Thinking about “just wars” Flashcards
Jus ad bellum
- Legitimate authority: what about non state actors
- Public declaration : ultimatum? followed only rarely => today norms of accountability require states to justify publicly their use of force at least ex post.
- Right Intention: how do you assess intentions?
- Proportionality : the goods vs. the evils of war
- Chances/Probability of success : goals?
- Last resort : alternative to war?
- Just cause: Self-defense / Responsibility to protect?
Jus in bello principles
- Distinction: combatant vs. Civilians vs. Civilians taking a direct part to hostilities
- Military necessity: military defeat + legitimate military objective
- Proportionality: “the expected incidental harm to civilians or to civilian objects (‘collateral damage’) should not be excessive in relation to the concrete and direct military advantage anticipated”
- Turkel commission (The Public Commission to Examine the Maritime Incident of 31 May 2010)
The Gaza flotilla raid, 2010
Israeli raid against six civilian ships of the Gaza Freedom Flotilla (Mavi Marmara)) on May 31st 2010 in international waters in the Mediterranean Sea. Nine activists killed in the raid.
Turkel Commission: both the blockade and the raid are legal
UN Palmer Report in 2011: blockade legal, raid disproportionate Israel offered 20 M to Turkey as compensation
1st phase: Christianity and jus ad bellum
- Augustine of Hippo, City of God (V century)
“They who have waged war in obedience to the divine command, or in conformity with His laws, have represented in their persons the public justice or the wisdom of government, and in this capacity have put to death wicked men; such persons have by no means violated the commandment, “Thou shalt not kill.” “ - Aquinas, Summa theologica (13th century)
3 criteria: right authority ; just cause ; right intention - God is the moral authority : the decision to resort to war does not depend on the freedom of the actors but on God’s will
- BUT: difference between just war and holy war
The Doctrine of Double Effect: Thomas Aquinas
1) Act itself = morally good or indifferent ;
2) Bad effect as unintended (but foreseen?) ;
3) Good effect = produced directly by the action, not by the bad effect. = You cannot use the bad means to a good end ;
2) The good effect must be sufficiently desirable to compensate for the allowing of the bad effect
=> The doctrine of collateral damages
2nd phase: jus gentium and international society
- Alberto Gentili, Iure Belli; 1589
- Hugo Grotius, Laws of War and Peace, 1635
- Emir de Vattel, The Laws of Nations, 1758
- Jus naturalism = natural law replaces God => an authority to ground limits
- The Westphalian Peace (1648) : a world of sovereign ? The international system. A focus on institutions, procedures (jus gentium, law of nations)
3rd phase : Just War in a multilateral world
- Moral authority : public reason/accountability?
Focus on - Institution design : global justice : ICP ..
- Reputation : Russell-Sartre tribunal, 1967 Private initiatives : boycotts…
- Collective deliberation by international actors
An example of JW vocabulary: Russell-Sartre
« Has the Government of the United States committed acts of aggression against Vietnam under the terms of international law?
Yes (unanimously).
Has there been, and if so, on what scale, bombardment of purely civilian targets, for example, hospitals, schools, medical establishments, dams, etc?
Yes (unanimously). (…) »
Russell Tribunal on Latin America focused on human rights violations in dictatorships of Argentina and Brazil (Rome, 1973), on Chile’s military coup d’état (Rome, 1974–76, on Iraq (Brussels, 2004), on Palestine (Barcelona, 2009–12), on East Ukraine (Venice, 2014)
John Kelsay, “Just War Theory as a social practice”
« (…) I present a view of just war thinking as a social practice, arguing that of the several purposes just war thinking serves, political wisdom has pride of place; the authority of the just war framework rests in its ability to illumine policy; and good just war thinking involves continuous and complete deliberation, in the sense that one attends to all the standard criteria at war’s inception, at its end, and throughout the course of conflict. »
John Kelsay (2012) “Just War Thinking as a Social Practice”, Ethics and International Affairs.
Contemporary debate: Traditionalists vs. Revisionists
Michael Walzer
* Independence jus ad bellum/jus in bello
* Moral equality of combatants
* Discontinuity war/everyday life
Jeff McMhahon
* Dependence jus ad bellum/jus in bello: just cause
* Moral inequality of combatants
* Continuity everyday life/war
Revisionist argument: Jeff McMahan
Twofold:
1- There is a continuity between the morality of everyday life and the morality of war;
2- There is no moral equality of combatants. It is impermissible for unjust combatants to kill just combatants on the ground of self-defense, because there is no independence of jus ad bellum from jus in bello.
“I think that just war is police action of a sort while unjust war is criminal action of a sort.” McMahan, J. (2006) “Liability and collective identity: A response to Walzer”, Philosophia, Volume 34, Issue 1, January.
Application : munition workers?
Application: what about scientists working on nuclear weapons?
T. Meisels “Assassination ? Targeting nuclear scientists”, Law and
Philosophy, 2014
* 5 Iranian nuclear scientists dead in 2007: under JW, is there a form of
liability?
* Traditionalist: no. They are civilians
What about munition workers ?
* Revisionist: yes if responsible for an unjust threat
How to individually assess the justice of a cause ?
- The problem of epistemic bias
- The problem of coercion
- But: legal obligation not to follow an unlawful order
- EX: Firmin Mahé - Ivory Cost (Opération Licorne) killed by a soldier May, 13, 2005 Trial in 2012: 4 soldiers: three guilty, one not guilty (general)
Deep morality of war vs. Laws of war
What is right in the deep morality level is different that what ought to be in international politics
The critics of the deep morality vs. Laws of war => to threaten the framework?
Legality vs. legitimacy vs. justification
- An historical bound: law gains its autonomy from morality with political modernity International law: tribute to Grotius, Gentili…
- A practical bound: international law: variety of interpretations. No single authority => leaves room for philosophical discussions!
- A conflict between legality and legitimacy? Aquinas: natural law prevail over positive law
- Grotius : a war violating natural law can be legal (even if illegitimate)
- Prudence as a political value
- McMahan : towards a minimalist global state ? Or an epistemic court?
