Jus in bello (I): How wars should be fought

Question 1

I. Introduction to jus in bello

Answer 1

 Late development compared to jus ad bellum (XVth-XVIth century)
 Before: idea of just/virtuous/religious combatant
 Raymond of Penyafort: “The person engaged in war] must be a secular, for whom it is permitted to shed blood, and not a cleric, for whom it is prohibited unless under necessity” (Summa de casibus poenitentiae, 1224-6)
Importance of the technological evolution + intensification of warfare

Question 2

The importance of history: jus in bello

Answer 2

“Much contemporary just war theorizing treats the matter of limited conduct in war as if it were solely intentional, with the result that in the face of technological advances in war-fighting that overwhelm the intention-based limit, all that is left – as we see clearly in the argument of modern war pacifism – is to say that war in the present period is inherently immoral”
James Turner Johnson, Ethics and the Use of Force: Just War in Historical perspective, 2011

Question 3

The discrimination rule - noncombatant immunity

Answer 3

“The valiant and gentleman at arms ought to keep himself as much as they can that they destroy not the good simple folk”
Christine de Pisan, The Book of Fayttes of Armes and of Chivalry, 225
Two traditional justifications:
* Civilians are innocent
* Civilians are harmless

Question 4

A threat to discrimination: the development of aerial warfare

Answer 4

 WW1: Gotha bombers et Zeppelin against British cities
 After WW1: development of air power as institution: to be
distinguished from the Navy
 Idea: victory through the control of airspace

Question 5

Bombing strategies with Robert Pape: Bombing to Win: Air Power and Coercion in War., 1996

Answer 5

 Three key elements: timing, munitions, targets
 Punitive strategy: Douhet Model: aim for the civilians in order to
break the enemy’s will. Guernica; London, Dresden, Tokyo (100 000).
 Denial strategy: target precisely key infrastructures: communication centers, industrial facilities. American during WWII, Tidal Wave II
 In all situations: aerial warfare alone does not work

Question 6

Contemporary bombing strategies

Answer 6

 The idea is still alive: heavy dependence on air power, creation of no- fly zones in Libya and in Syria
 With adaptations: lighter loads, attempts to reduce civilian casualties, development of efficient air defense systems
 Strategically: emphasis on precision and decapitation strategy: drones and targeted killings

Question 7

Precision bombing: the ethics of armed drones

Answer 7

Ethical aspects:
1) Lower risk for pilots and troops on the ground
2) Better chance to meet the requirement of noncombatant immunity
3) The comeback of “secret wars”/reason of state?
BUT “the US government’s faith in drones’ proportionality and discrimination has induced the US to undertake more frequent and riskier strikes, thereby increasing the likelihood of the collateral damages drones are praised for preventing” (Jennifer Welsh, The Morality of Drone Warfare, 2015)

Question 8

A moral responsibility to target military objectives

Answer 8

Thomas Nagel: “It may seem paradoxical to assert that to fire a machine gun at someone who is throwing hand grenades at your emplacement is to treat him as a human being. Yet the relation with him is direct and straightforward. The attack is aimed specifically against the threat presented by a dangerous adversary, and not against a peripheral target through which he happens to be vulnerable, but which has nothing to do with that threat”
Thomas Nagel, “War and Massacre”, 1972

Question 9

How to protect civilians from bombings?

Answer 9

• “Roof knocking”:
  Israel
  International coalition in Syria (2015)
• A political responsibility to protect your own population? Bunkers, Iron
  Domes…
• BUT heavy cost: 20 000 - 50 000 dollars to intercept a rocket with an
  iron dome
  1 Qassam rocket: up to 800 dollars
• The problem of accountability: http://www.forensic- architecture.org/case/drone-strikes

Question 10

The environment and noncombatant immunity

Answer 10

Depends on our environmental ethics, on how we value natural entities:
Derivative value: “deliberate destruction of the environmental setting upon which civilians depend for the satisfaction of their basic needs is itself a violation of their non-combatant status” (Reichberg and Syse, 2000), also the argument about the destruction of common property
Intrinsic value: natural entities should be granted non-combatant immunity because they are also innocent and harmless moral beings

