INTERNATIONAL CONFLICT
1
International Conflict
Alex Bonilla
Adler University
2018GU1-MAMP-504-A
14 May 2018
Syrian War International Conflict
INTERNATIONAL CONFLICT
2
The Syrian War, which began in 2011 between the government and opposing forces,
has grown from initially peaceful demonstrations, into a civil war (in which various factions
are backed by outside powers?) and has adopted (w.c.?) various international elements. The
war began as a conflict between various groups whose focus was to boot out the Assad family
government, which has ruled since 1971. The anti-Assad demonstrations that preceded the
civil war were sparked by an incident which involved a group of children who were tortured
by government officials for painting antigovernment graffiti on their school walls (Stebbins,
2017). This attracted demonstrations by residents, but later erupted into a nationwide issue,
which later turned into an international conflict between various supporters and those
opposing the war.
Over time, international alliances have been formed as the Syrian government has
enjoyed enormous support from countries including Iran, Russia, and Lebanon, while the
government opposition has attracted support from the United States, Britain, France, Saudi
Arabia, and Turkey. These countries have mostly supported the opposition by training rebels
to take part in the fight on the ground. Despite having started as a demonstration against the
actions of the government, the war slowly became a proxy war which would feature Iran and
Russia against United States and other opposition allies. (Is the involvement of these nations
morally justified?) Most parties participating in the war have committed various crimes
including murder, torture, and rape. Often, civilian suffering has been purposefully caused by
belligerent parties who have limited noncombatants’ access to food, water, and health
services. have also been useful tools in the war (Williams, 2006) (?). (Note: This would
have been a good point to elaborate on the principles of Justice in War.)
The majority of Syrians as well as other nations seem to hate the regime led by Assad
and therefore have viewed the killings as a necessity for saving Syrian traditional beliefs,
preserving religion, and preserving more lives in future. Since the Assad family has been
INTERNATIONAL CONFLICT
3
viewed as one which could destroy deeply held values, the fight has been worth it for
majority of the opposition allies, while the same case applies for the government supporters
who would rather fight and protect the Assad regime. Russia has long allied with the Assad
regime, and has utilized various techniques including the use of airstrikes and and cruise
missiles. For majority of the involved parties, they have utilized other approaches such as
train troops while others, such as Iran, have sent plane loads of armies. However, for majority
of nations supporting the opposition, they have a vested business interests which the Assad
regime does not favor.
The seven years of conflict in Syria have taken a toll on the country’s economy and
has had social consequences. The demonstrations, turned war, turned international crisis have
torn apart Syria’s economic and social fabric, especially because the number of civilian?
causalities has been exceedingly high. The conflict has created a global refugee crisis, as well
as a high number of deaths and has destroyed property. Unlike the setting of a just war where
the fighting seeks to right wrongs, the current consequences of this conflict seem to be more
consequential, therefore the effects left behind could be higher than the initial challenges of
the Assad regime. At this point, the war can either go on, or a negotiation can be carried out
to ensure peace. Just as World War I ended with peaceful negotiations, the Syrian war is
likely to end in a similar approach, with most of the country being ruled by Assad. Even
though this will leave majority unhappy with the regime, it will likely restore world peace
and put a stop to the current social and political crisis (Bank, 2017).
You did a good job here of focusing on a single conflict to use as an example in your essay.
You also used the correct format for an APA paper.
Your paper would have been stronger, however, if you had used the Syrian War example to
explore some of the conventions of the Just War Tradition (e.g., just cause, right intent,
INTERNATIONAL CONFLICT
4
proportionality, distinction, etc.) and emerging concepts of Just Peace. Absent that part of the
discussion, this is a paper that explores the historical and geo-political aspects of the conflict
in Syria.
References
Bank, W. (2017, July 10). The Toll of War: The Economic and Social Consequences of the
Conflict in Syria. Retrieved from The World Bank:
http://www.worldbank.org/en/country/syria/publication/the-toll-of-war-the-economicand-social-consequences-of-the-conflict-in-syria
ROBERT E.WILLIAMS, D. C. (2006). Jus Post Bellum: Just War Theory and the Principles
of Just Peace. International Studies Perspectives (2006) 7, 309–320, 13.
Stebbins, W. (2017, July 10). The Visible Impacts of the Syrian War May Only be the Tip of
the Iceberg. Retrieved May 14, 2018, from http://www.worldbank.org/en/news/pressrelease/2017/07/18/the-visible-impacts-of-the-syrian-war-may-only-be-the-tip-of-theiceberg
INTERNATIONAL CONFLICT
1
International Conflict
Alex Bonilla
Adler University
2018GU1-MAMP-504-A
14 May 2018
Syrian War International Conflict
INTERNATIONAL CONFLICT
2
The Syrian War, which began in 2011 between the government and opposing forces,
has grown from initially peaceful demonstrations, into a civil war (in which various factions
are backed by outside powers?) and has adopted (w.c.?) various international elements. The
war began as a conflict between various groups whose focus was to boot out the Assad family
government, which has ruled since 1971. The anti-Assad demonstrations that preceded the
civil war were sparked by an incident which involved a group of children who were tortured
by government officials for painting antigovernment graffiti on their school walls (Stebbins,
2017). This attracted demonstrations by residents, but later erupted into a nationwide issue,
which later turned into an international conflict between various supporters and those
opposing the war.
Over time, international alliances have been formed as the Syrian government has
enjoyed enormous support from countries including Iran, Russia, and Lebanon, while the
government opposition has attracted support from the United States, Britain, France, Saudi
Arabia, and Turkey. These countries have mostly supported the opposition by training rebels
to take part in the fight on the ground. Despite having started as a demonstration against the
actions of the government, the war slowly became a proxy war which would feature Iran and
Russia against United States and other opposition allies. (Is the involvement of these nations
morally justified?) Most parties participating in the war have committed various crimes
including murder, torture, and rape. Often, civilian suffering has been purposefully caused by
belligerent parties who have limited noncombatants’ access to food, water, and health
services. have also been useful tools in the war (Williams, 2006) (?). (Note: This would
have been a good point to elaborate on the principles of Justice in War.)
The majority of Syrians as well as other nations seem to hate the regime led by Assad
and therefore have viewed the killings as a necessity for saving Syrian traditional beliefs,
preserving religion, and preserving more lives in future. Since the Assad family has been
INTERNATIONAL CONFLICT
3
viewed as one which could destroy deeply held values, the fight has been worth it for
majority of the opposition allies, while the same case applies for the government supporters
who would rather fight and protect the Assad regime. Russia has long allied with the Assad
regime, and has utilized various techniques including the use of airstrikes and and cruise
missiles. For majority of the involved parties, they have utilized other approaches such as
train troops while others, such as Iran, have sent plane loads of armies. However, for majority
of nations supporting the opposition, they have a vested business interests which the Assad
regime does not favor.
The seven years of conflict in Syria have taken a toll on the country’s economy and
has had social consequences. The demonstrations, turned war, turned international crisis have
torn apart Syria’s economic and social fabric, especially because the number of civilian?
causalities has been exceedingly high. The conflict has created a global refugee crisis, as well
as a high number of deaths and has destroyed property. Unlike the setting of a just war where
the fighting seeks to right wrongs, the current consequences of this conflict seem to be more
consequential, therefore the effects left behind could be higher than the initial challenges of
the Assad regime. At this point, the war can either go on, or a negotiation can be carried out
to ensure peace. Just as World War I ended with peaceful negotiations, the Syrian war is
likely to end in a similar approach, with most of the country being ruled by Assad. Even
though this will leave majority unhappy with the regime, it will likely restore world peace
and put a stop to the current social and political crisis (Bank, 2017).
You did a good job here of focusing on a single conflict to use as an example in your essay.
You also used the correct format for an APA paper.
Your paper would have been stronger, however, if you had used the Syrian War example to
explore some of the conventions of the Just War Tradition (e.g., just cause, right intent,
INTERNATIONAL CONFLICT
4
proportionality, distinction, etc.) and emerging concepts of Just Peace. Absent that part of the
discussion, this is a paper that explores the historical and geo-political aspects of the conflict
in Syria.
References
Bank, W. (2017, July 10). The Toll of War: The Economic and Social Consequences of the
Conflict in Syria. Retrieved from The World Bank:
http://www.worldbank.org/en/country/syria/publication/the-toll-of-war-the-economicand-social-consequences-of-the-conflict-in-syria
ROBERT E.WILLIAMS, D. C. (2006). Jus Post Bellum: Just War Theory and the Principles
of Just Peace. International Studies Perspectives (2006) 7, 309–320, 13.
Stebbins, W. (2017, July 10). The Visible Impacts of the Syrian War May Only be the Tip of
the Iceberg. Retrieved May 14, 2018, from http://www.worldbank.org/en/news/pressrelease/2017/07/18/the-visible-impacts-of-the-syrian-war-may-only-be-the-tip-of-theiceberg
International Studies Perspectives (2006) 7, 309–320.
POLICY
Jus Post Bellum: Just War Theory and the
Principles of Just Peace
ROBERT E.WILLIAMS, JR.
AND
DAN CALDWELL
Pepperdine University
What happens following a war is important to the moral judgments we
make concerning warfare, just as the intentions going in and the means
used are. There has, however, been inadequate attention paid to considerations of jus post bellum in the just war tradition. This essay seeks to
contribute to recent efforts to develop jus post bellum principles by first
noting some of the ways that jus ad bellum and jus in bello considerations
serve to constrain what can legitimately be done after war. We argue,
however, that the constraints grounded in traditional just war theory do
not offer sufficient guidance for judging postwar behavior and that
principles grounded in the concept of human rights are needed to
complete our understanding of what constitutes a just war. A just peace
exists when the human rights of those involved in the war, on both sides,
are more secure than they were before the war.
Keywords:
Jus post bellum, just peace, just war theory, human rights
The just war tradition is based on the paradox that killing may be necessary to save
lives, that the devastation of war may be required to prevent the destruction of
deeply held values. Pacifists think the paradox is in reality a contradiction. Their
position is understandable when we think of the consequences of modern warfare.
