"War" from Stanford U's Encyclopedia of Philosophy - Second Part

[johnkarls]

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One response is to reject this comparative account of how responsibility determines liability, and argue for a non-comparative approach, according to which one’s degree of responsibility must be great enough to warrant such a severe derogation from one’s fundamental rights. But if we do this, we must surely concede that many combatants on the unjust side are not sufficiently responsible for unjustified threats to be liable to be killed. Whether through fear, disgust, principle or ineptitude, many combatants are wholly ineffective in war, and contribute little or nothing to threats posed by their side. The much-cited research of S. L. A. Marshall claimed that only 15–25 per cent of Allied soldiers in the Second World War who could have fired their weapons did so (Marshall 1978). Most soldiers have a natural aversion to killing, which even intensive psychological training may not overcome (Grossman 1995). Many contribute no more to unjustified threats than do noncombatants. They also lack the “mens rea” that might make liability appropriate in the absence of a significant causal contribution. They are not often blameworthy. The loss of their right to life is not a fitting response to their conduct.

If Walzer is right that in war, outside of supreme emergencies, we may intentionally kill only people who are liable to be killed, and if a significant proportion of unjust combatants and noncombatants are responsible to the same degree as one another for unjustified threats, and if liability is determined by responsibility, then we must decide between two unpalatable alternatives. If we set a high threshold of responsibility for liability, to ensure that noncombatants are not liable to be killed, then we will also exempt many combatants from liability. In ordinary wars, which do not involve supreme emergencies, intentionally killing such non-liable combatants would be impermissible. This moves us towards a kind of pacifism—though warfare can in principle be justified, it is so hard to fight without intentionally killing the non-liable that in practice we must be pacifists (May 2015). But if we set the threshold of responsibility low, ensuring that all unjust combatants are liable, then many noncombatants will be liable too, thus rendering them permissible targets and seriously undermining Discrimination. We are torn between pacifism on the one hand, and realism on the other. This is the “responsibility dilemma” for just war theory (Lazar 2010).

4.2 Killing Combatants

Just war theory has meaning only if we can explain why killing some combatants in war is allowed, but we are not thereby licensed to kill everyone in the enemy state. Here the competing forces of realism and pacifism are at their most compelling. It is unsurprising, therefore, that so much recent work has focused on this topic. We cannot do justice to all the arguments here, but will instead consider three kinds of response: all-out revisionist; moderate traditionalist; and all-out traditionalist.

The first camp faces two challenges: to justify intentionally killing apparently non-liable unjust combatants; but to do this without reopening the door to Combatant Equality, or indeed further undermining Discrimination. Their main move is to argue that, despite appearances, all and only unjust combatants are in fact liable to be killed.

McMahan argues that liability to be killed need not, in fact, presuppose responsibility for an unjustified threat. Instead, unjust combatants’ responsibility for just combatants’ reasonable beliefs that they are liable may be enough to ground forfeiture of their rights (McMahan 2011a). Some argue that combatants’ responsibility for being in the wrong place at the wrong time is enough (likening them to voluntary human shields).[22] More radically still, some philosophers abandon the insistence on individual responsibility, arguing that unjust combatants are collectively responsible for contributing to unjustified threats, even if they are individually ineffective (or even counterproductive) (Kamm 2004; Bazargan 2013).

Lazar (forthcoming-a) suggests these arguments are unpersuasive. Complicity might be relevant to the costs one is required to bear in war, but most liberals will baulk at the idea of losing one’s right to life in virtue of things that other people did. And if combatants can be complicitously liable for what their comrades-in-arms did, then why shouldn’t noncombatants be complicitously liable also?

