LAW FOUNDATIONS:

JUST WARS:

Just war, what is it? Is a war characterised as legitament if it acorts with relevant principle of international law Justification of how and why wars are fought, which can be: [Following from here Internet Encyclopaedia of

Philosophy] Theoretical aspect: Concerned with ethically justifying war and the forms that warfare may or may not take Historical aspect (“Just war tradition”): Deals with the historical body of rules or agreements that have

applied in various wars across the ages E.g. International agreements such as the Geneva and Hague conventions are historical rules aimed to

limiting certain kinds of warfare which lawyers may refer to in prosecuting transgressors [punishing wrongdoers], but it is the role of ethics to examine these institutional agreements for their philosophical coherence as well as to inquire into whether aspects of the conventions ought to be changed.

E.g. Article 51 of United Nations Charter provides legal justification for facts of law for individual of collective self defence if an armed attack occur against a member of the United Nations [Article 51 Of the Charter of the United Nations]

Preamptive strike and self defence The concept of preamptive strike as a legitament act of law is arguably undivided of international law. Of course the answer to whether a war is just depends on very much upon the subjective considerations of

perspective sovereign states. Undoubtedly the permanent members of the UN Security Council have much greater legal power in dictating

what the reported objective criteria for a just war are. It seems difficult to accept that the member states on the Security Council truly represent and reflect the views

and opinions of the various nations’ sovereign states around the world.

Concept of proportionality Proportionality dictates that military action is justified so long as is half the consequences do not outweigh the

specific good of the war. Concept of primarily scple dictates that a sovereign state may undertake military action under another sovereign

state in circumstances where the aggressive state is the subject of immediate and imminent threat of harm or danger E.g. United States of America sort to use the preavrity strike defence on the basis that member states and

the US would be subject of the use of military weapons of mass destruction Self defence exist in situation of forced choice between life where the attacker is responsible for forcing the

choice and due to the immediately of the threat there really is no other way for the person attacked to survive without killing their attacker

In more recent years the ability of a sovereign state to undertake a just war appears to have expend E.g. Acts of war undertaken on the basis of “humanitarianism” are seen as a permissible form of conduct by

sovereign states E.g. Despite the fact that Iraq didn’t have weapons of fast destruction the invasion was seen as lawfully

justified given the numerous and far reaching HR violations by the Saddam Hussein government

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proportionality concerns how much force is morally appropriate. [Following from here Internet Encyclopaedia of Philosophy]

The second principle of just conduct is that any offensive action should remain strictly proportional to the objective desired. This principle overlaps with the proportionality principle of just cause, but it is distinct enough to consider it in its own light. Proportionality for jus In bello requires tempering the extent and violence of warfare to minimize destruction and casualties. It is broadly utilitarian in that it seeks to minimize overall suffering, but it can also be understood from other moral perspectives, for instance, from harboring good will to all (Kantian ethics), or acting virtuously (Aristotelian ethics). Whilst the consideration of discrimination focuses on who is a legitimate target of war, the principle of proportionality deals with what kind of force is morally permissible. In fighting a just war in which only military targets are attacked, it is still possible to breach morality by employing disproportionate force against an enemy. Whilst the earlier theoreticians, such as Thomas Aquinas, invoked the Christian concepts of charity and mercy, modern theorists may invoke either consequentialist or intrinsicist prescriptions, both of which remain problematic as the foregoing discussions have noted. However, it does not seem morally reasonable to completely gun down a barely armed albeit belligerent tribe. At the battle of Omdurman in 1898 in the Sudan, six machine gunners killed thousands of dervishes—the gunners may have been in the right to defend themselves, but the principle of proportionality implies that a battle end before it becomes a massacre. Similarly, following the battle of Culloden in 1746 in Scotland, Cumberland ordered “No Quarter”, which was not only a breach of the principle of discrimination, for his troops were permitted to kill the wounded as well as supporting civilians, but also a breach of the principle of proportionality, since the battle had been won, and the Jacobite cause effectively defeated on the battle field [Following from here Internet Encyclopaedia of Philosophy]

War crimes and humanitarian intervention Peter Singer describes such a democratically elected ‘World Assembly’ as ‘an obvious solution’ to problems of

lack of democracy within the United nations (H. Patomaki and T. Teivainen, A possible world: Democratic Transformation of global institutions, Zed Books, London, 2004, p20-33) (pg489)

