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Justice Beyond BordersA Global Political Theory$

Simon Caney

Print publication date: 2005

Print ISBN-13: 9780198293507

Published to Oxford Scholarship Online: April 2005

DOI: 10.1093/019829350X.001.0001

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Just War

Just War

Chapter:
(p.189) 6 Just War
Source:
Justice Beyond Borders
Author(s):

Simon Caney (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/019829350X.003.0006

Abstract and Keywords

The aim of this chapter is to analyse a number of prominent views concerning the nature of a just war and, having criticized them, to outline the account of a just war that follows from a cosmopolitan perspective. It explores different philosophical approaches at a general level, analysing their accounts of when war may be waged (jus ad bellum) and how it may be waged (jus in bello). To do this it begins, in Section I, with some methodological observations, and then, in the next three sections (II–IV), examines several leading perspectives on the nature of just war: Sections II and III explore Michael Walzer’s influential treatment of this subject in Just and Unjust Wars (1977), criticizing in particular his account of jus ad bellum and his derivation of rules of jus in bello; Section IV analyses Terry Nardin’s state-centric account of just war in Law, Morality and the Relations of States (1983). The following four sections (V–VIII) turn to more cosmopolitan perspectives: Section V outlines the general structure of a cosmopolitan theory of just war; Sections VI and VII examine particular cosmopolitan accounts of some aspects of just war, analysing utilitarian and deontological approaches; and Section VIII criticizes the utilitarian and deontological accounts given in the previous two sections, outlining an alternative cosmopolitan rights-based approach that avoids the objections levelled against these two theories. Sections IX–XI analyse realist misgivings about both traditional and cosmopolitan conceptions of jus ad bellum (IX) and jus in bello (X); and Section XI summarizes and concludes.

Keywords:   arguments for just war, challenges to just war, cosmopolitan approaches, cosmopolitan rights-based approach, cosmopolitanism, deontological approaches, jus ad bellum, jus in bello, just war, Michael Walzer, philosophical approaches, realism, state-centric approaches, Terry Nardin, utilitarian approaches

Examining Magistrate Ivanov to Rubashov: ‘I don't approve of mixing ideologies’, Ivanov continued. ‘There are only two conceptions of human ethics, and they are at opposite poles. One of them is Christian and humane, declares the individual to be sacrosanct, and asserts that the rules of arithmetic are not to be applied to human units. The other starts from the basic principle that a collective aim justifies all means, and not only allows, but demands, that the individual should in every way be subordinated and sacrificed to the community—which may dispose of it as an experimentation rabbit or a sacrificial lamb. The first conception could be called anti-vivisection morality, the second, vivisection morality. Humbugs and dilettantes have always tried to mix the two conceptions; in practice, it is impossible. Whoever is burdened with power and responsibility finds out on the first occasion that he has to choose; and he is fatally driven to the second alternative. Do you know, since the establishment of Christianity as a state religion, a single example of a state which really followed a Christian policy? You can't point out one. In times of need—and politics are chronically in a time of need—the rulers were always able to evoke ‘exceptional circumstances,’ which demanded exceptional measures of defence. Since the existence of nations and classes, they live in a permanent state of mutual self-defense, which forces them eternally to defer to another time the putting into practice of humanism …

Darkness at Noon (Koestler 1987 [1940]: 128)

Thus far, this book has focused on ideal theory. Chapter 3 sought to identify what civil and political universal principles, if any, should be adopted at the global level. In a similar vein, Chapter 4 sought to identify what principles of distributive justice, if any, should apply globally. And Chapter 5 has examined what political institutions are ideal. Together, these present an account of the ideal to which we should aspire. In Chapters 6 and 7, I want to move from ideal theory to non-ideal theory.1 A complete analysis must address what principles should apply when injustices have been committed (or, perhaps, are about to be committed). We might distinguish between two separate types of injustice. First, there are situations where a political regime and its members are attacked by an external agent. Let us call these external wrongs. In such circumstances may a regime wage war in self-defence? May it wage war to recover resources wrongly taken from it and may it wage war to punish an aggressor? Furthermore, are other political regimes permitted, or even required, to wage war to defend a regime that has been wronged? These questions—questions concerning just war—are examined in this chapter. Chapter 7 addresses a second kind of scenario in which injustice is (p.190) taking place. It addresses situations in which wrongs are being committed within a political regime and focuses on the question of whether outside political regimes are ever morally permitted, or required, to intervene to prevent such wrongs. Chapter 7 deals, then, with what one might term internal wrongs and analyses whether humanitarian intervention is justified to address internal wrongs.

Both chapters seek to provide principles that should apply when some people have violated (or are about to violate) the entitlements of others. They are required only because people fail to live up to the standards specified by principles of justice. The theories of just warfare and intervention may be described as outlining what Michael Sandel terms ‘remedial virtues’ (1982: 32) for we need only advert to such theories because we are living in a less than ideal world.

Broadly speaking, the aim of this chapter is to analyse a number of prominent views concerning the nature of a just war and, having criticized them, to outline the account of a just war that follows from a cosmopolitan perspective. It explores different philosophical approaches at a general level, analysing their accounts of when war may be waged (jus ad bellum) and how it may be waged (jus in bello). To do this it begins, in Section I, with some methodological observations. The chapter then examines several leading perspectives on the nature of just war. Sections II and III, thus, examine Michael Walzer's influential treatment of this subject in Just and Unjust Wars (1977), criticizing in particular his account of jus ad bellum and his derivation of rules of jus in bello. Section IV analyses Terry Nardin's state-centric account of just war in Law, Morality and the Relations of States (1983). The following four sections turn to more cosmopolitan perspectives. Section V outlines the general structure of a cosmopolitan theory of just war. Sections VI and VII then examine particular cosmopolitan accounts of some aspects of just war, analysing utilitarian and deontological approaches.2 Having criticized these accounts, it then outlines an alternative cosmopolitan rights-based approach which avoids the objections levelled against the preceding two theories (Section VIII). The remainder of the chapter analyses realist misgivings about both traditional and cosmopolitan conceptions of jus ad bellum and jus in bello (Sections IX and X).

I

Let me begin then with four preliminary points. First, although this chapter examines just war theory throughout it does not seek to provide a comprehensive account of when and how war should be waged. Two types of war are excluded. First, it does not examine the ethical issues surrounding war that takes place within a political regime (civil war). The latter is a concern for a domestic, as opposed to a global, political theory.3 Second, this chapter does not examine whether a political regime may wage war to protect human rights within another regime. This question is examined in Chapter 7. This chapter's fundamental concern is with the courses of action that political regimes may adopt when a regime is wronged by an external agent. This is its primary focus and it (p.191) analyses just war theory at length only because it is thought by many that political regimes may respond to external wrongs by waging war.

Second, it is worth stressing that this chapter focuses on how political regimes can respond to wrongs perpetrated by external agents. Both italicized phrases require elaboration. The term ‘political regimes’ has been chosen rather than ‘states’ so that it can accommodate the issues that would arise between non-sovereign political systems of the kind discussed in Chapter 5. In this way it has greater flexibility and wider applicability. The term ‘external agents’ has been chosen rather than states because political regimes can be wronged by actors including, but not restricted to, states. Again, the rationale for this usage is that it increases the relevance and applicability of the discussion. To restrict the focus to wrongs committed by other states would prevent the chapter from being able to address how political regimes may respond to attacks such as those made by Al-Qa'ida on 11 September 2001.

Third, although this chapter focuses on the just responses to external wrongs, it is not assumed that justice is the only relevant value. On the contrary, it is entirely reasonable to argue that values such as compassion, forgiveness, and mercy, for example, should inform how regimes respond to external wrongs. The focus on justice is justified, however, on the grounds that it should define the environment within which people act. Within this fair background, other virtues may be entirely appropriate.

Fourth, and finally, it is worth perhaps observing that, in comparison with other topics in global political theory (such as ‘what principles of distributive justice, if any, should govern international affairs?’ and ‘how defensible is the project of creating democratic supra-state institutions?’), there is a considerable degree of consensus both among philosophers writing on the subject but also among people of different cultures. This point should not be overstated. Clearly, pacifists and realists both disagree profoundly and intractably with the traditional just war approach. Clearly, also, Muslims, Jews, Christians, atheists, and Buddhists will not speak with one voice on all aspects to do with when and how war may be waged. My point is simply that in comparison to other topics there is a greater degree of commonality, where this should not be confused with homogeneity. The very idea of a ‘just war’ tradition bears this out. There is, for example, no comparable ‘international distributive justice’ tradition. Just war theory is traditionally defined in terms of certain rules of jus ad bellum and certain rules of jus in bello. Standard accounts of jus ad bellum generally maintain that a just war requires the following:

  1. (1) there is a just cause;

  2. (2) war is authorized by a legitimate authority;

  3. (3) those waging the war have just intentions;

  4. (4) the costs incurred by the war are not disproportionate in comparison to the wrongs that justify the waging of war (proportionality);

  5. (5) war is the last resort;

  6. (p.192)
  7. (6) the war has a reasonable chance of meeting its objectives; and,

  8. (7) its goal is a fair peace.4

Furthermore, standard accounts of jus in bello generally tend to maintain that
  1. (1) the means employed to wage war should not involve disproportionate casualties (proportionality); and,

  2. (2) intentional attack on non-combatants is wrong (non-combatant immunity).5

Lest my claim is misconstrued, it should be stressed that to argue that there is a commonly accepted framework of values does not entail that there is agreement on the meaning, importance, and implications of these values. In the first place, it should, of course, be stressed that different thinkers have interpreted these conditions differently. Consider, for example, the idea of a just cause. Most agree that self-defence is a just cause, but there is disagreement as to whether war may be waged in order to punish aggressors. Hugo Grotius, for example, maintains in de Jure belli ac Pacis Libri Tres that ‘[j]ustifiable causes include defence, the obtaining of that which belongs to us or is our due, and the inflicting of punishment’ (1925 [1646]: bk. II, ch. I, sec. II, p. 171). Samuel Pufendorf, by contrast, does not regard punishment as a just cause for waging war (1991 [1673]: bk. II, sec. 16, subsec. 2, p. 168). And Kant explicitly insists in The Metaphysics of Morals that states may not wage war to punish another state: ‘No war of independent states against each other can be a punitive war (bellum punitivum). For punishment occurs only in the relation of a superior (imperantis) to those subject to him (subditum), and states do not stand in that relation to each other’ (1996 [1797]: part II, ch. II, sec. 57, p. 117). So there is room for disagreement about some aspects of what constitutes a just cause.

In the second place, to claim that there is a common discourse is not to gainsay the fact that people disagree profoundly in the application of these principles to existing and historical conflicts. There are, of course, vehement disagreements over whether the Gulf war of 1991 or the bombing of Afghanistan in 2001–2 or the 2003 war against Iraq, for example, met these conditions. To attest to a common framework is not to claim that there is homogeneity, either at the theoretical level or at the level at which the theory is employed to judge and guide practice.

II

Let us turn now to normative analyses of the nature of a just war. I shall begin with Michael Walzer's account. In his celebrated Just and Unjust Wars Walzer provides, among other things, an account of both when war may be waged and also how it may be waged (1977: parts II and III). It is worth focusing on Walzer's work in some detail because it is the most sophisticated and extensive modern treatment of warfare and it exemplifies a certain statist conception of (p.193) justice. Starting with his account of jus ad bellum, Walzer presents but modifies what he terms ‘the legalist paradigm’ (1977: 58, 58–63). This comprises six principles. These maintain the value of a society of states (1); affirm the right of states to their own territory and independence (2); condemn any act of aggression against a state (3); justify war as a response to aggression (4); maintain that war is not justified in any other circumstance (5); and sanction the punishment of aggressors (6) (1977: 61–2). At the heart of this theory is the claim that states have a right to wage war in self-defence. Walzer then adds to this, however, that states may also engage in a pre-emptive strike because there are situations in which an aggressor is about to attack and it is justified to engage in warfare to land the first blow (1977: ch. 5).6 Walzer's point here is that this can still be seen as an act of self-defence because it is only a matter of time before the enemy attacks and one is entitled to defend against it (1977: 85).

