KAZAN UNIVERSITY LAW REVIEW, 2019, том 4, № 4


KAZAN UNIVERSITY LAW REVIEW ■ Volume 4, Winter 2019, Number 4






            ARTICLES



                                 Zsolt Spindler
                                 Disarmament diplomat of the Permanent Mission of Hungary to the UN in Geneva, Switzerland



JUST WAR THEORIES FROM JUS AD BELLUM
TO JUS POST BELLUM - LEGAL HISTORICAL AND LEGAL PHILOSOPHYCAL PERSPECTIVES


https://doi.org/10.30729/2541-8823-2019-4-4-237-272

    Abstract: The aim of the article is to elucidate the issue of a universally accepted normative definition of the terms ‘jus post bellum’ and ‘armed conflict’ from the legal historical and legal philosophical perspectives. The main concept of just war theories is based on the human desire to control interracial aggression. It is known that the “morally justifiable war” based on a series of criteria is split first into two, and later into three groups: right to go to war (jus ad bellum), right conduct in war (jus in bello), and right after the war (jus post bellum). Jus post bellum approach appeared just after the Second World War. In the author’s opinion, jus post bellum is the most important part. The author’s task is to find a generally acceptable working definition, or at least a generally acceptable meaning of jus post bellum in the mirror of just war theories, and an armed conflict from the perspective of war and aggression, as well as to describe the historical evolution of the two classic parts of just war theories: just ad bellum and jus in bello.
    Keywords: just war theories, jus post bellum, just ad bellum, jus in bello, armed conflict, definition, war.

        Just War Theories (Jus bellum justum)

    The law of armed conflicts is based on the pillars of jus ad bellum/jus contra bellum, jus in bello and jus post bellum.¹ The evolution of the law of armed conflict based on the

1

   Dieter Fleck, Jus Post Bellum as a Partly Independent Legal Framework. In Stahn-Easterday-Iveson: Jus Post Bellum. 2014, Oxford, Oxford University Press p. 43.

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just war theories and later on the general and objective prohibition of aggression. Neither jus post bellum, nor armed conflict as a term of art have a universally accepted normative definition, but several scholars, international organizations and bodies tried to find the significance of them. The first task of my research is to find a generally acceptable working definition, or at least a generally acceptable meaning of jus post bellum in the mirror of just war theories, and armed conflict from the perspective of war and aggression. If we understand the meaning of armed conflict, we can define the end of armed conflict as a starting point of the applicability of transitional justice and jus post bellum.
    In the medieval ages or before we cannot find any evidence that a distinction was made between jus ad bellum and jus in bello, and jus post bellum approach appeared just after the Second World War. According to the early Christian writers, the conduct of war was an integral part of jus ad bellum and just war had a punitive character.¹ Ian Clark points out that “since war was a limited activity, and since what was justified was only that which was strictly necessary to its purpose, there was no felt need to proceed to elaborate a separate set of principles for its conduct. ”2 The work of Scholastics and the Salamanca School became a mark of a transitional interval from the punitive approach to just war to the non-punitive one.* * ³ The first marks of the distinction between jus ad bellum and jus in bello emerged in the works of Hugo Grotius with the separation of bellum justum and bellum lege.⁴ Starting after the Peace of Westphalia treaties had an emerging importance in international relations and just war thinking as well, and in the nineteenth century positive law based on customary law and treaties took the place of natural law approach,⁵ and at the same time the jurists took the place of theologians and philosophers in just war thinking.⁶ The revival period of history reaffirmed the distinction between jus ad bellum and jus in bello.⁷ The restrictions of use of force were set in treaties and by customs, and efforts were made to proscribe war (League of Nations 1920; Kellog Briand Pact 1928).⁸

   Serena K. Sharma, Reconsidering the Jus Ad Bellum/Jus in Bello Distinction. In Carsten Stahn-Jann K. Kleffner (eds.), Jus Post Bellum - Towards a Law of Transition from Conflict to Peace. The Hague, 2008, TMC Asser Press, p. 10. See also: W. L. La Croix, War and International Ethics: Tradition and Today. London, 1988, University Press of America, p. 69.

