What is the moral basis of war restrictions [jus in
bello prohibitions]?
Can we create a rational basis for war restrictions?
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US soldiers killed about 500 unarmed civilians in
March of 1968.
Women, children and the elderly were murdered.
Some women were raped, bodies were mutilated.
The massacre was covered up until a soldier
reported it to public officials.
33 of the 150 soldiers were thought to be
responsible.
13 were tried, only one convicted (Lt. Calley)
He was charged with murdering 104 villagers.
He served 3 ½ years and was pardoned by Nixon
but later apologized for the massacre.
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If the war was wrong to begin with, then everything
done at My Lai was wrong.
There was an ‘apathetic’ reaction in the US to the
massacre.
The Vietnam War “has revealed attitudes of a more
general kind, that influenced the conduct of earlier
wars as well…It is not easy to keep a firm grip on the
idea of what is permissible in warfare because while
some military actions are obvious atrocities, other
cases are more difficult to assess.” (p. 124)
What cases might he refer to? What is the difference
between the ‘difficult’ cases and the ‘easy’ cases?
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One view: There are restrictions on the means
that can justifiably be pursued to achieve a
good end.
If it takes torture or destroying a village to end
a terrorism campaign one must not do that.
A conflict between utilitarianism and absolutism
Utilitarianism=The right action is the action
that promotes the best consequences. Nagel
“gives primacy to a concern with what will
happen.” (124)
Absolutism is concerned “with what one is
doing.” It forbids certain actions to promote
good ends.
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We utilize consequentialist-type thinking all the
time, and try to maximize good outcomes.
The moral theory says that it is the right thing to
do. [Utilitarianism will generally say good
consequences are some element of subjective
mental states or welfare—such as happiness.]
The right thing to do is to do that thing that will
maximize good consequences more than any
other thing one could do.
It is to “maximize good and minimize evil.” (p.
125)
Pacifism can be a form of absolutism—We may
never kill another person. [I.e., there are no
exceptions.]
 GE Anscombe is a renowned advocate of this
view in “Mr. Truman’s Degree.”
 In the Vietnam War, there were many cases of
violations of absolutist principles—e.g., “the
deliberate killing of the harmless, civilians,
prisoners of war, and medical personnel…”
Nagel says “many people feel…that something has
gone seriously wrong when certain measures are
admitted into consideration in the first place…”
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[Kant’s theory is absolutist when it comes to
violating the categorical imperative or
treating others as means only and not as
ends.]
The absolutist says there are some things we
can never justify in terms of consequences.
We can’t do one evil to prevent a thousand
evils.
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[Ends=goals/Means=method whereby one
achieves those goals]
We will be torn, Nagel thinks, between both
utilitarian and absolutist reasons.
Note that consequentialism/utilitarianism does
not mean that one can do anything to achieve a
singular desirable goal because one must look to
long term consequences.
Rule-consequentialism [Rule utilitarianism] might
argue that one should always follow jus bello
rules of war.
Nagel: “Utilitarianism certainly justifies some
restrictions…”
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Absolutist prohibitions are about what one does,
deliberately. [E.g., it can’t be ‘you may never
allow the death of innocent people’ because
sometimes no matter what you do, innocent
people will die—e.g., if you don’t violate other
rules and bomb a village, a terrorist might go on
to kill innocents elsewhere.] So it is about what
one DOES not what one ALLOWS.
The doctrine of the double effect points out that
actions can be the cause of multiple effects,
some of which one intends, some of which one
doesn’t intend.
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It…”is sometimes permitted knowingly to bring about
as a side effect of one’s actions something which it
would be absolutely impermissible to bring about
deliberately as an end or as a means…” (p. 130)
Nagel says “it introduces uncertainty where there
need not be uncertainty…”
So the DDE would imply it is permissible to engage in
an aerial attack on a village if one is trying to get
guerillas. The attack will kill innocent people but it is
a means of killing guerillas.
N says it depends on the description of the act—the
means used against the guerillas is not killing
everyone in the village but aerial bombing the area
where the guerillas are. People are killed as side
effects.
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Absolutism doesn’t say murder is the worst thing
because an absolutist may say that we must allow
murder to happen if to prevent it requires
murdering someone.
Some criticize absolutism as an obsession with
‘clean hands’ because an absolutist might allow
evils to occur just to avoid doing an evil.
Nagel points out that the absolutist is not more
morally pure than the consequentialist because
the consequentialist also demands of people that
they do the right thing, which preserves one’s
moral purity in the circumstances.
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War, conflict and aggression are relations
between persons.
Hostile treatment “must be justified in terms
of something about that person that makes
the treatment appropriate...Hostility is a
personal relation” (p. 133)
Is it “compatible” with treating someone as a
person to engage in hostility, aggression and
combative treatment”?
Nagel says that it is. Why might we think
otherwise?
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We do not engage in no holds barred combat
under most circumstances.
We make a distinction between fighting clean
and fighting dirty.
In elections it is thought that certain tactics
are beyond the pale (even if they are done):
Shaming his family, blackmailing him,
flattening his supporters tires, etc.
What’s wrong with these methods?
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If you attack the person’s family, you attack
what is not the true target of the issue.
He gives the example of an argument with a
taxi driver. It is inappropriate/fighting dirty to
“taunt him about his accent, flatten one of his
tires, etc…”
The principle Nagel thinks restrictions derive
from is: “…hostility and aggression should be
directed at its true object…”
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Nagel sees personhood as at the heart of the
prohibitions in war.
 “…whatever one does to another person intentionally must
be aimed at him as a subject, with the intention that he
receive it as a subject. It should manifest an attitude to
him rather than just the situation, and he should be able
to recognize it and identify himself as its object…”
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We address hostility to a person.
The reason absolutism makes sense is
because we can’t justify to the victim of a
violation of prohibitions what we are doing to
him in the name of good consequences.
We can’t say to a torture victim that we have
to pull out his fingernails to get information
and have that justification seem acceptable to
him.
Why not?
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For Nagel, absolutism is justifying oneself to
other people as people—we see ourselves as
interacting with other people.
Utilitarianism is administrative.
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Some restrictions are of mutual benefit.
There are 2 types (1) Those that limit who can be
attacked (e.g., never unarmed civilians directly)
(2) What we can do to people when attacking
them (e.g., no chemical or biological weapons)
Nagel says this is explained by his principle
about directing hostility to the appropriate
target.
If you attack civilians you are not attacking the
government.
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In hostility one must only attack the threat.
Nagel argues that one should not view non
combatants as threats because, even if they
contribute to the war effort (as bakers, e.g.)
they are not pursuing a military objective.
They are peripheral to the “cause of danger.”
In their contribution to soldiers (e.g., by
feeding them) they contribute to them as
people (since all humans need nourishment)
but not as soldiers.
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Cruel methods of warfare also don’t attack
the specificity of the threat. To intentionally
maim a person for life is not necessary if one
can incapacitate the person.
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Consequences always put pressure on
absolute prohibitions.
It is not clear there are always principles that
allow us to resolve such conflicts.
…it is naïve to suppose there is a solution to
every moral problem with which the world
can face us. We have always known that the
world is a bad place. It appears that it may be
an evil place as well.” (144)