cases, forces must override the accepted immunity of noncombatants in order to protect the very values that ultimately guarantee the safety of such persons.[18] Noncombatants are then regrettably, mournfully, made the subjects of attack. The question of how to balance military objectives and civilian casualties is no doubt a difficult one.
Yet another difficult question is how to define who is a combatant and who is not. While combatants usually carry arms openly, guerillas disguise themselves as civilians. International law suggests that the inhabitants of non-occupied territory, who take up arms on the approach of the enemy and resist the invading troops, even if they have not had time to organize themselves, count as armed forces.[19] However, without uniforms, it is difficult to distinguish these armed forces from unarmed civilians. Some have maintained that in these cases, the burden is on the government to identify combatants, while others argue that "the nature of modern warfare dissolves the possibility of discrimination."[20]
Proportionality
The principle of proportionality deals with what kind of force is morally permissible in warfare. It suggests that the injury caused should be proportional to the objective desired, and that the extent and violence of warfare must be tempered to minimize destruction and casualties.[21] Restriction of means aims to protect all involved from unnecessary suffering, to safeguard human rights and to "restrict the amount of damage likely to be long-term extending beyond the period of hostilities."[22]
Central to proportionality is the notion that parties should oppose force with similar force, and "thwart the assailant's purpose using the minimum force necessary to do so."[23] One may not kill the opponent if it is possible to achieve the desired end by only injuring him. In addition, "the evil produced by the war must not be greater than the good done or the evil averted by it."[24] Costs must not outweigh benefits.
Just as the jus ad bellum principle of right intention suggests that wars must be fought for limited objectives, the notion of limited war suggests that there must be restraint with regard to the quantity and quality of weaponry used during warfare.[25] First, weapons that do not discriminate between combatants and non-combatants cannot be used. The use of asphyxiating or poisonous gases, the starvation of civilians as a method of warfare, and the destruction of objects that are indispensable to the civilian population are prohibited.[26] In addition, weapons that cause long-term environmental damage are prohibited.[27] This includes destruction or contamination of foodstuffs, crops, livestock, and drinking water.
Finally, the law of armed conflict forbids acts that go beyond the purpose of defeating the enemy party and cause unnecessary injury. If a choice is possible among military objectives, the one selected should be that likely to cause the least destruction and casualties.[28]
Rights of Soldiers
Although soldiers do forfeit some of their rights when they assume combatant status, they do not forfeit them permanently or completely. Once a soldier has laid down his arms and surrendered, he assumes the status of a non-combatant and cannot be killed or attacked. His property must not be destroyed or seized, unless this is imperatively demanded by the necessities of war. In addition, it is forbidden to steal from prisoners of war or the sick and wounded, or to mutilate or steal from corpses.[29] The wounded enemy are to be collected and cared for.
Combatants that are captured in battle must be humanely treated. Prisoners of war are entitled to basic human respect and are to be protected against any acts of violence or intimidation. They cannot be tortured or forced to work in support of the enemy's war effort, and must be provided with proper food, shelter, and medical treatment.[30]
[1] Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 2nd Edition. (New York: Basic Books, 1997), 129.
[2] James Turner Johnson, Just War Tradition and the Restraint of War: A Moral and Historical Inquiry. (New Jersey: Princeton University Press, 1981), xxiii.
[3] L.C. Green, The Contemporary Law of Armed Conflict. (Manchester, Canada: Manchester University Press, 1993), 17.
[4] Johnson, 223.
[5] Alex Moseley, "Just War Theory," [article on-line] in The Internet Encyclopedia of Philosophy (2001, accessed February 3, 2003); available at: http://www.utm.edu/research/iep/j/justwar.htm; Internet.
[6] Green, op. cit 292.
[7] Walzer, op. cit 135.
[8] Moseley, available at: http://www.utm.edu/research/iep/j/justwar.htm
[9] Walzer, op. cit 41.
[10] Walzer, op. cit 135.
[11] Johnson, op. cit 197.
[12] Johnson, op. cit 221.
[13] Moseley, op. cit
[14] Walzer, op. cit 153.
[15] Johnson, op. cit 198.
[16] Walzer, op. cit 156.
[17] Johnson, op. cit 201.
[18] Johnson, op. cit 223.
[19] Green, op. cit 104.
[20] Moseley, op. cit
[21] Moseley,
[22] Green, op. cit 123.
[23] Johnson, op. cit 198.
[24] Johnson, op. cit 204.
[25] Johnson, op. cit 194.
[26] Green, op. cit 136.
[27] Don Hubert and Thomas G. Weiss et al. The Responsibility to Protect: Supplementary Volume to the Report of the International Commission on Intervention and State Sovereignty. (Canada: International Development Research Centre, 2001), 144.
[28] Green, op. cit 148.
[29] Green, op. cit 144.
[30] Green, op. cit 193.
Use the following to cite this article:
Maiese, Michelle. "Jus in Bello." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Research Consortium, University of Colorado, Boulder. Posted: June 2003 <http://www.beyondintractability.org/essay/jus_in_bello/>.
