Ethics and the Laws of War

The Moral Justification of Legal Norms

Antony Lamb

• Publisher: Routledge
• Year: 2013
• eBook ISBN: 9781136255410
• Topic: Philosophy
• Subtopic: Military & Maritime History

This book is an examination of the permissions, prohibitions and obligations found in just war theory, and the moral grounds for laws concerning war.

Pronouncing an action or course of actions to be prohibited, permitted or obligatory by just war theory does not thereby establish the moral grounds of that prohibition, permission or obligation; nor does such a pronouncement have sufficient persuasive force to govern actions in the public arena. So what are the moral grounds of laws concerning war, and what ought these laws to be?

Adopting the distinction between jus ad bellum and jus in bello, the author argues that rules governing conduct in war can be morally grounded in a form of rule-consequentialism of negative duties. Looking towards the public rules, the book argues for a new interpretation of existing laws, and in some cases the implementation of completely new laws. These include recognising rights of encompassing groups to necessary self-defence; recognising a duty to rescue; and considering all persons neither in uniform nor bearing arms as civilians and therefore fully immune from attack, thus ruling out 'targeted' or 'named' killings.

This book will be of much interest to students of just war theory, ethics of war, international law, peace and conflict studies, and Security Studies/IR in general.

1

Introduction

All war is morally worrying. Nonetheless, the changing character of war and the changing nature of the world have given rise to new moral problems; or perhaps have led us to think about old problems with new urgency.¹ Whether we are talking about a ‘revolution in military affairs’, or ‘fourth-generation warfare’, or the ‘changing face of conflict’,² in order to re-evaluate norms concerning war we need not only a moral analysis of the facts; we also need a clear understanding of what moral reasons can be given to justify the content of laws concerning both conduct in war and the decision to use armed force.³

Just war theory, or the body of work that can be collectively referred to as the just war tradition, is a good starting point. The just war principles are not just useful analytic tools for orienting and structuring our moral thinking about conflict; they can give practical guidance for the war decision and conduct in war.

The just war tradition is best understood as a body of thought, or a way of thinking about war, that sets out the conditions under which a state is permitted to resort to armed force in its dealings with another state, and also regulates conduct in war.⁴ Central to the tradition is the idea of a middle ground between the realist view that the laws fall silent in times of war, and the pacifist view that all war is wrong.⁵ So under some conditions resort to force can be permitted, but the means and methods of conducting war are subject to limitations.

Just war thinking is manifested in a wide range of sources. These include philosophical texts such as Walzer’s widely-read Just and Unjust Wars, but the influence is much wider than this. For example, the just war approach can be found in international law as embodied in the UN Charter, Geneva Conventions and The Rome Statute, along with rules of engagement cards that are issued to soldiers, and perhaps some UN Resolutions.

Hence while for politicians and the military these permissions and prohibitions are likely to be encountered in the form of the action-governing public rules found in international humanitarian law, the just war tradition also includes the moral argument that preceded these laws, and at least to some extent informed their content. Furthermore, just war provides an ethical basis, on which there is substantial convergence, from which to evaluate either the content or the application of the law, and to guide rule formulation in novel circumstances (the invention of a new weapon or means of waging war, for example). The just war approach therefore holds a central role in some of the most important issues in international law and international politics.

The just war tradition has a long history traceable to early Christian writers such as Augustine, and perhaps even earlier.⁶ It has, however, undergone change regarding the conduct prescribed for political leaders and combatants, and also regarding the moral reasons and arguments in which those permissions and prohibitions are grounded. So it is not a static tradition, and its continuing relevance is at least in some part due to this review and revision. The following examples – while not intended to be a full history – will serve to illustrate this. The early Christian writers set out the conditions under which it could be permissible to go to war: only certain people, typically kings or princes, had legitimate authority to wage war; they had to have a good reason (a just cause such as resisting an attack); and they had to engage in war with rightful intention (putting right the injustice that constitutes the just cause). It is noteworthy that punishment was included as a just cause, which is not the case today. Their concern for the just party led to an asymmetric treatment of combatants with regard to conduct in conflict; permissions to cause harm in war belonged only to the just party in order for them to pursue their just end. The unjust party was more akin to a criminal who does not possess any permissions to pursue their wrongful ends.

