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One of the perennial realities of human existence is war. From the earliest recorded events of human history all the way through to modern times, human communities have engaged in armed conflict as a method of dispute resolution. While war has been a constant part of the human experience, there has also been a tendency within virtually all human civilisations to limit the extent of war and the methods by which warfare may be conducted.(1) In Western civilisation, this limitation on warfare has taken shape as an effort to limit both the determination of when war is appropriate and the means used in battle.(2) Within the Western moral, legal, and political arena, the connected questions of when war is appropriate and what means are acceptable in warfare has been the subject of a great deal of examination. The basic theory which has arisen within Western culture to evaluate the legitimacy of military action is called just war theory.(3) The just war theory has received widespread acceptance both within Western culture and in the international community as a means by which a war may be determined to be justified or not.(4) Just war theory, which has both religious and secular proponents, is perhaps the most universally recognised moral theory by which the use of force may be evaluated.
II. A GENERAL OVERVIEW OF JUST WAR THEORY A. BACKGROUND ON JUST WAR THEORY Just war theory has a varied and diverse background.(5) The just war tradition includes the contributions of philosophers and theologians dating back to Roman times. As James Tuner Johnson has pointed out, Just war is an historical tradition formed by experience and reflection, including much that is neither specifically theological (or even religious), nor philosophical. It has been strongly influenced by international law, the traditions of chivalry, and soldierly practices derived from the experience of many battles.(6) Just war theory as a method of evaluating military actions has been recognised historically by thinkers as varied as Cicero, St. Augustine, St. Thomas Aquinas, Grotius, and Daniel Webster. It is a theory which has been used by Christians and non-Christians alike to determine whether or not the decision to go to war and the means used to prosecute that war are just. It is crucial to keep this varied and complex pedigree of t...
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51. See the Nuremberg Charter, art. 6(a)-(c). The charter lists the waging of aggressive war, "violations of the laws or customs of war," and the extermination and enslavement of civilians among its examples of wartime criminal conduct.
52. Rostow at 169-70.
53. United Nations Charter, articles 2(4) and 51. See also Gardam at 403-11; Motala at 3.
54. U.N. Charter art. 51.
55. Motala at 4.
58. Motala at 11.
59. Johnson at 149; Bederman at 29. The tradition of dividing just war theory into two distinct analytical categories has its roots in the work of Grotius, Aquinas, Augustine, and Cicero.
60. Johnson at 149
61. Johnson at 149
62. Johnson at 149.
65. Aquinas, Summa Theologicae, II, II, Q. 40, Art. 1.
66. Johnson at 158
67. Johnson at 158.
68. U.N. Charter art. 51.
69. Johnson at 158. Johnson compares the concept of "right authority" with the modern concept of sovereignty and argues that the just war notion of authority basically mirrors the modern notion of sovereignty. Id.
70. Bederman at 31-32; Aquinas, Summa Theologicae, II, II, Q. 40, Art.1..
71. Aquinas, Summa Theologicae, II, II, Q. 40, Art.
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