Blameworthy responsibility for other people’s false beliefs does seem relevant to the ethics of self- and other-defence. That said, consider an idiot who pretends to be a suicide bomber as a prank, and is shot by a police officer (Ferzan 2005; McMahan 2005c). Is killing him objectively permissible? It seems doubtful. The officer’s justified belief that the prankster posed a threat clearly diminishes the wrongfulness of killing him (Lazar 2015a). And certainly the prankster’s fault excuses the officer of any guilt. But killing the prankster still seems objectively wrong. Even if someone’s blameworthy responsibility for false beliefs could make killing him objectively permissible, most philosophers agree that many unjust combatants are not to blame for the injustice of their wars (McMahan 1994; Lazar 2010). And it is much less plausible that blameless responsibility for beliefs can make one a permissible target. Even if it did, this would count in favour of moderate Combatant Equality, since most just combatants are also blamelessly responsible for unjust combatants’ reasonable beliefs that they are liable to be killed.

Moderate traditionalists think we can avoid the realist and pacifist horns of the responsibility dilemma only by conceding a moderate form of Combatant Equality. The argument proceeds in three stages. First, endorse a non-comparative, high threshold of responsibility for liability, such that most noncombatants in most conflicts are not responsible enough to be liable to be killed. This helps explain why killing civilians in war is so hard to justify. Of course, it also entails that many combatants will be innocent too. The second step, then, is to defend the principle of Moral Distinction, according to which killing civilians is worse than killing soldiers. This is obviously true if the soldiers are liable and the civilians are not. But the challenge is to show that killing non-liable civilians is worse than killing non-liable soldiers. If we can do that, then the permissibility of intentionally killing non-liable soldiers does not entail that intentionally killing non-liable noncombatants is permissible. Of course, one might still argue that, even if Moral Distinction is true, we should endorse pacifism. But, and this is the third stage, the less seriously wrongful some act is, the lesser the good that must be realised by performing that act, for it to be all things considered permissible. If intentionally killing innocent combatants is not the worst kind of killing one can do, then the good that must be realised for it to be all things considered permissible is less than is the case for, for example, intentionally killing innocent civilians, which philosophers tend to think can be permissible only in a supreme emergency. This could mean that intentionally killing innocent soldiers is permissible even in the ordinary circumstances of war.

Warfare can be justified, then, by a combination of liability and lesser evil grounds. Some unjust combatants lose their rights not to be killed. Others’ rights can be overridden without that implying that unjust noncombatants’ rights may be overridden too. We can reject the pacifist horn of the responsibility dilemma. But a moderate Combatant Equality is likely to be true: since killing innocent combatants is not the worst kind of killing, it is correspondingly easier for unjust combatants to justify using lethal force (at least against just combatants). This increases the range of cases in which they can satisfy Discrimination, Proportionality, and Necessity, and so fight permissibly.

Much hangs, then, on the arguments for Moral Distinction. Some focus on why killing innocent noncombatants is especially wrongful; others on why killing innocent combatants is not so bad. This section considers the second kind of argument, returning to the first in the next section.

The revisionists’ arguments mentioned above might not ground liability, but do perhaps justify some reason to prefer harming combatants. Combatants can better avoid harm than noncombatants. Combatants surely do have somewhat greater responsibilities to bear costs to avert the wrongful actions of their comrades-in-arms than do noncombatants. And the readiness of most combatants to fight—regardless of whether their cause is just—likely means that even just combatants have somewhat muddied status relative to noncombatants. They conform to their opponents’ rights only by accident. They have weaker grounds for complaint when they are wrongfully killed than do noncombatants, who more robustly respect the rights of others (on robustness and respect, see Pettit 2015).

Additionally, when combatants kill other combatants, they typically believe that they are doing so permissibly. Most often they believe that their cause is just, and that this is a legitimate means to bring it about. But, insofar as they are lawful combatants, they will also believe that international law constrains their actions, so that by fighting in accordance with it they are acting permissibly. Lazar (2015c) argues that killing people when you know that doing so is objectively wrong is more seriously objectionable than doing so when you reasonably believe that you are acting permissibly.

