Just War—from “aggression and crimes against peace” to “war crimes”

I am reading Larry May’s discussion of traditional jus ad bellum and jus in bello principles in his book Aggression and Crimes Against Peace  (Cambridge University Press, 2008), which begins with an examination of the ideas of Alberico Gentili (wrote at end of 16th century) and Hugo Grotius (wrote at beginning of 17th century). Among the tidbits I just learned: (i) Gentili “sets the stage for the Bush Doctrine of seeing war as a legitimate means of self-defense even if there is little or no evidence that a danger is impending [or ‘imminent’];” (ii) Grotius, often considered the “founder of international law,” had no formal training in law, although he did have “an important professorship at Leiden in the Netherlands;” (iii) and that, “like Gentili, Grotius also represented various States in international disputes, most famously defending the Dutch for seizing pirate ships that contained vast fortunes that had been stolen from other European countries and not returning the stole goods to those countries” (reminding one of the bad behavior in our time and place of art galleries, auction houses, and museums with respect to items with known or possible criminal pedigree). This is but a mere taste—on the tip of the tongue—of the intellectually savory material set out by May.

May’s treatment is largely within (‘largely’ because at time it departs from) the Just War tradition of morality, law, and politics in the West, which evolved out of Christianity and Islam, the former commencing with Augustine. Nonetheless, questions of war and ethics first arose in the Indic/Indian civilization (what is misleadingly reduced to what is now known as ‘Hinduism’), then among ancient Israelites and the Chinese. But it is in Christianity and Islam that we find a more explicitly articulated and consistent moral and legal tradition about what constitutes “just war,” which might be loosely defined as the search for a middle ground between absolute pacifism and “anything goes.” Although the “just war” tradition arose within religious worldviews, like morality and ethics generally it eventually became distinguished as a secular form of (moral and legal) discourse on the justification of war as well as the moral and legal principles deemed necessary to constrain the conduct of any war, be it justified in the first instance or not. In contemporary international humanitarian law (IHL), as noted by one of its foremost authorities, the International Committee of the Red Cross (ICRC),

“Jus in bello regulates the conduct of parties engaged in an armed conflict. IHL is synonymous with jus in bello; it seeks to minimize suffering in armed conflicts, notably by protecting and assisting all victims of armed conflict to the greatest extent possible. IHL applies to the belligerent parties irrespective of the reasons for the conflict or the justness of the causes for which they are fighting. If it were otherwise, implementing the law would be impossible, since every party would claim to be a victim of aggression. Moreover, IHL is intended to protect victims of armed conflicts regardless of party affiliation. That is why jus in bello must remain independent of jus ad bellum.”

Thus while distinguishable, and for many purposes independent (May shows how the moral and legal questions sometimes blur this distinction, thus jus in bello and jus ad bellum are in places and at times demonstrably and unavoidably related to each other), IHL focuses on jus in bello, while contemporary international criminal law, especially in light of the United Nations Charter (1945), concerns itself with jus ad bellum, or what is today termed “aggression and crimes against peace.”

I have introduced these terms so as to make it easier to follow more discussion and arguments from May’s book that I hope to soon share.

Further Reading (a very select list)

• Armstrong, Karen. Holy War: The Crusades and Their Impact on Today’s World (Anchor Books, 1992).
• Buchanan, Allen. Human Rights, Legitimacy, and the Use of Force (Oxford University Press, 2010).
• Byers, Michael. War Law: Understanding International Law and Armed Conflicts (Grove Press, 2006).
• Cassese, Antonio. International Criminal Law (Oxford University Press, 2003).
• Cassese, Antonio, ed. The Oxford Companion to International Criminal Justice (Oxford University Press, 2009).
• Clapham, Andrew and Paola Gaeta, eds. The Oxford Handbook of International Law in Armed Conflict (Oxford University Press, 2013).
• Coady, C.A.J. Morality and Political Violence (Cambridge University Press, 2008).
• Cryer, Robert, Hakan Friman, Darryl Robinson and Elizabeth Wilmshurst, eds. An Introduction to International Criminal Law and Procedure (Cambridge University Press, 2007).
• Dinstein, Yoram. War, Aggression, and Self-Defense (Cambridge University Press, 6th ed., 2017)
• Elshtain, Jean Bethke, ed. Just War Theory (New York University Press, 2002).
• Gentili, Alberico. (John C. Rolfe, tr.) De Jure Belli (On the Law of War) (Clarendon Press, 1933 [1598]).
• Grotius, Hugo. (Francis W. Kelsey, tr.) De Juri Belli ac Pacis (On the Law of War and Peace) (Clarendon Press, 1925 [1625]).
• Haque, Adil Ahmad. Law and Morality at War (Oxford University Press, 2017).
• Johnson, James Turner. The Holy War Idea in Western and Islamic Traditions (Pennsylvania State University Press, 1997).
• Johnson, James Turner and John Kelsay, eds. Cross, Crescent and Sword: The Justification and Limitation of War in Western and Islamic Tradition (Greenwood Press, 1990).
• Kelsay, John and James Turner Johnson, eds. Just War and Jihad: Historical and Theoretical Perspectives on War and Peace in Western and Islamic Traditions (Greenwood Press, 1991)
• Lindley-French, Julian. The Oxford Handbook of War (Oxford University Press, 2012).
• May, Larry. War Crimes and Just War (Cambridge University Press, 2007).
• May, Larry. Aggression and Crimes Against Peace (Cambridge University Press, 2008).
• May, Larry. Contingent Pacifism: Revisiting Just War Theory (Cambridge University Press, 2015).
• Neff, Stephen. War and the Law of Nations (Cambridge University Press, 2005).
• Popovski, Vesselin, Gregory M. Reichberg, and Nicholas Turner, eds. World Religions and Norms of War (United Nations University Press, 2009).
• Reichberg, Gregory M. and Henrik Syse (with Nicole M. Hartwell). Religion, War, and Ethics: A Sourcebook of Textual Traditions (Cambridge University Press, 2014).
• Walzer, Michael. Just and Unjust Wars (Basic Books, 5th ed., 2015).
• Zolo, Danilo (M.W. Weir, trans). Victors’ Justice: From Nuremberg to Baghdad (Verso, 2009).

For more titles, please see these two compilations: (i) International Criminal Law and (ii) Violent Conflict and the Laws of War, freely available on my Academia page.