Jus in bello (II): The ethics of weapons

Question 1

Introduction (1): Weapons of mass destruction

Answer 1

 Categories of weapons: conventional weapons vs. weapons of mass destruction
 Is this distinction robust ? It is meant to consider WMD as weapons that can cause destruction and wreak havoc to a degree heretofore unprecedented in military history
 Weapon of mass destruction => a cultural/social/political category
 How to classify weapons ? Their use ? Their characteristics ?
 Traditionally, WMD are nuclear, chemical, biological or radiological

Question 2

Introduction (2): a brief history of years of moral arguments

Answer 2

First debate: 1945 -1965
1945: Philosophical, Camus’s article in Combat
1951: Catholic church, Pius XII Christmas address
1955: Scientists, Russel-Einstein Manifesto + Pugwash Conferences => Humanity wakeup call
Second debate: 1980: how to avoid escalation and build deterrence? Third debate: after the Cold War: how to rethink nuclear power?

Question 3

I. Jus in bello and technological change

Answer 3

 “Intentionality alone has never sufficed to impose limits on conduct in war, but rather what has worked is a mixture of intentionality with other factors, some technological, some political and/or social in nature”, James Turner Thompson, Ethics and the Use of Force, 2011
=> Is jus in bello relevant to talk about modern weapons?

Question 4

The technological evolution of warfare in Europe

Answer 4

 Superiority of cavalry vs infantry (Middle Ages)
 Supremacy of infantry + archery vs cavalry (Hundred Years War)
 Triumph of the artillery in the XVth century (siege of Constantinople, 1453; Battle of Marignano 1515)
 Increased use of firepower (Napoleonic wars)
 Mechanized warfare/naval warfare/aerial warfare (WW1/WW2)
 Space warfare, military logistics and armed interventions (Cold War)
 Cyberwarfare/drones (XXIst century)
=> An increased distance?
=> Do we need a new ethical paradigm? Technological revisionism

Question 5

The growing importance of the doctrine of double effect

Answer 5

“Nothing hinders one act from having two effects, only one of which is intended, while the other is beside the intention. … Accordingly, the act of self-defense may have two effects: one, the saving of one’s life; the other, the slaying of the aggressor.” (Aquinas, Summa Theologica (II-II, Qu. 64, Art.7)
 Difference between intended and accidental effects
 The reasoning on collateral damages in modern warfare

Question 6

Technology and ethics

Answer 6

“Modern technology has introduced actions of such novel scale, objects, and consequences that the framework of former ethics can no longer contain them”
“Act so that the effects of your action are compatible with the permanence of genuine human life“
Hans Jonas, The Imperative of Responsibility, 1979
=> An increased technological advantage implies a new form of responsibility on the battlefield

Question 7

II. Chemical and biological weapons: applying the just war criteria

Answer 7

 The Kaffa siege (Crimea -1346): Mongols used the soldiers’ dead bodies to spread diseases in the city – beginning of the Black Plague in Europe (45-50% of the European population died)

Question 8

Gentili, just war and the use of poisons

Answer 8

Poisons are “unjust and dishonest weapons”: they promote “duplicity over force” (military ethics)
The poisoning of wells and water resources is unjust because
 It damages the environment on the long run (after the war) - disproportionate
 It can potentially kill innocent people – indiscriminate Alberico Gentili, De jure belli libri tres, 1598

Question 9

Chemical and biological weapons

Answer 9

Chemical weapons: “any chemical agents of warfare – chemical substances, whether gaseous, liquid, or solid - which might be employed because of their direct toxic effects on man, animals, and plants” (Resolution 2603A – 1969)
Biological weapons: “any biological agents of warfare – living organisms, whatever their nature, or infective material derived from them – which are intended to cause disease or death in man, animals or plants, and which depend for their ability to multiply in the person, animal or plant attacked” (Resolution 2603A – 1969)
Difference: the action/effects of the toxic agents

Question 10

Just War and International Humanitarian Law

Answer 10

 Proportionality?
 Discrimination?
 Necessity?
In International Humanitarian Law:
 1925 Geneva Protocol (after WWI – tear gas, chlorine gas)
 1972 Biological Weapons Convention (complete prohibition in September 2018)
 1993 Chemical Weapons Convention
=> Clear intention to ban these weapons from the battlefield

Question 11

III. Incendiary weapons

Answer 11

Use of Greek fire by a Byzantine ship, 821 (XIIth century illustration)