How could the deaths of millionsFsome estimates put the number of people killed
in the wars of the twentieth century alone at 90 millionFpossibly be justified in the
name of saving lives? In fact, there are enormous numbers of war-related deaths
that cannot be justified even in terms of the just war idea of waging war in order to
save lives. There have been, after all, unjust wars and, within those wars that were
just, unjustifiable killings. But the principle, and the paradox it engenders, is well
illustrated by those cases in which a military response almost certainly did save lives
(as in Kosovo) or would have if it had been forthcoming (as in Rwanda).
Over time, philosophers have divided just war thinking into two parts, jus ad
bellum and jus in belloFthe before and after considerations separated by the point of
Authors’ note: The authors would like to thank Martin Cook, James Turner Johnson, Joel Rosenthal, Michael
Walzer, and three anonymous reviewers for their comments and suggestions.
r 2006 International Studies Association.
Published by Blackwell Publishing, 350 Main Street, Malden, MA 02148, USA, and 9600 Garsington Road, Oxford OX4 2DQ, UK
310
Just War Theory and the Principles of Just Peace
entry into war. The first has to do with the moral reasoning that justifies the resort
to warFproper authority, just cause, last resort, right intention, and perhaps other
concernsFwhile the second has to do with the legitimacy of the means used to
wage war. These considerations relate to why and how a war is fought. But this
conventional division sometimes obscures the fundamental inseparability of motive
and means. If war can only be justified by a concern for the lives and dignityFin
essence, the human rightsFof those we seek to defend (whether our own citizens
or the victims of attack or oppression elsewhere), then how we wage that war will
matter a great deal. It is inconsistent to go to war for the defense of human rights if
such a war is likely to result in the deaths of extraordinary numbers of the civilians
we seek to save or, on balance, increase their misery. Likewise, it is inconsistent to
claim to be waging a war for the defense of lives from future terrorist attacks if such
a war is likely to increase those attacks or result, on balance, in less security. Of
course, such consequentialist judgments are difficult to make, but a concern for
justice requires that we make them to the best of our ability. More to the point,
however, is the understanding that how a war is fought is integrally related to its
rationale. Reconciling means and ends is, indeed, a matter of integrity.
A just war is one that seeks to right a wrong, and, not incidentally, at a cost that
will not leave us wondering whether or not the wrong that has been righted might
have been preferable to the wrongs we have left behind. War is never a good thing,
but we consider it justified if a persuasive case has been made that it is the lesser of
two (or ten or a hundred) evils. It must be expected to produce less evil than a
reliance on diplomacy, less evil than economic sanctions, less evil than passive resistance, less evil than doing nothingFless evil, that is, than anything we can plausibly offer as an alternative. Thus we must, to be moral, concern ourselves with the
evils that war produces and that raises questions about how we fight and what we do
after we have fought. Likewise, it means that how we intend to fight and what we
intend to do after we have fought must be part of the moral calculus in determining
whether or not we may justly go to war.
We begin to see, then, why retrospection is so important to moral judgment in
the sense of evaluation and why intention is so important to moral judgment in the
sense of discernment. World War II is called ‘‘the good war’’ not just because of the
defeat of fascism and the liberation of captive peoples. Perhaps it was ‘‘the good
war’’ not even primarily for these reasons. After all, the liberation brought by Allied
armies came too late for many, including two-thirds of Europe’s pre-war Jewish
population. World War II is judged favorably by so many in large measure because
of the postwar order it established. Notwithstanding the Cold War and scores of
civil wars and ethnic conflicts that followed, World War II led, in many parts of the
world, to decolonization, democratization, and development. It produced, in other
words, significant improvements in human rights.
Of course, here we must recognize that the postwar order may have been judged
quite differently by, for example, the Poles and the French. It may be only a slight
exaggeration to say that World War II was fully justified only when the United
States began to reconstruct Western Europe and to rehabilitate and reform Germany and Japan. Would it even be controversial to suggest that the Soviets’ war of
self-defense against German aggression was morally tainted by Stalin’s postwar
policy of carting off to Russia economic assets from the parts of Europe occupied by
the Red Army or to claim that the Soviet Union fought a just war up to the point at
which the Nazis were expelled from Soviet territory, but that its ‘‘liberation’’ of
Eastern Europe proved to be unjust because it merely replaced one alien dictatorship with another?
What happens after the shooting stops and the surrender is signed is important
to the moral justification of warfare, just as the means employed is. And yet there
has always been inadequate attention paid to considerations of jus post bellum in the
just war tradition.
ROBERT E.WILLIAMS AND DAN CALDWELL
311
The Need for Jus Post Bellum Criteria
Since the late medieval period when questions concerning the morality of
warfare came to be divided into the jus ad bellum and the jus in bello, theologians,
philosophers, and lawyers have separated the principles by which entry into war is
judged from those used to judge the conduct of war. Michael Walzer (2000:21) has
stated the distinction particularly well:
The moral reality of war is divided into two parts. War is always judged twice, first
with reference to the reasons states have for fighting, secondly with reference to
the means they adopt. The first kind of judgment is adjectival in character: we say
that a particular war is just or unjust. The second is adverbial: we say that the war
is being fought justly or unjustly. 1
Jus ad bellum considerations offer moral guidance up to the point at which the
fighting begins; the principles associated with jus in bello apply as long as the fighting continues. But what happens after the fighting stops? As the example of World
War II suggests, replete as it is with postwar occupations, regime changes, boundary shifts, war crimes trials, repatriations, reconstruction efforts, and many other
activities, the aftermath of war inevitably raises deep and difficult questions of
justice. Where are the principles that can guide policy makers, as well as individual
soldiers, through the postwar moral thicket?
Recently, a few scholars have attempted to address this question,2 but it remains
the case that jus post bellum is ‘‘the least developed part of just war theory,’’ as Walzer
(2004:161) notes. In spite of the many studies that have appeared concerning war
crimes tribunals, truth commissions, and other strategies for achieving justice in the
aftermath of conflict, general principles of justice such as those embodied in the just
war tradition are absent. As political scientists Charles Kegley and Gregory Raymond (1999:243) have stated, ‘‘While scholars have argued for centuries about the
conditions under which it is just to wage war, far less thought has gone into how to
craft a just peace.’’
To be fair, the classical sources of the just war tradition always demonstrated some
concern for the aftermath of war, especially insofar as those sources related the end
of war to the ends of war. It has been widely acknowledged that only some just
purpose could give meaning to the death and destruction caused by war. Grotius
(1949:375) approvingly quoted Aristotle’s view that ‘‘the purpose of war is to remove the things that disturb peace.’’ Augustine (1958:452) believed that peace ‘‘is
the purpose of waging war. . . . What, then, men want in war is that it should end in
peace.’’ This view of the ends of war is also held by more recent commentators.
Even the one whom we remember for his declaration that ‘‘war is hell,’’ William
Tecumseh Sherman, in a speech delivered in St. Louis in 1865, said, ‘‘The legitimate object of war is a more perfect peace’’ (quoted in Shelton 1999). Echoing
this tradition, the British military strategist B. H. Liddell-Hart (1974:339)
wrote, ‘‘The object in war is a better state of peace.’’ Clearly there has been a
consistent acknowledgment of the importance of securing in war ‘‘a more perfect
peace.’’
Before we attempt to determine what a set of jus post bellum principles might look
like, it is important to consider the argument that no such effort is necessary since
the other parts of the just war traditionFespecially the right intention principle as
it relates to both jus ad bellum and jus in belloFimply the existence of norms applicable to the end, and the aftermath, of war. James Turner Johnson (1999:208)
1
The addition of jus post bellum principles would mean, of course, that war is always judged three times. In fact, this
is what happens. We invariably evaluate, in both political and moral terms, war’s outcome.
2
See, among others, Orend (2000, 2002), Alford (2002), Kellogg (2002), Iasiello (2004), and Allan and Keller
(2006).
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Just War Theory and the Principles of Just Peace
has pointed out that ‘‘the way a war is fought and the purpose at which it aims,
including the peace that is sought for the end of the conflict, are not unrelated,
whether in practical or in moral terms.’’ To the medieval just war theorists, the view
that war is justified only by the peace it seeks to restore served as a restraint on both
the resort to war and the means employed in waging war. It is also possible, however, to invert the relationship and argue that the restraint of warFthat is, the
traditional just war stance itselfFimplies something about the ‘‘end of peace.’’ The
fundamental problem with this position is that just war theorists rarely discuss the
‘‘end of peace’’ and what such an objective implies. We can concede that there is an
important link between why and how a war is fought and how it concludes, but this
no more eliminates the need for principles to insure a just peace than the existence
of jus ad bellum principles eliminates the need for principles to insure that war is
fought justly.
Aquinas (1916:II:2, Q. 40, Art. 1) maintained that a just war is one that is waged
with proper authority, just cause, and right intention. While an assessment of
whether proper authority and just cause exist must be based on circumstances
prevailing at the time the decision is made to go to war, right intention involves a
state of mind related to future conditions. Those who fight in a just war must
‘‘intend the advancement of good, or the avoidance of evil’’ so that the justification
derived from legitimate authority and just cause is not undone by ‘‘a wicked intention.’’ It is not enough, in other words, to have justifiable reasons for going to
war if, having entered the war, the justified side intends to fight in violation of jus in
bello norms or to pursue unjust ends.
The right intention principle prohibits the pursuit of unjust ends. Therefore, it
may be argued, jus ad bellum considerations look to the end of the war and tacitly, if
not explicitly, establish certain general requirements for postwar justice. Augustine,
Aquinas, and their successors (at least among the ethicists if not also among the
lawyers) failed to develop jus post bellum principles, according to this argument,
because their assumptions about the just war subsumed the major postwar concerns.
