Just War: Tragedy of the Breeding War Commons 1. Just War Tradition: Mutually Agreed Rules of Combat between Culturally Similar Enemies: Jus Ad Bellum Convention, Principles of Jus In Bellow & Just Post Bellum Just War Theory1 is a derivative of International law, which deals with the justifications – theoretical or historical -- for war and how and why wars are fought. The theoretical aspect is used by politicians or historians to determine whether a war can, or could be ethically justified, and what forms of warfare are, and are not allowed. The Just War Tradition, or historical aspect of Just War Theory dates back to the concept of Chivalry, or more specifically the codes of Military Honour conduct that have held currency with the military elite since the age of chivalry. In Chivalry without a Horse: Military Honour and the Modern Law of Armed Conflict2 Rain Liivoja3 writes: At the core of this code stood an ideal that was certainly not characteristic to the Middle Ages alone: ‗[c]hivalry was often no more, and no less, than the sentiment of honour in its medieval guise'.4 Thus, to speak of chivalry is to speak of a military code of honour, which already sounds far less archaic. Honour, moreover, has played a key role in military thinking over millennia, 5 so it does not seem out of place to talk about it with reference to modern warfare. There is also another, in some sense more concrete, link between chivalry and the modern law of armed conflict. The law that might be called 'modern' began life in the second half of the 19th century with the adoption of a number of important documents -- the Lieber Code in 1861,6 the Brussels Declaration in 1874,7 the Oxford Manual in 1880,8 and the Hague Regulations in 1899.9 This new-found enthusiasm for the laws of war was certainly quite remarkable. But the innovation of these documents was more in their form than in their substance. Their drafting was to a very significant extent an exercise in reducing to writing -in a distinctly legal language, although not always in a strictly legally binding form -- customs already existing within the military community.10 Certainly, like in any other codification process, the opportunity presented itself to clarify existing practices and to introduce new
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Just War Theory, by Alexander Moseley, Internet Encyclopaedia of Philosophy http://www.iep.utm.edu/justwar/ Rain Liivoja. 2010. "Chivalry without a Horse: Military Honour and the Modern Law of Armed Conflict" submitted to the Proceedings of the Estonian National Defence College Available at: http://works.bepress.com/rain_liivoja/15 3 Research Fellow, of the Center of Excellence in Global Governance Research, University of Helsinki, and Visiting Lecturer in International Law, Estonian National Defence College. 4 Malcolm Vale, War and Chivalry: Warfare and Aristocratic Culture in England, France and Burgundy at the End of the Middle Ages (Duckworth: London, 1981), at 1. 5 Ibid.: 'That sentiment [of honour] has been confined neither to the Middle Ages, nor to Western Europe, and is found in Ancient, Asiatic, African and Oriental Civilisations. Among warrior classes, it possesses a universal and, perhaps, an eternal validity.' For a discussion of the role of honour in warfare in the West, see Paul Robinson, Military Honour and the Conduct of War: From Ancient Greece to Iraq (Routledge: London, 2006). 6 General Orders No. 100, Instructions for the Goverment of Armes of the United States in the Field [The Lieber Code] (US, 18630 7 Project of an Intnll Declaration concerning the Laws and Customs of War, text adopted at Brussels, 27 Aug 1874, did not enter into force. 8 'The Laws of War on Land' (Institute of International Law: Oxford, 9 September 1880). 9 Regulations concerning the Laws and Customs of War on Land, annexed to the Convention (II) with Respect to the Laws and Customs of War on Land, The Hague, 29 July 1899, in force 4 September 1900, 205 CTS 277. 10 Geoffrey Best, Humanity in Warfare (Columbia University Press: New York, 1980), at 60: 'A large part of the modern law of war has developed simply as a codification and universalization of the customs and conventions of the vocational/professional soldiery.' Even the first 'Red Cross' Convention -- Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, signed at Geneva, 22 August 1864, in force 22 June 1865, 129 CTS 361 -- while surely innovative by its multilateral scope -- revived an old idea, namely to keep harmless medical personnel on the battlefield. 2
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