This essay offers a case study in jus in bello in the American Revolutionary War by focusing on responses to sexual violence committed against American women by soldiers in the occupying British army and their Loyalist auxiliaries. Two main bodies of sources are juxtaposed in order to explore the contexts and manner in which jus in bello was adjudicated: British courts-martial and American Congressional investigations documenting British and Loyalist breaches of the codes of war. By putting the fragmentary (...) evidence of instances of rape in the context of contemporary legal and sociocultural practices of sexual violence in peacetime, as well as of the British army's disciplinary regime, we can elucidate the horizon of experiences and expectations against which survivors, assailants and prosecutors acted. The British army disciplined some soldiers for sexual offenses that violated military law and the codes of war, and it executed a few of them at a time when even their home society featured very low prosecu.. (shrink)

In this article we focus on the jus in bello principle of necessity for guiding the use of autonomous weapons systems (AWS). We begin our analysis with an account of the principle of necessity as entailing the requirement of minimal force found in Just War Theory, before highlighting the absence of this principle in existing work on AWS. Overlooking this principle means discounting the obligations that combatants have towards one another in times of war. We argue that the requirement (...) of minimal force is an important requirement for considering ethical uses of force. In particular, we distinguish between lethal and non-lethal purposes of use of force and introduce the prospect of non-lethal AWS before reviewing a number of challenges which AWS pose with respect to their non-lethal use. The challenges arise where AWS generate unpredictable outcomes impinging upon the situational awareness required of combatants to ensure that their actions meet the requirement of minimal force. We conclude with a call for further research on the ethical implications of non-lethal uses of AWS as a necessary contribution for assessing the moral permissibility of AWS. (shrink)

In this article we focus on the jus in bello principle of necessity for guiding the use of autonomous weapons systems (AWS). We begin our analysis with an account of the principle of necessity as entailing the requirement of minimal force found in Just War Theory, before highlighting the absence of this principle in existing work on AWS. Overlooking this principle means discounting the obligations that combatants have towards one another in times of war. We argue that the requirement (...) of minimal force is an important requirement for considering ethical uses of force. In particular, we distinguish between lethal and non-lethal purposes of use of force and introduce the prospect of non-lethal AWS before reviewing a number of challenges which AWS pose with respect to their non-lethal use. The challenges arise where AWS generate unpredictable outcomes impinging upon the situational awareness required of combatants to ensure that their actions meet the requirement of minimal force. We conclude with a call for further research on the ethical implications of non-lethal uses of AWS as a necessary contribution for assessing the moral permissibility of AWS. (shrink)

This article discusses how ordinary citizens might apply principles of jus in bello. It reaches a sceptical conclusion about citizens’ capacity to apply these principles and connects this with a practical approach to pacifism or, what might also be called, just-war pacifism.This discussion is oriented around events in the war in Iraq including the use of cluster bombs and the commission of war crimes. It uses these events to discuss the question of jus in bello and to also (...) address the question of responsibility. The article argues that in a democracy responsibility citizen vigilance is required to ensure adherence to principles of jus in bello.The article critically engages recent discussions of just-war theory by Weigel, Walzer, Rawls, Elshtain, and others. (shrink)

Interest in just war theory has boomed in recent years, as a revisionist school of thought has challenged the orthodoxy of international law, most famously defended by Michael Walzer [1977]. These revisionist critics have targeted the two central principles governing the conduct of war (jus in bello): combatant equality and noncombatant immunity. The first states that combatants face the same permissions and constraints whether their cause is just or unjust. The second protects noncombatants from intentional attack. In response to (...) these critics, some philosophers have defended aspects of the old orthodoxy on novel grounds. Revisionists counter. As things stand, the prospects for progress are remote. In this paper, we offer a way forward. We argue that exclusive focus on first-order moral principles, such as combatant equality and noncombatant immunity, has led revisionist and orthodox just war theorists to engage in “proxy battles.” Their first-order moral disagreements are at least partly traceable to second-order disagreements about the nature and purpose of political theory. These deeper disputes have been central to the broader discipline of political theory for several years; we hope that bringing them to bear on the ethics of war will help us move beyond the present impasse. (shrink)

