”The Ethics of War” 5.forelesning

Summary of discussion The Discrimination Principle Civilians and soldiers have different legal standing Do they also have different moral standing? To alternative answers: 1) Yes, because soldiers are threats 2) No, because what matters is whether the cause is just or unjust

Different approaches (1) Symmetry thesis: Moral standing depends on physical threateningness. Soldiers are physical threats. Civilians are not. Equality of soldiers on just and unjust side. (2) Asymmetry thesis: Moral standing depends on (a) collective guilt, or (b) responsiblity. Soldiers are guilty/responsible for the wars they fight. No equality of soldiers on just and unjust side.

Civilians and asymmetry thesis Responsibility doctrine: Threat + responsibility. Both necessary, neither sufficient conditions for loss of immunity. Can maintain civilian immunity on both sides. Guilt doctrine: Threat indication of guilt, guilt necessary and sufficient condition for loss of immunity. Cannot maintain civilian immunity on both sides (with exceptions)

The orthodox/conventionalist view 1) it is always wrong to kill the innocent 2) non-innocence is an upshot of being ‘engaged in harming’ 3) the relevant harming is material, not culpable 4) non-innocence implies a loss of immunity (McMahan 1994).

Paradigmatic case of justified self-defence When one is attacked by someone who is culpably responsible for creating the situation of forced choice between lives

Self-defence against innocent threats According to the conventionalist view: - Soldiers are innocent threats - Soldiers have forfeited their right not to be attacked in virtue of being threats - Soldiers have a right to kill each other because they are threats - How do we justify killing innocent threats?

Gruppearbeid

Innocent aggressor A psychotic man comes towards you with an axe. Voices in his head tell him that your are Satan incarnated and he believes it to be his duty to annihilate you. He aims at you with the intention to kill you. Are you permitted to kill him in self-defence? Is he permitted to counter-defend himself against you? Why/not?

Innocent threat You are laying on your deck, sunbathing. A fat man is sitting in the cliff-top park above your house. Suddenly he rolls of his chair and falls toward you. If he hits you he will crush and you will die, but by falling on you he will save his life. Your only chance to save yourself is to change the direction of your awning and deflect him down to the road where he will die. Are you permitted to change the direction of your awning? If the fat man had a remote control to your awning, would he be permitted to use it? Why/not?

Two approaches to self- defence Self-defence as a symmetrical right Self-defence as an asymmetrical right

Self-defence as symmetrical right ” When our bodies are violently attacked with danger to our lives, and there is no other way of escape, it is lawful to fight the aggressor, and even to kill him … we must note that this right of self-defence derives its origin primarily from the instinct of self- preservation, which nature has given to every creature, and not from the injustice or misconduct of the aggressor. Wherefore, even though my assailant be guiltless, as for instance a soldier fighting in good faith, or one who mistakes me for someone else, or a man frantic with insanity or sleeplessness (…) in none of these cases am I deprived of my right of self- defence… (Hugo Grotius)

Problems with symmetrical self-defence Fails to distinguish between different types of aggressors Counter-intuitive results Doctrine of self-preferment Leads to a reductio ad absurdum?

Self-defence as an asymmetrical right To have a right of self-defence means that the aggressor has no right of counter-defence Two descriptions must be true: (1) if Victim does not kill Aggressor, Aggressor will kill Victim (2) the attack on Victim is unjust

Self-defence as particular form of forced choice between lives (1) Demarcates self-defence from other situations of forced choice between lives (2) Demarcates legitimate from illegitimate self-defensive acts

Intrinsic features of right of self-defence Proportionality Necessity Immediacy

Analysing the case of Innocent Aggressor and Threat Two competing interpretations: Extended Self-defence Doctrine (ESD) Narrow Self-Defence Doctrine (NSD)