The consent-based argument for Combatant Equality fails because of its empirical, not its normative premise. If combatants in fact waived their rights not to be killed by their adversaries, even when fighting a just war, then that would clearly affect their adversaries’ reasons for action, reducing the wrongfulness of killing anyone who had waived that right. The problem is that they have not waived their rights not to be killed. However, they often do offer a more limited implicit waiver of their rights. The purpose of having armed forces, and the intention of many who serve in them, is to protect civilians from the predations of war. This means both countering threats to and drawing fire away from them. Combatants interpose themselves between the enemy and their civilian compatriots, and fight on their compatriots’ behalf. If they abide by the laws of war, they clearly distinguish themselves from the civilian population, wearing a uniform and carrying their weapons openly. They implicitly say to their adversaries: “you ought to put down your weapons. But if you are going to fight, then fight us”. This constitutes a limited waiver of their rights against harm. Like a full waiver, it alters the reasons confronting their adversaries—under these circumstances, other things equal it is worse to kill the noncombatants. Of course, in most cases unjust combatants ought simply to stop fighting. But this conditional waiver of their opponents’ rights means that, if they are not going to put down arms, they do better to target combatants than noncombatants.

Of course, one might think that in virtue of their altruistic self-sacrifice, just combatants are actually the least deserving of the harms of war (Tadros 2014). But, first, warfare is not a means for ensuring that people get their just deserts. More importantly, given that their altruism is specifically intended to draw fire away from their compatriot noncombatants, it would be perverse to treat this as a reason to do precisely what they are trying to prevent.

These arguments and others suggest that killing innocent combatants is not the worst kind of killing one can do. It might therefore be all things considered permissible in the ordinary circumstances of war, provided enough good is achieved thereby. If unjust combatants attack only just combatants, and if they achieve some valuable objective by doing so—defence of their comrades, their co-citizens, or their territory—they therefore might fight permissibly, even though they violate the just combatants’ rights (Kamm 2004; Hurka 2005; Kamm 2005; Steinhoff 2008; Lazar 2013). At least, it is more plausible that they can fight permissibly than if we regarded every just combatant’s death as equivalent to the worst kind of murder. This does not vindicate Combatant Equality—it simply shows that, more often than one might think, unjust combatants can fight permissibly. Add to that the fact that all wars are morally heterogeneous, involving just and unjust phases (Bazargan 2013), and we quickly see that even if Combatant Equality in the laws of war lacks fundamental moral foundations, it is a sensible approximation of the truth.

Some philosophers, however, seek a more robust defence of Combatant Equality. The three most prominent lines are institutionalist. A contractualist argument (Benbaji 2008, 2011) starts by observing that states (and their populations) need disciplined armies for the purposes of national defence. If soldiers always had to decide for themselves whether a particular war was just, many states could not raise armies when they need to. They would be unable to deter aggression. All states, and all people, benefit from an arrangement whereby individual combatants waive their rights not to be killed by one another—allowing them to obey their state’s commands without second-guessing every deployment. Combatants tacitly consent to waive their rights in this way, given common knowledge that fighting in accordance with the laws of war involves such a waiver. Moreover, their assent is “morally effective” because it is consistent with a fair and optimal contract among states.

International law does appear to change the moral standing of combatants. If you join the armed forces of a state, you know that, at international law, you thereby become a legitimate target in armed conflict. This has to be relevant to the wrongfulness of harming you, even if you are fighting for a just cause. But Benbaji’s argument is more ambitious than this. He thinks that soldiers waive their rights not to be killed by one another—not the limited, conditional waiver described above, but an outright waiver, that absolves their adversaries of any wrongdoing (though it does not so absolve their military and political leaders).