2

    Ian Clark, Waging War: A Philosophyical Introduction. Oxford, 1990, Clarendon Press, p. 38.

³ Serena K. Sharma, Reconsidering the Jus Ad Bellum/Jus in Bello Distinction. In Carsten Stahn-Jann K. Kleffner (eds.): Jus Post Bellum - Towards a Law of Transition from Conflict to Peace. The Hague, 2008, TMC Asser Press, p. 13.

⁴ Hugo Grotius, The Law of War and Peace. In Hugo Grotius: A haboru es beke jogarol. Budapest, 1999, Pallas Studio/Attraktor Kft.

5

   Serena K. Sharma, Reconsidering the Jus Ad Bellum/Jus in Bello Distinction. In Carsten Stahn-Jann K. Kleffner (eds.), Jus Post Bellum - Towards a Law of Transition from Conflict to Peace. The Hague, 2008, TMC Asser Press, p. 15.

6

     Ibid., p. 15.

7

     Ibid., p. 11.

8

     Ibid., p. 17.

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After the Second World War, Article 2(4) of the United Nations Charter restricted the use of force and the threat of force as well with the sole exceptions of self-defence and enforcement actions authorized by the UN Security Council.¹ This made the relation of jus ad bellum and jus in bello questionable. Some scholars even question the existence of jus ad bellum, and instead of it they use the phrase jus contra bellum when they refer to the just war thinking after 1945.¹ ²
    According to Sulyok, the law of armed conflict - international humanitarian law or with the pre-U.N. denomination: the law of war - is a widely used term for those consuetudinary and contractual rules, that aim
    1)     to resolve humanitarian problems emerged directly because of the existence of armed conflicts - both international and non-international ones - with the help of the limitation of the Parties’ right to choose the military equipment and measures and
    2)     to protect the victims and their possessions.³
    From a different approach, humanitarian law is just a part of the law of armed conflict, and it is a synonym for the law of the Geneva Conventions. In this context, the adjective ‘humanitarian’ means an ambition to reduce brutality and sufferings caused by an armed conflict.⁴
    Nevertheless, the main concept of just war theories is based on the human desire to control intraracial aggression. The “morally justifiable war” based on a series of criteria and first split into two, later three groups: right to go to war (jus ad bellum), right conduct in war (jus in bello), and right after the war (jus post bellum). Jus post bellum deals with the moral problems of post-war settlement and reconstruction. From my reserach perspective, jus post bellum is the most important part, but to have a complete picture, we have to describe the historical evolution of the two classic parts of just war theories: just ad bellum and jus in bello. The history of international law contains a significant red line border which divides the interval before and after the Second World War. The interval before the end of the Second World War can be described as the jus


¹ Charter of the United Nations, Ch. 2(4), www.un.org/aboutun/charter/.

² Robert Kolb, Jus contra bellum. Le droit international relatif au maintien de la paix. Helbing/Lichtenhahn-Bruylant, Bale-Bruxelles, 2003. Bruhacs Janos, Jus contra bellum -Glosszak az eroszak nemzetkozi jogi tilalmahoz, http://acta.bibLu-szeged.hu/3478WjuridpoL077_069-084.pdf. Serena K. Sharma, The Legacy of Jus Contra Bellum: Echoes of Pacifism in Contemporary Just War Thought. Journal of Military Ethics, Volume 8, 2009, Issue 3: James Turner Johnson and the Recovery of the Just War Tradition, pp. 217230. P. Ramsey, The Just War: Force and Political Responsibility. New York, 1968, Charles Scribner’s Sons, chs. 12, 17.