This argument, although appealing for the way it seeks to preserve the simplicity
of the just war theory, fails on several counts. First, right intention is subject to
diverse interpretations, none of which has ever assumed a clearly preeminent position among theorists and policy makers. Consequently, an argument that the right
intention component of jus ad bellum obviates the need to define jus post bellum
principles runs immediately into a thicket of tangled interpretations. James F.
Childress (1982:77, 78) has suggested that ‘‘for the war as a whole, right intention is
shaped by the pursuit of a just cause, but it also encompasses motives.’’ Having
impure motives (such as hatred for the enemy) would not, however, vitiate the
justification of a war in which the other jus ad bellum requirements were met. Furthermore, to the extent that improper motives might lead combatants to act dishonorably in the war, jus in bello principles are available to address the wrongs.3
Childress (1982:78, 79) notes that an alternative understanding of right intention
links the concept to the pursuit of peace that all just wars must embrace. To go to
war with right intention, therefore, is to fight for a just peace. This, in turn, requires
eschewing methods of warfare (assassination, torture, and acts of treachery, for
example) that would make it difficult to establish a just peace at the end of the war.
Again, it is difficult to see what is gained from this understanding of right intention
that is not already available via the jus in bello principles.
3
Notwithstanding these points, Childress (1982:78) believes ‘‘this criterion of right intention, understood not
merely as pursuit of a just cause but also as proper motives, remains significant in part because war is conducted
between public, not private, enemies. Furthermore, an attitude of regret, if not remorse, is appropriate when a
prima facie obligation is overridden.’’
ROBERT E.WILLIAMS AND DAN CALDWELL
313
In our view, the principle of right intention has a limited, although not inconsequential, purpose. It seeks to insure that the stated reasons for the resort to war,
reasons that must provide a just cause, are in fact the actual reasons. In other
words, ulterior motives are excluded. The state must have a legitimate reason for
going to war and it must confine itself to the pursuit of ends linked to that reason.
Just cause cannot be transformed into license for unjust pursuits.
A second objection to the argument that jus post bellum concerns are adequately
addressed by jus ad bellum principles relates to the potential for changes in the
moral landscape in the course of a war. Jus ad bellum principles require those who
make the decision to go to war to deal first and foremost with matters of fact, with
the ‘‘situation on the ground,’’ as it were. Has an act of aggression occurred? Is an
attack imminent? Is the use of force necessary to save innocent lives? These are the
kinds of questions just war theory asks decision makers to answer. Only with respect
to the question of whether fighting offers a reasonable chance of success does the
just war theory ask leaders to peer into the future.
What Clausewitz called the ‘‘fog of war’’ obscures events not only for the individual soldier but for those who make policy as well. Neither the course of a war nor
its outcome is entirely predictable. It seems reasonable, therefore, to look to a
different set of principles to guide policy in the aftermath of a war than those that
were employed to determine whether to go to war in the first place. The articulation of jus post bellum principles simply acknowledges the fact that we know
different things and are confronted with different challenges before, during, and
after a war. As Douglas Lackey (1989:43) puts it in opening his discussion of just
peace, ‘‘There is room [in just war theory] for one further rule, a rule that takes into
consideration facts available to moral judges after the war ends.’’
Human Rights as the Foundation of Jus Post Bellum Principles
The effort to develop jus post bellum principles is necessary precisely because the
theologians, philosophers, and lawyers who developed and refined the just war
tradition gave insufficient attention to the aftermath of war. Consequently, the
needed principles are not to be found merely by digging more deeply into the work
of Augustine, Aquinas, Suarez, or Grotius. Even Paul Ramsey, Michael Walzer,
James Turner Johnson, and other modern expositors of just war theory have only
touched upon jus post bellum principles.
It is important, because there is so little prior guidance, to begin with this question: What ought to be the foundations of jus post bellum principles? Because our
intent is to build on existing just war theory rather than to begin anew, jus post
bellum principles must have the same foundations as those principles underlying jus
ad bellum and jus in bello. Our first task, then, is to provide a reasonable account of
the basis for existing just war theory.
Unfortunately, this is not a simple matter. Just war theory is commonly regarded
as an artifact of Christian ethicsFwith good reasonFbut to leave the argument
there is to ignore major differences between Augustine and Grotius, to name but
two. It is also to smooth over profound differences in the medieval world and the
modern world. Furthermore, it overlooks both the differences among Christian
thinkers and the contributions to the theory from non-Christian (or at least less
explicitly Christian) sources, as, for example, with the role that chivalric codes
played in the elaboration of the jus in bello principles that are now so important to
the just war tradition (Johnson 1975:64–75).
An appeal to Scripture, while fundamental to many of the most important contributors of just war theory, has historically failed to settle the issue of how war is to
be regarded. Hebrew Scripture, particularly in its texts recounting the history of
the Israelites’ conquest of Canaan, seems to sanction holy wars waged without
restraint. Christian Scripture, on the other hand, points in a pacifist direction and,
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Just War Theory and the Principles of Just Peace
indeed, the available historical evidence suggests that the Christian community
uniformly adopted a pacifist stance until the conversion of Constantine. Those
appealing to Scripture have, consequently, been divided. Of course, others in the
world are entirely unmovedFin any directionFby appeals to Scripture.
Natural law was to have offered a broader foundation for just war theory, one
that would appeal both to Christians and to astute non-Christians. Francisco de
Vitoria famously employed natural law to argue for the rights of the native peoples
encountered by Spanish conquistadors in the New World.4 There are now, however, only a few philosophers who continue to base just war theories on some
concept of natural law (see, e.g., Finnis 1996 and Boyle 1996).
The just war tradition, it seems, has flourished for centuries as a slowly evolving
but always recognizable set of principles resting on various theoretical foundations.
Today, the concept of human rights offers the broadest possible base for the just war
tradition, thanks in part to Walzer’s Just and Unjust Wars.
As anyone who has read the opening pages of Just and Unjust Wars is aware,
Walzer’s revision of the just war theory attempts to steer clear of the endless debates
over the foundations of morality. In a well-known metaphor, Walzer (2000:xxi)
promises a ‘‘tour of the rooms’’ and a ‘‘discussion of architectural principles’’ of the
ethical superstructure in which we live while leaving others to examine the controversial ‘‘substructure of the ethical world.’’ Nevertheless, as Walzer is quick to
point out, a ‘‘doctrine of human rights’’ is central to his understanding of just war
theory. Without attempting to ground the theory of human rights in natural law or
utilitarianism or various accounts of human qualities, Walzer (2000:xxi–xxii) asserts
that ‘‘the arguments we make about war are most fully understood . . . as efforts to
recognize and respect the rights of individual and associated men and women.’’
The human rights doctrine underlying Walzer’s view of just war is only sporadically brought into full view in Just and Unjust Wars, but it informs almost every case
and every conclusion. And, at times, Walzer is explicit about his human rights
substructure as he conducts his ‘‘tour of the rooms.’’ For example, in an early
discussion of the legalist paradigm, which Walzer (2000:72) takes as his starting
point, he states, ‘‘The defense of rights is a reason for fighting. I want now to stress
again, and finally, that it is the only reason.’’ In justifying limited grounds for
intervention, he argues that his exceptions to the general rule of non-intervention
are based on standards that ‘‘reflect deep and valuable, though in their applications
difficult and problematic, commitments to human rights’’ (2000:108).
The commitment to a human rights doctrine is even more apparent when Walzer
takes up jus in bello considerations. The case of the rape of Italian women by
Moroccan soldiers during World War II is the occasion for a more extensive discussion of how just war theory conforms to the requirements of human rights
(2000:133–137). Later, in his discussion of war crimes, Walzer (2000:304) asserts
that ‘‘it is the doctrine of rights that makes the most effective limit on military
activity.’’ Human rights is at the heart of Just and Unjust Wars, and the case Walzer
makes has influenced other scholars to treat just war theory in the same way (see,
e.g., Luban 1980).
In spite of the centrality of human rights in Walzer’s account of the war convention, his just war theory, like traditional accounts, is fundamentally centered on
the state (Smith 1997:8). His concern, to put it differently, is more with the ethics of
national security than with the ethics of what has more recently come to be called
human security. However, as Walzer acknowledged in the preface to the third
edition of Just and Unjust Wars, states are often the violators rather than the defenders of the human rights of their citizens. ‘‘It isn’t too much of an exaggeration,’’
Walzer (2000:xi) writes, ‘‘to say that the greatest danger most people face in the
world today comes from their own states.’’ Far from undermining Walzer’s work,
4
Paul Gordon Lauren (2003:29) places Vitoria within the broader context of the development of human rights.
ROBERT E.WILLIAMS AND DAN CALDWELL
315
this observation suggests the significance of the steps he took to ground just war
theory in a doctrine of human rights. Given the ability of states to both protect and
threaten security,5 a modern account of just war theory, including one that
proposes jus post bellum principles, would do well to proceed from a foundation of
human rights.
Jus Post Bellum Principles
Every war is different. This factFor truismFis worth noting as we seek to develop
jus post bellum principles. Some wars end with a surrender, some with an armistice.
Some wars end with the victors occupying the territory of the vanquished, some
without a foreign occupation. Some wars end with regime change, some without.
Some wars are followed by continued resistance or unconventional war, some are
followed by a complete cessation of violence. Some wars end with the commitment
of international organizations to build peace, some end without international interest.6 Each of these conditions bears on the question of how justice is to be done in
the aftermath of war.
Of course, it is not only the situation that exists after the war that affects the quest
for a just peace. Much that happened during the war will be significant. Were
noncombatants generally spared or not? Were economic assetsFfarms, factories,
and infrastructureFgenerally destroyed or preserved? Were populations displaced? Were atrocities committed? Were limitsFthe laws of armed conflictF
observed?
Finally, as we work backward from the aftermath of the war to its origins, we must
acknowledge that jus ad bellum considerations will inevitably affect the prospects for
a just peace. When the winner is perceived to have waged an unjust war, a host of
considerations may make postwar justice more difficult to obtain. International
organizations may be less likely to support postwar stabilization efforts. Insurgencies may be more likely. Allies may be less willing to assist in peacekeeping and
reconstruction efforts. After major combat operations in the Iraq War ended, many
of America’s European allies cited what Secretary of State Colin Powell called the
‘‘Pottery Barn rule’’: ‘‘You break it, you own it’’ (Woodward 2004:150).
