This work is dedicated to all those who have died, and suffered the
atrocities and dehumanizing effects of armed conflicts especially in our
contemporary times of civilization and heightened awareness of the
human dignity and inviolable human rights.
I would like to express my heartfelt gratitude to the people who assisted
me in this work and made its completion possible. In this respect, I am
deeply grateful to the Society of St. Sulpice, in particular the America
Province for the opportunity that it gave me to do a specialization in
moral theology at the Alphonsian Academy, Rome. Similarly, I am
immensely indebted to Professor Brian Johnstone whose course on war
and peace enabled me to conceive of this book while I was studying for
my licentiate in Moral Theology.
Finally, I thank those who took the time to proof read my drafts.
Notably, my heart goes out to Frs. Lucas Msimangu, Neal Mulyata, and
Costantino Cheepa. I also thank Fr. Christian Muselela and my wife,
Chimfwembe, for the good friendship that kept me rejuvenated through
the nights that I sat to work on this book. May the good Lord continue to
bless them all for their support.
TABLE OF CONTENTS
Acronyms ... 6
GENERAL INTRODUCTION ... 7
CHAPTER ONE ... 10
THE INTERNATIONAL LAW AND WAR ... 10
1.0 Backdrop on the International Law ... 11
1.1 Towards a definition of the International Law ... 11
1.2 The objective of the International Law ... 17
1.3 Basic Principles of the International Law ... 18
1.4 Sources of the International Law ... 22
2.0 The Concept of War ... 24
CHAPTER TWO ... 34
THE INTERNATIONAL LAW OF WAR ... 34
2.1 THE INTERNATIONAL RULES OF WAR ... 35
2.1.1 The Prohibition of the Threat and Use of Force ... 36
2.1.2 The Right of Self-Defense ... 39
2.1.3 Instantiation of War vis-à-vis the Laws of War ... 43
2.2 THE INTERNATIONAL HUMANITARIAN LAW ... 50
2.2.1 Historical Development of the Humanitarian Law ... 50
2.2.2 Nature of the International Humanitarian Law ... 58
2.2.3 Application of the International Humanitarian Law ... 62
CHAPTER THREE ... 76
NATURAL LAW AND THE INTERNATION LAWS OF WAR ... 76
3.1 THE THEORY OF NATURAL LAW ... 77
3.1.1. Formulation of the Doctrine of Natural Law ... 78
3.1.2 The Essential Constituents of Natural Law ... 80
3.1.3. The Contents of Natural Law ... 84
3.1.4. The Characteristics of the Natural Law ... 87
3.1.5. Knowledge of the Natural Law ... 89
3. 2 NATURAL LAW VIS-À-VIS THE INTERATIONAL LAWS OF
WAR AND THE HUMANITARIAN LAW ... 89
3.2.1. The General Arguments ... 90
3.2.2 The Specific Arguments ... 92
GENERAL CONCLUSION ... 98
BIBLIOGRAPHY ... 101
After Jesus Christ
Before Jesus Christ
War is a phenomenon that has characterized inter-state relationships, as I
know them. Within the current living memory, the First and Second
World Wars stand out, with all the horrors that accompanied them. In
most recent times, the world has been awakened, in a rather notable and
highly controversial manner, to the invasions of Afghanistan and Iraq by
United States of America and the Allied Forces. Alongside these armed
conflicts, there has been the parallel international effort, under the
auspices of the UN, to prosecute the perpetrators of the atrocities in the
former Yugoslavia, and the Rwandan genocide. What these incidences
have, however, brought to the fore is the role that the international law
ought to play in averting and justifying the armed conflicts.
Generally, where deliberate armed attacks have occurred, supporting
arguments have been built around the notion of self-defense whereas
dissenting views have been centered on the value of national sovereignty
and need for just initiation of combat. As for the cases of atrocities and
genocide, the concern has mainly revolved around the values of human
dignity, rights and justice.
In the light of the diverse arguments for or against military action, one
wonders as to whether there is any moral authority that can be universally
appealed to. On this front, the international law has been commonly cited
in either opposition or justification of the threat or resort to armed force.