³ Sulyok, Gabor, A humanitariusintervencio elmeleteesgyakorlata. Budapest, 2004, Gondolat, p. 17. See also: Gasser, H-P., International Humanitarian Law: An Introduction. Separate print from Hans Haug, Humanity for All, The International Red Cross and Red Crescent Movement. Haupt, 1993, Henry Dunant Institute, p. 3, 16. Herczegh, Geza, A humanitarius nemzetkozijog fejlodese es mai problemai. Budapest, 1981, Kozgazdasagi es Jogi Konyvkiado, p. 79-81. Partsch, K. J., Humanitarian Law and Armed Conflict. In Bernhardt, Rudolf (ed.): Encyclopedia ofPublic International Law. Vol. 3. Use of Force, War and Neutrality, Peace Treaties (A-M). New York-London, 1982, North-Holland Publishing Co. - Collier Macmillan Publishers, p. 215-216.

⁴ Sulyok, Gabor, A humanitarius intervencio elmelete es gyakorlata. Budapest, 2004, Gondolat, p. 18.

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ad bellum epoch, while with the Geneva Conventions a new epoch emerged where aggression was generally not accepted and the jus contra bellum interval started.

        1.      The historical experience of just war theories from jus ad bellum to jus contra bellum

    According to the minimalist interpretation, international law is based on the contracts among states, while many thinkers view international law as a conglomerate of customary practices and ethical principles of natural law as well.¹ There are several common contact points between international law and just war theory - like just cause, self-defense, last resort, resist aggression, proportionality, etc. - but there are differences as well: for example, international law does not explicitly reinforce the right intention as a just war rule.¹ ² International law and just war theories are basically new elements of the history of law. According to the generally accepted scientific thesis of Lassa Oppenheim, international law - and just war theory as well - is the product of the Christian civilization³, and it is not older than five hundred years. However, there are scholars like Rory Cox, who expands the time interval of the existence of just war theories as far as the Ancient Egypt.⁴ Ian Brownline presses the idea that since the beginning of the written history of humankind it was rare for advanced societies to leave war completely unregulated.⁵ On the other hand, we have to admit that before the Christian writers, or more precisely, before Hugo Grotius, most of the remarks on legal termination of war were more or less incidental and based on ethical, religious and moral discussions. However, it is useful to mark some critical historical points in different times and cultures which show that the desire to control of intrararcial aggression occurred almost everywhere, where human beings started to live on society level.
    1.1.  Pre-Christian just war theories
    In the Sumerian Epic of Gilgamesh, slaying prisoners - as Enkidu persuaded Gilgamesh to do so - was an act against the gods’ favor.⁶ This statement, or more precisely this opining tells nothing about jus ad bellum, but gives us a picture of the generally accepted moral attitude in and after war (jus in bello and jus post bellum) in Mesopotamia.

¹ Hans Kelsen, Principles of International Law. New York, 1966, Holt, Rinehart & Winston. J.L.Brierly, The Law of Nations. New York, 1963, Waldock. H. Lauterpacht, International Law. Cambridge, 1978, Cambridge University Press.

² Brian Orend, Jus Post Bellum: A Just War Theory Perspective. In Carsten Stahn-Jann K. Kleffner (eds.): Jus Post Bellum - Towards a Law of Transition from Conflict to Peace. The Hague, 2008, TMC Asser Press, p. 32.

³ Oppenheim, Lassa, International Law: A Treatise. Vol. I. Peace- London-new York-Bombay, Longmans, Green&Co., 1905, p. 45.

⁴ Cox, Rory, Expanding the History of the Just War: The Ethics of War in Ancient Egypt. International Studies Quarterly. 2017, no. 61 (2), p. 371.

⁵ Ian Brownline, International Law and the Use of Force by States. Oxford, 1963, Oxford University Press, p. 3.

⁶ Cox, Rory, Historical Just War Theory up to Thomas Aquinas, https://www.academia.edu/12482439/
   Historical_Just_War_Theory_up_to_Thomas_Aquinas.