With Fulgosius, writing at the turn of the fifteenth century, we see the emergence⁷ of the idea that combatants should have equal rights regardless of which party is in the wrong at the onset of war; we can call this the ‘public war’ paradigm. Then through the seventeenth and eighteenth centuries, in the writings of Grotius, Wolff and Vattel, there was a synthesis of ‘public war’ with the earlier just war paradigm. In this conception principles concerning the decision to go to war (the jus ad bellum principles) and those concerning conduct in combat once war is under way (jus in bello principles) are treated as two logically independent domains. So (as before) the jus ad bellum requirements must be met for war to be permissible, and parties that do not meet these requirements are judged to be waging an unjust war, but this judgement has no bearing on the jus in bello constraints that apply equally to combatants of both (or all) parties.

The view just described is currently a common conception of just war theory, but it is sometimes referred to as the ‘regular war’ or ‘war in due form’ paradigm in order to distinguish it from the earlier just war view. Much international law concerning war reflects the structure of the ‘regular war’ paradigm. For example, the UN Charter sets out conditions that must be met for resort to force to be permissible, while the Geneva Conventions – governing conduct in war – apply equally to all parties regardless of who is at fault for initiating conflict. My use of ‘just war’ will henceforth refer to this paradigm.

Christian thought remained present in just war thinking in the twentieth century; the American Catholic bishops grounded their thought in Catholic theology, while Ramsay argued from the Christian principle of ‘love thy neighbour’. Johnson appeals to a notion of ‘wisdom of the ages’ to ground the authority of the just war tradition, and this wisdom includes ‘both secular and religious sources’.⁸ My approach, on the other hand, could be described as firmly secular/ rational, and as such can be set in the context of other contemporary writers in the field. McMahan is predominantly concerned with the moral justification of acts, judged from the viewpoint of rights of individuals. He argues that the current public rules concerning conduct in war diverge from the morality of war and have pragmatic grounds.⁹ My account, by contrast, is concerned with the moral justification of the public rules. This approach is, in a sense, inspired by Rodin’s War & Self-Defense¹⁰ in which he examines the claim that the right in international law for states to use armed force to defend against aggression is grounded in a moral right of self-defence.¹¹ However, I reach different conclusions regarding the moral justifiability of this law (and on the issue of the applicability of consequentialist reasoning to the problems of war).

In his Terror and Consent, Bobbitt argues for the integration of law (‘the role of the State in monopolizing legitimate violence within its own borders’) and strategy (‘the State defending itself from violence from other states’) in order to meet the changed and changing face of conflict.¹² Correspondingly, he says, there will be need for changes in the legislation concerning war.¹³ His arguments proceed on pragmatic grounds – the aim of not losing the wars of the twenty-first century (the wars on terror).¹⁴ I, on the other hand, argue that if the laws are going to develop to meet new conditions, we need to work from a firm understanding of the moral grounds of those laws.

Like Walzer, my account distinguishes between rules concerning the war decision and those concerning acts in war,¹⁵ and recognises that the justification of different domains of rules might appeal to different grounds.¹⁶ However, in Walzer’s work the distinction is not always clear between just war constraints and requirements, the moral grounds of permissions and prohibitions in war, and the content of enforceable public rules. Finally, we cannot simply move from moral prohibitions and obligations to embodying those prohibitions etc. in law. We have to take into account the institutional frameworks in which the laws will operate, and the consequences of the existence of the law. This aspect of my argument has similarities with Buchanan’s work.¹⁷

My approach is clearly rooted in the just war tradition; for example, I draw on just war concepts such as just cause and the principle of discrimination as apt topics for analysis. I also follow the distinction between jus ad bellum and jus in bello. However – and this is a central idea of my argument – there is a sense in which from those just war principles, we need to ‘look in two directions’: towards public, action-governing rules (international law), and moral grounds for those rules.

I should make clear here that this is not a historical explanation of the genesis of any bodies of social regulation. It is not intended as a descriptive account of the origins of the laws of war. Rather, it is a normative account of how those laws can be justified; a properly moralised view exploring the moral justification of public rules.