In any case, it is evident that the rules of the international law of war and
their related international humanitarian law are only enforceable if there
is an underlying moral and religious consensus among conflicting parties.
However, to forge religious compromise is virtually impossible in the
international order in which unbelief in God and variations in religious
ideas prevail. Can I then identify a moral order that would make the
international laws of war and the international humanitarian laws
manifest their universal appeal and binding force? Can our common
humanity be a point of departure for affirming these laws? If so, what
then would really constitute this shared human nature, and, in so doing,
serve as the bedrock of our basic obligations and rights as individuals and
nations in the event of armed conflict?
This book has been motivated by recent contemporary experience of
wars, as I have mentioned above, whose legality has been highly
debatable. In the face of this, I came to the awareness that Catholic
moral theology could have something valuable to offer on this subject
particularly in clarifying and underscoring the moral imperative that the
international laws of war and the humanitarian laws contain. As a
science of faith, moral theology has its origin and point of departure in
the divine revelation, the Word that God historically communicated to
man to illumine his identity and dignity, and to show him its concrete
implication for his life in the world so that he can fully actualize all the
authentic dimensions of his own personal nature. As such, moral
theology has the task to rationally articulate this practical relevance of
revelation in the complex atmosphere of existence of man and of the
Christian. When this is successfully done on the universal scale, this
discipline will have aided people, regardless of their religious status, to
appreciate and live out the common moral obligations that the
international law enjoin upon them in the realm of peaceful coexistence
among nations and armed conflicts.
The approach that I have taken, in the development of this work, is
largely deductive. For this reason, I will proceed by making an
exposition of the values that are enshrined in the general framework of
the international law. I will then specifically make an exposition of the
principles of the international law of armed conflict and the international
humanitarian law. Once this has been done, I will then treat of the
essential nature of the natural law theory, particularly it primary precepts.
Finally, I will demonstrate the relationship between the natural law and
the international laws of war and international humanitarian law.
The book makes recourse to the documents of the United Nations, and
works of Catholic and secular authors that are useful in enabling us to
appreciate lucidly the principles of the international law, with regard to
military action, and the essential conception of the natural law. I have
also widely employed the case judgments of the International Court of
Justice and the handbooks on the international humanitarian law. My
Catholic theological sources include Second Vatican Council Documents,
Encyclicals, Messages for special days of the Popes, and the Catechism
of the Catholic Church. I have also selected many articles and writings,
even from the internet, as secondary sources to support and clarify the
issue that I am dealing with in this work.
This book is divided into three chapters. The first chapter is foundational
in that it offers a valuable general framework for understanding the
international laws of armed conflict and the international humanitarian
law. To this end, it contains the general concept of the international law
itself, its objective, its basic principles, and its sources. It then locates the
concept of contemporary war within the international law. On both
counts, its concern is with essential constitutive ideas, and, on this score,
it betrays an appreciation of the vastness of these subjects.
The second chapter is a build-up on the first one in the sense that it
specifically highlights the nature of the international laws of war and the
international humanitarian law. With regard to the international laws of
war, it deals largely with the provisions of the UN Charter, and, to a less
degree, with the customary law of war. As for the international
humanitarian law, it treats of the Law of Hague and the Geneva Law. It
particularly highlights their codification and development into the
contemporary unitary entity, and the latter's subsequent application and
mode of enforcement.
Undoubtedly, anyhow, both the international laws
of armed conflict and the humanitarian law are expansive subjects. Due to
the purpose of this book, I will not be exhaustive on all the issues that are
related to them. My goal, in this regard, is to explore the essential nature
of these two strands of the international law for a meaningful and solid
discussion of them in the light of the natural law.
In the final chapter, which is the core of this thesis, I have undertaken a
treatment of the natural law theory. On this front, I have made recourse
to the official teaching of the Catholic Church on natural law as well as
supporting ideas from secular authors. Once I have established this, I
have then dealt with the relation between natural law and the international
laws of armed conflict and the international humanitarian law. In this
part, I have pulled together the arguments of contained in the book, and
by so doing, have made a synthesized contribution to other researches and
discussions that have been made on this subject.