The conduct of hostilities is very bad for the environment, yet relatively little attention has been focused on environmental military ethics by just war theorists and revisionist philosophers of war. Contemporary ecological concerns pose significant challenges to jus in bello. I begin by briefly surveying existing literature on environmental justice during wartime. While these jus in bello environmental issues have been addressed only sparsely by just war theorists, environmental jus ad bellum has rarely been tackled within JWT or (...) the morality of war. In line with the theme of this special issue, I focus my discussion of war and the natural environment primarily on the jus ad bellum level. I set out with the presumption against the use of force, and its possible exceptions. The principal question raised is whether environmental harm can trigger a new justification for war. Beyond just cause, I consider what might be a proportionate response to “environmental aggression,” or negligent harm to nature. The use of force is clearly justified in response to military attacks, against the natural environment or otherwise. Where harm to nature or its inhabitants are not caused by military aggression, just war theory criteria point in favor of responding via measures short of war. Finally, I suggest that responding by means that are not themselves harmful to nature serves to fulfill the further jus ad bellum criterion of “right intention.”. (shrink)

This paper explores Brian Orend's contribution to the just war tradition, specifically his proposed jus post bellum criteria and his idea of pre-commitment to jus in bello and jus post bellum as part of an expanded jus ad bellum criterion of right intention. The latter is based on his interpretation of Kant's work: that as part of the original decision to begin a war, a state should commit itself to certain rules of conduct and appropriate war termination, and if (...) it cannot so commit, it should not continue further down the path to using force. Orend's revised right intention brings jus post bellum ?into the fold? of the just war tradition, requiring that state obligations go beyond correct conduct in war. The article argues that whatever the nature of the just cause, there is a compelling argument for committing to jus in bello and jus post bellum as part of jus ad bellum right intention. The justness of the cause in the contemporary era requires strictness rather than leniency in the conduct and termination of war for a state to remain legitimate in the eyes of the world. In the context of Orend's proposals, this would require that states ?do their homework? and ?tie themselves to the mast?; this includes providing proof that the situation on the ground is understood, conducting a feasibility test on the proposed intervention and publicly identifying and committing to their obligations and responsibilities during and after war. Recognising the practical and political obstacles to adopting this idealistic revision of the just war tradition, the paper nevertheless concludes that Orend's contribution is significant and worthy of exploration: it offers a kernel of hope for counteracting pressures to lower the threshold of resort to force, delivering greater justice for the innocent victims of war and providing greater probability of durable peace post-war. (shrink)

European Enlightenment thinkers like Emer de Vattel in his epic work The Laws of Nations argued that engaging in warfare should comply, as much as possible, with humane rules in the treatment of both combatants and noncombatants. Encapsulated by the phrase jus in bello, or justice in warfare, the question remains whether this idealist doctrine had application in military actions conducted during the Revolutionary War fought over the issue of American independence. This essay concludes that in such frontier regions (...) as the Mohawk Valley of New York, the doctrine of jus in bello had virtually no impact in restraining wartime cruelties. What actually occurred in such areas was vicious partisan warfare, or a contagion of violence characterized by brutal retribution and retaliation among combatants, along with merciless actions directed against civilian noncombatants. The Revolutionary War, at least in regions like frontier New York where partisan fighting predominated, had more in common wit.. (shrink)

Traditional just war theory maintains that the two types of rules that govern justice in times of war, jus ad bellum (justice of war) and jus in bello (justice in war), are logically independent of one another. Call this the independence thesis. According to this thesis, a war that satisfies the ad bellum rules does not guarantee that the in bello rules will be satisfied; and a war that violates the ad bellum rules does not guarantee that the (...) in bello rules will be violated. A controversial implication of this is that it’s possible for soldiers to undergo acts that are instrumental in bringing about victory in an unjust war and yet do nothing morally wrong. Some authors – call them purists – claim that this cannot be correct. Participating in an unjust war is by itself morally wrong. Yitzhak Benbaji has given what is to my mind the strongest defense of the independence thesis. In this paper I critically examine Benbaji’s argument and conclude that it is not persuasive. My argument against Benbaji incorporates the concept of honor in the military. I seek to show, in part, that if the recent literature is correct concerning both the nature of honor and the importance of instilling it in soldiers, then Benbaji hasn’t given the purist a compelling reason to give up her view. (shrink)

The relationship between jus ad bellum and jus in bello has been characterized differently throughout European history. There have been three main positions exemplified by Hugo Grotius, Samuel von Pufendorf and Emer de Vattel. They are, first, both the cause and the conduct of warfare must be just; second, the cause must be just, but the conduct of the war is unconstrained in order to achieve the goal of peace; and, third, we must assume justice on both sides, and (...) concentrate on ensuring just conduct in armed conflict. Each attempted to distil customary practices, which they saw in some relation to Natural Law, the ultimate source of moral obligation. Customary international law now serves the function of Natural Law in that even if treatises in which it is articulated lapse the customary constraining precepts remain, and are equally obligatory. It is contended that the relationship between just war and just conduct in war during the 20th and 21st centuries has mirrored the three classic positions, and since 9/11, with the advent of new dimensions to warfare in the war against terror, the relationship is in flux. Since 9/11 there has been a growing emphasis on jus ad bellum and a relative silence on the principles of jus in bello. Implicitly, there is an informal acceptance of something like Pufendorf’s position in which outlaw combatants are deemed to place themselves outside of the protection of customary law. (shrink)

I agree with Professor Miller that just war theory is limited when it comes to judging whether and how to end a war. But Miller fails to understand adequately what these limitations are and the extent to which they can be addressed within just war theory.

