Abstract
One criticism of revisionist just war thought is often called the “contingent pacifism” objection. According to this objection, revisionist just war theory fails because it requires combatants on the just side to evaluate the moral responsibility for wrongful harm of each combatant on the unjust side to determine liability to defensive harming in each case. Combatants on the just side are epistemically barred from making these determinations. Moreover, many combatants on the unjust side (e.g., cooks and administrative soldiers) fail to meet the threshold of responsibility for wrongful harm to make them liable to lethal defensive harm. Therefore, ex hypothesi, combatants on the just side will inevitably target enemy combatants who are not liable to be killed. In this paper, I offer a novel response to the contingent pacifism objection. I argue that, even on the revisionist account, participation in a military engaged in an unjust war is sufficient for liability to lethal defensive harm. First, I show merely signaling a threat of unjust harm—even if one lacks the means to actualize the threat—is sufficient for liability to defensive harm. Second, I argue that almost all participants in military activity signal a threat. Finally, I conclude that, in general, combatants on the unjust side of a conflict signal threats of unjust harm and are therefore liable to lethal defensive harming. This novel account of signaling-as-threatening disarms the contingent pacifist objection.
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Notes
The views expressed are those of the author and do not necessarily reflect those of the Department of the Air Force, the Department of Defense, or the US Government. I am grateful to many who have provided feedback on early versions of this paper including Cécile Fabre, Tom Simpson, Jeff McMahan, B. J. Strawser, Linda Eggert, Rhiannon Neilsen, Brianna Rosen, and Bob Underwood. I am likewise grateful to the journal’s two anonymous reviewers whose inputs improved the quality of the final product.
Seth Lazar first raised this objection in 2010. Since then, several just war theorists have either amplified or responded to his contingent pacifist objection. See Seth Lazar, "The Responsibility Dilemma for Killing in War: A Review Essay," Philosophy & Public Affairs 38, no. 2 (2010); Jeff McMahan, "Who Is Morally Liable to Be Killed in War," (Oxford University Press, 2011); Bradley Jay Strawser, "Walking the Tightrope of Just War," Analysis 71, no. 3 (2011); "Revisionist Just War Theory and the Real World: A Cautiously Optimistic Proposal," in Routledge Handbook of Ethics and War: Just War Theory in the Twenty-First Century, ed. Fritz Allhoff, Nicholas G. Evans, and Adam Henschke (London: Routledge, 2013); Seth Lazar, "National Defence, Self-Defence, and the Problem of Political Aggression," in The Morality of Defensive War, ed. Cécile Fabre and Seth Lazar (Oxford: Oxford University Press, 2014); "A Response to Strawser and McMahan," in The Ethics of Self-Defense, ed. Christian Coons and Michael Weber (Oxford: Oxford University Press, 2016).
For arguments about the relationship between contemporary revisionists and earlier just war theorists, see A. J. Coates, The Ethics of War, 2nd ed. (Manchester: Manchester University Press, 2016), 3–9; Roger Wertheimer, "Reconnoitering Combatant Moral Equality," Journal of Military Ethics 6, no. 1 (2007): 6, 67; Gregory M. Reichberg, "The Moral Equality of Combatants–a Doctrine in Classical Just War Theory? A Response to Graham Parsons," Journal of Military Ethics 12, no. 2 (2013): 181–82; Saba Bazargan, "Moral Equality of Combatants," International Encyclopedia of Ethics (2013); David Rodin and Henry Shue, "Introduction," in Just and Unjust Warriors: The Moral and Legal Status of Soldiers, ed. David Rodin and Henry Shue (Oxford: Oxford University Press, 2008), 14–15. For arguments from the early modern period, see Francisco de Vitoria, "On the Law of War," in Political Writings, ed. Anthony Pagden and Jeremy Lawrance, Cambridge Texts in the History of Political Thought (Cambridge: Cambridge University Press, 1991), 307–08, 11. Francisco Suárez, Selections from Three Works, Natural Law and Enlightenment Classics (Indianapolis, Indiana: Liberty Fund, 2015), 948–49.
