I have many and weighty reasons for undertaking to write upon this subject. Throughout the Christian world I observed a lack of restraint in relation to war, such as even barbarous races should be ashamed of; I observed that men rush to arms for slight causes, or no cause at all, and that when arms have once been taken up there is no longer any respect for law, divine or human; it is as if, in accordance with a general decree, frenzy had openly let loose for the committing of all crimes.
Hugo Grotius: De Jure Belli ac Pacis (1625)
Writing during the 17th century, Hugo Grotius observed that concerning war neither of two extremes should be allowed:
….a remedy must be found, that men may not believe either that nothing is allowable, or that everything is.
The views he is rejecting might today be referred to as pacifism and realism. The pacifist notion is that war in one way or another is the consummate evil and therefor should be rejected under all circumstances. The realist view acknowledges the pacifist starting point – the evil nature of war – but concludes that war is a world apart constituted by the resort to force where morality and laws have no place: Inter arma silent leges. Once the cruelty of war has become reality, there are no limits as to what might be done to those who started the war in order to restore law and order.
In their own way these views reflect the tension between two moral precepts: The negative duty not intentionally to harm innocent people, on one hand, and the positive obligation to protect innocent people, on the other. These moral principles seem to be at the centre of any debate on the two main questions concerning war and warfare: When and how is it right to fight? The pacifist understands the prohibition against harming others as the more fundamental of the two; the realist holds the obligation to protect others to be more basic.
Though often considered the father of international law, Grotius is by far the first to think of war in moral or legal terms. Outrage against certain acts of war has existed since ancient times. Through history, independent of cultural background and heritage, mankind seems to have shared certain standards concerning war and warfare. These regulations - though mainly concerned with the acts of the enemy and only rarely, if ever, based on pacifism proper - imply that there are limits as to what should be permitted even as acts of war. Acts beyond such limits have been considered either morally or legally impermissible.
Both the nature as well as the course of war however has made it difficult in practice to determine where to draw the line between permissible and impermissible acts of war. The traditional opinion that soldiers are granted some kind of immunity with regard to the war acts they commit, makes it utterly difficult to distinguish between the acceptable and the unacceptable. This concept of immunity has been based on three central military doctrines:
As late as the outbreak of World War II soldiers were in reality protected against any accusations of guilt and would not be held responsible for acts of war committed provided they were performed in the line of duty following superior orders. Soldiers were simply considered professionals and as such entitled to a certain "on the job protection". The superiors on their part were expected to limit their orders for violence within certain parameters. But while the parameters were unclear, soldiers were granted wide range authorisations in order to put the enemy out of action: Every force was allowed until surrender. What proportionality there was applied mainly to civilians, prisoners of war and wounded. Yet, also such innocent third parties could easily become fair military targets wherever the principle of military necessity and the right to reprisals warranted.
The American general Telford Taylor’s observations from the time of the Nuremberg Trials seems to sum up the situation pretty accurate:
War consist largely of acts that would be criminal if performed in time of peace - killing, wounding, kidnapping, destroying or carrying off other people’s property. Such conduct is not regarded as criminal if it takes place in the course of war, because the state of war lays a blanket of immunity over the warriors.
On this background The Nuremberg Charter might well be viewed as an attempt to show in legal terms that this blanket of immunity has its limits. Hence, those prosecuted at Nuremberg were to be held individual responsible for the crimes listed in the charter. This soon became one of the most controversial issues raised by The International Military Tribunal (IMT).
The problem of individual criminal responsibility under international law involves at least to main questions that need to be answered:
Based on it’s charter the IMT declared that individual criminal responsibility does exist at least for such actions as there listed; crimes against peace, war crimes and crimes against humanity:
…..crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.
In other words, IMT holds that if there are such things as recognisable crimes of war, then there should also be recognisable war criminals. If there is aggression there certainly has to be aggressors. If there is perpetration, then there is also perpetrators. This notion rests on the precondition that it is possible not only to name certain crimes of war, but also to identify rules or laws of war from which these crimes stem.