This article discusses two doctrines of jus ex bello concerning whether and how to end wars. In Section I, I defend the claim that there is a distinct morality of ending wars. Section II rebuts a challenge that the account is too permissive of war. Section III rejects a forward-looking conception of proportionality for jus ex bello. In Section IV, I allow an exception in cases in which the just cause for the war has changed. In Section V, (...) I defend five principles governing how to end a war. (shrink)

RESUMO:Nosso objetivo no presente artigo é apresentar algumas das principais críticas dirigidas por Rousseau às ideias acerca do direito “da” e principalmente “na” guerra, tal como aparecem na obra de Hugo Grotius. Rousseau insiste para que seus leitores não esqueçam “de jeito nenhum” que ele não procura “[...] o que torna a guerra vantajosa àquele que o faz, mas o que a torna legítima.” E lembra que “[...] sempre há um custo em ser justo”, mas que isso não é motivo (...) para nos dispensarmos de sê-lo. É preciso estabelecer regras que rejam as ações empreendidas, mesmo no seio dos combates, para que se distingam as guerras das simples pilhagens. ABSTRACT:This paper presents some of Rousseau’s main criticisms of the right “of ” and, principally, “in” war, as they appear in the works of Hugo Grotius. Rousseau asks his readers not to forget, “by any means”, that he doesn’t seek to discover “[...] what makes war advantageous to those who make it, but what makes it legitimate”. He also reminds us that “[...] there is always a cost to being fair”, but that this is not a reason for us to give up being so. It is necessary to establish rules for actions undertaken, even in the middle of combat, in order to distinguish war from mere pillaging. (shrink)

In light of the enormous suffering brought about by war, war might be justified only if the benefit it yields is significant enough, namely, a clear and durable victory over the enemy. The logic of this argument leads to a Clausewitz-style war of “annihilation.” I argue that the best way to justify the ending of war short of such annihilation is by relying on a contractarian view of jus ex bello. I conclude by exploring the implications of this view (...) to warfare in which no effective social contract is in place. (shrink)

This article explores the issue of jus contra bellum as a particular development within just war thought. At its heart, the jus contra bellum amounts to an attempt to apply the principles of jus in bello (discrimination and proportionality) in order to negate the jus ad bellum. This approach was rather prevalent throughout the Cold War era, as concerns over the prospective use of nuclear weapons facilitated an increasingly sceptical attitude towards the use of force. Whereas the vast majority (...) of just war thinkers have tended to overlook this phenomenon, James Turner Johnson has adeptly recognised the perils of jus contra bellum, and its rather disastrous implications for just war thought. In this respect, Johnson's analysis of this issue constitutes one of his most significant contributions to the tradition. However, as this article will suggest, his assessment of this approach, and consequent efforts to counter it, do not go far enough. As will be noted, the roots of the jus contra bellum can be traced to the prevailing structure of just war thought – a structure which has been consistently championed by virtually every just war thinker. (shrink)

We suggest thinking about the beginning and ending of wars as an exercise in risk management. We argue that states, like individual citizens, must accept that some degree of security risk is inevitable when coexisting with others. We offer two principles for the just management of military risk. The first principle is Morally Justified Bearable Risk, which demands that parties at war temper their claims of justice with the realities of an anarchic and conflicted international system. The second principle, Minimum (...) Consistency toward Risk, mandates that states generally not weigh security threats higher than risks from other sources. (shrink)

Although jus in bello violations create transgressive acts that cause moral injury, the primary consideration in thinking about moral injury should be jus ad bellum. If one is fighting in an ad bellum just war, then transgressive acts can be rationalized in a way that allows for consolation. But for morally sensitive combatants engaged in an ad bellum unjust war, consolation is more difficult since there is no way to justify or rationalize morally problematic deeds committed in defense of (...) an unjust cause. Morally serious combatants should consider the question of jus ad bellum as they struggle to deal with moral injury, along with other values such as obedience and loyalty. Such an inquiry can produce further trauma when the justness of the war is called into question. The paper examines moral injury and justice in war, grounding the discussion in concrete examples: the Second World War, the Vietnam War, and the U.S. war in Iraq. It concludes that in a democracy, ordinary citizens should demonstrate solidarity with combatants suffering moral injury, since those combatants serve in wars—even unjust wars—authorized by us and fought in our names. (shrink)