The variability of war may be a problem for those seeking to build descriptive
theory, but normative theorists seem quite capable of developingFand applyingFprinciples that work regardless of the particular characteristics of a war. The
just war tradition, after all, is a set of standards for moral reasoning concerning
means and ends in the use of force. It is not a checklist or a decision tree capable of
producing definitive conclusions. Principles merely assist us in doing the difficult
work of moral reasoning; they do not absolve us of responsibility for that work.
In addition to looking at the way the differences among wars affect our views of
postwar justice, it is important to consider which aspects of the moral situation
change and which do not when wars end. There are, after all, many aspects of what
Walzer calls the ‘‘war convention’’ that remain unchanged. The principle of command responsibility, for example, persists as long as there are soldiers present to
command. That soldiers’ primary responsibility may have shifted from fighting
battles to patrolling the streets or guarding prisoners does not alter the commander’s ultimate responsibility for their actions. Likewise, the inadmissibility of superior
orders as a defense against charges of violations of the rules of war, a principle
established definitively at Nuremberg, is unaffected by the transition from war to
peace.
But some elements of the war convention are affected by a surrender or an
armistice. When the fighting is over, no more exceptions based on military necessity
5
This ambivalence is addressed in Caldwell and Williams (2006:118–20).
The literature on war termination is rich and varied. In addition to Kegley and Raymond (1999), see Kecskemeti (1958), Iklé (1971), Taylor (1985), and Pillar (1988).
6
316
Just War Theory and the Principles of Just Peace
are possible since the concept pertains specifically to actions taken in war.7 To stop
fighting is to be done with military objectives and morally dubious means of attaining them.8
The concept of noncombatant immunity is also profoundly affected by the termination of war. When hostilities end, all become noncombatants and have (or
ought to have) their peace-time right to life restored. As a result, those who continue to kill are murderers, even if their victims are soldiers. This is because the
status of soldiers changes with the onset of peace. Soldiers become, for as long as
their presence is necessary, the moral (and sometimes the functional) equivalents of
policemen. The rules concerning peacekeeping, consequently, must be based on jus
post bellum principles rather than the other aspects of the just war tradition.
Proportionality is a principle associated with both jus ad bellum and jus in bello that
appears applicable to the aftermath of war, although perhaps in ways that are
different from its wartime applications. In assessing postwar efforts to promote
justiceFparticularly retributive justiceFa sense of proportionality seems essential.
If punishment for crimes against peace or war crimes is appropriate at all, the
punishment must fit the crime.
To provide a sound basis for a set of jus post bellum principles, we must return to
the linkage between just war theory and human rights. A just war is one fought in
defense of human rights when those rightsFat least the fundamental rights to life
and libertyFcannot be secured in any other way. Likewise, a war is fought justly if it
is fought with respect for the human rights of noncombatants, including the rights
of soldiers who have become noncombatants by virtue of surrender or capture. A
war is concluded justlyFthat is, a just peace existsFwhen the human rights of
those involved in the warFboth winners and losersFare more secure than they
were before the war. In other words, a successful war (and a just peace) is characterized first and foremost by the vindication of the rights for which the war was
fought. While such a principle does not preclude punishment (indeed, punishment
for the violation of human rights may be essential if those rights are to be vindicated), it does require that a state, having waged war and made peace to vindicate
human rights, respect in the aftermath of war the rights even of those who were
most responsible for the war. Victors may punish crimes, but they must neither
abuse criminals nor punish those who are guilty of no crime.
A focus on the human rights foundation of just war theory suggests, too, that a
just peace may well be impossible if the war is won by those who initiated it in
violation of the human rights of others. When people’s lives, liberty, property, and
security are taken away through an act of aggression, only the defeat of the aggressor can vindicate those rights. When a humanitarian catastrophe necessitates
intervention, only the defeat of those whose human rights abuses caused the catastrophe can secure justice. To put it simply, an unjust war cannot produce a just
peace.
Here it may be useful to clarify what it means to say that a warFor a peaceFis
just. A just war, that is, one that conforms to the jus ad bellum principles, is one that is
7
Military necessity is a problematic moral concept in any case as Walzer makes clear. See Walzer (2000:144–147,
239–242, 251–268, 323–325).
8
This self-evident proposition was challenged by lawyers advising the Department of Defense concerning torture
and interrogation. In a classified memorandum leaked to the Wall Street Journal, an argument was advanced that
‘‘necessity’’might be used as a defense against an allegation of a violation of the U.S. Torture Act (18 U.S.C. §2340).
See ‘‘Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal,
Historical, Policy, and Operational Considerations,’’ March 6, 2003, in Greenberg and Dratel (2005:260–261). It
should be noted, of course, that a war without end, such as the ‘‘war on terrorism,’’ might be construed as making
exceptions based on military necessity available indefinitely. However, the clear language of the Convention Against
Torture and Other Cruel, Inhuman or Other Degrading Treatment or Punishment (Art. 2, Sec. 2: ‘‘No exceptional
circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public
emergency, may be invoked as a justification of torture.’’) rules out a necessity defense where torture is concerned
even in the context of war.
ROBERT E.WILLIAMS AND DAN CALDWELL
317
justifiable. Since the time of Aquinas, who held that a just war was one waged in
response to a fault, it has generally been thought that only one side in a war can be
justified (with the possibility that neither side might be).9 This means that, with
respect to a particular party’s involvement in a war, we can pronounce it just or
unjust (i.e., justifiable or unjustifiable). The evaluation of jus in bello, however, is not
so simple. When we ask whether a war is being fought justly or unjustly, we must
evaluate many different aspects of the conduct of the war. One military operation
may have been conducted with exemplary respect for the lives of noncombatants
while another may have involved enormous ‘‘collateral damage.’’ Justice (or injustice) in war is, depending on one’s purpose in making the judgment, either a vast
cumulative judgment about how the war was fought or a series of judgments about
individual acts in the war. Either way, an all-or-nothing judgment must be considered a gross oversimplification.
Jus post bellum is more complicated still. In some respects, postwar justice must be
evaluated in a manner akin to the way we evaluate the jus ad bellum: either the just
purposes for which the war was fought are achieved (in which case the peace is just)
or they are not. In other respects, however, postwar justice is like justice in war:
some actions taken after the war will be just and some will be unjust. Both the
transcendent policies, planned and implemented by the state, and the individual
acts of decency or depravity committed by soldiers and civilians in the occupied
territory must be taken into account in assessments of jus post bellum. Consequently,
rather than being able to conclude that a particular postwar situation is just or
unjust, we may have to acknowledge that there are only degrees of justice and
injustice in the aftermath of war.10
It should be obvious that winning a just war does not guarantee a just peace.
Taking advantage of a victory to subjugate a people and to violate human rights is a
grave injustice no matter which side, aggressor or defender, is responsible. The
aftermath of World War II provides a dramatic case in point. The Soviets removed
roughly a third of the industrial capacity located in their zone of occupation in
Europe. Russian troops in the eastern part of Germany raped as many as two
million women (Gaddis 1997:45). And in most states occupied by the Red Army at
the end of the war, the right of self-determination was effectively denied for a
generation.
Are there any jus post bellum principles that emerge from these observations?
There is, arguably, one fundamental principle supported by a series of more specific prescriptions. The basic principle is this: A just peace is one that vindicates the
human rights of all parties to the conflict.11 Jus post bellum, in other words, requires
in the case of a war against aggression the restoration of the status quo ante bellum
with respect to the rights of the victims of aggression. It requires, in the case of
humanitarian intervention, the securing of the rights of those whom the intervention was intended to assist. It requires respect for the rights of those in the aggressor state. It permits, subject to limitations imposed by a fundamental respect for
human rights and the concept of proportionality, both the punishment of those
9
Johnson (1975:185–195) discusses the views of Vitoria and Suarez on this issue along with the possibility of
‘‘simultaneous ostensible justice.’’
10
Michael Walzer (2004:162–168), examining the situation in Iraq roughly eight months after the United States’
invasion in March 2003, argued for the possibility of a just settlement of an unjust war. If one accepts, as Walzer does,
that the invasion was unjust, however, it would be more accurate to suggest that the settlement can only be more or
less unjust. To claim that a just peace can come from an unjust war is, from a theoretical perspective, to concede
more to consequentialism than a rights-based just war theory ought to concede. From a practical perspective, it is
almost certain to under-value the costs imposed by the side initiating the unjust war.
11
In stating the principle in this form, we endorse the primary assertion of Orend (2002:46), who suggests that
‘‘the proper aim of a just war is the vindication of those rights whose violation grounded the resort to war in the first
place.’’ Where we differ from Orend’s analysis is in the articulation of the prescriptions that are derived from this
basic principle.
318
Just War Theory and the Principles of Just Peace
adjudged responsible for human rights abuses (including crimes against peace, war
crimes, and crimes against humanity) and the imposition of reasonable measures
intended to prevent future human rights abuses. Finally, it points in the direction of
several specific policies.
The victor must, in the first place, restore order. Without order, a society can
descend into a Hobbesian state of nature in which even the right to life may be
impossible to secure. The need to establish order is often cited as an excuse for
denying rights, and this is an authoritarian temptation that must be resisted, but the
fact remains that public order is an essential foundation for the restoration of
human rights. The widespread violence that has plagued Iraq since the end of U.S.
combat operations in May 2003 has jeopardized the ability of both the occupation
forces and the Iraqi government to secure the human rights of Iraq’s people.
Postwar chaos consequently represents a significant U.S. failure with respect to jus
post bellum.
