Hugo Grotius and the Just War
Grotius’s effort to establish a concise corpus of international law for the conduct of war represents the culmination of a thousand years of gradually reducing moral principles to objective criteria. Grotius realized, however, the impossibility of a completely objective standard of justice; for the conduct of human affairs, even the most objective criteria must be subjectively applied.
Hence, his work includes not only a system of specific laws but also a discussion of the principles behind them (their purpose or “intention”) and guidance concerning their application. Because no legislative body existed to formally “declare” his system of international jurisprudence as positive law, Grotius had to depend on reason and custom as the authority behind his laws, and on private conscience and public condemnation as his sanctions. We will return to the efficacy of these foundations in more detail in our discussion of modern international law (Chapter 7).
Grotius’s laws of war deserve examination from two distinct and independent perspectives: jus ad bellum and jus in bello. His primary objective is to prevent war; failing to prevent it, he seeks to minimize its brutality. The specific proscriptions of these two dimensions of the theory of Just War are disproportionately represented in modern international legal documents, although the prin-ciples upon which they are based are evident, as we shall see. Let us begin with his conditions for jus ad bellum.
Grotius’s abhorrence of war is a recurring theme in his work. In the dedication of The Law of War and Peace to Louis XIII of France Grotius writes:
It is worthy of your devotion to duty, worthy of your exalted estate, not to attempt to despoll anyone of his rights by force of arms, not to disturb ancient boundaries: but in war to continue the work of peace, and not to commence war save with the desire to end it at the earliest possible moment…. This will be a very great achievement. Yet the peoples of Christian lands are so bold as to ask of you something further that, with the extinction of warfare everywhere, through your initiative peace may come again.
While Grotius’s objective is to avoid war, he is not a pacifist: “For both extremes [pacifism and realism] a remedy must be found, that men may not believe either that nothing is allowable, or that everything is.”
Recognizing that national perspectives can never be truly objective, he lays out a detailed set of criteria for nations to use in evaluating situations that might warrant the use of force. These criteria constitute his concept of jus ad bellum and must be met in order for a war to be formally just.
Jus ad Bellum
Modern Just War theory recognizes as many as eight conditions necessary to justify a nation’s resorting to arms. Grotius discusses seven of these, but accepts only six. Since the seven that he does address have their origins in works that we have discussed in previous chapters, our summary of them here will be brief. We will examine the one modern addition to the list last.
The first necessary jus ad bellum condition that must be satisfied prior to the resort to arms is that there be a just cause. For Grotius this means that the nation contemplating the resort to arms must identify an injury received. He often frames his examples of just causes in terms of violations of rights. In addition to defense of self or property, other just causes arise when a ruler, even a ruler in another state, “inflicts upon his subjects such treatment as no one is warranted in inflicting.” and to punish or prevent humanitarian abuses “for the good of mankind in general.”
Grotius considers forbids a man to do anything whereby another may be harmed, punishment just only when it aims at some good because “reason unless this action has some good end in view.”5 Clearly, then, Grotius classifies as just only those wars that are waged either in self-defense or to inflict punishment after an injury has been received. This effectively forbids wars of anticipation or security:
Fear with respect to a neighboring power is not a sufficient cause. For in order that self-defense may be lawful it must be necessary: and it is not necessary unless we are certain, not only regarding the power of our neighbor, but also regarding his intention; the degree of certainty required is that which is accepted in morals.
And elsewhere he states “that the possibility of being attacked confers the right to attack is abhorrent to every principle of equity.” War, then, is a legal remedy-albeit an extraordinary one-that is undertaken only in response to a serious injustice and only after ordinary procedures of resolution have failed.
