The Ethics of War
11.Forelesning

”What if an international terrorist planted a
nuclear bomb somewhere in Manhattan, set
to go off in an hour and kill a million people.
You've got him in custody, but he won't say
where the bomb is. Is it moral to torture him
until he gives up the information?” (The Slate,
13.12.05)


Torture is inefficient
Hard cases make bad law!
”The War on Terror” as
supreme emergency?




Does the threat of terrorism constitute a
supreme emergency?
Supreme emergencies apparently justify
setting aside jus in bello rules (noncombatant immunity)
But only if the political community is
severely threatened as to its very existence
But how do we interpret that? The scope?
The gravity?
Side-effects of construing
terrorism as supreme emergency



Legitimizes torture
Legitimizes setting aside civil and human
rights
Oppressive states use the ”terrorism
excuse” to justify hard treatment of
legitimate minority claims – and get support!
Russland/Tsjetsjenia, Israel/Palestina
Ex; ”The commander-in-chief
override”:

John Yoo: ”congress can
place no limits on the
President’s determinations
as to any terrorist threat,
the amount of military force
to be used in response, or
the method, timing and
nature of the response”
(David Luban, ”The defense of Torture”, The New York Review,
14 February 2007)
”The Torture Memo”
”Inflicting physical pain does not count as
torture unless the interrogation specifically
intends the pain to reach the level
associated with organ failure or
death…inflicting mental suffering is lawful
unless the interrogator intends it to last
months and years beyond the
interrogation..”
(David Luban, ”The defense of Torture”, The New York Review, 14 February 2007)
Terrorism: War or crime?
Yoo’s basic argument
The struggle against Al
Qaeda is a war, not
law enforcement
Therefore, the
President’s powers as
commander-in-chief
overrides civil law
+ The battlefield is
everywhere!
And eternal?
”War or crime?” is important
because

-
-
The way we conceptualize ”terrorism”
determines:
Who has the power(s) to decide on the
means
What the proper means are
How to treat the offenders (i.e. their
legal status)
Luban:
”The war on terror” is a war, not law
enforcement
September 11th was a military campaign,
not a criminal act
Al-Qaeda’s terrorism is politics by violent
means (= Clausewitz’s definition of
war)
AQ’s ends are geopolitical
Luban against Yoo
1)
2)


-
-
War against terror is a new kind of war
Traditional presidential war powers apply (inlcuding,
now, the power to interpret Geneva Convention!)
But that is a contradiction, because presidential
powers are designed for traditional war: a limited
conflict regulated by treaties and demarcated by
uniforms.
Problems with the new war:
When does it end? (POW’s)
How do we distinguish it from peace? (cf. open
declaration!)
Mix of war and peace, military and civilan law…
Acts of terror in war






Link to JWT: Double effect
Terror bombing versus tactical bombing
Intentional targeting of non-combatants in order to
win military advantage by undermining morale or
bring war to rapid end (nb!)
Examples: Dresden, Berlin, Hiroshima, Nagasaki
Is this the same phenomenon as terrorism outside
of the conventional war context?
Depends on definition of terrorism..
What is terrorism?
•
-
•
Searching for a definition:
What characterises the phenomenon?
What are its special features?
Delienate terrorism from other types of
violent acts
Is terrorism always a moral wrong?
Types of definitions
-
Tactical/operational
Teleological
Agent-focused (political status)
Object-focused (victims)
Tactical/operational definitions



-
-
Weapons used
Who can be the targets of terrorist
acts? Persons? Property?
Mode of deployment:
Indiscriminate?
Random?
Teleological definitions




Focus on end/goal
Political purposes
Instilling fear (the ’terror’ of terrorism)
Coercion
Agent-focused definitions




Focus on the nature of the agent
Non-state actors (Revolutionaries,
Walzer)
US State Dept definition: ”.. Subnational or clandestine groups”
Political status definition: ex hypothesi
impossible for state actors to commit
terrorism!
Object-focused definitions

Attacks against innocent/noncombatant/neutral/civilian
Coady’s definition





The organized use [or threat to use] of violence to
attack noncombatants or innocents (in a special
sense) or their property for political purposes”
Tactical definition? Rather a combined tactical +
object-focused + teleological def. But also agentfocused element? Organized!
Implications:
states can commit terrorist acts
Not all non-state actors committing political violence
are terrorists.
Goodin’s definition




Aims to answer ”What is the distinctive
moral wrong of terrorism?” (non-reducible to
killing, maiming, etc)
Def: ”Acting with the intention of instilling
fear in people for one’s own political
advantage”
Also a tactical definition, with teleological
elements
Note that it has neither agent- nor object
focused elements!
Rodin’s definition
”Terrorism is the deliberate, negligent
or reckless use of force against noncombatants, by state or nonstate
actors for ideological ends and in the
absence of a substantively just legal
process”
Comparing the definitions
1)
2)
3)
4)
5)
6)
Shared: Political/ideological purposes
Shared: non-agent focus
Not shared: Violence/force
Not shared: Emphasis on terror (fear)
Not shared: Emphasis on intentions
Not shared: Emphasis on effects