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    Manoj Kumar Sinha, a visiting Professor at the Raoul Wallenberg Institute of Human Rights and Humanitarian Law, argues that the laws of armed conflicts were founded in ancient India on the principle of humanity.¹ The epic narrative of the Kuruksetra war in the Indian Hindu Mahabharata indirectly refers to the criteria of proportionality and just cause. The Dharma Sastras prescribe the rules of society and they distinguish between righteous war (Dharma Yudda) and unrighteous war (Adharma Yudda).¹ ² The Mahabharata war is considered as a war fought according to the rules of Dharma (righteousness). The two sides agreed that it was forbidden to attack combatants in distress, i.e. none of the warriors may kill or injure a warrior who has surrendered, an unarmed warrior, a person or animal not taking part in the war; a warrior whose back is turned away, and fighting must begin no earlier than sunrise and should end by exact sunset. The rules protect the lives of women, prisoners of war, and farmers and specify the rules for each weapon. According to the text, chariots cannot attack cavalry, only other chariots. The fact that attacking cities and farmers were forbidden has two major consequences: first from the perspective of jus in bello, as it was a restriction during the conduct of war, but from an indirect perspective it has an effect on the life of the population after the war. Since cities and farmers were not ruined and killed, reconstruction became an easier task, and the “civil” population suffered less after the war, no matter which side won. The basic logistic tasks of society were not ruined. In my opinion this adumbrates the need of the existence of after-war rebuilding and reconstruction laws, in another world, jus post bellum.
    There is another peculiar spot of proportionality, when Rama and the enemies of Rama ask help from Krishna. The idea of proportionality occurs when Krishna says that they have to choose between himself and his army: Rama chose Krishna so the army of Krishna fought for the other side.³
    In China, in the Ch’unch’iu Period (722-481 B.C.) war was a legal institution and the Parties were strictly defined. War could exist between equal states, but not between a feudal state and its dependencies, nor between Chinses family of states and barbarians.⁴
    The Babylonian Talmud made a distinction between voluntary wars, where the aim was the extending of the territory, and obligatory wars, which were conducted against an enemy attacking Israel or against the seven nations inhabiting Canaan.⁵

¹ Manoj Kumar Sinha, Hinduism and international humanitarian law. International Review of the Red Cross. Volume 87 Number 858 June 2005, p. 285, https://www.icrc.org/eng/assets/files/other/irrc_858_ sinha.pdf

² Manoj Kumar Sinha, Hinduism and international humanitarian law. International Review of the Red Cross. Vol. 87, no. 858, June 2005, p. 287.

³ More on the topic: Manoj Kumar Sinha, Hinduism and international humanitarian law. International Review of the Red Cross. Volume 87 Number 858 June 2005. pp. 285-294, https://www.icrc.org/eng/ assets/files/other/irrc_858_sinha.pdf.

⁴ Ian Brownline, International Law and the Use of Force by States. Oxford, 1963, Oxford University Press, p. 3.

⁵ Ibid.

