1. (Amsterdam / KU Leuven)
UPF Law and Philosophy seminar
Barcelona, 6 Feb. 2018
On war and justice: proportionality, liability, and permissible defensive harm
Johan Olsthoorn
(Amsterdam / KU Leuven) 1

2. 1.0 The Ethics of War today
Recent revisionist theories about the ethics of war:
International law does not express moral truths about permissible killing
Reductivism (≠ moral exceptionalism about war)
Individualism
Sub specie aeternitatis judgments 2 2

3. 1.1 Critics of revisionism
Critics object: revisionists overlook political dimensions of war
Not who is right, but who has the right to judge
E.g. rights of sovereignty, soldiers as public officials, international regulation
My aim by contrast:
Think through issues of standing and mutual answerability within ethics of war
‘The justice of war’: what we owe to each other
The question: ‘what ought I morally to do’ and ‘what can others hold me accountable for’ are distinct 3 3

4. 1.2 What we owe to each other
Justice:
≠ distributive justice (fairness in distributions)
but norm governing mutual moral rights and duties
rights as standings
Rights in war:
Grave wrongdoers forgo some rights – their standing to complain about some harm-inflictions
Defensive harm: to whom are we answerable for what? 4 4

5. 2.0 Bloodless invasion objection
Soviet invasion of Finland (Nov. 1939)
Limited territorial ambitions: placing Leningrad beyond range of German heavy artillery
Conditional threat
Purely political aggression
Were the Finns morally allowed to defend themselves?
UN Charter, art. 51: yes
David Rodin: no
Norman 1995: ; Rodin 2002: revisionists
“Winter war”
Conditional threat, hence no individual rights of self-defence triggered
Finland had no prospect of success in 1939, making resistance immoral. Yet Soviet Union was not wronged by the Fins’ foolharded decision to take up arms 5 5

6. 2.1 The permissibility of national defence
A universal right of armed national defence?
Armed defence is permissible only if it meets the ad bellum proportionality and success conditions
Bloodless invasion objection to reductivist individualism about war
My claim:
The objection highlights two senses in which agents may be said to be morally free to wage defensive war
Norman 1995: ; Rodin 2002: revisionists
“Winter war”
Conditional threat, hence no individual rights of self-defence triggered
Finland had no prospect of success in 1939, making resistance immoral. Yet Soviet Union was not wronged by the Fins’ foolharded decision to take up arms 6 6

7. 2.2 Two distinct questions
When is initiating defensive war all things considered justified?
When does a nation have a right against another nation to use military force against it?
Cf. when do I do you no wrong in inflicing violence on you? 7 7

8. 3.0 Two kinds of liberty-rights
‘to be morally free to fight’ = ambiguous phrase
Deontological liberty-right
All-things-considered moral permission
Hohfeldian liberty-right
Being morally free vis-à-vis A to φ
= absence of directed duty owed to A to abstain from φ-ing
= A has no claim against V to abstain from φ-ing
As regards war, this means: A is liable to suffer B’s φ-ing
Paired privilege: to be morally free to φ and to not- φ. 8 8

9. 3.1 Directed vs. nondirected duties
‘a duty is a directed duty if there is someone to whom it is owed... it is a nondirected duty if there is no one to whom it is owed’
Sreenivasan 2010: 467
Directed duties entail correlative claim-rights held against the duty-holder
Think of rights and duties created by promising
You wrong me by violating my rights
Wronging vs. acting wrongly
Directed duties are never conclusive:
Always conceptually open to ask: ATC, ought I to do what I owe to you?
ATC oughts are conclusive & nondirected duties 9 9

10. 3.2 My contention Two distinct and mutually irreducible claims:
V can use military force against A without wronging A
It is all-things-considered morally permitted for V to use military force against A 10 10

11. 3.3 As the 1939 Winter War attests
Finnish resistance did not wrong the Soviets
The Soviets had no claim-right against the Finns that they abstain from using defensive force
Soviets were liable to suffer harm
Finland had a directed (= Hohfeldian) liberty-right to forcibly repel unjust Soviet aggressors
Open question whether Finnish resistance was ATC morally justified
i.e. whether Finns also had a deontological liberty- right to armed defence
SU made an unlawful threat. Soviet Union culpably initiated violence 11 11

12. 4.0 Two kinds of proportionality
Narrow proportionality:
Of defensive response to wrong done
Defensive force must be proportionate to threat
E.g. impermissible to kill a pick-pocketer
Pick-pocketer is liable to suffer defensive force, but not lethal force
Forbids excessive force (exceeding liability)
Narrow proportionality = constitutive for war-right
Determines content of Hohfeldian liberty-right
McMahan 2009; McMahan 2014: 124
Narrow: focuses on persons who are liable to defensive force 12 12