Question 11

The requirement of proportionality

Answer 11

• Collaterally harming noncombatants (that is, harming them foreseeably, but unintendedly) is permissible only if the harms are proportionate to the goals the attack is intended to achieve
• “an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated” (Article 51(4b), first additional protocol to the Geneva Conventions).
• “The proper measure of proportionality in just war terms is not more versus less force but harm done against good done”, James Turner Johnson, Ethics and the Use of Force, 2011

Question 12

The four levels of the principle of proportion

Answer 12

• Political level: political leaders
• Strategic level: military leaders
• Theater level: military planners
• Tactical level: individual military action
  From David Fisher, Morality and War, Oxford University Press, 2011
  => See Walzer, Arguing about War, 2004, “Two kinds of military responsibility”: the “hierarchical responsibility of the officer”

Question 13

Proportionality and temporality

Answer 13

• Should the proportionality rule integrate long-term consequences of war?
• The case of land mines
• International campaign to ban landmines
• Ottawa treaty, 1997: “Determined to put an end to the suffering and casualties caused by anti-personnel mines, that kill or maim hundreds of people every week, mostly innocent and defenseless civilians and especially children, obstruct economic development and reconstruction, inhibit the repatriation of refugees and internally displaced persons, and have other severe consequences for years after emplacement”

Question 14

The environment and proportionality

Answer 14

• What about environmental destructions => a matter of temporality + spatiality
• The case of disproportionate weapons: chemical, incendiary, biological, nuclear weapons
• The case of disproportionate strategies: scorched earth tactics

Question 15

Necessity and all feasible precautions

Answer 15

“Take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects” (Geneva Convention, Article 57, 2(a)(ii))
1 - Killing must be the last solution on the battlefield (self-defense?)
2 - Evaluate the possibility to allow the killing of civilians if the risk is high/their protection is not possible (based on military necessity)
“How much risk to our own troops are we required to bear in order to minimize harms to the innocent?” (Seth Lazar, “War”) => a priority to the lives of civilians?
Necessity is both a limiting (last resort) and enabling (military necessity) principle

Question 16

Necessity as a limiting principle: last resort

Answer 16

“The epistemic situation of combatants in war is quite different from that of individual self-defenders in domestic society. Self-defenders respond to immediate threats to themselves or those around them. They have firsthand information about the provenance of those threats and the options for averting them. There is a direct causal link between their defensive action and the removal of the threat”, Seth Lazar, “War”, 2011
 There is an equal responsibility of combatants  Possibility for military ethics
 Self-defense?

Question 17

Necessity as an enabling principle

Answer 17

 Possibility for a justification based on operational efficiency/success
 The “fog of war” argument + difficult access to information
 Room for contextual moral judgements and personal evaluations of risks (vs moral absolutism – Kant vs Constant)

Question 18

Supreme emergency scenario

Answer 18

 ““Supreme emergency” describes those rare moments when the negative value that we assign – that we can’t help assigning – to the disaster that looms before us devalues morality itself and leaves us free to do whatever is militarily necessary avoid the disaster, so long as what we do doesn’t produce an even worse disaster”, Michael Walzer, Arguing about War, 2004, p40
 Example: 1941 bombing of German civilian areas by the Royal Air Force (pre-US involvement) vs the 1942 strategic bombing of Cologne (Operation Millenium)
 Two conditions
1) The situation must be desperate (struggle for survival) 2) The military action must be overwhelming and efficient

Question 19

Discrimination and necessity

Answer 19

“It is never lawful to kill innocent people, even accidentally or unintentionally, except when it advances a just war which cannot be won in any other way”
Francisco de Vitoria, “Question 3: What May be Done in a Just War”, On the Law of War, (1557)
=> Connection between jus ad bellum and jus in bello

Question 20

Emergency ethics

Answer 20

Exceptional threats create a bridge between jus ad bellum and jus in bello: just cause conditions jus in bello
- This bridge is theorized by Walzer as supreme emergency
- Imminent unjust threat
- Loosing would have huge consequences on humanity
- The action undertaken must be an overall positive effect