Sources of Additional, In-depth Information on this Topic
Additional Explanations of the Underlying Concepts:
Online (Web) Sources
"A Toolbox to Respond to Conflicts and Build Peace." , 2002
Available at: Click here for more info.
This page offers 24 tools to use when responding to conflict and building peace. These are categorized in the following way: official diplomacy, economic and social measures, non-official conflict management, political development and governance, military measures, and communication and education. The page also has a glossary of terms common to the field. This site focuses on the Horn of Africa, but is applicable to all situations.
Moseley, Alex. "Just War Theory." , 2001
Available at: http://www.utm.edu/research/iep/j/justwar.htm.
This article outlines the principles of jus ad bellum and jus in bello that form contemporary just war theory. After discussing the history of just war doctrine, Moseley examines the rules that govern the justice of waging war: just cause, right intention, reasonable chance of success, and proportionality. He goes on to discuss the rules of just and fair conduct during war: discrimination and proportionality.
Reilly, David. "Peace Through Coercion: The Effect of Foreign Military Intervention on Democratization and War." Online Journal of Peace and Conflict Resolution, Vol.2, No. 1 , March 1999
Available at: http://www.trinstitute.org/ojpcr/2_1reilly.htm.
This research attempts to gauge the effect of military intervention on the probability of a transitioning state engaging in interstate war. By including the variable of military intervention in the analysis, it is anticipated that a clearer indication of the dynamics involving regime transformation and conflict will result.
Offline (Print) Sources
Hartigan, Richard Shelly. "Francesco de Vitoria and Civilian Immunity." Political Theory 1:1, February 1973.
Hartigan argues that the intentional use of destructive weapons that indiscriminately kill the armed and unarmed alike is avoidable. Wars can be waged that distinguish combatants from non-combatants. This article discusses the origin of the notion of civilian immunity, as well as efforts to protect it.
Dubik, James M. "Human Rights, Command Responsibility, and Walzer's Just War Theory." Philosophy and Public Affairs 11:4, 1982.
This article discusses Michael Walzer's theory of jus in bello and its emphasis on human rights and command responsibility. Dubik argues that Wazler's theory leaves the tension between these notions unresolved, and attempts to formulate a richer account of command responsibility that balances "due care" owed to civilians with "due risk" expected from soldiers.
Walzer, Michael. Just and Unjust Wars: A Moral Argument with Historical Illustrations, 3rd Edition. New York: Basic Books, January 2000.
This book draws upon historical illustrations to examine the moral issues of warfare. Walzer rejects the notion that 'anything goes' in war, and establishes a 'legalist paradigm' whereby the crime of international aggression is analogous to domestic crime. He suggests that states' rights to territorial integrity and political sovereignty, which are derived from the consent of the governed, must be upheld if a war is to be just.
Luban, David. "Just War and Human Rights." Philosophy and Public Affairs 9:2, 1980.
Luban explores the United Nations' conception of the crime of aggression and rejects the idea that all states have a duty of non-intervention into the affairs of other states. He maintains that such a duty exists only toward states that are legitimate, and that our concept of state sovereignty must take issues of moral legitimacy into account. Clear evidence can exist that a state is not based on the consent of its members. Furthermore, because states' rights are derived from human rights, it is better to think about all of these issues not in terms of crimes against the state, but rather as crimes against its citizens. Click here for more info.
Johnson, James Turner. Just War Tradition and the Restraint of War: A Moral and Historical Inquiry. New Jersey: Princeton University Press, 1981.
This book explores the history of just war theory and the development of this tradition over time. It discusses various approaches to the restraint of war, beginning with the tradition of the Middle Ages and ending with the traditions of contemporary warfare. Johnson looks to both religion and natural law to make sense of the ethics of war.
Smith, Dan. "Just War, Clausewitz, and Sarajevo." Journal of Peace Research 31:2, May 1994.
This article examines just war theory in relation to the question of United Nations intervention. It discusses the assumption that armed forces can be used for moral purposes and aimed at humanitarian intervention. In addition, it explores the relationship between means and ends, between the justice of one's tactics and the justice of one's cause. Because just war tradition requires both that means and objectives be just, there are serious questions surrounding the legitimacy of humanitarian interventions. Click here for more info.
Regan, Richard J. Just War: Principles and Cases. Washington, D.C.: Catholic University of America Press, September 1996.
Most individuals recognize a moral obligation to avoid the evils of war. But in the face of "ethnic cleansing" in Bosnia or starvation in Somalia, is war ever justified? In this book, Richard J. Regan confronts these controversial questions by considering the basic principles of just-war theory and applying those principles to historical and ongoing conflicts. Part One presents two opposing viewpoints: first, that war is not subject to moral norms and, second, that war is never morally permissible. The author rejects both perspectives, and moves to define the principles of just-war theory. The just cause to wage war, the moral limits of war conduct, and the moral issue of using nuclear weapons are also discussed. In considering acceptable war conduct, Regan elaborates the specific principles of discrimination and proportionality. The second part of the book applies just-war principles to case studies of eight historical wars.
