Moral Responsibility in Twenty-First-Century Warfare

Just War Theory and the Ethical Challenges of Autonomous Weapons Systems

Steven C. Roach, Amy E. Eckert, Steven C. Roach, Amy E. Eckert

• Publisher: SUNY Press
• Year: 2020
• Print ISBN: 9781438480008, 9781438480015
• eBook ISBN: 9781438480022
• Topic: Politics & International Relations
• Subtopic: Ethics & Moral Philosophy
• Index: Politics & International Relations

Confronts the ethical challenges of warfare carried out by artificial intelligence.

2021 CHOICE Outstanding Academic Title

Moral Responsibility in Twenty-First-Century Warfare explores the complex relationship between just war theory and the ethics of autonomous weapons systems (AWS). One of the challenges facing ethicists of war, particularly just war theorists, is that AWS is an applicative concept that seems, in many ways, to lie beyond the human(ist) scope of the just war theory tradition. The book examines the various ethical gaps between just war theory and the legal and moral status of AWS, addresses the limits of both traditional and revisionist just war theory, and proposes ways of bridging some of these gaps. It adopts a dualistic notion of moral responsibility-or differing, related notions of moral responsibility and legitimate authority-to study the conflicts and contradictions of legitimizing the autonomous weapons that are designed to secure peace and neutralize the effects of violence. Focusing on the changing conditions and dynamics of accountability, responsibility, autonomy, and rights in twenty-first-century warfare, the volume sheds light on the effects of violence and the future ethics of modern warfare.

PART I

JUST WAR AND MORAL AUTHORITY

Chapter 1

Defending Conventionalist Just War Theory in the Face of Twenty-First-Century Warfare

PETER SUTCH

This chapter mounts a critical defense of legalist just war theory. Such a defense is needed as more and more voices demand that the laws of war be radically overhauled to better reflect, so it is argued, the changing nature of war and meet the moral imperatives arising from that change. The laws of war represent one of the most important developments in what is often termed the “legalization” of world politics. The construction of global multilateral institutions like the United Nations and the creation of legal covenants with global impact have been central to the priority goal of the international community in the twentieth and twenty-first centuries. Saving humanity from the “scourge of war” has seen the prohibition on the use of aggressive force, a customary approach to the right of self-defense with restricted preemptive uses, a compulsory international mechanism for authorization of the legitimate use of force, strict rules discriminating between combatants and noncombatants (including the treatment of military personnel who when wounded or captured are hors de combat), and prohibitions on the use of weapons that cause unnecessary suffering. In each of these areas the laws of war are being challenged.

Getting to the root of this challenges requires that we confront moral and political claims about the changing nature of war. In the first part of this chapter I will argue that these challenges are grounded in a belief that contemporary conflicts, especially those associated with the “war on terror” and those fought for humanitarian purposes, have a distinct moral and thus practical character and are therefore not the same as war as provided for in the traditional laws of war. It is these beliefs that ground arguments about the need for an expanded right to self-defense (or preventative war) or for a unilateral right to humanitarian intervention. It is these arguments that can often be found at the root of policies and practices (some intended to be hidden from public view but nevertheless sanctioned at the highest levels of government) that advocate the use of torture, rendition, targeted killing using drone technology, and denial of due process. However, and this is the principal burden of this chapter, a conventionalist approach to just war is much more than a body of restrictions. It is deeply embedded in a conception of the legal and political nature of international justice and the nature of war as constituted by legalized and globalized ethics. It is neither unduly conservative nor immune to normative reform, and its restrictionist character should be embraced.

