ZGEN2240 Introduction to Military Ethics

Helen Lee, z5056631

Major Report
Are the principles of jus ad bellum still relevant to the types of armed conflicts
which we have seen in the 21st century? Discuss with regard to at least two
specific armed conflicts which have occurred since January 1, 2001.
Although there is a prevalence of humanitarian intervention, insurgency and
counterinsurgency in modern armed conflict, the principles of jus ad bellum are
still relevant to these irregular forms of conflict. Traditionally armed conflict was
defined as a war fought between two or more states or state-like entities. Modern
formes of armed conflict such as humanitarian intervention and
counterinsurgency cannot be categorised so easily. Jus ad bellum is a subdivision
of just war theory which specifically addresses when a state may engage in
armed conflict. It encompasses the principles of just cause, proper authority and
public declaration, probability of success, proportionality and last resort. While
jus ad bellum and just war theory will always apply to armed conflicts, the
methods of application as well as compliance are what leads to doubts about its
relevance.
In the 21st century, there is an increasing occurrence of irregular forms of armed
conflict however the principles of jus ad bellum are still applicable. The principles
of jus ad bellum will always be relevant in any conflict as it is crucial in
maintaining peace after war. If a just war is fought, then there are no grounds for
retaliation after the war is over, therefore allowing for a better chance of lasting
peace. jus ad bellum also limits the reasons a country can declare war, thus
aiming to limit armed conflict and the destruction it causes. With the evolution of
the forms of armed conflict, it is imperative that the principles of jus ad bellum
are reaffirmed as well as specific clauses added to address irregular conflicts.
Modern conflict such as humanitarian intervention, insurgency and
counterinsurgency increasingly place pressure on jus ad bellum due to their
irregular nature. Insurgency and counterinsurgency often involve numerous
parties as well as at least one non-state actor. A highly contentious issue with
insurgency and counterinsurgency relates to the principle of just cause proper
authority and public declaration. An example of this is the War on Terror,
specifically the Iraq War (2003), a military campaign undertaken by the United
States of America (US), involving the North Atlantic Treaty Organisation (NATO)
and other US allies following the September 11 attacks on New York and
Washington D.C. The official policy guiding this war declared that no distinction
would be made between terrorists and the rogue states that sponsor or harbour
them1 which resulted in the invasion of Iraq. The War on Terror was seen by
many as a pre-emptive war because the justification for the Invasion of Iraq was

1 Roth, Kenneth. 2004. "The Law of War In The War On Terror". Foreign Affairs.

to prevent terroristic, or other attacks, by Iraq on the US or other nations 2. As a

result, the US was criticised as having invaded a country that did not pose an
imminent threat and thus violating international law. The US had highly
questionable proper authority before launching their invasion. The justification
given was that the use of force against Iraq had already been authorised in 1990
by United Nations Security Council (UNSC) Resolution 678. While most other
members of the UNSC clarified that it was not a legitimate justification, the fact
that the US sought so hard to comply with the principle of proper authority,
even through the manipulation of ambiguous resolutions, emphasises its
continued relevance. Public declaration is rarely an issue as declarations of war
are very public events, involving Heads-of-State and extensive media coverage.
With regards to the principle of just cause, the US sought to pre-emptively
prevent future terrorist attacks which can be seen as unjust. Article 2(4) of the
United Nations Charter (UNC) states that All member states shall refrain... from
the threat or use of force against the territorial integrity or political
independence of any state3 thus making a pre-emptive attack seemingly
illegal. On the other hand, it could be seen as an act of self defence following the
September 11 attacks and that the enemy are the terrorists who seek to
overturn legitimate governments, threaten to undermine the rule of law and the
safety and security of the worlds inhabitants 4. Thus this is an instance of where
the principle of just cause falls down. In this example, is it important that legality
is considered in the principle of just war or is it important that the actual cause is
sufficiently great as to warrant warfare 5. Again, the US desire to justify their
war implies that jus ad bellum is still relevant however it along with international
law can be ambiguous and open to interpretation. This is where doubts regarding
the relevancy of jus ad bellum arise.
Unlike traditional warfare, insurgency and counterinsurgency have unclear end
states or definitions of success. With traditional warfare, the end state was the
recapture of territory or the removal of enemy troops from an area. With
insurgency and counterinsurgency, is success the complete destruction of a
terrorist organisation or is it the continued suppression of the organisation
through conflict to reduce their capability to launch an attack. When it comes to
probability of success, it is reliant on what each nation aims to achieve. The War
on Terror aimed to defeat terrorists and their organisations as well as to deny
sponsorship, support and sanctuary to terrorists 6. In terms of probability of
success, the US would have a reasonable level of success in the deny
sponsorship, support and sanctuary aspect however defeating terrorism
completely would be a rather infeasible goal.
2 Roth, Kenneth. 2004. "The Law of War In The War On Terror". Foreign Affairs.
3 "Chapter I | United Nations". 2016. Un.Org. http://www.un.org/en/sections/uncharter/chapter-i/article-2/.
4 Roth, Kenneth. 2004. "The Law Of War In The War On Terror". Foreign Affairs.
5 Rigstad, Mark. 2007. Jus Ad Bellum After 9/11: A State Of The Art Report. The IPT
Beacon. Oakland University.
6 Roth, Kenneth. 2004. "The Law Of War In The War On Terror". Foreign Affairs.

