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considerations,
3
just war theory also knew the goals of advancing civilisation and to
wage war in order to spread Christianity.
4
It goes without saying that, as the sovereign ruler who decided upon initiating
war had no superior authority above him and since for some it was at least possible to
imagine a war that was – subjectively and even objectively – just on both sides, the idea
of just war was inherently prone to abuse.
5
Starting with Grotius, who arguably showed
little interest in identifying which side to a war was ‘right’ and ‘wrong’, international
law thus gradually shifted away from this dichotomy,
6
and by the 19
th
century the use
force as
ultima ratio
in order to resolve disputes was perfectly legal, and the question
of righteousness had thus become irrelevant.
7
During the First World War, often
described as the inevitable consequence of this approach, the idea of returning to
the basic assumptions of just war theory gained increasing importance. To many,
the collective security system of the Covenant of the League of Nations embodied
an institutionalization of this idea.
8
And even although the Treaty of Versailles
and the League of Nations system ultimately failed to prevent the Second World
War, the founding fathers once again turned to the idea of institutionalizing and
prohibiting the resort to violence
9
and decided to avoid any legal loophole
10
when
trying to formulate Article 2(4) in the most clear, general and all-encompassing
3
Robert John Auraujo, ‘Our Debt to De Vitoria: A Catholic Foundation of Human Rights’ (2012) 10/2
Ave Maria Law Review
313; Charles H. McKenna, ‘Francisco de Vitoria: Father of International Law’
(1932) 21/84
Irish Quarterly Review
635.
4
See
e.g
, Thomas Alfred Walker,
A History of the Law of Nations
(CUP, 1899), pp. 95-104.
5
See Joachim von Elbe, ‘The Evolution of the Concept of the Just War in International Law’ (1939) 33/4
The American Journal of International Law
665, 674-83.
6
For this decline, see Stephen C. Neff,
War and the Law of Nations. A General History
(CUP, 2005), 95-
102 or C. G. Roelofsen, ‘Grotius and the Development of International Relations Theory: “The Long
Seventeenth Century” and the Elaboration of a European States System (1997) 17
Quinnipiac Law
Review
35, 50-51.
7
See, among the many prominent writers of the late 19
th
and early 20
th
century,
e.g.
Henry Wheaton,
Elements of InternationalLaw
(Little, Brown, and Company, 1866), 368; John Westlake,
International
Law. Part II: War
(CUP, 1913), 1; Franz von Liszt,
Das Völkerrecht. Systematisch dargestellt
(Julius
Springer, 1915), 301; Lassa Oppenheim,
International Law. A Treatise. Volume II, War and Neutrality
(Longmans, Green, and Co, 1906), 55-56.
8
Neff (
supra
n6),290-293and314-317.
Cf.
,however,WilhelmG.Grewe,
Epochen derVölkerrechtsgeschichte
(Nomos, 1984), 788, who describes the two conflicting views on the extent to which the system of
collective security indeed marks a return to Grotius and the idea of just war.
9
As a reminder, the Preamble to the Charter emphasizes the founding fathers’ ambition ‘to save succeeding
generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind.’
10
For instance, under the hitherto arguably most crucial and significant step on the prohibition of war,
the 1928 Kellogg-Briand Pact, its parties declared‚ that they condemn recourse to war for the solution
of international controversies‘ and include, and renounce it, as an instrument of national policy in their
relations with one another’ and thus arguably left open the possibility to legally resort to force short of
war; see Derek Bowett,
Self-Defence in International Law
(Manchester University Press, 1958), 136.