THE INTERNATIONAL LAW AND WAR
The international laws on war and their related humanitarian law fall
within the larger framework of the international law. In my view, any
proper understanding of these two forms of the international law must
take into account this broader context. On this view, my exposé on these
laws, which will follow in the subsequent chapter, would be
incomprehensive without prior contextualization of the aforementioned
laws in the general scope of the international law. In the same way, it is
vital that I deal with the concept of war itself in this context. By so
doing, I will appreciate more profoundly the reality of inter-state conflict
upon which the international law has come to bear with its regulations.
This chapter thus delineates my general conception of the international
law as it has been formulated in contemporary times. To this end, it
consists of a general introduction to the international law. It also
highlights the conception of war from the standpoint of the international
law. On both fronts, my treatment has not exhausted all issues and
variant views that pertain to these subjects. Nonetheless, it has set
substantial and dependable foundation for the entire book.
1.0 Backdrop on the International Law
International law, as we know it today, emerged from a collective desire
to deal with conflicts among states by formulating rules that would secure
order and help to mitigate destructive conflicts. As such, it was the
evolution of the concept of an international community comprising
separate, sovereign, if not competing, states that actually marked the
beginning of the international law. However, for a sufficient
understanding of this law, I will attempt to define it, and then treat of its
main objective, its basic principles, and its sources.
1.1 Towards a definition of the International Law
In its current form, the international law is a product of a relatively recent
Historically, it was only in the latter part of the Middle
Ages that European Christian states began applying the present type of
, The Mass Media Declaration of UNESCO, Ablex
Publishing Corporation, New York 1984, 141.
the international law in their relations. The need for this legal
development had been prompted by the presence of several states (that is,
communities that are politically organized and have recognized
governments) in Europe that had come to be established. The
concomitant growth of European concepts of sovereignty and the
independent nation-state required an acceptable method whereby inter-
state relations could be regulated in accordance with commonly accepted
standards of behavior. This need became even more evident with the
increased interaction between various sovereign entities.
Consequently, international law was "developed by states to serve their
basic relational needs and to supply the conceptual and technical
framework for their political intercourse by diplomacy."
Reformation and the European religious wars that followed emphasized
this, as did the growing poor of the nations. In many ways, these wars
marked the decline of a continental system founded on
religion and the
birth of a continental system founded on the supremacy of the state. It
was, however, only at the end of the 18
century that the European states
began to regard themselves as bound by this international law.
Naturally, the international law was initially a Eurocentric system that
revolved around the power balance of European states. It was codified as
a preserve of the European civilized, Christian states, into which other
states could only be admitted upon the consent of and on the conditions
laid down by the Western powers. The nineteenth century, however,
ushered in a change in this regard. With the drive for the expansion of
the European empires, coupled with a strong influence of positivism, the
Richard J. B
; R. John E
(eds.), Nuclear Weapons Debate: Theological and
Ethical Issues, SCM Press, London 1989, 176.
Cf. K. N
; L. H
, The Mass Media Declaration of UNESCO...,141.
international law became geographically internationalized. More still, in
the course of the latter development, it became less universalistic in
conception and more, theoretically as well as practically, a reflection of
European values. However, a new internationalization of the international
law that has come to transpire in the recent decades has destroyed its old
European-based homogeneity, and it has stressed, on the contrary, its
In itself, the International law is composed of two kinds of laws. On the
one hand, there are the conflict laws, which are sometimes referred to as
the private international law. On the other hand, there is the public
international law, which is normally called simply as the international
The former is concerned with cases that raise questions, within
particular legal systems in which foreign elements have obtruded, as to
application of foreign law or the role of foreign courts.
On the contrary,
the latter is a separate legal system altogether, and not merely an adjunct
of a legal order. It is this last form of the international law that I am
treating in my entire work.
Currently, the international law is primarily formulated by international
agreements. Much of it is constituted by states expressly agreeing to
specific normative standards, most obviously by entering into treaties. As
such, in the final analysis, the states are the arbiters of the world order.
