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2007, Wash. U. Global Stud. L. Rev.
Aggression has long been considered the preeminent international crime. Yet, the vast majority of agents involved in perpetrating this crime-the individual officers and soldiers who fight in aggressive warsare never held to account either in law or in broader moral terms. At Nuremburg, a decision was made to concentrate prosecutions on only the most senior leadership of the Nazi party and military. There was no attempt to prosecute lower ranking officers, ordinary soldiers, sailors, and airmen who had not themselves committed atrocities nor breaches of jus in bello.
Analysis, 2011
achievement of a just cause are morally impermissible and it is wrong to fight in a war that lacks a just cause. There are nevertheless many mitigating conditions that apply to the conduct of unjust combatants so that it is often inappropriate to blame them merely for participating in an unjust war. I also argue that there are various reasons why it would be wrong to hold them legally liable to punishment except for specific offenses identified as war crimes. I argue, in other words, that while the morality of war is asymmetrical between just and unjust combatants, the law of jus in bello should remain, at least for the present, neutral between them. But in general unjust combatants are not exempt from moral responsibility for their participation in an unjust war and are thus, unlike just combatants, morally liable to intentional attack. If the view for which I argue in the book were to become widely accepted, that could have a good effect of considerable practical significance. If people were to believe that it is seriously morally wrong to fight in an unjust war, many soldiers would become more reluctant to fight in wars they had good reason to believe were unjust. They would be more likely to refuse, on conscientious grounds, to fight in such wars, and this could make it more difficult for the rulers of states to initiate unjust wars. The fifth of the book's five chapters discusses the issue of civilian liability. The account of the morality of war that I defend implies that certain civilians can in principle be liable to attack. But I devote that last chapter to explaining why it very rarely licenses deliberate attacks on civilians. I will elaborate on those arguments in my responses to the following commentaries.
International Review of the Red Cross, 2009
The 'equal application' principle is that in international armed conflicts, the laws of war apply equally to all who are entitled to participate directly in hostilities, irrespective of the justice of their causes. The principle, which depends on maintaining separation between jus ad bellum and jus in bello, faces serious challenges in contemporary armed conflicts and discourses. Some variations of the principle may be inevitable. However, it has a firm basis in treaties and in historical experience. It is the strongest practical basis that exists, or is likely to exist, for maintaining certain elements of moderation in war. The rival proposition-that the rights and obligations of combatants under the laws of war should apply in a fundamentally unequal manner, depending on which side is deemed to be the more justified-is unsound in conception, impossible to implement effectively and dangerous in its effects. Volume 90 Number 872 December 2008 * This article is a product of research under the auspices of the Oxford Leverhulme Research Programme on ' The Changing Character of War '. For comments on successive drafts I am grateful to participants in its workshop on Symmetry, Oxford, 23
This paper evaluates the moral equality of combatants according to the criteria of jus ad bellum and jus in bello. It identifies the precise point of disagreement in Michael Walzer and Jeff McMahan's dispute regarding the moral equality of combatants and offering a mediating position.
2019
War is an extreme human activity—not only because of the horror of war, but because of the severe emotional, physical, psychological, and moral strain it has on its combatants. Understanding war from the combatant’s point of view is hard enough without personally experiencing war. Without the direct experience of combat, an epistemic gap lies between one who knows what it is like and those lucky enough not to experience it. Consequently, the theoretical propositions of just and unjust conduct in war become difficult to support. I argue that just war theory and its tenets such as jus in bello, or just conduct in war, needs a thorough examination of combat experiences to define the principle with the reality of war in mind. For example, as a precept of moral responsibility in war, jus in bello is an abstract principle which can be supported by concrete historical examples if and only if the epistemic gap between the experience of combat and abstraction is bridged by a consideration of...
Much work in the ethics of war is structured around the distinction between jus ad bellum and jus in bello. This distinction has two key roles. It distinguishes two evaluative objects— the war 'as a whole', and the conduct of combatants during the war—and identifies different moral principles as relevant to each. I argue that we should be sceptical of this framework. I suggest that a single set of principles determines the justness of actions that cause nonconsensual harm. If so, there are no distinctive ad bellum or in bello principles. I also reject the view that whilst the justness of, for example, ad bellum proportionality rests on all the goods and harms produced by the war, the justness of combatants' conduct in war is determined by a comparatively limited set of goods and harms in a way that supports the ad bellum–in bello distinction.