Let us, however, consider Walzer's defence of the right of states to wage war in greater detail. It may seem obvious that states that are invaded or attacked do have a right to engage in war to defend their sovereignty against external aggression. This, indeed, is a core feature of the just war tradition. As we shall see, however, this assumption stands in need of justification and Walzer's arguments do not sustain his conclusions. Let us begin then with Walzer's justification of the claim that states have a right to wage war when attacked. Within Walzer's work we can find three distinct lines of reasoning, the first two of which draw on his general theory of the rights of states (1977: 53–8).

1. Walzer's central justification of a state's right to wage war in self-defence proceeds as follows: states embody the ‘common life’ of their people (1977: 54). As such they have a moral worth and moral rights. Aggression is, therefore, wrong because it violates these rights. By attacking or invading, an external agent is violating the legitimate rights of the state and the latter is entitled to use force in self-defence (1977: 53–4).

Several points should be made in response to this. The first point is that, even if we work within Walzer's theory, the unqualified statement that states have a right to self-defence is inaccurate. To see why we should consider two points. First, Walzer maintains that military intervention in the affairs of another political regime is justified in certain exceptional circumstances. He argues, in particular, that military intervention in a state is justified when: (a) the state does not represent a united community and there is a national liberation movement wishing to secede (1977: 90–2); or (b) another regime has already intervened (1977: 90, 93–101); or (c) a state is engaged in genocide (1977: 90, 101–8). If any one of these situations arises, Walzer says, intervention is justified. To this we should also add—and this is the second step in my argument—that Walzer thinks (quite reasonably) that it cannot be the case that both sides in an armed conflict are in the right (1977: 59). It follows from this that, on Walzer's own analysis, if A intervenes in B, it cannot be right both that A is justified in employing force to change the internal affairs of society B and that B is justified in employing force to (p.194) repel A. But, given both of these points, it follows that it is not true that states necessarily have a right to engage in self-defence when they are invaded. To take one of Walzer's examples, states committing genocide are not entitled to wage war in self-defence. The unqualified statement of the right to employ force in self-defence is, thus, inaccurate on Walzer's own theory.7 The seemingly obvious claim—that states may employ force in self-defence—is thus undermined.8

This first point employs Walzer's own criteria as to what constitutes a legitimate state. A further problem with his account of jus ad bellum is that his standards are too lax and legitimize far too many cruel, unfair, and repressive states. Any state is legitimate on Walzer's account as long as it does not contain a secessionist movement and as long as it does not engage in genocide. It may persecute individuals and minorities; engage in ethnic cleansing; cause opposition members to ‘disappear’; deny people the vote; exploit workers and immigrants; and repress women (Doppelt 1978, esp. pp. 6–7, 16, 20–6; 1980: 399–400, 402–3; Luban 1980a: 169–70, 179–80; 1980b: 393–7). It is hard, however, to see why a state that treats its members in these ways possesses a moral status such that it is morally entitled to use violence to defend itself. We would not think that a violent gang or mafia-clan that treated people in these ways possesses the right to wage war in self-defence, so why should we think that a state that does exactly the same things does?

2. Let us consider a second argument that Walzer deploys to defend the right of political regimes to wage war in self-defence. Walzer argues that states are analogous to individuals. He argues, on the basis of this analogy, that since individuals are allowed to defend their rights so political regimes are entitled to defend their sovereignty and their territory: ‘given a genuine “contract”, it makes sense to say that territorial integrity and political sovereignty can be defended in exactly the same way as individual life and liberty’ (1977: 54; see also 1977: 55).9 He adds later: ‘[i]f states actually do possess rights more or less as individuals do, then it is possible to imagine a society among them more or less like the society of individuals. The comparison of international to civil order is crucial to the theory of aggression’ (1977: 58).10 This thus represents an additional vindication of the right of states to wage war in defence of their sovereignty.

Again, however, Walzer's argument is flawed. One important problem with his argument is simply that the analogy is deeply unpersuasive. Individuals are disanalogous to states in many morally important ways. It is simply unhelpful to treat states, which are often divided by class, nationality, ethnicity, regional identity, and religion, as if they possessed the sort of unity that individuals possess (Beitz 1999c: 69–71, 74–6, 81; McMahan 1986: 28–30, esp. p. 29).11 Second, even if we grant the analogy, it is far from clear whether this sustains the conclusion that Walzer seeks. To claim that individuals and states are analogous is actually unhelpful to his case for we are extremely wary about claiming that an individual may kill people whenever someone violates his or her rights. Does it not depend on what rights are being violated, and how grave they are? As many have remarked, there is a strong contrast between, on the one hand, people's (p.195) vehement condemnation of murder where it is regarded as abhorrent, and, on the other, people's attitudes to killing during war where it is taken to be perfectly normal.12 The point is nicely made by Tolstoy:

‘Enlightened, sensible, good Christian people, who inculcate the principle of love and brotherhood, who regard murder as an awful crime, who, with very few exceptions, are unable to kill an animal—all these people suddenly, provided that these crimes are called war, not only acknowledge the destruction, plunder, and killing of people to be right and legal, but themselves contribute toward these robberies and murders, prepare themselves for them, take part in them, are proud of them.’ (1987 [original date unknown]: 126)

Thus, in analogising the individual and the state Walzer is inadvertently undermining his case. For if we do not think individuals may kill, and if we think that states are akin to individuals, then we should be more reticent than Walzer is about thinking that states may kill people.

Walzer's defence of the right of states to wage war in defence of their rights is thus unpersuasive. His first argument does not sustain the unconditional right of states to engage in warfare; and his second argument relies on an implausible but also self-undermining analogy.

3. The first two arguments have invoked the right of communities to engage in self-defence. Walzer does, however, employ a third line of argument. He argues that waging war is justified in the name of enforcing the law of international society (1977: 59, 62). Thus he writes: ‘[t]he victim of aggression fights in self-defense, but he isn't only defending himself, for aggression is a crime against society as a whole. He fights in its name and not only in his own’ (1977: 59).

This third argument is, however, problematic in three respects. First, Walzer is unclear on the precise nature of the conclusion that he is seeking to derive. In some instances he maintains that his argument shows that states that have not been attacked are morally permitted to come to the assistance of a (morally legitimate) state that has been attacked. He writes that, ‘[o]ther states can rightfully join the victim's resistance; their war has the same character as his own, which is to say, they are entitled not only to repel the attack but also to punish it. All resistance is also law enforcement’ (1977: 59, my emphasis). Again: ‘[a]nyone can come to the aid of a victim, use necessary force against an aggressor’ (1977: 62, my emphasis). On other occasions, however, he appears to make a stronger claim, arguing that states that have not been attacked are under a moral obligation to come to the assistance of a (morally legitimate) state that has been attacked. For example, he writes that ‘it is the tendency of the theory to undermine the right of neutrality and to require widespread participation in the business of law enforcement’ (1977: 62, my emphasis).

Second, Walzer's argument assumes that unless a state repels an aggressor international society will collapse. But this empirical assumption is hard to sustain. It is perfectly conceivable that one state invades and usurps another, taking it over, and yet the international order of a society of states continues. Of course, the original society of states has been destroyed because there is one less state but to object on (p.196) these grounds would make his claim tautologous. The important consideration is that the international order, one comprising states, remains intact. One act of aggression by one state has not destroyed and will not destroy that.13

A third problem lies in Walzer's unargued assumption that the current international order, consisting of sovereign states, is of such moral value that it must be preserved. It is far from clear that this is so and given the forceful criticisms of the current statist order (outlined in Chapter 5) it does stand in need of justification. In other words, Walzer's argument is incomplete: for his defence of just cause to stand he has to establish that the current international order is valuable enough to generate permissions/duties on the part of states to preserve it.

This concludes my analysis of Walzer's defence of jus ad bellum. It is taken as a datum by many that states are entitled to wage war in defence of their sovereignty. In this section I have argued that Walzer's arguments to support this claim are unpersuasive. Neither his appeal to the rights of states nor his appeal to the importance of international society establish that aggression against states is per se a wrong14 and a wrong that justifies the waging of war.

III

Let me now move on to consider Walzer's analysis of jus in bello, focussing in particular on his account of non-combatant immunity. In chapter 9 of Just and Unjust Wars Walzer affirms two key principles. The first maintains that it is always permissible to attack enemy soldiers, except when ‘they are wounded or captured’ (1977: 138). What of those who are not soldiers who are nonetheless part of the war effort? Walzer makes a persuasive distinction between those whose activities are intrinsically linked to the process of war (like making arms) and those whose activities may assist the waging of war but are not intrinsically linked to the process of war (like for example, farming or healing the sick). The distinction is between what is specifically needed for war and what is generally needed for normal human existence (1977: 146). He then argues that those participating in the production of arms can be attacked only if there are no other ways of preventing them from producing arms. If there are other methods available these should be adopted (1977: 146).

Walzer's second principle states that one cannot attack non-combatants: that is, one cannot intentionally seek to kill non-combatants (1977: 151). Like many others, though, Walzer affirms the principle of double effect which, when applied to warfare, sanctions acts which bring about the death of non-combatants under certain conditions. Walzer presents the following account of double effect. Actions that result in the deaths of non-combatants are justified when

  1. ‘1) The act is good in itself or at least indifferent, which means, for our purposes, that it is a legitimate act of war.

  2. 2) The direct effect is morally acceptable—the destruction of military supplies, for example, or the killing of enemy soldiers.

  3. (p.197)
  4. 3) The intention of the actor is good, that is, he aims only at the acceptable effect; the evil effect is not one of his ends, nor is it a means to his ends.

  5. 4) The good effect is sufficiently good to compensate for allowing the evil effect; it must be justifiable under Sidgwick's proportionality rule’ (1977: 153).

Walzer then argues, however, that (3) needs to be modified for it is too permissive. (3) is insensitive to how many non-combatants die. As long as one is performing an action for the right reason and that is one's only aim and as long as the deaths of the non-combatants are not a means to one's end, then according to (3), it does not matter how many non-combatants die (1977: 153–6). For this reason Walzer argues that (3) should be reformulated to read as follows:

‘3) The intention of the actor is good, that is, he aims narrowly at the acceptable effect; the evil effect is not one of his ends, nor is it a means to his ends, and, aware of the evil involved, he seeks to minimize it, accepting costs to himself’ (1977: 155).15

Its central point, then, is that one has duties to non-combatants and not intending harm to them is insufficient. These two principles thus comprise the key features of Walzer's account of the content of jus in bello.

Much later in the book Walzer argues that weighty though these rules of jus in bello are, they can be overridden in times of ‘supreme emergency’ (1977: ch. 16). For Walzer, a supreme emergency is defined in terms of two properties—‘the imminence of the danger’ and ‘its nature’ (1977: 252). Supreme emergencies thus exist when there is imminent threat of a morally horrendous outcome. Walzer's example of an acceptable use of the supreme emergency condition is Britain's bombing campaign against Germany during the Second World War. Nazism is clearly evil and since Britain was alone the threat of Nazism was imminent. Accordingly, Britain's use of bombing against civilians was justified in the early stages of the war, although Walzer then goes on to say that it was unjustified later (1977: 255–62). By contrast America's use of an atomic bomb on Hiroshima was not justified under the supreme emergency condition. This is partly because America's insistence on unconditional surrender was inappropriate and partly because the bomb was being used to speed up the end of the war (1977: 263–8).

