Law, Force and Context

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Law Force and Legitimacy

Describe the key principles of just war theory, with particular reference to jus in bello principles. Do these principles adequately cover the key contingencies involving the use of force today?



Kurt Menzies

“To make war upon rebellion is messy and slow, like eating soup with a knife.”

- T.E. Lawrence -

State on state conflict finds it ethical grounding in Just War Theory and its legal framework in the Laws Of Armed Conflict (LOAC) and International Humanitarian Law (IHL). Where forces are quite evenly matched and stem from opposing states, this Just War Theory (JWT) can be applied, and the LOAC can be enforced, to ensure the war is ethical and legal. However, many modern conflicts; rebellion, terrorism, asymmetric warfare, insurgency and counter-insurgency; struggle to fit this same mould. This can make complying with these legalities far more difficult for the state borne forces that are called upon to fight such conflicts. While it may be difficult, ‘like eating soup with a knife’, the principles of JWT do offer solid grounds for modern military forces. This paper will firstly describe the principles of JWT and then go on to analyse how the four principles of jus in bello still cover the key contingencies involving the use of force today.

JTW is widely considered to have two main facets. The first cover the principles which make it ethically right to go to war - jus ad bellum. The second are those principles which ensure ethical conduct within war - jus in bello. It is largely this JWT that modern day LOAC is based on. Under Jus ad bellum, there are six key tenets; just cause, right intention, proper authority, last resort, likelihood of success and proportionality. Just cause prescribes that a state should only go to war for morally acceptable reasons such as self-defence or the protection of innocents. Right intention ensures that a state is only going to war to protect itself, or achieve...