The first problem with this proposal is that it rests on contentious empirical speculation about whether soldiers in fact consent in this way. But setting that aside, second, it is radically statist, implying that international law simply doesn’t apply to asymmetric conflicts between states and non-state actors, since the latter are not part of the appropriate conventions. This gives international law shallow foundations, which fail to support the visceral outrage that breaches of international law typically evoke. It also suggests that states that either don’t ratify major articles of international law, or that withdraw from agreements, can escape its strictures. This seems mistaken. Third, we typically regard waivers of fundamental rights as reversible when new information comes to light. Why shouldn’t just combatants be allowed to withdraw their rights-waiver when they are fighting a just war? Many regard the right to life as inalienable; even if we deny this, we must surely doubt whether you can alienate it once and for all, under conditions of inadequate information. Additionally, suppose that you want to join the armed forces only to fight a specific just war (McMahan 2011b). Why should you waive your rights against harm in this case, given that you plan only to fight now? Fourth, and most seriously, even if Benbaji’s argument explained why killing combatants in war is permissible regardless of the cause you are serving, it cannot explain why unintentionally killing noncombatants as a side-effect of one’s actions is permissible. By joining the armed forces of their state, soldiers at least do something that implies their consent to the regime of international law that structures that role. But noncombatants do not consent to this regime. Soldiers fighting for unjust causes will inevitably kill many innocent civilians. If those deaths cannot be rendered proportionate, then Combatant Equality does not hold.

The second institutionalist argument starts from the belief that we have a duty to obey the law of our legitimate state. This gives unjust combatants, ordered to fight an unjust war, some reason to obey those orders. We can ground this in different ways. Estlund (2007) argues that the duty to obey orders derives from the epistemic authority of the state—it is more likely than an individual soldier to know whether this war is just (see Renzo 2013 for criticism); Cheyney Ryan (2011) emphasizes the democratic source of the state’s authority, as well as the crucial importance of maintaining civilian control of the military. These are genuine moral reasons that should weigh in soldiers’ deliberations. But are they really weighty enough to ground Combatant Equality? It seems doubtful. They cannot systematically override unjust combatants’ obligations not to kill innocent people. This point stands regardless of whether these reasons weigh in the balance, or are exclusionary reasons that block others from being considered (Raz 1985). The rights of innocent people not to be killed are the weightiest, most fundamental rights around. For some other reason to outweigh them, or exclude them from deliberation, it would have to be extremely powerful. Combatants’ obligations to obey orders simply are not weighty enough—as everyone recognises with respect to obedience to unlawful in bello commands (McMahan 2009: 66ff).

Like the first argument, the third institutionalist argument grounds Combatant Equality in its long-term results. But instead of focusing on states’ ability to defend themselves, it emphasizes the importance of limiting the horrors of war, given that we know that people deceive themselves about the justice of their cause (Shue 2008, 2010; Dill and Shue 2012; Shue 2013; Waldron 2016). Since combatants and their leaders almost always believe themselves to be in the right, any injunction to unjust combatants to lay down their arms would simply be ignored, while any additional permissions to harm noncombatants would be abused by both sides. In almost all wars, it is sufficient to achieve military victory that you target only combatants. If doing this will minimize wrongful deaths in the long run, we should enjoin that all sides, regardless of their aims, respect Discrimination. Additionally, while it is extremely difficult to secure international agreement even about what in fact constitutes a just cause for war (witness the controversy over the Rome statute on crimes of aggression, which took many years of negotiation before diplomats agreed an uneasy compromise), the traditionalist principles of jus in bello already have broad international support. They are hard-won concessions that we should abandon only if we are sure that the new regime will be an improvement (Roberts 2008).

Although this argument is plausible, it doesn’t address the same question as the act-focused arguments that preceded it. One thing we can ask is: given a particular situation, what ought we to do? How ought soldiers to act in Afghanistan, or Mali, or Syria, or Somalia? And when we ask this question, we shouldn’t start by assuming that we or they will obviously fail to comply with any exacting moral standards that we might propose (Lazar 2012a; Lazar and Valentini forthcoming). When considering our own actions, and those of people over whom we have influence, we should select from all the available options, not rule some out because we know ourselves to be too immoral to take them. When designing institutions and laws, on the other hand, of course we should think about how people are likely to respond to them. We need to answer both kinds of questions: what really ought I to do? And what should the laws be, given my and others’ predictable frailty?

