The Morality of War

Introduction

The Just War Tradition, as a moral framework that seeks to regulate the use of force in international relations, dictates that warfare is morally permissible only under specific conditions (Pike, 2014, p. 39). In this essay, I will outline those conditions and consider a central part of the Just War Tradition, namely the distinction between the rules that govern going to war and the rules that govern fighting in war. As such, I will explain how this distinction works in the context of two moral theories: the moral equality of combatants (MEC) and the principle of non-combatant immunity. This requires comparing and contrasting opposing views in the field of just war theory, such as those of the traditional just war theorist Michael Walzer and the revisionist just war theorist Jeff McMahan. I will also show how this distinction could be reliable (a) in distinguishing between who may and who may not be killed in war, and (b) in guiding the actions of combatants fighting in conditions of imperfect knowledge. Moreover, I will use the naked soldier example to discuss Helen Frowe’s argument about widening the conception of what poses a threat in war. Finally, I will discuss the Doctrine of Double Effect, which says that it is morally permissible to engage in military actions that foreseeably result in civilian harm or death, if certain conditions are met.

The evolution of Just War: From Tradition to Theory

It is important to distinguish, at the outset, between Just War Tradition and just war theory. Just War Tradition, which began as a source of advice for Christian princes and kings who contemplated the morality of waging wars, lays out a set of conditions that act as a kind of checklist for knowing whether or not a war is just. Just war theory, on the other hand, considers the justifiability of war and killing in war, claiming that in certain circumstances killing can be justified (Pike, 2014, p. 13). The main difference between the two is that the former has developed into a highly schematic set of traditional principles, representing the dominant position in the West about killing in war; the latter analyzes the morality of war without having to recourse to the dogmatic principles of the former (Lazar, 2022). In short, Just War Tradition is more concerned with the overall justice of war; just war theory is more concerned with the specific actions taken in war.

Going to war vs the conduct of war

The principles of the Just War Tradition are standardly known by their Latin labels Jus ad Bellum (JaB) and Jus in Bello (JiB), translated as justification of going to war and justice in fighting war, respectively (Pike, 2014, p. 5). This distinction is important because it recognizes that the decision to go to war is a different question from the conduct of war.

The just war theorist Uwe Steinhoff (2007) lays out six conditions of justification of going to war (JaB) and two conditions of justice in fighting war (JiB). The first condition of the JaB is the existence of a legitimate authority that decides on the entrance of war. The second maintains that entrance into war must be based on a just cause. The third says that a war should be pursued with the right intention. The fourths says that the condition of proportionality must be met, namely that a war should not create more harm than it averts. The fifth says that there must be a prospect of success in war (i.e., a vision of victory). Finally, entrance into war should be a last resort (i.e., in the absence of viable alternatives). As for the JiB conditions, the first focuses on the fulfilment of the proportionality concept (i.e., one should not utterly destroy a country if victory can be achieved less destructively). The second is concerned with the observance of the principle of non-combatant immunity (also known as the principle of discrimination), which distinguishes between legitimate human targets (i.e., combatants) and illegitimate human targets (i.e., civilians), arguing that the latter must not be intentionally harmed or targeted in war. The JaB and JiB principles have been so influential that they have been encoded in international law, such as the Geneva Conventions and their additional protocols, and the Hague Conventions.

The Geneva Conventions and the Hague Conventions, colloquially known as the Law of Geneva and the Law of the Hague, are one of humanity’s most important accomplishments of the twentieth century. The two Conventions are sets of international treaties that lay out the laws and customs of war for limiting the effects of war on soldiers and civilians. For example, the Law of Geneva sets out in detail the rules that must be observed in international armed conflicts, such as the protection of non-combatants and those who are no longer taking part in hostilities. The Law of the Hague, by contrast, sets out the rules that govern the use of weapons in war, the methods of warfare (i.e., the tactics or strategy used in war), the conduct of hostilities, and occupation (The International Committee of Red Cross, n.a.).