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    In ancient Egypt, the creation of a jus ad bellum doctrine based on universal and absolutist claims to justice interfered in the development of jus in bello.¹
    In ancient Greece, from informal socially obliged standards the rules of war were formed for the wars among different Hellenic tribes (formal declaration of war, intervals of truce for sacred holidays, special rules for prisoners, etc.). ¹ ² Plato examined war from an ethical point of view, and established the categories of proper war (against barbarians, unlimited and natural) and faction (unnatural and limited). In Plato’s work, Socrates made a distinction between wars fought amongst Greeks, and wars fought between Greeks and barbarians (non-Hellenes).³
    Philosophical background - Aristotle and the Nicomachean Ethics: Aristotle followed Plato in distinguishing between intra-Hellenic and „international” armed conflicts and declared that “we wage war in order to have peace”.⁴ This maxim, deriving from Plato (Laws, 628e, 803d), was passed down to medieval theorists via Cicero (De Officiis, bk. 1, §35), Augustine (Letter 189 to Boniface), and Gratian (Decretum, Causa 23, q. 1 c. 3). ⁵ ⁶ However, there is an outstandingly important element of the philosophy of Aristotle, which later occurs in Grotius and it can be described as one of the basic elements of the future ius post bellum thinking. Aristotle made an equivalence of the results of pleionexia and meionexia.6 Pleionexia- taking too much - as a vice, not different from meionexia - taking too little. Justice requires to take as much, as one’s due,⁷ but there are other interpretations which argues that meionexia is a requirement to accept, or demand less than what they are due if this is necessary for achieving justice in a wider sense.⁸
    In the Roman Empire, formal legality of war and formal concept of just war were established; the category of iustum bellum dealt with the formalities and pium was in accordance with religious sanctions and implied commands of gods (bellum iustum et

¹ Cox, Rory, Expanding the History of the Just War: The Ethics of War in Ancient Egypt. International Studies Quarterly. 2017. 61 (2) : 371. Cox, Rory, Historical Just War Theory up to Thomas Aquinas, https:// www.academia.edu/12482439/Historical_Just_War_Theory_up_to_Thomas_Aquinas.

² Adriaan Lanni, The Laws of War in Ancient Greece. Law and History Review. Vol. 26, no. 3 (Law, War, and History: A Special Issue), Fall 2008, pp. 469-489.

³ Plato, The Republic of Plato, trans. A. Bloom (New York: Basic Books, 1968), bk. 5, 470c, p. 150.

⁴ Arisztotelesz, Nikomakhoszi etika. Budapest, Europa Konyvkiado, 1987, trans: Szabo Miklos, 1177b, p. 293.

⁵ Cox, Rory, Historical Just War Theory up to Thomas Aquinas, p. 5, https://www.academia.edu/12482439/ Historical_Just_War_Theory_up_to_Thomas_Aquinas. See also J. Barnes, ‘The Just War’, in The Cambridge History of Later Medieval Philosophy: From the Rediscovery of Aristotle to the Disintegration of Scholasticism 1100-1600, ed. N. Kretzmann, A. Kenny, J. Pinborg (Cambridge: Cambridge University Press, 1982), p. 771-84, at 780.

⁶ Arisztotelesz, Nikomakhoszi etika. Budapest, Europa Konyvkiado, 1987, trans: Szabo Miklos, 1129 pp. 121-124.

⁷ Dieter Fleck, Jus Post Bellum as a Partly Independent Legal Framework. In.: Stahn-Easterday-Iveson: Just Post Bellum. Oxford, 2014, Oxford University Press, pp. 43-57.

⁸ Larry May, Jus Post Bellum, Grotius and Meionexia. In: Stahn-Easterday-Iveson: Just Post Bellum. Oxford, 2014, Oxford University Press, p. 21.

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pium). The moral content of the rules of war became the base of early Christian writers’ just war theories.¹ Cicero (106-43 BC) in the first book of his work De Officiis wrote a well summarized explanation of the just war theories of the pre-Christian classic world (sections 33-41.). Referring to principle of Plato and Aristotle he wrote: “The only excuse, therefore, for going to war is that we may live in peace unharmed; and when the victory is won, we should spare those who have not been blood-thirsty and barbarous in their warfare.”¹ ²
     1.2.      Just war theories at the early Christian period: Saint Ambrose, Augustine, Byzantium and the just war idea in the Islam religion
     Until 170 AD the early Christian attitude was simply restrictive towards war and for Christians it was forbidden to be soldiers.³ Saint Ambrose in De Officiis accepted the idea that there are some situations in which war might be justified.⁴ Augustine of Hippo continues the tradition of “waging war to gain peace” idea when he writes the aphorismatic sentence: “For every man seeks peace by waging war, but no man seeks war by making peace.”⁵ He held to the opinion that the involvement in a just war is not forbidden for Christians. “Do not think that it is impossible for anyone to please God while engaged in active military service” - he wrote in a letter to Boniface.⁶ But when war was not started in accordance with an order of God (bellum Deo auctore), than it can be a just one in that case, if it is necessary and imperative. Waging war has to be in obedience to the divine command, or in conform with God’s laws in any other way. In Augustine, the main characteristic of just war is the punishment of an unjust act.⁷ In his work, The City of God, he emphasized that wise man wage exceptionally just war, and if it is not just, he would not wage one at all.⁸ Augustine tried to justify the Christian participation in warfare.⁹ In Byzantium, a special concept of holy war emerged, which