They both make the rules (ignoring for the moment the secondary
growing field of international organizations) and interpret, and enforce
them; they themselves choose to either obey or disobey them. Through
their agreements, they create the rules that bind upon the signatories, and
Cf. R. B
(ed.), Encyclopedia of Public International Law, Collins Publishing
Company, Amsterdam 1984
Cf. J. B
, Introduction to the Principles of Moral and Legislation, (privately printed)
Cf. C. C
; P. N
, Private International Law, Butterworths, London 1999
customary rules, which are basically state practices accepted by the
community at large as laying down patterns of conduct that have to be
adhered to. The authority of this international system is horizontal, and
consists of 192 independent states, albeit this count is still rising.
these states are, in any case, equal in legal theory in that they all possess
the characteristics of sovereignty, and recognize no authority over them.
Individual persons can only choose to obey the law or disobey it. They
do not create the law. Specific institutions do that and states are the
principal subjects, not individuals.
From time to time, states object to particular rules of international law
and seek to change them. However, no state has sought to maintain that
it is free to object to the system as a whole. Each individual state, of
course, has the right to seek to influence, by word or deed, the
development of specific rules of international law, but the creation of new
customary rules is not dependent upon the express consent of each
Unlike for the domestic laws, the international law lacks the legislature,
executive, judiciary, and an effective provision of sanctions.
resolutions of the General Assembly of the UN, which is composed of
representatives from all member states, are not legally binding except for
certain organs of the UN for certain purposes.
There is no system of
courts with compulsory jurisdiction to settle disputes over such laws.
Legal rules of the international law are not enforced through a central
body, as in the case of domestic law, and this fact constitutes its inherent
Cf. Robert H
; Joseph R
, War No More. Eliminating Conflict in the Nuclear Age,
Pluto Press, London 2003, 52.
, Practice and Methods of International Law, Oceana, Dordrecht 1984, 2.
Cf. K. N
; L. H
, The Mass Media Declaration of UNESCO..., 143.
, T.S. No. 993, New York 1945, Article 17(1), also D.
, The Effects of Resolutions of the General Assembly of the United Nations, 32BYIL, 1955-6,
The International Court of Justice, which is based at Hague,
can only decide on cases when both parties to the conflict agree, and even
then, it has no legal capacity for enforcing its decisions. Besides, Hind
and Rotblat have made this observation about the second Court, the
International Criminal Court, which was set up in 1998 for trying crimes
The USA is unwilling to recognize this Court on the grounds
that its own citizens might be seen as criminals, and at the
time of writing the USA is refusing to participate in peace-
keeping forces unless exception from the Court's jurisdiction
is given unilaterally to its citizens.
This is obviously a drawback on the efficacy and binding nature of this
Court. In any case, it is also worth noting that besides these two Courts,
the Security Council of the UN has established Ad hoc tribunals to deal
with genocide crimes such as in the former Yugoslavia, and in Rwanda.
On another front,
however, the Security Council, which could have
played the role of an executive entity, is constrained by the veto power of
the five permanent members (United States, Russia, China, United
Kingdom, and France).
Gray, for instance, has made this revealing
observation when he noted the historical recourse to veto during the Cold
The veto of the five permanent members of the Security
Council under Article 27(3) was used 279 times between
1945 and 1985; from 1946 until 1970 it was almost
exclusively the USSR, facing a Western majority in the
et al (eds.), The Handbook of Humanitarian Law in Armed Conflicts, Oxford
University Press, New York 1995, 517.
; Joseph R
, War No More. Eliminating Conflict in the Nuclear Age...,
W. Michael R
and Chris T. A
(eds.) The Laws of War: A Comprehensive
Collection of Primary Documents on International Laws Governing Armed Conflicts, Random House,
New York 1994, 8.
General Assembly that prevented the adoption of resolutions
by the Security Council. In 1970 the USA made its first veto,
and from then on came to replace the USSR as
overwhelmingly the main user of the veto.
