The two pages on this site of mine (Ray Dubuque) are based on an excellent study entitled "JUST WAR THEORY AND
THE RECENT (1996 ) U.S. AIR STRIKES AGAINST IRAQ, by Mark Edward DeForrest, an Assoc. Professor of Legal Research and Writing at Gonzaga University. I have separated his study into two pages in order to present only the theoretical part in this page, and then the application of "The PRINCIPLES of JUST WAR " to the particular instance Professor DeForrest lays out in great detail in a separate page.

I. INTRODUCTION (1)

One of the perennial realities of human existence is war. From the earliest recorded events of human history all the way through to modern times, human communities have engaged in armed conflict as a method of dispute resolution. While war has been a constant part of the human experience, there has also been a tendency within virtually all human civilizations to limit the extent of war and the methods by which warfare may be conducted.(2) In Western civilization, this limitation on warfare has taken shape as an effort to limit both the determination of when war is appropriate and the means used in battle.(3)
        Within the Western moral, legal, and political arena, the connected questions of when war is appropriate and what means are acceptable in warfare has been the subject of a great deal of examination. The basic theory which has arisen within Western culture to evaluate the legitimacy of military action is called just war theory.(4) The just war theory has received widespread acceptance both within Western culture and in the international community as a means by which a war may be determined to be justified or not.(5) Just war theory, which has both religious and secular proponents, is perhaps the most universally recognized moral theory by which the use of force may be evaluated.
        This article will attempt to determine whether the decision by the United States government to launch air strikes against Iraqi military forces in September, 1996 is justified under just war theory. This article will first present a general overview of just war theory, including its background, main sources, and generally recognized principles. This article will then present a brief factual overview of the U.S. action, and will analyze that action in light of the criteria of just war theory, demonstrating that the recent U.S. military strikes against Iraq do not meet the criteria of just war theory as commonly understood.

II. A GENERAL OVERVIEW OF JUST WAR THEORY

A. BACKGROUND ON JUST WAR THEORY

        Just war theory has a varied and diverse background.(6) The just war tradition includes the contributions of philosophers and theologians dating back to Roman times. As James Tuner Johnson has pointed out, Just war is an historical tradition formed by experience and reflection, including much that is neither specifically theological (or even religious), nor philosophical. It has been strongly influenced by international law, the traditions of chivalry, and soldierly practices derived from the experience of many battles.(7)
        Just war theory as a method of evaluating military actions has been recognized historically by thinkers as varied as Cicero, St. Augustine, St. Thomas Aquinas, Grotius, and Daniel Webster. It is a theory which has been used by Christians and non-Christians alike to determine whether or not the decision to go to war and the means used to prosecute that war are just. It is crucial to keep this varied and complex pedigree of the just war tradition in mind when dealing with just war theory, otherwise it becomes possible to restrict the "breadth and diversity of the tradition,"(8) which could in turn lead to a serious misapplication of the theory in a particular circumstance. Understanding, then, that the theory of just war is one in which many sources mingle over the course of centuries, it is helpful to make a brief overview of those sources before delving into the main task of explaining and applying just war theory to the particular problem raised in this article, namely, whether the recent use of force by the United States against Iraq is justified under the theory.