How adequate is his account of the content and moral significance of jus in bello? Walzer's treatment is open to question on both scores. Consider the former. His account of jus in bello faces three problems. (i) The first problem is simply that Walzer does not provide any argument for the actual rules he proposes. He simply lays them out and does not adduce any considerations in their defence (Bull 1979: 591, 596–9 (esp. pp. 598–9)). What is lacking in Walzer's account, then, is any actual argument for his rules. (ii) This problem is complicated further because within Walzer's work as a whole there are two distinct, and incompatible, methodological commitments. On some occasions, Walzer invokes universal concepts like human rights and seeks to base his theory on such ideals (1977: xvi, 54). On other occasions, Walzer takes a relativist position affirming that just principles mirror the shared understandings of communities (1983, esp. p. 313) (p.198) and also arguing that there is no global community (1983: 29–30). These two approaches, however, obviously conflict. Finally, (iii), his account of jus in bello and his account of jus ad bellum also pull in conflicting directions. Walzer's account of jus ad bellum, recall, is strongly communitarian and state-centric. It prioritizes the moral value of states over and above individuals and bestows moral status on states even if they are cruel and repressive and kill individuals (as long as they are not genocidal) (Doppelt 1978, esp. pp. 6–7, 16, 20–6; 1980: 399–400, 402–3; Luban 1980a: 169–70, 179–80; 1980b: 393–7). His account of jus in bello, by contrast, is highly individualistic and prioritizes the rights of individuals: as we have seen, military forces must strive (even at cost to their own safety) not to harm individual civilians. It is hard to see, however, how one can square such non-individualistic rules of jus ad bellum with such individualistic rules of jus in bello. Put otherwise, if Walzer recognizes, as he does in his account of jus in bello, the rights of individuals why does he not do so in his account of jus ad bellum?16 The deep problem here is that Walzer adopts what Robert Holmes has termed an ‘externalist’ account of the relationship between jus ad bellum and jus in bello (1992: 224).17 The latter are not derived in any way from the former. There is no logical link between them and hence there is the possibility of conflict. For these three reasons, then, Walzer's account of jus in bello is undermotivated and inconsistent with other aspects of his theory.

If we turn now to Walzer's treatment of ‘supreme emergencies’ we can see that his account of the moral weight of the rules of jus in bello is also suspect. First, it is striking that Walzer defends the supreme emergency condition on the grounds that it is needed to defend the ‘political community’ (1977: 254). He writes, moreover, that:

‘it is possible to live in a world where individuals are sometimes murdered, but a world where entire peoples are enslaved or massacred is literally unbearable. For the survival and freedom of political communities—whose members share a way of life, developed by their ancestors, to be passed on to their children—are the highest values of international society. Nazism challenged these values on a grand scale, but challenges more narrowly conceived, if they are of the same kind, have similar moral consequences. They bring us under the rule of necessity (and necessity knows no rules)’. (1977: 254)

Killing innocent people is thus needed to preserve ‘political communities’. The point is reiterated later when he maintains that attacking non-combatants is justified to prevent ‘a defeat likely to bring disaster to a political community’ (1977: 268). What is puzzling about this is that it treats political communities as having intrinsic value. Surely though what is wrong with Nazism and other similar phenomena is that they kill individuals. Walzer does, on occasion, recognize that political communities have value only insofar as they protect the rights of individuals (1977: xvi, 54). But then if he accepts this, he should, to be consistent, simply justify the use of the supreme emergency condition in the name of protecting the rights of individuals. Any appeal to the value of ‘political communities’ is rendered redundant.

(p.199) A second problem is that Walzer's criteria are too lax for he allows the supreme emergency condition to be invoked in conditions other than the threat of massacre. It is, on Walzer's account, justified to prevent people from being occupied and enslaved (1977: 254). Indeed it is justified because the independence of communities ‘whose members share a way of life, developed by their ancestors, to be passed on to their children’ is one of ‘the highest values of international society’ (1977: 254). Such a weighting is highly implausible for it privileges protecting a shared way of life over other people's lives. And it is odd, to say the least, to think that one can kill innocent people (that is, non-combatants) not to save other lives but to protect one's traditional way of life.

A further problem with Walzer's vindication of supreme emergency concerns what he excludes from consideration. His account of when and why rules of jus in bello may be violated appeals solely to the right of a political community to protect itself and the impact this has on foreigners is excluded from the moral calculation. As such, his defence of supreme emergency places no upper limit on what someone can do to non-citizens to protect their own political community. This, however, renders his theory completely untenable for it would permit a state to commit grotesque rights violations (torturing children and napalming non-civilians) in huge numbers (millions say) simply to prevent its being invaded. To use Kantian terminology, Walzer's endorsement of the abrogation of rules of jus in bello makes no reference either to the quality of the violations (how morally repugnant are they?) or to the quantity (how many violations occur?).18 As such it shows an indifference to the moral standing of others that renders his theory unacceptable.19 Moreover, once we insist that the number and the severity of rights violations is taken into account we can accept far fewer, if any, instances where jus in bello may be overridden.

One final point: Walzer maintains that ‘necessity knows no rules’ (1977: 254). To say that in times of a supreme emergency there are no moral rules whatsoever is to make an exceptionally strong claim. It is, moreover, an implausible claim for it entails that one is morally justified in committing an atrocity even if that does not contribute in any way to overcoming the evil enemy. Surely, however, there can be no justification of such pointless atrocities: but if we accept this, we are accepting that necessity does have some moral rules.

In conclusion, then, Walzer fails to justify his rules of jus in bello and his account of the moral weight of these rules is implausible. His account of when supreme emergency can be invoked, why it can be, and what it permits leaves the door open to many violations of the rights of innocent men and women.

IV

Having analysed one distinguished state-centric account of the nature of a just war, let us consider a second. The focus again, it should be stressed, is with how political regimes may act when an external wrong has been committed. (p.200) May they wage war? May others wage war on their behalf? If they can wage war, are there constraints on what actions they can perform and on whom?

In his Law, Morality and the Relations of States, Terry Nardin advances a state-centric theory of international justice that includes as part of it an account of just warfare. As we saw in Chapter 1, Nardin affirms the ideal of a society of states. He maintains both that there is such a society and also that it is a desirable ideal. He objects to what he terms ‘purposive’ approaches (such as cosmopolitanism) which seek to impose some ideal on all human society, preferring in its stead what he terms a ‘practical’ approach, where the latter defends a society of sovereign states on the grounds that it protects diversity. Drawing on this ideal Nardin derives an account of jus ad bellum and jus in bello. Let us consider each in turn. Nardin argues, first, that it is a corollary of his ‘practical’ ideal that states are entitled to defend themselves. The idea of a society of states would be worthless unless the members were entitled to preserve their independence and he takes this to require, in some circumstances, war (1983: 279, 279–87).20 Hence, Nardin can deliver a principle of jus ad bellum.

If we turn now to the question of what rules should constrain states when waging war Nardin affirms a principle of non-combatant immunity and a principle of proportionality (1983: 287–94, 294–304). In defence of the former he offers an interesting and ingenious argument. He makes the point that since the conflict is between one government (or state) and another then they may only target those people who are part of the state. To attack civilians is to attack third parties that are not part of the conflict (1983: 289–90).21 Nardin refers, when making this argument, to Rousseau's discussion in The Social Contract [1762] and it is worth quoting Rousseau's analysis: ‘War, then, is not a relation between men, but between states; in war individuals are enemies wholly by chance, not as men, not even as citizens, but only as soldiers; not as members of their country, but only as its defenders. In a word, a state can have as an enemy only another state, not men’ (1968 [1762]: bk. I, ch. 4, p. 56).22

A corollary of this is that states waging war can seize ‘public property’ but must respect ‘the persons and possessions of private individuals’ (1968 [1762]: bk. I, ch. 4, p. 57). This embodies the key point that since the conflict is between states, those who are not part of the state are not part of the conflict and thus may not be attacked (1968 [1762]: bk. I, ch. 4, p. 57).23

Two points are worth noting about this argument. The first is that it uses a state-centric argument to derive the principle of non-combatant immunity and, if successful, shows that one does not need to rely on individualistic notions such as human rights. The second point to note is that this argument overcomes one of the problems suffered by Walzer's approach for it derives the rules of jus in bello from the same source as its account of jus ad bellum. As such there is no risk of the conflict between the two that afflicts Walzer's treatment.

If we turn now to the question of proportionality, Nardin defends this principle on the grounds that states would find it ‘inexpedient’ to use disproportionate means (1983: 290, cf. pp. 290–2). His argument does not invoke individualistic (p.201) concepts such as human rights (1983: 292–4). Rather the logic of the argument is simply that states have no reason to use excessive force; so a state-centric logic can yield a principle of proportionality. The ideal of a society of states thus yields a developed account of both jus ad bellum and two principles of jus in bello.

Four points can be made against Nardin's theory. First, his account of jus ad bellum is persuasive only if we make a prior commitment to his vision of a society of states. However, as we have seen in Chapter 5, this kind of approach is vulnerable to telling objections. Second, Nardin's defence of non-combatant immunity, whilst ingenious, lacks the precision needed to individuate combatants and non-combatants. The key point—that war is a conflict between political powers and that those that are not party to the quarrel may not be attacked—is appealing but it fails to tell us who counts as party to the quarrel. Nardin and Rousseau claim that it shows that soldiers only may be attacked (Nardin 1983: 289–90; Rousseau 1968 [1762]: bk. I, ch. 4, p. 57) but a case could be made for including all government representatives and civil servants as organs of the state. Can they not be said also to be integral parts of the entities in conflict and hence a fit object for attack? Third, Nardin's defence of proportionality is suspect. He argues that states should not use excessive force because to do so is not ‘expedient’. However, even if this yields an intuitively plausible conclusion it does not do justice to people's views about why disproportionate force is wrong. It cannot capture the thought that those who are the recipient of disproportionate force are treated unjustly because it is based on the lack of benefit to the user of undue force rather than on the pain and misery suffered by the targets. Finally, we might fault Nardin's account for it is hard to see how it can ground any prohibition on using certain methods. It cannot, for example, explain why states should not employ napalm or flamethrowers. Nardin writes that bans on using certain methods are less important than rules against directly attacking non-combatants (1983: 289). He may thus be willing to accept this conclusion but it is one that should make us pause before we sign up to his statist vision. Nardin's vindication of jus in bello is thus found wanting.

V

Having faulted two important analyses of just warfare which both draw, in distinct ways, on the norms that states accept or would accept in a society of states, let us now consider cosmopolitan accounts of just war.24 State-centric accounts of jus ad bellum and jus in bello fail in various ways to do justice to individuals. Their accounts of jus in bello, in particular, have problems yielding individualistic principles such as non-combatant immunity. Given this we have reason to consider more cosmopolitan approaches for in virtue of their individualistic premises they might be thought to be a more fertile source.

Unfortunately, and perhaps surprisingly, cosmopolitan thinkers have not provided systematic accounts of jus ad bellum and jus in bello. As we shall see shortly, some have written on some aspects of jus ad bellum and others have written on some aspects of jus in bello but none has generated a comprehensive (p.202) theory of both aspects of just warfare.25 In what follows, my aim is to construct the general structure of a cosmopolitan theory of jus ad bellum and jus in bello from standard cosmopolitan principles. With this in mind, we can then consider two specific cosmopolitan contributions to just war theory.

To generate the general principles of a cosmopolitan theory of just war, it is worth outlining again the standard principles of jus ad bellum and jus in bello and noting the ways in which cosmopolitan principles either vindicate them or call for revision. Let us begin then with the principles of jus ad bellum. The conventional principles listed earlier comprise:

  1. (1) there is a just cause;

  2. (2) war is authorized by a legitimate body;

  3. (3) those waging the war have just intentions;

  4. (4) the costs incurred by the war are not disproportionate in comparison to the wrongs that justify the waging of war (proportionality);

  5. (5) war is the last resort;

  6. (6) the war has a reasonable chance of meeting its objectives (Johnson 1999: 28–9).26

Before exploring the cosmopolitan position on these six principles we should make three preliminary observations. The first is that one of the above principles—principle (6)—would seem to be unaffected by the adoption of a cosmopolitan approach. The idea that war may be waged only if it has a reasonable chance of meeting its just objectives (principle (6)) is simply a highly plausible principle that does not depend on a commitment to any specific moral or political theory (although how we define these ‘objectives’ obviously does and it requires reference to the ‘just cause’).

Second, it is worth elaborating further on principle (5). The requirement that war be the last resort rests on the moral assumption that agents may resort to a course of action only having considered less awful options first (where ‘awful-ness’ is measured in terms of number of rights violations and the nature of the rights). It is hard to see how anyone could seriously deny this. It then reaches the conclusion that war is the last resort by making the assumption that war is always the most awful option. Again, this is pretty plausible but it is worth nonetheless bearing in mind that the fundamental moral principle at work is the following:

(5i) war may be resorted to only having considered less awful options (the least awful option).27

Of the two principles—(5) and (5i)—(5i) is the more morally basic and (5) derives its plausibility from (5i). For this reason it is better to replace (5) with (5i).

