The Ashgate Research Companion to Military Ethics

James Turner Johnson, Eric D. Patterson

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317042600
• Edition: 1
• Topic: Technology & Engineering
• Subtopic: Military Science & Technology
• Index: Technology & Engineering

This Companion provides scholars and graduates, serving and retired military professionals, members of the diplomatic and policy communities concerned with security affairs and legal professionals who deal with military law and with international law on armed conflicts, with a comprehensive and authoritative state-of-the-art review of current research in the area of military ethics. Topics in this volume reflect both perennial and pressing contemporary issues in the ethics of the use of military force and are written by established professionals and respected commentators. Subjects are organized by three major perspectives on the use of military force: the decision whether to use military force in a given context, the matter of right conduct in the use of such force, and ethical responsibilities beyond the end of an armed conflict. Treatment of issues in each of these sections takes account of both present-day moral challenges and new approaches to these and the historical tradition of just war. Military ethics, as it has developed, has been a particularly Western concern and this volume reflects that reality. However, in a globalized world, awareness of similarities and differences between Western approaches and those of other major cultures is essential. For this reason the volume concludes with chapters on ethics and war in the Islamic, Chinese, and Indian traditions, with the aim of integrating reflection on these approaches into the broad consideration of military ethics provided by this volume.

PART I
The Choice Whether to Use Military Force

Introduction to Part I

The Editors

Military ethics as a distinct field, as noted in the General Introduction to this volume, has its chief origins in the efforts of a relatively small number of professional officers serving in the various branches of the U.S. military during the late 1970s and 1980s to reflect on the ethics of the military profession. This stage in the development of military ethics is well illustrated by a book widely recognized as a classic in the field, Malham Wakin’s War, Morality, and the Military Profession (Wakin 1986) and by the establishment of an ad hoc grouping of serving officers from across the various American military branches into what they named JSCOPE: the Joint Services Committee on Professional Ethics, with annual meetings that very quickly drew serving professionals in NATO militaries, and gradually other militaries as well, into ongoing discussions of military ethics as a form of professional ethics. This growth stimulated the development of interest in professional military ethics in these other societies, and it also had the effect of enlarging the field beyond its original boundaries, engaging broader historical and contemporary reflection on ethics and war, drawing the participation of civilians from the public policy arena and academics from various disciplines, and transforming JSCOPE into ISME, the International Society of Military Ethics. But to the immediate point of this section of the present volume, this broader engagement had the effect of enlarging the scope of military ethics from its earlier focus on moral behavior in war to include moral concerns over the decision to initiate the use of military force. The ethics of the war decision now forms a part of military ethics, whereas a generation ago it did not.

The chapters which follow in the present section approach this matter on the model described above for the book as a whole: the first four chapters address the ethics of the decision to use military force from four distinct perspectives: that of just war thinking in Chapter 1, that of certain trajectories in recent moral argument in Chapter 2, that of international law in Chapter 3, and that of the serving military professional in Chapter 4. Subsequent chapters examine four special problems that have presented themselves with particular urgency in recent debate.

The first of these, in Chapter 5, is the question of preemptive use of military force in a context in which both moral argument and international law seek to limit use of such force to a state’s self-defense. Defining the right to use military force in terms of self-defense inherently raises the question of preemption: the first major historical theorist to define this right explicitly in terms of self-defense, Hugo Grotius, was also the first one to raise the possibility of the use of armed force preemptively against an attack that has not yet been launched but is clearly imminent. The test he applied was what has since come to be described as that of “the upraised sword”: “The danger must be immediate, and, as it were, at the point of happening. If my assailant seizes a weapons with an obvious intention of killing me, I admit too that I have a right to prevent the crime” (On the Law of War and Peace, Book Two, Chapter 1, section 5; Grotius 1949, 73). International law on preemptive use of force generally reaches back to the Caroline affair of 1837, when British and Canadian forces crossed the border to destroy a vessel (the Caroline) that was ostensibly bringing weapons to rebel forces in Canada. The critical issue was the definition of what counts as self-defense. But advances in military technology have raised this question in newer and newer forms, eroding older understandings of the distinction between preemptive self-defense (permitted) and preventive war (not allowed) and adding new dimensions to thinking about these two forms of the use of force. Chapter 5 approaches this issue from the perspective of recent debate, exploring in particular what preemption allows when an avowed enemy possesses weapons of mass destruction.

Chapter 6 turns to the question of the right of using military force against acts of terrorism by non-state actors, and the limits of that right. This chapter approaches its subject through the more general frame of the special problems of asymmetric warfare and the difference between such warfare and the typical framing of warfare as state-against-state conflict in both moral discussions and law. Because the phenomenon of terrorism by non-state actors is a complex and multifaceted one, meaning that an ethical response to it is also inevitably complex and multifaceted, this chapter shows how considerations of the right of military response are interconnected with the nature of that response: the choice to use military force is inevitably linked to the parameters for right conduct in the use of such force, and each bears implications for the other.

