Comments on war.

• Author: Dinstein, Yoram

1. LAW V. JUSTICE

   Many theologians, ethicists, political scientists and occasionally even international lawyers would like to revive the "just war" (bellum justum) doctrine in present-day international law. This doctrine was prevalent in the writings of the "fathers of international law" in the sixteenth through the eighteenth centuries. It was borrowed from the Church canonists. Although the roots of the doctrine go back to St. Augustine (early in the fifth century), (1) its principal expression is the Thomist analysis (in the thirteenth century). St. Thomas Aquinas held that a "just war" had to satisfy three cumulative conditions: (i) the authority of a prince (auctoritas principis); (ii) a just cause (causa justa); and (iii) righteous intention (intentio recta). (2)

   Through the writings of the "fathers of international law"--Victoria (who, not coincidentally, was a Spanish Dominican monk) and others--the Thomist ideas percolated from theology into the Law of Nations. But it is important to bear in mind that, from the very beginning, the list of "just causes" was manipulated by the "fathers of international law" to fit the political needs of their respective countries. Thus, Victoria--in addressing Spain's war against the "Indians" in the New World--upheld the justice of that war on the made-to-measure excuse that the Indians had violated the Spaniards' right to travel freely, to carry out trade, and to propagate Christianity. (3)

   Even in its heyday, the "just war" doctrine was mostly a convenient tool or fig-leaf, and States went to war whenever they deemed fit, using or abusing an arbitrary list of "just causes." There is no indication whatever that the "just war" doctrine affected the practice of States by limiting in a perceptible manner their freedom to go to war. No wonder that, by the nineteenth century, the international legal literature abandoned the "just war" doctrine and openly admitted that States had full discretion to "resort to war for a good reason, a bad reason or no reason at all." (4) Through bilateral non-aggression pacts, States could relinquish in individual cases their general right to go to war. But, otherwise, war could be waged whenever it was considered advantageous.

   International law underwent a metamorphosis only in the twentieth century: first (in a somewhat restricted fashion) in the 1928 Kellogg-Briand Pact for Renunciation of War as an Instrument of National Policy, (5) and then--in a sweeping prohibition of the use (and even the threat) of force in international relations--in Article 2(4) of Charter of the United Nations of 1945. As proclaimed by the International Court of Justice, in 1986, in the Nicaragua case, this prohibition is now reflected in customary international law. (6)

   There is no reason to think that the congruence of Charter and customary law on the use of force has disintegrated between 1986 and 2003. Can future customary international law part company in this regard with the law of the Charter? In theory, the answer to the question is affirmative. But one must keep in mind that the interdiction of the use of inter-State force is generally acknowledged today as jus cogens (a peremptory norm). (7) A revision of jus cogens--albeit feasible--is not easy to bring about. (8)

   The overall prohibition of the use of inter-State force is subject to only two exceptions, both explicitly recognized in the Charter: (a) self-defense in response to an armed attack, (9) and (b) military action taken or authorized by the Security Council in a binding decision, following determination of the existence of a threat to the peace, a breach of the peace, or an act of aggression. (10)

   The powers of the Security Council pursuant to the Charter are extensive, but--unless the five Permanent Members (vested with a veto power) are willing to put these powers in play the Security Council may remain aloof (not to say paralyzed) notwithstanding a manifest need for action. If at the same time conditions for invoking the right of self-defense are unfulfilled, the net result is that--under the Charte--no inter-State force can be used lawfully, regardless of the provocation. The only option is to try to settle the dispute by peaceful means, in line with Article 2(3) of the Charter. (11) This can prove very frustrating.

   Despite temptations, I completely reject the notion that the current prohibition of the use of inter-State force is subject to any additional exception not expressly incorporated in the Charter, beside selfdefense and action by--or with the authority of--the Security Council. I unapologetically belong to a school of thought that interprets the text of the Charter very strictly in case of a disagreement regarding its reach or meaning. I am apprehensive of any "creative interpretation" of the Charter, unless it is supported by consistent and uniform practice. (12)

   The U.N. Charter is the counterpart of a constitution in the international community. Article 103 of the Charter promulgates that, in the event of a conflict between obligations derived for U.N. Members from the Charter and their obligations under any other treaty (past or future), the Charter obligations prevails. (13) The primacy over any other stratum of legislation is the hallmark of any constitution. For my part, I strongly adhere to the view that any erosion of the authority of the Charter endangers the stability of the fragile limes protecting the international community against forces of chaos and barbarism.

   It is wrong to believe that the U.N. Charter, in forbidding the use of force in international relations, has followed in the footsteps of the "just war" doctrine. The proscription of inter-State force amounts to a veritable revolution compared to earlier international law. The U.N. Charter has wiped out the pre-existing permissive legal norms concerning recourse to inter-State force and has introduced a whole new set of legal norms based on a jus contra bellum. It is totally irrelevant today whether or not a war is just. The sole question is: is war legal, in accordance with the Charter?

   Since the Nuremberg proceedings of 1945-1946 (which were predicated on the Kellogg-Briand Pact, rather than the Charter), it is clear that waging a war of aggression amounts to a crime against peace. This was the gist of Article 6(a) of the Charter of the International Military Tribunal set up to try the major German war criminals, (14) and the Tribunal pronounced that the criminalization of war of aggression was declaratory of customary international law. (15)

   The crime of aggression is also enumerated in Article 5 of the 1998 Rome Statute of the International Criminal Court as subject to the jurisdiction of the Court, although the Court will not exercise that jurisdiction until a definition of the crime is adopted in the future. (16) While the precise scope of the crime of aggression is hotly debated (hence the delay in arriving at a definition), the concept underlying it is not in dispute.

   Ever since the adoption of the U.N. Charter, there have been attempts from various sides of the political spectrum--to revive the "just war" doctrine. However, resurrecting the "just war" doctrine at the present juncture is dangerous for two reasons: it is used to circumvent the Charter and it blurs the total distinction between the jus ad bellum and the jus in bello.

   As a rule, those who are attempting to reintroduce the "just war" doctrine do so with a transparent reason. What they would like to accomplish is to legitimize war in circumstances when it is mounted in breach of the Charter (because it does not come within the framework of the two exceptions to the prohibition of the use of interState force approved by the Charter). In the past, this approach was characteristic of developing and Socialist countries who wished to allow foreign States to lend military support to "wars of national liberation" against colonial Powers. (17) Today, the context is principally that of "humanitarian intervention" undertaken by mighty developed countries (without the authority of the Security Council) in the face of atrocities and brutal disregard of human rights. (18) The fulcrum of legal debate in the last few years has been the Kosovo Air Campaign launched by NATO against the former Yugoslavia in 1999. The Air Campaign had much to commend it against the backdrop of "ethnic cleansing" and other violations of human rights taking place in Kosovo. Yet--however just the use of force was in the minds of the architects of the Air Campaign--NATO acted in breach of the Charter, inasmuch as it failed to obtain the authorization of the Security Council (and the circumstances would not...