B. MAIN SOURCES OF JUST WAR THEORY

        Many of the key thinkers who have expounded on just war theory through the centuries have identified themselves with the Christian faith, both in its Catholic and Protestant varieties. Just war theory has also gained a general acceptance among Christian theologians, philosophers, and jurists as a method of passing judgment on the morality or immorality of a particular conflict.(9) The general Christian conception of just war theory forms the core of secular just war theory and as such has had a tremendous influence on the secular conception of the just war.(10)
        Early Christian approaches to war were largely pacifistic in nature, due to a focus in the early Church to the notion that Christians were distinct from the rest of society.(11) However, with the growing Christianization of the Roman Empire, and the increasing political and social influence of the Christian Church, Christian theologians during the fourth and fifth centuries began to develop justifications for the use of force which would eventually take shape over time as just war theory.(12)
        The first major Christian theologian to address himself to the task of determining the circumstances under which war is legitimate was St. Augustine of Hippo.(13) Augustine held that "[t]he natural order, which is suited to the peace of moral things, requires that the authority and deliberation for undertaking war be under the control of a leader."(14) For Augustine, war is a permissible part of the life of a nation, and the power of prosecuting a war was part of the natural powers of a monarch, ordained to uphold peace.(15) War, far from being something which Christians should shun, is part of the life of a nation, ordained by natural law, a law which according to the New Testament is ordained by God.(16)
        Augustine's conception of the just war did not create a carte blanche for bloodshed.(17) In formulating his ideas on war, St. Augustine was careful to state the purposes for which war may be fought, and the procedural means which must be satisfied in order for a war to be just. "[F]or it makes a great difference," he wrote, "by which causes and under which authorities men undertake the wars that must be waged."(18) For Augustine, for a war to be just, it must be fought for the right reasons, and it must be waged under rightful authority.(19)
        Augustine held that the only reason which justified war was the desire for peace. "Peace is not sought in order to provide war, but war is waged in order to attain peace."(20) Augustine criticizes other motives for war, such as "[t]he desire for harming, the cruelty of revenge, the restless and implacable mind, the savageness of revolting, the lust for dominating, and similar things,"(21) and refers to them as things which are "justly blamed in wars."(22) In fighting a war, the goal must be to do that which is necessary to obtain peace; "[l]et necessity slay the warring foe, not your will."(23) Augustine also includes under the subject of necessity the just treatment of prisoners and conquered peoples, making it clear that mercy should be shown to the vanquished, particularly if they are no longer a threat to peace.(24)
        Besides right intention, St. Augustine also held that it was necessary for a war to be waged under lawful authority.(25) The purpose of the war-making powers of the state is to ensure peace, which in turn helps to foster the common-good of those in society.(26) Augustine recognized that it was necessary for the authority and decision to undertake war to be made by a recognized leader.(27) In addition, the soldiers who serve under the leader must serve the peace and common-good of society.(28) Warfare which is declared by unlawful authority therefore fails to meet this criteria, as does warfare which is not directed toward peace and the common good.
        The second major Christian thinker to deal with the issue of war is St. Thomas Aquinas (1225-1274).(29) Aquinas based himself upon St. Augustine's view of war, elaborating on the teachings of the bishop of Hippo.(30) In explicating his theory regarding the justness of a war, Aquinas focused on defining the right to make war and the importance of the intent which stands behind the decision to go to war.(31) In his attempt to formulate a simple rule which would give guidance on these issues, Aquinas argued that a war is justified when three basic, necessary conditions were met: 1. the war was prosecuted by a lawful authority with the power to wage war;(32) 2. the war was undertaken with just cause;(33) and 3. the war was undertaken with the right intention, that is, "to achieve some good or to avoid some evil."(34) Together with St. Augustine, Aquinas' views on the justification of war form the basic core of just war theory, and it is from their concepts that the theory of just war is adapted and expanded by later thinkers.

