Del Acceso a Radio y Televisión Artículo 159.
2. El tiempo en radio y televisión que el Instituto asigne a los Organismos Públicos Locales se determinará por el Consejo General conforme a la solicitud que aquéllos presenten ante el Instituto.
a. A brief history of just war thinking
But first, let us examine the tradition of just war thinking and what it does (or attempts to do) in applying ethical principles in war. The just war tradition attempts to
explain the “rightness” or “wrongness” of the decision to fight a war and the way in which a war should be conducted. According to David Whetham, the just war tradition provides an ethical framework for distinguishing justifiable military action from mass murder. It provides a common language within which the rights and wrongs of armed conflict can be intelligibly discussed and debated rationally.310 That is, destructive acts
that are disproportionate and/or indiscriminate are morally off limits. So the just war tradition demands that military combatants exercise restraint in their pursuit of military goals.
Some authors, such as James Turner Johnson, emphasise the judicial function of war, however. This suggests that the just war focuses on a “conception of sovereignty as responsibility for the common good of society that is to be exercised to vindicate justice after some injustice has occurred and gone unrectified or unpunished.”311 I do not dispute that the just war tradition is also concerned with justice. But these notions are not incommensurate. The just war tradition is a complex, long-standing historical discussion about both harm mitigation and the pursuit of justice. Rather than engaging with this debate, however, my purpose here is merely to highlight the way in which the just war tradition develops a principled approach to the moral exceptionalism that applies to killing in war. This moral exceptionalism is an attempt to balance military necessity with the principle of humanitarianism; what Michael Walzer refers to as the adaption of ordinary morality to the “moral reality of war.”312
The modern variant of just war thinking is part of a long historical tradition that stretches back through the centuries, with roots in various intellectual traditions around
310 David Whetham, Ethics, Law and Military Operations (Palgrave Macmillan, 2011), 84-85. 311 James Turner Johnson, Sovereignty: Moral and Historical Perspectives (Washington D.C.:
Georgetown University Press, 2014), 19.
the world.313 Alex Bellamy explores the historical development of just war thinking and its impact on shaping contemporary uses of military force in his 2006 book “Just Wars: From Cicero to Iraq.”314 Here he argues that the earliest systematic writings that link directly to the modern understandings of the just war tradition derive from the work of Ambrose and Augustine in the late 4th and early 5th centuries.315 They synthesised the
previously existing ideas in Greco-Roman thought. The ancient Greek writer Thucydides (460-395 BC), for example, examined the customs of warfare in his analysis of the Peloponnesian War.316 And, according to Bellamy, the Roman
philosopher Cicero developed an even more comprehensive account of the laws of war than the Greeks.317 The 4th century Christian bishop Ambrose of Milan (340-397) argued that Jesus’ teaching forbade an individual from killing another in self-defence. So he was against the complete acceptance of Cicero’s laws of war, which presumed killing in self-defence is always legitimate. Instead, Ambrose held that an individual might act in the defence of others.318 Augustine of Hippo (354-430) was taught by Ambrose, which influenced him in formulating his own views of the ethics of war. According to Walzer, Augustine is important to the development of just war because he replaced the pacifism of Christian piety with the reasoning necessary to support the active ministry of the Christian soldier.319
313 For detailed discussions of the historical development of the Just war Tradition see: David Whetham,
"The Just War Tradition: A Pragmatic Compromise," in Ethics, Law and Military Operations, ed. David Whetham (Basingstoke, Hampshire: Palgrave Macmillan, 2011); Bellamy; J.T. Johnson, Just War Tradition and the Restraint of War: A Moral and Historical Inquiry (Princeton University Press, 2014); Neff.
314 Bellamy’s study of Just war thinking is particularly useful to my discussion here because he examines
the Tradition in the context of contemporary issues of conflict. Bellamy.
315 Ibid., 17.
316 Ned Lebow argues that although Thucydides is frequently cited as the original advocate of a ‘might is
right’ approach to warfare, his overarching story is about moral decline contributing to the demise of the Hellenic society of city-states. His particular concern is that the erosion of the more restrained traditional customs of war damaged Greek civilization as a whole. Richard Ned Lebow, The Tragic Vision of Politics: Ethics, Interests and Orders (Cambridge: Cambridge University Press, 2003).