The traditional theory of the just war comprises two sets of principles, one governing the resort to war ( jus ad bellum) and the other governing the conduct of war ( jus in bello). The two sets of principles are regarded, in Michael Walzer’s words, as “logically independent. It is perfectly possible for a just war to be fought unjustly and for an unjust war to be fought in strict accordance with the rules.”1 Let us say that those who (...) fight in a just war are “just combatants,” while those who fight in a war that is unjust because it lacks a just cause are “unjust combatants.” (A just cause is an aim that can contribute to the justification for war and that may permissibly be pursued by means of war.)2 The most important implication of the idea that jus in bello is independent of jus ad bellum is that.. (shrink)

Although jus in bello violations create transgressive acts that cause moral injury, the primary consideration in thinking about moral injury should be jus ad bellum. If one is fighting in an ad bellum just war, then transgressive acts can be rationalized in a way that allows for consolation. But for morally sensitive combatants engaged in an ad bellum unjust war, consolation is more difficult since there is no way to justify or rationalize morally problematic deeds committed in defense of (...) an unjust cause. Morally serious combatants should consider the question of jus ad bellum as they struggle to deal with moral injury, along with other values such as obedience and loyalty. Such an inquiry can produce further trauma when the justness of the war is called into question. The paper examines moral injury and justice in war, grounding the discussion in concrete examples: the Second World War, the Vietnam War, and the U.S. war in Iraq. It concludes that in a democracy, ordinary citizens should demonstrate solidarity with combatants suffering moral injury, since those combatants serve in wars—even unjust wars—authorized by us and fought in our names. (shrink)

Just war theory is a difficult, even paradoxical, philosophical topic. It is not just that warfare involves large-scale, organised, deliberate killing, and hence might seem the very paradigm of immorality. The just war tradition sharply divorces the question of whether or not it is permissible to resort to war – the question of jus ad bellum – from the question of how and against whom one may inflict harm once at war – the question of jus in bello. As (...) Michael Walzer notes,1 this separation of jus in bello from jus ad bellum means that we can meaningfully talk of an unjust war being fought justly, and vice versa: soldiers defending against aggression might nevertheless be criminals for the way in which they do it; while soldiers prosecuting an aggressive war, provided they fight it in the right way, are without culpability. This paper will draw upon the morality of individual self-defence to explain certain important features of the traditional jus in bello: the permissibility of killing, even by soldiers who lack justice on their side; the principles that govern surrender and the taking of prisoners of war; and the principle of discrimination between soldiers and civilians. Our explanation will not leave all aspects of the jus in bello undisturbed: it has consequences that are revisionary in at least some respects, this being the upshot of trying to explain the jus in bello in individualist terms. Partly because of such consequences, approaching the morality of war in individualist terms is neither straightforward nor uncontroversial.2 But we are prepared to accept.. (shrink)

The just-war framework neatly distinguishes between jus ad bellum, the criteria that address political leaders’ decisions for waging war, and jus in bello, the criteria that address soldiers’ condu...

In spite all the efforts made by pundits and policy-makers nowadays, the article intends to show how the concepts of jus in bello and jus ad bellum have been misjudged and misinterpreted along its own consolidation in our juridical thought. We also believe they deserve a new approach opened by Foucault´s point of view. In doing so, the issues of sovereignty, war and peace are all reviewed before a genealogical approach which opens us a different window to access the (...) new themes of political agenda, such as responsibility to protect, non-intervention and self-determination. (shrink)

The category of jus post bellum is a welcome addition to discussions of the justice of war. But, despite its handy Latin label, we will argue that it cannot be properly understood merely as a set of corollaries from jus ad bellum and jus in bello. Instead, an acceptable theory of justice in the postwar period will have to draw on a broader set of normative ideas than those that have been the focus of the just war tradition. In (...) this paper, we will argue that norms of political reconciliation provide some of the resources we need to address postwar justice. (shrink)

With his new book, A Theory of Truces, Nir Eisikovits has succeed in producing the most comprehensive and insightful book to exist on the nature and morality of truces during international military conflict. In it he plausibly argues that thought about such conflict should avoid binary terms such as long-lasting peace and all-out war, and instead must readily acknowledge conditions “in between” them, such as cease-fires and agreements to limit belligerence to certain times. In this critical notice of Eisikovits’ book, (...) I have two major aims, in light of the fact that in it he does not systematically engage with the contemporary literature on and positions in just war theory. One aim is to situate Eisikovits’ analysis of truces in that context, and to contend that he has implicitly founded a new field that merits the title jus interruptus bellum as distinct from jus in bello and jus ex bello. Another is to build on Eisikovits’ ethical appraisal of truces, by considering what principles of just war theory entail for them. (shrink)