On coming to its conclusions, the IMT were able to draw on several different sources when such laws were to be induced or deduced.
Historically, the Just War Tradition with its centuries long history of development addressing problems related to the questions concerning when and how to wage war, offers an alternative to both the pacifist and the realist approach to war. The roots of the Just War Tradition are to be found in the customs, attitudes and practices of the very societies that contributed to it; namely the Hebraic world, the classical greek and roman world, and later on, the societies of Northern Europe. Today tenets of this tradition are reflected in both national laws of individual states and in the codified international laws of war.
The classical just war criteria might be formulated as three major principles regarding the outbreak of war, the conduct of war and the ends of war:
Hence Just War criteria can be said to have three different scopes: They serve to be (1) preventive in as much as they establish certain limits with regard to whether it is proper to resort to war; (2) limitable in the sense that they define guidelines concerning the conduct of war; and (3) restrictive due to the strong expression that only when ultimately serving the peace, war be can regarded just.
Most classical Just War theorists base their concepts in Natural Law teaching; the notion of a basic ideal law with general validity for all mankind at all times independent of human volition and the factual legislation of different societies. In other words, Natural Law is understood as a source of moral as well as legal norms.
This takes us back to our starting point, namely to Hugo Grotius and his concept of international law. Grotius attempts – at the time of the Thirty Years War – to transform the Just War tradition from a set of moral principles into positive international law. The central theme of his most important work De Jure Belli ac Pacis is that relations between states as relations between individuals should be governed by laws and moral principles. He grounds his theory of international law in a law of nature that is unchangeable – even in the sense that it cannot be changed by God. According to Grotius Natural Law is an expression of universal principles from which man through reason is able to deduce moral truths.
This is not, though, the place to elaborate Hugo Grotius concept of law. He is only brought back on stage to underline the fact that reasoning on war and warfare is not solely dependant on the existence of a positive corpus juris. It is at least questionable whether the existence of legal treaties does provide a fully plausible or coherent account of reasoning on conduct of war. The treaties of the international law of war themselves seems to reflect this assumption. Hence, the so-called Martens Clause of the Fourth Hague Convention states:
Until a more complete code of laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of public conscience. (Italics added)
Legal positivism, through recent years a dominant approach to law, is in need of extra-legal supplement. Such supplement can be provided by moral argument about war and warfare. In my belief this is of crucial importance to the process of justification of norms. The moral argument on these topics exists independently of the legal argument. We do argue about war and have always done so. We try to justify our own conduct and judge the conduct of others. On doing so we draw on commonly used terms and concepts. Michael Walzer is probably right when he states that these justifications and judgements cannot be studied like any record of a criminal court. Still they are both legitimate and highly relevant subjects to study if our purpose is to understand topics related to war and warfare. Examined they would, I believe, reveal a comprehensive and consistent view on war as human activity, a more or less systematic moral doctrine, which sometimes, but not always, overlaps with established legal doctrines.
This lack of distinction between legal rules and moral rules, between what the law actually requires (lex lata) and what it ought to require (lex ferenda), is expressed in chief prosecutor Robert H Jackson’s opening statement at the Nuremberg trials:
The real complaining party at your bar is civilization.....The refuge of the defendants can only be their hope that international law will lag so far behind the moral sense of mankind that conduct which is crime in the moral sense must be regarded as innocent in law. Civilization asks whether law is so laggard as to be utterly helpless to deal with crimes of this magnitude by criminals of this order of importance. (Italics added)
This distinction between the moral doctrine of war and warfare, on one hand, and the legal doctrine, on the other, is the main theme of this dissertation. In what sense and to what degree can the codified international law of war be viewed as an expression of jurisprudence or an expression of ethics? The answer to this question does not only concern the problem of justification connected to the laws of war. It will also have decisive bearings on questions related to problems of application of the same laws. In other words, the inquiry into the relationship between moral and legal aspects of the laws of war set in reality forth the problem of norm validity in general.