317 Bellamy, 18. 318 Ibid., 24.
Centuries later, Gratian’s Decretum (1148) made an important contribution, Bellamy suggests, when it established defence of the patria (political community) as a just cause. He claims that Gratian’s approach to justified war was a “quasi-legal” procedure for defending the rights of individuals in contexts where no higher authority was able to arbitrate effectively.320 According to James Turner Johnson, Gratian held
that war was justified only when fault could be found in the party against whom war was being waged. That is, he suggests, war is justified “in order to regain what has been stolen or to repel the attack of enemies” or “when it is necessary by war to
constrain a city or a nation which has not wished to punish an evil action committed by its citizens.”321
Then, in the century following Gratian, Thomas Aquinas (1225-1274) used the authority of Augustine’s arguments in an attempt to define the conditions under which a war could be just. Aquinas’s starting point was a presumption against war and violence. In order for a war to be just, says Aquinas, three things are required: the authority of the prince by whose command the war is to be waged; those who are attacked deserve it on account of some fault (culpa); and the intention to advance good and avoid evil.322 Importantly, Aquinas said that it was not the business of a private individual to declare war when he can take his grievance before a public official to be judged. Neither is it the business of a private person to mobilise the people for war. Instead, he suggested that it is the duty of those who are in authority to “rescue the poor and deliver the needy out of the hand of the sinner”; that a political order conducive to peace requires public officials to have the responsibility to authorise wars.323 According to Bellamy, this
320 The Decretists elaborated on the Decretum (in the period between 1140 and 1190) with a particular
focus on the nature of the just cause and the rightful authority for war. Bellamy, 33-35.
321 James Turner Johnson, Ideology, Reason, and the Limitation of War: Religious and Secular Concepts, 1200-1740 (Princeton University Press, 1975), 36.
322 Thomas Aquinas, "Just War and Sins against Peace," in The Ethics of War: Classic and Contemporary Readings, ed. Gregory Reichberg, Henrik Syse, and Endre Begby (Oxford, UK: Blackwell Publishing, 2006), 177.
meant that Aquinas agreed with Augustine that private persons and public officials were bound by different moral rules.324 Like Augustine, he suggests, Aquinas derived this
position from a belief in the inherent sociability of man and the need for government, arguing that “man is by nature a political and social animal” who uses reason and speech to build political communities that satisfy important human needs.325
Niccolo Machiavelli (1469-1527) also made a significant impact on the just war tradition when he argued that morality and law are products of political communities.326
According to Bellamy, the prince’s primary role in Machiavelli’s schema is to protect the political community through force of arms and justice. To do this, however, he must remain “above” the law and be free to act according to the dictates of necessity.327 The “Legalists” later departed from Machiavelli’s political realism by insisting
international society was constituted by laws and norms governing the mutual relations between states.328 In particular, Alberico Gentili published De Jure Belli in 1589, which rejected the realist idea that sovereigns could justifiably wage war whenever they saw fit and argued that such decisions were subject to scrutiny under international law. This is, suggests Bellamy, because while princes were “above” positive law, they remained “below” natural law and international law. For Gentili, international law governed relations between states and comprised rules to which they consented.329 But the legalists broadly accepted the Machiavellian view that states were inherently valuable,
324 Bellamy, 38. 325 Ibid.
326 Niccolo Machiavelli, "The Prince," in Machiavelli: The Prince, ed. Q. Skinner and R. Price
(Cambridge, UK: Cambridge University Press, 1988).
327 Humans created laws within such communities to punish wrongdoers and protect the community.
Justice is a product of the political community but is not part of the innate human condition nor does it extend beyond the state. Physical force is essential for such communities insofar as it is necessary for the state’s survival and growth. Machiavelli maintained that as justice is confined to the state, the world beyond is an ungoverned anarchy. In order to protect the political community in this environment, princes must be directed by the virtue of necessity and guided only by considerations of prudence, not of law and morality. Thus, in Machiavelli’s approach to war, everything is subordinated to military power and its prudential use. Bellamy, 57.