Evidently, it is not only the actual use of the veto that hinders the
adoption of resolutions, but also the threat to employ it either has this
same effect or secures their revision to favor the permanent member
concerned. As such, the bigger the willfully disobedient member state is,
the harder it has been for nations to decide even for effective sanctions.
In any case, however, sanctions themselves, which normally consist in
complete or partial economic, communication, and diplomatic boycott
(Charter of the UN, Article No. 41), do not pose any basic threat to the
state that is being disciplined.
All in all, this extraordinary nature of the
international law, as a legal order, account for its own inherent
weaknesses both in structure and content.
It would, therefore, suffice to conclude that the international law (or the
law of nations) as understood today is firmly rooted in the development
of Western culture and political organization. In my specific scope, it
covers relations between states in all their diversity and regulates the
operations of various international institutions. It may be universal or
general, in which case the formulated rules bind all the states (or
practically all depending upon the nature of the rule), or regional,
whereby a constellation of geographically or ideologically linked states
Christine Gray, International Law and the Use of Force, Oxford University Press, New
York 2000, 145.
Cf. Helmut T
, Theological Ethics. Politics, William B. Eerdmns Publishing Co.,
may recognize special rules applying only to them.
stems from the principle objective of the international law.
1.2 The objective of the International Law
"The main objective of international law is to regulate interstate
It is shaped in such a way as for provide a conducive
environment for harmony, and the regulate disputes between states. To
this end, it creates a framework, no matter how rudimentary, which can
serve as a kind of buffer clarifying and moderating claims and trying to
balance interests. In addition, it sets out a series of principles that declares
how states should conduct themselves. "In fact, a central aim of the
international law is to determine the jurisdiction of states so that they can
look after their international interests adequately without injuring the
rights of other states."
Due to the aforementioned objective, the contemporary international law
has been branded as the international law of peaceful coexistence. All its
basic principles, as I will demonstrate later, have been formulated in
order to draw states to adhere at least to the minimum obligations of
coexistence. "States are not allowed to deviate from the basic principles,
except in a positive direction, i.e., towards greater peaceful international
These principles constitute the essentials of the
international law, and the fundamental values enshrined in them taint my
approach to international relations. They must be adhered to in all
spheres of interstate relations. They are binding on all states including
Cf. K. N
; L. H
, The Mass Media Declaration of UNESCO...,
both existing and newborn ones, that is, regardless of the consent of a
1.3 Basic Principles of the International Law
Given the principal objective of the international law, its basic principles
tend to be general in character. They spell out the obligations and rights
of states by incorporating the main goals placed upon the international
law by the international community. Besides, they reflect the basic tenets
of the structure of international law. "The leading sources of the basic
principles are the UN Charter, other multilateral conventions,
international custom, and declarations of the UN General Assembly."
One of the basic principles of the international law is the sovereignty of
states. This principle underscores the equality of states in the sense of
having "an exclusive jurisdiction within their territory and that, usually, a
state is bound only by those norms to which it has given its consent."
This translates to that states have to respect each other's right to live in
peace within its established frontiers. White has asserted that,
this right is expressed in the fundamental principles of the
international law concerning the legal equality of states; the
right of self-determination of peoples; the obligation of non-
intervention; the obligation to settle international disputes by
peaceful means and the prohibition of the unilateral use of
armed force save in self-defense.
The notion of sovereignty thus assumes that all states possess rights and
duties and each must respect the rights of other states. It entitles each
Richard J. B
; R. John E
(eds.), Nuclear Weapons Debate: Theological and
Ethical Issues.., 179/ UN Charter, Art. 2(1), 2(3) and 2(4).
state to constitutional independence, and it is the basis of the international
order. Walzer has made this observation on this point:
The rights of the member states must be vindicated, for it is
only by virtue of those rights that there is a society at all. If
they cannot be upheld (at least sometimes), international
society collapses into a state of war or is transformed into a
It, therefore, rightly follows that other states, the UN included save for
enforcement of sanctions, must thus desist from intervening in matters
that are essentially within the domestic jurisdiction of a state. "This
means concretely that the sovereign state has no judge over it. It is itself
the final earthly authority."