Johan Gatlung argues that such an Assembly should make laws, budgets and appointments, as a fully empowered world parliament. (J. Galtung, ‘Alternative Models for Global Democracy’, In B. Holden (ed), Global Democracy: Key Debates, Routledge, Longon,2000, p156) (490)

Four points for reform at international level:(1) Repelling the model of the UN Possible problems with the attempt to establish a People’s Assembly, particularly one with significant

legislative power, would face massive opposition from the major world powers. And such powers would be able to exercise economic blackmail and bribery to sway the votes of leaders of the weaker states (pg490)

(2) World army Currently no international armed force, professional police force, capable of enforcing international criminal

law. These are seen as limitations for example it can be seen Rwanda (pg482)

(3) Criminal Law and human life (From textbook) The UN lacks the institutional, financial and technical support needed to properly address international

issues (pg481) … The prioritisation of political institutions over human lives in the international law of war, about the failure

to develop any clear principles of necessity and proportionality to limit the loss of human life in defence of such institutions, and the USA’s apparent rejection of any principles

(4) Scraping national sovereign state all together were UN is like international government Proposals for democratic reform of the Security Council include expanding its membership and/or reducing

the veto power of the richer nations, giving the Assembly, as chief deliberative, policymaking and

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representative body, much greater power over Security Council decision making, and International Country of Justice review of Council decision making, (pg489)

“Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.” [Article 2(7) Of the Charter of the United Nations]

FROM TEXTBOOK:

… The supposed justifications offered by the authorities are unconvincing, unachievable or unjust, and that these wars have and continue to be prosecuted in ways which directly involve large-scale killings of innocent people, which should be regarded as war crimes rather than legitimate acts of war. Or they have lead to mass killings of innocent people which were reasonably foreseeable consequences of the military actions in question. Pg 466

Morality of war: What circumstances (if any) can ever provide moral legitimation for killing in war. In recent years there has

been increasing discussion of the tradition of ‘just war’ principles, originally developed by Christian thinkers and latterly influencing the development of international law. Pg467

Reasonable hope of success can only mean ‘a reasonable hope of succeeding in a just cause. Pg467 Proportionality can only mean that military action is justified only so long as its harmful consequences don’t

outweigh ‘the specific good which the war is intended to achieve’ .Pg467 Killing in war is justified only to defend victims from the aggressive acts of others. ‘This is the version of ‘just

war’ theory encapsulated in modern international law, and regularly invoked by politicians’. (R. Norman, Ethics, Killing and War, Cambridge University Press, 1995, p 117) Pg468

Self Defence: Given the supreme value of human life and a universal individual right to kill in self defence exists only in

situations of forced choice between lives, where the attacker is responsible for forcing the choice, and due to the immediacy of the threat there really is no other way for the person attacked to survive without killing their attacker. (pg 469)

If the belief in the necessity of the defence wasn’t reasonable if less than fatal force was needed, for example then the defence fails. If the accused intended to kill, while knowing that less than fatal force was needed, or having no reasonable belief that it was, they are liable to be judged a murderer. If they were not aiming to kill but did so, the result would be manslaughter. (pg 469)

Just as a threat to life or liberty of an individual can justify killing the aggressor, so can a military threat to the life or liberty of the community justify collective military defence involving the death of members of the invading army. And just as other individuals have a responsibility to intervene to protect the life of another, and the right to territorial integrity and political sovereignty… be defended by other states (R. Norman, Ethics, Killing and War, Cambridge University Press, 1995, p 133) (pg 470)

We must remember that lost social institutions and relations can be rebuilt in a way that lost human lives cannot. So that even destruction of good institutions may not necessarily be a disaster in the longer term (pg 470)

From: [Following from here Internet Encyclopaedia of Philosophy]

Just in bello (or Just Ad Bellum) The principles of the justice of war are commonly held to be: having just cause, being a last resort, being

declared by a proper authority, possessing right intention, having a reasonable chance of success, and the end being proportional to the means used. One can immediately detect that the principles are not wholly intrinsicist nor consequentialist—they invoke the concerns of both models. Whilst this provides just war theory with the advantage of flexibility, the lack of a strict ethical framework means that the principles

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themselves are open to broad interpretations. Examining each in turn draws attention to the relevant problems.

SELF DEFENCE/pre-emption and bellum: Most theorists hold that initiating acts of aggression is unjust and gives a group a just cause to defend itself.

But unless “aggression” is defined, this proscription is rather open-ended. For example, just cause resulting from an act of aggression can ostensibly be a response to a physical injury (for example, a violation of territory), an insult (an aggression against national honour), a trade embargo (an aggression against economic activity), or even to a neighbour’s prosperity (a violation of social justice). The onus is then on the just war theorist to provide a consistent and sound account of what is meant by just cause.