¹ Ian Brownline, International Law and the Use of Force by States. Oxford, 1963, Oxford University Press, p. 4.

² Cicero, De Officiis, Book 1, section 35, http://www.perseus.tufts.edu/hopper/text?doc=Perseus%3At ext%3A2007.01.0048%3Abook%3D1%3Asection%3D35#note-link1.

³ John Cecil Cadoux, The Early Christian Attitude to War. London, 1919, Headley Bros. Publisher Ltd., pp. 96-97 seq., http://oll.libertyfund.org/titles/cadoux-the-early-christian-attitude-to-war.

⁴ Ian Brownline, International Law and the Use of Force by States. Oxford, 1963, Oxford University Press, p. 5.

⁵ Augustine, The City of God. Book XIX, Chapter 12 - That even the fierceness of war and all the disquietude of men make towards this one end of peace, which every nature desires, p. 511, http://www.unilibrary. com/ebooks/Saint%20Augustine%20-%20City%20of%20God.pdf.

⁶ Augustine, Epistula ad Bonifatium CLXXXIX. (Letter to Boniface CLXXXIX), 4, http://www.ccel.org/ccel/ schaff/npnf101.vii.1.CLXXXIX.html?letter,boniface,war

⁷ Sulyok, Gabor, A humanitarius intervencio elmelete es gyakorlata. Budapest, 2004, Gondolat, p. 26.

⁸ Augustine, The City of God. Book XIX, Chapter 7, p. 508, http://www.unilibrary.com/ebooks/Saint%20 Augustine%20-%20City%20of%20God.pdf

⁹ Serena K. Sharma, Reconsidering the Jus Ad Bellum/Jus in Bello Distinction. In: Carsten Stahn-Jann K. Kleffner (eds.): Jus Post Bellum - Towards a Law of Transition from Conflict to Peace. The Hague, 2008, TMC Asser Press, p. 15.

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may have been derived from the Islamic concept of jihad, a war against the unfaithful. The Islamic concept was based on the religious doctrine as a guidance on lawful reasons for resort to war - jihad - (defence, punishment for apostasy, action against non-Moslems).¹ While according to Brownline, at the territory of Russia in the XI-XII century amoral states occurred, where peace was not regarded as the normal state.¹ ²
    1.3.     Just war at the Scholastics, some XIV-XVIth century scholars and the School of Salamanca
    Gratian arrived at basically the same principles as the pervious Christian scholars, while Saint Thomas Aquinas summarized the conditions under which a war could be justified. It is important to note that his explanations were based on more theological and philosophical principles than pure legal ones. According to Thomas Aquinas, just war is waged by a properly instituted authority. It must be based on a just purpose and not merely on self-gain. The third principle of Thomas Aquinas is the rightful intention -the advancement of good, or the avoidance of evil. Thomas Aquinas wrote detailed answers on the questions of jus in bello (whether a bishop can take part in the war, the acceptability of ambushes, or fight on holy days ), but the jus post bellum approach is not recordable in his works.
    In the fourteenth and fifteenth centuries, the approaches towards just war were based on either theological statements or practical aspects of law (postglossators). Bartolus (1314-57) made an equivalence between war and reprisals. He and Giovanni da Legnano saw the legality of the use of force very similarly. In 1360 Giovanni da Legnano in his Tractatus de bello, de represaliis et de duello described war as part of creation, since it can clear out the diseases of the world. The war is lawful if it is declared by the highest authority or if it occurred between equal parties and legalized by a just cause.³ The conclusion of their work is that the Pope has the right to wage war against infidels. In accordance with the war between Teutonic Knights and the Kingdom of Poland⁴, Stanislaw of Skarbimierz (1360-1431) formalized the just war theory in his work De bellis justis (c. 1410). Martino da Lodi in De Bello (cc. 1455) also made a distinction between just war and unjust war, but he emphasized the importance of the pervious warning and the imperative manner of use of force to enforce rights.⁵ Tomaso da Vio (1469-1534) described war as a judicial procedure, where the main motive was the punishment of the guilty party.⁶

