Just War Theory

Just War Theory

This theory dates back to St Augustine who had to persuade the pacifist Christian tradition in Roman times that war can sometimes be necessary. St Aquinas and other theologians later developed this theory. There are three parts to this ethical theory JUS AD BELLUM –rules set out for going to war, JUS IN BELLO – rules set out for being in war and JUS POST BELLO – the nature of how a war is ended.

So what are the Jus Ad Bellum Conditions?

  1. Just cause – in order for a war to be declared there must be a just cause. But who is to judge what is a just cause?
  2. Right intention – It is linked with the part of Natural Law that states that intention is really important. Ulterior motives such as acquiring land or protecting oneself should not be intended. But how can you test/measure intention?

Proportionality – The damage caused by the war should not exceed the good expected to come out. How are you supposed to predict this?

  1. Declaration by a legitimate authority – This principle is linked with this quote from the Bible “Obey the powers that be for they are ordained by God” Romans 13:1-2. Some like Wilcockson say that this principle has been overlooked so that terrorists now have rights of this nature.
  2. Last resort – Every other must have been used before going to war e.g. peaceful negotiations. If an authority has already decided this is what they want to do is there any point in negotiations?
  3. Formal declaration of war – Some countries do not recognise the UN rules for going to war and they may not recognise this principle. We have seen some of the most horrific example of when this rule has been violated e.g. Pearl Harbour
  4. Reason chance of success – There should be a relative chance of success but if one knows they don’t have a chance of success they may feel ashamed in declaring it.

Then what are the Jus In Bello conditions?

There are two conditions according to Just War Theory for how we should behave in war. Jus In Bello requires agents of war to be responsible for their actions.

  1. Principle of discrimination – innocent people or ‘non- combatants’ should not be directly or directly attacked according to the Geneva Convention. Is this really possible?
  2. Principle of proportionality – Minimum force should be used to achieve good and just like with proportionality before the damage caused should not outweigh the good. With nuclear weapons is this really possible?

And what about Jus Post Bello then?

This is a fairy new addition to the Just War Theory. This concerns the aftermath of war and restoring peace and fairness.

Restoring human rights – bringing back the equality and rights that everyone has.

  1. Distinguishing between innocent civilians and those who should be punished
  2. Bringing to trial war criminals and ensuring they receive justice
  3. Giving the defeated country the opportunity to reform.

Principles of Criminal Law

Below competing principles in criminal law are discussed.

  1. Individual Autonomy vs Social Welfare

This is the principle that criminal law should proceed on the basis that individuals should be responsible for their own behaviour. This is of course different to the way children and those with mental illness are treated within the law and that is because they don’t fit into this principle. Example of this principle can be seen in the criminal liability for omissions in English law.

However, critics of this point out that most of our behaviour is anyway socially determined though so this principle is fiction and more accurate principle should be used such as welfare.

The welfare principle comes in direct opposition to the individual autonomy view which stresses on the protection of individuals/society for the greater good. Rouse argues that the law should create conditions so that individuals can make the best autonomous decision and this involves reaching communal good.

The Welfare principle can be see in the law’s adoption of human rights.

Most law making decision revolves around balancing individual autonomy with what is best for society.

 2. Minimalism vs Over-criminalisation and Policy of Social Defence

This is the principle that criminal law should only be implemented in situations where it is absolutely necessary. The idea is that having laws which are difficult to enforce undermines the power of criminal law and thus should be restricted.

Another reason for holding a minimalist position is that the law is intrusive, particularly criminal law, as it involves the state into the lives of individual and some are worried that this could lead to abuse e.g. police corruption.

Further issues that cause many to hold the minimalist stance is that it bears the biggest burden on a small sect of society i.e. those that are male, young and from ethnic backgrounds. This can send negative messages to society. Also, criminal proceedings are expensive, how much public money can we justify spending on criminal proceedings, there are also unaccounted for costs e.g. those found in the black market.

However, this view is challenged by those who support over-criminalisation and a policy of social defence. The over-criminalisation view stresses on the symbolic and powerful nature of law and how this can be used. For example, prior to the criminalisation of drinking and drive offence, it was socially accepted to drink and drive.

Furthermore, advocates of the policy of social defence argue that in order to preserve the good working of the state and state control, it is necessary to criminalise to a level above necessary.

3. Liability for acts only vs Social responsibility and the thin ice principle

The general principle is that criminal liability only exists for positive acts and not omissions, unless a duty situation exists which gives rise to criminal liability.

There are those like Professor Ashworth who advocate a social responsibility view saying that to optimise the potential of criminal law what is necessary to enact some kind of good Samaritan law which makes people liable for omissions to too. The justification for this lies in the fact that that society needs corporation between individuals to function, criminalises those who fail to help others helps in the operation of this.

Furthermore, the thin ice principle suggests that those who are skating on thin ice can’t complain if they fall in, the metaphor being for the criminal legal system. And again here we can compare this to the idea of individual autonomy.

4. Maximum certainty vs Social defence vs Strict Construction vs Proportionate response

Maximum certainty is the idea that the law should be certain because if you had no idea what you were doing is criminal then it unfair to convict you. This supports the idea of individual autonomy and the principle of non-retroactivity found in art 7 of ECHR.

However, advocates of social defence policy would argue alternatively, suggesting that you need flexibility to function effective e.g. it is hard to set out all the possible situations in which murder can be established.

The principle of strict construction relates to the idea that individual’s should be given a fair warning. This entails making sure the language of the law is clear and is relieved of any ambiguities. This ties into the the principle of proportionate response which is that criminal law sanctions should reflect the infliction of harm and should not go above necessary and proportionate.

 5. Men rea vs Objective Liability vs Correspondence vs Fair labelling

The mens rea principle is absolutely crucial to the criminal law function because it ensures that only those with a guilty mind are punished.

However, the competing principle to mens rea is that of objective liability i.e. situations where strict liability or negligence is sufficient to establish a crime e.g. gross negligence manslaughter.

Both these principles tie into the idea of fair labelling, the notion that the crime should describe behaviour and punishment should be appropriate.