Now, the importance of the public rules is twofold. First, just war principles in their raw form lack determinacy, so we need clear and public action-governing rules for coordination purposes. Second, pronouncing some action to be prohibited by just war tradition does not in itself have sufficient ‘normative pull’ to do the work required – that is, the need to draw universally binding boundaries around resort to force and permissible conduct in war. Of more importance in that respect are the content of public rules concerning conflict; that is laws of war, or international humanitarian law, along with knowledge that violations will lead to punishment. Admittedly those laws are still violated, but they make for a more binding and enforceable guide to action than moral judgements alone.¹⁸

So, for example, when we turn from just war theory to the public rules in the domain of jus ad bellum, we find in the UN Charter that states have a right of self-defence if they are the object of an armed attack, but in all other cases the Security Council is the proper locus of decisions to resort to armed force.¹⁹ These are issues of rightful authority and just cause. Amongst the public rules concerning jus in bello are the Geneva Conventions and Additional Protocols; they include (for example) the prohibition on targeting civilians and combatant rights such as POW status.²⁰ The crimes listed in The Rome Statute fall into both domains, jus in bello (genocide, war crimes and crimes against humanity) and jus ad bellum (the crime of aggression).²¹

Looking in the other direction towards the moral grounds of public rules, claiming some action or activity to be permitted (or prohibited) by just war theory does not in itself establish the moral permissibility (or prohibition) of that action. We need to ground the prohibitions, permissions and obligations embodied in international norms in more fundamental moral principles.

In a hypothetical account, it may be tempting to argue that the laws constituting the ‘laws of war’ – concerning conduct in war and the war decision – can be morally grounded in some basic principle such as, for example, the principle of self-defence. That is, some fundamental principle can morally justify the body of public rules – prohibitions, permissions and requirements – and can be appealed to when creating new rules, and when revising existing rules. However, in the real world, it is likely that any existing body of laws relating to a given field of activity will be a ‘hotch-potch’ of regulations that have developed over time. In the case of rules concerning war, if we take the documents just discussed, the UN Charter, Geneva Conventions and Protocols, and Rome Statute have diverse origins spanning several decades, and serve different purposes. In the following I will outline²² why moral reasoning that can ground rules concerning armed conflict will call on a diversity of principles and interests.

Regarding the rules of conduct in war, such as the equal status of combatants on both sides of the conflict regardless of whether their cause is just, it might seem that a moral justification of those rules could be an appeal to a harm minimisation principle, meaning that these rules minimise the harms caused in war. But that is not right as this would require rules, say, to provide needy enemy civilians with food parcels, and there is no such requirement in public rules of conduct in war.²³ So a better moral justification is that they are rules that (attempt to) minimise violations of certain rights, such as targeting non-combatants, torture, rape, etc. I will refer to this as a rule-consequentialist justification of the laws, but by this I am not making any claims regarding the connection of the meaning of ‘rightness’ to following rules. Rather, I am arguing that concerning conduct in war, optimal principles of social regulation – sets of rules for public life – are those that minimise violations of certain rights. Looking at this from the viewpoint of duties, the idea of the rules is to maximise compliance with duties not to do certain things to other persons. This could be characterised as a consequentialism of negative duties.²⁴

This rule-consequentialist justification cannot be used to support the laws concerning resort to force, the war decision. Those norms permit use of defensive force against a threat of sufficient gravity. Crucially, this does not mean that the threat, if left unresisted, would have to outweigh harms caused if defensive force were used; it just has to be sufficiently weighty to warrant the latter. Therefore, a state’s response when justifiably acting in accordance with this law could result in an increase in rights violations. Moreover, that could...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• 1. Introduction
• 2. Rights, rules and consequences
• 3. Challenges to the ‘rule-consequentialism’ concept of laws concerning actions in conflict
• 4. Non-combatant immunity, non-uniformed combatants and illegitimate combatants
• 5. Dual-use facilities, asymmetric conflict
• 6. The right of national defence
• 7. Humanitarian intervention
• 8. Preventive war
• 9. The jus ad bellum ‘legitimate authority’ requirement
• 10. Consensus on the grounds of the laws
• Notes
• Bibliography
• Index