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Global Challenges: Peace October 26, 2010

Assignment: Take Home Exam


Professor: Prof. Jaap de Hoop Scheffer
Markolf von Ketelhodt

Take Home Exam


Question 3:
Under what circumstances, if ever, can use of armed force be 'illegal, but legitimate'? Discuss on the
basis of the evolution of jus ad bellum and examples from case studies!

This paper will discuss the question whether or not the use of armed force can be 'illegal, but legitimate'
and how the concept of jus ad bellum can be used to answer this fundamental question. Before the
question of legality versus legitimacy, regarding the use of armed conflict can be answered, it is vital to
explore the concepts of jus ad bellum and jus in bello, as well as to understand their origins. Also it is
important to understand the differences between legality and legitimacy.
Before the end of the First World War, resorting to armed conflict was an accepted way of
settling differences between states or nations. It was by no means considered to be an illegal act.
According to Robert Kolb the expressions of jus ad bellum and jus in bello are fairly recent criteria that
were introduced to international law in 1919, when “the Covenant of the League of Nations and, in
1928, the Treaty of Paris (Briand-Kellogg Pact) sought to outlaw war” 1. The concept of “Jus ad bellum
refers to the conditions under which one may resort to war or to use force in general” and “jus in bello
governs the conduct of belligerents during a war, and in a broader sense comprises the rights and
obligations of neutral parties as well”.2 One more thing that should be noted, is that these concepts are
mainly concerned with interstate wars and do not really apply to intrastate conflicts. However,
genocide, for example is predominantly an intrastate conflict that in fact is an example of the supreme
violation of jus in bello and a fundamental violation of human rights.
Both jus ad bellum and jus in bello are crucial conceptual tools that help us to understand
whether a war was legal or illegal and whether or not it was a legitimate act of using force.
Understanding the differences between legality and legitimacy is vital in order to answer the
essay question. How can something be illegal, but legitimate? This question can be argued to come
close to a legal philosophical paradox and is extremely difficult to answer in the first place.
1 (01-01-2004 International Review of the Red Cross, Extract from ICRC publication "International humanitarian law: answers to your
questions", http://www.cicr.org/web/eng/siteeng0.nsf/html/5KZJJD)
2 (31-10-1997 International Review of the Red Cross no 320, p.553-562 by Robert Kolb,
http://www.icrc.org/web/eng/siteeng0.nsf/iwplist163/d9dad4ee8533daefc1256b66005affef)
The only way in which the use of armed conflict can be illegal, and legitimate, is if the
legitimacy falls under another countries legal system. This can best be explained by using a simplified
example to illustrate this paradox: If something, say consumption of alcohol is legal in country A, but
illegal in country B, then consuming alcohol in country B is illegal, but a legitimate act from the point
of view of country A. This simplified example can be used as a tool to understand whether or not the
use of armed conflict can be illegal but legitimate.
To illustrate a real life example, one first needs to understand that jus ad bellum is
predominantly based on a western political ideology. The idea of a “just war” is a Western concept and
should be distinguished from the Islamic concept of jihad (Arabic: “striving”), or holy war, which in
Muslim legal theory is the only type of just war.”3 The fact that a legal theory is only true to a coalition
of ideologically and politically like minded states, is perhaps the reason why confusion between
legality and legitimacy arise. One nations acts may be legal and legitimate in their, and their allies eyes,
but not in the eyes of their enemies (states that do not share the same political ideology). This is
perhaps exactly the reason why some political theorists, eg. Carl Schmitt, believe that democratic states
are less likely to engage in war between other democratic states, and hence why the western nations are
so adamant to want to spread democracy.
Take the war in Iraq as an example, where a coalition of Western democratic nations, led by the
US, engaged in armed conflict against the dictatorial regime of Saddam Hussein. The reasons to engage
in armed conflict were plentiful; the war against terror, Saddam's dictatorial regime and violation of
human rights, the fear of Saddam having weapons of mass destruction and the capability of producing
them, spreading democracy, securing the second largest oil fields in the world, etc. It is still unclear
what the exact reason for engaging in warfare was, since the 'official story' changed every few months,
but it is clear that Saddam's regime was run with a different political ideology from the West, and this
might be exactly why misunderstanding and opposition occurred in the first place which then
eventually led to armed conflict. From a legal perspective and considering jus ad bellum, most
academics today would argue that the Iraq war was not legal, but considering Saddams violation of
human rights and the threat he posed to the region, it can be argued that it was justified.
The concept of jus ad bellum is part of the philosophy of international law and international
relations, but the question arises; what about the nations and states that do not agree with international
law? Do the nations who support and enforce international law, have the right to enforce their laws onto
these other nations? If yes, are the sovereign nations of the world loosing their sovereignty. What does

3 Encyclopædia Britannica, James T. Johnson, Just War, http://www.britannica.com/EBchecked/topic/308720/just-war?


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the international community do with North Korea, Iran and Iraq, to name but a few? Does the idea of
jus ad bellum allow the nations who believe in it, to act against those that do not agree or uphold the
same political view or ideology? These are fundamental questions that political philosophers ask, and
should ask themselves in order to find compromises when misunderstanding in international relations
emerge.
To summarize, I would argue that nothing can be 'illegal, but legitimate' since the word
'legitimate', according to the oxford dictionary, is defined as something that is “allowed and acceptable
according to the law”4. Something that is illegal, must be illegitimate and something that is legal is
legitimate. The only way that something can be both, is if one deals with two different legal systems. I
would therefore change the word 'legitimate' to 'justified', perhaps even 'morally justified' in terms of
the essay question to be able to cover a more engaging discussion about jus ad bellum.

Word Count: 1071 words

4 Oxford Dictionary, Legitimate, http://www.oxfordadvancedlearnersdictionary.com/dictionary/legitimate