Just War Reconsidered

Strategy, Ethics, and Theory

James M. Dubik

• Publisher: The University Press of Kentucky
• Year: 2016
• Print ISBN: 9780813175010, 9780813168296
• eBook ISBN: 9780813168319
• Topic: History
• Subtopic: Military & Maritime History
• Index: History

1

Jus in Bello’s Missing Piece

The prevailing view of just war theory recognizes the responsibilities of soldiers and leaders in combat¹ but omits an adequate account of the jus in bello responsibilities that senior leaders have in the conduct of war. Governments who conduct war necessarily use the lives of their citizens and risk the lives of innocents and sometimes even the life of their political community. Those who use and risk lives in war include both the soldiers and leaders on the battlefield and the senior political and military officials who send them there. Strategic responsibilities in the conduct of war, though less direct and apparent than those on the battlefield, are no less important. This book attempts to identify, describe, and fill the gap in the traditional account of jus in bello.

In its second decade at war, America has relearned that the moral dimension is as much a part of war’s essence as are its other dimensions. It is also finding out once again that war is one of the most complex and, in many ways, the most inscrutable of human activities. The public discussion in the United States about its post-9/11 wars reflects that complexity.

The American Dialogue

Some of the dialogue about the post-9/11 wars is technical, continuing Americans’ fascination with machines and technology and the hope that somehow technology will offset the ugliness of war. Some is strategic and fiscal, wondering about our role in the world and our ability to pay the costs of a nation with global interests and responsibilities. Some is sociopolitical, questioning the kind of community America is or ought to be. And some is pragmatic, assessing how we are doing and why, after so much sacrifice and spending, we are not in a better place. This dialogue has also resurrected the language and logic of just war theory, that portion of philosophy responsible for studying war from its moral perspective. Perennial questions have arisen: Are these wars justified? (concerns of jus ad bellum) and Have we conducted these wars justly? (matters of jus in bello) as well as Are we ending these wars justly? and What do we as a political community owe those who have fought on our behalf? (issues of jus post bellum).

At various times, the public dialogue in the United States concerning the conduct of its wars has focused on the justification for the US intervention in Iraq, the Abu Ghraib prison abuses, rendition and secret prisons, interrogation techniques and torture, the use of armed drones, the complexities of fighting these kinds of wars, the difficulties involved in distinguishing combatants from noncombatants, crimes committed by US combatants, the atrocities committed by our enemies, our rules of engagement for combat, collateral damage caused by area-effects weapons, what proportionality means in the kinds of wars the nation is fighting, and what a just end to this war might look like. These matters all concern the principles governing various aspects of just war theory. An understanding of the framework of this theory, its principles, and their application is important, for the concept and tools of war are changing, as are its methods. By definition, war has been understood as a state-versus-state phenomenon. That is no longer the case. What counts as war has expanded. War is, once again, being recognized as “more than a true chameleon,” as it was first described by Carl von Clausewitz.²

Moral philosophers have an important role in this time of change,³ and they have risen to this occasion. A brief survey of some of the salient discussions illustrates the depth of the philosophical community’s reexamination of just war theory.

One of the bedrock principles of just war theory is that aggression can be rightly resisted. Jus ad bellum rests on this foundation: a state is justified in defending itself against aggression. “Wars are not self-starting,” Michael Walzer points out. “They may ‘break out’ . . . under conditions difficult to analyze and where the attribution of responsibility seems impossible. But usually they are more like arson than accident: war has human agents as well as human victims.”⁴ The agents of aggression are not justified, but the victims coming to their own defense or that of others are.

David Rodin, however, subjects this seemingly intuitively obvious belief to intense analysis and commentary in his War and Self-Defense. In his treatment of the subject, he questions the validity of “the domestic analogy”—that the right to national self-defense is analogous to the right of personal self-defense. He also questions “proportionality”—the comparative judgment about value and harm—as a useful concept in deciding jus ad bellum issues. His analysis includes looking at both wars between nation-states and civil war within a state. Additionally, he questions the supposed separation between jus ad bellum and jus in bello—that the justice of fighting a war can be logically and morally separated from the justice of the war itself.

