The Ethics of War

1. The Ethics of War Spring 2007

2. Main normative questions • When, if ever, is resort to war justified? • What can we permissibly do in war? • Who are responsible for, and in, war? • What duties can states legitimately impose on their citizens?

3. Methodological questions • The moral status of the norms of war (war convention) • Two levels of principle • Analogical reasoning • Two levels of war (methodological and normative collectivism/individualism)

4. Moral status of the norms of war ”I propose to call the set of articulated norms, customs, professional codes, legal precepts, religious and philosophical principles and recirpocal arrangements that shape our judgments of military conduct the war convention.” “The terms of our judgments [on war] are most explicitly set forth in positive international law” (Wars: 44).

5. Conventionalism The laws of war are “taken to reflect, embody or give effect to fundamental moral distinctions and considerations” (Wasserstrom 1986: 396)

6. Two levels of principle • Principles of regulation (conventions, codes of conduct, law) • Principles of evaluation (“deep morality”, e.g., human rights)

7. Analogical reasoning • The domestic analogy • Self-defence • Punishment

8. Analogical reasoning: ex • (1) In the course of a bank robbery, a thief shoots a guard reaching for his gun. The thief is guilty of murder, even if he claims that he acted in self-defence. Since he had no right to rob the bank, he also had no right to defend himself against the bank’s defenders (…) The idea of necessity does not apply to criminal activity: it was not necessary to rob the bank in the first place. • (2) In the course of an aggressive war, a soldier shoots another soldier, a member of the enemy army defending his homeland. Assuming a conventional fire-fight, this is not called murder; nor is the soldier regarded after the war as a murderer, even by his former enemies. The case is in fact no different from what it would be if the second soldier shot the first. Neither man is a criminal, and so both can be said to act in self-defence. (MW: 128)

9. Two levels of war • Individual level • Collective level

10. The legalist paradigm • There exists an international society of independent states • This international society has a law that establishes the rights of its members – above all the rights of territorial integrity and political sovereignty • Any use of force or imminent threat of force by one state against the political sovereignty or territorial integrity of another constitutes aggression and is a criminal act • Aggression justifies two kinds of violent response: a war of self-defence by the victim or a war of law enforcement by the victim and any other member of international society • Nothing but aggression can justify war • Once the aggressor state has been militarily repulsed, it can also be punished (Wars: 61-63).

11. Jus ad bellum and jus in bello • JAB: When (if ever) is resort to armed force justified? • JIB: What are the rules governing right conduct in war?

12. Jus ad bellum-criteria • Just cause • Right intention • Legitimate authority • Last resort • Reasonable hope of success • Proportionality • Open declaration

13. UN Charter Paragraphs 42 and 51 of the UN Charter outline the conditions for when use of military force may be legal. • § 42 states that: Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations. • § 51 states that: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.