Contemporary Just War

Theory and Practice

Tamar Meisels

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351699464
• Edition: 1
• Topic: Política y relaciones internacionales
• Subtopic: Relaciones internacionales

This book offers a renewed defense of traditional just war theory and considers its application to certain contemporary cases, particularly in the Middle East.

The first part of the book addresses and responds to the central theoretical criticisms levelled at traditional just war theory. It offers a detailed defense of civilian immunity, the moral equality of soldiers and the related dichotomy between jus ad bellum and jus in bello, and argues that these principles taken together amount to a morally coherent ethics of war. In this sense this project is traditional (or "orthodox"). In another sense, however, it is highly relevant to the modern world. While the first part of the book defends the just war tradition against its revisionist critics, the second part applies it to an array of timely issues: civil war, economic warfare, excessive harm to civilians, pre-emptive military strikes, and state-sponsored assassination, which require applying just war theory in practice. This book sets out to reaffirm the basic tenets of the traditional ethics of war and to lend them further moral support, subsequently applying them to a variety of practical issues.

This book will be of great interest to students of just war theory, ethics, security studies, war and conflict studies, and IR in general.

PART I
Just war theory

1

COMRADES IN ARMS

The equal innocence of soldiers

In classic accounts of just war theory, and in keeping with the laws of armed conflict (LOAC), killing soldiers in war is not murder. Soldiers are assumed to have lost their immunity from attack by virtue of the armed threat they pose to their adversaries.¹ All may be attacked and are equally permitted to kill, regardless of the respective cause they serve. The laws of war disengage principles governing the resort to war from those governing its conduct, with the result that soldiers obtain this unusual symmetrical license to kill one another in the course of war.² So long as they abide by the laws in bello, soldiers commit no crime—neither legal nor moral—when they fight in war and kill other soldiers. Consequently, as Michael Walzer puts it: “It is certainly possible for a just war to be fought unjustly and for an unjust war to be fought in strict accordance with the rules.”³

This account of the moral equality of soldiers, along with the separation between jus ad bellum and jus in bello, has recently lost its consensus, receiving fierce criticism from moral philosophers. Opposition to moral equality is not new—it was raised by Francisco de Vitoria and Francisco Suarez in the sixteenth and seventeenth centuries and, far more recently, by Thomas Nagel⁴—but it is enjoying a lively renaissance, most notably in the prolific writings of Jeff McMahan and his followers.⁵

McMahan argues that Walzer’s second proposition—that an unjust war can be fought in total compliance with the rules—is incoherent. Killing just combatants in bello cannot comply with a morally valid principle of distinction which would render the innocent, non-aggressive party non-liable to attack. On this view, soldiers fighting in self-defense are morally permitted to kill their aggressive adversaries, while the latter lack any moral justification for killing in pursuit of their collective aggression, and can at most retain a plausible excuse for doing so.⁶

This revisionist account of combatant inequality effectively leads to two interrelated conclusions. First, revisionists focus on liability to be killed in war, arguing un-controversially that soldiers who fight for an unjust cause are morally liable to being killed in battle. In fact, all versions of just war theory recognize a moral permission to kill unjust aggressors. The more controversial part of revisionist theory, distinguishing it from the traditional view, is that just soldiers remain non-liable to attack. Since soldiers on the just side are, by definition, non-aggressors, their adversaries cannot justify killing them in the name of self-defense. As a direct derivative thereof, unjust soldiers are morally blameworthy for participating in an unjust war, and in fact often guilty of murder for killing their non-liable innocent adversaries, whether or not they ought to be liable to punishment in the aftermath of war.

Prominent opponents of the traditional account nonetheless continue to affirm the practical logic in sustaining soldiers’ legal symmetry.⁷

Perhaps most obviously, the fact that most combatants believe that their cause is just, means that the laws of war must be neutral between just combatants and unjust combatants, as the traditional theory insists that the requirements of jus in bello are.⁸

For numerous practical reasons, such as epistemic difficulties in discerning justness of cause, a lack of a mutual arbitrator, the subjective belief of states and their soldiers in the justness of their cause, as well as the need for applicable and workable legislation that will mitigate the horrors of war, it is desirable that the law continue to insist on the equal application of in bello restrictions, regardless of just cause.⁹

McMahan also accepts many of the traditional arguments for freeing soldiers from legal repercussions for participating in an unjust war, but he regards such reasons as supplying excuses rather than justifications.¹⁰ It might be unfair to hold individual young soldiers legally responsible for participating in their nations’ unjust wars as their misperception of justice will have been manipulatively shaped by the great organs of state—education, public pressure, mass media, and the like.¹¹

Not all revisionist moral philosophers address this complicated relationship between law and morality. Others suggest various intricate prescriptions for how their moral theories ought to inform future laws of war.¹² For the most part, revisionists do not recommend their moral theories translate directly into legal prescriptions that would necessarily discern the rights and duties of just from unjust combatants. Moreover, while unjust aggressors are liable to self-defensive harming during conflict, not all revisionists recommend that unjust soldiers should be held legally accountable or punished post bellum.