The second necessity derived from the principle of the vindication of human
rights is economic reconstruction. Without the rehabilitation in some small measure
of war-torn economies, it may be difficult to secure the most basic of human rights,
the right to basic subsistence. How much responsibility a state that has been the
victim of aggression must bear for the economic reconstruction of its enemy is a
difficult question. What seems clear is that winning a war and administering a state
as an occupying power confers a certain responsibility for the welfare of the people
of that state. Not even those who were responsible for the war should be allowed to
starve to death.
A third requirement derived from the jus post bellum principle mandating the
vindication of human rights is the restoration of sovereignty, or self-determination.
Surrender and occupation suspend sovereignty, but only temporarily if the surrender leads to a just peace. Self-determination is a fundamental human right
articulated in both the International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social, and Cultural Rights. Its restoration
must be an urgent objective of the occupying power.
Finally, jus post bellum permits (and some would argue that it requires) the punishment of human rights violations related to the war and its origins. This postwar
prescription is supported by the practices instituted by the Allies in the Nuremberg
and Tokyo war crimes trials after World War II and, more recently, by the examples
of the United Nations tribunals established to address human rights violations in
the former Yugoslavia and in Rwanda. Much has been written about war crimes
trials and transitional justice that need not be recapitulated here (see, e.g., the
works by Howard Ball 1999, Gary Jonathan Bass 2000, and Martha Minow 1998).
What is important for our purposes is that the vindication of human rights requires
a commitment to equal justice, not a show of what Hermann Goering at Nuremberg
dismissed as ‘‘victors’ justice.’’ To put the point in contemporarily relevant terms,
human rights can be vindicated in Iraq and Afghanistan only if American violations
of the laws of war are prosecuted along with our enemies’ crimes.
Conclusion
James Turner Johnson (1999:191) has suggested that ‘‘perhaps the most difficult
problem posed by contemporary warfare, all in all, is the difficulty of achieving a
stable, secure ending to it.’’ The difficulty is both strategic and moral, a matter of
what can be done and what ought to be done to conclude a war successfully. On the
strategic side, the possibilities for postwar settlement have evolved rapidly along
with the international system itself. Since the beginning of the twentieth century the
world has seen, at the conclusion of wars, plebiscites and partitions, disarmament
and de-Nazification, peacekeeping and peace enforcement, reparations and regime
change, nation-building and neutralization, to name just a few of the means em-
ROBERT E.WILLIAMS AND DAN CALDWELL
319
ployed to secure peace. While these strategies have often been rooted in moral
principles (such as the Wilsonian commitment to self-determination), modern
theorists have not done an adequate job of articulating the fundamental principles
underlying what ought to be done in the aftermath of war, nor have we received
adequate guidance from the ancients.
The great philosophers of the just war tradition did recognize an important point
that modern leaders sometimes forget (or, more accurately, hope their democratic
polities will forget): Waging a just war involves facing ethical challenges before,
during, and afterFsometimes long afterFthe war itself. Before the war, justice
requires that all reasonable means to resolve the conflict or protect the lives and
dignity of those being oppressed be tried and found wanting. It also requires that a
just cause be articulated (and not a range of potentially just causes from which a
credulous public may choose). During the war, justice requires respect for the
human rights of noncombatants, even to the point of imposing limits on the conduct of warfare that may be inconvenient or worse. After the war, justice requires
the vindication of human rightsFvindication in the sense of defense, restoration,
and, at times, punishment of past violations. Only when the ethical obligations
attending each phase of a war are met is it possible to argue that the war was just.
Writing in the sixteenth century, the Lord de la Noue offered a vigorous defense
of jus in bello principles, arguing that just wars must be fought with restraint (Johnson 1975:106–107). To make the point, he described a peasant who confronted a
soldier with an account of the current war’s devastation and a question: ‘‘Who will
believe that your cause is just when your behaviors are so unjust?’’ This question
reminds us that judgments concerning the justice of the ends are inextricably
linked to the justice of the means. A similar point can be made regarding consequences. Because what happens once the fighting stops is also critical to the moral
evaluation of war, a concept of jus post bellum is important to inform both our
postwar policies and the final judgments we make concerning wars.
References
ALFORD, ROGER P. (2002) On War as Hell. Chicago Journal of International Law 3:207–218.
ALLAN, PIERRE, AND ALEXIS KELLER, EDS. (2006) What Is a Just Peace? New York: Oxford University
Press.
AQUINAS, THOMAS. (1916) The Summa Theologica of St. Thomas Aquinas. Translated by the Fathers of the
English Dominican Province. London: Burns Oates & Washbourne, Ltd.
AUGUSTINE. (1958) The City of God. Translated by Gerald G. Walsh, Demetrius B. Zema, Grace Monahan, and Daniel J. Honan. Garden City: Image Books.
BALL, HOWARD. (1999) Prosecuting War Crimes and Genocide: The Twentieth-Century Experience. Lawrence:
University Press of Kansas.
BASS, GARY JONATHAN. (2000) Stay the Hand of Vengeance: The Politics of War Crimes Tribunals. Princeton:
Princeton University Press.
BOYLE, JOSEPH. (1996) Just War Thinking in Catholic Natural Law. In The Ethics of War: Religious and
Secular Perspectives, edited by Terry Nardin. Princeton: Princeton University Press.
CALDWELL, DAN, AND ROBERT E. WILLIAMS JR. (2006) Seeking Security in an Insecure World. Lanham:
Rowman & Littlefield.
CHILDRESS, JAMES F. (1982) Moral Responsibility in Conflict: Essays on Nonviolence, War and Conscience.
Baton Rouge: Louisiana State University Press.
FINNIS, JOHN. (1996) The Ethics of War and Peace in the Catholic Natural Law Tradition. In The Ethics
of War: Religious and Secular Perspectives, edited by Terry Nardin. Princeton: Princeton University
Press.
GADDIS, JOHN LEWIS. (1997) We Now Know: Rethinking Cold War History. Oxford: Clarendon Press.
GREENBERG, KAREN J., AND JOSHUA J. DRATEL, EDS. (2005) The Torture Papers: The Road to Abu Ghraib.
New York: Cambridge University Press.
GROTIUS, HUGO. (1949) The Law of War and Peace (De Jure Belli ac Pacis). Translated by Louise R.
Loomis. Roslyn: Walter J. Black, Inc.
320
Just War Theory and the Principles of Just Peace
IASIELLO, LOUIS V. (2004) Jus Post Bellum. The Moral Responsibilities of Victors in War. Naval War
College Review 57:33–52.
IKLé, FRED CHARLES. (1971) Every War Must End. New York: Columbia University Press.
JOHNSON, JAMES TURNER. (1975) Ideology, Reason, and the Limitation of War: Religious and Secular Concepts,
1200–1740. Princeton: Princeton University Press.
JOHNSON, JAMES TURNER. (1999) Morality and Contemporary Warfare. New Haven: Yale University Press.
KECSKEMETI, PAUL. (1958) Strategic Surrender: The Politics of Victory and Defeat. Palo Alto: Stanford
University Press.
KEGLEY, CHARLES W., JR., AND GREGORY A. RAYMOND. (1999) How Nations Make Peace. New York:
St. Martin’s/Worth.
KELLOGG, DAVIDA E. (2002) Jus Post Bellum: The Importance of War Crimes Trials. Parameters 32:
87–99.
LACKEY, DOUGLAS P. (1989) The Ethics of War and Peace. Englewood Cliffs: Prentice Hall.
LAUREN, PAUL GORDON. (2003) The Evolution of International Human Rights. 2nd edition. Philadelphia:
University of Pennsylvania Press.
LIDDELL-HART, B. H. (1974) Strategy. 2nd edition. New York: Praeger Publishers.
LUBAN, DAVID. (1980) Just War and Human Rights. Philosophy and Public Affairs 9:160–181.
MINOW, MARTHA. (1998) Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence. Boston: Beacon Press.
OREND, BRIAN. (2000) War and International Justice: A Kantian Perspective. Blasdell: Wilfrid Laurier
University Press.
OREND, BRIAN. (2002) Justice After War. Ethics and International Affairs 16:43–56.
PILLAR, PAUL R. (1988) Negotiating Peace: War Termination as a Bargaining Process. Princeton: Princeton
University Press.
SHELTON, GEN., HENRY H. (1999) Shaping a Better World: Military Engagement in Peacetime. U.S.
Foreign Policy Agenda. Department of State, International Information Programs. Available at
http://usinfo.state.gov/journals/itps/1299/ijpe/shelton.htm (Accessed May 16, 2006)
SMITH, MICHAEL JOSEPH. (1997) Growing Up with Just and Unjust Wars: An Appreciation. Ethics and
International Affairs 11:3–18.
TAYLOR, A. J. P. (1985) How Wars End. London: H. Hamilton.
WALZER, MICHAEL. (2000) Just and Unjust Wars: A Moral Argument with Historical Illustrations. 3rd edition.
New York: Basic Books.
WALZER, MICHAEL. (2004) Arguing About War. New Haven: Yale University Press.
WOODWARD, BOB. (2004) Plan of Attack. New York: Simon and Schuster.
Journal of Military Ethics,
Vol. 6, No. 2, 91106, 2007
The Sources and Status of Just War
Principles
JEFF MCMAHAN
Department of Philosophy, Rutgers University, USA
ABSTRACT Michael Walzer presents the theory of the just war that he develops in Just and
Unjust Wars as a set of principles governing the initiation and conduct of war that are entailed by
respect for the moral rights of individuals. I argue in this essay that some of the principles he
defends do not and cannot derive from the basic moral rights of individuals and indeed, in some
cases, explicitly permit the violation of those rights. I argue, further, that it does not follow, at
least in some cases, that the principles are false. Even if some of the principles are not adaptations
of a theory of rights to the problems of war, they may still be rational, pragmatic accommodations
to epistemic and institutional constraints under which we must now act. Yet I also argue that
respect for the rights that Walzer claims that individuals have requires us to try to overcome the
epistemic and institutional impediments that restrict us at present. As those impediments are
removed, the reasons for acknowledging and following some of the central principles Walzer
espouses will diminish and, perhaps, disappear.