Jus post Bellum is, like Jus ad Bellum and Jus in Bello, a part of just war theory. Jus post Bellum is distinguished from the other parts of just war theory by being primarily concerned with the principles necessary for securing a just and lasting peace after the end of a war. Traditionally, jus post bellum has focused primarily on three goals: [1] compensating those who have been the victims of unjust aggression, while respecting the rights of the aggressors, (...) [2] punishing and rehabilitating those guilty of war crimes and other violations of the principles of Jus ad Bellum and Jus in Bello and [3] developing measures that will prevent future war and violence (Orend 2000 and May 2012). In this chapter, I outline an account of political forgiveness and explain the role that political forgiveness can have in promoting the goals of jus post bellum. My conception of political forgiveness requires some unpacking. Let me begin with individual forgiveness, which I understand along familiar Butlerian lines as the renunciation of resentment (Butler, Sermon IX in McNaughton 2017: 75-83), though with a bit of a twist. More exactly, ● An individual, I, forgives J for doing F if and only if I renounces all her own warrant for resenting J for doing F. Resentment is a judgment-sensitive attitude, and, therefore, it tends to track judgments concerning its warrant (Scanlon 1998: 20 and Smith 2015). In cases of perfect forgiveness, I’s renunciation causes her to cease feeling resentment toward J for doing F, though, of course, less perfect cases are possible. I reject the idea that there is a sharp discontinuity between individual and political forgiveness, a position argued for by, e.g., Peter Digeser (1998 and 2001). By contrast, I understand political forgiveness as the renunciation of resentment by the relevant political body in question. With greater precision, ● A sovereign political body, P, forgives J for doing F if and only if P renounces all warrant that its citizens have for resenting, as part of their public lives, J for doing F. A little more explanation is in order. Sovereign political bodies, such as national governments, claim degrees of control over the lives of their citizens, in both their public and their private aspects, though the claims with respect to the former tend to be considerably more expansive than the claims with respect to the latter. I assume here that, at least in the case of legitimate governments, these claims of control are often valid. Such governments may reasonably renounce certain grounds for motivating action in the public sphere. For example, governments may renounce all warrant that its citizens have, as part of their public lives, for hating members of marginalized groups. In practice, this means that, while citizens might continue to act in their private lives out of hatred for members of these groups, their appeal to this hatred is seen by the state as irrelevant to matters of law and public policy as well as being wholly out-of-place in public discourse. Political forgiveness toward J for doing F, as I understand it, involves an analogous rejection of resentment, on the part of citizens in their public lives, toward J for doing F. I turn now to the matter of how political forgiveness supports securing a just and lasting peace between former belligerents. With respect to the first goal of jus post bellum, political forgiveness helps to balance compensation for victims and respect for the rights of defeated aggressors by countering the all-too-human tendency to overvalue harms done to oneself and to members of one’s group. As regards the second goal, political forgiveness plays a similar role but also provides a model for rehabilitation by exemplifying among the victorious the behavior to be emulated by the vanquished. Finally, political forgiveness promotes the third goal of jus post bellum by providing a space for nations to meet as moral equals rather than allowing one nation to have the moral high ground over the other. None of this, of course, means that political forgiveness should be unearned or that it should be confused with condonation (Kolnai 1973 and Pettigrove 2004). However, the question of what is required to put oneself in a position to be forgiven as part of jus post bellum is a matter that goes beyond the scope of this chapter. (shrink)

This book chapter addresses two questions. First, can targeted killing by drones in non-battlefield zones be justified on basis of just war theory? Second, will the proliferation and expansion of combat drones in warfare, including the introduction of autonomous drones, be an obstacle to initiating or executing wars in a just manner in the future? The first question is answered by applying traditional jus ad bellum and jus in bello principles to the American targeted killing campaign in Pakistan; the (...) second question is answered on basis of principles of “just military preparedness” or jus ante bellum, a new category of just war thinking. It is concluded that an international ban on weaponized drones is morally imperative and, certainly, that an international treaty against autonomous lethal weapons should be adopted. (shrink)

This presentation discusses why just war theory is in need of just military preparedness (jus ante bellum) as a new category of just war thinking and it articulates six principles of just military preparedness. The paper concludes that the United States fails to satisfy any of these principles and addresses how this bears on the application of jus ad bellum, jus in bello, and jus post bellum norms to possible future American military interventions.