A moderate Combatant Equality, then, is the likely consequence of avoiding the pacifist horn of the responsibility dilemma. To show that killing in war is permissible, we need to show that intentionally killing innocent combatants is not as seriously wrongful as intentionally killing innocent noncombatants. And if killing innocent combatants is not the worst kind of killing, it can more plausibly be justified by the goods achieved in ordinary wars, outside of supreme emergencies. On this view, contrary to the views of both Walzer and his critics, much of the intended killing in justified wars is permissible not because the targets are liable to be killed, but because infringing their rights is a permissible lesser evil. But this principle applies regardless of whether you are on the just or the unjust side. This in turn increases the range of cases in which combatants fighting on the unjust side will be able to fight permissibly: instead of needing to achieve some good comparable to averting a supreme emergency in order to justify infringing the rights of just combatants, they need only achieve more prosaic kinds of goods, since these are not the worst kinds of rights infringements. So unjust combatants’ associative duties to protect one another and their compatriots, their duties to obey their legitimate governments, and other such considerations, can sometimes make intentionally killing just combatants a permissible lesser evil, and unintentionally killing noncombatants proportionate. This means that the existing laws of war are a closer approximation of combatants’ true moral obligations than many revisionists think. Nonetheless, much of the killing done by unjust combatants in war is still objectively wrong.

4.3 Sparing Civilians

The middle path in just war theory depends on showing that killing civilians is worse than killing soldiers. This section discusses arguments to explain why killing civilians is distinctly objectionable. We discuss the significance of intentional killing when considering proportionality, below.

These arguments are discussed at great length in Lazar (2015c), and are presented only briefly here. They rest on a key point: Moral Distinction says that killing civilians is worse than killing soldiers. It does not say that killing civilians is worse than killing soldiers, other things equal. Lazar holds that stronger principle but does not think that the intrinsic differences between killing civilians and killing soldiers—the properties that are necessarily instantiated in those two kinds of killings—are weighty enough to provide Moral Distinction with the kind of normative force needed to protect noncombatants in war. That protection depends on mobilising multiple foundations for Moral Distinction, which include many properties that are contingently but consistently instantiated in acts that kill civilians and kill soldiers, which make killing civilians worse. We cannot ground Moral Distinction in any one of these properties alone, since each is susceptible to counterexamples. But when they are all taken together, they justify a relatively sharp line between harming noncombatants and harming combatants. There are, of course, hard cases, but these must be decided by appealing to the salient underlying properties rather than to the mere fact of membership in one group or the other.

First, at least deliberately killing civilians in war usually fails even the most relaxed interpretation of the necessity constraint. This is not always true—killing is necessary if it is effective at achieving your objective, and no other effective options are available. Killing civilians sometimes meets this description. It is often effective: the blockade of Germany helped end the first world war, though it may have caused as many as half a million civilian deaths; Russian targeting of civilians in Chechnya reduced Russian combatant casualties (Lyall 2009); Taliban anti-civilian tactics have been effective in Afghanistan. And these attacks are often the last recourse of groups at war (Valentino 2004); when all other options have failed or become too costly, targeting civilians is relatively easy to do. Indeed, as recent terrorist attacks have shown (Mumbai and Paris, for example), fewer than ten motivated gunmen with basic weaponry can bring the world’s most vibrant cities screeching to a halt. So, killing civilians can satisfy the necessity constraint. Nonetheless, attacks on civilians are often wholly wanton, and there is a special contempt expressed in killing innocent people either wantonly or for its own sake. At least if you have some strategic goal in sight, you might believe that something is at stake that outweighs the innocent lives taken. Those who kill civilians pointlessly express their total disregard for their victims in doing so.