Grotius’s discussion of unjust and doubtful causes is as telling as his list of just ones. In his treatment of “advantage” as an example of an unjust cause (the shortest subchapter in the text, reproduced here in its entirety), he exclaims:
VI. Advantage does not confer the same right as necessity.
He later adds that if there is any doubt as to whether a cause is just, one must refrain from war because “in consequence of war a great many sufferings usually fall upon even innocent persons. Therefore in the midst of divergent opinions we must lean toward peace. ”
The expression “just cause” is misleading because the term seems to imply a sufficient justification. We should keep in mind that while a just cause is a necessary condition for the resort to arms, it is not itself a sufficient reason: even if a nation has received an injury constituting a just cause for war, it cannot go to war justly unless the remaining jus ad bellum conditions are met.
The second jus ad bellum criterion is proportionality. By this notion Grotius intends to ensure that the good toward which the war aims is proportional to the evil that the war will cause.
The king who undertakes a war for trivial reasons, or to exact unnecessary penalties, is responsible to his subjects for making good the losses which arise there from. For the perpetrates a crime, if not against the foe, yet against his own people, by involving them in so serious an evil on such grounds.
The requirement that wars be proportional to the costs entailed in prosecuting those serves two purposes. First, it demands a utilitarian calculation of the consequences that will result from resorting to arms. In this regard, Grotius makes the enlightened statement (two centuries before Bentham and Mill) that “kings who measure up to the rule of wisdom take account not only of the nation which has been committed to them, but of the whole human race.
Note that rulers cannot meet the condition of proportional- ity by considering only the war’s consequences for the citizens of their own nation; rulers must also consider how their actions might affect others in the world community. And elsewhere Grotius notes that if the rulers harbor any doubts concerning the balance of good over evil that will result from the use of force, war must not be undertaken.
cal end toward which the war is directed, an end determined in The condition of proportionality also requires a specific polio whether the political objective stimulating armed conflict is proper advance of the use of force. It is, after all, impossible to determination to the expected costs without first clearly articulating the political objective. Once a nation sets its political objectives, fighting aimed specifically at other objectives may well generate costs that violate the condition of proportionality and thereby render the war unjust. A war justly begun might, therefore, become unjust during its execution because of violations of the condition of proportionality.
For example, the United Nations authorized the use of force against Iraq in response to Iraq’s unprovoked 1990 invasion of Kuwait. After defeat of the Iraqi armed forces in Kuwait, the Commander of the United Nations forces, General Norman Schwarzkopf, advocated pursuing the Iraqi army into Baghdad in order to destroy the Iraqi army and to topple Saddam Hussein’s government.
Such action would have exceeded the United Nations resolution authorizing force, however, and may have violated the condition of proportionality by generating costs aimed at a new political end rather than the one established at the outset. Nevertheless, given his role as tactical adviser.
General Schwarzkopf’s recommendation was appropriate from a military perspective. General Schwarzkopf apparently did not keep in mind that the franchise on jus ad bellum decisions belongs solely to the political establishment. As a result, at a news conference he publicly lamented that his recommendation for invading Iraq was not approved, later had to retract his public statements, and was “corrected” by his superiors for his indiscretion.
Read: Hugo Grotius: Father of International Law Chap#5 Part2
This example is startlingly similar in principle to General Douglas MacArthur’s public insistence that U.S. forces expand their military operations into Manchuria in pursuit of the North Korean army, thereby exceeding the stated political objective of the Korean War-a decision for which General MacArthur was relieved of his command by President Truman.
These examples make the crucial point that the political object of the war is always determined by public officials representing their nation’s citizens. This objective must be articulated before the start of hostilities, and any change to the war’s political objective must also be a political decision, subject to the same jus ad bellum criteria as the resort to force in the first place. In any case, the political objectives of Just War are always limited in that wars of annihilation, “even against the wicked,” are always unjust, and that wars should be fought “only so far that crimes may be remedied and corrected.”
Some people have argued that the Iraq-United Nations War was unjust because the number of Iraqi casualties (an estimated 40,000 Iraqi soldiers killed in combat and thousands of civilians dead from hardship and disease as a result of extensive damage to the Iraqi infrastructure) was out of proportion to the political objectives of the war.
