(Professor/Instructor)
The title of the work of philosopher and diplomat Hugo Grotius (1583-1645), De Jure Belli et Pacis (On the Laws of War and Peace) (1625), does not entirely embrace the complete scope of international law; however, the work does engage its primary objects. However, the comprehension in the work is sufficient to evidence the quandary that is perplexing legal experts and scholars as well. The question being posed here is whether international jurisprudence should, one, legitimize the use of war or prohibit its use. Two, should the operation of international law predict or forbid it, and lastly, should the implementation and adoption of international policies restrain or completely ban any declaration and conduct of war (Aron 111).
There is a degree o Speculation whether ex post facto (“after the facts”) criminal jurisprudence was used during the Nuremberg war criminals in meting out the sentences on the principal criminals of war was not regarded as international acts of criminality. Compared to this scenario, it is more ascertained that belligerence is an infringement of international law and sanctions should be meted out against the state that began the aggression (White, Henderson 640).
The 1928 Kellogg-Briand Pact was an agreement that called for the banning of war. At times called as the Pact of Paris where the treaty was signed, the agreement was among the many international initiatives that sought to prevent the conduct of another global conflict; however, the agreement had very little impact in hindering growing militaristic tendencies in the world and the eventual “global tidal wave” that was the Second World War (United States Department of State-Office of the Historian 1).
With the implementation of the Charter of the United Nations, the policy of using force in achieving foreign policy objectives by a State, as well as the concept of jus ad bellum, was completely altered. Article 2(4) of the Charter mandated that any initiative conducted by a state to declare war, unless there were done in self-defense or supported by the United Nations Security Council, was wrong under international law. In addition, the same provision incorporates a total proscription on the conduct of a unilateral war. Furthermore, the provision does not leave any speculation as to the legal uses of war aside from self defense; these include humanitarian intervention actions or interdictions to ensure the safety of the citizens of that State in another country.
Here, the parameter of the principle of self-defense is one of the highly charged issues that are being drawn to have varying interpretations. The digression among legal experts in this area is in the areas of arrogation, expectant self-defense, and self defense in the wake of an armed attack. The concept of an armed assault, that unleashes the right to defend oneself, is an additional point of contention among scholars.
The UN Charter also definitively stated that belligerence is banned by the international politick, and Article 39 empowers the Security Council to sanction actions when the belligerent acts poses a significant threat to global peace. However, Article 39 does not establish the acts which can be considered as belligerence or a belligerent conflict. What is more difficult is accurately defining a “war of aggression.” The ruling in the Nuremberg Judgment as well as Article 6 of the 1945 London accord can offer guidance on the matter; however, in differentiating what constitutes an “act of aggression” from a “war of aggression,” the definition is relative and is primarily associated with the degree of accountability of the State (White, Henderson 641).
In this light, it is integral to study the varying comprehensions of war as to the reasons that there are digressing views in banning such conduct. To Rousseau, war is not engaged by a man against his fellow man, but by a State against another State. Men are enemies only for a time, not as citizens, but as members of their nation’s respective military forces. Once the defeated state surrenders, the triumphant state must cease all acts that are damaging to the defeated state. In a more radical comprehension, Hegel argues that international law is drawn from the associations of sovereign states. The interpretation here is that owing to a diversity of sovereign States, the absolute responsibilities of the States cannot be adopted by way of sanctions; these will remain rigid. The foundation of international jurisprudence as a common law is that it must be valid for the states. However, as the obligation of the law rests on the sovereignty of the nations, the law is valid on the level of commitments of the nations involved in the accord (Aron 112).
Here, it can be said that a number of reasons can be gleaned as to the difficulty in outlawing war. One, there is digression on the definitions as well as the qualifiers as to what actually constitutes a “war.” Two, even in international jurisprudence, it is the commitment of the nation, not the text of the treaty which the country ascribed to, that currently determines the possibility whether a war will break out between states. Competing national interests will continue to muddle the thrust of permanently outlawing conflict in the international arena; it is only when these interests are set aside for the greater international good that the possibility of banning war can begin.
Works Cited
Aron, Raymond. Peace and War: A theory of international relations. Piscataway: Transaction Publishers, 2003 (Google eBook).
United States Department of State-Office of the Historian “The Kellogg-Briand Pact, 1928.” <https://history.state.gov/milestones/1921-1936/kellogg
White, Nigel D., Henderson, Christian. Research Handbook on International Conflict and Security Law. Cheltenham: Edward Elgar Publishing, 2013 (Google eBook).