In order to really explore the claim that contemporary war is different and thus should be subject to different moral and legal rules I briefly explore two critiques of legalist just war rules. The claim that our moral response to war should be different is not only conditioned by new asymmetries and technologies. War, law, and ethics are co-constituted—with claims about the nature of ethics and morality as central to claims concerning the nature of contemporary warfare. In turning to debates on international political theory (IPT) I explore two arguments that confront the conventionalist position. The first is a revisionist theory that has become well known for its “deep morality of war” approach to the ethics of killing in war that is highly critical of some of the settled norms of the law of war (Rodin 2002; Rodin and Shue 2008; May 2008; McMahan 2008, 2009). The second is a version of cosmopolitan political theory that uses a conception of universal and individual human rights to question the justice of the existing international legal order and the established rules of war (Beitz 2009; see also Buchanan 2004, 2010, 2013; Buchanan and Keohane 2004, 2015). While these two critiques of conventionalist just war are very distinct, what makes them relevantly similar for the purposes of this chapter is the claim that legalist just war theory does not have the resources to respond to the challenges of contemporary warfare. The revisionist position has received a lot of attention in recent years and my only addition to that literature is an argument that challenges McMahan’s claim that revisionist just war theory and Michael Walzer’s conventionalism begin from the same moral premise. In showing that the moral projects are not comparable (and reserving an argument in favor of the conventionalist position for later sections), I turn to the cosmopolitan institutionalism of Allen Buchanan and Robert Keohane, who are, I argue, engaged in a relevantly similar project to legalist just war theory. Here I explore their basic premise and two arguments for reform to ad bellum and in bello norms and institutions. Once again I challenge the claim that legalism is unduly and structurally conservative and show how legalized moral reasoning copes with normative innovation. Finally, in showing how a conventionalist account of individual protections in international humanitarian and human rights law more adequately responds to the challenges of twenty-first-century warfare the chapter defends the ethical and legal principles of conventionalist just war theory.

The Changing Nature of War: A Brief Overview

The claim that contemporary warfare is different from that provided for in international law affects both ad bellum and in bello norms in a number of ways, many of which have direct policy implications and have underpinned changing practices in twenty-first-century warfare. The general pattern of argument is that the ad bellum justification for action is morally urgent, providing for expanded and often unilateral grounds for the use of force as well as a loosening of in bello restrictions. Two major examples of this trend are humanitarian intervention and the “war on terror.” In the case of humanitarian intervention, the debates around the turn of the century focused on the obligation of the international community to respond, with force where necessary, to gross violations of human rights described as crimes against humanity. Both state practice and the jurisprudence of international criminal tribunals extended the competence of the United Nations Security Council (UNSC) to noninternational armed conflict and, in the face of UNSC deadlock, a NATO-led intervention in Kosovo was described (in the final report of the Independent International Commission on Kosovo) as illegal yet legitimate. The idea that legitimacy (grounded in the humanitarian objective of war) can be at odds with the law underpins a central debate in just war theory and practice—whether justice stems from following moral principle or law. It has driven more applied debate on the subjects of UNSC reform, negotiation on the establishment of a “Responsibility to Protect,” and, in the absence of these reforms to existing law, arguments legitimizing unilateralism in breach of United Nations Charter obligations. The war on terror also moved the debate about just cause beyond established legal parameters. In the rhetoric of the president of the United States the war was necessary to confront evil. The “axis of evil” language of the 2002 National Security Strategy underpins the Bush Doctrine, which pushes the boundaries of preemptive self-defense much further than the customary Caroline/Webster formula in that it rests on the right to respond to a “grave and gathering danger,” a yet unmanifested threat, and thus on a claim to preventative rather than preemptive self-defense (Doyle 2008). Not only is the customary formulation much tighter (demanding an “instant and overwhelming danger”), the Bush Doctrine sits very uneasily with just war criteria for judging the justice of the use of force, making judgments about last resort, proportionality, and reasonable chance of success more challenging (Egede and Sutch 2013, 284). It also reinstates the distinction between civilized states (those within the ambit of the law) and rogue states (Brunée and Toope 2004, 406). Not only does this reintroduce a deeply problematic division into the international legal order—privileging “rights respecting,” democratic, liberal, or merely “with us” rather than “against us” states against the rest of the world—it also underpins arguments for a weakening of or the nonapplication of some in bello norms denying crucial humanitarian protections to both combatants and noncombatants.

The moral rightness of the ad bellum claim and the urgency of defeating an evil enemy has led states to revisit the peremptory norm prohibiting torture or rendition—explicitly in the case of the Landau Commission and the subsequent model endorsed by the Israeli High Court of Justice and more clandestinely in the policies adopted by the United States and the United Kingdom and their allies (Ginbar 2008; see also the Report of the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights 2009). In 2002 to the end of 2003 memos from the US Department of Justice and from military lawyers maintained that enemy prisoners were considered outside of the Geneva Conventions—a challenge to the equality of combatants principle at the heart of in bello principles (see, for example, Sands 2008). New technologies, the clearest example of which is weaponized drones, combine the attractiveness of low risk but effective kinetic capability with the moral certainty of a just cause. They lead states more readily to violate sovereignty by engaging enemies in the territory of nonconsenting and nonbelligerent states, to overuse the military option, and they may lead to violations of the principle of discrimination as enemy fighters with a “continuous combat function” are pursued in civilian contexts (Buchanan and Keohane 2015, 18–19).