In its classic form the doctrine of the just war, whether enunciated by theological or secular theorists, had two main components: the jus ad bellum, which defined the morally acceptable limits within which a sovereign could and even should go to war, and the jus in bello, which set limits to the conduct of war. By contrast, today the problem of just limitation of war is addressed almost entirely by legal and theoretical attempts to refine the jus in (...) class='Hi'>bello, while there exists only a morally truncated and politically ineffective jus ad bellum. What is the contemporary status of the jus ad bellum and what makes it politically and morally inadequate are the issues I wish to address directly in this paper. Indirectly, however, I wish to speak to more fundamental questions: what are the ingredients of a moral doctrine limiting resort to war, and what is required for this to be politically workable as well? The final goal, which is far beyond the scope of this paper, is to reconstruct for our own time a doctrine on the just limitation of war which would restore the dual thrust of just war doctrine in its classic form. (shrink)

A survey of just war theory literature reveals the existence of quite different lists of principles. This apparent arbitrariness raises a number of questions: What is the relation between ad bellum and in bello principles? Why are there so many of the former and so few of the latter? What order is there among the various principles? To answer these questions, I first draw on some recent work by Jeff McMahan to show that ad bellum and in bello (...) principles are not, as often portrayed, independent—the justice of conduct in war largely presupposes the justice of the recourse to war. Undermining this independence claim is one important step toward revealing the unified logical structure of just war theory. I then argue that we can see the dependence of the jus in bello upon the jus ad bellum , not just in the content of certain principles, but also in the structure of the two sets of principles: I construct a one-to-one mapping between ad bellum and in bello principles. In doing so, I argue also that the shared structure successfully finds place for the questions central to the evaluation of the morality of war: what is a sufficient provocation to use force, what objectives may be sought by force, why or for what ends, who has authority to decide to use force, and when or in what circumstances? Despite variations in expression, the theory allows for a coherent and comprehensive evaluation of morality in warfare. (shrink)

This article explores the connection between terrorism and the ethics of war, specifically the relevance of the moral wrongfulness of terrorism in elucidating one important aspect of the ethics of war. It begins with an overview of terrorism’s central features and the ethical issues associated with terrorism. It then discusses two considerations. First, terrorism can occur within civil society as well as in contexts of armed combat or war. Second, terrorist tactics are answerable to principles that govern ethically acceptable conduct (...) of war, not the other way around. The chapter also tackles the question of whether the jus in bello principle of discrimination that prohibits targeting innocent people ought to represent an absolute prohibition, as opposed to a very stringent constraint. It argues that an analysis of the structure of terrorism and its distinctive wrongfulness can be helpful in morally interpreting the jus in bello principle of discrimination. (shrink)

ABSTRACTThe aim of this paper is to draw attention to an issue which has been largely overlooked in contemporary just war theory – namely the impact that the conditions under which an army is assembled are liable to have on the judgments that are made with respect to traditional principles of jus ad bellum and jus in bello. I argue that the way in which an army is assembled can significantly alter judgments regarding the justice of a war. In (...) doing so, I present and defend a principle of ‘just assembly’ and argue that satisfying this principle is an essential part of any deliberation regarding the justice of a particular conflict. (shrink)

Despite its preeminent position in the just war tradition, the concept of proportionality is not well understood by military leaders. Especially lacking is a realization that there are four distinct types of proportionality. In determining whether a particular resort to war is just, national leaders must consider the proportionality of the conflict, i.e., balance the expected gain or just redress against the total harm likely to be inflicted by the impending armed action. This proportionality consideration is called jus ad bellum (...) proportionality. The second type of proportionality discussed is a continuing re-evaluation of the proportionality, taking into account the changing situation. The last true proportionality discussed is a consideration of hostile action taking during a conflict, or jus in bello proportionality. This consideration weighs the expected military gain of a particular action against the collateral damage and injuries that are expected from the act. Finally, the fourth category addressed is ‘political proportionality’, which is not a true proportionality consideration, but is rather self-interested deliberation on the possible political and military outcomes of actions. In some instances, it could be referred to as a measured response. A better understanding of proportionality in all its forms will help military leaders to give appropriate and moral advice on the potential resort to war, as well as on the conduct of military actions in war. The recent US war with Iraq in the spring of 2003 in defiance of the wishes of the majority of the UN Security Council, and especially with the potential for high noncombatant casualties in Baghdad, makes a discussion of the proper conduct of war even more poignant. (shrink)

