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Abstract
The article criticizes the trend of reformulating the traditional just-war criterion of Proper Authority, which was designed to de-legitimize force by non-state actors, into a requirement that decisions to resort to force be multilateral. The article illustrates several shortcomings of the judgment processes of the UN Security Council and General Assembly, the World Court, and states’ populations, and argues among other things that reformulating Proper Authority would render other criteria meaningless, especially Just Cause. Finally, the article rebuts the strongest objection to a system in which states judge their own causes for war: the problem of invincible ignorance.
Notes
1. For an anecdote that underscores this point in a counter-intuitive way, see Matlary Citation2004: 132 (reproducing the Norwegian Prime Minister's statement that Norway might not support an attack on Iraq even if the Security Council had authorized it).
2. Syse and Ingierd's (2005) procedural criteria for locating the Proper Authority to make war are (1) predictable and acceptable procedures; (2) transparency; and (3) openness to advice and knowledge. Their moral criteria are (1) highest political authority charged with care for the common good, (2) moral and political competence, and (3) ability and willingness to take on a wide range of responsibilities.
3. North Atlantic Treaty, Apr. 4, 1949, 34 U.N.T.S. 243.
4. The closest the Council came to doing this was in imposing an arms embargo against all of the former Yugoslavia in 1991. S.C. Res. 713 (1991). The embargo generated complaints that the embargo cut off the Bosnian Muslims’ access to the weapons they needed to defend themselves against the Bosnian Serbs, who were far better armed. The embargo remained in place and was enforced by NATO and the Western European Union, but only because its member states elected to honor it. If they had wanted to break it, they could easily have done so.
5. S.C. Res. 487 (1981). See also U.N. SCOR, 36th Sess., 2280th-2288th mtgs., U.N. Docs. S/PV.2280-2288 (1981).
6. In June 2010 the Assembly of States Parties to the ICC adopted an amendment to the Rome Statute adding the Crime of Aggression to the Court's jurisdiction. For the drafting history and travaux preparatoires see Barriga et al. Citation2009. Although the Court is designed to prosecute individual defendants, clearly the justness or unjustness of the use of force by the state in question will figure prominently into the Court's judgments.
7. United States Diplomatic and Consular Staff in Teheran (U.S. v. Iran) (Judgment), 1980 I.C.J. 3 (May 24) [hereafter Teheran Hostages]. The Iranian security personnel that were routinely posted around the embassy were conspicuously absent (para. 17), the attack took place over a three-hour period without any government intervention whatsoever (para. 57), and the Iranian government made efforts to stop attacks on other embassies before and after the attack on the U.S. embassy (paras. 14 & 20).
8. Id., para. 74.
9. Teheran Hostages, 1980 I.C.J. at 51 (diss. op. J. Tarazov).
10. We shall excuse the obvious partiality of the Iranian judge ad hoc, who was appointed by Iran and presumably would have to return there after the case was concluded.
11. Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, para. 292, 1986 I.C.J. 14 (Jun. 27) [hereafter Nicaragua].
12. Several sections of the majority opinion are devoted to this question. To summarize, the Court held that rebel movements in El Salvador and Honduras had been supported from Nicaragua up until 1981, but that support was not necessarily imputable to the Nicaraguan government (paras. 152-3). The Court did hold that certain trans-border incursions from Nicaragua into those countries in 1983 and 1984 were attributable to the government of Nicaragua (para. 164). However, the Court did not substantiate a number of allegations made by the United States during the jurisdictional phase of the case. This was partly a consequence of the U.S. failing to appear in the merits phase of the case, but at the end of the day, the Court was aware of Nicaragua's mischief in El Salvador and Honduras, and could have substantiated more of it had it desired to do so.
13. Oil Platforms (Iran-U.S.), 2003 I.C.J. 161 (Nov. 6) [hereafter Oil Platforms].
14. The legal basis for hearing the case at all was a 1955 commerce treaty between the U.S. and Iran; any judgment against the U.S. could only stem from a violation of that particular treaty, namely an adverse effect on the freedom of commerce between the two countries. Since there was no direct commerce between them (the distinguishing factor between this case and the Nicaragua case), the treaty was not violated and the Court could thus not render a judgment against the United States.
15. Oil Platforms, 2003 I.C.J. at 246 (sep. op. J. Kooijmans, para. 2). The British, Japanese, and American judges made similar complaints.
16. Id. at 266 (diss. op. J. Al-Khasawneh); id. at 290 (diss. op. J. Elaraby).
17. Id. at 324 (sep. op. J. Simma).
18. Syse and Ingierd (2005) arrive at a similar conclusion, on the basis that the military is not entrusted with the overall ‘care for the common good’ as the political authority is. Syse and Ingierd's conclusion, however, is derived from Ancient Greek political theory, whereas my conclusion is drawn specifically from Christian (especially Thomist) political theory.
19. This is why Andrew Sola's (Citation2009) approach is unworkable. Sola argues that since many soldiers now have the ability to judge for themselves the justice of their superiors’ cause, they should be held morally culpable for serving in an unjust war. Putting such a difficult decision on the shoulders of the soldiers would so undermine military discipline and morale that it could severely hamper the military force's ability to fight effectively – even for a just cause.
20. Alexander Wendt (Citation1999: 289-90) points out that the Bahamas probably owes its independence to the normative conclusion of the United States that conquering it would be unjust.
21. Indeed the Latin word for war, bellum, is itself derived from the Latin word duellum, or duel (Gentili 1933: 12).
22. Citing Baldus, On Digest i, 1, 5.
23. In sec. 32, on question 2, article 4 (emphasis added; italics in original removed). See also Vitoria (1991a: 282 [sec. 6, on question 3, article 1]), professing the right of France to defend Burgundy from conquest by its rightful owner, Spain, on the ground of France's genuine but mistaken belief that Burgundy actually belongs to France. Vitoria takes the unusual step of excusing the sovereign from ignorance of the law.
24. In sec. 7, para. 19. Suarez instead launches into a discussion of the right of noncombatants to defend themselves, households, and cities from attack, affirming that even an overall just war may lead to individual acts that are unjust, and may consequently be defended against.
25. Gentili bk. i, chap. 6; Grotius bk. ii, chap. 23, sec. 13, para. 2.
26. Wolff, in sec. 888; Vattel, in bk. iii, ch. 1, sec. 40.
27. Recent revelations have validated this argument (Kessler Citation2009). The proposition that Iraq actually no longer had active WMD programs at the time of the invasion remains a debatable one, for it is also possible that the programs were in fact dismantled and the evidence destroyed or very well hidden right before the invasion, or that the evidence was spirited out of the country. A former Iraqi general claims the latter alternative is what actually happened (Sada Citation2006).
28. Definition of Aggression, annex to G.A. Res. 3314 (1974).
29. ICC Resolution RC/Res.6 (11 Jun 2010). An advance version is available on the ICC's website at http://www.icc-cpi.int/iccdocs/asp_docs/Resolutions/RC-Res.6-ENG.pdf (last visited 7 Jul 2010). For a documentary history of the negotiations in the Special Working Group on the Crime of Aggression, see Barriga et al. (2009).