In the end, Rodin concluded that “the tendency to view all conflict through the lens of aggression and defense is at once morally misleading and dangerous.” It is misleading because, to the extent that conflicts are infected by the politics of brinkmanship, the application of the categories of aggression and defense is often nothing more than an exercise in moral bad faith. It is dangerous because it may actually encourage participation in the game of brinkmanship. Further, the lens of aggression and defense fails to address the problems of civil war and internal oppression. Rodin then goes on to adduce alternative frameworks and principles, ones that give strength to the final conclusion that “our traditional conceptions of international law and international ethics need to be fundamentally rethought.”⁵

Another of the central foundations of traditional just war theory holds that fighting is a rule-governed activity and that the rules apply equally to soldiers fighting on either side of the conflict. The main jus in bello rules generally accepted among nations include the principal upholding of the distinction between combatants and noncombatants, where the former are legitimate targets of war and the latter are, under most circumstances, not; the principle of double effect and double intent, outlining when the killing of noncombatants is morally permissible; the principle of due care and due risk, which describes how combatants must assume risk in executing combat actions, thus providing due care for the rights of the innocent who might be caught up in the fighting; and the principle of proportionality, which dictates that soldiers use only proportionate force against legitimate targets. The net result of the equal applicability of these jus in bello principles is a “moral equality of soldiers,” which, as Jeff McMahan puts it in Killing in War, produces a belief that no one does wrong or acts impermissibly merely by fighting in a war—even an unjust one.⁶ McMahan presents powerful challenges to this traditional approach.

McMahan examines the details of the moral arguments that undergird the intuition that a just war can be fought unjustly and an unjust war fought justly. His analysis drives to the very heart of traditional just war theory, a theory that uses the individual rights of life and liberty as well as the communal dimension of these rights, political sovereignty, and territorial integrity as the ultimate moral foundation of jus ad bellum and jus in bello. Those who are rightly liable to attack have no right of defense, McMahan explains. He argues that this is true in relations among individuals not only in civil society but also in war. By engaging in morally justified self- and other defense, soldiers do nothing to forfeit their right not to be attacked or killed. McMahan goes on to say: “Even though just combatants are ‘doing harm’ and ‘pose a danger to other people’ . . . , they do not thereby become legitimate targets of attack.” Why? Because, like police officers, they are not subject to justified attack, even in self-defense. McMahan admits to exceptions to his new rule—just combatants who pursue their cause by impermissible means—and he admits that it is morally important to get unjust combatants to exercise restraint in their military operations.⁷ His analysis shows, however, the inadequacy of the arguments traditionally used in just war theory to explain how classes of people—soldiers of either side in a war—can lose their rights against deliberate attack and become liable to be attacked.

McMahan admits that this is a perplexing conclusion with respect to the intuitions of traditional just war theory. He examines proportionality, discrimination, supreme emergency, and other principles and concepts commonly accepted among traditional just war theorists, and he comes to equally perplexing—although powerfully convincing—conclusions. In the end, he rejects the idea of the moral equality of soldiers and presents an alternative, responsibility-based understanding of what it means to be liable to attack. In that process, he hopes to deepen “our understanding of the morality of participation in war” and provide a moral framework for soldiers and others to use before signing up to fight in a war.⁸

Traditional just war theory also contains the jus in bello principle of due care and due risk, which holds that soldiers and commanders must assume risk to safeguard civilians. This “trade-off” of risk, David Luban says in “Risk Taking and Force Protection,” is even more pronounced when the fighting is between “regular forces with superior technology and non-state adversaries who live, work, and fight in the midst of civilians.”⁹ Luban recognizes that the traditional principles of jus in bello provide no direct answer to the questions of how much risk, or how much care, or how to balance the two. In fact, in Just and Unjust Wars, Walzer admits that the laws of war say nothing about the degree of care to be provided to civilians and the amount of risk to be incurred by soldiers.¹⁰ Luban initiates, therefore, a detailed analysis of the morality of risk transfer.