Third, we should record that there is a powerful argument against (3). (3) is a staple of traditional conceptions but, as Moellendorf has persuasively argued, it is not clear why it is necessary for those waging war to have the right intentions. As he points out, an account of justice is concerned that people's rights are respected and it regards a system as just if people are enjoying their rightful entitlements. (p.203) The intentions of the political leaders are not really relevant to the question of whether the system is just. Consider examples other than the waging of war. If we accept an egalitarian theory of distributive justice, we think that a distribution is fair if people have equal shares: the intentions of the political authorities are not germane. Theories of distributive justice do not include a ‘just intentions’ clause stating that a distribution is just only if the politicians responsible for it had the right thoughts and it would be anomalous to claim that just intentions are required for just warfare but not for civil and political justice or distributive justice. If politicians wage war in a way that protects people's rights but some of them do this because they want to be well thought of then this is not pertinent to the question of whether it is just (Moellendorf 2002a: 122; cf. also Brown 2002b: 108–9). (3) should, thus, be rejected.28

Having made these three observations we may now examine the ways in which accepting a cosmopolitan framework requires revisions of the remaining principles—namely (1), (2), and (4).

Let us start with the concept of ‘just cause’. Cosmopolitanism has two implications. The first concerns when a regime may wage war in self-defence. Traditional just war theory maintains that all states that are attacked have a right to wage war in self-defence. Such a sweeping statement is, however, unsustainable from a cosmopolitan framework because the latter maintains that states (and political systems in general) are legitimate only if they serve the interests or rights of individuals (Barry 1999: sec. IV; Beitz 1994). As we have seen above, states should not be fetishized: they are human institutions and like any other human institution some are wicked, corrupt, repressive, and inhumane. And where they are, there can be no grounds on which to say that they have a moral right to defend themselves. This key point is rightly stressed by David Luban in an illuminating discussion of jus ad bellum (1980a: 160–81).29 Luban argues that states do not have intrinsic value and that this entails that they do not have an unconditional moral right to defend themselves. The right to wage war in self-defence is a right possessed only by a legitimate state (1980a: 164–6).30 We therefore need a criterion of moral legitimacy. In Luban's view, states are legitimate if they defend human rights and if they enjoy the consent of the people (1980a: 167–70).31 One need not, however, accept Luban's specific (contractarian) account of moral legitimacy. What is crucial here is his point that whether states have the right to wage war in self-defence depends on whether they are legitimate and this is consistent with accepting other cosmopolitan accounts of moral legitimacy (such as, say, a utilitarian approach).

The precise relationship between, on the one hand, the justice of a political system and, on the other hand, whether it has ‘just cause’ needs to be stated carefully for it can be easily misunderstood. To see this consider two statements about the relationship.

  1. (a) A political regime does not have ‘just cause’ if it is unjust.

  2. (b) A political regime does not have ‘just cause’ if it is unjust and waging war does not make it more just than it currently is.

(p.204) (a) may seem to follow from the reasoning in the previous paragraph and may also seem intuitively plausible. If a regime is unjust how can it claim to have a just cause to defend itself? (b) might also have some appeal. It is affirmed by Moellendorf who, in a discussion of the war to defend Kuwait against Iraq, argues that since Kuwait was unjust and ‘[s]ince there would be no improvement from the perspective of justice by restoring the Kuwaiti regime to power, the war to do so lacked just cause and was therefore unjust’ (2002a: 161). However, neither (a) nor (b) is plausible. To see why consider the following example:

One political regime, X, attacks another political regime, Y. Y is far from being an internally just society. Furthermore, a war defending Y against X's attack (either by Y or by states that come to Y's aid) would not make Y a fairer society. However, if Y (or other states) do not wage war to defend Y against X's attack, and Y is consequently conquered by X, Y will become even more unjust than it currently is. As members of a conquered colony they are treated brutally and thoroughly exploited, and suffer even more injustices than they experienced before.

Now according to (a), Y does not have ‘just cause’ because it is unjust. And according to (b), Y does not have ‘just cause’ because waging war will not make it a more just society. But this is surely perverse for denying Y (and other states) ‘just cause’ to defend Y results in an even more unjust state of affairs, one in which there are far more serious rights violations. (a) and (b) result in more injustice. We should, thus, accept a third principle:

(c) A political regime has ‘just cause’ even if it is unjust (contra (a)) and even if waging war does not make it more just than it currently is (contra (b)) if waging war produces a more just state of affairs than would be the case if no war is waged and it is conquered without any military resistance.

The problem with (a) and (b) is that they exclude from their account of ‘just cause’ the effects on an unjust regime of its being attacked. Once we consider the latter we can see that even unjust political regimes can have just cause. It would be perverse to claim that a regime has no just cause simply because it has a poor human rights record if not waging war would result in an even worse human rights record.

A second way in which cosmopolitanism entails a revised understanding of ‘just cause’ concerns the question of whether regimes that are not the victims of aggression have a right or duty to wage war in defence of an attacked regime. The conventional understanding of this issue is that (setting aside allies who may have a contractual duty to assist an attacked state), regimes may come to the aid of attacked regimes but are not duty bound to do so.32 Against this, a cosmopolitan approach maintains that persons have duties to other persons. A corollary of this is that third parties may be under a moral duty to wage war on behalf of the members of a regime that is unjustly attacked.33 This duty may of course, be balanced against other duties that a regime has (including, notably, duties to (p.205) its own citizens): the duty is thus overridable. It is nonetheless a genuine duty: a powerful regime that could do something to prevent another regime from being conquered but stands idly by, and thereby allows the institution of an even more unjust state of affairs, is condemned by such a cosmopolitan approach.34

If we turn now to the stipulation that just war must be authorized by a legitimate authority, we can see that cosmopolitanism requires a revision in the conventional interpretation of this requirement. Today it is often assumed that this entails that only a state can wage a just war. From a cosmopolitan perspective, however, we should not simply assume, without supporting argument, that there should be a world of states and hence that the authority to engage in warfare should rest with states. The existing world order is, no doubt, primarily a state-centric order but it would be wrong to assume that the appropriate legitimate authority is necessarily, in the nature of things, a state. Suppose, for example, that we live in the sort of world order defended in Chapter 5—a world of democratic supra-state authorities. In such an order if one political regime were to attack another, the authority to determine whether force may be used by the latter (and/or others) to repel the former might rest with a supra-state body.35 For a less extravagant illustration of this argument, consider proposals to pool armed forces—so-called collective security arrangements. Insofar as this occurs, authority passes to supra-state bodies. The central point is that to the extent that we question a purely statist political order we also question whether the right to make war rests with states. Of course, even within our world the recent war against Iraq brought out the fact that many thought that war could have been legitimate only if it was authorized by the United Nations.

At this point it is worth considering a challenge to the claim that war must be sanctioned by a legitimate authority made by Moellendorf. Moellendorf's argument occurs in the context of his discussion of intervention and having identified the principles of a just intervention he then claims that they can be applied to other cases where military force is deployed (2002a: 142, 158). It is necessary to bear this in mind to make sense of his argument. His argument has two aspects. First, he argues that legitimate authority has only instrumental value and can only be valued because it results in order. It does not have any intrinsic moral value. Second, he argues that to stipulate that war may only be sanctioned by a legitimate authority may result in outcomes in which people's rights are violated and that a war that could prevent this is forbidden because a legitimate authority has not authorized it. We are faced, then, with a conflict between the value of order and the value of justice and in such cases, claims Moellendorf, we should choose justice (2002a: 121).

Since Moellendorf's argument is initially presented in his discussion of intervention, this argument will be discussed more extensively in Chapter 7. However, three points should be made here. First, the second step in Moellendorf's argument is implausible. Why would waiting for a legitimate political institution to authorize war be time-consuming and hence costly? It is hardly likely that a political regime that has been attacked will take an undue amount of time wondering (p.206) whether it should wage war or not. Here the original context of Moellendorf's argument shows for his assumption about the costs of a ‘legitimate authority’ principle makes sense in that context (which is not to say that it is correct). It is at least arguable that to require a legitimate authority involves a delay and that that will lead to the unnecessary prolongation of injustice. However, it has little force where A has been attacked and seeks to wage war in self-defence.36

Second, Moellendorf's argument overlooks the force of the classical case for legitimate authority. We gain a better understanding of the value of the ‘legitimate authority’ condition if we consider Aquinas's argument for it. Aquinas reasons that: ‘it is not the business of a private individual to declare war, because he can seek redress of his rights from the tribunal of his superior’ (1988 [1266–73]: 221). This suggests the following logic: before taking the law into our own hands we must try other more legitimate channels. This is one reason why private individuals cannot wage war. Furthermore, suppose that a wrong is being committed in my regime. I do not have the right to take the law in my own hands because the first option should be to go through the legal channels. Given this the same should be true of using force against an aggressor.37 The point could be expressed the other way round: since we have justified a set of political institutions with authority to implement principles of justice (in my case the institutional framework specified in Chapter 5) it would be odd not to conclude that it is institutions that have the authority to protect people's rights.38

Third, we need to have a legitimate authority because often there is dispute about whether war is justified. Modern societies are not homogeneous; they contain people who hold profoundly different beliefs on when and how war may be waged. To give some obvious examples: there was controversy over the war against Afghanistan. Similarly, the need for a legitimate authority was evident in early 2003 given that there was profound disagreement as to whether war should have been waged against Iraq and, if so, on what grounds. More generally, there is often controversy over whether we have a duty to wage war on behalf of others. There may also be controversy as to what means may be used. And so on. Given such disagreement it is clear that there needs to be an authoritative decision as to what is done: there needs, in other words, to be a legitimate authority. For these three reasons, then, Moellendorf's critique of the idea of legitimate authority is unsuccessful. The principle of legitimate authority stands and the cosmopolitan reformulation of it similarly remains intact.39

If we turn now to the concept of proportionality, we can discern a third implication of cosmopolitanism for just war theory. As Jeff McMahan and Robert McKim have persuasively argued, since the concept of ‘proportionality’ requires one to sum up the costs of war it raises the question of whether one should treat all casualties on a par. To apply the proportionality principle we need to know whether a death of one's own soldier is on a par with the death of an enemy soldier. McMahan and McKim raise this point to argue that it is acceptable to accept some (modest) national partiality (although I think they mean by this a partiality to one's own citizens) (McMahan and McKim 1993: 516–17; McMahan 1996: 87). (p.207) Robert Jackson raises a similar point, arguing that a state may adopt some methods (like bombing from a great height) even if it is more likely to result in civilian casualties if it minimizes the chances of the loss of life of one's own airmen and -women. He writes that ‘[t]he policy of limiting collateral damage—no matter how sincere the combatant's commitment to it, or how precise the available bombing technology—will always come into contact and perhaps conflict with the primary responsibility of all humane commanders: protecting their own people’ (2000: 229). He adds later on the same page that this sort of issue constitutes ‘a real difficulty with the just-war tradition: it does not come to grips with the ethics of citizenship; it is cosmopolitan in its ethical outlook’ (2000: 229). Of course, however, we need not follow McMahan, McKim, and Jackson in this weighting.40 It is, perhaps, helpful to think here of a continuum, at one end of which is ambitious cosmopolitanism (where this says that all persons—enemy, fellow citizen, or fellow ally—enjoy equal moral weight) and the other end of which is a strong partialism (where this says that enemy combatants and civilians enjoy zero moral weight). Quite how one explicates ‘proportionality’ depends then on how close one is to the cosmopolitan end of the spectrum. The key point is that one's construal of the principle of proportionality depends on how strong one's commitment is to cosmopolitan principles.

The above considerations provide the bare bones of a cosmopolitan account of jus ad bellum. Of course how they are fleshed out depends on what kind of cosmopolitanism one affirms. The point about the above is that it outlines principles of jus ad bellum potentially common to all cosmopolitan approaches. Having done this, let us now turn to the contributions that cosmopolitans have made to debates about jus in bello.