This “backward looking” criticism seems to me to be sophistry for two reasons. First, the responsibility for the deaths of Iraqi soldiers must rest with the Iraqi government. Iraq could have prevented or ended the war at any time by complying with the mandate of the United Nations Security Council. Second, the criticism confuses how the war was fought (jus in bello) with the question of whether it should have been fought (jus ad bellum).
Perhaps the destruction to Iraq’s infrastructure was excessive-especially the bombing of sewage and water-treatment facilities. If so, this is a criticism of how the United Nations coalition fought the war, it is logically independent of the Jus ad bellum criterion that the political objectives of the war be proportional to terrible costs reasonably associated with the resort to force. We will return to the jus in bello issues in later discussions.
The next jus ad bellum condition requires that there be a reasonable chance of success. Grotius rejects the “give me liberty or give me death” aphorism on the grounds that “life is of greater value than liberty.” This view constitutes not a rejection of fighting for freedom, but a rejection of futile or suicidal resistance. This condition also has important implications for timing a nation’s surrender.
The fourth condition demands that nations publicly declare their wars. The purpose here is twofold. Declaration of war provides the offending party the opportunity to offer redress in lieu of violence, Second, nations must conduct war in a manner that establishes “with certainty that war is not being waged by private initiative but by the will of each of the two peoples or their lawful] heads.”
In other words, public declaration opens to public debate the judgment of whether or not the injury received warrants resort to arms. As an example, Grotius cites the Roman Senate’s practice of debating whether to undertake war after they had first ruled that the war could be justly undertaken.
Some modern critics argue that the requirement for public declaration is no longer reasonable because the time it takes to initiate an attack today is but an instant compared to the time it took to raise an army and march to enemy territory in Grotius’s age. In practice, they claim, it would be foolish for a nation to declare its intention to go to war in a manner that affords the opposing nation the opportunity for a preemptive attack.
This “why should I obey the law or do what I recognize to be morally right when others do not?” objection is not very convincing. As Grotius notes in responding to a similar objection:
This consideration does enter into deliberations regarding war, 1 admit, but only on grounds of expediency, not of justice…. But that the possibility of being attacked confers the right to attack is abhor- rent to every principle of equity. Human life exists under such conditions that complete security is never guaranteed to us.
Moreover, it is not at all clear that a declaration of war pro- vides a significant advantage to the offending nation. Even when we consider nuclear missiles, which are the most instantaneous and decisive means for initiating war, the present state of the world is such that those nations that would be most affected by a preemptive attack (instead of a retaliatory one), maintain a constant vigilance against the same. It is not at all clear that a nation would gain a significant strategic advantage by initiating an attack without warning instead of declaring an intention to attack unless demands nation’s political goals include the complete subjugation of another are met.
Declarations appear strategically nonsensical only if a assurances that he had no hostile intentions toward Kuwait right nation. One need only recall Saddam Hussein’s continued public prior to World War II. A thief does not care whether the bank is up to the time of the invasion, or Adolf Hitler’s similar prevarication open or not, and he certainly is not going to announce his intention.
Finally, a public declaration of war conveys to the population of the offending nation a unity of purpose in the population of the declaring nation. It announces to their counterparts that “an injus- tice has been committed and we are prepared to resort to arms to correct it.” This must certainly provide a great incentive to “settle out of court.” The fact that it is a public declaration distinguishes it from a kind of political blackmail, which is by its very nature secretive.
A fifth jus ad bellum criterion is that only a legitimate authority may declare war. Grotius is careful to specify that this does not include “public officials not having sovereign power” (such as Admiral John Poindexter or Lieutenant Colonel Oliver North), but only the duly constituted ruler who speaks with the authority of the populace and who does not have recourse to a higher authority for arbitration.
This condition is more complex than it first appears, especially for democratic governments. In the United States, for example, the Constitution specifies that the authority to declare war rests with the Congress. Nevertheless, ever since 1945 the United States has been involved in full-scale wars in Korea, Vietnam, and the Middle East, as well as significant military actions in Grenada, Lebanon, Libya, and Panama, without a single declaration of war by Congress.
