Lecture 8: Walzer on Just War Theory
Ethics of Emerging Weapons Technologies
February 7, 2013
Michael Walzer (1935–)
Ad Bellum and In Bello
• jus ad bellum: justice in the resort to war, the justice “of” war
• jus in bello: justice in the conduct or means of war, justice in
war
Aggression
War has human agents as well as human victims. Those agents,
when we can identify them, are properly called criminals. Their
moral character is determined by the moral reality of the activity
they force others to engage in. They are responsible for the pain
and death that follow from their decisions, or at least for the pain
and death of all those persons who do not choose war as a
personal enterprise. In contemporary international law, their crime
is called aggression, and I will consider it later on under that name.
But we can understand it initially as the exercise of tyrannical
power, first over their own people and then, through the mediation
of the opposing state’s recruitment and conscription offices, over
the people they have attacked. (p. 31)
Aggression: The Legalist Paradigm
(ch. 4)
• There exists an international society of independent states
• This international society has a law that establishes the rights
of its members – above all, the rights of territorial integrity
and political sovereignty.
• Any use of force or imminent threat of force by one state
against the political sovereignty or territorial integrity of
another constitutes aggression and is a criminal act.
• Aggression justifies two kinds of violent response: a war of
self-defense by the victim and a war of law enforcement by the
victim and any other member of international society.
• Nothing but aggression can justify war.
• Once the aggressor state has been militarily repulsed, it can
also be punished.
Exceptions to the Legalist Paradigm
Anticipation, Preventative War, or Preemptive Strike (ch. 5)
To say that [there are legitimate preemptive strikes], however, is to
suggest a major revision of the legalist paradigm. For it means that
aggression can be made out not only in the absence of a military
attack or invasion but in the (probable) absence of any immediate
intention to launch such an attack or invasion. The general
formula must go something like this: states may use military
force in the face of threats of war, whenever the failure to do
so would seriously risk their territorial integrity or political
independence. Under such circumstances it can fairly be said that
they have been forced to fight and that they are the victims of
aggression. (p. 85)
Exceptions to the Legalist Paradigm
Anticipation, Preventative War, or Preemptive Strike (ch. 5)
The line between legitimate and illegitimate first strikes is not
going to be drawn at the point of imminent attack but at the
point of sufficient threat. That phrase is necessarily vague. I mean
it to cover three things: a manifest intent to injure, a degree of
active preparation that makes that intent a positive danger,
and a general situation in which waiting, or doing anything
other than fighting, greatly magnifies the risk. (p. 81)
Exceptions to the Legalist Paradigm
Intervention in Other Conflicts (ch. 6)
Self-determination, then, is the right of a people “to become free
by their own efforts” if they can, and nonintervention is the
principle guaranteeing that their success will not be impeded or
their failure prevented by the intrusions of an alien power. It has to
be stressed that there is no right to be protected against the
consequences of domestic failure, even against a bloody repression.
(p. 88)
Exceptions to the Legalist Paradigm
Intervention in Other Conflicts (ch. 6)
• when a particular set of boundaries clearly contains two or
more political communities, one of which is already engaged
in a large-scale military struggle for independence; that is,
when what is at issue is secession or “national liberation,”
• when the boundaries have already been crossed by the armies
of a foreign power, even if the crossing has been called for by
one of the parties in a civil war, that is, when what is at issue
is counter-intervention; and
• when the violation of human rights within a set of boundaries
is so terrible that it makes talk of community or
self-determination or “arduous struggle” seem cynical and
irrelevant, that is, in cases of enslavement or massacre. (p.
90)
“Excessive” Harm (ch. 8)
What is being prohibited here is excessive harm. Two criteria are
proposed for the determination of excess. The first is that of
victory itself, or what is usually called military necessity. The
second depends upon some notion of proportionality: we are to
weigh “the mischief done,” which presumably means not only the
immediate harm to individuals but also any injury to the
permanent interests of mankind, against the contribution that
mischief makes to the end of victory. (p. 129)
Military Necessity (ch. 8)
The doctrine justifies not only whatever is necessary to win the
war, but also whatever is necessary to reduce the risks of losing, or
simply to reduce losses or the likelihood of losses in the course of
the war. In fact, it is not about necessity at all; it is a way of
speaking in code, or a hyperbolical way of speaking, about
probability and risk. [. . . ][T]here will always be a range of tactical
and strategic options that conceivably could improve the odds.
There will be choices to make, and these are moral as well as
military choices. (p. 144)
Proportionality (in bello) (ch.8)
Once again, proportionality turns out to be a hard criterion to
apply, for there is no ready way to establish an independent or
stable view of the values against which the destruction of war is to
be measured. Our moral judgments wait upon purely military
considerations and will rarely be sustained in the face of an
analysis of battle conditions or campaign strategy by a qualified
professional. (p. 129)
The Violation of Human Rights (ch.
8)
A legitimate act of war is one that does not violate the
human rights of the people against whom it is directed. [. . . ]
Everyone else [who is not a soldier fighting in a war] retains his
rights, and states remain committed, and entitled, to defend those
rights whether their wars are aggressive or not. But now they do
this not by fighting but by entering into agreements among
themselves, by observing these agreements and expecting
reciprocal observance, and by threatening to punish military leaders
or individual soldiers who violate them. (pp. 135–136)
Discrimination (ch. 9)
The war convention rests first on a certain view of combatants,
which stipulates their battlefield equality. But it rests more deeply
on a certain view of noncombatants, which holds that they are
men and women with rights and that they cannot be used for some
military purpose, even if it is a legitimate purpose. (p. 137)
Double Effect (ch. 9)
1
The act is good in itself or at least indifferent, which means,
for our purposes, that it is a legitimate act of war.