The MEC doctrine and McMahan’s objection to it

In considering the justification of killing in war, just war theorists rely on moral philosophy, theories of rights, and arguments about actions that are wrong but excusable. For example, the MEC doctrine, as the third dominant view in the Just War Tradition, holds that irrespective of the justice of their causes, combatants on both sides of a war are “equally permitted to kill each other and equally liable to be killed … [i.e.,] they have no right not to be harmed” (The Open University, 2022a). Walzer (1977, p. 173) thinks that equal liability comes from equality of threat – i.e., from the conception that soldiers are “dangerous men” and therefore are entitled to defend themselves against a lethal threat.

Walzer advances the MEC doctrine ?in his Just and Unjust Wars (1977) and uses the case of General Erwin Rommel who burned Hitler’s commando order that demanded the immediate execution of Allied commandos captured behind German lines during War World II. Indeed, the commando order violates the rules of war that distinguishes between those who are liable to be killed in war and those who are not liable to be killed in war. By refusing to obey Hitler’s illegal and immoral order, Rommel fought justly, according to Walzer (1977, p. 48), suggesting that the JaB and JiB conditions are so “logically independent” from each other that “[i]t is perfectly possible for a just war to be fought unjustly and for an unjust war to be fought in strict accordance with the rules.” This means that soldiers can fight justly even if they are on the unjust side of war. (A contrasting example would be the dropping of the atom bombs on Japan in World War II, where the U.S. conformed to the JaB principles (i.e., it had a just cause) but failed to conform to the JiB principles (i.e., it violated the proportionality concept.)) ?

In his Killing in War, McMahan (2009, p. 112) criticizes Walzer for ignoring the broad morality of war and for advancing “the possibility that blamelessness implies nothing more than that the unjust combatant is excused.” By depicting Rommel as a just soldier, Walzer ignores the fact that he volitionally participated in an unjust war and hence acted wrongly: Rommel is like a burglar who breaks into houses and steals things but makes sure not to cause unnecessary harm (McMahan, 2022a). McMahan thinks that the MEC doctrine is not a basic morality issue and gives three reasons for rejecting it. ?

First, there are two distinct uses to the word “innocent” in Just War Tradition: it can mean “civilian” (i.e., non-combatant) and it may refer to those who have done nothing to lose their right not to be harmed (McMahan, 2006, pp. 379-80). If a mugger attacks me, for example, would I lose my right not to be attacked simply by trying to defend myself? No, because “people who have not forfeited their right against attack … are not liable to attack. They are therefore illegitimate targets” (McMahan, 2009, p. 16).

Second, McMahan thinks that if an unjust combatant threatens a just combatant with lethal force, then it makes sense to say that the unjust combatant is liable to be killed. However, if a just combatant threatens an unjust combatant with lethal force, it does not follow that the just combatant is liable to be killed (McMahan, cited in Pike, 2014, p. 47). To understand why McMahan takes this position, we need to distinguish between material non-innocence and moral non-innocence – i.e., between a person who poses a physical threat and a person who is morally culpable (i.e., guilty). The following example from World War II shows how someone can be materially non-innocent without being morally non-innocent.

In 1943, the Jews of Warsaw forcibly resisted attempts by the German army to round them up and send them to extermination camps. Those Jews were materially non-innocent because they posed a threat to the German army. However, they were morally innocent because they were fighting in self-defense against an unjust aggressor. McMahan claims that Walzer ignores the broader moral background of war which says that the unjust does not acquire the right to harm the innocent simply because the innocent resist. Material non-innocence serves as an essential but not exclusive requirement for justifying acts of self-defense or warfare. In other words, for someone to be a legitimate target, they must be materially non-innocent, which means that their action contribute to their vulnerability. However, it is also crucial that they bear moral responsibility for their actions to warrant a justifiable attack.