Proportionality is an interesting principle when used in relation to insurgency and

counterinsurgency. Proportionality is the idea that war is not justified if the costs
will clearly outweigh the benefits 7. It is also important that costs to both sides of
the armed conflict are considered. In a traditional war, it is easier to determine
possible costs as traditionally two or more armies will fight in direct contact. With
insurgency and counterinsurgency, the costs of war are not limited to military
personnel but also to civilians living in areas of conflict. One of the unique factors
of insurgency and counterinsurgency is the tendency of conflicts to occur in
areas of civilian occupation. This is due to insurgents being non military and thus
are able to hide amongst a civilian population. Thus insurgency and
counterinsurgency can result in mass civilian casualties due to their proximity to
the terrorists. Most estimates number at least 100,000 casualties as a result of
the War on Terror with some as high as over a million deaths. Leaked classified
US military documents record 109,032 deaths, both Iraqi and coalition, between
January 2004 and December 2009. This is broken down in to Civilian (66,081).
Host Nation (15,196), Enemy (23,984), and Friendly (3,771) 8. From this, it is
hard to justify the proportionality of the War on Terror, specifically the Iraq War.
The friendly deaths alone exceed the number that died in the September 11
attacks. On the other hand, the War on Terror was one of the earliest
counterinsurgency operations of its scale and the effects could not have been
predicted.
In the case of insurgency and counterinsurgency, war often is the last resort.
Terrorists do not engage in negotiations and are not legally obligated to commit
to any agreements made during negotiations. Terrorists present demands, often
unreasonable, and if those demands are not satisfied, there are no compromises,
just more acts of terror. Therefore, in the case of terrorism and insurgency, only
organised warfare yields results as it depletes the resources, funding and
motivation of terrorist groups. The War on Terror aims to achieve this but also
seeks to undermine the local support of terrorism through the Hearts and Minds
campaign.
Therefore, jus ad bellum is still relevant to insurgency and counterinsurgency as
demonstrated by the US attempts to apply jus ad bellum to the War on Terror
however, due to ambiguities, whether the War on Terror was actually a just war is
debatable.
Humanitarian intervention is another form of irregular armed conflict that has
become prevalent since the end of World War II. Humanitarian intervention is
characterised by the threat and use of military forces as a central feature, it
entails interfering in the internal affairs of a state by sending military forces into
a territory or airspace of a sovereign state that has not committed an act of
aggression against another state and the intervention is in response to situations
that do not necessarily pose direct threats to states strategic interests, but
7 Coleman, Stephen. 2013. Military Ethics. New York: Oxford University Press.
8 Leigh, David. 2010. "Iraq War Logs Reveal 15,000 Previously Unlisted Civilian Deaths".
The Guardian.

instead is motivated by humanitarian objectives9 . While the principles of jus ad