328 Ibid., 58-59. 329 Ibid., 59.
suggests Bellamy. Balthazar Ayala, for example, argued that the question of whether recourse to war was justified was a matter for the ruler alone.330
Then, according to Bellamy, the devastation wrought by Europe’s religiously- motivated ideological wars between 1570 and 1660 produced a profound intellectual reaction that reshaped the just war tradition. For example, Thomas Hobbes’ Leviathan
(1651) was written in response to the English Civil War.331 These wars were brought to an end by two treaties collectively known as the Peace of Westphalia (1648), which is usually seen as the birth of the era of the modern nation-state and the beginning of the modern system of international diplomatic relations.332
Hugo Grotius’ De Jure Belli et Pacis (1625) attempted to construct a system of law that would prevent such religiously-motivated ideological conflict in the future.333 Grotius (1583–1645) argued that the only just cause for war was in a context where impersonal tribunals were either ineffective or without jurisdiction. He allows private persons the use of force to ward off injury but argues that it is “much more consistent with moral standards, and more conducive to the peace of individuals, that a matter be judicially investigated by one who has no personal interest in it.”334 According to
Bellamy, Grotius made an important distinction between the duties of the sovereign and the average person when it comes to moral decision-making. When the sovereign is confronted with situations where failing to act might facilitate a wrong or let a wrong go unpunished, she is obliged to choose the least evil option rather than do nothing. In
330 Ibid.
331 See 4.3 below for more on Hobbes’ political realism. Hobbes. 332 Bellamy, 67.
333 Hugo Grotius, "The Law of War and Peace," in The Law of War and Peace: Student Edition, ed. S.C.
Neff (Cambridge: Cambridge University Press, 2012 [1625]).
334 "The Theory of Just War Systematized," in The Ethics of War: Classic and Contemporary Readings,
contrast, if the average person does not know whether his action will be right or wrong, then Grotius says that he should do nothing.335
After Grotius, legalism split into two sub-traditions that emphasised natural law and positive law, respectively. The natural law tradition was headed by Samuel von Pufendorf (1632-1694) and Christian Wolff (1679–1754) who attempted to develop a more coherent natural law theory, which predominated in European intellectual circles for much of the eighteenth century before heading into decline, says Bellamy. The
positive law tradition was reflected in the work of Emmerich de Vattel (1714-1767) and Cornelius van Bynkershoek (1673-1743) who focused on a conception of international law based on sovereign consent.336
Political realism then dominated much of the period from 1789-1945. Bellamy suggests that this meant that sovereigns believed they enjoyed an unlimited right to wage war wherever they deemed it prudent and that normative restrictions on the conduct of war should be tempered by military necessity. But these prerogatives were challenged by legalists from the mid-eighteenth century onwards who argued that states had a responsibility to care for the wounded and sick in war and limit war’s violence.337
Bellamy suggests that since 1945 the positive laws of war have developed into a
comprehensive system of rules comprising “a presumption against aggressive war, rules governing the principle of non-combatant immunity and legitimate conduct in war, and a system, albeit partial, for prosecuting those accused of grave breaches.”338
335 Bellamy describes Grotius as conceiving three “images” of just war: 1) war as judicial act; 2) war as
litigation; and 3) war as defence of the common good. Grotius argued that war in defence of the state was justifiable because the state itself had value beyond the amalgamation of individual rights to self-
preservation, which derived from its role as protector of society, economy, culture and the like. Thus, he maintained that war was not forbidden by either natural law or volitional law but that the contradictions inherent in the concept of collective self-preservation necessitated laws governing recourse to war and its conduct. Bellamy, 73, 75.