La 4e de couv. indique : "La guerre peut-elle être juste? Peut-elle s'affubler d'un qualificatif juste sans injustice? Les récits cosmogoniques sont la merveilleuse monstration que les hommes se sont toujours fait la guerre. L'attitude belliqueuse de certains souverains et les atrocités des champs de bataille ont amené des analystes à définir des critères stricts pour limiter la souffrance humaine. Désormais, tout Etat qui n'observerait pas scrupuleusement les linéaments de cet édit risque d'être déclaré Hostis humani generis. Dans sa conception (...) traditionnelle in stricto sensu, la théorie de la guerre dite juste comporte, d'une part, le jus ad bellum (droit à la guerre) ou droit de faire la guerre et, d'autre part, le jus in bello qui règlemente la conduite de la guerre. Qu'en est-il de l'après-guerre et du jus post bellum? Cet ouvrage, importante contribution au débat sur la théorie de la guerre juste, répond justement à ce questionnement.". (shrink)

According to just war theory, a resort to war is justified only if it satisfies the right intention condition. This article offers a critical examination of this condition, defending the thesis that, despite its venerable history as part of the just war tradition, it ought to be jettisoned. When properly understood, it turns out to be an unnecessary element of jus ad bellum, adding nothing essential to our assessments of the justice of armed conflict.

James Turner Johnson has played a pivotal role in bringing just war thinking to the fore in international relations. This has brought with it increased interest in the relationship between the just war tradition and the laws of war. Whilst Johnson maintains that the legal rules relating to the conduct of war correspond with the requirements of jus in bello, he is more critical of the legal regime relating to recourse to force and has occasionally argued in favour of (...) the superiority of just war thinking to international law in this area. This article discusses Johnson's thinking on the relationship between ethics and law on recourse to force. It begins by outlining Johnson's approach before suggesting that it is overly critical of the post-1945 order. The paper concludes by calling for reconciliation between law and ethics. (shrink)

Despite its preeminent position in the just war tradition, the concept of proportionality is not well understood by military leaders. Especially lacking is a realization that there are four distinct types of proportionality. In determining whether a particular resort to war is just, national leaders must consider the proportionality of the conflict, i.e., balance the expected gain or just redress against the total harm likely to be inflicted by the impending armed action. This proportionality consideration is called jus ad bellum (...) proportionality. The second type of proportionality discussed is a continuing re-evaluation of the proportionality, taking into account the changing situation. The last true proportionality discussed is a consideration of hostile action taking during a conflict, or jus in bello proportionality. This consideration weighs the expected military gain of a particular action against the collateral damage and injuries that are expected from the act. Finally, the fourth category addressed is ‘political proportionality’, which is not a true proportionality consideration, but is rather self-interested deliberation on the possible political and military outcomes of actions. In some instances, it could be referred to as a measured response. A better understanding of proportionality in all its forms will help military leaders to give appropriate and moral advice on the potential resort to war, as well as on the conduct of military actions in war. The recent US war with Iraq in the spring of 2003 in defiance of the wishes of the majority of the UN Security Council, and especially with the potential for high noncombatant casualties in Baghdad, makes a discussion of the proper conduct of war even more poignant. (shrink)

The purpose of this article is briefly to present a case for the principle of reparation as a new jus in bello principle for just humanitarian intervention. The article is divided into three sections. In “Restorative Justice and Civilian Protection”, I investigate the idea of restorative justice in order to consider whether or not it can complement the shortcomings of the just war tradition in civilian protection. In “The Legal Framework on Reparation: Its Scope and Limitations”, I examine the (...) scope of the law of armed conflict on reparatory measures in order to consider whether and how ideas of and measures for restorative justice might be incorporated in the jus in bello framework for military humanitarian intervention. In “The Issue of Civilian Victims: A Case for Reparation”, I explore the implications of reparatory measures for victims in order to suggest that these measures are not only beneficial to civilian victims but also imperative to be taken by the interveners if they undertake military intervention within the jus in bello framework and claim its moral justifiability. (shrink)

Much work in the ethics of war is structured around the distinction between jus ad bellum and jus in bello. This distinction has two key roles. It distinguishes two evaluative objects—the war ‘as a whole’, and the conduct of combatants during the war—and identifies different moral principles as relevant to each. I argue that we should be sceptical of this framework. I suggest that a single set of principles determines the justness of actions that cause nonconsensual harm. If so, (...) there are no distinctive ad bellum or in bello principles. I also reject the view that whilst the justness of, for example, ad bellum proportionality rests on all the goods and harms produced by the war, the justness of combatants’ conduct in war is determined by a comparatively limited set of goods and harms in a way that supports the ad bellum–in bello distinction. (shrink)

