A stronger commitment to the rule of law would encourage legal scrutiny before offensive military action is launched, whenever circumstances reasonably allow. Just as major decisions affecting individuals and organizations are subject to legal oversight, decisions that could cost thousands—or even millions—of lives should also receive timely legal examination.
Early Judicial Review.
Where time and circumstances permit, courts or other competent judicial bodies should be empowered to examine the legality of a proposed offensive military operation before it begins. An independent legal determination would provide an objective foundation for governments, military commanders, and service members.
Even when a nation believes it faces a serious security threat, military legal advisers—who already participate in intelligence and operational planning—should rapidly assess both the legal basis for military action and the domestic and international laws that could be affected by it. Their professional advice may justify delaying or reconsidering military action until its legality has been properly clarified.
Access to Justice During Armed Conflict.
National laws and international agreements could establish procedures allowing the legality of a proposed war—or a war already underway—to be challenged before appropriate judicial bodies. Depending on jurisdiction, these may include national courts, regional courts, continental courts, or international judicial institutions. Where legally permissible, similar proceedings could even take place simultaneously before different courts.
If a court determines that there is insufficient legal justification for military action, particularly where the opposing state has not launched or is not continuing an armed attack, every reasonable opportunity should first be given to diplomacy, dialogue, mediation, arbitration, and other peaceful means of resolving the dispute.
For these legal safeguards to be effective, such cases should be handled through simple, fast, affordable, and accessible procedures, especially where urgent decisions involving human life are required.
Legal Certainty for Military Personnel
Independent judicial review would also benefit military personnel by providing greater certainty about the legality of military operations. Clear legal guidance would help commanders and soldiers understand their responsibilities under both domestic and international law, reducing uncertainty when faced with difficult decisions.
At present, the United Nations provides no direct physical, legal, or institutional protection for individual soldiers—or even for an entire national military—that refuses orders from its constitutional commander-in-chief solely because it believes a military strike lacks sufficient legal justification. Such matters are generally treated as internal constitutional, military, or disciplinary issues.
However, international law—including principles developed after the Nuremberg Trials—recognizes that military personnel may have a duty to refuse manifestly unlawful orders, such as orders to commit genocide, war crimes, crimes against humanity, or other serious violations of international law. The application of these principles to decisions about whether a war itself is lawful, however, often remains legally complex and disputed.
Earlier judicial review could therefore provide governments, military leaders, and service members with much-needed legal certainty before military operations begin.
Court decisions could also strengthen the legal position of soldiers who act in good faith by relying on authoritative judicial rulings, reducing the possibility that they are left solely subject to domestic punishment without meaningful legal protection.
Possible Reforms.
1. Early Judicial Review of Proposed Wars.
Before launching offensive military action—except where immediate self-defense requires urgent action—states could seek an independent judicial determination on whether the proposed use of force complies with domestic and international law.
National, regional, or international courts could establish expedited procedures for urgent cases. Where states agree, these decisions could be advisory or legally binding.
If a court concludes that a proposed military operation is unlawful, military personnel would have a much clearer legal basis for questioning or refusing participation, consistent with applicable law.
2. A United Nations Legal Assessment Panel.
The United Nations could establish an independent panel of respected international legal experts to conduct rapid assessments of whether proposed military operations appear consistent with the UN Charter and international law.
Although such opinions might not always be legally binding, they could provide highly authoritative legal guidance to governments, courts, military commanders, and the international community.
3. Protection for Good-Faith Refusal.
Member States could negotiate an international treaty providing appropriate legal protection for military personnel who refuse to participate in military operations that have been determined by a competent judicial or international body to constitute unlawful aggression or other serious violations of international law.
4. Emergency United Nations Security Council.
Review
Before major offensive military operations begin, any concerned state could request an emergency meeting of the United Nations Security Council.
Although Security Council decisions may be influenced by the veto power of permanent members, an official legal and political debate would still provide valuable international guidance regarding the legitimacy of the proposed military action.
5. Post-Conflict Legal Remedies.
Where a competent international tribunal later determines that a war was unlawful, military personnel who refused participation in good faith could be eligible for legal protection, review of domestic convictions, and other appropriate remedies consistent with applicable law.
6. Clearer International Standards
The United Nations, together with its Member States, could develop clearer international guidelines explaining when military personnel have not only the right—but, in appropriate circumstances, the legal duty—to question or refuse orders requiring participation in internationally unlawful conduct.
Conclusion.
The purpose of these proposals is not to prevent nations from defending themselves against genuine armed attack. Every state has the right to protect its people when faced with real aggression.
Rather, these reforms seek to strengthen the rule of law by ensuring that decisions to wage offensive war receive timely legal scrutiny whenever practicable. Earlier legal review could help prevent unlawful conflicts, promote peaceful settlement of disputes, provide greater legal certainty for governments and armed forces, and reinforce the principles of justice embodied in the Charter of the United Nations and international law.
War should never become easier to begin than justice is to obtain. Whenever possible, the law should speak before the weapons do.
Elijah Mutua Kirima.
Social Worker.
THE WORD OF GOD IS THE WILL OF GOD