bellum still apply, there are legalities that make humanitarian interventions a
unique situation. According to Article 2(7) of the UNC nothing should authorise
intervention in matters essentially within the domestic jurisdiction of any state 10
however the Treaty of Westphalia, 1648 states the right of sovereign states to act
freely within their own borders. Thus there is continued controversy as to
whether humanitarian intervention should have higher importance than state
sovereignty.
Humanitarian intervention is a just cause as it aims to end human rights abuses,
crimes against humanity and to restore peace. The 2011 Military Intervention in
Libya was a NATO led operation which followed widespread and systematic
attacks against the civilian population by the Libyan regime 11 . The intervention
sought to implement UNSC Resolution 1973 which demanded an immediate
ceasefire, imposed a no-fly zone over Libya, authorised all necessary means to
protect civilians and civilian populated areas and other measures designed to
protect civilians, and impose sanctions on the Gaddafi regime. In 2005, the
Responsibility to Protect (R2P) was endorsed by all member states of the UN. It
declares that sovereignty encompasses an underlying responsibility to protect
populations from human rights violations and crimes against humanity. Libya was
the first time R2P had been invoked following the gross and systematic violation
of human rights12. The principle of just cause is often the basis for humanitarian
intervention and thus it is still relevant.
Proper authority and public declaration is where humanitarian intervention
becomes questionable. As with insurgency and counterinsurgency, public
declaration is rarely a problem as humanitarian interventions are usually widely
declared by Heads-of-State as well as international organisations. Proper
authority is where issues occur. For humanitarian intervention to occur, the host
nation must invite foreign forces to intervene. In some cases, there is no
recognisable government that can extend that invitation. Often in these
situations authority is sought from the UNSC however as previously discussed,
does a UNSC resolution override state sovereignty and therefore is it truly proper
authority? Thus this is another example of how jus ad bellum needs to be
reaffirmed and aspects of international law need to be revised in order to address
and clarify situations that are becoming increasingly common.
In humanitarian interventions, probability of success is usually quite feasible.
Regarding UN peacekeeping, in 2000 a study showed that the presence of a
large peacekeeping operation in a country emerging from civil war significantly
reduced the chances of that society slipping back into violence 13. These findings
were replicated many times in the next fifteen years and is now widely accepted
9 Frye, Alton. 2000. Humanitarian Intervention: Crafting A Workable Doctrine". New York:
Council on Foreign Relations.
10 "Chapter I | United Nations". 2016. Un.Org. http://www.un.org/en/sections/uncharter/chapter-i/.
11 United Nations Security Council,. 2011. Resolution 1970 (2011).
12 United Nations Security Council,. 2011. Resolution 1970 (2011).

among international security scholars. The Intervention in Libya had a high

probability of success due to the overwhelming number of assets available to
enforcing a no-fly zone over Libya. The presence of international forces
authorised by the UNSC would also seek to deter any further violence.
Proportionality is always an important principle to consider to ensure that the
effects of the intervention are not so disproportionate that the outcome is worse
than the initial situation. In the case of Libya, the principle of proportionality was
observed with the use of targeted air strikes. According to the Vatican, 40
civilians were killed during the military intervention. In the course of the 2011
Libyan Civil War the number of estimated casualties range from 14,572 to 18,873
deaths. Hindsight shows that the military intervention was proportionate as it
resulted in a decisive NATO victory with the deaths of only 40 civilians, greatly
reduced from the thousands that died without the presence of international
forces. At the time, the international community would also have anticipated a
proportionate armed conflict which could be achieved with very few casualties
due to the capabilities and assets they had.
As can be seen, the US attempted to apply jus ad bellum to legitimise the War on
Terror however due to ambiguities and loose definitions, there is much discussion
as to whether the War on Terror was actually a just war.
Humanitarian interventions are almost always a last resort when sanctions and
negotiations have failed and there is a large number of civilian casualties. Due to
the controversy surrounding the legality of humanitarian intervention and its
overriding of state sovereignty, it is not invoked lightly. Prior to military
intervention, a number of other measures were taken including freezing the
assets of Gaddafi and his inner circle as well as restricting their travel. This was
followed by the issuing of two arrest warrants for Gaddafi, one by the
International Criminal Court and one by Interpol. Due to the increasing number of
civilian casualties and the level of human rights abuses, military intervention
invoked as a last resort to end the violence against civilians.
Jus ad bellum, while perpetually applicable, is weakened by ambiguity in its
principles and the supporting international laws such as the UNC. Unlike
domestic laws which are supported by precedent established in courts,
international law is often free standing or has very little precedent established
around it. As it cannot address every situation individually, it is left open for
interpretation and even manipulation however there are a number of instances
where the interpretations can seem paradoxical.
Word Count (excluding title, footnotes & bibliography): 2199

13 Doyle, Michael W. and Nicholas Sambanis. 2000. "International Peacebuilding: A

Theoretical And Quantitative Analysis". American Political Science Review 94 (04): 779801. doi:10.2307/2586208.

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