Topics in Moral and Political Philosophy War

Justice in war Jus in bello principles: concern the justice of conduct within war (which types of weapons may be used, who can be targeted, and under which circumstances certain amounts of force may be used). Jus ad bellum principles: establish whether a party has a just cause for war.

The orthodox view Michael Walzer: all combatants have the same moral status. Combatants retain their right to act in defence independently of the side for which they fight ↓ Provided that jus in bello principles are respected, all combatants have an equal right to fight, which is not affected by the justice of the cause pursued by their state. NB: This is what explains why combatants are liable to harm, whereas non- combatants are not (the so called “principle of discrimination”). The former but not the latter threaten others with harm.

A challenge to the orthodox view McMahan: “moral equality of combatants” relies on a fallacious symmetry between just and unjust soldiers. Posing a threat of harm is not sufficient to become liable to be killed. It is only when the threat is unjustified that liability to be killed in self-defence is triggered. ↓ It is not true that, as long as jus in bello principles are respected, all combatants have “an equal right to kill,” independently from the justice of the cause for which they are fighting. The justice of the cause makes a difference as to whether combatants can permissibly fight.

What should combatants do? Combatants must take responsibility for their actions and investigate whether the war they are required to fight is indeed just. Only if it is, do they acquire a right to kill. When combatants have reason to believe that the war they are ordered to fight is unjust, their duty is to disobey.

Problem with McMahan’s view McMahan’s view loses sight of the fact that combatants act as members of a political body. This has important normative implications with respect to the rights and duties they have, and these rights and duties make a difference as to whether they can permissibly fight. Walzer’s view is sensitive to these aspects but it overstates their force by completely disregarding the importance of the just cause. Acknowledging that combatants normally operate within a structure of political responsibilities is not enough to conclude that Rommel should not be considered a “willful wrongdoer, but a loyal and obedient subject and citizen” and that his obedience to Hitler wipes the crime from his hands.

David Estlund Combatants have a duty to obey the order to fight an unjust war when the order comes from a democratic state which is “duly looking after the question whether the war is just”. Combatants have a duty to ascertain that this condition is in place, but once they do, they must obey the order to fight and their “participation… is sanitized because [they are] following orders”. “Even though the victim is wronged by the unjustly warring side, the soldier on that side is nevertheless morally obligated (and so morally permitted) to follow all normally binding orders – those that would be binding at least if the war were just”.

The honest mistake to wage an unjust war The right to fight is not merely conditional on jus in bello principles being respected. Although combatants are not required to investigate the justice of the war (contra McMahan), they are required to check that their state is making an honest attempt to find out whether the war is just. Once it is clear that this condition is in place, combatants don’t need to worry about whether the war is in fact just. They acquire a right to fight simply because they have a moral duty to obey the order received. As long as combatants know that their state has made an honest attempt to respect jus ad bellum principles, their “participation in an unjust war is sanitized … because [they were] following orders”.

The epistemic function of democracy Democratic political institutions perform an important epistemic function, in that they tend to track morally correct courses of action. Commands issued by democratic political institutions tend to “get things right”, and thus will require their citizens to act in certain ways only when acting in those ways is morally mandatory (or at least morally permissible). NB: Sometimes democratic institutions will make mistakes. But people are likely to reasonably disagree as to whether it did.

Public acceptability principle Even when we reasonably disagree over a certain moral issue, there is a sense in which the outcome of a democratic procedure is acceptable to all of us, for the procedure through which the issue is decided is one that can be defended to all those subject to it. (Trial by jury) Combatants have a duty to obey the command to fight, provided that the decision to go to war has been taken democratically, even if a)they believe that the war is unjust (and therefore they will be killing innocents), and b)their belief is correct. In disobeying, a combatant would be claiming for himself a moral expertise that could not be justified to his fellow citizens, thereby placing himself above the results of the democratic process.

Excuses for unjust soldiers Duress Epistemic limitations (Diminished responsibility) Excuses reduce the degree of responsibility for conduct that is objectively wrong. ↓ Excuses reduce the degree of liability to defensive harm to which unjust combatants are subject. “The extent to which a person is excused for posing a threat of wrongful harm affects the degree of his moral liability to defensive harm, which in turn affects the stringency of the proportionality on defensive force” (McMahan)

Excuses and liability Different unjust combatants are liable to different degrees of defensive harms depending on: a)whether they are excused for their taking part in an unjust war; b)on what grounds they are excused (duress, culpable or negligent lack of knowledge, and diminished responsibility); c)how much they are excused (depending on how strong the excusing conditions are, combatants can be completely excused or partially excused to different degrees).

The “requirement of restraint” Towards combatants who are excused to a significant extent for fighting an unjust war, there is a “requirement of restraint”, which imposes severe limitations on what counts as a proportionate defensive response. Just combatants fighting against unjust combatants who are excused to a significant degree have a duty to care for the safety of those unjust combatants, at the cost of taking greater risks to their own life