Second, even when killing civilians is effective, it is usually so opportunistically (Quinn 1989; Frowe 2008; Quong 2009; Tadros 2011). That is, the civilians’ suffering is used as a means to compel their compatriots and their leaders to end their war. Sieges and aerial bombardments of civilian population centres seek to break the will of the population and of their government. Combatants, by contrast, are almost always killed eliminatively—their deaths are not used to derive a benefit that could not be had without using them in this way; instead they are killed to solve a problem that they themselves pose. This too seems relevant to the relative wrongfulness of these kinds of attacks. Of course, at the strategic level every death is intended as a message to the enemy leadership, that the costs of continuing to fight outweigh the benefits. But at the tactical level, where the actual killing takes place, soldiers typically kill soldiers eliminatively, while they kill civilians opportunistically. If this difference is morally important, as many think, and if acts that kill civilians are opportunistic much more often than are acts that kill soldiers, then acts that kill civilians are, in general, worse than acts that kill soldiers. This lends further support to Moral Distinction.

Third, as already noted above, the agent’s beliefs can affect the objective seriousness of her act of killing. Killing someone when you have solid grounds to think that doing so is objectively permissible wrongs that person less seriously than when your epistemic basis for harming them is weaker. More precisely, killing an innocent person is more seriously wrongful the more reason the killer had to believe that she was not liable to be killed (Lazar 2015a).

Last, in ordinary thinking about the morality of war, the two properties most commonly cited to explain the distinctive wrongfulness of harming civilians, after their innocence, are their vulnerability and their defencelessness. Lazar (2015c) suspects that the duties to protect the vulnerable and not to harm the defenceless are almost as basic as the duty not to harm the innocent. (Note that these duties apply only when their object is morally innocent.) Obviously, on any plausible analysis, civilians are more vulnerable and defenceless than soldiers, so if killing innocent people who are more vulnerable and defenceless is worse than killing those who are less so, then killing civilians is worse than killing soldiers.

Undoubtedly soldiers are also often vulnerable too—one thinks of the “Highway of Death”, in Iraq 1991, when American forces destroyed multiple armoured divisions of the Iraqi army, which were completely unprotected (many of the personnel in those divisions escaped into the desert). But this example just shows that killing soldiers, when they are vulnerable and defenceless, is harder to justify than when they are not. Provided the empirical claim that soldiers are less vulnerable and defenceless than civilians is true, this simply supports the case for Moral Distinction.

4.4 Proportionality

Holding the principle of Moral Distinction allows one to escape the realist and pacifist horns of the responsibility dilemma, while still giving responsibility its due. Even revisionists who deny moderate Combatant Equality could endorse Moral Distinction, and thereby retain the very plausible insight that it is worse to kill just noncombatants than to kill just combatants. And, if they are to account for most people’s considered judgements about war, even pacifists need some account of why killing civilians is worse than killing soldiers.

However, Moral Distinction is not Discrimination. It is a comparative claim, and it says nothing about intentions. Discrimination, by contrast, prohibits intentionally attacking noncombatants, except in supreme emergencies. It is the counterpart of Proportionality, which places a much weaker bar on unintentionally killing noncombatants. Only a terrible crisis could make it permissible to intentionally attack noncombatants. But the ordinary goods achieved in individual battles can justify unintentional killing. What justifies this radical distinction?

This is one of the oldest questions in normative ethics (though for the recent debate, see Quinn 1989; Rickless 1997; McIntyre 2001; Delaney 2006; Thomson 2008; Tadros 2015). On most accounts, those who intend harm to their victims show them a more objectionable kind of disrespect than those who unavoidably harm them as a side-effect. Perhaps the best case for the significance of intentions is, first, in a general argument that mental states are relevant to objective permissibility (Christopher 1998; see also Tadros 2011). And second, we need a rich and unified theoretical account of the specific mental states that matter in this way, into which intentions fit. It may be that the special prohibition of intentional attacks on civilians overstates the moral truth. Intentions do matter. Other things equal, intentional killings are worse than unintended killings (though some unintended killings that are wholly negligent or indifferent to the victim are nearly as bad as intentional killings). But the difference between them is not categorical. It cannot sustain the contrast between a near-absolute prohibition on one hand, and a sweeping permission on the other.