¹ More on this topic: Ian Brownline, International Law and the Use of Force by States. Oxford, 1963, Oxford University Press, p. 6.

² Ibid.

³ Ibid., p. 7.

⁴ Polish-Lithuanaian-Teutonic War 1409-1411.

⁵ Ian Brownline, International Law and the Use of Force by States. Oxford, 1963, Oxford University Press, p. 7.

⁶ Ian Brownline, International Law and the Use of Force by States. Oxford, 1963, Oxford University Press, p. 8. Tomaso da Vio: Summa Theologicae, 1517. Tomaso da Vio: Summula, 1524.

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    Philosophical background - Thomas More and Utopia: In Utopia, Thomas More (1478-1535) describes the ideal attitude of the ideal people towards war as inglorious and despised, although war as a necessity is accepted. The inhabitants of Utopia wage war in the following three circumstances: if they have to protect their borders, if they have to chase off the enemy from their friends’ state, or if they have to free a deprived nation from slavery. Since this is the ideal state, we can suppose that according to More, these are the just causes of waging war. More argues that not only the defensive war is acceptable, but taking revenge on an unjust act can be a just cause as well. He sums the attitude towards war in a slightly different way, then we saw it in Plato and Augustine. In his opinion, the one and only aim of war is gaining the result, which would have been gained previously, if the war had not been waged. It is kind of a restriction - it limits the results of war. More initiates the idea of extraterritorial preemptive strike, when he accepts waging war out of the territory of Utopia, if another state threatens the peace, territorial integrity and sovereignty of Utopia. More described some parts of jus ad bellum, first of all the just causes, and refers to jus in bello as well, when he endorses the idea of war with the necessary minimum level of human suffering. In the book there is a detectable farseeing post-war attitude, but it is hardly describable as a jus post bellum initiative: “...they never lay their enemies’ country waste nor burn their corn, and even in their marches they take all possible care that neither horse nor foot may tread it down, for they do not know but that they may have use for it themselves.” It is more like an economic focus since not post-war justice is the key element, rather than rationality from the perspective of the occupational forces (use for themselves).
    Pierino Belli (1502-75) established five requirements of just war: a just person, a just matter, a just intent, a just cause and an adequate authority.¹
    The representatives of the School of Salamanca described war as the worst evil and they accepted a war as a just one only if it was waged because of self-defense, to prevent an attacking tyrant or punish the guilty enemy. The wider social acceptance of waging war was a new element: governing authorities may declare a war, but if the people oppose it, it is illegitimate. The key element of just war was using force as a last resort. From ius post bellum perspective, they still focused on the punishment element rather than the rebuilding part. Francisco de Vitoria (1480-1546) argued that the committed wrong should be punished on the base of proportionality, and he also advanced an opinion that the injured state can obtain satisfaction. Vitoria made attempts to apply the theory of natural law across cultural, religious and geographic boundaries in connection with the Spanish conquest of the Americas,¹ ² and also made the first efforts to approach just war theory from a non-punitive perspective.³ Balthasar Ayala (1548-84) in De Iure et Officiis

¹ Ian Brownline, International Law and the Use of Force by States. Oxford, 1963, Oxford University Press, p. 8.