Vietnam war, Napalm attack on the village of Trang Bang, June 8, 1972

Question 12

Fire and wars of destruction in the JWT

Answer 12

 “So too when punishment is lawful and just, all the means absolutely necessary to enforce its execution are also lawful and just, and every act that forms a part of the punishment, such as destroying an enemy’s property and country by fire or any other way, falls within the limits of justice proportionable to the offence”
Grotius, The Rights of War and Peace, 1625
 No negative judgement (vs poisons)
 Conventional weapon (“fire or any other way”)

Question 13

The just war criteria and IHL

Answer 13

 Proportionality?
 Discrimination?
 Necessity?
IHL: 1981 Convention on Certain Conventional Weapons, Protocol on Incendiary Weapons
 Incendiary weapons are still authorized if they only have effects on military targets
 They are not unjust weapons, but can be used unjustly

Question 14

An example of unjust use: scorched earth policies

Answer 14

“It is prohibited to attack, destroy, remove, or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies, and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive”, Article 54 of Protocol I of the 1977 Geneva Conventions
 Fire = possibility for mass destructions (vs proportionality/discrimination)  Necessity? Double effect?

Question 15

IV. Nuclear weapons and just wars

Answer 15

 Jus ad bellum: Is there a sufficient cause to use nuclear weapons?  Jus in bello:
- Is it a discriminate weapon?
Tactical nuclear weapons / strategic nuclear weapons
- Is it a proportionate weapon? Collateral damages Environmental damages
 Jus post bellum: Are nuclear weapons so terrible and destructive that they prevent a peaceful reconstruction?

Question 16

Is there a just use of nuclear weapons?

Answer 16

 No. Gunther Anders. Hiroshima est partout (Hiroshima is everywhere). 1982. In favor of disarming => don’t believe in deterrence because:
We cannot leave the choice to political leaders
criticism of technique and of the « monstrous solistique »
« En d’autres termes, en tant qu’ « extermination », la guerre en tant que processus stratégique est transformée en un processus purement technique, par ou la guerre est simultanément annulée en tant que telle. Le chasseur d’insectes qui extermine les moustiques sans avoir à compter avec une résistance ne mène pas une guerre : il se contente d’accomplir une tâche technique. »
=> War becomes a pure technological process

Question 17

Is there a just use of nuclear weapon ? (2)

Answer 17

 Yes, under certain conditions. Darrell Cole. Humanity can survive to nuclear war Scenarios of a just use of nuclear weapon:
1) To destroy other weapons
2) To destroy target that are buried in the ground
3) To ensure a decisive victory
“A victory-denying strike is a response strategy that merely prevents an enemy from subsequent conquests rendering its force militarily incapable of further action or so weakening them that they become prey to other rivals.”

Question 18

To arm or to disarm?

Answer 18

“Some argue that the spread of these weapons cannot be stopped, cannot be checked -– that we are destined to live in a world where more nations and more people possess the ultimate tools of destruction. Such fatalism is a deadly adversary, for if we believe that the spread of nuclear weapons is inevitable, then in some way we are admitting to ourselves that the use of nuclear weapons is inevitable.
And as nuclear power –- as a nuclear power, as the only nuclear power to have used a nuclear weapon, the United States has a moral responsibility to act. (…)
I’m not naive. This goal will not be reached quickly –- perhaps not in my lifetime. It will take patience and persistence. But now we, too, must ignore the voices who tell us that the world cannot change. We have to insist, “Yes, we can.””
Barack Obama, Prague speech, April 5, 2009

Question 19

The cold analysis of Aron

Answer 19

1) Peace by fear? We should maintain a possibility for war
« En bref, c’est la guerre qu’il faut sauver, autrement dit la possibilité d’une épreuve de forces armées entre les Etats, et non la paix éternelle qu’il faut instaurer par la menace constante de l’holocauste thermonucléaire. »
1)
Peace by disarming? The problem of confidence
« Nul ne se fie à l’honnêteté d’un rival si le manquement à la parole donnée peut être récompensé par l’empire du monde. »
Peace by equilibrium? In favor of a policy of controlling weapons

Question 20

An unusual weapon? Nuclear power and deterrence

Answer 20

 Direct use vs. Indirect use
 What is deterrence?
- To abandon an action out of fear of foreseeable consequences;
- Is based on credibility of threat
- How to resolve this aporia = to produce nuclear weapons of precision into conventional weapons?

Question 21

Prevention, proliferation and JW

Answer 21

 Applying the jus in bello criteria: discrimination, proportionality, necessity
 Is there a moral justification to preventively strike a country trying to get nuclear weapon?
Ex: Osirak, 1981.