The Ethics of War 6.forelesning

Summary of self-defence discussion Paradigmatic self-defence: 1) Against culpable aggressor = culpably responsible for forced choice between lives 2) By attacking victim, aggressor forfeits his right not to be (counter-)attacked 3) Creates asymmetrical right of self-defence 4) With constraints: proportionality, necessity, immediacy

Shared assumptions of ESD and NSD (1) Self-defence is an asymmetrical right (2) Asymmetry entails that Aggressor has no right of counter-defence against Victim (3) Asymmetry presupposes that initial attack is unjust

Narrow Doctrine of self- defence 1) Rights always have duty-correlates 2) That A has a right to X (e.g. to life) means that B has a duty not to deprive A of x (e.g. to kill A) 3) A right can only be violated if a duty is violated 4) Only a violation of duty can constitute an unjust attack 5) Only responsible agents acting in that capacity can violate a duty 6) There can only be a right of self-defence against responsible agents acting in that capacity (Rodin, McMahan, Zohar)

Extended doctrine of self- defence (Thomson, Nozick, Kamm) Right of defence against any causal threat to my life of whom it is true to say that if I do not kill him, he will kill me (And not vice versa), and: The attack is unjust (= I have done nothing to lose my right not to be attacked) Motivation for ESD: to justify the intuition that we have a right of defence against psychotic Axe Murderer, and: There is no morally relevant difference bewteen PAM and the Innocent Threat (Falling Fat Man)

Self-defence as a natural right Hobbes, Locke, Grotius, Pufendorf.. Self-defence is a natural right Grounded in natural instinct of self-preservation Aggressors guilt is irrelevant

Problems with principle of self- preservation Self-preservation becomes self- preferment Counter-intuitive results? Leads to a reductio ad absurdum?

So perhaps.. …we should say that in cases of innocent aggressors and threats… …there is no right of self-defence… …or of counter-defence.. …but a mutual exculpation? That is, neither party has a right, but neither can be blamed or punished for defending themselves!

Relevance of self-defence to war Principle of self-defence provides justification for going to war (ad bellum) And according to the conventionalist view a justification for killing (in bello) Criticism of self-defence applied to war: Can self-defence be transferred to collective agents? Rodin and Norman Requires collectivisation of soldiers Different models of SD apply ad bellum and in bello?

Independence thesis Symmetry thesis: rights, obligations and liabilities apply symmetrically Symmetry thesis implies independence thesis (?) Independence thesis = jus in bello and jus ad bellum can be jugded separately ”It is possible for a just war to be fought with unjust means, and for an unjust war to be fought in strict accordance with the rules” (Walzer)

Oppgaver til gruppearbeid Oppgave 1: Argumentèr for Nagels påstand: ”If the participation in war X is entirely wrong to begin with, then that engagement is incapable of providing a justification for any measure taken in its pursuit” (Nagel, 123) Oppgave 2: Argumentèr for Walzer’s påstand ”There is a licence for soldiers, and they hold it without regard for which side they are on. They are entitled to kill, not anyone, but men they know to be victims” (Wars, 36)

Are the two claims mutually exclusive?

The self-defence argument against independence If the only just wars ad bellum are wars of collective self-defence against collective unjust aggression… …then encounters between armies in bello are not between collective mutually innocent threats but....between collectively just and collectively unjust threats Uniacke versus Anscombe/Fullinwider Not all soldiers are engaged in an objectively wrong procceding!

The proportionality argument against independence (McMahan 2004) If the independence thesis is correct, it seems possible to fight an unjust war in strict accordance with the jus in bello rules BUT: The proportionality requirement is one of the jus in bello rules…

The proportionality argument against independence (1) According to the proportionality criterion the harm caused should not be out of proportion to the good aim to be achieved. (2) If the aim is unjust, no acts in its pursuit seem to be able to satisfy the proportionality requirement.

The proportionality argument against independence (3) In an unjust war, the aim is unjust. An unjust aim is incapable of justifying any harmful means (4) unjust combatants cannot participate in war without doing wrong. Since this is not true of just combatants, jus in bello cannot be independent of jus ad bellum.

Leads to criticism of the conventionalist view Jus in bello cannot be independent of jus ad bellum, because: Unjust combatants cannot have a right to harm or kill in pursuit of an unjust aim Unjust combatants cannot have a right to harm just combatants Therefore, the symmetry thesis is unwarranted

The relationship between Soldiers Soldiers forfeit their right to life (against each other) by ”alienating themselves from humanity” (Wars, 145) ”the soldier can be personally attacked only because he is already a fighter” (Wars, 145) Recall the innocent aggressor/threat case: - Soldiers cannot have a duty to let themselves be killed, and to impose such a duty seems unfair - If soldiers are mutually innocent threats to each other, they can have a mutual exculpation for killing each other, as we concluded in the innocent aggressor/threat case.

The gladiator model Walzer: War is a combat between combatants Soldiers recognise each other as ”Poor sods like me” Like gladiators forced to fight at the colosseum? The Modus Vivendi in war (Uniacke)

Reconciling the claims Subjective versus objective justification Vitoria on simultaneous ostensible justice. Soldiers can be subjectively justified. So the question becomes: which is most important for permissibility and moral standing: subjective or objective justification?

Classifying aggressors/threats (McMahan) 1) (morally) Innocent aggressors: a) Non-responsible (Psychotic Axe Murderer, Fat Man) b) Exculpated (me, if I panick and defend myself against PAM and FM, and Fat Man if he uses remote) c) Justified (Me, if I defend myself against PAM because I believe he is a culpable aggressor) d) Just (Me, if I defend myself against a culpable aggressor, or police officer defending guard) 2) Culpable aggressors (e.g.,criminals who rob a bank and attack guard)

Classifying soldiers as threats 1) Soldiers are not non-responsible threats. They are not automatons, or threatening in a mere causal sense. 2) Just combatants are not engaged in an objectively wrongful proceeding. They appear to be just threats, that is, objectively justified. (cf Walzer on forfeiture and alienation!) 3) Unjust combatants are engaged in an objectively wrongful proceeding. Are they: - Subjectively justified?- Exculpated?- Culpable? 4) If they are culpable threats, symmetry cannot be maintained, paradigmatic self-defence applies 5) Whether they are culpable threats or not depends on whether they are responsible - in a morally relevant sense - for their participation in an objectively wrongful proceeding 6) That is the question for next time!