Self-defence against physical aggression, therefore, is putatively the only sufficient reason for just cause. Nonetheless, the principle of self-defence can be extrapolated to anticipate probable acts of aggression, as well as in assisting others against an oppressive government or from another external threat (interventionism).

feared that the policy of preemption slips easily into the machinations of “false flag operations” in which a pretext for war is created by a contrived theatrical or actual stunt – of dressing one’s own soldiers up in the enemy’s uniforms, for instance, and having them attack a military or even civilian target so as to gain political backing for a war. Unfortunately, false flag operations tend to be quite common. Just war theory would reject them as it would reject waging war to defend a leader’s “honour” following an insult.

Since the terrorist attacks on the USA on 9/11 in 2001, academics have turned their attention to just war once again with international, national, academic, and military conferences developing and consolidating the theoretical aspects of the conventions. Just war theory has become a popular topic in International Relations, Political Science, Philosophy, Ethics, and Military History courses. Conference proceedings are regularly published, offering readers a breadth of issues that the topic stirs: for example, Alexander Moseley and Richard Norman, eds. Human Rights and Military Intervention, Paul Robinson, ed., Just War in a Comparative Perspective, Alexsander Jokic, ed., War Crimes and Collective Wrongdoing. What has been of great interest is that in the headline wars of the past decade, the dynamic interplay of the rules and conventions of warfare not only remain intact on the battlefield but their role and hence their explication have been awarded a higher level of scrutiny and debate. In the political circles, justification of war still requires even in the most critical analysis a superficial acknowledgement of justification. On the ground, generals have extolled their troops to adhere to the rules, soldiers are taught the just war conventions in the military academies (for example, explicitly through military ethics courses or implicitly through veterans’ experiences). Yet despite the emphasis on abiding by war’s conventions, war crimes continue – genocidal campaigns have been waged by mutually hating peoples, leaders have waged total war on ethnic groups within or without their borders, and individual soldiers or guerilla bands have committed atrocious, murderous, or humiliating acts on their enemy. But, arguably, such acts do remain atrocities by virtue of the just war conventions that some things in war are deemed to be inexcusable, regardless of the righteousness of the cause or the noise and fog of battle.

Readily it can be accepted that soldiers killing other soldiers is part of the nature of warfare for which soldiers ought to be prepared and trained, but when soldiers turn their weapons against non-combatants, or pursue their enemy beyond what is reasonable, then they are no longer committing legitimate acts of war but acts of murder. The principle of responsibility re-asserts the burden of abiding by rules in times of peace on those acting in war to remind them that one day they will once more take up civilian status and should be prepared to do so conscientiously, free of any guilt from war crimes. The issues that arise from this principle include the morality of obeying orders (for example, when one knows those orders to be immoral), as well as the moral status of ignorance (not knowing of the effects of one’s actions either reasonably or literally).

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HUMAN RIGHTS AND INTERNATIONAL LAW:

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Define HR and where it comes from: Are the fundamental rights which humans are entitled to simply by being born, it comes from international bill of

rights, ICCPR, international covenant on economic, social and cultural rights (international bill of rights) – The United Nations Charter of HR. (Jason, seminar)

Early Bill of Rights: English Bill of Rights (1689): Introduced the system of free elections, merely used to ensure royal absolutism

(p178)

The American Declaration of Independence of 1776: Proclaimed a self-evident human equality and inalienable rights to life, liberty and the pursuit of happiness. (p178)

The French Declaration of 1789: Asserted the liberty, fraternity and equality of all citizens, as well as rights of property, liberty of conscience, freedom of the press and arbitrary imprisonment. (p178)

Bill of Rights, America compared to HR in Australia: Australia doesn’t have a constitutional law or bill of rights (Jason, seminar) Australia is also the only Western and international country in the world that doesn’t have statutory or

constitutional bill of rights, instead HR is protected by Acts of Parliament and common law principles throughout Australia.