VI

We can consider two specific cosmopolitan accounts of jus in bello. First to be analysed is a utilitarian approach. It is cosmopolitan in that it treats people as equals; it includes all within its scope; and it recognizes that persons have duties to all other persons (Pogge 1994a: 89). What is the utilitarian position on the nature of a just war? The clearest answer to this question is provided by Richard Brandt, who outlines a derivation of utilitarianism and then generates three rules that he thinks should apply to the conduct of war (1972: 145–65).41

Let us begin then with his brief derivation of utilitarianism. Brandt reasons as follows: fair principles are those that rational persons would agree to when located behind a veil of ignorance. He then argues that such persons would adopt a qualified form of utilitarianism (1972: 149–50, 152). He contends that egoists will choose utilitarianism because from behind the veil it is the most rational way of maximizing their self-interest and that altruists will choose utilitarianism simply because it maximizes utility (1972: 152). However, he also adds that both will demand that utility be maximized ‘subject to the restriction that the rules of war may not prevent a belligerent from using all the power necessary to overcome (p.208) the enemy’ (1972: 152). Persons behind the veil would not ‘consent to or follow rules of war which seriously impair the possibility of bringing the war to a victorious conclusion’ (1972: 154, cf. more generally pp. 153–4). Brandt's position, then, is that

correct rules of war are those rules that maximize human happiness subject to the qualification that they must not inhibit people from employing ‘all the power necessary’ (1972: 152) to win.

Now, using this criterion, Brandt derives rules of war for three distinct types of situation. First, there are, according to Brandt, cases where the observance of moral constraints does not in any way undermine the successful prosecution of the war. In this kind of situation, he argues, utilitarianism requires compliance with these moral constraints. This means, for example, that captured combatants may not be slaughtered and that civilians in occupied territory may not be raped or treated cruelly (1972: 154–5). Second, there are cases where moral constraints are potentially costly to military success (1972: 155). Brandt here argues that one may override a conventional moral constraint if it makes a considerable difference to the successful prosecution of war (1972: 155–60). Stated more precisely he writes that one can disregard the conventional moral restraints if the expected marginal utility that this brings outweighs the expected marginal disutility of this action (1972: 157). Brandt adds that, on this criterion, utilitarianism is likely to condemn bombing civilians because the latter rarely has the (presumably intended) effect of demoralizing civilians and increasing one's chances of victory (1972: 159). Third, there are cases where one might incur military casualties by acting in a humanitarian manner (1972: 160). The sort of issues at stake here include whether one may simply kill prisoners of war given that they will be a drain on one's own resources or whether one can compel civilians in occupied territory to reveal where the enemy is hidden. Brandt argues that the latter would be wrong on utilitarian grounds (1972: 161). The upshot, then, of Brandt's constrained utilitarianism is a vindication of some familiar rules of war—including rules against attacking non-combatants and killing prisoners.

How plausible is this as an account of just war? Brandt's argument is vulnerable to three objections. The first concerns his derivation of utilitarianism. It is far from clear that persons behind a veil of ignorance would choose a principle of maximizing happiness. The reason for doubting this has been stated most forcefully by Rawls who, as is well known, argues that such a choice would be highly irrational. To choose utilitarianism is to risk an outcome in which one could be treated horrendously just because that increases the utility of others (1999c: 135, 138–9). Rawls also invokes what he terms the ‘strains of commitment’, where these refer to the demands imposed on people by political principles. Rawls makes the point that an agent's commitment to a contract is genuine only if he or she can honour it. That is, a contract can be genuine only if it does not impose unduly demanding ‘strains of commitment’. Drawing on this Rawls then reasons that no one can sincerely and genuinely choose utilitarianism for to do so is to choose a principle that he may not be able to honour (1999c: 153–5).42 Brandt's derivation of utilitarianism is thus suspect.

(p.209) A second set of problems with Brandt's argument concerns the restriction that he imposes on his utilitarianism. Brandt states, recall, that persons would agree to a utilitarian policy with the qualification that one can do everything in one's power to win the war (even if it lowers total utility) (1972: 152). This generates three problems. (i) It is not clear, contra Brandt, that persons would necessarily choose a principle that calls for victory (no matter what the cost). Might some not think that victory (either for them or for the other side) may sometimes come at too high a price? Such a choice seems far from irrational. An overriding blanket commitment to waging war no matter how high the cost to you, to your enemy, or to humanity or large, by contrast, does appear irrational. We simply have no reason to assume that doing everything possible to win a war is in each and every situation the rational choice. (ii) Second, suppose persons choose Brandt's restriction. It is difficult to make sense of this ad hoc qualifier. Adding it runs the risk of rendering Brandt's moral rules of war otiose. It entails that even if Brandt's rules of war do follow from his utilitarianism (which I shall call into question shortly) they can be violated whenever doing so prevents one from doing everything in one's power to win the war. In other words, the qualification can sanction policies at variance with Brandt's humanitarian rules, and since it takes priority it sanctions disregard for the rules of war. (iii) Finally, Brandt's ad hoc qualification generates a further problem for he has to explain why, if agents are happy to call for one deviation from utilitarianism, they would not also call for other deviations from utilitarianism. If Brandt allows one impurity in the utilitarian scheme why not others? Why would they not choose a moral theory which is generally consequentialist but which is hedged in by some inviolable rights? Brandt's particular brand of qualified utilitarianism is thus implausible.

Further problems surround Brandt's derivation of conventional moral constraints from utilitarian reasoning. One of the commonest criticisms of utilitarianism is, of course, that it sanctions repugnant outcomes. The topic of warfare is, moreover, a rich source of examples in which utilitarian reasoning does appear to generate morally grotesque conclusions. Consider Brandt's third category (1972: 160–1). It is very far from evident that a utilitarian policy does require supplying one's prisoners of war with (possibly scarce) food and medical resources. Brandt reasons that if both sides in a conflict adopted this policy then neither would be worse off. But the opposite is also true: if neither side did it, neither side would be worse off. Each would lose some of their own soldiers who have been captured but then each would also have less of a drain on their food and medical resources. The central point is that it is far from clear that utilitarianism would yield the morally attractive constraints Brandt claims it would.

VII

Having critically analysed one cosmopolitan analysis of jus in bello, let us now consider a second prominent cosmopolitan perspective, namely a deontological (p.210) approach. Deontological conceptions of civil and political human rights were, of course, examined in Chapter 3. Here I wish to examine the application of deontological principles to just warfare. A number of writers have developed such an account—prominent examples including Elizabeth Anscombe (1981a: 51–61; 1981b: 62–71) and more recently Richard Norman (1995). This section focuses on the particularly illuminating and powerful treatment provided by Nagel. It will concentrate on his important essay ‘War and Massacre’ (1972: 123–44) but we should also note that since publishing that essay he has continued to develop and refine the deontological perspective employed in this earlier work (cf. Nagel 1986: 175–85). Nagel's concern is, like Brandt's, exclusively with jus in bello and shall be examined as such. In ‘War and Massacre’ he contrasts utilitarian and deontological (which he terms ‘absolutist’) approaches to the ethics of war and seeks to motivate support for the deontological approach. The latter emphasizes the evil of performing certain actions and its concern is with the actions one performs rather than the state of affairs that result from those actions. As he puts it: ‘what absolutism forbids is doing certain things to people, rather than bringing about certain results’ (1972: 130, cf. more generally pp. 129–31). Absolutism refuses to take an aggregative or maximizing approach. The emphasis is not on the number of bad acts committed but on our not committing them (1972: 131–2). As Nagel again puts it: ‘Absolutism requires that we avoid murder at all costs, not that we prevent it at all costs’ (1972: 132).43

A deontological (or absolutist) approach, note, is clearly a cosmopolitan account. It includes all persons; stipulates that they must be treated as equals; and generates duties to all individuals (in this case certain negative duties) (Pogge 1994a: 89).

Why should we accept this approach? And what rules of war does it generate? Nagel's fundamental thought is that when we are doing something to someone we have to be able to justify what we are doing to that person (1972: 134, 136–7). To treat the person with respect we have to be able to give a justification to him or her as to why what we are doing treats them with respect. It requires ‘justifying to the victim what is being done to him’ (1972: 137). Utilitarians will offer ‘justifications to the world at large’ but this is inadequate for what is required here is a special justification to the person one confronts (1972: 137). Employing this method, Nagel generates two types of moral restrictions (1972: 133). First, it entails that one may not attack non-combatants. To do so would be to use them as a means to an end and not to show them respect (1972: 138–9). His account of who counts as a non-combatant is similar to Walzer's: non-combatants are those not participating in an activity which is solely required to wage war (1972: 139–40).44 Second, Nagel argues, employing this deontological framework, that one may not use certain weapons—such as starvation or poison—for these attack the person and not simply the soldier (1972: 141, cf. more generally pp. 140–1). One must distinguish ‘between the combatant and the human being’ and the only appropriate weapons are those that target someone as a combatant and do not target their capacity to be a human being (1972: 141).

(p.211) Let us now consider Nagel's argument. Nagel's vindication of moral constraints is open to four objections. The first is that it prioritizes and privileges the agent-relative perspective. Let me explain. Consider a case where a soldier is confronted with an instance in which attacking a non-combatant will result in fewer deaths. Consider, for instance, the following example, which is adapted from an example by Richard Norman (1995: 125):

one is on a commando raid in enemy territory and one's aim is to destroy enemy bomber planes which are used to bomb combatants and civilians in one's own country and in countries of one's allies. Now suppose that one encounters a non-combatant (hereafter Pi) who, on seeing you, will inadvertently give away your position. One can prevent this simply by killing her and thereby save the mission. To do otherwise is certain to lead to one's capture and hence to future bombing raids which will kill large numbers of innocent men, women and children (Qi-n).

Nagel maintains that one is ‘in a special relation’ to the agent (1972: 137) and as such one has to be able to justify to her what one does to her.

The problem with this is that it skews everything in her favour. It is surely unfair to say that one has to justify one's action to her but that one does not have an equal obligation to choose a course of action that one can justify to the innocent men, women, and children who will otherwise be killed.45 Nagel's approach fails, thus, to treat persons equally for it privileges and grants unequal moral worth to the person who happens to witness the commando raid. It grants higher moral authority to Pi and effectively demotes the others since no similar justification is, on Nagel's theory, owed to them. A fairer requirement is surely that one treats Pi on all fours with everyone else: to do otherwise is arbitrarily to give some people a lesser moral standing. Nagel's approach does so, moreover, for no reason other than that they have the misfortune not to be the inadvertent witness. Nagel's scheme penalizes some (namely Qi-n) who have the misfortune not to be in the agent's position whereas Pi is granted a privileged moral standing simply because of happenstance and sheer fluke.

Second, it is far from clear that Nagel's theoretical apparatus will necessarily yield his absolutist conclusions. More precisely, it is not clear that one can never justify policies which call for a rights-violation to the agent whose rights one is about to violate. Why is it not possible to say to a non-combatant: ‘look it is only by doing X to you that I can save the lives of many other non-combatants. I recognize that you have rights and that what I am doing violates them but just as much as you have rights so do other men and women and theirs will be violated unless I do X to you. If there were another way I would pursue it but there is not’? Nagel simply asserts that no such justification can be made (1972: 137) but the above is surely cogent. It is moreover a justification directed at the agent in question.

A third problem concerns Nagel's derivation of a ban on certain types of weapons (1972: 140–1). Nagel argues that we can distinguish between attacking the soldier and attacking the human (1972: 141). Weapons such as napalm (p.212) and flamethrowers, he maintains, are unjust because they harm the person rather than the soldier (1972: 141). Whilst Nagel's distinction does have some intuitive appeal, it can hold up only if we can think of ways of attacking someone as a soldier that do not harm them in any way as a human being. The obvious problem here is that virtually any attack on someone qua-soldier is also an attack on him or her qua-person as well. Take shooting at someone.46 Nagel allows this as an acceptable way to treat an enemy combatant but surely this represents a fundamental assault on that person as a human being. As Norman expresses the point, ‘[k]illing an enemy combatant is, if anything is, a case of attacking “the man, not the soldier”. It does not just put an end to his soldierly activities, it puts an end to all his activities’ (1995: 180).