2
The direct effect is morally acceptable – the destruction of
military supplies, for example, or the killing of enemy soldiers.
3
The intention of the actor is good, that is, he aims only at the
acceptable effect; the evil effect is not one of his ends, nor is
it a means to his ends.
4
The good effect is sufficiently good to compensate for
allowing the evil effect; it must be justifiable under
[proportionality]. (p. 153)
Doctrine of Double Intention (ch. 9)
1
The act is good in itself or at least indifferent, which means,
for our purposes, that it is a legitimate act of war.
2
The direct effect is morally acceptable – the destruction of
military supplies, for example, or the killing of enemy soldiers.
3
The intention of the actor is good, that is, he aims narrowly
at the acceptable effect; the evil effect is not one of his ends,
nor is it a means to his ends, and, aware of the evil
involved, he seeks to minimize it, accepting costs to
himself.
4
The good effect is sufficiently good to compensate for
allowing the evil effect; it must be justifiable under
[proportionality]. (pp. 153, 155)
Guerrilla Warfare (ch. 11)
[T]he guerrillas don’t subvert the war convention by themselves
attacking civilians. . . Instead, they invite their enemies to do it.
By refusing to accept a single identity [i.e., soldier or civilian], they
seek to make it impossible for their enemies to accord to
combatants and noncombatants their “distinct privileges. . . and
disabilities.” (pp. 179–180)
Guerrilla Warfare (ch. 11)
Indeed, it is more plausible to make exactly the opposite argument:
that the war rights the people would have were they to rise
en masse are passed on to the irregular fighters they support
and protect – assuming that the support, at least, is voluntary.
For soldiers acquire war rights not as individual warriors but as
political instruments, servants of a community that in turn
provides services for its soldiers. (p. 185)
Guerrilla Warfare (ch. 11)
Have these civilians forfeited their immunity? Or do they, despite
their wartime complicity, still have rights vis-a-vis the anti-guerrilla
forces? [. . . ] We must imagine a domestic state of emergency and
ask how the police might legitimately respond to such hostility.
Soldiers can do no more when what they are doing is police work;
for the status of the hostile civilians is no different. Interrogations,
searches, seizures of property, curfews – all these seem to be
commonly accepted; but not the torture of suspects or the taking
of hostages or the internment of men and women who are or might
be innocent. (pp. 185–188)
Terrorism (ch. 12)
In its modern manifestations, terror is the totalitarian form of war
and politics. It shatters the war convention and the political code.
It breaks across moral limits beyond which no further limitation
seems possible, for within the categories of civilian and citizen,
there isn’t any smaller group for which immunity might be claimed.
Terrorists anyway make no such claim; they kill anybody. (p. 203)
Terrorism (ch. 12)
The mark of a revolutionary struggle against oppression, however,
is not this incapacitating rage and random violence, but restraint
and self-control. The revolutionary reveals his freedom in the same
way as he earns it, by directly confronting his enemies and
refraining from attacks on anyone else. It was not only to save the
innocent that revolutionary militants worked out the distinction
between officials and ordinary citizens, but also to save themselves
from killing the innocent. [. . . ] The same thing can be said of the
war convention: in the context of a terrible coerciveness, soldiers
most clearly assert their freedom when they obey the moral law.
(pp. 205–206)
Jus ad bellum (1/2)
• just cause: A state may launch a war only in resistance to
aggression. Aggression is the use of armed force in violation of
someone else’s basic rights.
• right intention: A state must intend to fight the war only for
the sake of its just cause. Ulterior motives, such as a power or
land grab, or irrational motives, such as revenge or ethnic
hatred, are ruled out.
• formal declaration: A state may go to war only if the
decision has been made by the appropriate authorities,
according to the proper process, and made public, notably to
its own citizens and to the enemy state.
Jus ad bellum (2/2)
• last resort: A state may resort to war only if it has exhausted
all plausible, peaceful alternatives to resolving the conflict in
question, in particular diplomatic negotiation.
• probability of success: A state may not resort to war if it
can foresee that doing so will have no measurable impact on
the situation.
• proportionality: A state must, prior to initiating a war, weigh
the universal goods expected to result from it, such as
securing the just cause, against the universal evils expected to
result, notably casualties. Only if the benefits are proportional
to, or “worth”, the costs may the war action proceed.
Jus in bello (1/2)
• discrimination: Soldiers are only entitled to use their
weapons to target those who are “engaged in harm.” While
some collateral civilian casualties are excusable, it is wrong to
take deliberate aim at civilian targets.
• military necessity: Only targets, even otherwise legitimate
targets, which materially advance victory (i.e., the war’s just
cause) may be attacked.
• proportionality: Soldiers may only use force proportional to
the end they seek. They must restrain their force to that
amount appropriate to achieving their aim or target.
• fair treatment of prisoners: If enemy soldiers surrender and
become captives, they cease being lethal threats to basic
rights. They are no longer “engaged in harm.” Thus it is
wrong to target them with death, starvation, rape, torture,
medical experimentation, and so on.
Jus in bello (2/2)
• preservation of human rights: Soldiers may not use
weapons or methods which are “evil in themselves,” or which
damage the basic human rights of those they target, even if
legitimate targets. These include: mass rape campaigns;
genocide or ethnic cleansing; using poison or treachery;
forcing captured soldiers to fight against their own side; or
using weapons whose effects cannot be controlled.
• no reprisals: States may not violate jus in bello as a way to
punish another state for a prior violation of jus in bello.