HR are protected in Australia by relevant acts and common law principle for examples (Jason, seminar) Discrimination Status e.g. 1977 Anti-Discrimination (NSW) At Federal Level, “Radical Discrimination act 1975” Sex discrimination act 1984 Australian HR commission Act 1986 (Commonwealth Act)

Common law principles: Cases right to procedural process, right to legal representation, persons entitlement to a lawyer, equality of citizens in all states/territories, implied freedom (Jason, seminar)

Australia has a very limited form of protection in regulating HR in commonwealth constitution, for example: There are only three references to discrimination to the commonwealth constitution. In effect only section

117 of the Commonwealth constitution provides a constitutional guarantee of protection of discrimination on basis of residency. Otherwise commonwealth constitution provides no express protection of discrimination on basis of religion, freedom of expression, right to equality and the other HR’s recognised in international bill of rights

Australia has a limited form of protection of regulatory HR to the extent it is not bound by a regional HR charter or regional HR enforcement For example: Are bound by European convention of rights and decisions made by the European court of HR

Bill of rights is a legal document that sets out in a comprehensive manner for nature of human rights which are protected by law for benefit of all persons(Jason, seminar)

A constitutional bill of rights provides constitutional protection for HR or persons within the confines of the territorial limitation of the severing power.

A constitution of bill of rights pace real limits on the legislative power of parliament to make laws that infringe HR

A statutory bill of rights is an act of parliament that provides for the protection of HR in statutory form that theoretically is more easily amendable to change. A statutory bill of rights usually do not place limits on the constitutional power of parliament to enact laws inconsistent with HR

Both statutory and constitution bill of rights seek to give affect usually to what is known as the “International Bill of Rights”. The International Bill of Rights are comprised of both the international covenant of civil and political

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civil rights and international covenant on economic and social and cultural rights.

Role of HR in classical liberal, social liberal and neo-liberal ideology Classical Liberal:

Are said to be ‘methodological’: See social structures and social relations as effects, products and consequences of intentional action and interaction of human individuals, are intrinsically competitive, power-seeking and domineering… (p173)

All human beings are unrestricted by central power, are by selfish, lazy, greedy creatures seeking the gratification of their own desires (p173)

Classical liberal theory (CLT) centres on ideas of the positive potential of individual nature and the need to free such potential from unnecessary restriction and distortion by state power and established hierarchy in order to allow for individual fulfillment and social progress. (p173)

Central focus on freeing and protecting the individual from arbitrary state power reflected in an emphasis on what are now called ‘due process rights’: to a fair trial and to freedom from arbitrary arrest, torture andcruel punishments.(p173)

Market relations are seen as ‘natural’ and the requirements for ongoing operation of such relations are therefore expressed in terms of respect for life and property. (p174)

All should be subject to the same laws and all should expect to be treated in similar fashion by the justice system. (p177)

Social Liberal: For social liberals, human rights are seen as ethically grounded insofar as they are rights to objects of need,

to the things that all humans must have in order to be able to survive and live and fulfilled life. (pg180) Consider J S Mill: Writings combined a traditional liberal individualism and faith in progressive power of the

market with recognition of the need for significant state intervention to protect the political rights and promote the free development of individuals. Critical of radical inequality supported by free market relations. (pg179)

Neo-Liberal ideology: Modern neo-liberals go along with the common law tradition in allotting a special status to private property

rights – of exclusive possession and control of legitimately acquired resources, including rights to freely buy and sell items of such property – as well as rights to life and bodily integrity. (pg193)

Neo-liberals reject any ideas of special social responsibilities or duties on the part of those who derive special benefits by virtue of protection of such property rights, associated with or arising out of such special benefits. (pg194)

From a neo-liberal perspective, beyond a basic respect for others’ life and property, individuals can only expect others to act responsibly towards them if they pay for the privilege, through contractual agreement of some kind. (pg194)

Neo-liberals recognise the foundation of liberal democracy in citizens’ basic political rights: to free speech and political activity, including campaigning and voting. (pg194)

Neo-liberals believe that the state can legitimately deprive citizens of some or all of these rights if they are judged to have committed criminal offences of greater or lesser severity. (pg194)

For neo-liberals, UDHR to jobs, to education, to health care and to legal services are seen as best supported in and through legal support for free market operations. (pg195)

The role of the state is seen as an indirect or negative one, ensuring no discrimination in promotion to positions in Q or impediment to free market exchange of goods or services. (pg195)

International law: International Law: Rules and principle which regulate legal relations between sovereign states Different type of sources:

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(1) International Conventions(2) International treaties(3) Customary International Laws(4) Declarations or Charters(5) International Statutes

The United Nations General Assembly, Security Council and UDHR Public international law: Deals with a systematic set of laws which regulate nations between sovereign states.

