The Future of Just War

New Critical Essays

Scott Jones, William Keller, Caron Gentry, Amy Eckert

• Publisher: University of Georgia Press
• Year: 2014
• ISBN:
  9780820346533
• Topic: Philosophy
• Subtopic: Pragmatism in Philosophy

Just War scholarship has adapted to contemporary crises and situations. But its adaptation has spurned debate and conversation—a method and means of pushing its thinking forward. Now the Just War tradition risks becoming marginalized. This concern may seem out of place as Just War literature is proliferating, yet this literature remains welded to traditional conceptualizations of Just War. Caron E. Gentry and Amy E. Eckert argue that the tradition needs to be updated to deal with substate actors within the realm of legitimate authority, private military companies, and the questionable moral difference between the use of conventional and nuclear weapons. Additionally, as recent policy makers and scholars have tried to make the Just War criteria legalistic, they have weakened the tradition's ability to draw from and adjust to its contemporaneous setting.

The essays in The Future of Just War seek to reorient the tradition around its core concerns of preventing the unjust use of force by states and limiting the harm inflicted on vulnerable populations such as civilian noncombatants. The pursuit of these challenges involves both a reclaiming of traditional Just War principles from those who would push it toward greater permissiveness with respect to war, as well as the application of Just War principles to emerging issues, such as the growing use of robotics in war or the privatization of force. These essays share a commitment to the idea that the tradition is more about a rigorous application of Just War principles than the satisfaction of a checklist of criteria to be met before waging "just" war in the service of national interest.

SECTION TWO
Jus in Bello

CHAPTER FIVE
Postheroic U.S. Warfare and the Moral Justification for Killing in War

Sebastian Kaempf

We had five hundred casualties a week when [the Nixon administration] came to office. America now is not willing to take casualties. Vietnam produced a whole new attitude.

HENRY KISSINGER, 1999

During the Gulf War, it was more dangerous to be a young man back in the United States, with all its car accidents and urban murders, than to serve in combat. Thus, almost three hundred soldiers had their lives saved by serving in Desert Shield and Desert Storm. The United States effectively saved American lives by going to war.

CHRIS H. GRAY

THIS CHAPTER INVESTIGATES the theoretical challenges that the advent of “risk-free” (casualty-averse and posthuman) American warfare poses to both the laws of war and the ethics of the use of force. It thereby focuses on the jus in bello question of when it is permissible for a soldier to kill another combatant in war rather than the more specific question of when it is permissible for the same soldier to kill a civilian. If the fundamental principle of the morality of warfare that legitimizes the killing of another soldier arises exclusively on the basis that such killing constitutes the right to exercise self-defense within the conditions of a mutual imposition of risk, then the emergence of asymmetrical risk-free warfare represents a deep challenge. This unprecedented challenge is posed by contemporary U.S. warfare: the United States is the first actor in recent history who can kill without suffering the risk of dying in return. Such a scenario (as it has unfolded since the 1990s, from the First Gulf War, through conflicts in Kosovo, Afghanistan, and Iraq, to the recent intervention in Libya) propels us well beyond the principles underlying the laws and the ethics of warfare. The recent risk-free deployment of American military force might be justified politically, but it raises the more fundamental problem that we might no longer be able to appeal to the morality of warfare to justify this mode of combat.

The chapter makes this argument by first establishing how reciprocity (the condition of a mutual imposition of risk) is the key conceptual condition upon which the moral and legal permission for killing in war rests. It then demonstrates how reciprocity implicitly assumes a certain degree of symmetry between warring factions. Third, the chapter argues that in the case of contemporary U.S. warfare, conditions of asymmetry have emerged on such a historically unprecedented scale that they have started to push beyond the conditions of reciprocity. Paradoxically, this American drive toward risk-free warfare has coincided with a systematic attempt—on the part of contemporary U.S. warfare—to comply with the moral and legal provisions set by and codified in Just War thinking and the Laws of War. Exploring this paradox, the chapter argues that while the United States has come to comply with Just War theory and the Laws of War, the removal of risk from its own mode of warfare (by undermining the principle of reciprocity) no longer allows the U.S. military to justify the killing of enemy combatant along existing moral and legal lines. The chapter concludes by outlining a constructive way for the Just War tradition to address this unprecedented challenge.

THE MORAL PERMISSION TO KILL IN WAR AND THE PRE-REQUIREMENT OF RECIPROCITY

In civil life, killing another human being is generally not sanctioned by law but instead is considered to be murder or manslaughter. By contrast, in times of war, killing another human being (who happens to be an enemy combatant) is indeed sanctioned by both the Just War tradition and International Humanitarian Law (IHL) as a legitimate act.¹ So the question arises as to why exactly soldiers are permitted to kill one another without such an act to be considered murder.

