How is War Legal?
War has been a part of human history for centuries, with societies and nations engaging in conflict to protect their interests, defend their territories, or impose their values on others. While war can be devastating and destructive, many argue that it can be justified and even necessary. But how is war legal?
The Just War Theory
The just war theory provides one of the earliest and most influential frameworks for understanding when war is legal. The theory, which has been debated and refined for centuries, proposes that war is justified only when it meets certain criteria. These criteria include:
• Jus ad bellum (right to wage war): War is justified when it is fought in response to a legitimate grievance, such as aggression, self-defense, or to protect innocent lives.
• Jus in bello (justice in war): War must be fought in a just manner, with minimal harm to non-combatants and a proportionate response to the harm caused.
According to the just war theory, war is illegal if it is not fought in accordance with these principles. This theory is rooted in Christian and Natural Law traditions and has had a significant impact on Western thought and international law.
International Law and War
International law, which has developed since the end of World War I, provides another framework for understanding when war is legal. The Hague and Geneva Conventions, a series of treaties signed by many countries, set out rules for the conduct of war, including:
- The Hague Convention (1899 and 1907): Establishes rules for the treatment of prisoners of war, civilian populations, and neutral parties.
- The Geneva Conventions (1949 and 1977): Provide protections for civilian populations, prisoners of war, and wounded and sick combatants.
The conventions also prohibit certain conduct in war, such as biological warfare, chemical warfare, and attacks on civilians and neutral parties.
Security Council Resolutions
Security Council resolutions by the United Nations, which are binding on UN member states, provide another basis for legal authorization for war. The Security Council has the power to:
- Authorize collective action: The Security Council can authorize member states to use military force to maintain international peace and security.
- Maintain international peace and security: The Security Council has the responsibility to maintain international peace and security, and it can take measures, including military action, to fulfill this responsibility.
Some significant Security Council resolutions related to war include:
- Resolution 678 (1990): Authorizes member states to use "all necessary means" to liberate Kuwait from Iraq.
- Resolution 1419 (2002): Authorizes the UN-authorized intervention in Afghanistan to combat terrorism.
- Resolution 1973 (2011): Authorizes member states to take "all necessary measures" to protect civilians in Libya.
War Crime Tribunals and Punishment
War crimes tribunals established after World War II and during the Yugoslav conflicts demonstrate the legal consequences for leaders and individuals who violate the laws of war. These tribunals, including the Nuremberg Trials and the International Criminal Tribunal for the former Yugoslavia (ICTY), have punished individuals for:
• Crimes against humanity
• War crimes
• Genocide
These tribunals serve as a deterrent and contribute to the development of a culture of accountability for military leaders and individuals involved in armed conflicts.
Constitutional and Legal Challenges
In some countries, constitutional and legal challenges to war may be raised by citizens, legislatures, or judges. For example:
• In the United States: The War Powers Resolution (1973) provides a framework for presidential military actions and requires the president to seek congressional approval after 60 days of undeclared war.
• In the United Kingdom: The Hansard procedure allows Parliament to question the prime minister about the conduct of war and holds the government accountable for military actions.
Conclusion
War is legal when it is fought in accordance with international law, security council resolutions, and constitutional principles. The just war theory provides a framework for understanding when war is justified, while international law sets out rules for the conduct of war and the punishment of war crimes. The security council, war crime tribunals, and constitutional and legal challenges also play important roles in shaping our understanding of when war is legal.
Appendix: Table of Major Wars and Conflicts Since World War II
| Conflict | Countries Involved | Date | Legitimization | Casualties |
|---|---|---|---|---|
| Korean War | North and South Korea, China, United States | 1950-1953 | Security Council Resolutions | 1-4 million |
| Vietnam War | North and South Vietnam, United States, South Korea | 1955-1975 | None | 2-4 million |
| Falklands War | United Kingdom, Argentina | 1982 | None | 649-900 |
| Gulf War | Iraq, Kuwait, United States | 1990-1991 | Security Council Resolution 678 | 10,000-200,000 |
| Bosnian War | Bosnia, Croatia, Serbia | 1992-1995 | None | 14,000-40,000 |
| Kosovo War | Serbia, NATO countries | 1999 | Security Council Resolution 1203 | 1,200-10,000 |
| Afghanistan War | United States, Afghanistan | 2001-present | None | 31,000-50,000 |
| Iraq War | Iraq, United States | 2003-2011 | None | 655,000-1 million |
| Libyan Civil War | Libya, NATO countries | 2011 | Security Council Resolution 1973 | 10,000-30,000 |
| Syrian Civil War | Syria, various regional actors | 2011-present | None | 12,000-250,000 |
Note: Casualty estimates vary widely and are approximate. Legitimization refers to whether the conflict was authorized by international law or a specific government.