The codified laws of war present themselves as part of international law in shape of legal treaties, conventions and pacts. In addition customary law plays a significant role in bellum legale as expressed in the Martens Clause cited above. International law of war seems in other words to have some of the characteristics of English common law in that it is grounded in customs and precedence as well as formal rules. Its purpose is to control both initiations as well as conduct of war whenever conflicts arise between individual states recognising the same laws. On the other hand, the international law of war also has distinct ethical implications.
This conception raises an in this connection important and significant question: How does the ethics relate to the written texts of The International Laws of War? The debate on international law approaches this distinction from several angels. We will here only briefly present three such major approaches:
Legal Positivism
The already mentioned dominant tradition of legal philosophy, positivism, dating from the 19th century, is still accepted in various forms today. Proponents of legal positivism argue that jurisprudence and ethics are unrelated disciplines. That they share a common language of obligation and prohibition is simply a matter of contingency. Generally spoken, the positivist exclude from the science of law any matters of á priori, or metaphysical nature, such as moral obligations. Normative questions concerning which rules of conduct should be declared as de jure laws are distinct from the analytical questions of jurisprudence proper. The system of law is considered a fully contained, logically coherent system, where the role of the judiciary is analytical rather than judgmental. What is required for a rule to be law, is simply that it be declared as such by a duly constituted authority with power to force compliance.
In short, the positivist conception of law consequently relates to The International Laws of War in two different ways: Either, (1) jurisprudence is considered self-sufficient in relation to the conventions. This constitutes the legalist position. Or, (2) due to lack of recognised or effective common authority to enforce compliance or punish non-compliance, the conventions are not considered law at all. Any dilemma of war is limited to the field of ethics. The International Laws of War are mere voluntary moral prescriptions.
Legal positivism implicates a dicotomatic understanding of the laws of war. In as far as the different conventions and treaties are recognised as proper law, they are considered expressions of jurisprudence. Moral is something apart.
Legal Utilitarianism
The second approach to The International Laws of War is characterised by its focus on policy goals. According to this position the conventions themselves represent the moral demands. Not in the sense that they equal morality, but as legal rules and regulations they also represent the moral duties, the demands and the rights connected to war and warfare. In other words the treaties and conventions of The International Laws of War are bearers of a certain morality.
Such a conventionalist utilitarian understanding of the relationship between legal and moral aspects of The International Laws of War also comes in two appearances. In the shape of (1) act utilitarianism its advocates seem to respond to the poverty of the international society with respect to enforcement of international law by defining purposes to that regime, and then to reinterpret the law to fit those purposes, while the adherents of the other version of this notion, that of (2) rule utilitarianism, seem to hold the conventions to be a set of rules based on rational consensus with the sole purpose to limit the effects of war. Hence the conventions is justified by its expectable results.
It would be fair though to ask if not both the legal act utilitarians as well as the rule utilitarians by imposing such a criterion of result rely on an extra-conventional presupposition in their process of justification, namely the pragmatic norm: The least possible destruction, suffering and death.
From a legal point of view the question arise if not the utilitarian position substitute utilitarian argument for legal analysis. Such a substitution is by far uninteresting to our purposes, but it certainly requires a philosophical defence. The crucial question seems to be if the conventions, protocols and treaties constituting The International Laws of War do invite interpretations in terms either of a single purpose or sets of multiple purposes?
A moral based understanding of the laws of war
This third approach to The International Laws of War recognises the conventions as law by their nature. In different ways and on different levels though, they also reflect ethical aspects of life. And, they can be morally justified. This implies that The International Law of War is in an intermediate position between law and ethics. It is more than jurisprudence; it also appears as an expression of morality.