As Jenkins, Robillard, and Strawser have written, “A schism is under way in the military ethics community, and the concept of liability is the wedge.” Ryan Jenkins, Michael Robillard, and Bradley Jay Strawser, "Editors’ Introduction," in Who Should Die? The Ethics of Killing in War, ed. Ryan Jenkins, Michael Robillard, and Bradley Jay Strawser (Oxford: Oxford University Press, 2018); ibid.
Reductivist theorists disagree as to whether a just combatant who will foreseeably cause wrongful harm as a side effect is liable to defensive harm. See, e.g., Adam Hosein, "Are Justified Aggressors a Threat to the Rights Theory of Self-Defense?," in How We Fight: Ethics in War, ed. Helen Frowe and Gerald Lang (Oxford: Oxford University Press, 2014); Jeff McMahan, "Self-Defense against Justified Threateners," ibid.
Though the most well-known account of this position is Walzer’s, there are others. See, e.g., Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 5th ed. (New York: Basic Books, 2015), 144–45; Noam J. Zohar, "Collective War and Individualistic Ethics: Against the Conscription of “Self-Defense”," Political Theory 21, no. 4 (1993); Christopher Kutz, "The Difference Uniforms Make: Collective Violence in Criminal Law and War," Philosophy & Public Affairs 33, no. 2 (2005); Dan Zupan, "A Presumption of the Moral Equality of Combatants: A Citizen-Soldier’s Perspective," in Just and Unjust Warriors: The Moral and Legal Status of Soldiers, ed. David Rodin and Henry Shue (Oxford: Oxford University Press, 2008); Yitzhak Benbaji and Daniel Statman, War by Agreement: A Contractarian Ethics of War (Oxford: Oxford University Press, 2019).
For a discussion as to whether liability is grounded in culpability or mere responsibility, see Judith Jarvis Thomson, "Self-Defense," Philosophy & Public Affairs 20, no. 4 (1991); Jonathan Quong, "Killing in Self-Defense," Ethics 119, no. 3 (2009); Kimberly Kessler Ferzan, "Culpable Aggression: The Basis for Moral Liability to Defensive Killing," Ohio St. J. Crim. L. 9 (2011); Joanna Mary Firth and Jonathan Quong, "Necessity, Moral Liability, and Defensive Harm," Law and Philosophy 31, no. 6 (2012); Adam Hosein, "Are Justified Aggressors a Threat to the Rights Theory of Self-Defense?," in How We Fight: Ethics in War, ed. Helen Frowe and Gerald Lang (Oxford: Oxford University Press, 2014); Jeff McMahan, "Self-Defense against Justified Threateners," ibid.
According to reporting, these beliefs might have been justifiably held by some Russian soldiers at the beginning of the war. See, e.g., Mia Jankowicz, "Captured Russians Said Their Leaders Lied About the Plan to Invade Ukraine, Leaving Them Unprepared for Fierce Resistance," Business Insider, 7 March 2022; Haley Britzkky, "What a Russian Soldier’s Panicked Text Home Reveals About Ukraine’s Information War," Task and Purpose, 1 March 2022.
See especially, Shue, "Do We Need a ‘Morality of War’?".
For instance, A. J. Coates has written that the reductivist methodology “involves an abstract process of moral reasoning based, largely, on the analysis of hypothetical or fictional examples. Historical or real-life cases are deliberately set aside and even the hypothetical constructs themselves often either lack any immediate reference to war or contain features that are difficult to square with the experience of war.” Likewise, Michael Walzer has said of McMahan’s revisionist account, “I don’t deny its perceptiveness; I only want to deny its relevance to the circumstances of war.” See, respectively, A. J. Coates, The Ethics of War, 2nd ed. (Manchester: Manchester University Press, 2016), 9; Micheal Walzer, "Response to Mcmahan’s Paper," Philosophia 34, no. 1 (2006): 43.