Of course, this is precisely the kind of nuance that would be disastrous if implemented in international law or if internalized as a norm by combatants. Weighing lives in war is informationally incredibly demanding. Soldiers need a principle they can apply. Discrimination is that principle. It is not merely a rule of thumb, since it entails something that is morally grounded—killing civilians is worse than killing soldiers. But it is also a rule of thumb, because it draws a starker contrast between intended and unintended killing than is intrinsically morally justified.

As already noted, proportionality and necessity contain within them almost every other question in the ethics of war; we now consider two further points.

First, proportionality in international law is markedly different from the version of the principle that first-order moral theory supports. At law, an act of war is proportionate insofar as the harm to civilians is not excessive in relation to the concrete and direct military advantage realized thereby. As noted above, in first-order moral terms, this is unintelligible. But there might be a better institutional argument for this neutral conception of proportionality. Proportionality calculations involve many substantive value judgements—for example, about the significance of moral status, intentions, risk, vulnerability, defencelessness, and so on. These are all highly controversial topics. Reasonable disagreement abounds. Many liberals think that coercive laws should be justified in terms that others can reasonably accept, rather than depending on controversial elements of one’s overarching moral theory (Rawls 1996: 217). The law of armed conflict is coercive; violation constitutes a war crime, for which one can be punished. Of course, a more complex law would not be justiciable, but we also have principled grounds for not basing international law on controversial contemporary disputes in just war theory. Perhaps the current standard can be endorsed from within a wider range of overarching moral theories than could anything closer to the truth.

Second, setting aside the law and focusing again on morality, many think that responsibility is crucial to thinking about proportionality, in the following way. Suppose the Free Syrian Army (FSA) launches an assault on Raqqa, stronghold of ISIL. They predict that they will cause a number of civilian casualties in their assault, but that this is only because ISIL has chosen to operate from within a civilian area, forcing people to be “involuntary human shields”. Some think that ISIL’s responsibility for putting those civilians at risk allows the FSA to give those civilians’ lives less weight in their deliberations than would be appropriate if ISIL had not used them as human shields (Walzer 2009; Keinon 2014).

But one could also consider the following: Even if ISIL is primarily at fault for using civilians as cover, why should this mean that those civilians enjoy weaker protections against being harmed? We typically think that one should only lose or forfeit one’s rights through one’s own actions. But on this argument, civilians enjoy weaker protections against being killed through no fault or choice of their own. Some might think that more permissive standards apply for involuntary human shields because of the additional value of deterring people from taking advantage of morality in this kind of way (Smilansky 2010; Keinon 2014). But that argument seems oddly circular: we punish people for taking advantage of our moral restraint by not showing moral restraint. What’s more, this changes the act from one that foreseeably kills civilians as an unavoidable side-effect of countering the military threat to one that kills those civilians as a means to deter future abuses. This instrumentalizes them in a way that makes harming them still harder to justify.

4.5 Necessity

The foregoing considerations are all also relevant to necessity. They allow us to weigh the harms at stake, so that we can determine whether the morally weighted harm inflicted can be reduced at a reasonable cost to the agents. The basic structure of necessity is the same in bello as it is ad bellum, though obviously the same differences in substance arise as for proportionality. Some reasons apply only to in bello necessity judgements, not to ad bellum ones, because they are conditional on the background assumption that the war as a whole will continue. This means that we cannot reach judgements of the necessity of the war as a whole by simply aggregating our judgements about the individual actions that together constitute the war.

For example, in bello one of the central questions when applying the necessity principle is: how much risk to our own troops are we required to bear in order to minimize harms to the innocent? Some option can be necessary simply in virtue of the fact that it saves some of our combatants’ lives. Ad bellum, evaluating the war as a whole, we must of course consider the risk to our own combatants. But we do so in a different way—we ask whether the goods achieved by the war as a whole will justify putting our combatants at risk. We don’t then count among the goods achieved by the war the fact that multiple actions within the war will save the lives of individual combatants. We cannot count averting threats that will arise only if we decide to go to war among the goods that justify the decision to go to war.