The moral paradox about war is that the right for combatants to injure and kill one another is not based on the judgment of their personal moral guilt. They do not fight each other because they hate their adversaries or because one has personally wronged the other. Instead, they find themselves confronting each other because they have been given orders by their political leaders to fight. They are in that sense no more than instruments of the state.² Yet equally, the right of warriors to injure and kill one another is not founded on judgments of the moral evil of the state or the political authority on whose behalf they are fighting. While soldiers are held personally accountable for how they conduct themselves in war (jus in bello), they are not held responsible for the outbreak of the particular war in which they are fighting (jus ad bellum).³ Instead, they are assumed to be morally innocent, an assumption arising out of what Michael Walzer calls the “moral equality of soldiers.”⁴

What, then, gives soldiers the moral and legal right to kill other soldiers? The answer found from within the various strands of the Just War tradition (be it the Christian/Western, Islamic, or African traditions) and IHL is very precise: combatants are permitted to kill one another precisely because they stand in a relationship of mutual risk.⁵ The acceptance of the reciprocal imposition of risk establishes the internal morality of the relationship between soldiers. Only this reciprocal condition morally and legally licenses the warrior to kill another warrior.⁶ Each warrior thereby possesses the license to kill because each acts in self-defense vis-à-vis the other.⁷ This requirement of reciprocity lies at the heart of the moral reality of war and constitutes the condition upon which the moral and legal right to kill in war is founded and what binds warriors together in a brotherhood of death.

In other words, the warrior’s moral privilege to kill another warrior (without the killing being interpreted as a crime or murder) is subject to a condition of reciprocity. This means, furthermore, that a warrior is not sanctioned to kill noncombatants (civilians and POWS alike) precisely because he or she cannot justify the killing of civilians as an act of self-defense. Because noncombatants, by definition, are unarmed, killing them (directly and deliberately) is considered to be murder and a war crime.⁸ It is only under conditions of the reciprocal imposition of risk that the soldier’s moral privilege to kill arises. Without the reciprocal imposition of risk, there is neither a moral nor a legal basis upon which to justify the injuring or killing in war.⁹

Reciprocity of such risks implies the existence of some degree of symmetry between opposing adversaries.¹⁰ Symmetry implies that—to some degree—both adversaries enjoy similar military capabilities and face similar levels of vulnerabilities. Only under conditions of symmetry can the condition of reciprocity exist. Two qualifications are important at this stage: first, pure levels of symmetry probably exist only in theory, not in practice. Military historians would argue that there has hardly ever been a war in history where pure levels of symmetry between opposing armed forces was a reality (though we might point to the duels between ancient Greek warriors or between hoplite phalanxes or to the stalemate on the western front during World War I). This might have something to do with the second qualification—namely, that due to the interactive dynamic that lies at the heart of the nature of war, each adversary naturally strives to create an asymmetrically advantageous situation in which the enemy suffers greater risks of injury and death while its own forces remain relatively safe.¹¹ In essence, the interactive nature of war results in forces that avoid symmetries and aim at creating asymmetric advantages for themselves.¹²

This means that, on the one hand, pure levels of symmetry might never actually exist. On the other hand, certain levels of asymmetry are always created as a result of the interactive nature of war. Yet, the fundamental moral (the Just War tradition) and legal (International Humanitarian Law) principles of war are founded on the assumption of relative symmetry: that on the overall strategic level, both adversaries actually kill in self-defense vis-à-vis their enemy.¹³

If the fundamental principle of the morality of warfare is founded on the right to exercise self-defense within the conditions of a mutual imposition of risk, then the emergence of extreme forms of asymmetrical warfare represents a deep challenge. Extreme forms of asymmetry would arise when one adversary—on a strategic level—was able (through long-distance, highly sophisticated weapons technology, for instance) to kill the enemy’s military forces without suffering the risk of dying in return. Under such conditions of extreme asymmetry, an insurmountable imbalance of reciprocity between adversaries would be created. Such a scenario would undermine the principle of reciprocity and thereby push us well beyond the existing moral and legal foundations that justify killing in war. As the next section demonstrates, such a scenario has started to arise in the case contemporary U.S. warfare.

MOVING BEYOND RECIPROCITY: VIETNAM AND THE ELIMINATION OF RISK IN CONTEMPORARY U.S. WARFARE

Contemporary U.S. warfare has gained the technological capacity to apply overwhelming force globally without suffering the risk of reciprocal injury.¹⁴ From the 1991 Gulf War to the current intervention in Libya, the U.S. military has enjoyed such overwhelming and historically unprecedented technological superiority that it has effectively gained the ability to wage wars without suffering (hardly) any risks to its own soldiers.¹⁵ For instance, “Operation Allied Force” over Kosovo in 1999 constituted the first war waged by the U.S. military that saw zero combat casualties (the only fatalities were caused by accidents or friendly fire). And while Kosovo might—thus far—have remained the exception, it constitutes merely the culmination of a much wider trend at work in U.S. warfare over the last twenty years: between the 1991 Gulf War and the 2003 overthrow of Saddam Hussein’s regime in Baghdad, not only were U.S. casualty figures extremely low (both in terms of absolute numbers as well as in historical comparison, ranging in the tens and hundreds rather than in the tens of thousands), but also the majority of U.S. fatalities in most of these conflicts were not caused by enemy fire but friendly fire and accidents (see table 5.1). This implies that the biggest threat to the lives of U.S. service personnel has come less from U.S. adversaries than from within U.S. warfare itself. The same period also saw more NGO workers killed than American soldiers. And during “Operation Enduring Freedom,” the American military succeeded in toppling the Taliban regime with a mere 214 CIA operatives and Special Forces on the ground by the time the regime collapsed at the end of November 2001.

Those critiquing the factor of casualty aversion and risk-free American warfare tend to point to the wars in Afghanistan and I...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Introduction
• Section One. Jus ad Bellum
• Section Two. Jus in Bello
• Section Three. Jus post Bellum
• Contributors
• Index