336 Ibid., 76. 337 Ibid., 89. 338 Ibid., 112-13.
What is today conventionally understood as just war theory is largely influenced by Michael Walzer’s work, particularly as reflected in his 1977 book Just and Unjust wars.339 According to Endre Begby, Gregory Reichberg, and Henrik Syse, Walzer’s book was responding to the dominance of structural realism in U.S. foreign policy and the heated debates about the Vietnam War.340 Walzer builds his just war theory on the
notion that states have a right of self-defence much like individuals, which he refers to as the “domestic analogy.”341 This comparison of international society to civil society is
crucial for understanding Walzer’s theory of aggression.342 It says that states possess a
right of self-defence in an analogous way to individuals. Therefore, according to
Walzer, international aggression is a criminal act equivalent to armed robbery or murder and “the world of states takes on the shape of a political society the character of which is entirely accessible through such notions as crime and punishment, self-defence, law enforcement, and so on.”343 Walzer refers to this approach to justifying war as the
“legalist paradigm” because he believes it reflects the conventions of law and order, and he argues that it should be treated as the baseline for the moral comprehension of
war.344
339 Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 1st ed. (New
York: Basic Books, 1977).
340 Endre Begby, Gregory Reichberg, and Henrik Syse, "The Ethics of War. Part I: Historical Trends," Philosophy Compass 7, no. 5 (2012): 317; Kenneth N. Waltz, Theory of International Politics (New York: Random House, 1979).
341 For a discussion of the domestic analogy, Walzer recommends reading the two essays by Hedley Bull,
“Society and Anarchy in International Relations,” and “The Grotian Conception of International Society,” in Diplomatic Investigations, chps. 2 and 3. H. Butterfield, M. Wight, and H. Bull, Diplomatic
Investigations: Essays in the Theory of International Politics (Allen and Unwin, 1966).
342 Walzer argues that his theory of aggression can be summed up in six propositions: 1) there exists an
international society of independent states; 2) this international society has a law that establishes the rights of its members, especially the rights of territorial integrity and political sovereignty; 3) any use of force or imminent threat of force by one state against the political sovereignty or territorial integrity of another constitutes aggression and is a criminal act; 4) aggression justifies two kinds of violent response, a war of self-defence by the victim and a war of law enforcement by the victim and any other member of international society; 5) nothing but aggression can justify war; and 6) once the aggressor state has been militarily repulsed, it can also be punished. Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 61-62.
343 Ibid., 58. 344 Ibid., 61.
Walzer argues that state aggression is a direct threat to international society that is beyond the capabilities of domestic law enforcement. This means that it is up to the members of international society to uphold the right of self-defence by policing state aggression. Walzer believes that failure by international society to protect states’ rights to self-defence will ultimately lead to either the collapse of international order into widespread war or an equally undesirable universal tyranny.345 This led him to advocate a presumption in favour of military resistance against aggression in order to both
preserve the rights of states and deter future aggressors. If we can agree that this type of resistance is a form of law enforcement then, Walzer argues, we should accept his second presumption that there must be some states against which the law can and should be enforced.346 According to David Luban, the conventional view is that a war is just if it is for the purposes of self-defence against aggression. This is reflected in the Kellogg-Briand Pact, Article 2(4) of the UN Charter, the relevant clause in the
Nuremberg Charter and Article 51 of the UN Charter.347
A noteworthy aspect of the ongoing historical dialogue about ethics and war in the just war tradition has been the thread of humanitarian thinking that continues to reassert itself. Bellamy suggests that the “Martens clause” formally expresses the principle of humanity that exists within the Tradition.348 First proposed by the Russian delegate F.F. de Martens at the 1899 Hague peace conference, the Martens clause stipulates that:
Until a more complete code of the laws of war is issued, the High Contracting parties [to the 1899 Hague Convention] declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection of the principles of international law, as they result from the usages established between civilized nations, from
the laws of humanity, and the requirements of public conscience.349
345 Ibid., 59. 346 Ibid.
347 David Luban, "Just War and Human Rights," Philosophy & Public Affairs 9, no. 2 (1980): 163. 348 Bellamy, 94.
Humanitarianism is concerned with reducing (or even eliminating) the unnecessary, disproportionate and/or indiscriminate harm caused by war.350 Michael Gross says that
the Geneva Conventions understand the laws of armed conflict as “a compromise based on a balance between military necessity (that is, those measures essential to attain the goals of war) and the requirements of humanity.”351 Gross suggests that humanitarian