Sovereignty is one of the constitutive elements of a state. No state can
renounce it without losing its identity as a state. Besides, it entails the
independent and, at times, unrestricted coexistence of sovereignties.
this score, it involves recognition that a state is a member of a community
of nations, and it symbolizes the dignity and unique identity of each state.
As such, "[f]ar from being inimical to the notion of international law, it is
the presupposition of such law, which can only take effect as it is
recognized by nation-states- and such recognition implies their
The second basic principle of the international law is concerned with the
maintenance of international peace and security. This principle spells out
for states both obligations, and their rights in a bid to maintain harmony
amongst them. Such obligations include the duty of states to refrain from
, Just and Unjust Wars. A Moral Argument with Historical Illustrations,
Basic Books, Inc., New York 1977, 59.
, Theological Ethics. Politics..., 432.
Cf. Ibid., 432-433.
the threat or use of force against each other, and their duty to settle their
international disputes through peaceful means. On the other hand, it
affirms the right of states to self-defense against armed aggression.
Thirdly, there is the principle that invokes respect for human rights. It is
upon this principle that is founded the states' obligation to respect human
rights within their frontiers, without distinction of nationality, race, creed,
sex or economic or social status.
Similarly, it places upon states the
duty to work with other states for the global promotion of these rights.
The demand for the respect for humanitarian law in wars and armed
conflicts is also inspired by this principle.
Fourthly, the international law constitutes the principle that relates to the
freedom and use of common benefit of international maritime areas and
of space that is beyond the jurisdiction of states. Related to this principle
is another one that promotes protection of environment and the relational
use of natural resources.
The fifth principle of the international law is concerned with the
development of cooperation between states. It defines the right of each
state to take part in global cooperation, and their obligation to work with
other states to resolve international problems. Finally, linked to this
principle is another that is intimately bound up with the basic features of
the structure of international law. This latter principle enjoins upon each
state to live up to its commitments. "This basic norm is the most salient
expression of good faith, a fundamental principle of international law
enshrined in Article 2(2) of the UN Charter and in the Friendly Relations
Declaration of 1976."
Cf. K. N
; L. H
, The Mass Media Declaration of UNESCO...,
Cf. Richard J. B
; R. John E
(eds.), Nuclear Weapons Debate: Theological
and Ethical Issues.., 179.
Thus, just as any domestic community must have a background of ideas
and hopes to aim at, even if few can be or are ever attained, so too the
international community must bear in mind its ultimate values. However,
these ultimate values are in a formal sense distanced from the legal
process. In this regard, the International Court of Justice observed in the
South-West Africa case that as a court of law, it could affirm moral
principles only to the extent that these are given a sufficient expression in
legal form. It further noted that law exists to serve a social need and that,
for that same reason, it can do so only through and within the boundaries
of its own discipline. Otherwise, it is not a legal service that would be
, Reports 1966, 6, 34.
1.4 Sources of the International Law
Evidently, the increase in the number of international agreements and
customs, the strengthening of the system of arbitration and the
development of international organizations have constituted the essence
of international law as it exists today. Indeed, according to "Article 38 of
the Statute of the international Court of Justice, the main sources of
international law are international treaties, international customary law,
and the general principles of law recognized by civilized nations."
There are various forms of treaties. These include treaties that are
virtually universal in character, such as the Charter of the UN and the
Charters of its several specialized organizations. There are also
covenants and conventions that have been popularly ratified by states as
well as regional or bilateral accords. Customary law comes in being
through common or virtual common practice of states and their eventual
recognition of their legal duty to observe such practices. Certain rules of
customary law are universal, and it is through the process of this law that
universal international law comes into being. However, most rules of
universal international law currently develop from the interplay between
treaties and customs. As for the general principles of law, they can only
be applied with the consent of the states, and they have a secondary place
even though some may contain elements of the natural law.
It is thus
normal that the international law has been treated as an aspect of
international politics and subject to considerations of power, expediency,
; L. H
, The Mass Media Declaration of UNESCO..., 148.
Cf. Ibid., 148-149.
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