Supernatural fans often associate Season 3's popular “Jus in Bello” episode with the world's quintessential zombie movie, George Romero's Night of the Living Dead. Romero's zombie films, beginning with Night, fill the survival space with multiple, diverse survivalists who are forced to work through personal differences stemming from jealousy and petty annoyance to racism and bigotry, issues of morality, theology, and other social and cultural differences. Indeed, the setting is the first link to Romero's Night, whose cramped Pennsylvanian farmhouse (...) is little different than the poorly fortified police station holding Sam and Dean. The demons congregate listlessly around the jail. This is an obvious visual homage to the isolated Pennsylvanian farmhouse in Night. The work of the demons in “Jus in Bello” like the zombies in Night and Dawn, is ceaseless and instinctual. (shrink)

Important moral dilemmas arise in the context of what I have called jus terminatio and Darrel Moellendorf has called jus ex bello—the norms governing the termination of war. I discuss three dilemmas, showing how they also illuminate proportionality and jus ad bellum: morally accounting for new costs that arise during the course of a war; two variants of the “sunk-cost dilemma” in which an agent is permitted to contribute to a project that is all things considered morally unjust, when (...) that project is morally justified on a forward-looking basis; and the problem of moral hazard in peace negotiations. (shrink)

Introduction -- What is proportionality? -- Proportionality : a multiplicity of meanings -- Proportionality in the just war tradition -- Proportionality in international humanitarian law -- Proportionality in human rights law and morality -- The uniqueness of jus in bello proportionality -- Countermeasures and counterinsurgency -- Human shields and risk -- Targeted killings and proportionality in law : two models -- The nature of war and the idea of "cyberwar" -- Thresholds of jus in bello proportionality.

This chapter contrasts jus in bello necessity with necessity as the concept is used in human rights thinking. The task here is to explain what is distinctive about jus in bello necessity and to explain why conceptions of necessity that reign in other areas of international law cannot be automatically grafted onto the laws of war without reflection and deliberation. Indeed, any attempt to transplant a more restrictive version of necessity will result in a substantial alteration of the (...) legal architecture of jus in bello. Although this is not necessarily a bad thing, it can only be accomplished if one offers a separate normative defense for that alteration. It cannot be presumed. (shrink)

This article argues that the traditional jus ad bellum and jus in bello criteria are fully capable of providing the ethical guidance needed to legitimately conduct military cyber operations. The first part examines the criteria’s foundations by focusing on the notion of liability to defensive harm worked out by revisionist just war thinkers. The second part critiques the necessity of alternative frameworks, which its proponents assert are required to at least supplement the traditional just war criteria. Using the latter, (...) the third part evaluates ethical issues germane to responding to cyber force, including casus belli, moral aspects of “the attribution problem,” and respective rights and duties when attacks involve innocent third-party states. The fourth part addresses in bello issues, including compliance with discrimination, necessity, and civilian due care imperatives; whether civilians may be targeted with sub-“use of force” cyber-attacks and the permissibility of using civilian contractors to conduct cyber-attacks. Throughout these analyses, conclusions are brought into conversation with those of The Tallinn Manual on the International Law Applicable to Cyber Warfare. (shrink)

Necessity is a notoriously dangerous and slippery concept-dangerous because it contemplates virtually unrestrained killing in warfare and slippery when used in conflicting ways in different areas of international law. Jens David Ohlin and Larry May untangle these confusing strands and perform a descriptive mapping of the ways that necessity operates in legal and philosophical arguments in jus ad bellum, jus in bello, human rights, and criminal law. Although the term "necessity" is ever-present in discussions regarding the law and ethics (...) of killing, its meaning changes subtly depending on the context. It is sometimes an exception, at other times a constraint on government action, and most frequently a broad license in war that countenances the wholesale killing of enemy soldiers in battle. Is this legal status quo in war morally acceptable? Ohlin and May offer a normative and philosophical critique of international law's prevailing notion of jus in bello necessity and suggest ways that killing in warfare could be made more humane-not just against civilians but soldiers as well. Along the way, the authors apply their analysis to modern asymmetric conflicts with non-state actors and the military techniques most likely to be used against them. Presenting a rich tapestry of arguments from both contemporary and historical Just War theory, Necessity in International Law is the first full-length study of necessity as a legal and philosophical concept in international affairs. (shrink)

Given the close relationship between the modern arms industry and the military, engineers and other professionals who work in the arms industry should be held accountable to the principles of just war theory. While they do not deploy weapons on the battlefield and are not in the military chain of command, technical professionals nonetheless have a moral duty to abide by principles of jus ad bellum and jus in bello. They are morally responsible both for choosing the companies that (...) employ them (and to whom these companies sell arms) and a well as what types of arms they develop. (shrink)