A final problem stems from a more general problem with deontological moral theories as a class and has already been raised in Chapter 3, Section V. Notwithstanding the intuitive appeal of such theories they are vulnerable to a powerful objection that has proved hard to meet. Simply stated, the charge is that deontological perspectives are ‘irrational’.47 If according to a deontological perspective a certain action (torturing someone) is abhorrent then isn't it even worse if ten people are tortured? The point can be put another way. Deontologists condemn certain actions, but we need to ask what is wrong with these actions (actions like killing innocent people). Surely we condemn such acts because of the impact that they have on people. In other words, certain actions are wrong because of the states of affairs they produce. But, then, if this is the case we should seek to minimize these bad states of affairs: to abstain from one such action, even if performing it would prevent many identical actions, would be perverse.

Nagel's deontological account of jus in bello, thus, fails to treat persons as equals. It is unable to generate prohibitions against certain methods of waging war and it is vulnerable to the charge of irrationality.

VIII

Having criticized two prominent cosmopolitan discussions of jus in bello, this section will seek to construct an alternative account that aims to overcome the problems that afflict both the deontological and utilitarian approaches. The account draws on, and is indebted to, Sen's account of rights, notably his essay ‘Rights and Agency’ (1988). Sen's analysis of rights was employed earlier in Chapter 3, Section V, to criticize deontological analyses of rights but the positive implications of his thought were not fully developed. My aim is to do this here and to apply it to just war theory. Although Sen has not, to my knowledge, discussed ‘just war theory’ in any of his philosophical writings, his conception of rights nonetheless represents a fruitful approach with which to address the questions surrounding the nature of just warfare.

Let us begin then by outlining his approach. Sen defends what he terms a ‘goal rights system’, where the latter is defined as ‘[a] moral system in which fulfilment (p.213) and non-realization of rights are included among the goals, incorporated in the evaluation of states of affairs, and then applied to the choice of actions through consequential links’ (1988: 199). On Sen's approach, then, ‘people's enjoyment of their rights’ can and should count as one component of a good state of affairs. In this sense, it takes a consequentialist approach to rights. As Sen notes, making this claim is compatible with claiming that rights are intrinsically valuable and/or that their value derives from the benefits they generate (1988: 199–200). What is distinctive about Sen's approach is not the justification he gives of rights (as either intrinsically or instrumentally valuable): it is that persons' ability to exercise their rights is one aspect of a good state of affairs. Thus defined, a goal rights system can be contrasted, to its advantage, with both deontological and utilitarian approaches.

Consider deontological approaches (like Nagel's). The latter, of course, treat rights as ‘side-constraints’ and issue in negative duties that require us not to perform certain actions.48 As we saw in Chapter 3 Section V (using Sen's analysis), and has been noted above in the analysis of Nagel, this approach results in irrational outcomes for it will not allow a person to perform an action that will avert a state of affairs containing numerous rights violations (Sen 1988: 190–1, 195–6). A goal rights system, by contrast, is not indifferent to how many people's rights are being protected. In virtue of its sensitivity to consequences, Sen's approach is, therefore, not vulnerable to the charge of irrationality. Consider now utilitarian approaches such as Brandt's. The central problem with this brand of consequentialism is, as we have seen, its indifference to people's rights. Its concern is with maximizing utility and as such it may prove hostile to people's rights. In virtue of its commitment to rights, however, Sen's approach is not vulnerable to this objection (1988: 191–5).49 A goal rights theory, thus, possesses some intuitive appeal for it combines the virtues of both deontological and utilitarian conceptions and it avoids their vices. Unlike a deontological theory, it does not exclude ‘consequential analysis’ and, unlike a utilitarian theory, it does not exclude ‘non-welfarist evaluation of consequences’ (1988: 196).

Now if we accept this cosmopolitan conception of rights it has important implications for our account of jus ad bellum and jus in bello. To see its relevance to jus ad bellum we should return to the point made earlier in Section V, namely that whether a regime is entitled to defend itself, and whether other regimes should come to its aid, depends on whether the attacked state secures the rights of its members and non-members. We need, thus, a more general account of when and why political regimes have moral worth. And Sen's rights-centred framework provides such an account for it implies that whether a regime is morally legitimate depends on the extent to which it realizes the protection of people's individual rights. Accordingly, if we accept that what rights regimes have (including the right to wage war in self-defence) depends on their legitimacy (step one) and if we accept that the appropriate criterion of legitimacy is the extent to which a regime protects people's rights (step two), it follows that whether a regime has the right to wage war in self-defence, and also whether (p.214) other regimes ought to come to its aid, depend on whether it satisfactorily protects the rights of its members and non members.

If we turn now to jus in bello, it follows from this conception of rights that military forces must observe certain rights. To do otherwise is not to respect persons and their fundamental interests. This conception, it should be noted, might allow that in extreme circumstances it is permissible to violate non-combatant immunity if, and to the extent that, this is needed to protect the rights of a larger group of non-combatants. This, however, should not be confused with Walzer's version of the supreme emergency condition. It differs in three crucial respects. First, Walzer's justification of supreme emergency invokes the importance of the integrity of the political community: i.e., not the rights of persons. Second, Walzer sanctions the violation of non-combatant immunity even when lives are not at stake. Third, Walzer's account excludes from consideration the rights and interests of those who are not members of the attacked state. A rights-based account by contrast factors in not simply the rights of the members of the political system facing imminent danger but also the rights and interests of each and everyone.

The above is, of course, very schematic and much more needs to be said in its defence. However, before concluding this section, it is worth drawing attention to two further virtues of the account. First, unlike other theories (notably Walzer's), it can give a unified account of jus ad bellum and jus in bello. As I argued earlier, Walzer's theory is flawed because he fails to provide an integrated account of the rules of jus ad bellum and jus in bello. Indeed the principles embodied in his version of jus ad bellum conflict with the principles embodied in his version of jus in bello.50 The upshot of this is that the two come into conflict. One advantage of the cosmopolitan account sketched above is that such a conflict cannot arise because both jus ad bellum and jus in bello are derived from a common source—namely the rights of individuals. Second: although this chapter is not directly concerned with civil war it is nonetheless relevant to note that a cosmopolitan account is better able to provide principles to govern civil war than are statist conceptions of just war. Since the latter derive their conclusions from the practices of states and what states can agree to, it is not at all clear how suitable their principles are for conflict within the state or when there is in effect no state. A cosmopolitan account, by contrast, can simply ascribe the respective principles of jus ad bellum and jus in bello by drawing on its account of the equal rights of all persons.

IX

Some are likely to be sceptical of the theories that have been presented thus far. Some thinkers, informed by realist sentiments, are critical of the sorts of values defended by statists like Walzer and Nardin and are yet more critical of cosmopolitan conceptions such as those examined in the previous four sections. Common to these criticisms is a belief that these understate the importance of (p.215) power politics and the national interest and attribute too significant a role to moral and legal considerations. It is worth noting that even if one rejects realist claims on other issues, realism is perhaps best suited to discussions of warfare. Since many realist prescriptions operate on the assumption that the relations between states are characterized by conflict and mistrust, one might expect realist normative claims to have most force during times of war. In this and the following section I shall therefore examine realist perspectives on just war. As David Mapel observes, we can identify realist perspectives on both jus ad bellum and jus in bello (Mapel 1996, esp. p. 55; cf. also Wight 1991: 220–1).

Let us begin, then, with jus ad bellum. As we have seen throughout this book, what matters from a realist point of view is the promotion of the national interest. A foreign policy that maintains that the state's duty is to further the national interest issues in at least four implications for the rules of jus ad bellum.

1. First, as both Mapel and Martin Wight observe, some realists maintain that it justifies pre-emptive strikes or even preventive wars if these can work (Mapel 1996: 59–60; Wight 1991: 220).51 Consider a state of affairs in which a state is evidently going to attack another state. Given the state's duty to protect its national interest, then there would seem to be a prima facie case for the second state's striking the first blow, rather than waiting until it is attacked and then responding.

2. A second implication pulls in the other direction. Whereas the first implication of a realist perspective is that states should be more warlike than conventional just war theory, a second implication of a commitment to the national interest is that there are occasions in which states should not wage war in self-defence where conventional just war theory would permit it (Mapel 1996: 61). Thus whereas just war theory entails a right of self-defence, realists would sometimes counsel a state not to exercise this right. E. H. Carr provides a clear illustration of this point for in The Twenty Years's Crisis he famously argued for appeasing Hitler (Dunne 1998: 44–5, fn. 61). Where an aggressor is powerful and the waging of war is extremely costly, one may best promote the national interest by not fighting but appeasing the enemy. This is not, note, in itself, a contradiction of orthodox just war theory because it is not denying the alleged right. It recommends that states do not seek to defend themselves by waging war and this is consistent with claiming that states have this right.

3. A third implication of the realist perspective on jus ad bellum concerns the aims of war. Conventional just war theory, and cosmopolitan approaches, maintain that states should wage war to achieve a just peace. If, however, states should seek solely to further their national interest then they have no reason to aim for justice or peace except insofar as it promotes their national interest.52

4. To this we should also add, fourth, that realists would reject out of hand the cosmopolitan claim advanced in Section V that states have a duty to come to (p.216) the aid of other states that have been unfairly attacked. If the national interest is the prime value, then states have no reason to assist other beleaguered states unless doing so happens to coincide with its national interest. It is on these lines, for example, that Robert Tucker and David Hendrickson criticize the USA's waging of war against Iraq to liberate Kuwait in 1991. Their argument in The Imperial Temptation is that states should promote their own interests and since the USA had no need to wage war against Iraq to protect its interests it should not have done so. War on behalf of others is wrong (Tucker and Hendrickson 1992, esp. p. 16). In the same vein a prominent contemporary neo-realist writes, ‘wars should not be fought for idealistic purposes, but instead for balance-of-power reasons’ (Mearsheimer 1995: 48).

Underpinning each of these claims is a commitment to prioritizing the national interest over and above any respect for the rights of other states or the members of other states. As such, three points are in order.

  1. 1. First, since the rationale for each of these claims depends directly on whether we accept a lexically prime goal of maximizing the national interest, it is worth revisiting the sorts of arguments adduced for privileging the national interest and considering their applicability to questions of warfare. For example, one standard argument for realism maintains that adhering to moral precepts actually makes matters worse and that states achieve (morally) better outcomes if they advance their own interests. Such an argument, however, lacks force when we consider jus ad bellum. Given the enormous differences in military capacity, a system in which states sought only their own interests would involve the powerful subjugating the weak.

  2. 2. Second, when appraising the claim that states must subordinate all other objectives to their pursuit of the national interest it is worth pondering why the state should enjoy this status. After all we deny this to other human institutions. Why then should we allow states to exempt themselves from working within the bounds of justice? If we do not think that other institutions—like churches or economic firms or trade unions—may further their interests by violating background principles of justice then why should we think the state any different? (Barry 1991b: 165; Pogge 1992a: 93–4).

  3. 3. Third, it is worth considering the realist defence of pre-emptive strikes and preventive wars. This argument suffers from an epistemological and a moral objection. The epistemological problem is that states will rarely, if ever, have certain knowledge that an attack is imminent and there is therefore a high risk of a state attacking when it lacks good reason to do so. The problems that the United States and the United Kingdom have had in establishing that Iraq possessed weapons of mass destruction are a particularly graphic illustration of the difficulties in claiming that one knows that a state is willing and able to attack. The moral problem is that a practice of pre-emptive strikes is highly likely to accelerate conflict.

(p.217) X

Having considered realist positions on jus ad bellum let us turn now to realist perspectives on jus in bello. The realist claim can be described as arguing for what might be termed a minimizing effect. By this I mean that realists tend to argue that the role of principles, such as that of non-combatant immunity, should be rejected to the extent that they impede the protection of the national interest and they are more willing to argue that necessity justifies overriding such principles (Mapel 1996: 65–8, 68–73). In Wight's words, one feature ‘of the Realist doctrine is the acceptance of unlimited war, of the maximum exercise of strength. … War is inherently illimitable and uncontrollable’ and hence ‘talk of “methods too horrible to employ” is sentimental nonsense’ (1991: 220, cf. pp. 220–1). Many realists do not argue that moral considerations should be abandoned: it is rather that traditional just war theory (and cosmopolitan conceptions) grant undue importance to certain ‘idealistic’ moral considerations and grant insufficient importance to the primacy of the national interest.53 Realists are thus keener to invoke supreme emergency conditions to override rules of jus in bello.