        The secular sources for just war theory span a considerable length of time. They include such philosophers as the ancient Roman Cicero and the Dutch Protestant Hugo Grotius. In addition, modern decrees on justifiable warfare, such as the commission to the Nuremberg War Crimes Tribunal, and the United Nations Charter also act to flush out the modern conception of just war theory.
        Cicero, the great Roman orator, jurist, and philosopher was one of the first to deal with the questions of justifiable war. Cicero held that the use of force was justifiable only when the war was declared by an appropriate governmental authority acting within specific limits.(35) For Cicero, the ability to wage war rested with the state, and the state alone, and could be lawfully waged only "after an official demand for satisfaction has been submitted or warning has been given and a formal declaration made."(36) In addition, Cicero also proposed the existence of a universal norm for human behavior which transcended the laws of individual nations and governed their relations with each other.
        (37) Cicero's belief in this universal norm was grounded in his view that there was a humani generis societas, a "society of mankind [sic] rather than of states."(38) This view of a universal standard of behavior for nation-states which exists outside of promulgated law would have a profound impact on later just war theorists, particularly on Hugo Grotius.
        Grotius was a 16th century Dutch Protestant who is sometimes referred to as the father of international law.(39) Grotius, who lived in the aftermath of the brutal Thirty-Years War in Europe, wrote extensively on the right of nations to use force in self-defense in his book Jure Belli ac Pacis ("On the Rights of War and Peace"), which was published in 1625.(40) It was largely Grotius who secularized just war theory,(41) making the theory more acceptable for the age of the Enlightenment. For Grotius, a war is just if three basic criteria were met: 1) the danger faced by the nation is immediate; 2) the force used is necessary to adequately defend the nation's interests; and 3) the use of force is proportionate to the threatened danger.(42)
        Grotius grounded his agreement with Cicero's notion of the need for a declaration of war in the natural law, and also argued that the purpose of just war theory is to provide "succor and protection for the sick and wounded in war, combatants and civilians alike."(43) A result of this view is the notion that just war theory exists externally of any recognized legal system, that it is a part of the "law of nations" which is followed by all civilized nations.(44) For Grotius, it is not necessary to prove just war theory by consulting with any of the established laws of the nations of Europe, or their customs.(45) Rather, those laws are known through the universal medium of the natural law, a law which transcends nations and their own particular legal codes, a law which is binding on all human societies in their interactions with each other.(46)
        After Grotius, just war theory underwent relatively few modifications until the nineteenth century. During the first century of it's existence, the United States' government came to acknowledge the legitimacy of just war theory. In 1842, the U.S. Secretary of State, Daniel Webster, acknowledged the legitimacy of the customary norms employed by Grotius to define the just war.(47) This recognition occurred as a result of attempts to resolve the so-called "Caroline Incident."(48)
        The Caroline Incident occurred when the British attempted to prevent supplies from reaching Canadian rebels.(49) In their attempts to restrict the flow of material to the rebels, the British burned the U.S. ship Caroline and killed several U.S. citizens.(50) When the United States protested, the British government responded that its actions were justified as a matter of self-defense.(51) Webster responded by stating that the only way for the British claim to self-defense to stand was if it met the traditional elements of just selfdefense.( 52) Webster outlined those elements as consisting of necessity of self-defense, and the reasonable and not excessive use of force.(53) In essence, this definition of just self-defense mirrors that proposed by Grotius.
        During the remainder of the 19th and early 20th centuries, just war theory underwent modest development. There were treaties, such as the Hague Conventions, which codified just war theory, but there was little major development in just war theory. That changed with the end of the Second World War. As a result of World War II, two basic documents were issued which resulted in increased recognition of just war theory in the international arena. The first document is the charter for the Nuremberg war crimes trials, and the second is the United Nations Charter. The Nuremberg Charter encapsulated the reigning notion of just war theory as represented by both St. Thomas Aquinas and Grotius.(54) The Nuremberg Tribunal established that just war theory, as Grotius understood it, is universally binding customary law.(55)
        The United Nations Charter also has contributed to just war theory by recognizing the inherent right of each sovereign nation to self-defense.(56) Article 51 of the U.N. Charter affirms the right of each nation to self-defense, until the Security Council can take action in order to restore and stabilize international peace and security.(57) Article 51 states two key points in regard to international relations and the rightful use of force in international disputes: 1) the regulation of the use of force; and 2) collective security.(58) The U.N. Charter effectively outlaws the use of military force as a method of resolving international conflicts between nation-states.(59) At the same time, the charter recognizes the inherent right of each nation to defend itself from an attack from an exterior foe which is by its very nature unlawful.(60) This right of a nation to engage in defensive military actions has also been upheld by the International Court of Justice in its ruling in the case of Nicaragua v. United States of America.(61) In that case, Nicaragua brought action against the United States for its support of insurgency forces attempting to overthrow the Sandinista government in Nicaragua.(62) The International Court of Justice in its ruling held that the right of a nation to engage in self-defense, as customarily understood, was incorporated into Article 51 of the U.N. Charter.(63) As the Court stated, "[i]n the language of Article 51 of the United Nations Charter, the inherent right (or droit naturel) which a State possesses in the event of an armed attack, covers both collective and individual self-defense."

B. GENERALLY RECOGNIZED PRINCIPLES OF JUST WAR THEORY

        As the proceeding section has demonstrated, just war theory, despite its diverse sources and historical development, has several commonly recognized elements. These elements are traditionally divided into two basic categories which deal with the two basic fundamental issues regarding the legitimacy of war.(64) The first issue, sometimes referred to in Latin as the jus ad bellum (literally, "that which is right or just to engage in resort to war"(65)), concerns when it is appropriate to resort to war as a method of conflict resolution.(66) The second issue, jus in bello (literally, "that which is right or just within war"(67)) deals with what methods of warfare are permissible within the context of a war which meets the criteria of the jus ad bellum.(68) Since this article is interested only in evaluating the validity of the decision made by the U.S. government to launch air strikes against Iraq, it will limit its discussion on just war theory to the jus ad bellum.
        The core elements of the jus ad bellum consist of those principles which were originally recognized by the medieval commentators on just war theory as being most central to the whole doctrine of just war.(69) As elucidated by St. Thomas Aquinas, the core principles consist of the following three elements: 1) just cause; 2) competent authority; and 3) right intention.(70)
        Just cause is classically understood to refer to self-defense.(71) The use of military force is justified when it is used to repel an unjust aggressor and to retake that which the unjust aggressor has taken.(72) It is generally acknowledged that a nation may use force to protect a neighboring state from attack from an outside hostile power.(73) Thus, defense of self, or defense of another, are legitimate reasons for a nation-state to resort to military force.
        The second element of jus ad bellum is that the war must be declared by competent authority.(74) As recognized by theorists like Cicero and Aquinas, for a war to be just, the decision to go to war must be lawfully made.(75) If an illegal or non-legal authority within an nation made the decision to go to war, such a decision would be unjust, for it would violate the basic principles of how a given society is governed.(76)
        Finally, the war must be fought with right intention, meaning that the motives for the war must not be to inflict undue suffering on the enemy state; the defending nation must use only that amount of force which is necessary for it to achieve its just cause.(77) The motives of those engaged in making the decision to go to war must not be tinged with vengeance or a desire for retribution.(78) Rather, the decision to go to war must be essentially protective; the goal of war is to obtain a just and durable peace.(79) Such a peace is unlikely if the war is waged out of hateful or vengeful motives, with a desire not solely for self-protection but the total destruction of the enemy.(80) If in it's actions, the defending state's use of force exceeds what is necessary for the success of its just cause, the defending state's right intention is problematic.(81) Seen this way, right intention serves to reinforce the requirement that the state which seeks to justly use force be acting in a truly defensive capacity, rather than engaging in military adventurism on the pretext of self-defense.