This perspective recognises the historical factors present in the relationship between conventions and morality. The history of the codified conventions spans no longer than the last century. Moral reasoning on the problems of war, relate for instance the long history of the development of Just War Tradition, is of a significant older date. Morality is in this respect prior to the legal conventions.
This intermediate position is also reflected in the way we come to terms with The International Law of War as a set of rules and regulations, duties, and rights. The most immediate resolution seemingly is to understand these concepts in legal terms. The realisation of conventional obligations will then depend on matters identified above under the label of legal positivism. Matters of jurisdiction, sanctions, legal analysis etc will be of decisive importance with regard to the issue of norm application within the laws of war.
On the other hand, this strictly legal context can easily be supplied with a moral context. Rules, obligations and rights will then have to be considered as elements of an ethical concept, a certain morality. Two concepts of ethics is then readily at hand. First and foremost is it reasonable to understand these issues within the framework of deontological ethical theory. The over all focus will then be on the acts themselves as specified by the different treaties and conventions. Less regard will be given to ends, intentions and purposes, or to consequences caused by the different acts. Another topic will on the other hand subsequently arise as a matter of necessity, concerning the realisation of deeds and goods as consequence of the application of different rules, obligations and rights under international laws of war. This should imply that in addition to deontological theories of ethics, teleological oriented theories would be of some importance.
Finely, the fact that The International Laws of War actually are international and thereby accentuate questions related to the problem of pluralism and possible multicultural or cross-cultural consent on moral and legal standard. Several enterprises into this field of problems might be of interest to my own project, some related to the concept of human rights: The World Parliament of the World’s Religions headed by among others the catholic theologian Hans Küng aimed to establish a common moral understanding of the United Nations’ The World Declaration of Human Rights. Similar the Norwegian moral philosopher Tore Lindholm drawing on John Rawls concept of overlapping consensus, insists that human rights can be grounded in natural law teaching. A more theoretical approach to meet these kinds of problems will be the German philosopher Jürgen Habermas deontological theory of discourse ethics developed for the purpose of consensus on norms through formal and pragmatic procedures.
The Problem of Justification
A simple, but still basic and important question to my enterprise is what according to The International Laws of War constitutes different crimes of war? To find the answer to this question, it will be necessary to look behind the different rules and regulations of our sources, trying to identify possible prima facie norms constitutional to The International Law of War. The next step will be to identify bodies of tradition – legal, ethical and also political bodies - in which these prima facie norms can be identified as basic elements.
Based on the presupposition that such prima facie norms are of the outmost motivating importance with regard to norm application and in addition contribute profoundly to put one’s moral actions into a broader perspective, this process of identification is of fundamental importance for the whole issue of norm justification related to The International Law of War.
My previous argument concerning the importance of the moral doctrine of war and warfare implies that this process will draw heavily on both Just War Theory and Natural Law Teaching.
The Problem of Jurisdiction
Questions related to presuppositions necessary to abide by rules and regulations are decisive according to general legal philosophy, and it seems to be related to one’s point of view concerning the relationship between jurisprudence and ethics. What constitutes legal ordinance? What kind of authority are they based on? Of what importance are the possibilities, or contrasted, the lack of possibilities of factual law enforcement?
The problem of jurisdiction related to The International Laws of War accentuate, once again, a central field of problems: Norm validity in general.
The Problem of (Criminal) Responsibility
Related to the question of norm validity are both the questions of norm justification and norm application. The latter actualise another important concept of responsibility for crimes of war; individual as well as command responsibility. These issues have legal as well as moral implications and are closely connected to another important issue: The issue of superior orders.
Three questions of importance will have to be answered in this connection:
The Problem of Military Necessity
The Hague Conventions, The Nuremberg Charter and The Statute of the International Criminal Tribunal for the former Yugoslavia limit the criminal responsibility for war acts committed under reliance to the principle of military necessity. The general understanding of this concept has been based on the principles deduced from the laws of war themselves: The principle of proportionality, the principle of discrimination and the humanitarian principle.