Also A substantial part of international law revolves around ideas and codifications of universal human rights, thought of as grounded in universal human needs. (pg187)

The United Nations (UN) Charter is a treaty, which means a legally binding agreement between states. (pg188) The Universal Declaration of Human Rights (UDHR) is broadly viewed as an international bill of rights, which is

accepted as outlining the basic human rights all individuals are entitled to have as humans. (pg187)

Security Council: (Hot Topics 69 legal issues in plain language, Jane Stratton, State Library of NSW, 2009) The Security Council consists of 15 States – the five permanent members (USA, UK, France, Russian

Federation and China), and ten States elected for twoyear terms. When the USSR ceased to exist in 1991, Russia continued to sit in place of the USSR, without opposition from the other members. Decisions of the Security Council require nine ‘yes’ votes. A decision cannot be taken if there is a ‘no’ vote, or veto, by a permanent member (except in votes on procedural questions). The Security Council was intended to be a relatively small body that could meet as and when required, and respond promptly to situations. During the Cold War, the use by the permanent members of their veto effectively prevented the Security Council from acting.

From 1990 onwards, the Security Council became much more active, although there were still spectacular failures to prevent serious threats to peace and security during the Balkan wars, the Somalian civil war, and the Rwandan genocide.

The major functions of the Security Council are set out in the UN Charter and are: > the peaceful settlement of disputes between States

(Chapter VI); > to authorise action in relation to threats to the peace, breaches of the peace and acts of aggression (Chapter VII). In March 2005, in a paper called In Larger Freedom which discussed widespread reform of the UN, the then

Secretary-General Kofi Annan called for reforms to the UN Security Council. In particular, the Secretary-General wanted to expand the Security Council’s membership to 24 and he outlined two possible courses of action. States returned with ideas of their own, however a consensus has not as yet been reached.

General Assembly: (Hot Topics 69 legal issues in plain language, Jane Stratton, State Library of NSW, 2009) All members of the UN are represented in the General Assembly and each has one vote. The role of the

General Assembly is to consider, discuss and make recommendations. The General Assembly cannot make recommendations in relation to a dispute or other situation which is under consideration by the Security Council.

However, in the face of inaction by the Security Council (usually because of the veto of a permanent member) the General Assembly has created a means of sanctioning collective action where the Security Council fails to do so. In 1956, the General Assembly adopted the Uniting for Peace Resolution, under which it asserted that if the Security Council failed to exercise its responsibilities for international peace and security, the General Assembly could consider matters and make recommendations for collective action by members.

The General Assembly holds a regular annual session from September to December. When it is not meeting, the work of the General Assembly is carried out by its six main committees:

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> Disarmament & International Security; > Economic & Financial; > Social, Humanitarian & Cultural; > Special Political & Decolonisation; > Administrative & Budgetary; and > Legal.

Human rights treaties Bi-Lateral: Strictly between two state parties [Australian government Department of Foreign Affairs and Trade,

Australian Treaty Database])Joint agreement on enhanced cooperation between Australia and Papua New Guinea 2004

Multi-lateral: Three or more sovereign states are parties, each owes some obligation to all other statesANZUS Treaty: (Australia’s history, UNSW PRESS, Lyons and Russell, 2010)

Not guaranteed protection as they would all consult each other to see if necessary (From article III of the ANZUS Treaty)

Signed in 1951 Made for protection For preparations against Japan

Hague Conventions Contains a list of the Hague Conventions on Private International Law

World Trade Organisation For example free trade, or General agreement on tariffs and trade 1994

The ICJ and ICC Are the two main international enforcement bodies that enforce it International Court of Justice:

The ICJ was established with the UN in 1945. It succeeded the Permanent Court of International Justice and is located in The Hague. It has 15 permanent members, elected for a nine-year term. Elections are held every three years, and one-third of the judges retire each time. If the Court does not include a judge of the nationality of a State which is a party in a case, that State can nominate a judge ad hoc to sit on the case. Decisions are by majority vote, and there is no appeal. (Hot Topics 69 legal issues in plain language, Jane Stratton, State Library of NSW, 2009)

International Criminal Court: Prosecutes individuals for major human rights violations (pg489) Has jurisdiction over crimes against humanity, war crimes, genocide and crimes of aggression. (pg489) The ICC has jurisdiction only if relevant states fail to investigate alleged crimes, and it can do nothing if such

states go through the motions of serious investigation but take no action. (pg489) It has jurisdiction only if relevant states fail to investigate alleged crimes, and it can do nothing if such states

go through the motions of serious investigation but take no action (pg192)

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