Contemporary Issues in Jus in Bello: Some Problems Raised by Jeff McMahan's Killing in War

<p>The work of Jeff McMahan has revitalised discussion of just war theory with its rejection of the moral equality of combatants. The main aim of this thesis is to explore and develop McMahan’s work and recent challenges to it. I do this in four chapters. First, I outline McMahan’s account of liability to attack which subsequently shows why the moral equality of combatants is false. I defend his account of liability to attack from problems raised by Yitzhak Benbaji and Thomas Hurka. Second, I discuss developments by McMahan to the in bello condition of proportionality. I suggest that the features McMahan introduces, though innovative, do not go far enough and ultimately argue for David Rodin’s multi-factor account. Third, I defend Seth Lazar’s responsibility dilemma from objections by McMahan and Bradley Strawser. Fourth, I combine McMahan’s understanding of responsibility with Tony Honoré’s outcome responsibility and after establishing an account of collective responsibility argue that unjust noncombatants can be liable to intentional attack due to being collectively outcome responsible for the threat their state poses in war.</p>

Contemporary Issues in Jus in Bello: Some Problems Raised by Jeff McMahan's Killing in War

<p>The work of Jeff McMahan has revitalised discussion of just war theory with its rejection of the moral equality of combatants. The main aim of this thesis is to explore and develop McMahan’s work and recent challenges to it. I do this in four chapters. First, I outline McMahan’s account of liability to attack which subsequently shows why the moral equality of combatants is false. I defend his account of liability to attack from problems raised by Yitzhak Benbaji and Thomas Hurka. Second, I discuss developments by McMahan to the in bello condition of proportionality. I suggest that the features McMahan introduces, though innovative, do not go far enough and ultimately argue for David Rodin’s multi-factor account. Third, I defend Seth Lazar’s responsibility dilemma from objections by McMahan and Bradley Strawser. Fourth, I combine McMahan’s understanding of responsibility with Tony Honoré’s outcome responsibility and after establishing an account of collective responsibility argue that unjust noncombatants can be liable to intentional attack due to being collectively outcome responsible for the threat their state poses in war.</p>

Ética militar y fundamentación profesional. Evolución, conceptos y principios

Esta obra hace una valiosa contribución a la comprensión de la ética militar, como un elemento central de la carrera militar en Colombia, y destaca la necesidad de que fundamente en todo momento el cumplimiento de la misión constitucional que tienen las instituciones castrenses en el país. A través de tres volúmenes, se describen y analizan críticamente los fundamentos teóricos de la ética que orientan las reflexiones y el quehacer cotidiano de los miembros de las Fuerzas Militares, desde su proceso educativo en las escuelas de formación, hasta los distintos niveles y espacios operacionales en los que se desempeñan. Además, se analizan estudios de caso específicos de aplicación de la ética militar relacionados tanto con escenarios tradicionales, como con los nuevos contextos, caracterizados por los avances tecnológicos, las transformaciones de los actores delictivos, los cambios en las relaciones internacionales, las condiciones particulares de Colombia, entre otros aspectos. En este primer volumen se establecen las bases teóricas y conceptuales necesarias para el estudio de la ética militar. Específicamente, se abordan seis temas principales: el jus ad bellum, jus in bello, jus ex bello y jus post bellum; reflexiones teóricas en torno a la filosofía moral, la cultura y la educación; la familia; la corrupción; la toma de decisiones y el planeamiento operacional, y la estrategia. De esta forma, el libro enfatiza la importancia de fortalecer constantemente la ética miliar en Colombia para garantizar a largo plazo el correcto desarrollo de la carrera militar y el bienestar para los habitantes del país.

Non-Combatant Immunity and 'Just War'

<p>Moral philosophers and the international political community alike have traditionally valued the lives of civilians over those of soldiers. The first part of jus in bello, the doctrine which aims to characterise the just conduct of war, states that 'civilians, as non-combatants, must not be attacked or killed', whereas the only requirement concerning the killing of soldiers is that any attack must meet the requirement of proportionality: it must not cause so much harm that the good it does is overridden. Similarly, Article 51 of the Geneva Protocols states that 'the civilian population and individual civilians shall enjoy general protection against dangers arising from military operations', and that 'the civilian population as such, as well as individual civilians, shall not be the object of attack'. The requirement of proportionality is mentioned only with reference to the protection of civilian life or cultural objects, except in the general statement that 'it is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.' The specific protections offered to combatants are limited to wounded, sick or shipwrecked combatants, and prisoners of war - those combatants who most closely resemble civilians. The Protocols do state that all attacks must be limited to 'military objectives', but the definition of these objectives is permissive, to say the least: 'Military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.' To kill enemy soldiers in large numbers surely offers a definite military advantage. This thesis examines the moral basis for the distinction that these laws and doctrines draw between soldiers and civilians. I explain why the distinction between combatant and non-combatant casualties is not, in a significant proportion of cases, a morally sound one. I argue that any moral justification of the principle of non-combatant immunity must be of a utilitarian nature, pointing to its ability to limit the overall carnage of warfare. The implications for jus in bello of recognising that the principle can be justified only on these grounds are wide-ranging and important. If we want to retain civilian immunity, we must accept a utilitarian simulacrum of that doctrine. I argue that applying utilitarian standards to the just conduct of war will lead us to prefer very different sorts of policies from those currently embodied by jus in bello. Thus what we think about civilian immunity may have consequences for what we think about the moral foundation of our doctrine of just war.</p>

