Some contemporary Just War theorists, like Jeff McMahan, have recently built upon an individual right of self-defense to articulate moral rules of war that are at odds with commonly accepted views. For instance, they argue that in principle combatants who fight on the unjust side ought to be liable to punishment on that basis alone. Also, they reject the conclusion that combatants fighting on both sides are morally equal. In this paper, I argue that these theorists overextend their self-defense analysis (...) when it comes to the punishment of unjust combatants, and I show how in an important sense just and unjust combatants are morally equal. I contend that the individualistic and quid pro quo perspective of the self-defense analysis fails to consider properly how the international community, morally speaking, ought to treat combatants, and I set forth four elements of justice applicable to war, which, together, support the conclusion that in principle the international community should not take on the activity of punishing combatants solely for fighting on the unjust side. (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)

According to the dominant position in the just war tradition from Augustine to Anscombe and beyond, there is no "moral equality of combatants." That is, on the traditional view the combatants participating in a justified war may kill their enemy combatants participating in an unjustified war - but not vice versa (barring certain qualifications). I shall argue here, however, that in the large number of wars (and in practically all modern wars) where the combatants on the justified side violate the (...) rights of innocent people ("collateral damage"), these combatants are in fact liable to attack by the combatants on the unjustified side. I will support this view with a rights-based account of liability to attack and then defend it against a number of objections raised in particular by Jeff McMahan. The result is that the thesis of the moral equality of combatants holds good for a large range of armed conflicts while the opposing thesis is of very limited practical relevance. (shrink)

Contrary to what has been alleged, the moral equivalence of combatants (MEC) is not a doctrine that was expressly developed by the traditional theorists of just war. Working from the axiom that just cause is unilateral, they did not embrace a conception of public war that included MEC. Indeed, MEC was introduced in the early fifteenth century as a challenge to the then reigning just war paradigm. It does not follow, however, that the distinction between private and public war had (...) no place in the traditional teaching. Thomas Aquinas and his successors did not analyse just war by extrapolation from the related idea of self-defense. Rather, they likened just war to a legal proceeding that could solely be undertaken by persons possessed of legitimate authority. For this reason, just war was first and foremost public war. Private war was deemed ?war? only in a secondary and reduced sense of the term. It was accordingly understood that public war should be waged and its morality judged by reference to a set of norms that are not directly reducible to those governing private self (and other)-defense. (shrink)

During the inter war period, European Catholic authors exhibited two different approaches to the question of just war. One approach was articulated at the “Fribourg Conventus,” a 1931 meeting of French, Swiss, and German theologians, whose subsequent declaration (Conventus de bello, published in 1932) called for a reformulation of Catholic teaching based on the premise that the traditional just‐war doctrine had been superseded by developments in international law. A competing approach was articulated by the Dutch Jesuit Robert Regout, who maintained (...) that the just‐war doctrine could contribute to the formation of international law by providing a much‐needed normative foundation for the use of armed force by individual states in redress of their violated rights. After presenting these two approaches and explaining how they differ, this essay shows how the outlook of the Conventus de bello is reflected in subsequent papal statements on armed force—to the detriment of the traditional terminology of just war. (shrink)

Since its earliest incarnations, just war theory has included the requirement that war must be initiated and waged by a legitimate authority. However, while recent years have witnessed a remarkable resurgence in interest in just war theory, the authority criterion is largely absent from contemporary discussions. In this paper I aim to show that this is an oversight worth rectifying, by arguing that the authority criterion plays a much more important role within just war theorising than is commonly supposed. As (...) standardly understood, the authority criterion provides a necessary condition for the justification of the resort to war, but has no bearing on the question of permissible conduct in war. In opposition, I argue for an alternative interpretation of the criterion, which attributes to it a fundamental role in assessing this latter question. With this revised interpretation in place, I then demonstrate its advantages by applying it to the practical issue of armed conflicts that are initiated and fought by non-traditional belligerents. While several theorists have recognised that this common feature of modern armed conflict poses a challenge to mainstream just war theory in general—and to the authority criterion in particular—I argue that existing discussions frequently misconstrue the nature of the challenge, since they assume the standard interpretation of the authority requirement and its role within the theory. I then show that the revised interpretation provides a clearer account of both the challenge posed by non-traditional belligerency and the kind of response that it requires. (shrink)

This paper surveys the most important recent debates within the ethics of war. Sections 2 and 3 examine the principles governing the resort to war (jus ad bellum) and the principles governing conduct in war (jus in bello). In Section 4, we turn to the moral guidelines governing the ending and aftermath of war (jus post bellum). Finally, in Section 5 we look at recent debates on whether the jus ad bellum and the jus in bello can be evaluated independently (...) of each other. (shrink)

I address a foundational problem with accounts of the morality of war that are derived from the Just War Tradition. Such accounts problematically focus on ‘the moment of crisis’: i.e. when a state is considering a resort to war. This is problematic because sometimes the state considering the resort to war is partly responsible for wrongly creating the conditions in which the resort to war becomes necessary. By ignoring this possibility, JWT effectively ignores, in its moral evaluation of wars, certain (...) types of past wrongdoing. I argue that we can address this problem by incorporating an account of compensatory liability into an account of the morality of war. Doing so yields the view that, if we have culpably failed to compensate victims for past wrongs, we might be morally required to weigh the well-being of those victims more heavily in our calculation of proportionality when determining the permissibility of a defensive act that harms the victim as a side-effect. This, in turn, makes satisfying t. (shrink)

The paper examines the justification of warfare. The main thesis is that war is very difficult to justify, and justification by invoking “justice” is not the way to succeed it. Justification and justness are very different venues: while the first attempts to explain the nature of war and offer possible schemes of resolution, the second aims to endorse a specific type of warfare as correct and hence allowed – which is the crucial part of “just war theory.” However, “just war (...) theory,” somewhat Manichean in its nature, has very deep flaws. Its final result is criminalization of war, which reduces warfare to police action, and finally implies a very strange proviso that one side has a right to win. All that endangers the distinction between ius ad bellum and ius in bello, and destroys the collective character of warfare. Justification of war is actually quite different – it starts from the definition of war as a kind of conflict which cannot be solved peacefully, but for which there is mutual understanding that it cannot remain unresolved. The aim of war is not justice, but peace, i.e. either a new articulation of peace, or a restoration of the status quo ante. Additionally, unlike police actions, the result of war cannot be known or assumed in advance, giving war its main feature: the lack of control over the future. Control over the future, predictability, is a feature of peace. This might imply that war is a consequence of failed peace, or inability to maintain peace. The explanation of this inability forms the justification of war. Justice is always an important part of it, but justification cannot be reduced to it. The logic contained here refers to ius ad bellum, while ius in bello is relative to various parameters of sensitivity prevalent in a particular time, with the purpose to make warfare more humane and less expensive. (shrink)