Journal of Military Ethics, 2012
The law of nations may be deduced, fi rst, from the general principles of right and justice applied to the concerns of individuals, and thence to the relations and duties of nations. Justice Story 2 In the last chapter, we discussed jus ad bellum under the national defense paradigm, according to which only defensive war is justifi ed. Given the priority principle, which is part of this idea of just cause, the fi rst use of force is never justifi ed. 3 This understanding of just cause is different from that during much of the history of the just war tradition. In particular, the just war paradigm, which characterized the tradition through the seventeenth century, did not accept the priority principle, and aggression was not the only wrong that could justify war. In this chapter, we continue our discussion of jus ad bellum by examining whether there is a need to revise our account of just cause in ways more consonant with the just war paradigm. In recent decades, a number of wars have been justifi ed on humanitarian grounds. A humanitarian intervention is a war launched to rescue persons in another state suffering under a grave humanitarian crisis, such as genocide, mass enslavement, starvation, or ethnic cleansing, usually at the hands of their own government. Among the recent interventions 4 Sovereignty and human rights
Ethics of War: Shared Problems in Different Traditions
One of the oldest and most enduring images of war is that of the game of chess. Although chess is clearly an abstraction, it powerfully embodies a conception of a particular type of war and moreover, it is a conception that has significant moral content. On the chessboard, two equally configured forces, displaying clear and distinguishable uniforms, do battle on a bounded field and in strict accordance with rules that specify how conflict is to commence, how it is to be conducted, and how it is to be terminated.
International Affairs, 2011
The Constitution of the Criminal Law, 2013
Journal of Political Philosophy, 2008
I. THE CHALLENGE M ORAL responsibility for an unjust threat, or a threat of wrongful harm, is, I have argued, a basis of liability to attack in war. Uwe Steinhoff correctly observes that many acts of war by those who fight in a just war ("just combatants") threaten innocent people with wrongful harm. This, he claims, makes them morally liable to attack according to the criterion of liability I have defended. But if both just combatants and unjust combatants (those who fight without just cause) are morally liable to attack, so that each is permitted to attack the other, the doctrine of the moral equality of combatants, against which I argued in my earlier essay, is not only true but, embarrassingly, true on the basis of my own claims. This is a perceptive and important challenge that raises a number of issues that are important to understanding the morality of war. I am grateful to Steinhoff for raising them, and for providing me with an occasion to contribute to the discussion, and to defend and refine my position. The criterion of liability to attack in war that I have defended invokes the notion of a "wrongful harm." There are different ways in which harms inflicted by just combatants on innocent people may be wrongful. First, a wrongful harm may be one that is wrongfully inflicted, or inflicted by wrongful action. Just combatants might, for example, attack innocent people intentionally-for example, as a means of coercing their government to surrender-and to attack innocent people intentionally is generally conceded to be wrong, except perhaps in extreme conditions in which such an attack is necessary to avert a greater harm to the same people, or a much greater harm to other innocent people. Or just combatants might harm innocent people unintentionally, but recklessly or negligently-for example, by attacking a military target when this foreseeably causes harm to innocent bystanders that is unnecessary or disproportionate in relation to the importance of destroying the target. Second, a wrongful harm may be inflicted by action that is permissible, or morally justified. In such a case, the action that inflicts the harm is not itself *I am grateful to Christian Barry for illuminating comments on an earlier draft.
What principles should govern the conduct of war (jus in bello)? The answer is deeply contested in the just-war literature. Orthodox theorists argue for combatant equality and non-combatant immunity. Revisionist theorists reject both tenets, insisting that the moral status of those involved in war should track their personal responsibility for wrongdoing. We argue that these disagreements amount to “proxy battles”. First-order disputes about jus in bello are traceable to second-order disputes about (i) the appropriate site of principles of jus in bello and (ii) the feasibility constraints that theorizing about jus in bello should take into account. Regarding (i), orthodox theorists focus on the institutions that govern armed conflict, revisionists on individuals’ conduct. We evaluate both perspectives, and show that, holding a given site constant, the substantive disagreement between the two camps shrinks. Regarding (ii), orthodox theorists are happy to factor likely non-compliance into the design of principles of jus in bello, revisionists resist this move. We argue that, relative to the particular site for which each is theorizing, both stances are defensible. Institutional design should take account of more feasibility constraints than principles for individual conduct. Here, orthodox and revisionist stances turn out to be compatible.
The Oxford Handbook of Ethics of War.
The doctrine of the moral equality of combatants-we'll refer to it throughout this chapter as Equality-holds that combatants on either side of a war have equal moral status so long as they abide by certain norms governing how wars must be fought. Proponents of Equality distinguish sharply between the issue of whether the resort to war is justified and the issue of who may permissibly kill in war. There are constraints on what soldiers may do in war-they can become guilty of criminal offenses when they use unjust means in pursuing their war aims. However, that they are involved in an unjust war and even that they are fighting for an unjust cause is, as Walzer puts it, 'the king's business-a matter of state policy, not of individual volition'. 1 Their participation in the war is not something for which they can be held to account morally. The debates about Equality are closely related to other hotly contested issues, such as whether combatants on either side should have the same legal protections, and whether and how the moral distinction between combatants and non-combatants is justified. 2 In this chapter, we will set aside those debates to focus squarely on the moral justifications that can be offered for Equality, as well as the critiques of those justifications. * Many thanks to Seth Lazar for comments on an earlier draft of this chapter.