III. APPLICATION OF JUST WAR THEORY TO U.S. ACTIONS

1. Candidate for juris doctorate degree, May 1997, Gonzaga University School of Law, Spokane, WA.
2. James Turner Johnson, "Just War Tradition and Low-Intensity Conflict" in Legal and Moral Constraints on Low-Intensity Conflict, 147, 148 (Alberto R. Coll, et al. eds. 1995). For examples of the diverse background of theories to limit warfare, see the dissenting opinion of Judge Weeramantry of the International Court of Justice in the I.C.J.'s decision Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 95 (July 8), Internet address at http://www.dfat.gov.au/ild/icj_nuc/w_man_c.html.
3. Examples of the efforts of the international community to limit warfare are quite extensive, and stretch back well into the Middle Ages. As Judith Gail Gardam points out in her article Proportionality and Force in International Law, 87 Am. J. Int'l L. 391, 395 (1993), the Catholic Church was active in the Middle Ages in limiting warfare, as seen by the Second Lateran Council's prohibition in 1139 of the use of crossbows, bows and arrows, and siege weapons in conflicts between Christian nations. Id. In the 19th century, secular attempts were made to limit warfare, such as the 1868 St. Petersburg Declaration which prohibited the use of weapons which cause unnecessary suffering and also forbade the practice of denying quarter to a vanquished enemy. Id. at 397. Finally, during the 20th century, several conventions, such as the Hague Convention (No. IV) of 1907, the Hague Rules of Air Warfare (1923), the Geneva Convention (1947), and the United Nations Charter all sought to limit the extent of the means of warfare. Id. at 399-402
4. Johnson at 148
5. The widespread use of just war theory by both Western countries and the international community can be seen in the use of just war theory by the International Military Tribunal at Nuremberg. The Nuremberg tribunal used the basic just war categories to determine if the actions taken by the Axis powers were in accord with international law. See Article 6(a) and (b) of the Nuremberg Charter, reprinted in Telford Taylor, The Anatomy of the Nuremberg Trials 648 (1992). See also Nicholas Rostow, The World Health Organization, The International Court of Justice, and Nuclear Weapons, 20 Yale J. Int'l L. 151, 163-175 (1995) for a general overview of the law of armed conflict, and especially pages 169-70 for the use of just war concepts such as proportionality and legality by the Nuremberg Tribunal
6. Johnson at 147-149. According to Johnson, just war theory incorporates moral reflection, theology, philosophy, chivalric custom and military practice, ecclesiastical canon law, secular civil law, and diplomatic precedent among rulers. Id. at 148-149
7. Id. at 148
8. Id. at 149
9. See generally Paul Ramsey, War and the Christian Conscience (1961) and The Just War: Force and Political Responsibility (1968). See also the National Conference of Catholic Bishops, The Challenge of Peace (1983); Richard J. Mouw, The Spiritual Thrust of Just War Doctrine, New Oxford Review, Mar. 1988, at 11; Mark Juergensmeyer, The Terrorists Who Long for Peace, 20-Spg. Fletcher F. World Aff. 1, 5 (1996)
10. Gardam at 817
11. Id. at 223
12. Id., citing R. Bainton, Christian Attitudes Toward War and Peace 14 (1960)
13. Id. at 223
14. St. Augustine of Hippo, Against Faustus the Manichaean XXII.73-79, in Augustine: Political Writings, 222 (Michael W. Tkacz and Douglas Kries, trans, Ernest L. Fortin and Douglas Kries, eds. 1994)
15. Id. at 220
16. See Romans 2:14-15 (Douay-Rheims Version) where the Apostle Paul writes that there is a natural law written on the human heart by which the actions of men may be evaluated
17. Augustine at 221-222