Non-Combatant Immunity and 'Just War'

<p>Moral philosophers and the international political community alike have traditionally valued the lives of civilians over those of soldiers. The first part of jus in bello, the doctrine which aims to characterise the just conduct of war, states that 'civilians, as non-combatants, must not be attacked or killed', whereas the only requirement concerning the killing of soldiers is that any attack must meet the requirement of proportionality: it must not cause so much harm that the good it does is overridden. Similarly, Article 51 of the Geneva Protocols states that 'the civilian population and individual civilians shall enjoy general protection against dangers arising from military operations', and that 'the civilian population as such, as well as individual civilians, shall not be the object of attack'. The requirement of proportionality is mentioned only with reference to the protection of civilian life or cultural objects, except in the general statement that 'it is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.' The specific protections offered to combatants are limited to wounded, sick or shipwrecked combatants, and prisoners of war - those combatants who most closely resemble civilians. The Protocols do state that all attacks must be limited to 'military objectives', but the definition of these objectives is permissive, to say the least: 'Military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.' To kill enemy soldiers in large numbers surely offers a definite military advantage. This thesis examines the moral basis for the distinction that these laws and doctrines draw between soldiers and civilians. I explain why the distinction between combatant and non-combatant casualties is not, in a significant proportion of cases, a morally sound one. I argue that any moral justification of the principle of non-combatant immunity must be of a utilitarian nature, pointing to its ability to limit the overall carnage of warfare. The implications for jus in bello of recognising that the principle can be justified only on these grounds are wide-ranging and important. If we want to retain civilian immunity, we must accept a utilitarian simulacrum of that doctrine. I argue that applying utilitarian standards to the just conduct of war will lead us to prefer very different sorts of policies from those currently embodied by jus in bello. Thus what we think about civilian immunity may have consequences for what we think about the moral foundation of our doctrine of just war.</p>

DIREITOS HUMANOS FRENTE AO DIREITO DE GUERRA

O presente trabalho tem por objetivo discorrer a respeito do direito de guerra, a fim de demonstrar o que se entende por guerra, fruto de convenções internacionais, fazendo uma célere exploração acerca do Jus ad Bellum e do Jus in Bello. Em síntese, a guerra é um ato de relações humanas que surge no exercício da política, e como a política é indispensável ao homem, é natural que a guerra continuará sendo um acontecimento recorrente. Nesse sentido, e adotando-se como alvo de análise os documentos internacionais que tratam sobre as circunstâncias bélicas, como as IV Convenções de Genebra e seus Protocolos, o artigo perpassa a noção do direito de guerra e seus limites, uma vez que o mínimo de humanidade ainda deve ser garantido mesmo nessa conjuntura. Isso se justifica pela imposição de preservação de direitos humanos, como a vida e a dignidade, em prol da convivência remanescente aos conflitos.

Just and Unjust Uses of Limited Force

Limited force—no-fly zones, limited strikes, Special Forces raids, and drones strikes outside “hot” battlefields—has been at the nexus of the moral and strategic debates about just war since the fall of the Berlin Wall but has remained largely under-theorized. The main premise of the book is that limited force is different than war in scope, strategic purpose, and ethical permissions and restraints. By revisiting the major wars animating contemporary just war scholarship (Kosovo, Afghanistan, Iraq, the drone “wars,” and Libya) and drawing insights from the just war tradition, this book teases out an ethical account of force-short-of-war. It covers the deliberation about whether to use limited force (jus ad vim), restraints that govern its use (jus in vi), when to stop (jus ex vi), and the after-use context (jus post vim). While these moral categories parallel to some extent their just war counterparts of jus ad bellum, jus in bello, jus post bellum, and jus ex bello, the book illustrates how they can be reimagined and recalibrated in a limited force context, while also introducing new specific to the dilemmas associated with escalation and risk. As the argument unfolds, the reader will be presented with a view of limited force as a moral alternative to war, exposed to a series of dilemmas that raise challenges regarding when and how limited force is used, and provided with a more precise and morally enriched vocabulary to talk about limited force and the responsibilities its use entails.

Jus in vi

Jus in vi is the set of moral principles governing how limited force is used. Taking the traditionalist jus in bello principles as a starting point, this chapter interrogates what necessity, proportionality, and distinction look like in a limited force context and makes the case for the novel psychological risk principle by evaluating how concepts such as “excessive,” “military advantage,” and “harms” and “goods” fit into our thinking about vim. The keystone of jus in vi is the predisposition toward maximal restraint maxim. The chapter thus begins by making the case for why jus in vi principles should be more restrictive than their jus in bello counterparts. It continues by exploring how a circumscribed view of necessity sets the groundwork for constraining proportionality calculations and shaping the way we think about distinction in more restricted ways. The notion of jus in vi proportionality is then explored, with concerns about escalation and psychological risk driving the analysis. Drawing insights from revisionist just war theory to consider jus in vi distinction, the chapter concludes by making the case for affording greater protections to both combatants and non-combatants compared to standard just war accounts. Unlike war, in which almost any soldier can be targeted, in a context of limited force only those who are an active threat can be justly targeted. Both innocent non-combatants and non-threatening combatants should be preserved from the more predictable harms of limited force, though this differs depending on whether the use of limited force is protective, preventive, or punitive.