Week 11
jus in bello p. 1: “Just Conduct during War”
jus in bello principles:
Discrimination
Proportionality
“A legitimate target is anyone or anything which is engaged in harming”
Non-combatants (civilians) always retain human rights
Soldiers forfeit their human rights (until surrender)
Legitimate targets should be attacked with appropriate (proportional) force
“Military necessity” should be tightly restrained
Five major controversies:
Non-combatant immunity
Responsibilities of soldiers
War rights of soldiers
Benevolent quarantine
Reprisals
Non-combatant immunity
Absolute prohibition (never kill civilians)
The Doctrine of Double Effect (DDE)
Walzer’s ‘due care’ principle
Responsibilities of soldiers
War rights of soldiers
Benevolent quarantine
(torture and other mistreatment of surrendered soldiers (POWs))
Reprisals
(deliberate jus in bello violations responding to prior violations by the enemy side)
Two approaches:
Orend’s (foremost) human rights framework
Walzer’s (seemingly less-significant) nonaggression framework
Benevolent quarantine
Is mistreatment or physical torture of POWs ever acceptable? Under what conditions?
Torturing accused terrorists to extract life-saving information
Which of the two major approaches (Orend’s or Walzer’s) best articulates your views on the ethics of benevolent quarantine?
Reprisals
Should reprisals be accepted into jus in bello?
Should just war theory countenance deliberate violations of jus in bello which respond directly to prior violations by the enemy side?
Detention camps
Trench warfare
Nuclear war
Walzer: only in extraordinary circumstances
Orend: not in any circumstances
Which of the two major approaches (Orend’s or Walzer’s) best articulates your views on the ethics of reprisals?
jus in bello p.2: “Supreme Emergency” exemption?
The problem
How do we specify the conditions of a supreme emergency?
The typical real-world cases
Orend’s five options
The problem
What are the limits of jus in bello rules? Is it ever right to suspend them?
Suspending jus in bello rules appears to render them non-compulsory
Is supreme emergency a moral loophole?
Supreme emergency in a post-9/11 world
What’s needed is a principled method
Something similar in structure to MLK’s ‘civil disobedience’
Need to clarify the underlying principles
Use them to lay out a principled exemption
King’s principled method:
Legal rules sustain our society:
We comply with the legal order
We consent to the legal order
“An unjust law is no law at all” (St. Augustine)
Unjust law is human law not rooted in eternal and natural law (St. Thomas Aquinas)
The eternal law:
Any law that uplifts the human personality is just
Any law that degrades the human personality is unjust
Finally, “one who breaks the law must do so openly, lovingly and with willingness to accept personal penalties”
Defining “supreme emergency”?
Orend & Walzer’s conditions:
Evidence that the aggressor is about to entirely defeat the victim
Evidence that the occupying aggressor will institute a policy of massacre or enslavement
Not merely defeat; slaughter, slavery and total catastrophe
Real-world cases:
Britain’s WWII firebombing of German civilians
vs.
Dropping atomic bombs on Japanese cities to end WWII
Torturing terrorists to extract life-saving confessions
vs.
Terrorism as a political tactic
Finding some kind of “reflective equilibrium”:
Orend’s five options:
Ways to deal with the supreme emergency exemption
No such thing as supreme emergency
Churchill’s consequentialism
Absolute non-combatant immunity
Walzer’s ‘dirty hands’ approach
Prudential strategy
No such thing as supreme emergency
Wrong to suspend jus in bello
A gaping loophole, which we need to seal off
The exemption is necessarily open-ended and self-serving
Once again, we see a form of the ‘pacifist dilemma’
Churchill’s consequentialism
Right to suspend jus in bello in desperate situations
It’s wrong to concede defeat against aggression
We have a duty to protect humanity
Nagel’s problem: hostile treatment of any person must be justified in terms of something about that person which makes the treatment appropriate
Absolute non-combatant immunity
Adhere strictly to jus in bello
Only this will validate and reinforce our common humanity
But, what about a government’s duty to protect citizens?
