Search Results

Chapter 7 focuses on the principle of non-combatant immunity, in the context of military asymmetry between belligerents. Wars are often asymmetrical both militarily and morally: that is, weaker belligerents (from a military point of view) are now increasingly resorting to means of warfare which are in violation of the rules of jus in bello (most notably the deliberate targeting of innocent non-combatants), and are exploiting their adversary's unwillingness similarly to violate those rules. Asymmetrical wars are of particular concern for the cosmopolitan theory of the just war which this book defends. For the requirement of legitimate authority as reinterpreted in Chapters 3 and 4 confers the status of lawful combatants and/or belligerents on small groups of individuals, indeed individuals as such — actors, in other words, who are unlikely to be in a position to further their ends by conventional means. The chapter scrutinizes three tactics which weaker belligerents typically employ: the direct targeting of non-combatants (terror-bombing), the use of non-combatants as human shields, and the use of deception. The chapter argues that terror-bombing is generally impermissible, that the use of human shields is sometimes permissible, and that deceitful tactics are largely unproblematic from a moral point of view. It examines and rejects the view that belligerents act unfairly to the enemy by using those tactics even when they have a just cause.

In the 1990s, Osama bin Laden observed proudly that the Afghan jihad against the Russians was unstained by the blood of innocents. Yet, since 1993, civilians have been al‐Qaeda's chosen targets. This chapter explores issues raised by al‐Qaeda's conduct during its war against the United States in the light of Islamic ideas about jus in bello. The first section of this chapter briefly introduces the jus in bello tradition in Islam. The second section discusses the legitimacy of suicide attacks and the place of martyrdom in the Islamic tradition. The final section examines bin Laden's attempts to overturn the robust Islamic protections for civilians in war. Bin Laden himself subscribes to the principle of non‐combatant immunity and employs it in levelling virulent criticism against the US's policies—yet his acceptance of the principle leads him into an unclear and uncomfortable moral position with regard to al‐Qaeda's attacks.

Examining questions of jus in bello, this chapter begins by applying the principles of proportionality and discrimination to the invasion of Iraq. The analysis then focuses on the Bush administration's justifications for the treatment of ‘non‐lawful combatants’ at Guantanamo Bay. Using the logic of ‘supreme emergency’, alleged terrorists were stripped of Geneva Convention protections because the defensive just cause was presented as unusually urgent and the stakes were said to be civilizational. First‐order principles such as the prohibition against torture were qualified by the emergency of the jus ad bellum, thus rendering supposedly absolute human rights contingent upon the state of the world. The Bush administration's ‘choice of evils’ strategy was critiqued by other lawyers, governments, and human rights groups worldwide, as well as by members of the Bush administration's Department of State.

This chapter defends the moral importance of an intervener's fidelity to the principles to jus in bello (principles of just conduct in war). It begins by outlining the particular principles of ‘external jus in bello’ that an intervener should follow (focusing largely on discrimination and proportionality). It draws on Jeff McMahan's work and the nature of humanitarian intervention to claim that these principles should be highly restrictive. The chapter then asserts two principles of ‘internal jus in bello’. The second section considers more broadly the moral underpinnings of the principles of jus in bello. It claims that consequentialist justifications of these principles cannot fully grasp their moral significance and particularly the difference between doing and allowing. The final section considers the ‘Absolutist Challenge’—that the principles of jus in bello defended are too important and consequently render humanitarian intervention impermissible. After rejecting the doctrine of double effect as a solution to this challenge, the chapter invokes the scalar account of legitimacy to respond to this objection.

The principle of non‐combatant immunity forbids deliberate attacks on civilians. Yet civilians are regularly killed in war. So are all wars unjust? Just‐war commentators have resisted this conclusion, distinguishing between intended and foreseen consequences. The role of double effect is examined both in just‐war thinking and in supporting moral absolutism. Double effect marks an important distinction, but this is not sufficient to support moral absolutism. Other gradations of mental state are also relevant to the attribution of moral responsibility. Absolutism oversimplifies the nature of moral reasoning and leads to implausible conclusions. The principle of non‐combatant immunity cannot be held absolute. But to minimize the suffering caused by war there are strong reasons for holding it as near absolute a principle as we can. The application of the principle is examined against two case studies: the 2008–9 conflict in Gaza and NATO air operations in Kosovo in 1999.

Many people reject equality of combatants, and non-combatant immunity, as moral matters. They think that it is normally wrong to kill just combatants, and sometimes permissible to kill some non-combatants. Many with this view also think that their moral views should not be reflected in the law. The main arguments that have been given for this view are based on the incentives that combatants would have were law to reflect morality. This chapter argues against these views, suggesting that there are other ways to alter the incentives given to states and combatants that do not rely on altering substantive law.

Chapter 5 tackles wars of humanitarian intervention, raising a number of issues which normative accounts of self-defensive wars do not address. First, any argument in favour of the right to intervene must set out the conditions under which regime B forfeits its right to govern over community B and, thereby, its right not to be attacked by A. Second, whereas self-defensive wars raise the issue of the right to kill in self-defence, humanitarian wars also raise that of the duty to kill in defence of others. The aim of the chapter is four-fold: to provide an argument for the right to intervene, to defend the duty to intervene, to offer an account of whose right and whose duty it is, and to tackle the serious normative difficulties raised by the fact that intervening forces not only kill combatants who are not themselves complicitous in the often egregious rights violations which provide interveners with a just cause, but also kill a number of those victims on whose behalf the war is waged. The chapter also addresses the question of the grounds upon which interveners can shift the harms of the war away from them and onto the intervention's beneficiaries.