Shared assumptions ESD and NSD Aggressor and Threat are non-responsible threats Aggressor and Threat are morally on a par (no relevant difference between the cases) The right of self-defence is asymmetrical = no right of counter-defence To have a right of self-defence, the initial attack must be unjust An attack on a person A is unjust if.. A has a right not to be killed and has done/is doing nothing to lose her right not to be attacked

The argument for the Extended Self-Defence Doctrine Part I I have a right not to be unjustly killed Fat man has no right to kill me Therefore, if he kills me, he does so unjustly Part II I have a right of self-defence against unjust threats to my life Therefore, I have a right of defence against the Fat Man The right og self-defence implies a non-right of counter- defence Therefore, the Fat Man has no right of counter-defence

The argument against the ESD (NSD) PART I To have a right always implies that someone has a correlative duty Any violation of a right is at the same time a violation of a duty An attack or threat can only be unjust if it is a violation of a duty A non-responsible threat cannot violate a duty Therefore, the Fat Man cannot threaten me unjustly PART II Any right of self-defence must be response to an unjust threat. Fat Man is not an unjust threat Therefore, I have no right of self-defence against Fat Man Therefore, there is no non-right of counter-defence on the part of the Fat Man.

Moreover… Does the Fat Man case fall under the description ”If A does not kill B, B will kill A”? Does the Axe Murderer? Is ”kill” an appropriate term? In the sense we can say: ”He got killed by a falling stone” or ”A tiger killed her”, the term is appropriate. But stones and tigers cannot violate rights because they are not the subject of duties. If Fat Man poses a threat in virtue of being a lethal object merely by being causally threatening, like the stone…. …and the Axe Murderer poses a threat in virtue of being a lethal object merely by being causally threatening like the tiger….. it may be correct to say they will kill me, but not that they will kill me in a morally relevant sense.. They will not kill me unjustly because in the circumstances, neither Fat Man nor Axe Murderer are moral agents They do not fall under the class of entities who can threaten or kill someone unjustly

Possible objections to the common assumption Axe murderer acts with intent. Fat Man does not act at all Axe Murderer intends to kill me and will pursue me if I try to run. Fat Man will not. But Axe Murderer is not responsible for forming the intent. If Fat Man uses remote, he ceases to be non-responsible threat. If Axe murderer fights back, he does not cease to be innocent threat.

Justifying intuitions I am permitted to move away (intuitively correct) I am permitted to change my awning (???) I am permitted to use a ray-gun against the fat man (Nozick’s well case) (counter-intuitive. To me ).

Moving away I have no duty to stay put because: I have no duty to sacrifice myself for Fat Man Therefore, I have a right to move away Implication: Fat Man has no right to glue me to my sun-bed (if he has a magic wand and knows the ”petrificus totalis” spell)

Using a ray-gun I am not permitted to use a ray-gun to dissolve the Fat Man because Fat Man has done nothing to lose his right to life, hence I have a duty not to kill him. To use the ray-gun is the same as killing (=murdering) him, rather than letting him die (which I do if I move away) Therefore I have no right to use the ray-gun Implication: Fat Man has a right to defend himself against my ray-gun

Turning the awning A matter of killing or letting die? Is it relevant that I change the direction of Fat Man’s fall? Harms should lie where they fall But if so, why can I move away? Suggested conclusion: The case is indeterminate. Neither of us have a right of defence against the other, and neither has a duty of self-sacrifice.

A pluralist view of self-defence In ordinary self-defence, the permission applies asymmetrically. That is, in every case where the attacker is culpably responsible for initiating the choice between lives, the guilt of the aggressor tips the balance. Only in these cases can we speak of a proper right of defence, implying a non-right of counter-defence. In cases of innocent threats, the permission applies symmetrically. No party is justified, merely excused for defending themselves. Weak permission

Self-defence and war How can self-defence apply to war, ad bellum and in bello? Depends on whether soldiers are innocent aggressors or not And that, in turn, depends on whether or not they are individually responsible for the wars they fight.

Oppgaver til neste gang 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)