All revisionist just war theorists agree, however, that soldiers who kill in vain, in pursuit of an unjust cause, cannot possibly enjoy moral parity with their innocent adversaries who have been forced to kill defensively. On deep moral reflection—when we evaluate justness in war rather than contemplate its optimal regulation—we must acknowledge a stark incongruence between soldiers’ legal equality and their moral disparity. As a matter of moral principle, if not always in practice, it does not stand to reason for just and unjust combatants to be bound by the same moral prohibitions and to enjoy the same moral permissions, it is argued. Far less sense to regard them theoretically as moral equals.¹³

This chapter attempts to reaffirm soldiers’ traditional equality and lend it further moral support. The first section refutes the analogy between wartime aggression and domestic crime. John Locke argued that the crucial moral feature of war is the lack of a joint arbitrator to determine and administer justice among conflicting parties. This sets war entirely apart from our normal everyday moral judgments, suggesting a disanalogy between combatants on the allegedly unjust side and peacetime criminals pursued by the police.

The second section of this chapter suggests that, for many of the very reasons McMahan himself supplies, individual soldiers cannot be proved guilty of injustice regardless of the cause they serve, and are therefore presumed innocent, morally as well as legally. While these soldiers may not in fact be equal at some theoretically deep moral level, the moral presumption of innocents, I argue, renders them not only legally non-culpable, as many revisionist would agree, but also equal from any practical moral perspective.

Beyond that, McMahan argues that wholesale combatant liability, alongside blanket civilian immunity, contradicts the basic precepts of individualist morality applied in peacetime because the traditional distinction between combatants and civilians is based on class affiliation rather than personal responsibility. Understood as a doctrine of collective immunity and collective liability, the traditional principle of distinction is both false and repugnant, he argues.¹⁴ As against this, I suggest that respect for individual human rights actually entails recognizing soldiers’ symmetrical standing in battle, fashioning them with equal permissions and liabilities, rather than penalizing or disabling them for their nations’ collective causes.

Finally, one point of terminological clarification that is also a point of substance: the principle applying equal rights and duties to warriors is often referred to as “combatant equality.” Strictly speaking, it is actually “soldiers’ equality” that is under discussion. Traditionally, only identifiable uniformed soldiers subject to a military chain of command, who carry their arms openly and abide by the laws of war, were accorded equal rights and protections by internationally accepted conventions of war and, subsequently, by the laws of armed conflict. After WWII, the Third Geneva Convention extended these privileges to militia members who fulfill the same conditions of overt warfare and law abidance.¹⁵ Additional Protocol 1 controversially waives the uniform requirement in exceptional circumstances in which “an armed combatant cannot so distinguish himself,” but it requires nonetheless that such combatants clearly separate themselves from non-combatants by carrying their arms openly at all times.¹⁶ Protocol 1 also requires membership in an armed force that enforces international law as a condition for attaining combatant status and lawful participation in armed hostilities.¹⁷

Many irregular combatants and all covert combatants—whether just or unjust—do not enjoy equal privileges, most notably prisoner of war (POW) rights when captured, though they are equally liable to wartime attack. This chapter defends the traditional principles, according to equal rights and obligations to uniformed soldiers as well as to those members of resistance movements who assume the risks of overt combat and abide by the laws of war. Following the authors addressed throughout, the paper refers to “combatant equality” as the accepted shorthand within the professional jargon for the principle of equality under consideration. Nowhere in my writing is this intended to include members of terrorist organizations who habitually abstain from the above requirements.

Cops and robbers

Early in Just and Unjust Wars Walzer cites and rejects a legal version of the opposition to combatant equality, as it was put by the chief British prosecutor to the court at Nuremberg:

The killing of combatants is justifiable … only where the war itself is legal. But where the war is illegal … there is nothing...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Preface
• Introduction
• Part I Just war theory
• Part II Just war theory in practice
• Bibliography
• Index