Kazan University Law Review, 2019
The aim of the article is to elucidate the issue of a universally accepted normative definition of the terms ‘jus post bellum’ and ‘armed conflict’ from the legal historical and legal philosophical perspectives. The main concept of just war theories is based on the human desire to control interracial aggression. It is known that the “morally justifiable war” based on a series of criteria is split first into two, and later into three groups: right to go to war (jus ad bellum), right conduct in war (jus in bello), and right after the war (jus post bellum). Jus post bellum approach appeared just after the Second World War. In the author’s opinion, jus post bellum is the most important part. The author’s task is to find a generally acceptable working definition, or at least a generally acceptable meaning of jus post bellum in the mirror of just war theories, and an armed conflict from the perspective of war and aggression, as well as to describe the historical evolution of the two classic parts of just war theories: just ad bellum and jus in bello. Keywords: just war theories, jus post bellum, just ad bellum, jus in bello, armed conflict, definition, war.
The history of mankind is beleaguered with periodic wars between nations and groups that resulted in massive devastation of human lives, property, environment and civilizations. The Second World War, for one, was the most destructive war ever recorded. In its aftermath, many scholarly thinkers and leaders began intense debate on the 'legal and moral' justifications of war, its prevention and the promotion of the just-war theory as an essential norm that regulates conflicts between modern states and other international actors. The theory is based on the spirit of righteousness of conduct, responsibility, proportionality of actions and the active promotion of peacemaking among groups in conflict. The main argument of this paper is whether the concept of 'just war' is feasible to provide an ethical and legal framework to understand the relationships between humans, groups and states in managing conflicts. To discuss the main argument, the article is divided into three sections. The first section delves into the ethical and legal debate over what constitutes a just war, especially drawing from duty-based and utilitarianism perspectives. The second part examines the interactions between humans (as subjects) and states (as authority), particularly concerning the perceived centrality of the state. The third part examines how the just-war theory is adapted and manifested in the globalized and interdependent world.
War has changed so much that it barely resembles the paradigmatic cases of armed conflict that just war theories and international humanitarian law seemed to have had in mind even a few decades ago. The changing character of war includes not only the use of new technology such as drones, but probably more problematically the changing temporal and spatial scope of war and the changing character of actors in war. These changes give rise to worries about what counts as war and thus what norms to use in evaluating a particular conflict. In this paper, I develop an argument that the changing character of war gives us reasons to take reductionist revisions of just war theory seriously. By reductionist theories of war I mean those revisions within the just war tradition that suggest that we can use ordinary peacetime interpersonal analyses of moral responsibility and liability to harm to decide what justice requires in times of war.
Daedalus, 2017
A central element of the dominant view of just war theory is the moral equality of soldiers: combatants have equal rights to wage war against one another and are entitled to certain protections if captured, without regard to which side's cause of war is just. But whether and how this principle should apply in asymmetric armed conflicts between states and nonstate groups is profoundly unsettled. I argue that we should confer war rights on fighters for nonstate groups when they are engaged in violence that has risen to the level of armed conflict, and when the state against which the war is being waged is not entitled to assert its monopoly on the legitimate exercise of force, either because 1) the nonstate group has established sufficient control over territory to assert its own governing authority; or 2) because the group is located abroad. Conferring war rights on nonstate fighters does not, however, permit them to engage in acts that violate the laws of war. Fighters who commi...
Journal of Political Philosophy, 2007
Recent scholarship in just war theory has challenged the principle of symmetrical application of International Humanitarian Law (IHL). This revisionist work, which is increasingly dominating the field of contemporary war ethics, rejects the idea that the rules of conduct of war (jus in bello) should be agnostic about the justice of the decision to go to war (jus ad bellum). Just wars are perceived to be inherently at odds with the principle of symmetrical application of IHL, which appears to create a hard choice between justice and legality. I show that this challenge to IHL is misplaced. It derives from a widespread view among just war theorists according to which only one side in a just war can be justified in using force. By looking closely at the nature of adjudication of just causes of war, I show that there can be cases of war in which both sides are justified in using force, and cases in which, though not objectively justified, both sides may be excused for fighting. On the basis of this understanding of jus ad bellum, I argue that the principle of symmetrical application of IHL in fact best reflects the uncertainty and complexity that should characterize the practical doctrine of jus ad bellum.
Choice Reviews Online, 2003
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