Chapter 7 addresses a matter that dates specifically to the 2001 report of the ad hoc International Commission on Intervention and State Sovereignty (ICISS), issued under the title, The Responsibility To Protect (ICISS 2001). This report specifically addressed the question of the obligation of military intervention across international borders in cases of serious and ongoing violations of fundamental human rights: “the question of when, if ever, it is appropriate for a state to take coercive—and particularly military—action, against another state for the purpose of protecting people at risk in that other state” (ICISS 2001, VII). It concluded by stipulating that there is such a right, and indeed a responsibility—the “responsibility to protect”—while laying down parameters for such intervention. The report occasioned substantial policy debate, with strong voices both supporting and rejecting the report’s conclusions, including whether such a “responsibility to protect” should be allowed in international law and if, so, whether the ICISS report’s parameters were adequate. This debate was brought to an end, at least for the present, by two paragraphs in the Outcome document of the 2005 World Summit (paragraphs 138 and 139), which shifted the focus to the obligation of each state to protect its population against major threats to fundamental human rights and the right of outside intervention for this purpose as limited to response for a request for help by the state in question or, if such a state should “manifestly fail to protect” its population, in response to an authorization by the UN Security Council. Chapter 7 analyzes the concept of the “responsibility to protect” from its origin through the subsequent debate to its current definition.

Finally, Chapter 8 addresses an issue that has loomed large in military policy and in ethical reflection since the late 1950s, when it was cast in terms of nuclear deterrence strategy in the ongoing strategic tension between the United States and the Soviet Union and their respective allies, to the present, where a major focus has been the possibility of terrorist groups acquiring and using nuclear, chemical, and/or biological weapons against the United States and other Western countries. This chapter examines the contours of the ethical debates, linking arguments advanced in the earlier context to the circumstances of the new context.

References

Grotius, H., 1949. On the law of war and peace. Roslyn, NY: Walter J. Black, Inc.

International Commission on Intervention and State Sovereignty, 2001. The responsibility to protect. Ottawa, Ontario, Canada: International Development Research Centre.

United Nations World Summit, 2005. Outcome document. [online] Available at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N [Accessed 7/21/2012].

Wakin, M., 1986. War, morality, and the military profession. Boulder, CO: Westview Press.

1
The Decision to Use Military Force in Classical Just War Thinking

Gregory M. Reichberg

Abstract

Contemporary moral reflection on armed force is heavily indebted to the pioneering work of medieval theorists: canon lawyers such as Gratian and Innocent IV, as well as theologians such as Alexander of Hales and Thomas Aquinas. This chapter traces out their thought on ethical decision-making about war. They emphasized how leaders who were entrusted with oversight of the common good (the possessors of legitimate authority) could rightly resort to armed force only to rectify an egregious wrong (just cause) and under condition that their ultimate aim was to promote the well-being of the political community (right intention). Since the common good was conceived of in moral terms—the collective life of virtue—those who led their polities to war were expected to be virtuous themselves. Thomas Aquinas, in particular, emphasized how the initiation of war should flow from a choice which, on the part of the leader, is inwardly regulated by the appropriate virtues. By the same token, the obedience which is due to these leaders on the part of the citizenry must likewise be tempered by virtue.

The Historical Context: Development of Classical Just War Thinking

Classical just war thinking can be traced to the political doctrine of Saint Augustine as it was reproduced in compendia such as Gratian’s Decretum and commented upon by the Latin canon lawyers of the twelfth and thirteenth centuries. Under the impetus of Alexander of Hales (ca. 1185–1245) and Saint Thomas Aquinas (ca. 1225–74) just war subsequently become a regular topic of investigation for Christian theologians. The most ample developments in this field occurred in the sixteenth and seventeenth centuries, when a series of Spanish scholastics—most prominently Francisco de Vitoria (ca. 1492–1546), Luis de Molina (1535–1600), and Francisco Suarez (1548–1617) discussed the ethics of armed force in light of problems posed by the newly discovered Americas and the Spanish conquest of this territory. The classical period in just war thought culminated with the De jure belli ac pacis of Hugo Grotius (1583–1645). The Dutch jurist made ample use of the earlier sources, and applied them systematically to a comprehensive range of issues, ad bellum and in bello.

Political Power and the Justified Use of Armed Force

In Latin Christendom of the Middle Ages political power was nowhere near as centralized as it is today. Many of the tasks that we associate with civil government did not yet exist or were handled by authorities outside of the civil sphere (for instance, educational institutions were established and managed by the Church). Civil government had three main functions: collection of taxes, maintenance of a judiciary, and provision of security against internal and external armed threats. As the third function indicates, managing a military force was one of the primary tasks expected of princes and kings. Integral to their very office, acquittal of this function was an obligation they assumed upon becoming rulers. Consequently when medieval thinkers discussed the obligations of political leadership they also assessed the moral dimensions of decision-making about war.