For a survey of the decade-long containment operations, see Zenko, Between Threats and War, 29–51. For the quoted text, see Knights, Cradle of Conflict, 213. For the 1998 change in ROE in particular, see Zenko, Between Threats and War, 42–43.
It is important, once again, to recognize the different ways in which this term is used in the different literatures. Airpower “punishment” strategies are aimed at causing harm to civilian populations to coerce the adversary government to reevaluate the costs of continued war and to desist. Punishment in the moral philosophy literature refers to possible retributive justifications for causing harm. For the former, see Karl Mueller, "Strategies of Coercion: Denial, Punishment, and the Future of Air Power," Security Studies 7, no. 3 (1998). For the latter, see Jeff McMahan, "Targeted Killing: Murder, Combat or Law Enforcement?," in Targeted Killings: Law and Morality in an Asymmetrical World, ed. Claire Finkelstein, Jens David Ohlin, and Andrew Altman (Oxford: Oxford University Press, 2012).
There is a very old tradition of punishment as a just cause for war and a number of contemporary scholars consider retributive justice to be a legitimate cause for war. See, e.g., Nigel Biggar, In Defence of War (Oxford: Oxford University Press, 2013). The nuances of the debate fall outside the scope here.
This was especially true in Operation Southern Watch. Though the US ROE was just as permissive in Operation Northern Watch, because US aircraft there launched from Turkey, operations in Northern Iraq remained constrained by the dictates of the Turkish General Staff and so US aircrews in Operation Northern Watch could not avail themselves of the new, less restrictive ROE. See Zenko, Between Threats and War, 37–38. David A. Deptula, Email Correspondence, 7 July 2019.
See, e.g., Thomson, "Self-Defense."; J. Garcia, "Intention-Sensitive Ethics," Public Affairs Quarterly 9, no. 3 (1995).
E.g., Chris Brown, "Revisionist War Theory and the Impossibility of a Moral Victory," in Moral Victories: The Ethics of Winning Wars, ed. Andrew R. Hom, Cian O'Driscoll, and Kurt Mills (Oxford: Oxford University Press, 2017); Allen S. Weiner, "Just War Theory & the Conduct of Asymmetric Warfare," Daedalus 146, no. 1 (2017): 63.
Lazar, for instance, goes so far as to say that “although imminence of the threat has sometimes been thought one of the necessary conditions for liability, most now agree that it is no more than a useful proxy to overcome uncertainty over whether a threat will eventuate, and whether using lethal force is a necessary response.” Lazar, "The Problem of Political Aggression.".
For the distinction between fact-relative and evidence-relative moral judgments, see Derek Parfit, On What Matters: Volume 1, ed. Samuel Scheffler (Oxford: Oxford University Press, 2011), 150–51.
The second assailant is, in Helen Frowe’s words, not merely an obstructor, but instead he intentionally participates in the attack. He “takes on, in legal terms, the role of an accomplice,” even though he has no round in the chamber. Frowe, Defensive Killing, 26.
For falling person cases, see e.g., Robert Nozick, Anarchy, State, and Utopia (Oxford: Blackwell, 2003), 43; Kai Draper, "Defense," Philosophical Studies 145, no. 1 (2009): 72; Uwe Steinhoff, "Rights, Liability, and the Moral Equality of Combatants," The Journal of Ethics 16, no. 4 (2012): 346; Michael Otsuka, "Killing the Innocent in Self‐Defense," Philosophy & Public Affairs 23, no. 1 (1994): 85–86; Thomson, "Self-Defense," 287.
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There are no conflicts of interests or competing interests of which the author is aware. This paper is derived from my doctoral dissertation. The doctoral degree was sponsored and funded by the United States Air Force. This work does not rely on studies involving human or animal subjects and informed consent is not relevant.
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Chapa, J.O. The Ethics of Signaling in War. Ethic Theory Moral Prac 26, 725–742 (2023). https://doi.org/10.1007/s10677-023-10379-z
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DOI: https://doi.org/10.1007/s10677-023-10379-z