Gardam, Judith Gail. "Proportionality and Force in International Law." American Journal of International Law 87:3, July 1993.
Proportionality is a fundamental principle in both jus ad bellum and jus in bello. In the law of armed conflict, this principle expresses the idea that "belligerents do not enjoy an unlimited choice of means to inflict damage on the enemy." (Gardam) However, the relationship between this notion of proportionality and that found in jus ad bellum has gone largely unexplored. In fact, however, the legality of a state's resort to force often affects its perception of the means it can use to achieve its goals. This article discusses how the two concepts of proportionality are connected.
Green, L.C. The Contemporary Law of Armed Conflict. Canada: Manchester University Press, 1993.
This book outlines the various treaties and charters that form international humanitarian law and the law of armed conflict. It goes on to explain the historical sources of such law, including the existence of chivalry in the Middle Ages and the first modern codes of war. Finally, it outlines the existence of current laws governing the commencement and termination of hostilities, who counts as lawful combatants, and the actions that may legally be undertaken during warfare.
Ramsey, Paul and Stanley Hauerwas. The Just War: Force and Political Responsibility. Rowman & Littlefield, July 2002.
In the wake of Operation Desert Storm, the question of "just war" has become a hotly contested issue, and this classic text on war and the ethics of modern statecraft written at the height of the Vietnam era in 1968 speaks to a new generation of readers. In defending just war against Christian pacifism, Ramsey joins a line of theological reasoning that traces its antecedents to Saint Augustine and Saint Thomas Aquinas. Ramsey argues that decisions regarding war must be governed by "political prudence." Whether a particular war should be fought, and at what level of violence, depends, Ramsey writes, on one's count of the moral costs and benefits. Characterized by a sophisticated yet back-to-basics approach, his analysis begins with the assumption that force is a fact in political life which must either be reckoned with or succumbed to. He then grapples with modern challenges to traditional moral principles of "just conduct" in war, the "morality of deterrence," and a "just war theory of statecraft."
Weiss, Thomas G. and Don Hubert. "The Responsibility to Protect: Supplementary Volume to the Report of the International Commission on Intervention and State Sovereignty." Canada: International Development Research Centre, 2001.
This supplementary volume to the Commission's Report explores the issue of humanitarian intervention a way to address human rights violations. If an intervention is to be just, parties must be extremely careful not to use tactics that lead to even further violations.
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Examples Illustrating this Topic:
Online (Web) Sources
"Alternative Dispute Resolution in International Contracts." , 1900
Available at: http://www.mac.doc.gov/nafta/contract.htm.
This brochure outlines some of the possible methods of ADR available to parties contracting within the NAFTA region. It provides model clauses that may be inserted into contracts, as well as a description of additional matters that may be effectively included in such clauses. It also describes the principal arbitration institutions available in the NAFTA region and some criteria to aid the parties in choosing which institution may be most appropriate for the particular contract, if the parties decide to use an institution to administer the arbitration.
Goldman, Robert K. "Certain Legal Questions and Issues Raised by the September 11th Attacks." , 2001
Available at: http://www.wcl.american.edu/hrbrief/09/1sept.cfm.
This article raises legal questions that come about from the September 11th terrorist attacks. It discusses, 'two separate, but interrelated branches of international law: the law governing the resort to armed force, and the law applicable to the conduct of hostilities,' (Robert Goldman).
Neethling, Theo. "Military Intervention in Lesotho: Perspectives on Operation Boleas and Beyond." Online Journal of Peace and Conflict Resolution, Vol. 2, No. 2 , May 1999
Available at: http://trinstitute.org/ojpcr/2_2neethling.htm.
This paper is an attempt to shed some light on a number of issues featured in the public debate in South Africa on Operation Boleas. Furthermore, an attempt will be made to provide perspectives from a military viewpoint, with special reference to the South African forces that participated in the operation, as well as the context in which the operation took place.
Offline (Print) Sources
Roberts, Adam. "The Laws of War in the 1990-91 Gulf Conflict." International Security 18:3, January 1994.
This article discusses contemporary conceptions of warfare in relationship to the conflict in the Gulf. This war gave rise to questions surrounding the treatment of hostages, attacks on civilians, use of chemical weapons, and destruction of the environment. It also raised questions about whether the laws of war can effectively restrain and limit war. Roberts discusses how these laws might be made more effective in action, and what how to address violations of these laws.
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Audiovisual Materials on this Topic:
Offline (Print) Sources
The Pinochet Case. Directed and/or Produced by: Guzman, Patricio. First Run Icarus Films. 2001.
This film addresses the issue of Jus in Bello as it follows the international criminal case against Augusto Pinochet of Chile. Click here for more info.
The Trials of Henry Kissinger. Directed and/or Produced by: Gibney, Alex and Eugene Jarecki. First Run Icarus Films. 2002.
This film focuses on Henry Kissinger and documents the role he played in Vietnam, Indonesia, and Chile. It then asks the question, "Is the former Secretary of State and Nobel Peace Prize winner also a war criminal under international law?" Click here for more info.
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