The War Powers Resolution, passed in 1973 over President Nixon’s veto, was an attempt by Congress to regain the authority for waging war. It stipulates (among other things) that while the President may commit troops to combat without congressional approval (although he must notify and consult with Congress within forty-eight hours), combat must end within sixty days unless changing events while Congress debates the continued use of armed intervention.
Authority as the Commander-in-Chief to respond rapidly to fast Congress extends the deadline. The resolution allows the President War Powers Resolution to be an unconstitutional limitation on the Although every President since Richard Nixon has claimed the President’s power as Commander-in-Chief, the U.S. Supreme Court fusion concerning the commitment of American forces against Iraq has declined to adjudicate the debate. One need only recall the con to realize the difficulty this ambiguity poses for the condition of legitimate authority.
Recall that after the United Nations passed a resolution authorizing the use of force, President George Bush announced his intentions to mass U.S. combat forces in the Middle East and to use these forces to effect Iraq’s withdrawal from Kuwait. While the U.S. should be committed to combat, President Bush made it perfectly Congress became embroiled in a debate on whether U.S. troops clear that while he would welcome congressional support, he did congressional approval. His “threat” became moot on January 12, not require it and that he would employ U.S. forces with or without 1991, when the U.S. Senate voted 52 to 47 in favor of the use of force.
Suppose, however, that just three senators had voted the other way: suppose the vote had been 50 to 49 against supporting President Bush’s plan?
On other occasions American Presidents have used force with- out congressional approval, but there has never been a case of a President using force despite congressional disapproval. The U.S. Constitution seems clearly to grant only Congress the authority to declare war. Would the military establishment have carried out the orders of the President, who is, as the Commander-in-Chief of the Armed Forces, its superior officer; or would it have obeyed the congressional mandate and refused to enter Kuwait? The oath of allegiance that all U.S.
Military officers take upon receiving their com- mission is “to support and defend the Constitution of the United States against all enemies, foreign and domestic.” This differs from the oath of enlisted personnel, who swear to “obey the lawful orders of my officers and those appointed over me.” The difference in the wording of the two oaths seems to imply that the officer corps would have a duty to support a congressional mandate in accordance with the Constitution, even if this meant disobeying their Commander- in-Chief.
I am convinced, however, that the American military would have unquestionably obeyed the orders of President Bush in this case no matter how Congress voted. Regardless of the way that issues internal to the United States might be resolved in such cases, the jus ad bellum requirement that of the people of the nation-would be met in principle either way as far as the international community is concerned.
Finally, Grotius specifies that war must always be a last resort, undertaken only when all of the other five conditions have been met and when no other means achieves satisfactory resolution.
He proposes that attempts be made to obviate war by conference, by arbitration, by lot, or by single combat. He considers war so heinous an evil that in order to avoid it “an innocent citizen may be delivered into the hands of the enemy, in order to prevent the ruin otherwise threatening the state.” He concludes that “a cause for engaging in war which either may not be passed over, or ought not to be, is exceptional. ”
During the Iraq-United Nations War, there was much debate over whether the U.N. coalition forces had given economic sanctions and the blockade of Iraqi ports a fair chance to work prior to initiating an outright attack. One argument held that the U.N. coalition had violated the criterion of last resort by using force when it did. This criticism completely misunderstands that the “last resort” condition is meant to restrain nations that are considering initiating hostilities-it is not relevant to nations that have already been attacked! The first purpose of maintaining a standing army is to deter aggression; but another purpose is to be able to respond immediately when deterrence fails. The condition of last resort was met as soon as Iraqi soldiers invaded Kuwait.
The traditional jus ad bellum condition that Grotius omits is the Augustinian stipulation that war only be undertaken with right intention (sometimes referred to as “right aim”). Grotius argues that while all of his conditions must be subjectively assessed, they are objective in the sense that they apply to relationships between states. Intentions, on the other hand, refer to the internal states of individual agents. Thus, they cannot change the justice or injustice of the war itself, In Grotius’s words.