It is clear then that several key pillars of the laws of war are being directly challenged. Rather than pursue the empirical and legal questions concerning what laws have been violated we should instead turn to the foundational question. This concerns the claim that contemporary wars are different and that morality requires us to amend or violate the law in order to act justly. Where conventionalist just war theory refuses the moral claim or where the law is resistant to reform it is to be condemned.

Just War Theory: Subordinating Morality to Law

While there are some important differences between the revisionism of thinkers such as Jeff McMahan and the cosmopolitanism of scholars such as Allen Buchanan, they share a key attribute that pushes them to challenge the received wisdom of just war thinking. Central to their critique of just war theory (and the existing laws of war) is their challenge to what they see as the conservative and morally deficient understanding of the relationship between ethics and law in just war theory. Just war theorists, it is claimed, subordinate morality to the existing laws of war in ways that tie their prescriptions to outdated and immoral practices. McMahan, for example, argues that the laws of war are (and must be) substantially divergent from the morality of war (McMahan 2008, 19). He is fiercely critical of the misguided belief by contemporary just war theorists that their orthodox position “is not the result of moral theory modelling itself after the law, or being conscripted to lend its support to the authority of the law, but is instead the happy convergence of law with morality” (McMahan 2008, 20). A properly critical approach to war requires, he maintains, the participant or observer to be aware of this divergence. The limitations of the laws of war are the limitations of international law in general. Buchanan and McMahan describe such limitations as a consequence of the institutional underdevelopment of the international legal order and argue that the moral shortcomings of the laws of war are a consequence of the pragmatic conservatism of an international system geared up to prevent the hegemonic practices of the powerful rather than to promote the core values of morality (Buchanan 2010, 86; McMahan 2008, 34). This distinction between the morality of war and the laws of war is the basic element of their work that underpins a critique of a range of core principles, and both argue in favor of some morally motivated violations of the laws of war.

Both McMahan and Buchanan target Michael Walzer’s classic contribution to the genre. Walzer famously redefined the traditional principles of jus ad bellum and jus in bello as the Legalist Paradigm and the War Convention (Walzer 1977). Walzer’s target was the realist tradition in International Relations scholarship that argues that morality and law had no place in the science of global politics. In showing how important moral and legal judgments were to questions of war Walzer does present a theory that takes the state-centric nature of the international legal order as given and as a constraint on moral reasoning about war—indeed, about global justice more broadly. It is this that McMahan and Buchanan, albeit in different ways, find morally offensive.

Nevertheless, despite finding similar offense the two critiques are distinct in that the revisionist critique sees law as only instrumentally necessary and as immoral and the cosmopolitan-institutionalist critique sees law as deficient by its own moral standards. While much of what follows will focus on the theoretical contest between the legalist tradition and its critics, this chapter is motivated by the concern that the practical consequence of the revisionist and cosmopolitan positions is that they offer too much license to warring parties. The moral logic of these positions establishes moral hierarchies in ways that license political and legal hierarchies—between just and unjust combatants (goodies and baddies), rights-respecting and rights-violating states, civilized and noncivilized peoples—that do not seem to comprehend the legal (as opposed to the moral) complexity of the idea of responsibility (see, for example, Waldron 2018). This is not because either scholar intends to do so—indeed, McMahan’s work restricts the moral right to kill so fully that his position can be described as a contingent pacifism (McMahan 2010, 44–68). Nevertheless, conceiving of the relationship between morality and law as these critiques do offers significant room for those with different, and just as closely held, metaethical doctrines, to make judgments that would cloud even the fog of war. Doctrines of humanitarian intervention, preventative self-defense, forcible democratization, the use of high-tech weaponry to pursue terrorists, or the idea that there are just and unjust combatants and that some civilians can be more justly liable to attack than some military...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Illustrations
• Acknowledgments
• Introduction Dual Moral Responsibility and the Ethical Challenges of Twenty-First-Century Warfare
• PART I Anthropocentrism and Philosophical Anthropology
• Part II Autonomous Weapons Systems and Moral Responsibility
• Contributors
• Index
• Back Cover