The principle of non-combatant immunity (PNI) holds that it is impermissible to intentionally target non-combatants in war, even if they belong to the ‘unjust side’ of a war. This principle is traditionally defended by the claim that non-combatants are materially innocent: that, unlike combatants, non-combatants do not threaten. But this view is prima facie implausible. Non-combatants often contribute to their country’s war effort. More recent defences of the PNI therefore seek to show that a non-combatant is not liable to be killed even if she contributes to her country’s war effort. This chapter argues that these attempts to defend non-combatant immunity are unsuccessful and suggests that it is a mistake to seek protection for non-combatants by showing that they are not liable to defensive killing. Non-combatants who contribute to an unjust war usually are so liable, since they are morally responsible for unjust threats.

Chapter 4 turns to instances where individuals' rights are violated by victims' own regime — in other words, to civil wars. The chapter shows that civil wars—which, incidentally, are consistently overlooked in the philosophical literature — bear scrutinizing at the bar cosmopolitan justice. It argues that if a given rights violation constitutes a just cause for an interstate war, then it also constitutes a just cause for a civil war — though whether the war is interstate or intrastate can have a bearing on the degree to which the war meets other requirements for a just war. The chapter then revisits a thesis which it began defending in Chapter 3, to the effect that individuals in their private capacity may hold the right to wage war. Here it argues, more incisively, that it is not a necessary condition for all wars to be just that they be waged by state-actors — which thus opens the door (contra some important strands within the tradition) for the view that a civil war can be just on the side of the insurgents. The chapter closes with some comments on agents' liability to being killed in civil wars.

Chapter 3 claims that violations of subsistence rights (to the material resources we need to lead a minimally decent life) provide victims with a just cause for war, partly because severe mass poverty undermines collective interests in collective self-determination, but also on the deeper grounds that threats to one's life, of which starvation is one, warrant defensive killing. The claim holds not merely when the rights violations take the form of a wrongful action, but also (more controversially) when they take the form of a wrongful omission. Having thus expanded on the account of just causes for war offered in Chapter 2, Chapter 3 makes a first foray into the issue of legitimate authority, and argues that the right to wage a subsistence war is held not merely by states whose populations suffer unjustly from severe poverty and which are not themselves responsible for that predicament, but also (controversially) by responsible states as well as by victims themselves. The chapter ends with an account of the grounds upon which individual affluent members of affluent communities who are derelict in their duty to the very poor are legitimate targets in war. It argues that some of those members are not protected by the principle of non-combatant immunity.

Chapter 3 examines in detail the concept of direct participation in hostilities (DPH). This chapter looks at the history and development of the concept of DPH as an exception to non-combatant immunity. It also analyses the attempts to determine the parameters of DPH, from before its first explicit iterations in the Additional Protocols, to the Israeli Supreme Court Case on targeted killings. The chapter will culminate with an analysis of the most recent attempt to define DPH, the International Committee of the Red Cross Interpretive Guidance on Direct Participation in Hostilities, and examines the international legal and political reception to the Interpretive Guidance.

The principal way international society has sought to influence vulnerability is by formally differentiating between various concepts of violence, as in the Geneva Conventions. Essential, hitherto, to regulating political violence has been a prevailing concept based on the equality of belligerents. Moreover, since war was considered an interstate activity, this equality was logically guaranteed by the very sovereign equality thought to attach to all states. This equality was complemented by the doctrine of non-equality in the proper targets of warfare: the principle of discrimination between combatants and non-combatants. Alongside its fundamental concepts, the laws of armed conflict specify the categories and conditions that surround their operationalization, determining when and where certain classes of people are to be considered legitimate targets of violence. International society has thus established a normative hierarchy of violence that reflects its own values and interests. This now faces many challenges, both to its concepts and categories.

Much recent debate about the morality of conduct in warfare has focused on the question of unintended but foreseen civilian casualties. Following Walzer’s crucial revision of the Doctrine of Double Effect, the question is often formulated as ‘Do soldiers have a duty to incur risk in order to protect the lives of noncombatants?’ but this prevalent formulation is highly misleading and morally corrosive, supporting a stance dubbed ‘Soldiers’ Safety First’. The chapter begins by contrasting two scenarios: Humanitarian Aid and Free-Fire Zone; speaking of ‘protecting civilian lives’ is appropriate to the first, but confusing and improper with regard to the second. Declaring a free-fire zone where the shooting is likely to kill noncombatants is immoral because the soldiers enhance their own safety by illicit killing—not by any failure to protect. The chapter examines other types of combat scenarios, including classical ‘Proximity’ cases (including the permission to harm ‘Human Shields’) and those of ‘Force Protection’, considering the ways that commanders and planners can and should approach these morally complex situations. This lends further support to the main conclusion: talk of ‘protecting opposing civilians’ is irrelevant for most combat situations. Thus the ‘Soldiers’ Safety First’ approach should be rejected. Individual soldiers as well as the army as an organization are required to continually balance the lives of our soldiers and the lives of noncombatants whom we are at risk of killing.

This chapter reviews the literature addressing the challenge of radical asymmetry, with a particular focus on gaps in the research. The most significant of these is the consistent failure of existing sources to engage the principle of reciprocal risk in a theoretically and historically rigorous way. This chapter then outlines the methodological response of this book. It will first determine the extent to which—amidst the change and variance of the history of war—a thread of reciprocal risk has endured as an underpinning assumption in both the warrior ethos and Just War Tradition. Alongside this, the book will undertake a more specified analysis of the asymmetry-challenges of military sniping, manned aerial bombing, and UAV-exclusive violence.