Luban argues for the general principle, If a person A is creating a risk for another, innocent person B, A may not transfer that risk to B or other innocents. He then uses this general principle to investigate a variety of risk-transfer situations between two poles. At one pole, there is zero risk to soldiers, and all risk is transferred to civilians; at the other pole, the soldier accepts so much risk that he is certain to die and the legitimate military action is certain to fail. Luban seeks to establish the minimum standard of acceptable care soldiers owe civilians—whether the civilians are “enemy” or “their own.”¹¹

In the end, Luban concludes, with Walzer, that “no precise answer can be given to the ‘how much risk?’ question,” but, en route to that conclusion, he adds clarity to the traditional jus in bello principle. Force protection, he agrees, is a concrete and direct military advantage. Protecting a soldier’s “asset value,” however, does not outweigh the moral requirement for soldiers to provide the minimum standard of care even to enemy civilians.¹²

America’s post-9/11 wars have also highlighted a glaring deficiency inherent in the traditional approach of dividing just war theory into two parts: jus ad bellum, which focuses on the justice of going to war, and jus in bello, which covers justice in the conduct of war. Left out, Brian Orend reminds us in The Morality of War, is jus post bellum—the issue of justice after a war. Orend rightly points out that sticking only to the two traditional parts of just war theory is “a decrepit state of affairs that must be remedied, both for conceptual and concrete historical reasons.”¹³

Orend suggests that, at a minimum, a proper account of jus post bellum would include analyses of what an “ethical end state” might consist of and of what are just ends for a war. Also included must be some discussion of discrimination and proportionality with respect to postwar sanctions, punishments, or compensations as well as a proper understanding of what military and political rehabilitation of the aggressor state actually entails. Orend demonstrates, too, that a complete account of jus post bellum would necessarily include an understanding of warcrimes trials and the responsibilities not only of soldiers and their leaders but also of heads of state and collective political bodies. He provides at least a first cut at each of the elements he believes should be part of jus post bellum.

That first cut goes a long way toward sketching out a general blueprint for postwar justice. Orend then looks at several historical examples and includes a discussion of when regime change is justified and how “rights-violating aggressor regimes” might be transformed.¹⁴ Mona Fixdal goes a bit further in Just Peace, although she too admits that her work is far from a blueprint or design. Rather, she hopes only to “untangle” the elements of peace and justice that, ultimately, make up any judgment of a war’s outcome. “Although recent years have seen somewhat of a proliferation of discussion of this topic,” Fixdal says, “it is fair to say that jus post bellum is still largely ignored.”¹⁵

Nancy Sherman’s focus on jus post bellum is from a completely different perspective from Orend’s and Fixdal’s. Her start point concerns “how soldiers themselves, in their most reflective, personal, and sometimes anguished moments, experience war as a moral enterprise and hold themselves accountable.”¹⁶ From here, she goes on to ask what a nation owes its citizens-who-become-soldiers. She is seeking an answer deeper than “thank you for your service” or the current public discussion of medical, institutional, and financial support for wounded veterans.

Sherman does not diminish the importance of saying thank you, providing continuing care for veterans, or identifying jus post bellum principles that apply to states or other warring entities. She takes on, however, much more profound tasks: understanding the injuries war inherently causes to a person’s moral sense and the implications of those injuries. In giving voice to “moral injury,” she adds an important dimension to jus post bellum. She brings to the fore topics previously either left unsaid or spoken of only among veterans and a small handful of others. She pulls back the curtain of war and exposes us, the political community on whose behalf soldiers fight, to the moral injuries war necessarily produces.

Not satisfied with simply reminding us of our communal responsibility toward those whom we send to fight for us, Sherman combines her training in both psychology and philosophy to describe approaches to moral healing. Self-empathy, self-forgiveness, reexperiencing troubling wartime events, and reenvisioning one’s moral frameworks are several of the ways in which postwar moral reparative work gets done. She also examines the roles of trust, resentment, betrayal, hope, meaning, and purpose in healing the soldier’s soul. She also examines the role that a network of relationships (one’s community)—the very network that is injured by alienation and separateness—plays in each of these healing processes.

These are brief illustrations of just a few of the central issues being examined, but they show that the update to traditional just war theory is an active field for moral philosophers and that the discussion is far from finished. My purpose in this book, however, is no...

Table of contents

• Cover
• Half title
• Title
• Copyright
• Contents
• Foreword
• Prologue
• 1. Jus in Bello’s Missing Piece
• 2. Describing Jus in Bello’s War-Waging Dimension
• 3. Principals and Agents
• 4. Dialogue and the Nature of War
• 5. The Decision-Execution Regime
• 6. Jus in Bello’s War-Waging Principles
• Epilogue
• Notes
• Bibliography
• Index