13. 4.1 Wide proportionality Wide proportionality:
Regards all harm intentionally and foreseeably inflicted, including on non-liable third parties
Resort to war is permissible only if expected moral goods outweigh expected moral evil
Example of Syrian civil war
Wide proportionality = constrains war-right
May render exercising Hohfeldian liberty-right morally impermissible
“Defensive action is impermissible when it foreseeably produces harmful effects that are disproportionate to the good one is seeking to achieve” (Rodin 2014: 82)
Defending territorial integrity ‘not worth it’ 13 13

14. 4.2 Objection
Nonsensical to speak of moral duty to not exercise a moral right
But Hohfeldian liberty-right is expressive of the moral relation V and A stand in
Correlate of absence of directed duty on V owed to A to abstain from inflicting harm on A
Expresses that A is not wronged insofar as V inflicts narrowly proportionate defensive force
No standing to complain
“Defensive action is impermissible when it foreseeably produces harmful effects that are disproportionate to the good one is seeking to achieve” (Rodin 2014: 82)
Defending territorial integrity ‘not worth it’ 14 14

15. 4.3 Proportionality and success conditions
Standard ad bellum requirements:
Morally impermissible to wage hopeless and disproportionate wars
Sometimes morally mandatory to surrender to unjust enemy
Not owed to that enemy!
Soviet Union could not justly complain about Finnish decision to wage hopeless war
That would turn might into right 15 15

16. 4.4 Liability Internalism vs. externalism about liability
“A person cannot be liable to attack when attacking him would be wrong because it would be unnecessary or disproportionate”
Jeff McMahan 2oo9: 10
Internalism must be rejected:
For it conceptually rules out actions that are ‘Hohfeldian permissible but deontologically impermissible’
Point of liability: when standing to complain “ 16 16

17. 4.5 Purely political aggression
Rodin’s argument against universal right of national defence:
Purely political aggression only threatens non-vital interests
Ordinary morality countenances killing only in defence of life and limb
Moreover: duties of care owed to third parties
Shift from narrow to wide proportionality!
Defensive action is impermissible when it foreseeably produces harmful effects that are disproportionate to the good one is seeking to achieve” (Rodin 2014: 82)
Defending territorial integrity ‘not worth it’ 17 17

18. 4.6 Rodin advances two arguments
Territorial integrity and political independence are not ‘worth’ defensive killing
Armed defence = narrowly disproportionate to threat
Denies nations a Hohfeldian liberty-right of self- defence against unjust purely political aggression
Duties of care disallow nations to exercise that Hohfeldian liberty-right
External moral constraints 18 18

19. Conclusion
Language of directed and nondirected duties and permissions allows us to formulate more sophisticated judgments; resolves ambiguity
What we ATC ought to do is morally pivotal...
... yet a full moral picture also addresses question of what we owe to one another 19 19

20. Thank you for your attention!
Any questions? 20 20

21. 5.0 Epilogue: structure of just war theory
Just War Theory has Christian and medieval roots, and was traditionally guided by two assumptions:
Soteriological aim
When and how can military violence be used without jeopardizing entry to heaven?
Studied under heading of ‘charity’, not ‘justice’
How to render use of military violence compatible with general duty to love mankind? 21 21

22. 5.1 Epilogue: structure of just war theory
Effects of these assumptions linger on and make ethical theories of war structurally focused on ATC moral permissions
Another layer must be added:
Directed vs. undirected duties
When do we have a right to go to war? ≠ when is it morally right to go to war? 22 22

23. 4.0 My thesis
‘V can use military violence against A without wronging A’ means:
V has no duty owed to A to abstain from waging war
A is liable to suffer V’s defensive harm
A has forfeited the right not to have violence used against it
Yet various moral duties may prohibit V from exercising their directed liberty-right to wage defensive war against A
B is liable to A’s violence, subject to proportionality requirement 23 23

24. 4.1 First moral constraint
V may have overriding directed duty owed to a third party to not exercise war-right
Resisting A may violate P’s right not to be collaterally killed
Examples:
Syrian rebels have right against Assad to violently resist him and duty to fellow-citizens not to exercise it
US may have liberty-right to attack N-Korea and duty to S-Korea not to exercise it
Grotius: ‘Circumstances too may sometimes fall out so, that it may not only be laudable, but an Obligation in us to forbear claiming our Right, on account of that Charity which we owe to all Men, even tho’ our Enemies’ (DJBP ). 24 24

25. 4.2 Second moral constraint
V may have nondirected moral duty to not exercise war-right
Violently resisting A may be disproportionate, unnecessary, hopeless, etc.
Duty not to wage war in violation of proportionality requirement:
When it will foreseeably produce more evil than moral good
Flouting this norm does not give A right to complain! 25 25

26. 4.3 Likewise: necessity requirement
Resort to force is ATC permissible only as last resort
V faces lethal threat by culpable A
V can save herself by fleeing or by killing A
Both options have equal chance of success
V ought to flee but does not wrong A were she instead to kill him
V ought not to exercise her directed liberty-right to kill A in self-defence 26 26