In reflecting upon the moral aspects of armed force, the medieval theorists (theologians and Church lawyers) borrowed heavily from patterns of thought they had inherited from the jurists of ancient Rome. Drawing a rather sharp distinction between force used in self-defense, on the one hand (which was allowed to any private individual or group under threat), and the employment of force by individuals or groups operating on the authority of a supreme prince on the other, these jurists had supposed that the first was to be regulated by private civil law (with rules concerning necessity, immediacy, proportionality, and the like) while the second was under the regulation of public law (which stipulated the conditions that should be met in declaring and prosecuting war). Thus when Thomas Aquinas provided a seminal treatment of these topics in the Second Part of his Summa of Theology (ca. 1270) he followed the Roman jurists in separating the analysis of licit self-defense (q. 67) from the earlier account (q. 40) of public engagement in war. It was tacitly understood that the rules governing the one were of a different nature from the rules governing the other.

No special authority was required for a resort to force in self-defense (or to protect children or other third parties from similar harm)—anyone could avail himself of such measures under conditions of urgency—but the scope of what could be done was severely limited. Such force could only be exercised in the heat of the moment—with only very narrow provision for preemptive action and to the exclusion of ex post facto punishment. The degree and type of force used was to be measured in strict proportion to the attack in progress; going beyond what was needed to repel such an attack would be considered illicit. This teaching was summed up in the Decretist gloss “Qui repellere possunt” (resist injury), where the anonymous author wrote (ca. 1200) that

if … someone returns violence, this should be done with the assumption that it is for defense, rather than for revenge … and only if the first attacker intends to strike once more … And this is what I understand when it is said that force may be resisted “on the spot” (incontinenti) … [and that] self-defense [should] be exercised in moderation (cum moderamine). (Reichberg, Syse, and Begby 2006, 110)¹

The force used on behalf of public authority by armies in war was assumed to be of a very different nature. This was reflected in the authoritative teaching of Pope Innocent IV who (ca. 1250) explicitly contrasted war (bellum) to defense (defensio). The first required proper jurisdiction (it “can only be declared by a prince who does not have a superior”²) and could justifiably extend well beyond “repelling violence by violence.”³ In other words, the scope of what could permissibly be done was much wider for such use of force than for that allowed to a private individual or group. In no wise limited to assuming a purely defensive posture, for the medieval theorists war was viewed as a legitimate means of redressing a grave wrong. The wrong in question might be situated well in the past (for instance a seizure of territory that for one reason or another had gone unopposed), and the remedy for this wrongdoing could include the imposition of punishment (e.g., destruction of enemy property, execution of the “guilty,” or deposition of defeated princes), the employment of preventive measures (e.g., tearing down enemy defenses), the reclaiming of lost property, the taking of prisoners, and other such remedies (all of which were grouped under the heading of “just cause”). War, on this understanding, had an offensive character.⁴ Initiated against adversaries ad extra it brought into play a set of juridical effects that applied neither to self-defense nor to the exercise of law enforcement ad intra within the domestic setting.

But compensating for this broadening of what could be done by and in war was a considerable narrowing of the authority condition. As was indicated above, the decision to resort to armed force was taken to be the exclusive prerogative of the highest level of civil authority—the supreme prince or king. Lower authorities could assume this function only by delegation from the supreme ruler. Exercise of such authority was a matter of right that followed upon the possession of proper jurisdiction. But since this right existed for the benefit of the civil community, the exercise of military leadership was also viewed as an obligation, and for this reason princes were expected to acquire the moral virtues that would equip them to fulfill their military duties promptly and in consonance with the needs of the common good. Hence there arose a didactic literature on the moral formation of princes, of which Aquinas’s short treatise, De regno (On Kingship), offers a fine exemplification.

Just War Criteria

In assessing the moral aspects of decision-making about war the medieval authors often compiled lists of criteria that enabled them to differentiate licit from illicit employments of armed force. Thus, in his “Quaestio de bello” (Summa theologiae II-II, q. 40, written ca. 1270; translation in Reichberg, Syse, and Begby 2006, 176–7), Thomas Aquinas famously states that a war will be just only when three requirements are met, namely that (1) it is conducted with the authorization of a prince (auctoritas principis), (2) for a just cause (causa justa), and (3) with a right intention (recta intentio). In setting down these elements, Aquinas was dependent on earlier lists which had been compiled by his predecessors. Raymond of Peñafort (ca. 1180–1275), for instance, maintained that the justice of a war was to be evaluated according to five conditions that follow (in italics):⁵ person (that those who shed blood in war should be seculars, not clerics), object (namely the recovery of property or defense of the homeland), cause (that the war be fought out of necessity to secure peace), state of mind (out of piety, justice, and obedience, not hatred, revenge, or greed), and authorization (of the Chur...

Table of contents

• Cover Page
• Half Title page
• Series page
• Title Page
• Copyright Page
• Contents
• List of Figures and Tables
• List of Contributors
• Acknowledgements
• General Introduction: Identifying and Framing the Issues
• Part I: The Choice Whether to Use Military Force
• Part II Right Conduct in the Use of Military Force
• Part III Ethics After a Conflict is Over
• Part IV Perspectives from Other Cultures
• Index