Walzer’s ‘dirty hands’ approach
Right to suspend jus in bello in desperate situations
It remains always wrong to kill civilians intentionally
Civilians’ rights are genuine
Killing them in war is tantamount to mass murder
Civilian killings are nevertheless justified in supreme emergencies
We excuse the conduct of soldiers and decision-makers
But, condemn their conduct by public shaming
Moral tragedy / Prudential strategy
Right to suspend jus in bello in desperate situations
It remains always wrong to kill civilians intentionally
The situation pits morality against the survival instinct
Owing to the duress of the situation, we excuse the victim’s actions, but never justify them
The whole thing is a wretched moral tragedy; no matter what you do, you’re wrong
jus in bello principles:
Discrimination
Proportionality
“A legitimate target is anyone or anything which is engaged in harming”
Non-combatants (civilians) always retain human rights
Soldiers forfeit their human rights (until surrender)
Legitimate targets should be attacked with appropriate (proportional) force
“Military necessity” should be tightly restrained
Five major controversies:
Non-combatant immunity
Responsibilities of soldiers
War rights of soldiers
Benevolent quarantine
Reprisals
Non-combatant immunity
Absolute prohibition (never kill civilians)
The Doctrine of Double Effect (DDE)
Walzer’s ‘due care’ principle
Responsibilities of soldiers
War rights of soldiers
Benevolent quarantine
(torture and other mistreatment of surrendered soldiers (POWs))
Reprisals
(deliberate jus in bello violations responding to prior violations by the enemy side)
Two approaches:
Orend’s (foremost) human rights framework
Walzer’s (seemingly less-significant) nonaggression framework
Benevolent quarantine
Is mistreatment or physical torture of POWs ever acceptable? Under what conditions?
Torturing accused terrorists to extract life-saving information
Which of the two major approaches (Orend’s or Walzer’s) best articulates your views on the ethics of benevolent quarantine?
Reprisals
Should reprisals be accepted into jus in bello?
Should just war theory countenance deliberate violations of jus in bello which respond directly to prior violations by the enemy side?
Detention camps
Trench warfare
Nuclear war
Walzer: only in extraordinary circumstances
Orend: not in any circumstances
Which of the two major approaches (Orend’s or Walzer’s) best articulates your views on the ethics of reprisals?
jus in bello p.2: “Supreme Emergency” exemption?
The problem
How do we specify the conditions of a supreme emergency?
The typical real-world cases
Orend’s five options
The problem
What are the limits of jus in bello rules? Is it ever right to suspend them?
Suspending jus in bello rules appears to render them non-compulsory
Is supreme emergency a moral loophole?
Supreme emergency in a post-9/11 world
What’s needed is a principled method
Something similar in structure to MLK’s ‘civil disobedience’
Need to clarify the underlying principles
Use them to lay out a principled exemption
King’s principled method:
Legal rules sustain our society:
We comply with the legal order
We consent to the legal order
“An unjust law is no law at all” (St. Augustine)
Unjust law is human law not rooted in eternal and natural law (St. Thomas Aquinas)
The eternal law:
Any law that uplifts the human personality is just
Any law that degrades the human personality is unjust
Finally, “one who breaks the law must do so openly, lovingly and with willingness to accept personal penalties”
Defining “supreme emergency”?
Orend & Walzer’s conditions:
Evidence that the aggressor is about to entirely defeat the victim
Evidence that the occupying aggressor will institute a policy of massacre or enslavement
Not merely defeat; slaughter, slavery and total catastrophe
Real-world cases:
Britain’s WWII firebombing of German civilians
vs.
Dropping atomic bombs on Japanese cities to end WWII
Torturing terrorists to extract life-saving confessions
vs.
Terrorism as a political tactic
Finding some kind of “reflective equilibrium”:
Orend’s five options:
Ways to deal with the supreme emergency exemption
No such thing as supreme emergency
Churchill’s consequentialism
Absolute non-combatant immunity
Walzer’s ‘dirty hands’ approach
Prudential strategy
No such thing as supreme emergency
Wrong to suspend jus in bello
A gaping loophole, which we need to seal off
The exemption is necessarily open-ended and self-serving
Once again, we see a form of the ‘pacifist dilemma’
Churchill’s consequentialism
Right to suspend jus in bello in desperate situations
It’s wrong to concede defeat against aggression
We have a duty to protect humanity
Nagel’s problem: hostile treatment of any person must be justified in terms of something about that person which makes the treatment appropriate
Absolute non-combatant immunity
Adhere strictly to jus in bello
Only this will validate and reinforce our common humanity
But, what about a government’s duty to protect citizens?
Walzer’s ‘dirty hands’ approach
Right to suspend jus in bello in desperate situations
It remains always wrong to kill civilians intentionally
Civilians’ rights are genuine
Killing them in war is tantamount to mass murder
Civilian killings are nevertheless justified in supreme emergencies
We excuse the conduct of soldiers and decision-makers
But, condemn their conduct by public shaming
Moral tragedy / Prudential strategy
Right to suspend jus in bello in desperate situations
It remains always wrong to kill civilians intentionally
The situation pits morality against the survival instinct
Owing to the duress of the situation, we excuse the victim’s actions, but never justify them
The whole thing is a wretched moral tragedy; no matter what you do, you’re wrong
posted by Michael Kocsis at 4:37 p.m.
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