This relates directly to the largely ignored requirement in international law that combatants must take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects. (Geneva Convention, Article 57, 2(a)(ii))

This has deep moral foundations: combatants in war are morally required to reduce the risk to innocents until doing so further would involve an unreasonably high cost to them, which they cannot be required to bear. Working out when that point is reached involves thinking through: soldiers’ role-obligations to assume risks; the difference between doing harm to civilians and allowing it to happen to oneself or one’s comrades-in-arms; the importance of associative duties to protect one’s comrades; and all the considerations already adduced in favour of Moral Distinction. This calculus is very hard to perform. My own view is that combatants ought to give significant priority to the lives of civilians (Walzer and Margalit 2009; McMahan 2010b). This is in stark contrast to existing practice (Luban 2014).

5. The Future of Just War Theory

Much recent work has used either traditionalist or revisionist just war theory to consider new developments in the practice of warfare, especially the use of drones, and the possible development of autonomous weapons systems. Others have focused on the ethics of non-state conflicts, and asymmetric wars. Very few contemporary wars fit the nation-state model of the mid-twentieth century, and conflicts involving non-state actors raise interesting questions for legitimate authority and the principle of Discrimination in particular (Parry 2016). A third development, provoked by the terrible failure to plan ahead in Iraq and Afghanistan, is the wave of reflection on the aftermath of war. This topic, jus post bellum, is addressed separately.

As to the philosophical foundations of just war theory: the traditionalist and revisionist positions are now well staked out. But the really interesting questions that remain to be answered should be approached without thinking in terms of that split. Most notably, political philosophers may have something more to contribute to the just war theory debate. It would be interesting, too, to think with a more open mind about the institutions of international law (nobody has yet vindicated the claim that the law of armed conflict has authority, for example), and also about the role of the military within nation-states, outside of wartime (Ryan 2016).

The collective dimensions of warfare could be more fully explored. Several philosophers have considered how soldiers “act together” when they fight (Zohar 1993; Kutz 2005; Bazargan 2013). But few have reflected on whether group agency is present and morally relevant in war. And yet it is superficially very natural to discuss wars in these terms, especially in evaluating the war as a whole. When the British parliament debated in late 2015 whether to join the war against ISIL in Syria and Iraq, undoubtedly each MP was thinking also about what she ought to do. But most of them were asking themselves what the United Kingdom ought to do. This group action might be wholly reducible to the individual actions of which it is composed. But this still raises interesting questions: in particular, how should I justify my actions, as an individual who is acting on behalf of the group? Must I appeal only to reasons that apply to me? Or can I act on reasons that apply to the group’s other members or to the group as a whole? And can I assess the permissibility of my actions without assessing the group action of which they are part? Despite the prominence of collectivist thinking in war, discussion of war’s group morality is very much in its infancy.

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• Geneva Conventions of 1949 and their Additional Protocols
• The International Committee of the Red Cross on War and Law
• Rome Statute of the International Criminal Court (1998)
• Ethical War Blog
• The Stockholm Centre for the Ethics of War and Peace
• Orend, Brian, “War,” Stanford Encyclopedia of Philosophy (Spring 2016 Edition), Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/spr ... tries/war/>. [This was the previous entry on War in the Stanford Encyclopedia of Philosophy — see the version history.]

Related Entries

authority | justice: global | justice: transitional | pacifism | political realism: in international relations | responsibility: collective | rights: human | sovereignty | world government

Acknowledgments

Many thanks to Thomas Pogge for his comments on this entry, which were a great benefit throughout. This entry draws on all my work in just war theory, and so I owe a great debt to the many philosophers who have contributed so much to my understanding of these issues, both in their published work and in conversation. Most of the people in the bibliography deserve a mention, but I reserve particular thanks for Henry Shue, Jeff McMahan, and David Rodin, for setting me on this path.

Copyright © 2016 by
Seth Lazar <seth.lazar@anu.edu.au>