² W. L. La Croix, War and International Ethics: Tradition and Today. London, 1988, University Press of America, p. 78.

³ Francisco de Vitoria, On the Law of War. Question 1(3): What are the Permissible Reasons and Causes of Just War? In A. Pagden and J. Lawrence (eds.): Vitoria: Political Writings (Cambridge, 1991, Cambridge University Press, p. 303.

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Bellicis et Disciplina Militari Libri wrote about just war from an orthodox point of view. He is of the opinion that there can be a just war on both sides.¹
    1.4. The European state system and the Protestant school
    Philosophical background - Niccolo Macchiavelli and The Prince: The European state system and the colonizing interests brought a new, more pragmatic philosophy. Niccolo Macchiavelli (1492-1550) did not elaborate specific categories of just war, but declared that “that war is just which is necessary”, and every entity which has its own sovereignty may wage a war.¹ ² Macchiavelli points out the disadvantages of imposing extraordinary taxes related to war or the problem when a prince must “rob his subjects”,³ and he emphasizes that war is desirable only as an ultima ratio.⁴
    Alberico Gentili (1550-1608) was the first scholar who developed a secular and originally legal system of norms for state relations.⁵ He also states that a war must be fought between sovereigns, and a just cause is necessary as well, but he also declares that a war can be just on both sides objectively, and not just because one of the parties made a mistake in the judgement. Gentili denies the justice of war for religious motives.⁶
    The rebuilding part of jus post bellum appears in Hugo Grotius (1583-1645) in an indirect way: all the soldiers that have participated in common acts are responsible for the total damage, and he adds that there are certain duties which must be performed toward those from whom you have received injury. Grotius referred to the previously mentioned meionexia principle as well. The pragmatic limitation (or more precisely the pragmatic self-limitation) as a key element of jus post bellum goes back to the logic system of Aristotle. Grotius - as a writer of the first comprehensive and systematic book about the law of nations⁷ - used a rationalist and secular basis which originated in natural law. In Grotius’s opinion, third parties could support the side which they considered had a just cause. His conclusion, which was strengthened by the Bible, as well as several Roman sources and Christian scholars, was that war was a judicial and punitive procedure, and

¹ Balthasar Ayala, De Iure et Officiis Bellicis et Disciplina Militari Libri III. J. Westlake (Ed.), Vol. 2, Washington, 1912, The Classics of International Law, Book I, ch ii, p. 34-35. In Ian Brownline, International Law and the Use of Force by States. Oxford, 1963, Oxford University Press, p. 10.

² Niccolo Machiavelli: Il Principe. chs. 3 and 26. https://www.victoria.ac.nz/lals/about/staff/publications/ paul-nation/Prince-Adapted2.pdf.

³ Niccolo Machiavelli: Il Principe. ch. 14. p. 25.

⁴ Ibid., ch. 26. p. 42. „war is just which is necessary, and arms are blessed when there is no other hope but in them”.

⁵ Ian Brownline, International Law and the Use of Force by States. Oxford, 1963, Oxford University Press, p. 11. More on this topic: Van der Molen, Alberico Gentili and the Development of International Law. Amsterdam, 1937.

⁶ Alberico Gentili, De Iure Belli Libri Tres, The Classics of International Law, Oxford, 1933, Book I. chs. IX, X, XI. Ian Brownline, International Law and the Use of Force by States. Oxford, 1963, Oxford University Press, p. 12.

⁷ Hugo Grotius, De Iure Belli ac Pacis Libri Tres. First published in 1625. In Hungarian: Hugo Grotius: A haboru es bekejogarol. Budapest, 1999, Pallas Studio - Attraktor Kft.