Why should we accept this line of reasoning? The key normative premise in this argument asserts that the extent to which one should comply with moral strictures depends upon, and is proportionate to, the extent to which one can expect others to reciprocate. The idea here is that one would be foolish to comply with rules such as those of non-combatant immunity and the rule to use proportionate force if one's opponent does not. It adds, moreover, that in wartime one can have no guarantee that one's opponent will comply. People will simply not adhere to any proposed rules of just conduct since the state of war is, by its nature, one of violent disagreement. But given this, why should one stick to the rules if one's opponent does not?54

There are three possible replies to this line of reasoning. First, one might argue along constructivist lines that the national interest is often defined in moral terms. That is, one might argue that people build into their conception of their national interest certain moral standards and ideals. Hence fulfilling their national interest requires them to conform to certain moral standards. To perform acts like intentionally killing civilians or using disproportionate means may then be to abandon their national interest because it is in contradiction of their self-image as civilized and just. How relevant this point is depends upon two factors. First, it depends on the extent to which a state's conception of its national interest has moral notions built into it. Perhaps they are a subordinate and minor component of it. Second, it is a function of the content of those moral notions. It depends, that is, on whether a state is profoundly committed to human rights or humanitarian virtues or whether it sees such values as signs of weakness. Nonetheless, it is fair to say that for many states it is part of their self-image that they treat both combatants and non-combatants fairly.

A second response to the argument targets the empirical assumption that states will not comply with moral codes during war. Key to the realist argument (p.218) is the assumption that those in a state of war with each other will not agree to abide by some rules of humanity and cannot trust one another. This too, however, is contestable as a description of relations during war and its scepticism is too sweeping. As a number of writers observe, even in conflict people can agree on certain rules of war (Jackson 2000: 217–18; Walzer 1977: 3–20, esp. pp. 11–20). Indeed, Morgenthau himself argues that states tend to rule out certain courses of action as morally unacceptable (1985: 252–5), although he adds that there has been a decline in observance of rules of jus in bello, a decline he thinks results from increasing democratization and nationalism (1985: 256–74). Even though his emphasis is on the decline in standards what his discussion makes clear is that compliance is variable depending on historical and social circumstances. Any sweeping assertion to the effect that during war there can be no common standards should thus be rejected. It may be tempting to think that when there is violent conflict there are no holds barred but such temptation should be resisted.55

Finally, and most crucially, we might question the normative assumption made by this argument that a state can be obligated to comply with rules of jus in bello only if the state(s) with which it is at war also complies with them. Performance of duties is thus conditional on other parties (most notably one's enemy) reciprocating. This assumption is, however, not self-evidently true. Against it, one might reason that it is the mark of a civilized state not to descend to cruelty and injustice just because its enemy does and that to do so is to forfeit some of its moral standing. The idea here is that one should not stoop to the same low levels as others if one is to retain one's moral integrity and decency. One might, however, reach the same conclusion by another route. Look at it from the point of view of the victims and consider the non-combatant members of a state with which one is at war. Suppose that the enemy initially complies with rules of jus in bello but later violates them. The central reason for not harming non-combatants (or for minimizing harm to them) surely stems from their moral standing and dignity as persons. But if this is the case, then does this not remain constant even if one of their military commanders himself commits war crimes? His act does not lower their moral standing or their intrinsic value. Their moral worth and the obligations that one had before surely remain the same as before.

To this one might add that the realist argument gains force if we anthropomorphize states and treat them as analogous to individuals. Consider a situation where two individuals are in conflict. If one adopts underhand methods then one might (notwithstanding the last point) argue that in doing so he or she has relinquished their right not to have the same done to them. Accordingly, the other is no longer bound by a duty to honour the rules. The realist argument, I want to suggest, acquires any intuitive plausibility it possesses from appealing to this sort of two-person situation. However, war between states is disanalogous to such situations for what is almost always the case is that one person or persons from state A commits a violation against members of state B and then some (p.219) members of state B commit a violation against some members of state A who did not commit the initial violation. So we cannot say that they brought it upon themselves and relinquished their immunity to be treated in this way for the person(s) committing the atrocity and the person(s) suffering the ensuing response are not one and the same. Hence any intuitive appeal that the two-person example has (and I am not arguing that it should be endorsed) cannot be transposed to the international level and employed to legitimize one state transgressing rules of jus in bello if its opponent is doing so or has done so.

XI

This concludes the arguments of this chapter. The aim throughout has been to assess the question of whether political regimes may wage war in response to external wrongs and, if so, when and how may they wage war. More particularly it has argued that

  1. (1) Walzer's account of jus ad bellum is flawed and that none of his defences of the right of states to wage war in self-defence is persuasive. He does not, moreover, provide an argument for his rules of jus in bello and his account of when and why it may be overridden is too permissive;

  2. (2) Nardin's defence of jus ad bellum presupposes a commitment to the society of states and that his derivation of non-combatant immunity and proportionality are unpersuasive.

    Having examined two state-centric perspectives, the chapter then turned to cosmopolitanism, and

  3. (3) constructed a general cosmopolitan account of just war, outlining the principles that would be endorsed from a cosmopolitan point of view.

    It then proceeded to examine two specific cosmopolitan contributions to just war theory, arguing that

  4. (4) Brandt's utilitarian analysis of jus in bello fails because (a) he does not provide a compelling defence of his qualified utilitarianism and (b) he fails to show that morally acceptable rules of war issue from it; and

  5. (5) Nagel's deontological analysis of jus in bello fails (a) to treat persons as equals, (b) to explain why certain weapons may not be employed, and (c) to meet the charge of irrationality.

    It then

  6. (6) outlined a particular consequence-sensitive account of rights and sought to derive principles of jus ad bellum and jus in bello from it.

    Finally, it critically assessed

  7. (7) realist challenges to orthodox and cosmopolitan conceptions of jus ad bellum and jus in bello, arguing that none succeed.

(p.220) One further point that emerges from the analysis in this chapter is the interconnected nature of a global political theory. The analysis of this chapter has shown how an account of just war would be incomplete if it were conducted in isolation from an analysis of other issues in global political theory. This holds for three reasons. First, as we have seen above, many accounts of just warfare argue that aggression is justified in defence of a political regime's rights. For this argument to succeed, however, we need to know what rights such regimes have and what moral standing is possessed by the state that has been attacked (Chapter 5). Second, conventional accounts of jus in bello maintain, as we have seen above, that individuals (including both combatants and non-combatants) have rights. It thus rests on an account of persons' civil and political human rights (Chapter 3). Third, an adequate account of just war cannot be divorced from an analysis of the nature and strength of persons' obligations to fellow citizens and to fellow human beings (Chapter 4).56 The upshot of these considerations then is that analyses of just warfare should not be conducted in isolation from analyses of other issues in global political theory.57

(p.222)

Notes:

(1.) Here I follow Rawls (1999b: 90–105).

(2.) I should stress that my account cannot claim, in any way, to be exhaustive. It does not, for example, discuss the important contributions to the just war tradition by some distinguished contributors like Paul Ramsey. Nor does it discuss the defences of pacifism given by Christian thinkers like Leo Tolstoy (1987 [original date unknown]), Stanley Hauerwas (1986), and John Howard Yoder (1994) or those by secular thinkers like Robert Holmes (1992). For discussions of Christian pacifism see Cartwright (1996) and Koontz (1996).

(3.) However, civil war is examined where it bears on the question of whether an external agent may intervene in another regime that is being torn apart by civil war. Civil war almost certainly issues in human rights violations and as such is a potential ground for intervention. As such it is covered by the principles of humanitarian intervention analysed in Ch. 7.

(4.) The above seven rules are drawn from James Turner Johnson (1999: 28–9). For a similar account see Norman (1995: 118). The only difference between Norman and Johnson is that the former, unlike the latter, includes the principle that there must be a formal declaration of war (1995: 118) and that the latter, unlike the former, requires that war be fought with the intention of attaining peace (1999: 29). For another very similar account of the just war tradition see the United States Catholic Bishops' document ‘The Challenge of Peace: God's Promise and Our Response’ (1992, esp. pp. 98–101). For a canonical statement of the first three conditions see Aquinas, Summa Theologiae, II-II, question 40, ‘Of War’, First Article (1988 [1266–73]: 221).

(5.) See, again, Johnson (1999: 29). See also Norman (1995: 119) and US Catholic Bishops (1992: 101, 101–4).

(6.) This is his first of five modifications to the legalist paradigm. Three other modifications concern the legalist paradigm's absolute prohibition on intervention: as we shall (p.221) see, Walzer details three instances in which intervention is acceptable (1977: 90–108). His fifth and final modification concerns the right to punish (1977: ch. 7). Walzer's account of non-intervention is analysed in Ch. 7, Sect. III and VII.

(7.) Brian Orend claims that ‘[i]t is crucial to note that, for Walzer, the moral standing of a state is contingent upon its protection of its members, both individually and collectively’ (2000: 91). My point is that Walzer fails to recognize the implications of thinking a state's moral standing is contingent in this way for his account of jus ad bellum. (It should also be stressed that the amount of protection the state needs to provide to have moral standing, for Walzer, is very low).

(8.) The argument of this paragraph supports the methodological point made in Ch. 1 about the interconnected nature of global political theory since it shows that one's conclusions about the legitimacy of particular states and one's position on the legitimacy of humanitarian intervention should inform one's account of when states may wage war in self-defence. To conduct the different questions in isolation is unacceptable for one's account of when a state may use force in another state (i.e. when it may use aggression) must cohere with one's account of when a state may use force to repel another state (i.e. when it may repel aggression). Otherwise one could generate the contradictory result that both forces had just aims.

(9.) There is a footnote after the word ‘liberty’ in which Walzer links the right of states to resist and the duty of citizens to fight (1977: 54–5).

(10.) See also Walzer's use of the term the ‘domestic analogy’ (1977: pp. 58, 61). On (1997, p. 58 footnote 9) he cites Bull's two 1966 essays on this: see Walzer (1977, p. 339, footnote 9) and Bull (2000a, b).

(11.) This problem is discussed at further length in Ch. 7, Sect. III. For good criticisms of the analogy Walzer deploys see Norman (1995: 132–4, and also pp. 134–8). See, more generally, his probing and comprehensive analysis of Walzer's account of jus ad bellum (1995: 132–40, 149–56).

(12.) This discrepancy is noted by both Glover (1986: 251–2) and Norman (1995: 1, 38–9).

(13.) Walzer's wording unwittingly concedes this. He writes: ‘The rights of the member states must be vindicated, for it is only by virtue of those rights that there is a society at all. If they cannot be upheld (at least sometimes), international society collapses into a state of war or is transformed into a universal tyranny’ (1977: 59, my emphasis). The clause in brackets appears to concede the possibility that aggression need not always be met with war for international society to survive.

(14.) Compare Walzer's position with Elizabeth Anscombe's striking statement: ‘[t]he present-day conception of “aggression,” like so many strongly influential conceptions, is a bad one. Why must it be wrong to strike the first blow in a struggle? The only question is, who is in the right, if anyone is’ (1981a: 52).

(15.) For the application of this principle to two case studies see Walzer (1977: 157–8).

(16.) This conflict between a collectivist commitment to state sovereignty, on the one hand, and a commitment to individual rights, on the other, surfaces in other aspects of Walzer's analysis of international affairs. For four additional instances see Frost (1996: 133–5).

(17.) Holmes provides a perspicacious analysis of the relationship between jus ad bellum and jus in bello in Walzer's work, relating it in particular to Walzer's treatment of supreme emergencies (1992: 217–22, esp. pp. 217, 221–2). Cf. also Walzer (1992: 224–6).

(18.) Kant (1996 [1797]: part II, ch. II, sec. 60, pp. 118–19).

(19.) For this point see also Nardin (1983: 302–3).

(20.) The ideal of a society of states entails not just the right of self-defence. Nardin maintains that it also follows that ‘a state may in some circumstances use force to vindicate the rights of other states and their inhabitants’ (1983: 287).

(21.) Nardin's account is framed only for instances where the external aggressor is another state but his argument could be extended to deal with non-state aggressors. The key criterion would be the same, viz., who is a participant in the conflict.

(22.) There is a footnote after the word ‘citizens’ which refers to the Roman practice whereby citizens who volunteered to fight did so by taking an oath specifying the particular enemy to be fought (1968 [1762]: bk. I, ch. 4, p. 56).