It is fair to ask whether or not the principle of military necessity at least has been a bewildering factor with regard to the general opinion on what The International Law of War de facto declare as illegal and impermissible war acts. It will be necessary to criteria when the principle of military necessity should be allowed to set aside established humanitarian principles. Subsequently it will be necessary to assess whether absolute and invariable ius in bello criteria exist that deprive of any warrant with respect to the principle of military necessity?
My main approach to the problem related to the relationship between moral and legal aspects within The International Law of War reads as follows:
Drawing on the ethical theory, especially that of discourse ethics, but also other deontological theories, is it possible to identify presuppositions for The Charter of the International Military Tribunal at Nuremberg and Statute of the International Criminal Tribunal of the former Yugoslavia, that can throw new light on the legal and moral aspects of war crimes?
Based on what has been said above, I want to elucidate this main approach from five different angels:
This dissertation will mainly deal with war and crimes of war under international law by analysing two distinct major international legal documents; i.e. The Charter of The International Military Tribunal at Nuremberg and Statues of the International Criminal Tribunal for the former Yugoslavia. Its point of departure is, in other words, factual historical material; the juridical basic documents of two in time and space distinct ad hoc war crime tribunals. It is not my intention to exegete these documents in every minor detail. My main focus of attention will, as indicated above, be on those articles in both charters that relate to different crimes of war and to those concerning both the problem of responsibility and that of superior orders; i.e. Articles 6-8 (13) of the Nuremberg Charter and Articles 2-7 of the Statutes of the International Tribunal in Hague will set the agenda for my work. Constitutional and administrative regulations concerning the two tribunals will only be objects for my analysis in as much as they contribute to the main scope of the dissertation.
It is my belief that it is possible through such an analysis to identify and highlight central and fundamental principles within international law of war. These principles will then constitute the foundation for a further inquiry into the relationship between moral and legal aspects within the same law. The specific legal documents themselves are to be considered merely as tools in this connection.
The dissertation approaches the material from two different angels:
Both the basic analysis and the comparison of the documents are intended to serve the same purpose: To establish a normative understanding of the justification of the international law of war. I hold that an approach based on ethical theory in general and on discourse ethics in particular will turn out both adequate and advantageous for that matter. Two of the most prominent features of discourse ethics are the emphasis put on the normative aspect of interpersonal obligations, and the presumption that consensus on objective and universal validity of norms is possible.
Chapter by chapter the dissertation will run along these lines:
Chapter 1 presents the material of the dissertation. The first part of the chapter is concerned with the development of The International Laws of War. The codified international corpus juris concerning war and warfare is understood on background of the century long Just War Tradition and Natural Law Theory. The main principles of international law of war - the right to resort to force, the principle of proportionality, the principle of discrimination and the humanitarian principle, are all derived from the moral and legal reasoning on war represented in these traditions.
The second and third part of the chapter presents the documents that constitute the material basis for this dissertation.
Chapter 2 is an outline of the methodology and the theoretical approach of the dissertation, discussing the use and function of ethical theories in general; focusing in particular on the specific ethical theories on which this dissertation draws. Considerable attention is given to discourse ethics and especially to its notion of norms, norm validity and norm application.
Chapters 3 and 4 constitute the analysis of respectively The Charter of the International Military Tribunal at Nuremberg and The Statute of the International Criminal Tribunal for the former Yugoslavia.
Chapter 5 presents detailed arguments on selected issues: crimes against peace, war crimes, crimes against humanity, military necessity and individual criminal responsibility.
Chapter 6 - The character of The International Laws of War: The relationship between moral and legal aspects within bellum legale -concludes the dissertation reviewing three major approaches to the laws of war, respectively a dicotomatic, a conventionalist and a moral based understanding of the laws of war. My argument will be that The International Law of War is more than legal treaties, conventions and pacts. The individual texts of the codified corpus juris on war and warfare go beyond the limits of legal ordinances. First and foremost they present themselves as an expression of morality.
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