Finally, there are two requirements of the JiB principles that unjust combatants cannot satisfy: the condition to attack only legitimate targets (i.e., combatants) and the condition of proportionality. In most conflicts, civilians are harmed. The standard argument of the Just War Tradition says that the harm caused to civilians on the unjust side in a war can be proportionate if combatants obey the JiB conditions. This is completely implausible, for McMahan (2022b), because “the permissibility of killing people can’t be entirely distinct from the reasons why you’re killing people.” This distinction is important when it comes to determining who has the right to use lethal force in war.

Responses and counter-responses to McMahan’s objections

McMahan’s account faces a number of objections from both the epistemological argument and the voluntariness argument. The epistemological argument questions what combatants know, and what they can reasonably be expected to know (Pike, 2014, p. 55). ?Given their scant knowledge of morality or political affairs, combatants “cannot reasonably be expected to make moral judgment about the justice of their cause … [hence,] they are entitled to act as if they were fighting in a just cause” (Pike, 2014, p. 55). Moreover, because their leaders are better informed about the JaB and JiB requirements, just and unjust combatants can legitimately defer to them. This means that both just and unjust combatants are justified in fighting. Similarly, the voluntariness argument accepts the MEC doctrine on the basis that when combatants join the army, they voluntarily surrender their right not to be killed.

In his response to the epistemological objection, McMahan (2022c) accuses it of making “unwarranted slippage from excusability to justifiability.” Excusability of unjust combatants, for McMahan, does not entail justifiability of their actions. The voluntariness argument also faces a number of objection, most notably from Hurka (2007) who argues that unjust combatants cannot fight proportionally whereas just combatants can, and that the right not to be killed cannot be given away because it is “inalienable.”

The Fine- and rough-grained approaches to the principle of non-combatant immunity ???

The principle of non-combatant immunity, understood as the distinction between legitimate and illegitimate human targets, involves two claims, with the possibility of accepting one claim but not the other: (1) that non-combatants are immune from being intentionally killed in war; and (2) that all combatants are liable to be killed (Pike, 2014, p. 69).

In his retelling of the story of a naked soldier, Walzer (1977) explores the concept of combatant liability. This narrative features a soldier who hesitate to kill an enemy combatant bathing, seeing him as posing no immediate threat. As previously mentioned, the Geneva Conventions forbids the killing of soldiers who are incapacitated and unable to defend themselves. However, this prohibition does not extend to an enemy soldier in a vulnerable state, such as when taking a bath. Walzer’s overarching moral argument contends that soldiers should overcome their “deep psychological uneasiness about killing [in war]” (1977, pp. 167-171). This implies that soldiers need to find ways to reconcile their internal moral struggles with the demands of their roles in warfare. Nevetheless, Walzer’s permissibility of killing members of a class or group, on the basis of their membership of that class or group, can be viewed as “a paradigm case of injustice.” (Pike, 2014, p. 73).

In his Killing Naked Soldiers, Larry May (2005) criticizes Walzer for “relying on a notion of collective responsibility of the worst sort” and for not making a distinction between combatants who pose an immediate threat and combatants who do not. If surrendering soldiers are no longer liable to be killed, then why not naked soldiers, the argument goes. This suggests that “immunity from being killed is something that might vary over time and circumstance, disrupting the bright-line character of the principle of discrimination” (May, 2005).

May (2005) think that we should start with a “fine-grained” approach (i.e., individualistic perspective) to the principle of non-combatant immunity, rather than the “rough-grained” approach (i.e., collective perspective), as endorsed by Walzer, if we are to make a better moral judgment about who can be legitimately targeted in war. By inviting us to rethink the very strategy of using group identification, May comes close to endorsing Contingent Pacifism, which says that all wars are unjust because they cannot be fought without endangering non-combatants (The Open University, 2022b). Contingent Pacifism accepts that violence can become morally permissible, however, but only when advances in technology make it possible to target precisely those who are liable to be harmed.