KEY WORDS: Michael Walzer, just war, moral equality of combatants, civilian liability,
prisoners of war
The Structure of Walzer’s theory
I first read Just and Unjust Wars in 1980, about a year after I had begun my
graduate work in philosophy. I was then, and have remained, greatly
influenced by it. Over the years I have reread various chapters, some on
several occasions. But only after I was invited to contribute to this special
issue did I again read the book through. Again I emerged greatly impressed,
perhaps even more so than when I first read it. I have written pieces that have
been critical of various claims made in the book, and I have often stated my
own views about the morality of war by contrast with or in opposition to
those claims. But I nevertheless find much to admire in this book, and much
to agree with, particularly in Walzer’s judgments about issues of practice,
such as preemptive war, the demand for unconditional surrender, siege
warfare, reprisals, terrorism, and responsibility for war crimes.
Most of my disagreements are with claims that Walzer makes at a higher
level of abstraction. These disagreements concern the content and status of
certain general principles, both substantive and methodological. In a few
Correspondence Address: Department of Philosophy, Rutgers University, 26 Nichol Avenue, New
Brunswick, NJ, 08901, USA.
1502-7570 Print/1502-7589 Online/07/020091 16 # 2007 Taylor & Francis
DOI: 10.1080/15027570701381963
92 J. McMahan
cases, I think the principles are mistaken; in others, I think the principles have
a role in regulating the practice of war, but that Walzer misidentifies their
source and misconstrues their status. This may seem an insignificant
disagreement, a disagreement about the taxonomy of moral principles devoid
of relevance to matters of practice. But I think that how we understand the
nature of these principles does indeed have implications that are of practical
significance.
Different passages in Just and Unjust Wars are suggestive of different ways
of understanding the sources and status of the principles that compose
Walzer’s theory of the just war. Certain passages, for example, suggest that we
devise these principles to help us to achieve certain purposes. This
interpretation is, indeed, suggested by the label that Walzer gives to the set
of principles he seeks to defend: ‘the war convention.’ And he says, quite
explicitly, that ‘the war convention . . . remains one of the more imperfect of
human artifacts: recognizably something that men have made . . .’ (Walzer
2000: 45). He also says that jus in bello the part of just war theory
concerned with the conduct of war ‘requires us to make judgments
about . . . the observance or violation of the customary and positive rules of
engagement’ (2000: 21). This seems to imply that the just war principles
governing the conduct of war are merely customary and positive in nature
rather than elements of basic, nonconventional morality.
Yet the war convention appears to be a miscellany of principles derived
from a variety of sources. Walzer indicates the heterogeneity of the
convention’s elements when he describes it as ‘the set of articulated norms,
customs, professional codes, legal precepts, religious and philosophical
principles, and reciprocal arrangements that shape our judgments of military
conduct’ (2000: 4445). And there are numerous other passages in which he
recognizes that there are valid principles of different types that all constrain
the practice of war.
For example, of the elaborate rules governing surrender and the treatment
of prisoners, he writes that ‘it is not easy to see all this as the simple assertion
of a moral principle. It is the work of men and women (with moral principles
in mind) adapting to the realities of war, making arrangements, striking
bargains’ (2000: 46).1 This may seem to confirm the interpretation according
to which the principles that Walzer defends are mere contrivances for
reciprocal benefit, but it also implies a contrast between the rules of surrender
and moral principles that have a grounding that is perhaps independent of
agreement and convention.
Walzer also draws a distinction between ‘war rights’ and other rights. He
refers, for example, to an older naval code according to which merchant
seamen on ships carrying military supplies were held to have a right not to be
attacked. But he notes that once it ceases to be possible to intercept such ships
and impound their cargo without attacking them, the right of merchant
seamen not to be attacked ‘lapses. It is not a retained right but a war right,
and rests only on the agreement of states and on the doctrine of military
necessity’ (2000: 146). And later, referring to principles that prohibit the use
of certain weapons, such as poison gas, he observes that ‘soldiers have only a
The Sources and Status of Just War Principles 93
war right, and not a more basic right, to be attacked with certain weapons
and not with others’ (2000: 215). Walzer never defines the difference between
war rights and other rights, but one can infer from the context that war rights
are the products of specific agreements or deliberately established conventions. They are not natural or human rights but are instead ‘human artifacts:
recognizably something that men have made.’
We may, therefore, take Walzer to assert, or at least to presuppose, that the
war convention comprises principles that are of different types, that have
different origins and different forms and degrees of normative authority.
Some of the principles establish mere war rights. But others require respect
for rights that are not the creations of bargaining, agreement, or the
conscious establishment of conventions. That he sees these rights as the
foundation of his account of the just war is evident in the following
quotations:
I want to suggest that the arguments we make about war are most fully understood
(though other understandings are possible) as efforts to recognize and respect the rights
of independent and associated men and women. The morality I shall expound is in its
philosophical form a doctrine of human rights. (2000: xxi xxii)
Individual rights (to life and liberty) underlie the most important judgments that we
make about war. (2000: 54)
A legitimate act of war is one that does not violate the rights of the people against whom
it is directed. (2000: 135)
No one can be threatened with war or warred against, unless through some act of his
own he has surrendered or lost his rights. (2000: 135)
The standards of permissibility rest on the rights of individuals. (2000: 143)
The rights of innocent people have the same moral effectiveness in the face of just as in
the face of unjust soldiers. (2000: 228)
The deliberate killing of the innocent is murder. (2000: 323)
At least in Just and Unjust Wars, Walzer remains agnostic about the
ontological status of these individual rights. He concedes that ‘how these
rights are themselves founded I cannot try to explain here. It is enough to say
that they are somehow entailed by our sense of what it means to be a human
being. If they are not natural, then we have invented them, but natural or
invented, they are a palpable feature of our moral world’ (2000: 54). If he
ultimately believes that these rights are invented, which is how I understand
him in his later writings,2 he also believes that they are invented in a different
way from war rights. They are invented, but not intentionally or even
consciously; instead they arise or emerge slowly over time through processes
of communal interaction and the evolution of social meanings. Because
Walzer is, finally, a relativist about morality, who sees densely elaborated
moralities as cultural artifacts, and more abstract, impartial, and cosmopolitan moralities as merely the points of contact or areas of overlap among
94 J. McMahan
local moralities, he does not think that morality is as firmly anchored in the
nature of things as I think it is. But it seems to be a presumption in the book
that the rights to which he refers in the passages just quoted, and to which I
will refer as ‘moral rights’ to distinguish them from war rights, are generally
recognized in moralities that have evolved within particular cultures, and are
therefore as nearly universal and as deeply anchored as anything can be in his
conception of morality.
Individual moral rights are, then, foundational in Walzer’s account of the
morality of war. But where exactly do they fit in the war convention? It is
clear that Walzer thinks that they are in some sense the source or at least a
source of the rules, principles, codes, and so on that are constitutive of the
war convention. He writes, for example, that ‘utilitarianism . . . does not
provide us with customs and conventions. For that, we must turn . . . to a
theory of rights’ (2000: 133). And in a recently published paper, he refers to
‘our ordinary morality,’ in which moral rights are recognized and embedded,
and claims that ‘the conventions represent the adaptation of this morality to
the circumstances of war’ (Walzer 2006: 45).
This claim helps to explain what otherwise appears to be an inconsistency
in Just and Unjust Wars. Recall that, at one point, Walzer seems to assert that
the principles of jus in bello are merely ‘customary and positive rules of
engagement’ (Walzer 2000: 21). This seems inconsistent with his later claim
that ‘the rules of ‘‘fighting well’’ [that is, the rules of jus in bello] are simply a
series of recognitions of men and women who have a moral standing
independent of and resistant to the exigencies of war’ (2000: 135). But these
apparently conflicting claims can perhaps be reconciled if the standing of
individuals as bearers of moral rights finds recognition in or through
principles that have passed into custom and, in some cases, have been legally
codified.
But the war convention is not just a set of lower-level principles that apply
the theory of rights directly to the moral problems raised by war. Individual
rights are apparently only dimly visible in the theoretical and historical
foundations of the war convention. Referring to a nearly universal set of
beliefs about the moral immunity of certain people to attack in war, Walzer
writes that:
[I]t is very likely that some general principle is at work in all these judgments, connecting
immunity from attack with military disengagement . . . The historical specifications of
the principle are, however, conventional in character, and the war rights and obligations
of soldiers follow from the conventions and not (directly) from the principle, whatever its
force. Once again, war is a social creation. The rules actually observed or violated in this
or that time and place are necessarily a complex product, mediated by cultural and
religious norms, social structures, formal and informal bargaining between belligerent
powers, and so on . . . Exactly like law in domestic society, they will often represent an
incomplete or distorted embodiment of the relevant moral principle. (2000: 43)
According to this view, individual rights lie behind the judgments people
make about moral immunity in war and indeed most other judgments they
make about the rights and wrongs of war. There is a line of derivation, but the
principles that best articulate the common core of our beliefs about rights
The Sources and Status of Just War Principles 95
have passed through a variety of cultural lenses and pragmatic filters in the
process of generating the customs, norms, and laws that are constitutive of
the war convention.
But this view, which emerges from the remarks by Walzer that I have just
quoted, fails to cohere with the passages I cited earlier in which Walzer asserts
a more direct connection between individual rights and the principles he
defends and to which he appeals in offering judgments about various aspects
of the practice of war. When he claims, for example, that ‘a legitimate act of
war is one that does not violate the rights of the people against whom it is
directed,’ there is no suggestion that such a principle may admit exceptions as
a result of cultural variation or may acceptably be revised as a result of
bargaining among belligerents.