(23.) For an earlier version of this argument see Rousseau's discussion in Fragments on War (1991b [c.1755–1756]: 52).

(24.) For other interesting accounts of just war which also affirm the idea of a society of states/peoples see Rawls (1999c: 331–3; 1999b: 37, 89–105). Space precludes an examination of these arguments here.

(25.) One partial exception to this is Moellendorf who has a chapter on just war (2002a: ch. 7; cf. also 2002b). However, Moellendorf's treatment is limited in four ways. The first concerns his conception of ‘just cause’. Moellendorf's statement of the latter is framed very much in terms of the account of humanitarian intervention that he supplies in an earlier chapter of his book. Throughout he assumes that waging war involves invading a state (2002a: 104, 159–60). The same problem is apparent in his official statement of ‘just cause’. Moellendorf asserts that a regime has just cause in only two circumstances. In his own words ‘just cause for the use of military force exists if and only if the intervention is directed toward advancing justice in the basic structure of the state or the international effects of its domestic policy’ (2002a: 159). This, however, is radically incomplete for it is silent on whether a regime has just cause to wage war in self-defence when it has been attacked. The first point, then, is that Moellendorf's argument is distorted by its exclusive concern with intervention and overlooks, or perhaps rejects without argument, the claim that war may be waged to defend a just state from attack. A second limitation in Moellendorf's treatment of just war is that he explicitly does not discuss or provide an account of rules of jus in bello (2002a: 158; 2002b: 109). His account of both jus ad bellum and jus in bello is incomplete. As we shall see below, Moellendorf's account also suffers from two further problems. In particular, a third limitation of his account is that it affirms an unduly narrow account of ‘just cause’ (2002a: 161). Fourth and finally, Moellendorf wrongly rejects the claim that war may only be waged by a legitimate authority (2002a: 121).

(26.) I have omitted a seventh principle that Johnson gives—the statement that the goal of war must be a fair peace (1999: 29)—because this is best understood, not as a separate condition, but as part of what makes a cause just (principle 1).

(27.) The relevance of this will be apparent in Ch. 7 when we examine military humanitarian intervention. As we shall see there, it is arguable that there are options (such as economic sanctions) which are even worse in their effects than military action. In such cases, (5) is implausible—war is not the last resort and should be resorted to before sanctions—a failing that (5i) is not vulnerable to.

(28.) Two further points. First, although Moellendorf is a cosmopolitan, this argument does not, of course, depend on any cosmopolitan assumptions. Second, Moellendorf is not entirely consistent in his eschewal of the significance of the intentions of those (p.223) waging war and when exploring the justice of the Gulf War he questions the motives of the allies (2002a: 161).

(29.) See also Norman who writes: ‘in deciding whether a community ought to be defended, we cannot escape the need to make qualitative judgements about its cultural and political life. We cannot short-cut the argument by appealing to the concept of political sovereignty’ (1995: 153).

(30.) As Luban writes, ‘[a] legitimate state has a right against aggression because people have a right to their legitimate state’ (1980a: 166).

(31.) For Luban's conception of rights see (1980a: 174–5). For his rights-based account of ‘just cause’ see Luban (1980a: 175). See further (1980a: 175–6).

(32.) See, for example, Samuel Pufendorf's discussion. He maintains that ‘[o]ne may wage war on another's behalf as well as for oneself. This is justified where the party for whom one is going to war has a just cause, and where the party coming to aid has a reasonable ground for conducting hostilities on his behalf against the third party’ (1991 [1673]: bk. II, sec. 16, subsec. 11, p. 170). However, reasonable grounds for Pufendorf are that the attacked state is one of ‘our subjects’ or ‘allies’ or ‘friends’ or related to us by ‘kinship’ (1991 [1673]: bk. II, sec. 16, subsec. 11, pp. 170–1). Where none of these apply there is no duty.

(33.) This is, I think, briefly recognized in Luban's analysis but he does not develop the point (Luban 1980a: 175). (Moreover, in a later publication he retracts his earlier view (2002: 93–4, 111–12, fn. 30)). Cf. also Richard Norman's cautious assent to the idea of using force to defend another (1995: 131–2).

(34.) Grotius, we should note, maintains that ‘kings, and those who possess rights equal to those kings, have the right of demanding punishments not only on account of injuries committed against themselves or their subjects, but also on account of injuries which do not directly affect them but excessively violate the law of nature or of nations in regard to any persons whatsoever’ (1925 [1646]: bk. II, ch. XX, sec. XL, pp. 504–6). And he challenges Vitoria and others ‘who in justification of war seem to demand that he who undertakes it should have suffered injury either in his person or his state, or that he should have jurisdiction over him who is attacked’ (1925 [1646]: bk. II, ch. XX, sec. XL, p. 506).

(35.) This point is also recognized by Orend (1999: p. 334, fn. 28 and p. 343, fn. 46).

(36.) A question: what of third parties that are willing to wage war to defend a just political regime that is under attack? To require that such third parties can wage war only if they are authorized to do so might involve a delay. This is true, but the appropriate reply to it is that they need to be authorized because the attacked regime may not want their support. It might not, for example, want to be beholden to the United States.

(37.) The argument being employed here has some affinities with the idea of ‘least awful option’. Whereas the principle of ‘least awful option’ refers to the kinds of methods employed and insists that military force can only be employed if other less severe methods have been considered first; the principle of ‘legitimate authority’ refers to the kinds of bodies who can wage war and insists that we should first expect certain legitimate authorities to wage war.

(38.) Consider again Aquinas's defence of the ‘legitimate authority’ principle. He writes: ‘since the care of the common weal is committed to those who are in authority, it is their business to watch over the common weal of the city, kingdom, or province subject to them. And just as it is lawful for them to have recourse to the sword in defending that common weal against internal disturbances … so too it is their business to have (p.224) recourse to the sword of war in defending the common weal against external enemies’ (1988 [1266–73]: 221). Aquinas here invokes the authority of Augustine citing his Contra Faustum, XXII, 75: see Aquinas (1988 [1266–73]: 229, fn. 7).

(39.) An additional, distinct, argument for the importance of ‘legitimate authority’ is developed by David Rodin. Rodin argues as follows: war can (only) be defended as an action of law enforcement and punishment (2002: 174–88). The practices of law enforcement and punishment require a legitimate authority (2002: 175). Hence the waging of war must be authorized by a legitimate authority. Rodin also argues that states do not have the authority to wage war in order to enforce international law (2002: 176–9) and argues that such authority should rest with a global state (2002: 179–88).

(40.) See Ch. 4, Sect. X and also Caney (1996a; 1999a).

(41.) See also R. M. Hare (1972: 166–81). Brandt's focus, note, is exclusively on jus in bello and his account is silent on jus ad bellum.

(42.) See also Rawls (1999a: 229–30).

(43.) There is a footnote after the word ‘costs’ in which Nagel reflects on the possibility that non-avoidance of an evil action (e.g. murdering someone) is worse than non-prevention of that action (not stopping a murder) but that it is not prohibited (1972: 132, fn. 6).

(44.) See also Anscombe (1981a: 53).

(45.) For a related point made from a utilitarian point of view see Hare (1972: 183).

(46.) Nagel himself raises the question of why shooting is acceptable on his framework (1972: 141, fn. 11).

(47.) The problem is well-stated by Robert Nozick (1974: 30). Nozick, of course, believes the objection can be met, arguing that deontological injunctions ‘express the inviolability of other persons’ (1974: 32, cf. more generally pp. 30–3). For an illuminating discussion of this problem see Scheffler (1982: 82–114). See too Norman (1995: 76–7) who reports this consequentialist charge but does not endorse it.

(48.) The term is Nozick's (1974: 29, 29–35). In Anarchy, State and Utopia, Nozick anticipates a moral theory with the structure of Sen's ‘goal rights’ approach. He refers, for example, to ‘a “utilitarianism of rights” ’ which he describes as the view that ‘violations of rights (to be minimized) merely would replace the total happiness as the relevant end state in the utilitarian structure’ (1974: 28).

(49.) As we saw in Ch. 3, Sect. V, Sen's critique of both utilitarianism and deontological moral theories employs an example in which one person, Ali, will get bashed by some racists unless one breaks into someone's room, thereby finds out where Ali is, and consequently warns him (1988: 191–6).

(50.) Cf. again Holmes (1992, esp. pp. 217–22, 224–6).

(51.) This, of course, bears on the war against Iraq in 2003 since President George W. Bush defended the war on the grounds that the United States was entitled to engage in pre-emptive strikes to prevent Iraq from using weapons of mass destruction against it.

(52.) Consider Schmitt's view: ‘The justification of war does not reside in its being fought for ideals or norms of justice, but in its being fought against a real enemy.’ (1996 [1932]: 49)

(53.) Consider, however, Machiavelli's statement in The Discourses that ‘one's Country should be defended whether it entail Ignominy or Glory, and that it is Good to defend it in any way whatsoever’ (1988 [1531]: bk. III, sec. 41, p. 514). He continues in the same section to say ‘For when the safety of one's country wholly depends on the decision to be taken, no attention should be paid either to justice or injustice, to kindness or cruelty, or to its being praiseworthy or ignominious. On the contrary, every other (p.225) consideration being set aside, that alternative should be wholeheartedly adopted which will save the life and preserve the freedom of one's country’ (1988 [1531]: bk. III, sec. 41, p. 515).

(54.) A version of this argument is given by David Hume in his An Enquiry Concerning the Principles of Morals. Arguing that principles of justice derive their validity from being mutually advantageous, Hume writes ‘were a civilized nation engaged with barbarians, who observed no rules even of war, the former must also suspend their observance of them, where they no longer serve to any purpose; and must render every action or rencounter as bloody and pernicious as possible to the first aggressors’ (1988 [1777]: sec. III, part 1, subsec. 148, pp. 187–8). Hume, note, claims not simply that the ‘civilized nation’ may suspend their commitment to principles of justice: they ‘must’ do so as much as ‘is possible’.

(55.) We should also add that even if the enemy is deliberately targeting civilians and even if one thinks along purely rational lines one may have reason to pause before committing a violation if one's state has signed up to the International Criminal Court. If so, one may be prosecuted and one may be prosecuted even if one's enemy also committed rights violations. We should not, perhaps, make too much of this save to note that there may be prudential reasons for compliance even when one's enemy is not complying.

(56.) For this point see McMahan and McKim (1993: 516–17) and McMahan (1996: 87). (McMahan also argues that the weight of people's duties to fellow citizens is relevant to an account of ‘last resort’ (1996: 87–8)). On the more general point that just war theories presuppose an account of our duties to foreigners see Nussbaum (2000b: 177–8). For pertinent discussions of the weight of persons' duties to their fellow citizens in comparison with the weight of their duties to enemy persons see also Jackson (2000: 229) and Walzer (1977: 158).

(57.) These are not the only kinds of interdependencies between topics in global political theory. Consider, for example, two additional interconnections between war and distributive justice. First, the existence of warfare raises questions about to whom aid should be supplied? Should it, for example, go to aggressors and sustain them in their conduct of an evil war? Do people forfeit their entitlement to receive aid if such aid enables them to wage war unjustly on others (Slim 1997)? Second, and relatedly, any plausible normative account of distributive justice must be sensitive to the causes of poverty. It is sometimes assumed that the causes of poverty are natural calamities like famine but warfare can often cause it. For example, Alex de Waal has persuasively argued that the war waged by the Ethiopian military forces in Tigray and north Wollo in 1980–5 led intentionally to famine in those parts of Ethiopia (1997: 115–21). The military forces destroyed crops, animals, and food reserves, bombed market places and food transportation, prevented trade, food supplies, and mobility of traders and their produce, relocated people, and prevented relief from getting through to rebel areas (1997: 117–120). Given that war can be a cause of famine, some conventional responses to famine (exporting food and medical supplies) are insufficient because they do not tackle the problem at root. If, then, one holds that members of western societies have considerable duties to protect the entitlements of disadvantaged persons in Africa, it follows that fulfilment of this duty requires addressing the causes of war. The central point is that an adequate normative account of global distributive justice cannot be divorced from an empirical analysis of war.