The Fog of War

The fine-grained approach versus the rough-grained approach faces strong objections from the fog of war concept. This view holds that even if May’s position is morally correct, it might not be helpful in guiding the actions of soldiers on the battlefield. In conditions of imperfect knowledge, the argument goes, it would be difficult for combatants to (a) identify with any degree of precision who they should kill, and (b) figure out the rules of war that can be carried out (Pike, 2014, p. 76). Another objection concerns May’s claim that immunity from being killed varies over time and that soldiers can be attacked only when they pose a direct threat.

Arguably, threatening involves a first-order threat and a second-order threat. For example, a naked soldiers may not pose a direct, first-order threat, but a second-order threat: “a non-threatening soldier I do not shoot may well go on to shoot me later … Perhaps people who pose second-order threats are liable to be killed” (Pike, 2014, p. 77). Moreover, the naked soldier example reveals a narrow conception of what poses a threat, according to Helen Frowe (2022) who argues that this conception should be widened enough to include not just armed forces, but civilians who contribute to the war effort, such as those working in munitions factories or those providing food and medical supplies for combatants. The problem with Frowe’s ?argument is that it is going to include many civilians, not to mention that many of them may permissibly be killed as a form of collateral damage – i.e., the damage or harm that happens as a “side-effect” or “unintended effect” of military operations (The Open University, 2022a).??

The Doctrine of Double Effect ??

Collateral damage invokes the doctrine of double effect (DDE), which says that there is an important?moral difference between the effects of an action that are intended and the side-effects of an action that are not intended, but are foreseen (Pike, 2014, p. 79). According to the DDE, sometimes it is permissible to cause harm as a side-effect of achieving a good result, but it is impermissible to cause such harm to achieve the same good result: “In the permissible case, the first harm is merely foreseen, but in the impermissible case the harm is intended” (The Open University, 2022a).

The DDE plays an important role in the political and military thinking about war. Suppose, for example, that a munition factory that is close to a school has been targeted and, as a result, some children were killed. The offensive side may say: Look, we are targeting the military supplies of the enemy and the harm that befell the children was foreseen as a side-effect, but as long as we were successful in destroying the munition factory, then it is permissible to bring about these side-effects. Walzer (1977) thinks that the DDE is a way of reconciling the principle of non-combatant immunity with the legitimate conduct of military activity. Perhaps the motive of adopting the DDE is to evade being in a Contingent Pacifist position. ??

Conclusion

The debate over the moral status of combatant is complex and there is no easy answer. The standard view of the Just War Tradition is that combatants on the unjust side in a war can fight justly if they follow the JiB principles. By contrast, the revisionists think that unjust combatants cannot follow the JiB principles. The MEC doctrine, as advanced by Walzer, holds that combatants are morally equal, even if only one side is fighting a just war. McMahan rejects the MEC doctrine on the grounds that it does not differentiate between material non-innocence and moral non-innocence. However, it is questionable what combatants can reasonably be expected to know, given their limited knowledge of morality and political issues, according to the epistemological argument. Similarly, the voluntariness argument defends the MEC doctrine, arguing that when both just and unjust combatants join the army, they voluntarily surrender their right not to be killed. McMahan and Hurka offer counter responses to the objections of the epistemological argument and the voluntariness argument, respectively.

The distinction between legitimate and illegitimate human targets, as explicated by the principle of non-combatant immunity, is elucidated by the naked soldier example. For Walzer, soldiers should stick to their military duty and overcome their uneasiness about killing in war. May disagrees and argues for a fine-grained approach, rather than a rough-grained approach. However, May’s position is not conducive to guiding the actions of soldiers on the battlefield, given that threatening involves a first-order threat and a second-order threat. Moreover, the naked soldier example reveals a narrow conception of what poses a threat. Perhaps this conception should be widened enough to include civilians who contribute to the war effort, according to Frowe. Finally, the DDE is based on the argument that it is permissible to cause harm as a side-effect of achieving a good result, but only if the harm is foreseen, not intended.?

References

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