I will offer here a hypothesis about how these various suggestions about the
role of rights in Walzer’s theory might be reconciled. Walzer never explicitly
distinguishes between the war convention, which he presents himself as
defending, and the theory of the just war, which he also presents himself as
defending. But the heterogeneity of the elements of the war convention
suggests that the relation between the war convention and the theory of the
just war that Walzer defends cannot be one of identity. Rather, the theory of
the just war which is an explicitly moral theory is presumably just one
component of the war convention, which also includes the international law
of war, the professional codes of various military organizations, and so on. So
I suggest that we interpret the quotations about individual rights that I
presented earlier as indicating the relation between individual rights and the
principles of what Walzer takes to be the best account or interpretation of the
theory of the just war. His account of the just war is a philosophical
distillation of beliefs about individual rights into principles that may be
directly applied to the problems of war. It coexists and competes with other
similar or overlapping accounts of the morality of war within the larger and
amorphous body of customs, norms, codes, and laws that constitute the war
convention.
The Domestic Analogy
I will argue that some of the substantive principles that Walzer defends in
developing and setting forth his theory of the just war fail to cohere with the
idea that these principles are essentially requirements of respect for individual
rights in the context of war that is, that they are constraints on the initiation
and conduct of war that are entailed by respect for the rights of individuals.
Before turning to substantive principles, however, I will briefly suggest that
one of the central methodological principles on which Walzer explicitly relies
is of its nature ill suited to the task of deriving principles and judgments that
are sensitive to the moral rights of individuals.
This methodological principle is what Walzer calls the ‘domestic analogy.’
It claims that states ‘possess rights more or less as individuals do,’ so that we
can see relations among states as analogous to relations among individuals.
Consider, for example, the claim that A has a right not to be unjustly attacked
96 J. McMahan
by B and therefore has a right to attack B in self-defense if B engages in
aggression. According to the domestic analogy, A and B could be individual
persons or they could be states. What’s true of the morality of relations
among individuals is also true of the morality of relations among states, for
states are individuals. By viewing states as individuals with rights analogous
to those of individuals, we can, according to Walzer, see ‘the world of states’
as ‘a political society the character of which is entirely accessible through such
notions as crime and punishment, self-defense, law enforcement, and so on’
(2000: 58).
Yet the attempt to understand the morality of war through the domestic
analogy does not focus our attention on individual moral rights but instead
necessarily obscures any role they might have in morally constraining the
practice of war. If we conduct our thinking about war by focusing on
relations among states and treating states as if they were individuals with
rights that are the analogues of the rights of persons, the actual rights of
actual persons become essentially invisible. Individual persons may appear in
our moral thought as the agents, representatives, or partial embodiments of
the state, and there may be a general presumption that because states are
charged with the protection of the rights of their citizens, respect for the rights
of states will translate into respect for the rights of their citizens. But if we
take the domestic analogy seriously, it should lead us to treat individual
persons as if they had no more significance in relations between states than a
person’s individual cells have in relations between persons. In the latter case,
harms to a person matter, while effects on his cells matter only insofar as they
affect him. According to the domestic analogy, effects on individual citizens
should matter only insofar as they bear on the rights of the state.
In practice, the domestic analogy has in fact led people to ignore individual
rights in ways that have proven disastrous. According to traditional liberal
morality, Mill’s ‘harm principle’ is broadly correct: individuals may be
coerced only to prevent them from harming other individuals; they may not
be coerced with respect to matters that concern only themselves.3 If states are
individuals with rights that are the analogues of individual rights, they should
have a right of nonintervention analogous to the individual right against
paternalism. If so, they too may be coerced only to prevent them from
harming or violating the rights of other states. They may not be coerced with
respect to their purely domestic affairs. Reasoning of this sort has been
historically influential in discouraging humanitarian intervention in defense
of the fundamental rights of individuals against violation by their own
government, even in cases in which the violations have amounted to genocide.
It also seems to be an implication of the domestic analogy, though one that
has fortunately received little historical recognition, that there can be no
requirement of discrimination in war. In its generic formulation, the requirement of discrimination is the requirement to distinguish morally between
legitimate and illegitimate targets of attack and to confine one’s intentional
attacks to the former. As it is usually understood in substantive terms, it
forbids intentional attacks against noncombatants but permits attacks
against combatants. But if the state is itself an individual and has acted in
The Sources and Status of Just War Principles 97
such a way as to forfeit its right against attack, and if all of its citizens are
equally parts of the state, then it seems that they should all be legitimate
targets of attack. It might, of course, be said that only the state’s combatant
members are legitimate targets of attack because they are the only part of the
state that is threatening and are thus the only part that may be attacked in
self-defense. But when one person threatens another, there is no one part of
the person that poses the threat; he poses it and there is no part of him that
may not be attacked if attacking that part is necessary for self-defense by the
victim. So if the domestic analogy is correct and states have rights analogous
to those of individuals and may also forfeit those rights in the same way that
individuals sometimes do, then when a state engages in unjust aggression, the
state as a whole, and not just some subset of its citizenry, should lose its right
not to be attacked.
I have said that this implication of the domestic analogy has had little
historical recognition, but it has been the basis for certain doctrines of
collective responsibility, collective guilt, collective liability, and collective
punishment. In this respect at least, the influence of the doctrine has been
pernicious.
It is also worth noting, in concluding this brief discussion of the domestic
analogy, that even to function as an effective heuristic device, the domestic
analogy must deploy notions of the collective good, collective intention,
collective belief, etc. on the assumption that these collective analogues have
the same kind of moral significance as their individual counterparts. The
notion of the collective good, for example, may imply that uncompensated
harms to individual members of the collective have no more significance than
harms that are compensated for within the life of an individual have for that
individual. This, I think, is an evident distortion, as is the idea that a
collective intention that is somehow compounded out of individual intentions
that have perhaps been processed through some institutional decision
procedure could have the same moral significance as an intention formed
and acted on by an individual moral agent.
The Moral Equality of Combatants
The requirement of discrimination is the most important substantive principle of the doctrine of jus in bello. As I just noted, according to its orthodox
contemporary interpretation, this principle holds that while noncombatants
are not permissible targets of attack, all combatants are legitimate targets
for other combatants. The idea that all combatants are permitted to attack all
other combatants, irrespective of whether they are fighting in a just or
an unjust war, is one component of the substantive principle that Walzer calls
the ‘moral equality of soldiers’ though I will call it the ‘moral equality of
combatants,’ to make clear that it applies to naval and air personnel as well as
to soldiers.
It will facilitate the statement and discussion of this principle to introduce a
terminological distinction. Let us refer to those who fight in a war that lacks a
just cause as ‘unjust combatants,’ and to those who fight in a just war as ‘just
98 J. McMahan
combatants.’ This distinction is not exhaustive because it leaves out
combatants who fight in a war that has a just cause but is wrongful for
some other reason for example, because the war is unnecessary for the
achievement of the just cause or because its expected bad effects are
disproportionate to the importance of the just cause. Combatants of this
third type need not concern us here.
The principle of the moral equality of combatants asserts, in effect, that all
combatants, just and unjust alike, have the same rights, immunities, and
liabilities. It asserts that a combatant’s moral status is unaffected by whether
the war in which he fights is just or unjust. This principle is certainly part of
the war convention but it is also central to Walzer’s account of the just war. It
is implicit in the requirement of discrimination as Walzer understands it, and
the requirement of discrimination is the one component of Walzer’s theory of
the just war that is most clearly supposed to derive from individual rights.
Recall that Walzer claims that ‘a legitimate act of war is one that does not
violate the rights of the people against whom it is directed,’ and thus that ‘no
one can be threatened with war or warred against, unless through some act
of his own he has surrendered or lost his rights.’ For the moral equality of
combatants to be compatible with these claims, it must be true that just
combatants either waive or altogether lose their right not to be attacked or
killed by enemy combatants. What Walzer explicitly claims is that they lose it.
‘That right,’ he contends, ‘is lost by those who bear arms ‘‘effectively’’
because they pose a danger to other people’ (2000: 145). It does not matter
that they have done no wrong: ‘Simply by fighting,’ just combatants lose
‘their title to life and liberty . . . even though, unlike aggressor states, they
have committed no crime’ (2000: 36).
Walzer never explains the basis of these claims, but in the tradition that
informs his work they are associated with the idea that self-defense is always
presumptively permissible. We are permitted to defend ourselves against those
who attack us; thus, because combatants on each side threaten those on the
other, all lose their rights vis-à-vis their adversaries. Noncombatants, by
contrast, threaten no one and therefore cannot be attacked defensively. They
retain their right not be attacked or killed.
But the idea that people lose their moral right not to be attacked or killed
simply by posing a lethal threat to another is false, and is almost universally
recognized as such, at least outside the context of war. If a person is the victim
of an unjustified, culpable, and potentially lethal attack, she does not forfeit
her right not be killed by engaging in necessary though potentially lethal selfdefense. Although she now poses a lethal threat to her assailant, her engaging
in justified self-defense does not make it permissible for that assailant to kill
her in self-defense. As in domestic law, there can be no justified defense
against a fully justified attack.
If this is right, then not only does the principle of the moral equality of
combatants not derive from the moral rights of individuals, but it is actually
incompatible with respect for those rights. For if just combatants do not lose
their rights when they engage in justified defense, then when unjust
combatants attack them, they violate those rights and therefore act wrongly.
The Sources and Status of Just War Principles 99
But if unjust combatants violate rights when they attack just combatants,
while just combatants do not violate rights when they fight in justified
defense, the principle of the moral equality of combatants cannot be
compatible with principles that require respect for individual moral rights.
It might, of course, be argued that all combatants waive their rights not to
be attacked or killed vis-à-vis their adversaries. Walzer does gesture in the
direction of this idea in his brief discussions of wars in which all combatants
fight ‘freely’ that is, when combatants on both sides choose to fight
for reasons of their own rather than being compelled to fight either by
the necessity of defense or by threats from their leaders. If, for example, there
were a war fought entirely by mercenaries on both sides, it might be plausible
to regard them all as waiving their rights against attack vis-à-vis their
adversaries, as boxers and duelists do. But it is clear that wars as they are
fought now are not like this; nor does Walzer base the moral equality of
combatants on the suggestion that all combatants somehow consent to be
attacked.
Even though the moral equality of combatants does not derive from
individual moral rights and is even incompatible with principles that do
derive from such rights, it does not follow that it has no role in the normative
regulation of war. A doctrine very like the moral equality of combatants does
in fact have a proper and important place in the war convention, given the
present state of international law and international legal institutions. It is
necessary in current conditions to grant just combatants and unjust
combatants alike a legal permission to attack and kill enemy combatants.
In legal and conventional terms, combatants on both sides in a war must be
regarded as equals, or as having the same status. Their legal or conventional
rights and liabilities must be the same. We might call this view the ‘legal equality of combatants,’ or perhaps the ‘conventional equality of combatants.’
The ultimate foundations of the legal equality of combatants are epistemic.
In part because of what psychologists call in-group/out-group bias, people
tend to trust their own country and its government and to distrust other
countries, at least in situations of conflict. For this and various other reasons,
most combatants believe, usually unreasonably but occasionally even reasonably, that the wars in which they fight are just. This is true of just and unjust
combatants alike. And even those unjust combatants who suspect or even
recognize that their war is unjust are generally far more likely to fight, or to
continue to fight, than to refuse to fight. Furthermore, because it is a rare
person who will acknowledge his wrongdoing, either while he is engaged in it
or afterwards, even those unjust combatants who suspect or believe that their
war is unjust will nevertheless tend to claim that it is just. For these reasons,
whatever is legally permitted to the just in war will be done by the unjust as
well. A law that would grant permissions to the just that it would deny to the
unjust would therefore be wholly ineffective in constraining the unjust.
The difference here between international law and domestic law is that, in
domestic law, people are obliged by the relatively determinate nature of the
laws and by the effectiveness of the mechanisms for the enforcement of these
laws to take great care in determining whether their beliefs about what is
100 J. McMahan
legally and morally permissible are correct. They cannot act with impunity on
the basis of whatever belief they happen to have, or feign to have. At the
international level, by contrast, it is considerably more difficult for an
ordinary combatant to determine whether a war is just or unjust, and there is
no international judicial body that is competent to deliver judgments about
matters of jus ad bellum with anything approximating the epistemic reliability
of a domestic criminal court. The combatant, therefore, has no authoritative
source of guidance, and for this reason, among others, liability for unjust
wars, or for crimes against peace, is restricted to those in positions of
decision-making authority, who are presumed to have competent legal
counsel.
Because of the epistemic constraints under which combatants must act,
which are in part the result of the absence of any authoritative source of
judgment in matters of jus ad bellum, the laws of jus in bello must be neutral
between just and unjust combatants. But a set of neutral laws that would deny
to the just and unjust alike all that ought to be forbidden to the unjust would
be no more effective than non-neutral laws that would deny to the unjust
what they would permit to the just. Neutral laws that denied to the just what
ought to be denied to the unjust would constrain no one. And they would
themselves be fundamentally unjust in that they would in effect deny to the
just the right of self-defense against the unjust. (Advocates of nonviolent
resistance might dispute this claim. But while they are right that violent
defense is unnecessary far more often than most people believe, they are
wrong if they claim that it is never necessary for successful resistance.)
The only feasible option, therefore, is to grant legal permission to both just
and unjust combatants to fight and to kill in war. At least at present, there
would be little advantage yet many risks in making participation in an unjust
war illegal. The most significant obstacle is the absence of any judicial body
that is both legally and epistemically competent to make an authoritative
determination about whether a war is just or unjust. In the absence of more
rigorous procedures than we have at present for evaluating matters of jus ad
bellum, the status of any combatant as an unjust combatant must remain too
contentious to be a basis of legal prosecution. Moreover, in the absence of an
authoritative pronouncement, either before or during the course of a war,
about whether the war is just or unjust, unjust combatants will in most cases
be able to plead nonculpable ignorance to a charge of participation in a
criminal war, thereby mitigating their liability and excusing them from severe
punishments, and thereby also diminishing the deterrent value of any
punishment that might be justly imposed.
There remains, however, a deep difference between the permission just
combatants have to participate in war and that which is granted to unjust
combatants. The permission under which just combatants act is a moral
permission that is also recognized in law. The permission granted to unjust
combatants, however, is legal and conventional only. The international law of
war must, for pragmatic reasons, grant a legal permission to unjust
combatants to engage in morally wrongful killing. Since just combatants
are innocent in the relevant, generic sense that is, they have done nothing to
The Sources and Status of Just War Principles
101
forfeit their moral right not to be killed the international law of war must
grant a legal permission to unjust combatants to engage in the intentional
killing of the innocent.4 It must legally condone the violation of the individual moral right to life a significant point of divergence between the legal
equality of combatants and principles requiring respect for individual moral
rights.
The Rights of Noncombatants and Prisoners of War
The legal permission to kill the innocent is, however, a permission to kill only
innocent combatants. There is no pragmatic reason to permit the killing of
noncombatants. Exactly the opposite is true: there are pragmatic reasons to
maintain a categorical legal prohibition of the killing of noncombatants. And
surely, one might think, this is one point on which morality and the law must
coincide. Yet I think that this is in fact another point of divergence. I believe
that the correct criterion of liability to attack in war is moral responsibility
either for a wrong that is of a type that its prevention or correction constitutes
a just cause for war, or for an unjust threat in war (McMahan 2004). If this is
right, and if there are some civilians who bear a significant degree of
responsibility for an unjust war, if killing them would make an important
contribution to the achievement of the just cause, and if they could be
attacked without causing disproportionate harm to the innocent, then
morality might permit or even require that they be killed.
But, again, given the present state of international law and international
institutions, whatever is permitted to the just will be done by the unjust. It
would therefore be intolerable to have a non-neutral rule that would permit,
on rare occasions, intentional attacks against liable civilians by just
combatants. For such a rule would inevitably be taken by unjust combatants
to justify their attacking enemy civilians who would in fact be innocent (and
all noncombatants on the just side are innocent in the context of war). And it
would also inevitably be taken by just combatants to justify their attacking
enemy civilians in conditions in which those targeted would not bear a
sufficient degree of responsibility to make them liable to military attack, or in
which, while some of those targeted would be liable, there would also be a
sufficient number of other, innocent civilians killed to make the attack
objectively disproportionate.
But it would be even more intolerable to have a neutral rule that permitted
the killing of noncombatants to just and unjust combatants alike. The only
tolerable legal regime is therefore one that forbids intentional attacks against
noncombatants to all. Unlike a neutral prohibition of killing enemy
combatants, a neutral prohibition of killing enemy noncombatants would
not deny a right of self-defense to the just. It might, on occasion, deny just
combatants a defensive option that not only would be morally permissible (at
least in the absence of the legal proscription) but would also be their best or
most effective defensive option in the circumstances. In this respect, the legal
prohibition of the killing of noncombatants by just and unjust combatants
alike is analogous to domestic legislation that would prohibit the possession
102 J. McMahan
of guns to everyone, including both criminals and those who would use a gun
only for legitimate defense. The general prohibition of guns would surely on
occasion impair an innocent individual’s capacity for legitimate self-defense;
but it would, if effectively enforced, enhance the antecedent security of each
innocent person relative to any feasible situation in which some private
citizens were permitted to possess guns.
Thus far I have argued that the permission granted to unjust combatants to
attack and kill just combatants has no foundation in individual moral rights,
and indeed is incompatible with respect for these rights. It is not an
adaptation of the liability rules of ordinary morality to the conditions of
war, but is instead a concession to pragmatism. Its force derives entirely from
its utility. I have also argued that the exceptionless prohibition of intentional
attacks on civilians or noncombatants has a similar foundation. There are
occasions on which it is morally permissible (or would be in the absence of
the legal prohibition) for just combatants intentionally to kill certain
noncombatants namely, those who bear a significant degree of responsibility for the wrong that provides the just cause for war. The reason for
promulgating and enforcing an exceptionless prohibition of intentional
attacks on civilians is again pragmatic. It derives from the necessity of
avoiding the consequences that would ensue if the restricted moral permission
were recognized in law.
There is one more area of Walzer’s account of the just war that I will
mention, which it is tempting to regard as deriving from individual moral
rights but in which at least some of the principles have a conventional
foundation. This is the area of the theory concerned with the treatment of
prisoners. As we saw earlier, Walzer explicitly concedes that some of the
elaborate rules governing what prisoners of war may and may not do, and
what may and may not be done to them, are clearly ‘the work of men and
women . . . adapting to the realities of war’ (2004: 46), rather than logical
derivations from fundamental moral principles. Yet there is a later passage
that suggests that the prohibition of the killing of prisoners has a deeper
basis. Imagine a situation in which a unit of just combatants captures some
prisoners while deep in enemy territory. If the prisoners are released, they will
return to their base, alert their comrades to the presence of the unit, and help
to track it down and attack it. If the just combatants attempt to take the
prisoners with them as they flee enemy territory, the prisoners will slow them
down, consume their rations, and seek to call attention to their presence,
thereby endangering them in various ways. It is important in this example
that the prisoners are unjust combatants, for this means that they have
wrongfully created a situation in which, if they are allowed to live, they will
pose a grave threat to the survival of the just combatants.
In these circumstances, I believe that it could be permissible for the just
combatants to kill them in self-defense or, perhaps, in self-preservation, if
the direct threat were from unjust combatants other than the prisoners
themselves. That is, I believe that in these circumstances the unjust
combatants lack a right not to be killed. Walzer concedes that some legal
writers have recognized the permissibility of killing prisoners in such
The Sources and Status of Just War Principles
103
circumstances. Thus, he quotes Francis Lieber’s military code for the Union
Army, a seminal document in the history of the law of war, which asserts that
‘a commander is permitted to direct his troops to give no quarter . . . when his
own salvation makes it impossible to cumber himself with prisoners’ (2000:
305). Walzer’s response is that ‘surely in such a case the prisoners should be
disarmed and then released. Even if it is ‘‘impossible’’ to take them along, it is
not impossible to set them free. There m...
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